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Name: People v. Murray
Case #: C054891
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 10/24/2008
Summary

Aggravated assault is not a lesser included offense of involuntary manslaughter. Appellant contended he could not be convicted of both involuntary manslaughter and aggravated assault because the latter is a lesser included offense in the former. Citing People v. Reed (2006) 38 Cal.4th 1224, the Court of Appeal noted that now only the elements test applies in determining included offenses. Comparing the elements of both offenses, it is obvious that the elements of involuntary manslaughter does not include all of the elements of aggravated assault. Aggravated assault requires an act which by its nature will directly and probably result in the application of force to a person, while involuntary manslaughter requires either an unlawful act or committing a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection. Aggravated assault also requires knowledge of facts that would lead a reasonable person to think a battery would occur, while involuntary manslaughter may be based on the commission of a lawful act that might produce death.