McGee

During an argument, defendant stabbed the victim with a knife. A jury convicted defendant of assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)) and found true the allegation he used a deadly weapon in the commission of the offense (Pen. Code, § 12022, subd. (b); further section references are to the Penal Code unless otherwise specified). The jury was unable to reach a verdict on a charge defendant forcibly resisted an executive officer in the performance of the officer’s duty (§ 69), and that charge was later dismissed. Defendant was sentenced to the upper term of four years for the section 245 conviction plus one year for the weapon use enhancement. The court then found this was an unusual case, suspended execution of sentence, and granted defendant probation. He appeals.

As we shall explain in the published portion of this opinion, we agree with defendant that the weapon use enhancement must be stricken because section 12022, subdivision (b) precludes the enhancement where, as in this case, use of a deadly weapon is an element of the offense of which the accused is convicted. We recognize that, in the abstract, use of a…