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Defendant Larry Robert Page or his accomplice took money from the victim’s pockets; either before or afterwards, the accomplice held a sharp pencil up to the victim’s neck and warned him not to come back with the police. As a result, defendant was found guilty of second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c)) and assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)). He was given a suspended sentence of three years in prison, then placed on probation for five years, on conditions including a year in jail.

Defendant contends, among other things, there was insufficient evidence that the pencil was a deadly weapon or, alternatively, because there was substantial evidence that the pencil was not a deadly weapon, the trial court erred by failing to instruct on simple assault as a lesser included offense. In the published portion of this opinion, we will hold that the pencil was a deadly weapon as a matter of law, even though the accomplice did not actually wield it with deadly force and even though she used it solely in connection with a threat to harm the victim in the future.

In the unpublished portion of this opinion, we accept the People’s concession…