In re Jonathan R. (1st Dist, Div.1) PC 245(a)(1) Is a Necessarily Included Offense of PC 245(a)(4).

Master Jonathan used a knife to stab another kid during a fight.  A juvenile court found true that Jonathan had committed PC 245(a)(1), assault with a deadly weapon (ADW) and PC 245(a)(4), assault by means of force likely to cause great bodily injury.  Jonathan appealed and argued that 245(a)(1) and 245(a)(4) are not separate crimes, rather they are just descriptions of different ways to commit the crime of aggravated assault.

The First District reverses and vacates the 245(a)(4) conviction.  But not for the reason argued, rather because the panel finds that 245(a)(1) is necessarily included within 245(a)(4).

I do not believe this opinion will hold up for two reasons.  First, the legal reasoning is faulty.  Second, because California's Penal Code and Welfare and Institutions Code treat the two offenses differently for purposes of the "strike" laws and DJF eligibility, the holding is unworkable in practice.

The opinion is sloppy due its failure to apply the legal rule it purports to use in examining the issue.  The California Supreme Court has traditionally used the "elements test" to determine when an offense is necessarily included within the other.  If all the elements of offense A are always included in offense B, A is a necessarily included offense of B. Here the panel gives lip (pen?) service to the test, but never gets around to applying it.    

Maybe the reason they eschew a facial application of the test is because doing so would block the panel from reaching its desired result.  To wit, use of force is not an element of assault with a deadly weapon. The elements of ADW, PC 245(a)(1) are as follows. 

     [1] Defendant did an act,
     [2] with a deadly weapon,
     [3] that by its nature would directly and probably result in the application of force to a person.

Compare to the elements of PC 245(a)(4)

     [1] Defendant did an act,
     [2] That by its nature would directly and probably result in the application of force to a person,
     [3]  The force used was likely to produce great bodily injury.

The panel tries to convince us that any act with a deadly weapon likely to result in the application of force necessarily requires the use of force likely to produce great bodily injury.  However, prior appellate decisions make this task difficult.

For years appellate courts have rejected challenges to ADW convictions based upon the argument that the defendant used no physical force on the basis that force is not an element of ADW.  Merely holding a sharp pencil to the neck of another person, without use of any force, is an assault with a deadly weapon.  P. Page, 123 Cal. App. 4th 1472.  Holding a pellet gun at a policeman, without pulling the trigger, is an assault with a deadly weapon, In re D.T. 237 Cal. App. 4th 693.  The crime of assault with a deadly weapon can be committed by the threatened use of force; the use of force is unnecessary.  P v. McCoy 25 Cal. 2d 177.  

IMEO, the panel's error is equating the theoretical application of force to the victim, which need not occur, with the actual use of force by the defendant, which must occur.  ADW does not require the defendant himself use force likely to cause GBI, only that he do something with a weapon that will likely result in the theoretical application of force to the victim.  PC 245(a)(4), however, requires the defendant to actually use physical force (though it need not be transmitted to the victim).  By equating the theoretical "likely" force upon the victim which needn't occur, with the actual force generated by the defendant which must occur, the panel goes astray.