31 Cal. App. 5th 758
Cal. Ct. App. 5th2019Background
- Veronica Aguayo attacked her 72‑year‑old father with a bicycle lock and chain (about 50 blows) and threw a ceramic pot that struck his head; father had prior brain surgeries at the impact site.
- Aguayo was charged with elder abuse (dismissed), assault with a deadly weapon (Pen. Code § 245(a)(1)) with a weapon‑use enhancement, and assault by force likely to produce great bodily injury (§ 245(a)(4)).
- A jury convicted Aguayo of both assault counts and found the deadly‑weapon enhancement true as to the § 245(a)(1) count; the court placed her on probation and stayed the § 245(a)(4) sentence under § 654.
- On appeal Aguayo argued (1) that force‑likely assault is a lesser included offense of assault with a deadly weapon and (2) that newly enacted mental‑health diversion statutes (§§ 1001.35, 1001.36) should apply retroactively to permit diversion.
- The court rejected the lesser‑included‑offense argument but concluded the mental‑health diversion statutes apply retroactively and remanded for a diversion eligibility hearing; judgment conditionally reversed pending that process.
Issues
| Issue | Aguayo's Argument | Attorney General's Argument | Held |
|---|---|---|---|
| Whether a § 245(a)(4) force‑likely assault is a lesser included offense of § 245(a)(1) assault with a deadly weapon | The § 245(a)(4) count must be vacated because it is necessarily included in the deadly‑weapon assault | § 245(a)(1) can cover assaults with inherently deadly weapons that are not necessarily used in a way likely to cause great bodily injury; thus not all § 245(a)(1) offenses include § 245(a)(4) | Court held force‑likely assault is not a lesser included offense of assault with a deadly weapon because assaults with inherently deadly weapons may not involve force likely to produce great bodily injury |
| Whether newly enacted diversion statutes (§§ 1001.35, 1001.36) apply retroactively | Statutes should apply retroactively to defendants whose appeals were pending, making Aguayo potentially eligible for mental‑health diversion | The people disputed retroactivity (issue also pending before Supreme Court in Frahs) | Court concluded the diversion statutes apply retroactively and remanded for an eligibility hearing; conditional reversal of judgment |
| Whether convictions must be vacated as duplicative because they arose from the same act(s) | (Raised in reply) Both convictions are based on the same conduct and must be vacated | Multiple convictions for separate statutory elements are permissible unless one is a necessarily included offense or the conduct is a single indivisible act warranting § 654 relief | Court declined to consider the argument (procedural default) and noted convictions rested on multiple acts (chain/lock blows and pot strike) |
| Whether Aguilar controls the relationship between deadly‑weapon and force‑likely theories | (Implicit) Aguilar shows the jury analysis often overlaps so lesser‑included treatment is appropriate | Aguilar distinguishes inherently deadly weapons; its reasoning is persuasive but does not force lesser‑included treatment in all cases | Court relies on Aguilar’s distinction and follows its reasoning: overlap exists for noninherently deadly weapons but not for inherently deadly weapons |
Key Cases Cited
- People v. Aguilar, 16 Cal.4th 1023 (Cal. 1997) (defines “deadly weapon” and distinguishes inherently deadly weapons from objects deadly as used)
- People v. Reed, 38 Cal.4th 1224 (Cal. 2006) (elements test for lesser included offenses)
- People v. Sanders, 55 Cal.4th 731 (Cal. 2012) (rule prohibiting multiple convictions when one offense is necessarily included)
- In re Jonathan R., 3 Cal.App.5th 963 (Cal. Ct. App. 2016) (contrary authority holding force‑likely assault is lesser included; court here declines to follow)
- People v. Brunton, 23 Cal.App.5th 1097 (Cal. Ct. App. 2018) (discusses § 245 subdivision changes and duplicative‑conviction issues)
- People v. Cady, 7 Cal.App.5th 134 (Cal. Ct. App. 2017) (procedural discussion of lesser‑included offenses)