Milward

A jury convicted defendant George Milward of assault with a deadly weapon and assault by a life prisoner with a deadly weapon. (Pen. Code, §§ 245, subd. (a)(1), 4500.) [1] The jury also found defendant had two strike convictions (for murder and attempted murder, arising out of the same case), one of which was also charged as a serious felony. (§§ 667, subds. (a), (b)-(i), 1170.12.)

The trial court sentenced defendant to state prison for life without parole for 27 years for assault by a life prisoner (nine years tripled per § 667, subd. (e)(2)(A)(i)), consecutive to a five-year term for a prior serious felony, consecutive to defendant's current sentence (Super. Ct. Riverside County, 1993, No. ICR17175), [2] and imposed but stayed (§ 654) a 25-year-to-life sentence for assault with a deadly weapon.

Defendant timely appealed. Defendant contends that the elements of an assault with a deadly weapon (§ 245, subd. (a)(1)) are included within an assault by a life prisoner with a deadly weapon (§ 4500), and therefore the lesser charge must be reversed. The Attorney General concedes this point, asserting it is controlled by a California Supreme Court case, People v. Noah (1971)…