88 Cal.App.5th 981
Cal. Ct. App.2023Background
- In July 2020 Fugit allegedly threw a ceramic mug at an occupied vehicle, shattering a window and breaking a side mirror; shards entered the passenger compartment. Deputies arrested him after he resisted and was tased.
- The information charged assault with a deadly weapon (Pen. Code § 245(a)(1)) using a "ceramic mug," plus related counts (Veh. Code § 23110(b), § 594, § 69, § 148(a)(1)).
- At trial the court instructed the jury on assault with a deadly weapon, simple assault, and — over defense objection — assault by means of force likely to produce great bodily injury ("force-likely assault," § 245(a)(4)).
- The jury acquitted on ADW (§ 245(a)(1)) but convicted on force-likely assault (§ 245(a)(4)) and other counts.
- Fugit appealed, arguing the force-likely instruction was erroneous (no notice / not a lesser included offense). The appellate court also addressed resentencing issues under SB 567 (midterm presumption) and AB 518 (section 654 discretion).
Issues
| Issue | People (Plaintiff) Argument | Fugit (Defendant) Argument | Held |
|---|---|---|---|
| Whether instructing on force-likely assault as a lesser-included offense of ADW violated due process | Information alleged ADW with a non-inherently deadly "ceramic mug," which requires proof the object was used so as to be capable of causing and likely to cause death/GBI — thus defendant had notice that People would prove force-likely elements | Force-likely assault is not a lesser included offense of ADW here; defendant lacked notice and was prejudiced by an uncharged conviction | Instruction was not reversible error: under the accusatory pleading test the "ceramic mug" allegation gave adequate notice, there was no due process violation; conviction affirmed on this ground |
| Whether remand required under SB 567 (midterm presumption) | SB 567 requires applying the midterm presumption; remand may be necessary | Fugit sought remand to obtain midterm relief | Court noted trial court already reduced the vandalism term to the midterm on limited remand; no further relief needed on SB 567 |
| Whether remand required under AB 518 (section 654 discretion) | AB 518 retroactively permits trial courts to choose which term to impose when multiple punishments run from the same act; defendant entitled to its benefit | Fugit sought remand for the trial court to exercise new discretion to select a potentially shorter principal term | Court agreed remand is required so the trial court can exercise its discretion under amended § 654 and select the principal term |
Key Cases Cited
- People v. Reed, 38 Cal.4th 1224 (test distinguishing elements test vs. accusatory-pleading test for lesser included offenses)
- People v. Aguayo, 13 Cal.5th 974 (aggravated-assault subdivisions are different statements of same offense for § 954 purposes)
- People v. Birks, 19 Cal.4th 108 (analysis that greater cannot be committed without also committing the lesser)
- People v. Breverman, 19 Cal.4th 142 (purpose of instructing on lesser included offenses to aid truth-finding and avoid verdicts harsher/lenient than evidence warrants)
- People v. Rundle, 43 Cal.4th 76 (duty to instruct on lesser offenses if supported by substantial evidence)
- People v. Toro, 47 Cal.3d 966 (no practical difference between amending an information and adding a charge by verdict form/instruction; defense must timely object)
- People v. Jones, 51 Cal.3d 294 (due process requires notice and opportunity to defend against charges added at trial)
- People v. Brunton, 23 Cal.App.5th 1097 (when a noninherently dangerous object is used so as likely to produce GBI, § 245(a)(1) and (a)(4) can be different statements of same offense)
- People v. Aguilar, 16 Cal.4th 1023 (definition and treatment of inherently deadly vs. noninherently deadly weapons)