88 Cal.App.5th 218
Cal. Ct. App.2023Background
- Defendant Ryan Pack was charged with multiple counts including count three: assault with a deadly weapon (§ 245(a)(1)) alleging use of a "stabbing weapon."
- Evidence showed Pack had a silver metal object (described variously as metal knuckles, a flat sharp object, or a stabbing weapon) and witnesses said Pack swung at the victim; one witness shouted that Pack had a knife.
- The trial court, over defense objection, instructed the jury that assault with force likely to produce great bodily injury (§ 245(a)(4)) was a lesser included offense of the charged assault with a deadly weapon.
- The jury acquitted Pack of assault with a deadly weapon but convicted him of assault with force likely; Pack appealed asserting a due process violation for lack of notice of that uncharged offense.
- After briefing, People v. Aguayo held the two theories are alternative means of the same offense for purposes of double jeopardy/§ 954; the appellate court requested supplemental briefing on whether Collins material-variance analysis (and due process notice) applied.
- The Court of Appeal concluded Pack lacked constitutionally required notice and that the variance was prejudicial; it reversed the conviction for assault with force likely and declined to modify the judgment to simple assault.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether assault with force likely is a necessarily included offense of assault with a deadly weapon such that due process notice is satisfied | AG initially conceded instruction erroneous but argued conviction could be preserved or modified; later argued facts at preliminary hearing gave notice under Collins | Pack argued it was not a necessarily included offense; he objected to the instruction and argued lack of notice violated due process | Assault with force likely is not a necessarily included offense under the elements or accusatory pleading tests; notice was inadequate |
| Whether Collins/material-variance test rescues the conviction by finding any variance immaterial | AG argued Collins applies and variance was immaterial because preliminary hearing evidence apprised Pack of facts supporting force-likely theory | Pack argued Collins does not apply or, if it does, the variance was prejudicial under the facts | Even assuming Collins applies, the variance here was material and prejudicial; Collins does not save the conviction |
| Whether appellate court should modify the conviction to simple assault under its §1260/§1181 power instead of reversing | AG requested modification to simple assault because jury necessarily found elements of simple assault | Pack opposed; argued error was due process notice, not insufficient evidence, and modification would expand §1260 beyond its purpose | Court declined to modify; §1260/§1181 power is for insufficiency-of-evidence contexts and may not be used to cure a due-process-notice defect; conviction reversed |
Key Cases Cited
- People v. Aguayo, 13 Cal.5th 974 (holding the two § 245 murder/assault theories are alternative means for purposes of § 954)
- People v. Collins, 54 Cal.2d 57 (establishing material-variance test where a variance is immaterial unless it prejudices the defendant)
- People v. Chavez, 268 Cal.App.2d 381 (applying Collins to affirm conviction for assault-by-force-likely when charged as assault with a deadly weapon)
- People v. Aguilar, 16 Cal.4th 1023 (explaining when an otherwise nondeadly instrument may be treated as a deadly weapon because of the manner of use)
- In re L.J., 72 Cal.App.5th 37 (rejecting the reasoning that assault-by-force-likely is always a lesser-included offense of assault with a deadly weapon)
- People v. Lohbauer, 29 Cal.3d 364 (refusing to adopt Collins as a general substitute for accusatory-pleading notice; emphasizing due process notice requirements)
- In re Jonathan R., 3 Cal.App.5th 963 (trial court relied on this case below when treating force-likely as a lesser included offense)