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Assault w/GBI Reversed: Due Process Violation

People v. Pack Docket: A161564 (First Appellate District), Opinion Date: February 7, 2023. Markham heard the engine of his Mazda idling and saw Pack drive it away. Markham and Walker got into another car and followed. When Pack stopped, a chase and confrontation ensued. Pack was charged with four counts, including assault with a deadly weapon for an assault upon Markham with a “stabbing weapon.” Pack had on his person “silver-edged metal knuckles.” Walker observed Pack holding what Walker thought was a knife. Pack was convicted of several offenses, including one with which he was not charged: assault with force likely to cause great bodily injury. Over Pack’s objection, the court instructed the jury that assault with force likely to cause great bodily injury is a lesser included offense of the charged offense of assault with a deadly weapon. On appeal, the Attorney General conceded that this instruction was erroneous but argued that, rather than reverse Pack’s conviction the court should modify the judgment to reflect a conviction for simple assault. In 2022, the California Supreme Court held that, for the purpose of the prohibition on multiple convictions for one offense, assault with force likely to produce great bodily injury and assault with a deadly weapon are alternative means of committing the same offense. The court of appeal subsequently concluded that Pack’s right to due process was violated and reversed the conviction of assault with force likely to cause great bodily injury.


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