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The People v. George Milward

August 18, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
GEORGE MILWARD, DEFENDANT AND APPELLANT.



Court: Superior County: Sacramento Judge: Patricia C. Esgro Sacramento County Ct.App. 3 C058326 Super. Ct. No. 02F05876

The opinion of the court was delivered by: Kennard, J.

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),*fn1 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.

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 verdict as to count two.*fn2 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 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 (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 ...


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