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. 
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Opinion of the Court by Jenkins, J.

2

§ 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.

3

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. 
PEOPLE v. AGUAYO

Opinion of the Court by Jenkins, J.

4

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.
PEOPLE v. AGUAYO

Opinion of the Court by Jenkins, J.

5

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 
PEOPLE v. AGUAYO

Opinion of the Court by Jenkins, J.

6

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”].)
PEOPLE v. AGUAYO

Opinion of the Court by Jenkins, J.

7

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 
PEOPLE v. AGUAYO

Opinion of the Court by Jenkins, J.

8

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 
PEOPLE v. AGUAYO

Opinion of the Court by Jenkins, J.

9

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 “selfcontained” — 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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Opinion of the Court by Jenkins, J.

10

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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Opinion of the Court by Jenkins, J.

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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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Opinion of the Court by Jenkins, J.

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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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Opinion of the Court by Jenkins, J.

13

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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Opinion of the Court by Jenkins, J.

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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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Opinion of the Court by Jenkins, J.

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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.” 
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Opinion of the Court by Jenkins, J.

17

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 
PEOPLE v. AGUAYO

Opinion of the Court by Jenkins, J.

18

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 
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Opinion of the Court by Jenkins, J.

19

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 
PEOPLE v. AGUAYO

Opinion of the Court by Jenkins, J.

20

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. 
PEOPLE v. AGUAYO

Opinion of the Court by Jenkins, J.

21

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,
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Opinion of the Court by Jenkins, J.

22

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)6is 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.)
PEOPLE v. AGUAYO

Opinion of the Court by Jenkins, J.

23

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”].)
PEOPLE v. AGUAYO

Opinion of the Court by Jenkins, J.

24

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. 
PEOPLE v. AGUAYO

Opinion of the Court by Jenkins, J.

25

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 
PEOPLE v. AGUAYO

Opinion of the Court by Jenkins, J.

26

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”].) 
PEOPLE v. AGUAYO

Opinion of the Court by Jenkins, J.

27

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. 
PEOPLE v. AGUAYO

Opinion of the Court by Jenkins, J.

28

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.)
PEOPLE v. AGUAYO

Opinion of the Court by Jenkins, J.

29

JENKINS, J.

We Concur:

CANTIL-SAKAUYE, C. J.

CORRIGAN, J.

LIU, J.

KRUGER, J.

GROBAN, J.

GUERRERO, J.
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 758

Review 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