People v. Milward, 129 Cal. Rptr. 3d 145

Milward, a life prisoner, attacked another inmate Gonzales with weapons during a prison incident.
Milward was charged with aggravated assault by a life prisoner (§ 4500), possession of a sharp instrument by a prisoner (§ 4502), and aggravated assault (§ 245, subd. (a)(1)); a separate enhancement alleged great bodily injury.
The jury convicted Milward of § 4500 and § 245(a)(1); the jury hung on § 4502; priors found true; sentences imposed accordingly.
Court of Appeal affirmed the convictions, including the § 245(a)(1) conviction, despite Milward’s argument that it was a lesser included offense of § 4500.
This Court held that § 245(a)(1) is not an element of § 4500, but that § 245(a)(1) is nonetheless a lesser offense necessarily included within § 4500, so the § 245(a)(1) conviction must be reversed.
Remand directed to reverse the § 245(a)(1) conviction, leaving the § 4500 conviction intact.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether § 245(a)(1) is a lesser included offense of § 4500	Milward contends § 245(a)(1) is included within § 4500.	Respondent argues no merger; § 4500 and § 245(a)(1) are distinct.	§ 245(a)(1) is a lesser offense necessarily included within § 4500.
If two convictions arise from the same conduct, can both stand when one is lesser included	Not explicitly stated here; Milward argues improper double jeopardy.	Respondent argues separate offenses may coexist unless merger applies.	Conviction for the lesser offense must be reversed; no dual conviction for greater and lesser.
Does the phrase 'other than a firearm' in § 245(a)(1) affect elements for merger analysis	The phrase is an element that could create a nonmerger situation.	The phrase is not an element of the greater offense and does not defeat merger.	The phrase is not an element; it serves only to distinguish from § 245(a)(2).
Is § 245(a)(1) necessarily included within § 4500 when the same conduct supports both	Two offenses could be charged for the same conduct.	Two convictions may be permissible if not legally included.	Yes; § 245(a)(1) is necessarily included within § 4500, requiring reversal of the lesser.

People v. Noah, 5 Cal.3d 469 (1971) (Noah held aggravated assault under § 4501 includes the lesser offense of § 245(a))
People v. Rios, 23 Cal.4th 450 (2000) (malice absent as element separate from manslaughter; creates framework for absence of elements in merger analysis)
People v. Reed, 38 Cal.4th 1227 (2006) (limits on punishing greater and lesser offenses arising from same conduct)