For purposes of due process, assault with a deadly weapon charge (Pen. Code, § 245, subd. (a)(1)) did not provide notice to defendant that he could be convicted of assault with force likely to cause great bodily injury (§ 245, subd. (a)(4)). Defendant was charged with assault with a deadly weapon and other offenses. Over defendant’s objection, the jury was instructed on the uncharged offense of assault with force likely, as a lesser included offense (LIO) of assault with a deadly weapon. Defendant was convicted of the LIO. On appeal, the Attorney General conceded instructional error, and the Court of Appeal requested supplemental briefing on applicability of the “material variance” test. Held: Reversed. The court agreed with the parties that, under the elements test and the accusatory pleading test, defendant did not receive notice that he could be convicted of assault with force likely as an LIO of the charged offense of assault with a deadly weapon. While in most cases this would end the due process inquiry, some courts have applied a different test where the offenses at issue are different theories of the same offense, on the theory that the conviction is not flawed where the “variance” between the offense alleged and the offense proved was “immaterial.” Even assuming the material variance test applies, the variance between the accusatory pleading and Park’s conviction was material and prejudicial. The accusatory pleading indicated only that defendant’s alleged assault involved an inherently deadly weapon. At the preliminary hearing, none of the parties contended the evidence could support a conviction for assault with force likely, and the trial court did not notify the defense of its intent to instruct on force likely assault until after the defense rested. Under these circumstances, the assault with force likely conviction violated defendant’s due process rights.
The proper remedy is reversal of defendant’s assault with force likely conviction, not modification to a lesser included offense. Relying on section 1260, the Attorney General argued that defendant’s conviction should be modified to simple assault because it is a lesser included offense of both assault with force likely and assault with a deadly weapon. However, section 1260 was not intended to confer plenary power of modification on a reviewing court. Because the error here was a violation of due process, rather than insufficiency of the evidence to support the greater offense, the court was not persuaded that section 1260 allowed modification to a lesser included offense under these circumstances.