Feb. 28, 2023 – People v. Fugit (1st Dist., Div. 5, A163497)

Where defendant was charged with assault with a deadly weapon (PC 245(a)(1)) and the trial court instructed the jury on assault by force likely to cause great bodily injury (PC 245(a)(4)) as a lesser-included offense over defense objection, the Court of Appeal finds that defendant had notice that the prosecution was proceeding under the theory that the weapon (a coffee mug) was not inherently deadly and was used in a manner likely to cause great bodily injury. The court thus holds that, under the accusatory pleading test, force-likely assault was a lesser-included offense.