Otis

Defendant was charged in a two-count information with violating Penal Code section 245 (felonious assault) count I, and Penal Code section 217 (assault with intent to commit murder) count II. The crimes were allegedly committed on a single occasion against a single victim.

A jury found defendant guilty of both offenses and found that defendant used a deadly weapon in the commission of both offenses. The trial court imposed a one-year enhancement of the sentence for each offense. Defendant has appealed citing a number of errors in jury instructions, evidentiary rulings and in the sentencing. We reverse both counts.

Count I, the violation of Penal Code section 245, is a lesser and necessarily included offense in that charged in count II. (People v. Avila (1960) 178 Cal.App.2d 700 [ 3 Cal.Rptr. 297 ]; People v. Marshall (1957) 48 Cal.2d 394 [ 309 P.2d 456 ].) When a jury finds a defendant guilty of both a greater and lesser necessarily included offense on the basis of a single act and the evidence is sufficient to support a conviction of the greater offense, the procedure is normally to vacate or reverse the conviction of the lesser offense. (People v. Moran (1970) 1…