Stanford Law School - Robert Crown Law Library

Filed 8/18/11

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,
S182263
v.
Ct.App. 3 C058326
GEORGE MILWARD,
Sacramento County
Defendant and Appellant.
Super. Ct. No. 02F05876
____________________________________)

While serving a life sentence, defendant attacked another inmate with a
deadly weapon. He was convicted of two crimes: (1) assault with a deadly
weapon or by means likely to inflict great bodily injury by a prisoner serving a life
sentence (Pen. Code, § 4500; hereafter aggravated assault by a life prisoner),1 and
(2) assault with a deadly weapon other than a firearm or by means likely to inflict
great bodily injury (§ 245, subd. (a)(1); hereafter aggravated assault).
Defendant argues that the conviction for aggravated assault must be
reversed because that offense is lesser than, and necessarily included within, the
offense of aggravated assault by a life prisoner. We agree. Because the Court of
Appeal reached a contrary conclusion, we reverse that court’s judgment.

1
All statutory citations are to this code.
1

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I
On June 16, 2001, Donald Jones, a correctional officer at Folsom State
Prison, saw two life prisoners — Ernesto Torres and defendant George Milward
— attack inmate Ricardo Gonzales. When the attackers ignored Jones’s order to
lie down, he fired nonlethal rubber bullets at them, but they continued their attack
on Gonzales. After Jones’s fourth shot appeared to have hit defendant’s leg,
defendant backed away from Gonzalez and lay on the ground, as ordered by Jones.
When defendant was allowed to get up, he threw something over the wall. Jones
retrieved the item, which he described as an “inmate-manufactured razor-type
weapon.” Another inmate-made weapon, which had a cylindrical end that was
sharpened like an ice pick, was found in the grass near the scene of the attack on
inmate Gonzales. Gonzales had slash wounds (consistent with the weapon thrown
by defendant) as well as puncture wounds (consistent with the weapon found in
the grass).
Defendant was charged in count one with aggravated assault by a life
prisoner (§ 4500), in count two with possession of a sharp instrument by a prisoner
(§ 4502, subd. (a)), and in count three with aggravated assault (§ 245, subd.
(a)(1)). As a sentence enhancement to count one, it was alleged that defendant had
personally inflicted great bodily injury on inmate Gonzales (§ 12022.7, subd. (a)).
It was further alleged that defendant had two prior serious felonies (§ 1192.7) that
were “strikes” under the three strikes law (§§ 667, subd. (b)-(i), 1170.12). A jury
found defendant guilty of counts one and three, but the jury was unable to reach a
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verdict as to count two.2 Thereafter, a separate jury found the prior felony
allegations to be true.
The trial court sentenced defendant to life imprisonment with 27 years of
parole ineligibility on count one (aggravated assault by a life prisoner), plus a
consecutive term of five years for one of the two prior serious felony convictions,
both sentences to run consecutively to the life term that defendant was already
serving when he committed the crimes in this case. On count three (aggravated
assault) the court imposed a concurrent term of 25 years to life, plus five years on
the other prior conviction.
On appeal, defendant argued that his conviction for aggravated assault
should be vacated because it is a lesser offense included within the greater crime
of aggravated assault by a life prisoner, of which he was also convicted. The
Court of Appeal, rejecting the concession of this issue by the Attorney General,
upheld the conviction.
The Court of Appeal noted our decision in People v. Noah (1971) 5 Cal.3d
469, 477 (Noah), which held that aggravated assault (§ 245, subd. (a)) was a lesser
offense included within the crime of aggravated assault by an inmate not serving a
life sentence (§ 4501). The Court of Appeal acknowledged that “Noah applies to
section 4500 [aggravated assault by a life prisoner] equally as it applies to section
4501 [aggravated assault by a non-life prisoner]; that is, Noah compels the
conclusion that aggravated assault by a life prisoner could not be committed
without committing aggravated assault as then proscribed by section 245,
subdivision (a).” The Court of Appeal pointed out, however, that in 1982, 11

2
Like defendant, codefendant Torres was charged with aggravated assault by
a life prisoner and with aggravated assault, but the jury was unable to reach a
verdict on either charge.
3

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years after Noah, an amendment by the Legislature “materially changed” the
version of section 245’s subdivision (a) at issue in Noah. Thus, the Court of
Appeal held, Noah’s interpretation is “no longer . . . binding.”
The Court of Appeal concluded that the 1982 amendment created two
separate crimes: the offense of aggravated assault, which is committed with “a
deadly weapon or instrument other than a firearm” (§ 245, subd. (a)(1), italics
added) and assault “with a firearm” (§ 245, subd. (a)(2)). The Court of Appeal
reasoned: “[A]ggravated assault as provided by section 245, subdivision (a)(1)
cannot be committed with a firearm, because assaults with firearms are explicitly
excluded from that offense. However, aggravated assault by a life prisoner as
provided by section 4500 can be committed with a firearm, a type of deadly
weapon. Therefore, if a life prisoner committed an assault with a firearm, she or
he would violate section 4500, but would not violate section 245, subdivision
(a)(1). Therefore, the latter is not included within the former.” We granted
defendant’s petition for review.
II
As mentioned earlier, defendant, a life prisoner, attacked fellow inmate
Gonzales. A jury found him guilty of the crime of aggravated assault by a life
prisoner and the crime of aggravated assault. Both convictions were based on the
same conduct, namely, defendant’s attack on Gonzales. At issue is whether
defendant could lawfully be convicted of both of these crimes or only one of them.
Generally, there is no limit to the number of convictions arising from a
defendant’s act or course of conduct. (§ 954.) But an exception exists for lesser
included offenses. “[I]f a crime cannot be committed without also necessarily
committing a lesser offense, the latter is a lesser included offense within the
former.” (People v. Lopez (1998) 19 Cal.4th 282, 288.) In such cases, a defendant
may not be convicted of both the greater and the lesser offense. (People v. Reed
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(2006) 38 Cal.4th 1224, 1227.) Whether defendant’s two convictions — for
aggravated assault by a life prisoner (§ 4500) and for aggravated assault (§ 245,
subd. (a)(1)) — violates that rule is at issue here.
Section 4500 sets forth the elements as well as the punishment for the crime
of aggravated assault by a life prisoner: “Every person while undergoing a life
sentence . . . who, with malice aforethought, commits an assault upon the person
of another with a deadly weapon or instrument, or by any means of force likely to
produce great bodily injury is punishable with death or life imprisonment without
possibility of parole [if the victim dies as a result of the attack within a year and a
day after it occurs, and otherwise by] imprisonment . . . for life without the
possibility of parole for nine years.”
As to the crime of aggravated assault, section 245’s subdivision (a)(1)
states: “Any person who commits an assault upon the person of another with a
deadly weapon or instrument other than a firearm or by any means of force likely
to produce great bodily injury shall be punished by imprisonment in the state
prison for two, three, or four years, or in a county jail for not exceeding one year
. . . .” (Italics added.) And section 245’s subdivision (a)(2) provides: “Any
person who commits an assault upon the person of another with a firearm shall be
punished by imprisonment in the state prison for two, three, or four years, or in a
county jail for not less than six months and not exceeding one year . . . .” (Italics
added.) As noted earlier (see pp. 3-4, ante), subparagraphs (1) and (2) were
enacted by a 1982 amendment of section 245 (Stats. 1982, ch. 136, § 1, p. 437).
Previously, the Legislature had made no distinction between aggravated
assaults committed with a firearm and those committed by other means. Back
then, section 245’s subdivision (a) provided: “Every person who commits an
assault upon the person of another with a deadly weapon or instrument or by any
means of force likely to produce great bodily injury is punishable by imprisonment
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in the state prison for two, three or four years, or in a county jail not exceeding one
year . . . .” (Stats 1976, ch. 1139, § 152.5, p. 5105.) In amending that provision in
1982 to create subparagraphs (1) and (2), the Legislature’s apparent purpose was
to require a minimum punishment of six months’ imprisonment in county jail for
aggravated assaults committed with a firearm (§ 245, subd. (a)(2)), but not for
aggravated assaults committed by other means (§ 245, subd. (a)(1)).
Defendant asserts that the offenses described in section 245’s subdivision
(a)(1) (assault with a deadly weapon other than a firearm or by means likely to
inflict great bodily injury) and subdivision (a)(2) (assault with a firearm) should be
considered not in isolation but together as constituting one crime, that of
aggravated assault, and that so construed the “crime” is a lesser offense
necessarily included within the crime of aggravated assault by a life prisoner
(§ 4500). (See generally People v. Ortega (1998) 19 Cal.4th 686, 694-699 [the
traditional crime of theft, including both petty theft and grand theft, is necessarily
included within the crime of robbery]; People v. Ryan (2006) 138 Cal.App.4th
360, 364 [when the Legislature divided § 470, defining the traditional crime of
forgery, into subdivisions, it described “different ways of committing a single
offense, i.e., forgery”].) We need not decide whether defendant’s assertions are
correct, because we conclude that the offense described in section 245’s
subdivision (a)(1), which defendant was convicted of violating, is by itself
necessarily included within the greater crime of aggravated assault by a life
prisoner (§ 4500).
As explained earlier (see p. 4, ante) a crime is a lesser offense necessarily
included within a greater crime only if it is impossible to commit the greater crime
without also committing the lesser. The Court of Appeal here reasoned that if a
life prisoner committed an aggravated assault with a firearm, the prisoner would
be guilty of the crime of aggravated assault by a life prisoner (§ 4500) without
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also being guilty of violating section 245’s subdivision (a)(1), because the latter
provision states that it applies to an aggravated assault committed by a deadly
weapon “other than a firearm.” Therefore, the Court of Appeal concluded, the
latter offense is not a lesser offense necessarily included within the greater offense
of aggravated assault by a life prisoner.
The Court of Appeal would be right if the statutory phrase “other than a
firearm” appearing in section 245’s subdivision (a)(1) were an element of the
aggravated assault described in that subdivision. But we do not so construe the
statutory language, as explained below.
Pertinent here is our decision in People v. Rios (2000) 23 Cal.4th 450
(Rios). The defendant in that case was initially charged with murder. At his first
trial, the jury acquitted him of that crime, but it could not reach a verdict on the
lesser included offense of voluntary manslaughter. Because of the acquittal on the
murder charge, the defendant could not be retried for that offense (U.S. Const., 5th
Amend. [“nor shall any person be subject for the same offense to be twice put in
jeopardy”]), but he could be, and was, retried on the charge of voluntary
manslaughter.
Whereas murder is an “unlawful killing . . . with malice aforethought”
(§ 187, italics added), manslaughter is an “unlawful killing . . . without malice”
(§ 192, italics added). Malice is negated when the defendant kills as a result of
provocation or in “imperfect self-defense.” (Rios, supra, 23 Cal.4th at p. 467.) At
the retrial in Rios, the trial court did not instruct the jury on provocation or
imperfect self-defense. The jury found the defendant guilty of voluntary
manslaughter. On appeal, the defendant in Rios argued, in essence, that because
the jury was never instructed on provocation and imperfect self-defense, it never
determined whether he had acted without malice, and that absence of malice was a
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necessary element of manslaughter. The Court of Appeal in Rios rejected the
defendant’s contention, and we granted review.
In Rios, we agreed with the Court of Appeal that the trial court was right in
not instructing the jury that the absence of malice, as shown by provocation or
imperfect self-defense, was an element of voluntary manslaughter. We explained:
“[T]he People must establish malice . . . as an essential element of murder.
However, they need not prove the absence of malice, the issue to which
provocation and imperfect self-defense are relevant, in order to convict the
defendant of the lesser included offense of manslaughter.” (Rios, supra, 23
Cal.4th at p. 469, italics added, original italics deleted.) Otherwise, Rios said,
juries would face a dilemma: “A fact finder doubtful that provocation or
imperfect self-defense was lacking, but also not persuaded beyond reasonable
doubt that either was present, could convict the defendant of neither murder nor
voluntary manslaughter, even though it found the defendant had killed
intentionally, without justification or excuse. Such a result would turn the law of
criminal homicide on its head.” (Id. at p. 462.)
Although section 192 defines manslaughter as an “unlawful killing . . .
without malice” (italics added), the statutory phrase “without malice” is, under
Rios, supra, 23 Cal.4th at page 469, not an element of manslaughter, for the
reasons explained in the preceding paragraph; rather, it serves only to distinguish
manslaughter from the greater crime of murder. Therefore, a defendant who
commits an unlawful killing with malice can be convicted of manslaughter.
For similar reasons, here the statutory phrase “other than a firearm” is not
an element of section 245’s subdivision (a)(1), which punishes an assault with a
deadly weapon “other than a firearm” or by means likely to inflict great bodily
injury; a defendant who commits an assault with a firearm violates that
subdivision. To conclude otherwise could create for juries a dilemma similar to
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the one noted in Rios, supra, 23 Cal.4th at page 462, and discussed by us here at
page 8, ante.
For instance, if a defendant committed an assault with a deadly weapon,
and the jury was uncertain (because of conflicting evidence) whether the weapon
was a firearm, that jury could not convict the defendant of assault with a deadly
weapon other than a firearm (§ 245, subd. (a)(1)), because it had not been
established “beyond a reasonable doubt” (the prosecution’s burden of proof) that
the weapon used was “a deadly weapon . . . other than a firearm” (the phrase used
in section 245’s subdivision (a)(1)). Nor could the jury in our hypothetical convict
the defendant of assault with a firearm (§ 245, subd. (a)(2)), because of the
conflicting evidence on whether the weapon was actually a firearm.
To avoid placing a jury in that quandary, we conclude as follows: The
statutory language in section 245’s subdivision (a)(1) that pertains to an assault
with a deadly weapon “other than a firearm” is not an element of the crime there
described (aggravated assault). The quoted statutory phrase serves simply to
distinguish an assault so committed from the slightly more serious offense of
assault “with a firearm,” as set forth in section 245’s subdivision (a)(2).
Consequently, when, for instance, a jury is convinced beyond a reasonable doubt
that the defendant assaulted the victim with a deadly weapon, but because of
conflicting evidence is uncertain whether the weapon was indeed a firearm, the
jury can convict the defendant of aggravated assault, the crime set forth in section
245’s subdivision (a)(1).
Having just concluded that the phrase “other than a firearm” in section
245’s subdivision (a)(1) is not an element of the crime defined in that subdivision,
we further conclude that the crime defined in that subdivision is an offense
necessarily included within the greater offense set forth in section 4500, which
punishes a defendant who, “while undergoing a life sentence [and] with malice
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aforethought, commits an assault . . . with a deadly weapon or instrument, or by
any means of force likely to produce great bodily injury.” (Italics added.) Our
reasons follow.
Earlier, we mentioned (see ante, at p. 4), that a crime is necessarily
included within a greater crime if the greater crime “cannot be committed without
also necessarily committing” the lesser offense. By its terms, section 245’s
subdivision (a)(1) is violated when the defendant commits an “assault,” either
“with a deadly weapon or instrument,” or by “force likely to produce great bodily
injury.” That language is identical to the language in section 4500 punishing a life
prisoner for committing “an assault . . . with a deadly weapon or instrument, or by
. . . force likely to produce great bodily injury.” (§ 4500 is the greater offense
because the minimum sentence for a defendant who violates that section is a term
of life imprisonment without the possibility of parole for nine years, whereas the
maximum sentence for a violation of § 245’s subd. (a)(1) is a four-year prison
term.) Thus, every element of the crime described in section 245’s subdivision
(a)(1) is also an element of the crime set forth in section 4500, and consequently
every defendant who violates section 4500 necessarily also violates the lesser
offense described in section 245’s subdivision (a)(1).
The law prohibits simultaneous convictions for both a greater offense and a
lesser offense necessarily included within it, when based on the same conduct.
(People v. Reed, supra, 38 Cal.4th at p. 1227.) “When the jury expressly finds
defendant guilty of both the greater and lesser offense . . . the conviction of [the
greater] offense is controlling, and the conviction of the lesser offense must be
reversed.” (People v. Moran (1970) 1 Cal.3d 755, 763.) Here, the jury convicted
defendant of violating — based on the same conduct —section 4500 and section
245’s subdivision (a)(1). Because, as explained earlier, the latter is a lesser
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offense necessarily included within the former, the Court of Appeal erred in not
reversing the conviction for the lesser offense (§ 245, subd. (a)(1)).
DISPOSITION
The judgment of the Court of Appeal is reversed, and the matter is
remanded to that court with directions to reverse defendant’s conviction for assault
with a deadly weapon or instrument other than a firearm or by means of force
likely to inflict great bodily injury (§ 245, subd. (a)(1)).
KENNARD, J.
WE CONCUR:

CANTIL-SAKAUYE, C. J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
CORRIGAN, J.
KING, J.*

*
Associate Justice of the Court of Appeal, Fourth Appellate District,
Division Two, assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
11

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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Milward
__________________________________________________________________________________

Unpublished Opinion

Original Appeal
Original Proceeding
Review Granted XXX 182 Cal.App.4th 1477
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S182263
Date Filed: August 18, 2011
__________________________________________________________________________________

Court:

Superior
County: Sacramento
Judge: Patricia C. Esgro

__________________________________________________________________________________

Counsel:

Valerie G. Wass, under appointment by the Supreme Court, for Defendant and Appellant.

Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant
Attorney General, Michael P. Farrell, Assistant Attorney General, Charles A. French, David A. Rhodes and
Ivan P. Marrs, Deputy Attorneys General, for Plaintiff and Respondent.

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Counsel who argued in Supreme Court (not intended for publication with opinion):

Valerie G. Wass
556 South Fair Oaks Avenue, Suite 9
Pasadena, CA 91105
(626) 797-1099

Ivan P. Marrs
Deputy Attorney General
1300 I Street, Suite 125
Sacramento, CA 94244-2550
(916) 324-0069

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Petition for review after the Court of Appeal affirmed a judgment of conviction of criminal offenses. This case presents the following issues: (1) Is assault with a deadly weapon (Pen. Code ? 245, subd. (a)(1)) a necessarily included offense of assault by a life prisoner with a deadly weapon (Pen. Code ? 4500)? (2) Was People v. Noah (1971) 5 Cal.3d 469 binding on the Court of Appeal unless and until overruled by this court?

Opinion Information

Date:	Citation:	Docket Number:	Category:	Status:
Thu, 08/18/2011	52 Cal. 4th 580, 257 P.3d 748, 129 Cal. Rptr. 3d 145	S182263	Review - Criminal Appeal	submitted/opinion due

Opinion Authors
Opinion	Justice Joyce L. Kennard

Dockets
Apr 29 2010	Petition for review filed Defendant and Appellant: Milward, GeorgeAttorney: Valerie G. Wass
Apr 29 2010	Record requested   via email
May 3 2010	Received Court of Appeal record   one doghouse
Jun 17 2010	Time extended to grant or deny review   The time for granting or denying review in the above-entitled matter is hereby extended to and including July 28, 2010, or the date upon which review is either granted or denied.
Jul 14 2010	Petition for review granted   Votes: George, C.J., Kennard, Baxter, Werdegar, Moreno, and Corrigan, JJ.
Jul 16 2010	Received additional record   four doghouses
Jul 23 2010	Counsel appointment order filed   Upon request of appellant for appointment of counsel, Valerie G. Wass is hereby appointed to represent appellant on the appeal now pending in this court. Appellant's brief on the merits must be served and filed on or before thirty (30) days from the date of this order.
Aug 3 2010	Received additional record   Envelope with two VHS tapes, exhibits 4A and 5
Aug 20 2010	Request for extension of time filed   Counsel for appellant requesting additional 45 days to October 7, 2010 to file Opening Brief on the Merits
Aug 25 2010	Extension of time granted   On application of appellant and good cause appearing, it is ordered that the time to serve and file the Opening Brief on the Merits is extended to and including October 7, 2010.
Oct 4 2010	Request for extension of time filed   Counsel for appellant requesting additional 30 days to November 8, 2010 to file Opening Brief on the Merits
Oct 7 2010	Extension of time granted   On application of appellant and good cause appearing, it is ordered that the time to serve and file the Opening Brief on the Merits is extended to and including November 8, 2010.
Nov 8 2010	Request for extension of time filed   Counsel for appellant requesting additional 30 days to December 8, 2010 to file Opening Brief on the Merits
Nov 10 2010	Extension of time granted   On application of appellant and good cause appearing, it is ordered that the time to serve and file the opening brief on the merits is extended to and including December 8, 2010.
Nov 30 2010	Opening brief on the merits filed Defendant and Appellant: Milward, GeorgeAttorney: Valerie G. Wass
Dec 6 2010	Received:   Amended proof of service on opening brief on the merits. George Milward, Defendant and Appellant Valerie Wass, Supreme Court appointment
Dec 3 2010	Received:   Additional copies of opening brief on the merits.
Dec 21 2010	Compensation awarded counsel   Atty Wass
Dec 29 2010	Request for extension of time filed   Attorney General requesting 30 day extension to January 31, 2011 to file answer brief on the merits.
Jan 5 2011	Extension of time granted   On application of respondent and good cause appearing, it is ordered that the time to serve and file the answer brief on the merits is extended to and including January 31, 2011.
Jan 27 2011	Request for extension of time filed   Counsel for respondent requests a second thirty day extension of time to file answer brief on the merits.
Feb 3 2011	Extension of time granted   On application of respondent and good cause appearing, it is ordered that the time to serve and file the answer brief on the merits is extended to and including February 22, 2011.
Feb 23 2011	Answer brief on the merits filed Plaintiff and Respondent: The PeopleAttorney: Ivan Paolo Marrs   CRC 8.25(b)
Mar 14 2011	Request for extension of time filed   Counsel for appellant requesting 20 day extension to file reply brief on the merits.
Mar 16 2011	Extension of time granted   On application of appellant and good cause appearing, it is ordered that the time to serve and file the reply brief on the merits is extended to and including April 4, 2011.
Apr 6 2011	Reply brief filed (case fully briefed) Defendant and Appellant: Milward, GeorgeAttorney: Valerie G. Wass   CRC 8.25(b)
Apr 19 2011	Justice pro tempore assigned   Hon. Jeffrey King Fourth Appellate District, Division Two
May 3 2011	Case ordered on calendar   to be argued Tuesday, May 24, 2011, at 2:00 p.m., in San Francisco
May 4 2011	Filed:   Letter from Valerie G. Wass, counsel for appellant Milward, requesting delay of argument.
May 5 2011	Argument rescheduled   rescheduled to the June calendar: the case will now be argued on Wednesday, June 1, 2011, at 9:00 a.m., in Los Angeles.
May 27 2011	Application filed   By counsel for respondent requesting to withdraw respondent's answer brief on the merits.
Jun 1 2011	Application denied   Respondent's application to withdraw respondent's answer brief on the merits filed on February 23, 2011, is hereby denied.
Jun 1 2011	Cause argued and submitted
Aug 17 2011	Notice of forthcoming opinion posted   To be filed on Thursday, August 18, 2011 @ 10 a.m.

Briefs
Nov 30 2010	Opening brief on the merits filed Defendant and Appellant: Milward, GeorgeAttorney: Valerie G. Wass
Feb 23 2011	Answer brief on the merits filed Plaintiff and Respondent: The PeopleAttorney: Ivan Paolo Marrs
Apr 6 2011	Reply brief filed (case fully briefed) Defendant and Appellant: Milward, GeorgeAttorney: Valerie G. Wass

Brief Downloads
s182263-4-appellants-reply-brief-merits.pdf (229432 bytes) - Appellants Reply Brief on the Merits
s182263-3-respondents-answer-brief-merits.pdf (238154 bytes) - Respondents Answer Brief on the Merits
s182263-2-appelllants-opening-brief-merits.pdf (437864 bytes) - Appellants Opening Brief on the Merits
s182263-1-appellants-petition-for-review.pdf (352883 bytes) - Appellants Petition for Review

If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website

Jun 7, 2012 Annotated by Christina Holstege

Facts: On June 16, 2011, a correctional officer witnessed the defendant and another prisoner attacking another inmate at Folsom State Prison. After the defendant was subdued and stood back up, he was seen throwing an item over the wall, an "inmate-manufactured razor-type weapon.” Another inmate-made weapon was found in the grass near the scene of the attack. The inmate attacked had slash wounds consistent with the weapon the defendant threw over the fence and puncture wounds consistent with the other weapon found in the grass. Procedural History: Defendant was charged in count one with aggravated assault by a life prisoner (Ca. Penal Code § 4500), in count two with possession of a sharp instrument by a prisoner (Ca. Penal Code § 4502, subd. (a)), and in count three with aggravated assault (Ca. Penal Code § 245, subd. (a)(1)). A jury found defendant guilty of counts one and three, but the jury was unable to reach a verdict as to count two. The trial court sentenced defendant to life imprisonment with 27 years of parole ineligibility on count one (aggravated assault by a life prisoner) plus a consecutive term of five years for one prior serious felony conviction, and a concurrent term of 25 years to life on count three (aggravated assault), plus plus five years on the other prior conviction. On appeal, defendant argued that his conviction for aggravated assault should be vacated because it is a lesser offense included within the greater crime of aggravated assault by a life prisoner, of which he was also convicted. The Court of Appeal, rejecting the concession of this issue by the Attorney General, upheld the conviction. Issues: Whether the defendant could lawfully be convicted of both of aggravated assault under § 245(a)(1) and aggravated assault by a life prisoner under § 4500, or whether he could only be convicted of one of these crimes because they constitute a lesser offense included in a greater crime. Holding: Defendant's conviction for assault with a deadly weapon other than a firearm or by means likely to inflict great bodily injury under § 245, subd. (a)(1) must be reversed because that offense is lesser than, and necessarily included within, the offense of aggravated assault by a life prisoner under Pen. Code § 4500 ("Assault with a deadly weapon or by means likely to inflict great bodily injury by a prisoner serving a life sentence.") Analysis: The Court of Appeal had acknowledged that the decision in People v. Noah, 5 Cal.3d 469, 477 (1971), holding that aggravated assault (§ 245, subd. (a)) was a lesser offense included within the crime of aggravated assault by an inmate not serving a life sentence (§ 4501), compelled the conclusion that aggravated assault by a life prisoner could not be committed without committing aggravated assault at the time. But the Court of Appeal held Noah's interpretation no longer binding due to an amendment by the Legislature in 1982 that "materially changed" section 245 by splitting the offense into aggravated assault with a firearm, now subdivision (a)(2), and aggravated assault with a weapon other than a firearm, subdivision (a)(1). The Court of Appeal concluded that because a defendant using a firearm could be guilty of aggravated assault by a life prisoner under Section 4500, without being guilty of aggravated assault committed by a deadly weapon “other than a firearm” in Section 245(a)(1), the latter offense is not a lesser offense necessarily included within the greater offense of aggravated assault by a life prisoner. The California Supreme Court rejects this conclusion because, in interpreting the statute, it determines that the phrase “other than a firearm” appearing in section 245’s subdivision (a)(1) is not an element of the crime of aggravated assault described in that subdivision. The statutory phrase "serves simply to distinguish an assault so committed from the slightly more serious offense of assault “with a firearm,” as set forth in section 245’s subdivision (a)(2)." In reaching this conclusion, the Court relies on its previous decision of People v. Rios, which held that the statutory phrase “without malice” was not an element of manslaughter, but merely distinguished manslaughter from the greater crime of murder). People v. Rios, 23 Cal.4th 450 (2000). The Court uses an example to explain the inherent problems in construing "other than a firearm" as an element of the crime; a defendant whose weapon was unclear or unestablished would not be able to be convicted under either subsection of § 245. After establishing the proper interpretation of the statute at issue, the Court concludes the crime defined in 245 subdivision (a)(1) is an offense necessarily included within the greater offense in section 4500. A crime is necessarily included within a greater crime if the greater crime “cannot be committed without also necessarily committing” the lesser offense. People v. Lopez 19 Cal.4th 282, 288 (1998). Every element of the crime described in section 245’s subdivision (a)(1) is also an element of the crime set forth in section 4500, and consequently every defendant who violates section 4500 necessarily also violates the lesser offense described in section 245’s subdivision (a)(1). As People v. Moran held, “When the jury expressly finds defendant guilty of both the greater and lesser offense . . . the conviction of [the greater] offense is controlling, and the conviction of the lesser offense must be reversed.” People v. Moran 1 Cal.3d 755, 763 (1970). Thus, the Court of Appeal erred when it failed to reverse defendant's conviction of the lesser offense here. The California Supreme Court reversed the judgment of the Court of Appeal and remanded to that court with directions to reverse defendant’s conviction under § 245, subd. (a)(1). Cited Cases: People v. Noah, 5 Cal.3d 469 (1971). People v. Lopez, 19 Cal.4th 282 (1998). People v. Reed, 38 Cal.4th 1224 (2006). People v. Ortega, 19 Cal.4th 68 (1998). People v. Ryan, 138 Cal.App.4th 360 (2006). People v. Rios, 23 Cal.4th 450 (2000). People v. Moran, 1 Cal.3d 755 (1970). Tags: Inmate, prison, prisoner, assault, aggravated assault, assault with a deadly weapon, life prisoner, life imprisonment, weapon, instrument, firearm, inmate-made weapon, Penal Code § 4500, Penal Code §245, §245(a)(1), §245(a)(2), lesser offense, greater crime, necessarily included, double jeopardy, criminal procedure, crimes. Annotation by Christina Holstege.