McDaniel

Statement of the Case

A jury found defendant Greg McDaniel guilty of assault by a prisoner and aggravated assault, and the court later found that he had a prior strike conviction. (Pen. Code, §§ 245, subd. (a)(1), 4501, 1170.12, subd. (c)(1).)

On appeal from the judgment, defendant claims the trial court erred in failing to instruct the jury on the lesser included offense of simple assault. He also claims he was not properly convicted of both aggravated assault and assault by a prisoner. Last, he claims he was denied due process because he was shackled during trial without a finding of cause.

We agree that defendant was denied due process and reverse the judgment.

The Offenses

Around 10:12 a.m. on August 4, 2003, Correctional Officer Aaron Anderson was in a guard tower at Soledad prison when he observed a fight in progress in Bravo yard down below. He testified that he saw defendant and another inmate, Augustine Holguin, punching and kicking a third inmate, Michael Odom. Officer Anderson immediately reported the fight over the radio. Sergeant Hancock and Officer Barba were first to respond. As they approached, they saw defendant punching Odom with closed fists. They…