APPEAL from a judgment of the Superior Court of Sacramento County, Patricia C. Esgro, Judge. Affirmed. (Super. Ct. No. 02F05876).
The opinion of the court was delivered by: Butz, J.
CERTIFIED FOR PUBLICATION
A jury convicted defendant George Milward of assault with a deadly weapon and assault by a life prisoner with a deadly weapon. (Pen. Code, §§ 245, subd. (a)(1), 4500.)*fn1 The jury also found defendant had two strike convictions (for murder and attempted murder, arising out of the same case), one of which was also charged as a serious felony. (§§ 667, subds. (a), (b)-(i), 1170.12.)
The trial court sentenced defendant to state prison for life without parole for 27 years for assault by a life prisoner (nine years tripled per § 667, subd. (e)(2)(A)(i)), consecutive to a five-year term for a prior serious felony, consecutive to defendant's current sentence (Super. Ct., Riverside County, 1993, No. ICR17175),*fn2 and imposed but stayed (§ 654) a 25-year-to-life sentence for assault with a deadly weapon.
Defendant timely appealed. Defendant contends that the elements of an assault with a deadly weapon (§ 245, subd. (a)(1)) are included within an assault by a life prisoner with a deadly weapon (§ 4500), and therefore the lesser charge must be reversed. The Attorney General concedes this point, asserting it is controlled by a California Supreme Court case, People v. Noah (1971) 5 Cal.3d 469 (Noah).
We reject the concession. Under the current statutes, a life prisoner can commit an assault with a deadly weapon in violation of section 4500 without committing an assault with a deadly weapon in violation of section 245, subdivision (a)(1). The latter is not included within the former. We publish this case to explain why Noah is no longer controlling authority, and to explain that the pattern jury instruction, CALCRIM No. 875, is incomplete and should be clarified. We shall affirm the judgment.
Evidence was presented from which the jury could find that on June 16, 2001, defendant and another inmate attacked a third inmate, who was stabbed with one or more prison-made sharp weapons. The parties stipulated defendant was serving a life sentence.
In a bifurcated proceeding, the jury received evidence showing defendant's prior strike convictions and the prior serious felony conviction allegation.
A defendant may not be convicted of an offense that is included within another offense. (People v. Reed (2006) 38 Cal.4th 1224, 1227 (Reed).)
"[I]f the statutory elements of the greater offense include all of the statutory elements of the lesser offense, the latter is necessarily included in the former." (Reed, supra, 38 Cal.4th at p. 1227.) The manner in which a crime has been pleaded is not relevant when assessing whether one offense is included within another offense; the pleadings are relevant when and only when the question is whether a defendant may be convicted of an uncharged crime. (Id. at pp. 1228-1231.)
An assault is an "an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another." (§ 240.) A number of statutes refer to assaults with "a deadly weapon" or by means of force "likely to produce great bodily injury" to define a crime or enhance punishment. (See, e.g., Pen. Code, §§ 245, subd. (a)(1), 245.2, 245.3, 245.5, 653f, subd. (a), 1170.8, 4500, 4501; Welf. & Inst. Code, § 1768.8, subd. (b).) Such assaults are commonly referred to as "aggravated" assaults. (See, e.g., Noah, supra, 5 Cal.3d at p. 472; People v. Murray (2008) 167 Cal.App.4th 1133, 1139.) But, as we shall see, not all aggravated assaults are aggravated in the same way.
Noah in part discussed the crimes of aggravated assault by a life prisoner (§ 4500) and aggravated assault by a prisoner "except one undergoing a life sentence." (Former § 4501; Stats. 1963, ch. 2027, § 1, p. 4168; Noah, supra, 5 Cal.3d at pp. 475, 476.) The jury had been instructed that the latter offense was included in the former, but the court held that because a section 4501 conviction requires a finding "that the defendant is not serving a life sentence, the section cannot be ...