[Published Opinion] Defendant was convicted of assault with force likely to cause great bodily injury (Pen. Code, § 245 (a)(4)) after the trial court, over defense objection, instructed the jury that this was a lesser included offense of the charged offense of assault with a deadly weapon (Pen. Code, § 245 (a)(1)). The Court of Appeal reversed the conviction, finding that, under both the elements test and the accusatory pleading test, assault with force likely was not a lesser included offense. The court further found that, assuming the “material variance” test also applies, “the variance between the accusatory pleading and [the] conviction was material and prejudicial.”
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