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Whether Assault by Means of Force Likely to Produce Great Bodily Injury a Lesser Included Offense of Assault with a Deadly Weapon

Case Name: People v. Aguayo (2022) 13 Cal.5th 974
Case #: S254554
Last Updated: August 29, 2022

In this case in which briefing was previously deferred pending decision in People v. Aledamat (2019) 8 Cal.5th 1, the court ordered the parties to brief the following question on 11/20/2019: (1) Is assault by means of force likely to produce great bodily injury a lesser included offense of assault with a deadly weapon? (See People v. Aledamat (2019) 7 Cal.5th 1, 16, fn. 5.) (2) If so, was defendant’s conviction of assault by means of force likely to produce great bodily injury based on the same act or course of conduct as her conviction of assault with a deadly weapon?

On April 22, 2020, the court directed the parties to file supplemental briefs addressing the following issues: Are Penal Code section 245, subdivision (a)(1) and section 245, subdivision (a)(4) merely different statements of the same offense for purposes of section 954? If so, must one of defendant’s convictions be vacated?


After a physical altercation with her father, defendant Veronica Aguayo was charged with and convicted of both assault with a deadly weapon other than a firearm (Pen. Code,1 § 245, subd. (a)(1)), and assault by means of force likely to cause great bodily injury (id., subd. (a)(4)). Evidence that defendant hit her father with a bicycle chain and lock supported each aggravated assault conviction.

A defendant may be charged in an accusatory pleading with “two or more different offenses connected together in their commission” and “may be convicted of any number of the offenses charged.” (§ 954.) In this regard, “[w]e have repeatedly held that the same act can support multiple charges and multiple convictions.” (People v. Gonzalez (2014) 60 Cal.4th 533, 537 [179 Cal. Rptr. 3d 1, 335 P.3d 1083] (Gonzalez).) However, if two alleged offenses are “different statements of the same offense” (§ 954), both offenses may be charged based on the same act, but convictions for both cannot stand. (See People v. Vidana (2016) 1 Cal.5th 632, 648 [206 Cal. Rptr. 3d 556, 377 P.3d 805] (Vidana).) The issue we confront here is whether “assault upon the person of another with a deadly weapon or instrument other than a firearm” (assault with a deadly weapon; § 245, subd. (a)(1)) and “assault upon the person of another by any means of force likely to produce great bodily injury” (force likely assault; § 245, subd. (a)(4)) are separate offenses, or whether they constitute “different statements of the same offense” (§ 954). The Courts of Appeal that have addressed this question have reached conflicting results. (See post, at p. 983.)

As we explain below, the answer to this question “turns on the Legislature’s intent in enacting these provisions, and if the Legislature meant to define only one offense, we may not turn it into two.” (Gonzalez, supra, 60 Cal.4th at p. 537.) In prior decisions involving section 954, we outlined specific factors to consider in examining the statutory language of the offense(s) before turning to other indicia of legislative intent. (See People v. White (2017) 2 Cal.5th 349 [212 Cal. Rptr. 3d 376, 386 P.3d 1172] (White); Vidana, supra, 1 Cal.5th 632; Gonzalez, supra, 60 Cal.4th 533.) Having analyzed this case under that framework, we hold that assault with a deadly weapon (§ 245, subd. (a)(1)) and force likely assault (id., subd. (a)(4)) are “different statements of the same offense” (§ 954).

We reverse the Court of Appeal’s judgment affirming both convictions.

This case was decided on 8/25/2022.

Review on this issue was also granted with briefing deferred in:

  • People v. Laun (Oct. 18, 2019, G055893) [nonpub. opn.], review granted 1/22/2020 (S259197)
  • People v. Cota (2020) 44 Cal.App.5th 720, review granted 4/22/2020 (S261120/G056850)
  • People v. Aguirre (Apr. 12, 2021, B296222) [nonpub. opn.], review granted 6/16/2021 (S268799)
  • People v. Lavi (June 22, 2021, B306345) [nonpub. opn.], review granted 9/1/2021 (S270089)
  • People v. Smith (Aug. 10, 2021, A159254) [nonpub. opn.], review granted 10/27/2021 (S270943)
  • People v. Waxlax (2021) 72 Cal.App.5th 579, review granted 2/23/2022 (S272695/E074347)


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