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Remand for PC 654 Exercise

People v. Fugit Docket: A163497 (First Appellate District), Opinion Date: February 28, 2023. Parry, driving on Lakeshore Boulevard, saw Fugit hurl a coffee mug at his vehicle. It shattered the vehicle’s window and sent glass fragments flying into the passenger compartment. Other motorists saw the incident and stopped. Parry found a ceramic mug across the road, broken into pieces. Lake County Sheriff’s Deputies responded in uniform and in a marked vehicle and informed Fugit he was under arrest. When an officer reached for Fugit’s hand to secure him in handcuffs, Fugit turned away, locked his hands together, and refused to comply with commands. The officer had concerns for his safety and warned Fugit that he would be tased if he continued to resist. Fugit was undeterred. The officer deployed his taser, incapacitating Fugit and allowing others to complete the arrest. A jury found him guilty of multiple offenses.

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The court of appeal remanded for the trial court to exercise its discretion under Penal Code section 654 in selecting the principal term for sentencing purposes. Section 654 made the midterm the presumptive sentence in the absence of specified circumstances. Fugit has not established a due process violation that would compel reversal. Because the accusatory pleading alleged that Fugit used a non-inherently deadly “ceramic mug” to perpetrate his aggravated assault, he had notice the prosecution would try to prove that the mug was used with force in a manner likely to cause great bodily injury, which would support a conviction for force-likely assault.

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