People v. Aguayo

IN THE SUPREME COURT OF
CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
VERONICA AGUAYO,
Defendant and Appellant.
S254554
Fourth Appellate District, Division One
D073304
San Diego County Superior Court
SCS295489
August 25, 2022
Justice Jenkins authored the opinion of the Court, in which
Chief Justice Cantil-Sakauye and Justices Corrigan, Liu,
Kruger, Groban, and Guerrero concurred.
PEOPLE v. AGUAYO
S254554
Opinion of the Court by Jenkins, J.
After a physical altercation with her father, defendant
Veronica Aguayo was charged with and convicted of both assault
with a deadly weapon other than a firearm (Pen. Code,1 § 245,
subd. (a)(1)), and assault by means of force likely to cause great
bodily injury (id., subd. (a)(4)). Evidence that defendant hit her
father with a bicycle chain and lock supported each aggravated
assault conviction.
A defendant may be charged in an accusatory pleading
with “two or more different offenses connected together in their
commission” and “may be convicted of any number of the
offenses charged.” (§ 954.) In this regard, “[w]e have repeatedly
held that the same act can support multiple charges and
multiple convictions.” (People v. Gonzalez (2014) 60 Cal.4th 533,
537 (Gonzalez).) However, if two alleged offenses are “different
statements of the same offense” (§ 954), both offenses may be
charged based on the same act, but convictions for both cannot
stand. (See People v. Vidana (2016) 1 Cal.5th 632, 648
(Vidana).) The issue we confront here is whether “assault upon
the person of another with a deadly weapon or instrument other
than a firearm” (assault with a deadly weapon; § 245, subd.
(a)(1)) and “assault upon the person of another by any means of
force likely to produce great bodily injury” (force likely assault;
1
All further statutory references are to the Penal Code
unless otherwise noted.
PEOPLE v. AGUAYO
Opinion of the Court by Jenkins, J.
§ 245, subd. (a)(4)) are separate offenses, or whether they
constitute “different statements of the same offense” (§ 954).
The Courts of Appeal that have addressed this question have
reached conflicting results. (See post, at p. 8.)
As we explain below, the answer to this question “turns on
the Legislature’s intent in enacting these provisions, and if the
Legislature meant to define only one offense, we may not turn it
into two.” (Gonzalez, supra, 60 Cal.4th at p. 537.) In prior
decisions involving section 954, we outlined specific factors to
consider in examining the statutory language of the offense(s)
before turning to other indicia of legislative intent. (See People
v. White (2017) 2 Cal.5th 349 (White); Vidana, supra, 1 Cal.5th
632; Gonzalez, supra, 60 Cal.4th 533.) Having analyzed this
case under that framework, we hold that assault with a deadly
weapon (§ 245, subd. (a)(1)) and force likely assault (id., subd.
(a)(4)) are “different statements of the same offense” (§ 954).
We reverse the Court of Appeal’s judgment affirming both
convictions.
FACTUAL AND PROCEDURAL BACKGROUND
On August 18, 2017, 43-year-old defendant Veronica
Aguayo was working on her bicycle in her parents’ yard. Her
72-year-old father, Luis Aguayo (Father), turned on the
sprinklers to water the plants and accidentally got defendant’s
cell phone charger wet. Each testified at trial to their version of
what happened next.
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Opinion of the Court by Jenkins, J.
Father testified that defendant began yelling expletives
and “came at” him with a bicycle chain and lock, 2 hitting him in
the back. When she tried to hit him again, Father grabbed the
lock and tried to wrest it from defendant’s hands. When Father
let go of the bicycle lock, defendant hit Father’s head, arms, and
chest with the lock approximately 15 times. Father grabbed the
bicycle chain, and the two struggled back and forth until
defendant slipped and pulled Father down on top of her.
Defendant stood up and while Father was still on his knees,
defendant grabbed a ceramic pot located nearby and threw it at
him. It hit Father on a part of his head where he had previously
had brain surgery. Father grabbed a rock to throw at defendant,
but reconsidered and threw the rock away. The rock ricocheted
off a nearby wall and hit defendant on the head.
As Father turned to go inside the house, defendant struck
him with the bicycle chain on his chest, arms, and back. The
two struggled once more over the bicycle chain, and Father
wrested control of it. Defendant grabbed a rock and was about
to hit Father with it, but her mother, who had appeared in the
doorway, told her, “Don’t do that.” Defendant asked Father for
the bicycle chain, which Father threw back to her. Defendant
then rode away on her bicycle. Father opined that during the
struggle defendant struck him with the bicycle chain
approximately 50 times.
Defendant’s account of the struggle diverged from Father’s
in several respects. She testified that she acted in self-defense.
2
At times, the record refers to the bicycle chain and lock as
either the chain or lock or both, though the two appear to be one
unit. The opinion tracks the description used by each witness
during their testimony.
3
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Opinion of the Court by Jenkins, J.
Initially, she confronted Father about her wet phone charger
and he said, “ ‘I do what I want to do because this is my house.’ ”
Defendant then called Father a “fucking asshole,” and he
started to come towards her. Fearful of Father, defendant
started swinging the chain and yelled, “Get away from me. ”
Defendant hit Father in the head with the bicycle chain. Father
charged at defendant and she hit him a second time with the
bicycle lock. After he got hold of the bicycle lock, Father hit
defendant’s legs with it several times, though she did not
sustain any visible injuries or bruises. According to defendant,
Father threw the ceramic pot at her, not the other way around.
As relevant here, an amended information charged
defendant with two offenses: (1) assault with a deadly weapon,
with an enhancement allegation that she “personally used a
dangerous and deadly weapon, to wit: bicycle chain/lock”
(§§ 245(a)(1), 1192.7, subd. (c)(23); count 2); and (2) force likely
assault (§ 245(a)(4); count 3). The jury found defendant guilty
on both assault charges and found true the deadly-weapon-use
enhancement allegation attached to count 2.
The trial court imposed concurrent sentences for these
convictions but stayed the sentence on count 3 (force likely
assault) under section 654. Defendant appealed, arguing that
her conviction for force likely assault must be vacated because
it is a lesser included offense of assault with a deadly weapon.
The Court of Appeal rejected this claim, reasoning that an
assault can be committed with an inherently deadly weapon
without necessarily using force likely to produce great bodily
injury. The court also rejected defendant’s claim that the two
convictions were impermissibly based on the same conduct,
pointing to what it viewed as multiple acts of hitting Father with
the bicycle chain and hitting his head with the ceramic pot.
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However, it remanded to the trial court with directions to
determine defendant’s eligibility for a pretrial mental health
diversion program. (See §§ 1001.35, 1001.36.) It conditionally
reversed the judgment for this limited purpose.
After granting review, we subsequently directed the
parties to answer the following questions: Are force likely
assault and assault with a deadly weapon “different statements
of the same offense for purposes of section 954? If so, must one
of defendant’s convictions be vacated?” Our opinion here
addresses only the section 954 issue briefed by the parties.
DISCUSSION
Defendant contends that the assault with a deadly weapon
count and the force likely assault count are merely different
ways of stating the same offense. Assuming we agree, she posits
that because these counts arose from the same set of facts, she
may be convicted of only one count. We agree with defendant’s
contention.
We begin our analysis by examining legal principles that
guide our determination of when multiple charges in an
accusatory pleading allege different offenses or represent
“different statements of the same offense” under section 954.
A. Different Statements of the Same Offense
Section 954 provides that “[a]n accusatory pleading may
charge two or more different offenses connected together in their
commission, or different statements of the same offense or two or
more different offenses of the same class of crimes or offenses,
under separate counts.” (Italics added.) “The prosecution is not
required to elect between the different offenses or counts set
forth in the accusatory pleading, but the defendant may be
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convicted of any number of the offenses charged.” 3 (§ 954; see
Vidana, supra, 1 Cal.5th at p. 649.) One of section 954’s
objectives is to assist in a “just administration of the criminal
law” — for instance, one trial involving multiple charges alleged
in a single accusatory pleading would obviate the need for
“another trial of the same facts with its attendant trouble and
expense” on any withheld charges. (People v. Piner (1909) 11
Cal.App. 542, 547; see People v. Sloan (2007) 42 Cal.4th 110, 122
[explaining “legitimate future use of multiple convictions”
pursuant to § 954].)
We have also stated that section 954 “ ‘does not permit
multiple convictions for a different statement of the same
offense when it is based on the same act or course of conduct.’ ”
(Vidana, supra, 1 Cal.5th at p. 650.) Put another way, “ ‘if a
defendant cannot be convicted of a greater and a lesser included
offense based on the same act or course of conduct, dual
convictions for the same offense based on alternate legal
theories would necessarily be prohibited.’ ” (Ibid.)
Whether statutory offenses charged in an accusatory
pleading “define different offenses or merely describe different
ways of committing the same offense properly turns on the
Legislature’s intent in enacting these provisions, and if the
Legislature meant to define only one offense, we may not turn it
into two.” (Gonzalez, supra, 60 Cal.4th at pp. 537, 538–540 [oral
copulation of intoxicated person and oral copulation of
3
While a defendant may be properly convicted of different
offenses based on the same act, he or she may be punished for
only one of those offenses. (§ 654; see People v. Jones (2012) 54
Cal.4th 350, 358 [“Section 654 prohibits multiple punishment
for a single physical act that violates different provisions of
law”].)
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unconscious person are different offenses]; see White, supra, 2
Cal.5th at pp. 354–359 [rape of intoxicated person and rape of
unconscious person are different offenses]; accord, Vidana,
supra, 1 Cal.5th at pp. 637, 647–649 [grand theft by larceny and
grand theft by embezzlement are different statements of same
offense].)
To determine such intent under the section 954
framework, we do not employ traditional principles of statutory
interpretation, which are designed to ascertain the meaning of
an ambiguous statute. Here, we must resolve any uncertainty
about what the Legislature intended when it enacted assault
with a deadly weapon and force likely assault, i.e., whether it
intended to define two different offenses or two different ways of
committing the same offense. (See Vidana, 1 Cal.5th at p. 637;
Gonzalez, 60 Cal.4th at p. 537.) To that end, we consider the
text and structure of the statutes; the elements of the two
offenses; their prescribed punishments; and other indicia of
legislative intent, including legislative history and the wider
historical context of the statutes’ enactment to resolve the
question. (See Vidana, at pp. 637–647; Carmack v. Reynolds
(2017) 2 Cal.5th 844, 850.) None of these individual factors is
necessarily dispositive. (Vidana, at p. 648.) With these guiding
principles in mind, we begin our analysis of the question before
us by examining the statutory language of the aggravated
assaults at issue.
1. Statutory language of section 245
Assault with a deadly weapon and force likely assault are
separately set out in section 245, subdivision (a)(1) (section
245(a)(1)) and section 245, subdivision (a)(4) (section 245(a)(4)),
respectively. (See Stats. 2011, ch. 183, § 1.) The former makes
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it a crime to “commit[] an assault upon the person of another
with a deadly weapon or instrument other than a firearm.”
(§ 245(a)(1).) The latter makes it a crime to “commit[] an assault
upon the person of another by any means of force likely to
produce great bodily injury.” (§ 245(a)(4).) The prescribed
punishment for both forms of aggravated assault is identical:
“imprisonment in the state prison for two, three, or four years,
or in a county jail for not exceeding one year, or by a fine not
exceeding ten thousand dollars ($10,000), or by both the fine and
imprisonment.” (§ 245, subd. (a)(1), (4).)
The lower courts are divided on whether these two types
of aggravated assaults are, for purposes of section 954, separate
offenses or the same offense. (See, e.g., People v. Brunton (2018)
23 Cal.App.5th 1097 (Brunton) [different statements of same
offense]; but see In re Jonathan R. (2016) 3 Cal.App.5th 963[separate offenses]; cf. In re C.D. (2017) 18 Cal.App.5th 1021,
1029 [under § 245, subd. (c) assault with a deadly weapon and
force likely assault against peace officer or firefighter are a
single offense].)
Relying on Brunton, defendant argues that
subparagraphs (a)(1) and (a)(4) of section 245 do “not plainly
state whether, for purposes of section 954,” they are different
statements of the same offense or different crimes. Focusing
instead on section 245’s legislative history, she maintains that
the two aggravated assaults have been long understood to
constitute but “one offense” (quoting In re Mosley (1970) 1 Cal.3d
913, 919, fn. 5 (Mosley)). The Attorney General, for his part,
argues that assault with a deadly weapon and force likely
assault are separate offenses because they “are defined by
different elements, listed in different self-contained
subparagraphs, punished differently, and found together in a
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Opinion of the Court by Jenkins, J.
subdivision that includes other assault crimes with separate
elements and different punishments.” He maintains that these
considerations based on section 245’s plain language signal the
Legislature’s intent to create separate offenses; he, therefore,
suggests we need not resort to section 245’s legislative history.
At the outset, we conclude that the text of section 245 does
not definitively show whether the Legislature intended assault
with a deadly weapon (§ 245(a)(1)) and force likely assault (§
245(a)(4)) to be separate offenses or different statements of the
same offense. First, our reading of section 245’s express
language reveals it does not, for instance, list the two
aggravated assaults as part of “a series of acts, either of which
separately or together, may constitute the offense.” (People v.
Frank (1865) 28 Cal. 507, 513 [under former § 470, “ ‘the falsely
making,’ ‘altering,’ ‘forging,’ ‘counterfeiting,’ ‘uttering,’
‘publishing,’ ‘passing,’ ‘attempting to pass,’ any of the
instruments or things therein mentioned, with the intent
specified, is declared to be forgery”]; People v. Ryan (2006) 138
Cal.App.4th 360, 366–367 [same, following Frank].) Instead, as
the Attorney General observes, section 245 lists each
aggravated assault separately (see § 245, subds. (a)(1)–(4), (b),
(c)), and each provision is what we have described as “self-
contained” — that is, each “sets forth all the elements of a crime,
and each prescribes a specific punishment,” although the
aggravated assaults at issue here prescribe the same
punishment. (Gonzalez, supra, 60 Cal.4th at p. 539; see also
§ 245, subd. (a)(1), (4); see ante, at p. 8.)
It is not dispositive, however, that assault with a deadly
weapon and force likely assault are “self-contained” in separate
subparagraphs with separate punishments. (Gonzalez, supra,
60 Cal.4th at p. 539.) The Penal Code supplies numerous
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examples of separate, “self-contained” provisions that constitute
alternative means of committing a single offense. (See, e.g.,
Vidana, supra, 1 Cal.5th at p. 648 [though larceny (§ 484(a)) and
embezzlement (§ 503) are contained in separate provisions,
there is clear intent to create single crime of theft]; People v.
Duffy (2020) 51 Cal.App.5th 257, 265 [carrying concealed
firearm in a vehicle (§ 25400, subd. (a)(1)) or on the person
(§ 25400, subd. (a)(3)) is “a singular offense”]; see id. at pp. 264–
266; People v. Ryan, supra, 138 Cal.App.4th at p. 366 [“there was
but one crime of forgery [§ 470, subds. (a), (d)], and that the
various acts proscribed by the statute were simply different
means of committing that offense”].)
Next, the Attorney General emphasizes that the two
aggravated assaults appear to “differ in their necessary
elements.” (Gonzalez, supra, 60 Cal.4th at p. 539.) Assault with
a deadly weapon requires the use of a deadly weapon or
instrument, whereas force likely assault includes any
application of force likely to cause great bodily injury, regardless
whether any weapon or instrument is used.4 (People v. Aguilar
(1997) 16 Cal.4th 1023, 1031 (Aguilar).) However, because force
likely assault includes most assaults with a deadly weapon or
instrument, in addition to force likely assaults in the absence of
a weapon or instrument, there is significant overlap between the
two offenses. (See People v. McGee (1993) 15 Cal.App.4th 107,
4
Compare these alternate provisions of CALCRIM No. 875:
(1) “defendant did an act with a deadly weapon other than a
firearm that by its nature would directly and probably result in
the application of force to a person”; and (2) “defendant did an
act that by its nature would directly and probably result in the
application of force to a person” and the force was “likely to
produce great bodily injury”).
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115 [“force likely to produce great bodily injury was defendant’s
use of the deadly weapon, a knife”].)
In Aguilar, we described these two offenses as
“functionally identical” — except with respect to inherently
dangerous weapons — in that “[b]oth the ‘weapon or instrument’
clause of the statute and the ‘force likely’ clause look to the
probability or capability of producing great bodily injury.”
(Aguilar, supra, 16 Cal.4th at p. 1033; id. at p. 1032, quoting
People v. Davis (1996) 42 Cal.App.4th 806, 815 [“ ‘all aggravated
assaults are ultimately determined based on the force likely to
be applied against a person’ ”].) Thus, as we indicated in
Vidana, a comparison of the offenses’ elements does “not
definitively resolve” whether assault with a deadly weapon and
force likely assault “are a single offense.” (Vidana, supra, 1
Cal.5th at p. 648 [“we have long held that premeditated murder
and felony murder — although requiring different elements —
are not distinct crimes but simply alternative means of
committing the single offense of murder”].) As such, the fact
that the two types of aggravated assaults are self-contained and
have different elements reveals little of the Legislature’s intent
regarding this section 954 inquiry.
Next, we consider section 245’s legislative history to
ascertain the Legislature’s intent. As we explain more fully
below, when this legislative history is viewed in the context of
our past decisions — which have described force likely assault
“as an alternative” to assault with a deadly weapon (Aguilar,
supra, 16 Cal.4th at p. 1030), and have stated that both types of
assault constitute “one offense” (Mosley, supra, 1 Cal.3d at p.
919, fn. 5) — it becomes clear that the Legislature has tacitly
approved the statements this court has made regarding the
relationship between the two aggravated assaults. (See People
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v. Ledesma (1997) 16 Cal.4th 90, 100–101 (Ledesma)
[“ ‘Legislature is presumed to have been aware of, and
acquiesced in, the courts’ construction of [a] statute’ ” if it does
not alter that construction by subsequent legislation].)
2. Legislative history of section 245
To place our evaluation of section 245’s legislative history
in context, we begin with the language of the section when it
was initially enacted in 1872. Section 245 did not originally
include force likely assault. As relevant here, it instead
prohibited “an assault upon the person of another with a deadly
weapon, instrument, or other thing.” (Pen. Code, former § 245,
enacted 1872; see Aguilar, supra, 16 Cal.4th at p. 1030.) We had
occasion to interpret section 245 the year following its
enactment, and we reversed a defendant’s assault with a deadly
weapon conviction because the indictment failed to allege the
use of a deadly weapon pursuant to the statute: “ ‘[T]he fact that
a deadly weapon was resorted to by the prisoner is made by the
statute itself an indispensable characteristic of such an assault,
and one which distinguishes it from all others.’ ” (Aguilar, at
p. 1031, italics omitted, quoting People v. Murat (1873) 45 Cal.
281, 283.)
Two years later, ostensibly in response to Murat, the
Legislature added the “ ‘force likely’ clause as an alternative to
the ‘deadly weapon’ clause” in former section 245, subdivision
(a)(1). (Aguilar, supra, 16 Cal.4th at p. 1030, italics added.) The
1874 statute, as amended, provided: “Every person who
commits an assault upon the person of another with a deadly
weapon or instrument, or by any means or force likely to produce
great bodily injury, is punishable by imprisonment in the State
Prison, or in a County Jail, not exceeding two years, or by fine
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not exceeding five thousand dollars, or by both.” (Former § 245,
as amended by Code Amends. 1874, ch. 614, § 22, p. 428; see
Aguilar, supra, 16 Cal.4th at pp. 1030–1033 [detailing history of
§ 245].) Thereafter, we had the opportunity to address section
245 once more in Mosley. We there observed that this amended
version of section 245 “define[d] only one offense” and that force
likely assault was “not an offense separate from” assault with a
deadly weapon. (Mosley, supra, 1 Cal.3d at p. 919, fn. 5.) These
two descriptions of aggravated assaults remained together in
the same provision until 2011, when the Legislature amended
and reorganized former section 245, subdivision (a)(1). (Stats.
2011, ch. 183, § 1.)
In amending section 245 in 2011, the Legislature
identified the amendment’s primary purpose: to split assault
with a deadly weapon and force likely assault into separate
paragraphs in the wake of a 2000 voter-approved initiative,
Proposition 21, which imposed possible collateral consequences
resulting from a conviction of the former, but not of the latter.
(See People v. Brown (2012) 210 Cal.App.4th 1, 4, fn. 1.)
Proposition 21 expressly added assault with a deadly weapon to
the statutory “serious felony” list for purposes of applying the
Three Strikes law. (§1192.7, subd. (c)(31); see also People v.
Myers (2007) 148 Cal.App.4th 546, 554 [Prop. 21 “ ‘delete[d] for
serious felony purposes the personal use requirement for assault
with a deadly weapon’ ”].) However, Proposition 21, as enacted
by the voters, did not designate force likely assault as a “serious”
felony. (See People v. Haykel (2002) 96 Cal.App.4th 146, 148.)
Because former section 245(a)(1) at the time included both forms
of aggravated assaults, it was unclear from the face of a
judgment reflecting a section 245(a)(1) conviction whether the
conviction was subject to the adverse consequences of a “serious”
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felony conviction. (See People v. Delgado (2008) 43 Cal.4th 1059,
1072.)
As explained above, section 245’s legislative history
expressly states that the 2011 amendment made “technical,
nonsubstantive changes” to address Proposition 21’s effects on
section 245. (Legis. Counsel’s Dig., Assem. Bill No. 1026 (2011–
2012 Reg. Sess.).) However, according to the bill’s author, the
amendment did “not create any new felonies or expand the
punishment for any existing felonies. It merely split[] an
ambiguous code section into two distinct parts.” (Sen. Com. on
Pub. Safety, Rep. on Assem. Bill No. 1026 (2011–2012 Reg.
Sess.) as introduced Feb. 18, 2011, pp. 4–5; hereafter Report on
Assem. Bill 1026.) The Legislature further stated that the
purpose of separating the two forms of assault in the 2011
amendment was to “ ‘reorganize[]’ ” section 245 to provide for a
“ ‘more efficient assessment of a defendant’s prior criminal
history’ ” and “ ‘a more accurate and earlier disposition of
criminal cases.’ ” (Sen. Rules Com., Analysis of Assem. Bill No.
1026 (2011–2012 Reg. Sess.) as introduced Feb. 18, 2011, pp. 2–
3.) Having a judgment showing the “true nature” of a former
section 245(a)(1) conviction — by indicating whether it was
pursuant to subparagraph (a)(1) or (a)(4) — would allow a
prosecutor to settle appropriate cases prior to a preliminary
hearing and avoid “clogging the court system.” (Sen. Rules
Com., Analysis of Assem. Bill No. 1026, supra, p. 3 [“it will be
clear what type of an assault occurred”].)
Notably, our decisions in Mosley and Aguilar — indicating
that former section 245 “defines only one offense” (Mosley,
supra, 1 Cal.3d at p. 919, fn. 5), and reaffirming the view that
force likely assault is “ ‘not an offense separate from’ ” assault
with a deadly weapon (Aguilar, supra, 16 Cal.4th at p. 1036,
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quoting Mosley, at p. 919, fn. 5) — both preceded the 2011
amendment to section 245. The Legislature is presumed to be
aware of these earlier cases when it made what the legislative
history described as “technical, nonsubstantive changes” to
section 245 in 2011. (Legis. Counsel’s Dig., Assem. Bill No. 1026
(2011–2012 Reg. Sess.); see Ledesma, supra, 16 Cal.4th at pp.
100–101.) Accordingly, had the Legislature intended in 2011 to
create separate offenses by relocating force likely assault into its
own paragraph, it presumably would have made that intent
clear.
Supporting this conclusion is the fact that the Legislature,
in otherwise amending section 245 to expand its scope, has
expressly stated its intent to create new crimes. For example,
in 1982, the Legislature “create[d] a new crime of assault with a
firearm” under subdivision (a)(2) (Assem. Com. on Crim. Justice,
Analysis of Assem. Bill No. 846 (1981–1982 Reg. Sess.) as
introduced March 9, 1981, p. 3). And in 1989, in two separate
bills, the Legislature added to section 245 the “new crime[s]”5 of
assault with a machine gun or an assault weapon under
subdivision (a)(3) (Stats. 1989, ch. 18, § 1) and assault with a
semiautomatic rifle under subdivision (b) (Stats. 1989, ch. 1167,
§ 1). Thus, the Legislature has expressly declared when
statutory revisions to section 245 constitute new crimes.
Accordingly, we reject the Attorney General’s argument
that the 2011 amendment reflects the Legislature’s intent to
create two separate offenses for purposes of section 954.
5
See Legis. Counsel’s Dig., Sen. Bill No. 292 (1989–1990
Reg. Sess.) (“the bill would create a new crime”); Legis. Counsel’s
Dig., Assem. Bill No. 1504 (1989–1990 Reg. Sess.) (“the bill
would create a new crime”).
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Defendant, in our view, has the better argument. Section 245’s
legislative history — which reaches back to 1872 and reflects
amendments that have expanded the number of offenses
described in 245 through the years — makes clear when the
Legislature amends section 245 to create a “new crime,” it does
so expressly. Our reading of this legislative history, combined
with Mosley’s and Aguilar’s statement that force likely assault
is “ ‘not an offense separate from’ ” assault with a deadly weapon
(Aguilar, supra, 16 Cal.4th at p. 1037, quoting Mosley, supra, 1
Cal.3d at p. 919, fn. 5), and the Legislature’s subsequent failure
to indicate otherwise, convinces us that the Legislature
intended assault with a deadly weapon and force likely assault
to constitute “different statements of the same offense” for
purposes of section 954. (See Ledesma, supra, 16 Cal.4th at pp.
100–101.)
3. The Attorney General’s Additional Arguments
The Attorney General, for his part, does not dispute that
the primary purpose of the 2011 amendment was to make it
easier to identify from a judgment the conduct on which a
section 245 conviction is based. He also concedes that assault
with a deadly weapon and force likely assault at some point
described “a single offense of aggravated assault.” Nevertheless,
he contends the Legislature’s 2011 amendment to section 245,
which reorganized section 245 by placing force likely assault and
assault with a deadly weapon into “two distinct parts” (Report
on Assem. Bill 1026, supra, p. 5), signaled the Legislature’s
intent to treat these forms of aggravated assaults as separate
offenses. He asserts that “[c]oncluding that the two assault
crimes in section 245, subdivision (a)(1) and (a)(4) are different
statements of the same offense would be directly antithetical to
the very point in separating them out into distinct subdivisions.”
16
PEOPLE v. AGUAYO
Opinion of the Court by Jenkins, J.
We are unpersuaded for several reasons. First, we assign
little significance to the bill author’s statement that the 2011
amendment sought to split former section 245, subdivision (a)(1)
into “two distinct parts.” (Report on Assem. Bill 1026, supra,
p. 5, italics added.) The Attorney General argues this reveals a
“clear intent to make ‘distinct’ assault provisions, which is the
essence of an intent to create separate offenses under section
954.” But the statement’s use of the term “distinct” cannot bear
the weight the Attorney General places on it. The Legislature
clearly identified its express purpose for enacting the 2011
amendment. As noted above (see ante, at pp. 13–14), the reason
for separating and distinguishing between these two types of
assaults was merely to allow the court and parties to readily
identify whether a resulting conviction would constitute a
strike. Indeed, long before the 2011 amendment and consistent
with that amendment’s express purpose, we advised that even
though section 245, subdivision (a) “define[d] only one offense,”
a resulting judgment should “specify which of the two categories
of conduct prohibited by section 245 (i.e., assault (1) with a
deadly weapon or instrument, or (2) by means of force likely to
produce great bodily injury) was involved in the particular case.”
(Mosley, supra, 1 Cal.3d at p. 919, fn. 5.) “[S]uch a finding,” we
explained, “should be made for the benefit of probation and
correction officials who may . . . attach significance thereto.”
(Ibid.)
Furthermore, as we have noted, had the Legislature
sought to make them truly distinct offenses without any overlap
(see ante, at pp. 10–11), it could have added language signaling
this intent when it placed force likely assault in its own
subdivision in 2011. By way of comparison, when the
Legislature in 1982 established assault with a firearm as newly
17
PEOPLE v. AGUAYO
Opinion of the Court by Jenkins, J.
added section 245, subdivision (a)(2), it did not simply require
the use of a firearm in subdivision (a)(2) (“assault . . . with a
firearm”); it simultaneously excluded the use of a firearm in
subdivision (a)(1) (“assault . . . with a deadly weapon or
instrument other than a firearm”). (Assem. Office of Research,
Conc. in Sen. Amends. to Assem. Bill No. 846 (1981–1982 Reg.
Sess.), as amended Sept. 11, 1981, p. 1 [“this bill: [¶] 1)
[s]pecified . . . [assault with a deadly weapon or instrument] did
not include assault with a firearm; and [¶] 2) [c]reated a new
crime of assault with a firearm”].) This made clear that the
offenses were discrete and presumptively separate.
It stands to reason that if the Legislature had wanted to
make assault with a deadly weapon and force likely assault
unmistakably separate, it would have utilized this same
approach with the 2011 amendment. However, when it placed
force likely assault in a different paragraph from assault with a
deadly weapon, the Legislature did not add defining language to
force likely assault — such as “without the use of a weapon or
instrument” — to eliminate any perceived overlap of the two
types of aggravated assaults. Instead, the Legislature made
“technical, nonsubstantive changes” (Legis. Counsel’s Dig.,
Assem. Bill No. 1026 (2011–2012 Reg. Sess.)), and underscored
that the 2011 legislation did “not create any new felonies or
expand the punishment for any existing felonies.” (Sen. Rules
Com., Analysis of Assem. Bill No. 1026 (2011–2012 Reg. Sess.)
as introduced Feb. 18, 2011, p. 3; see ante, at pp. 13–14.)
Next, the Attorney General asserts that other portions of
section 245’s legislative history suggest the Legislature, in
amending section 245 over the years, had an “overarching”
purpose to create four separate subdivisions for aggravated
assault. Asking that we construe section 245(a) and its series of
18
PEOPLE v. AGUAYO
Opinion of the Court by Jenkins, J.
amendments as a whole, the Attorney General surmises that “it
would be remarkable if the Legislature intended some of the
subparagraphs in that provision to constitute separate offenses,
while allowing other seemingly equal subparagraphs to stand as
different statements of the same offense.”
We are not persuaded that there is a singular purpose
governing these amendments. For instance, the 1982
amendment adding assault with a firearm as a new crime had a
specific punitive purpose “aimed at assuring that some time is
served for offenses involving serious crimes.” (Ways and Means
Staff Analysis of Assem. Bill No. 846 (1981–1982 Reg. Sess.), as
amended May 6, 1981; see Stats. 1982, ch. 136, § 1; see People v.
Milward (2011) 52 Cal.4th 580, 585 [“the Legislature’s apparent
purpose was to require a minimum punishment of six months’
imprisonment in county jail for aggravated assaults committed
with a firearm”].) Likewise, the purpose of the 1989 amendment
adding the crime of assault with a machine gun or assault
weapon was to “eliminate from California society, except under
limited circumstances, weapons essentially military or
antipersonnel in nature which are considered to pose an
intolerable threat to the well-being of the citizens of this state.”
(Sen. Com. on Judiciary, Analysis on Sen. Bill No. 292 (1989–
1990 Reg. Sess.), as amended Feb. 27, 1989, pp. 4–5.) These
substantial policy considerations for the earlier amendments
that created new crimes stand in stark contrast to the
underlying purpose of the 2011 amendment: to make “technical,
nonsubstantive changes” (Legis. Counsel’s Dig., Assem. Bill No.
1026 (2011–2012 Reg. Sess.)) and “not [to] create any new
felonies or expand the punishment for any existing felonies”
(Assem. Com. on Pub. Safety, Analysis of Assem. Bill No. 1026
(2011–2012 Reg. Sess.) as introduced Feb. 18, 2011, p. 2). In
19
PEOPLE v. AGUAYO
Opinion of the Court by Jenkins, J.
short, we perceive no legislative intent mandating that the
internal structure of section 245 be wholly consistent in the
manner that the Attorney General suggests.
On a related point, the Attorney General contends “there
is nothing inconsistent” between the legislative declaration that
the 2011 amendment did “ ‘not create any new felonies’ ” and his
argument “that the Legislature intended the two felonies to be
distinct and separate.” This argument would perhaps carry
more weight if assault with a deadly weapon and force likely
assault were considered separate offenses prior to the 2011
amendment. But as we have emphasized above, both assaults
were combined in one paragraph beginning in 1874 when the
Legislature added the “ ‘force likely’ ” clause “ ‘as an
alternative’ ” to the “deadly weapon” clause. (Aguilar, supra, 16
Cal.4th at p. 1030.) We observed early on that far from setting
out separate offenses, former section 245, subdivision (a)(1)
“define[d] only one offense”; force likely assault “is not an offense
separate from — and certainly not an offense lesser than and
included within — the offense of assault with a deadly weapon.”
(Mosley, supra, 1 Cal.3d at p. 919, fn. 5.)
The Attorney General also relies on the fact that assault
with a deadly weapon is classified as a serious felony (§ 1192.7,
subd. (c)(31)), while force likely assault is not so classified (see
People v. Winters (2001) 93 Cal.App.4th 273, 277). This
distinction, he argues, establishes that these forms of
aggravated assault are separate offenses. We agree that the
basis for the 2011 amendment was to identify and give effect to
this distinction. (See ante, at pp. 13–14.) However, we part
ways with his suggestion that by classifying assault with a
deadly weapon as a serious felony, the Legislature meant to
define it as a separate offense.
20
PEOPLE v. AGUAYO
Opinion of the Court by Jenkins, J.
For instance, the mere inclusion of assault with a deadly
weapon as a serious felony under section 1192.7, subdivision
(c)(31), does not necessarily reflect its status as a standalone
offense, i.e., one that is separate from force likely assault. We
have long rejected the view that section 1192.7 “consist[s] only
of specific statutory offenses and enhancements.” (People v.
Guerrero (1988) 44 Cal.3d 343, 347.) Instead, we have
recognized that the “ ‘list of serious felonies as set out in section
1192.7 and incorporated into section 667, is an amalgam of
different elements,’ ” which include repealed felonies, a general
reference to felonies punishable by death or imprisonment,
enhancements that may attach to any felony, and “criminal
conduct which does not correspond precisely to the elements of
any then-existing criminal offense.” (Guerrero, at p. 347.) That
assault with a deadly weapon and not force likely assault is
included in section 1192.7, subdivision (c) largely reflects that
“a meaningful difference exist[s] between the two clauses” and
the conduct proscribed by each clause (Aguilar, supra, 16
Cal.4th at p. 1030); it does not, without more, signal the
Legislature’s intent to create separate offenses. (See Couzens,
Cal. Practice Guide: Sentencing California Crimes (The Rutter
Group 2022) ¶ 20.4 [because § 1192.7 “frequently focus[es] on
criminal conduct rather than a discrete code section, a number
of additional convictions may be characterized as strikes simply
because of the way the crimes were committed”].)
Nor do the strike consequences for a serious felony
classification make assault with a deadly weapon an offense
distinct from force likely assault for purposes of section 954.
While differing punishments may indicate that offenses are
independent from one another (see Gonzalez, supra, 60 Cal.4th
at p. 539), punishment for committing an offense is “annexed,
21
PEOPLE v. AGUAYO
Opinion of the Court by Jenkins, J.
upon conviction” (§ 15, italics added) and is a primary and direct
result of the offense. In contrast, “ ‘the possibility of increased
punishment in the event of a subsequent conviction,’ ” such as a
prior conviction for a serious felony, is properly cast as a
“ ‘collateral consequence’ ” (People v. Buycks (2018) 5 Cal.5th
857, 878), i.e., “one which does not ‘inexorably follow’ from a
conviction of the offense . . . ” (People v. Crosby (1992) 3
Cal.App.4th 1352, 1355). Put another way, the designation of
assault with a deadly weapon as a serious felony for purposes of
the Three Strikes law does not change the nature of its
underlying punishment, which is identical to that of force likely
assault. (See ante, at p. 8.)
Nor do we agree with the Attorney General that our
holding requires that the jury be informed that a conviction for
assault with a deadly weapon, but not for force likely assault, is
considered a “serious” felony. That a defendant should be
punished “under the provision that provides for the longest
potential term of imprisonment” (former § 654)6 is not a concern
implicated here because the base term punishments for assault
with a deadly weapon and force likely assault are the same.
Moreover, even if the designation of a “serious” felony later
increases a defendant’s total term of imprisonment,
“[i]nformation regarding the consequences of a verdict is . . .
irrelevant to the jury’s task . . . [and] providing jurors
sentencing information invites them to ponder matters that are
6
Effective January 1, 2022, newly amended section 654
provides that judges have discretion to sentence a defendant to
any of the convicted crimes rather than the one that provides for
the longest term of punishment. (Stats. 2021, ch. 441, § 1.)
22
PEOPLE v. AGUAYO
Opinion of the Court by Jenkins, J.
not within their province . . . .” (Shannon v. United States
(1994) 512 U.S. 573, 579.)
Lastly, we are unpersuaded by the Attorney General’s
policy arguments based on section 654. The Attorney General
first suggests that if we were to conclude that assault with a
deadly weapon and force likely assault were separate offenses,
there would be little danger of multiple punishments on counts
that arise from the same act or omission because section 654
would require a stay of punishment for one count where multiple
convictions occur. (See People v. Reed (2006) 38 Cal.4th 1224,
1226–1227; People v. Correa (2012) 54 Cal.4th 331, 336.) While
this may be true, it is beside the point. The issue before us is
whether section 954 permits multiple convictions where, as we
conclude here, the convictions are based on different statements
of the same offense. Our decision in Vidana forecloses the
possibility of multiple convictions where the two types of
aggravated assaults constitute “different statements of the
same offense.” (§ 954; see Vidana, supra, 1 Cal.5th at p. 648.)
We likewise find unavailing the Attorney General’s
related policy argument permitting “an alternative conviction
[that] may prevent the defendant from otherwise escaping
justice” if one of the convictions is overturned. (See People v.
Gonzalez (2008) 43 Cal.4th 1118, 1128–1129.) Because force
likely assault and assault with a deadly weapon are the same
offense for purposes of section 954, any “alternative” conviction
would in fact be duplicative and improper as a matter of law.
(See Vidana, supra, 1 Cal.5th at p. 650; People v. Coyle (2009)
178 Cal.App.4th 209, 217 [three convictions for a single murder
impermissible where “[t]he three counts simply alleged
alternative theories of the offense”].)
23
PEOPLE v. AGUAYO
Opinion of the Court by Jenkins, J.
Having carefully considered the Attorney General’s
arguments, we find ample support for our conclusion that
assault with a deadly weapon and force likely assault are
“different statements of the same offense” (§ 954). As such,
defendant may not be convicted of both based on the same act or
course of conduct. (Vidana, supra, 1 Cal.5th at p. 651.)7
B. Same or Separate Acts
We now turn to the Attorney General’s assertion that
section 954 is no impediment to defendant’s dual convictions for
a different reason: they are based on separate acts. In support
of this contention, the Attorney General relies largely on
Father’s trial testimony and opines that the jury could have
found defendant guilty of both counts based on multiple
different acts, “including the 50 times [defendant] hit her father
with the bicycle chain or (as to count 3) her additional act of
throwing the [ceramic pot] at his head.” Based on defendant’s
own admissions, the Attorney General also argues that the jury
had before it evidence that defendant “committed at least two
separate assaults with the bicycle chain.”
Defendant contends that the jury made no finding of fact
that there were separate acts supporting the section 245(a)(1)
and section 245(a)(4) convictions, respectively. Therefore, she
argues it was conceivable that the jury impermissibly relied on
7
We disapprove In re Jonathan R., supra, 3 Cal.App.5th
963, which reached a contrary conclusion (see ante, at p. 8), to
the extent it is inconsistent with this opinion.
Further, based on our holding that these two types of
aggravated assaults are alternative means of committing the
same offense, we need not determine whether force likely
assault is a lesser included offense of assault with a deadly
weapon.
24
PEOPLE v. AGUAYO
Opinion of the Court by Jenkins, J.
the same act to convict defendant of both counts. As important,
defendant asserts that an appellate court’s determination that
she struck Father twice with the bicycle chain and lock in two
separately punishable acts would constitute judicial factfinding
that “necessarily violates” the Sixth Amendment.
We agree with defendant that the jury did not make a
finding of fact identifying which act supported which specific
count. It did not make such finding because it was never asked
to do so by way of the prosecution’s argument, a unanimity
instruction, or the like. (See People v. Jennings (2010) 50
Cal.4th 616, 679 (Jennings).) The prosecution did not identify
the particular act supporting each aggravated assault, and it did
little to differentiate between the two counts. For example, the
charging allegation and verdict form did not specify the act of
force defendant used to commit the force likely assault. The
respective jury instructions (listing the element of whether
“[t]he defendant did an act [with a deadly weapon other than a
firearm] that by its nature would directly and probably result in
the application of force to the person”) also did not identify what
act defendant committed for each count. (See ante, at p. 10, fn.
4.) During closing argument, the prosecution referred to
defendant hitting Father with the bicycle chain to establish both
the assault with a deadly weapon and force likely assault
counts. At the same time, with regard to the force likely assault
count, the prosecution referred to defendant using both the
bicycle chain and the ceramic pot to assault Father.
Without conclusively determining the standard of
prejudice applicable in this context, we are persuaded that there
is a reasonable probability the jury would have convicted
defendant of one or the other assault offense, rather than both,
had the jury been instructed that the two offenses could not be
25
PEOPLE v. AGUAYO
Opinion of the Court by Jenkins, J.
based on the same act or course of conduct. (People v. Watson
(1956) 46 Cal.2d 818, 836.) The record demonstrates that the
prosecution and defense counsel viewed the offenses as
essentially identical and based on the same act or course of
conduct, which may in turn explain the absence of an unanimity
instruction. (See Jennings, supra, 50 Cal.4th at p. 679 [“no
unanimity instruction is required if the case falls within the
continuous-course-of-conduct exception, which arises ‘when the
acts are so closely connected in time as to form part of one
transaction’ ”].) Given this shared understanding, it is
reasonably probable that the jury understood the offenses in the
same way.8
Contrary to the Attorney General’s contention, the issue
is not whether the jury could have found that defendant struck
Father at least two times and up to 50 times — which would be
relevant to whether there was sufficient evidence to sustain
each conviction (see People v. Banks (2015) 61 Cal.4th 788,
804) — but whether there is a reasonable probability the jury
failed to do so.
8
We decline the Attorney General’s invitation to address
the application of Vidana’s “course of conduct” prong in this
context (Vidana, supra, 1 Cal.5th at p. 648, fn. omitted). Our
holding in this case does not depend on the view that individual
acts within a course of conduct may not form the basis of
separate convictions for the same offense. Instead, we confirm
that the same course of conduct may not form the basis of
separate convictions for the same offense. We express no
opinion regarding the validity of the former. For similar
reasons, we need not address whether the completed act rule
applies to an otherwise single course of conduct. (See People v.
Harrison (1989) 48 Cal.3d 321, 329 [“a new and separate
violation of section 289 is ‘completed’ each time a new and
separate ‘penetration, however slight’ occurs”].)
26
PEOPLE v. AGUAYO
Opinion of the Court by Jenkins, J.
Nor are we, as a reviewing court, at liberty to accept the
Attorney General’s invitation to determine whether “the record
as a whole provides an ample basis on which to conclude that
the jury found two separate acts beyond a reasonable doubt
based on [defendant’s] admissions.” It is axiomatic that
criminal defendants are constitutionally entitled to “ ‘a jury
determination that [they are] guilty of every element of the
crime with which [they are] charged, beyond a reasonable
doubt.” (Apprendi v. New Jersey (2000) 530 U.S. 466, 477.)
Here, there is a reasonable probability that the jury would have
convicted defendant of only one, and not both, aggravated
assault offenses. In this circumstance, we cannot affirm based
on our own view of what the evidence would support. (Sullivan
v. Louisiana (1993) 508 U.S. 275, 280 [“The Sixth Amendment
requires more than appellate speculation about a hypothetical
jury’s action”].) Further, defendant’s admission that she struck
Father at least two times with the bicycle chain does not
inexorably show that the jury relied on separate acts in reaching
its guilty verdicts.
Last, we reject the Attorney General’s assertion that a
reviewing court’s authority to make such a finding to support
the convictions is akin to a sentencing court’s determination
whether to impose concurrent or consecutive sentences under
section 654. (See People v. Carter (2019) 34 Cal.App.5th 831,
841 [“Whether a defendant had multiple intents or objectives is
a question of fact for the sentencing court”].) Unlike a jury
determination of each element of a charged offense, the
“imposition of consecutive terms . . . does not implicate a
defendant’s Sixth Amendment rights.” (People v. Black (2007)
41 Cal.4th 799, 821.) Section 654 is largely a sentencing issue,
which lies outside the historical province of a jury. (Oregon v.
27
PEOPLE v. AGUAYO
Opinion of the Court by Jenkins, J.
Ice (2009) 555 U.S. 160, 168; People v. Mosley (2015) 60 Cal.4th
1044, 1057–1058.)
CONCLUSION AND DISPOSITION
Based section 245’s statutory language and legislative
history — illuminated by statements we made in Aguilar and
Mosley that have endured amid a series of amendments to the
provision — we conclude that assault with a deadly weapon (§
245(a)(1)) and force likely assault (§ 245(a)(4)) are “different
statements of the same offense” (§ 954). We, therefore, conclude
that a defendant may not be convicted of both types of
aggravated assault based on the same act or course of conduct.
(See Vidana, supra, 1 Cal.5th at p. 650.) Here, there is a
reasonable probability that the jury viewed the two charged
assault offenses as based on the same act or course of conduct.
Thus, the Court of Appeal erred by determining for itself that
defendant’s “convictions are based on multiple acts — hitting
her father with the bicycle chain and lock, and hitting him with
the ceramic pot.”
We therefore reverse the Court of Appeal’s judgment and
remand the matter for proceedings consistent with this opinion.
(See Vidana, supra, 1 Cal.5th at p. 651, fn. 18 [“we express no
opinion on whether striking the larceny conviction or the
embezzlement conviction or consolidating the two convictions is
the proper remedy”]; see, e.g., People v. Craig (1941) 17 Cal.2d
453, 458–459, overruled on another point in White, supra, 2
Cal.5th at p. 359.)
28
PEOPLE v. AGUAYO
Opinion of the Court by Jenkins, J.
JENKINS, J.
We Concur:
CANTIL-SAKAUYE, C. J.
CORRIGAN, J.
LIU, J.
KRUGER, J.
GROBAN, J.
GUERRERO, J.
29
See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.
Name of Opinion People v. Aguayo
__________________________________________________________
Procedural Posture (see XX below)
Original Appeal
Original Proceeding
Review Granted (published) XX 31 Cal.App.5th 758Review Granted (unpublished)
Rehearing Granted
__________________________________________________________
Opinion No. S254554
Date Filed: August 25, 2022
__________________________________________________________
Court: Superior
County: San Diego
Judge: Dwayne K. Moring
__________________________________________________________
Counsel:
Linnéa M. Johnson and Howard C. Cohen, under appointments by the
Supreme Court, for Defendant and Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Gerald A. Engler
and Lance E. Winters, Chief Assistant Attorneys General, Julie L.
Garland, Assistant Attorney General, Meredith S. White, Warren
Williams, Junichi P. Semitsu and Steve Oetting, Deputy Attorneys
General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for
publication with opinion):
Howard C. Cohen
Appellate Defenders, Inc.
555 West Beech Street, Suite 300
San Diego, CA 92101
(619) 696-0282
Steve Oetting
Deputy Attorney General
600 West Broadway, Suite 1800
San Diego, CA 92101
(619) 738-9207