Aguilar

I write separately to clarify my understanding of the majority opinion.

Defendant was charged with and convicted of a violation of Penal Code section 245, subdivision (a)(1) (hereafter section 245(a)(1)), which punishes an assault committed either (1) with a “deadly weapon or instrument” other than a firearm or (2) by means of any “force likely to produce great bodily injury.”

In turn, a “deadly weapon or instrument” is either (1) a weapon that is deadly per se (e.g., a dagger) or (2) any “object, instrument, or weapon” that is used in a way likely to produce death or great bodily injury (e.g., a hammer). (People v. Graham (1969) 71 Cal.2d 303, 327-328 [ 78 Cal.Rptr. 217 , 455 P.2d 153 ]; CALJIC No. 9.02.)

Reading this definition back into the statute, we find that section 245(a)(1) thus actually punishes an assault committed in any one of three ways: i.e., (1) with a weapon deadly per se, or (2) with an object used in a way likely to produce great bodily injury, or (3) by means of a force also likely to produce great bodily injury.

We deal here with an assault committed with hands or feet. The cases hold that an assault committed with hands or feet can constitute the third of…

Penal Code section 245, subdivision (a)(1) 1 punishes “an assault upon the person of another with a deadly weapon or instrument other than a firearm or by any means of force likely to produce great bodily injury.” (Italics added.) We granted review to determine whether hands or feet can constitute “deadly weapons” within the meaning of the statute. That hands and feet may be capable of inflicting deadly force, as by means of karate kicks or prizefighter blows, is not in question. We conclude, however, *1027 that the term “weapon,” as used in the statute, implies an object extrinsic to the body. Contrary to the Court of Appeal, we further conclude the jury was not asked to find defendant Raymond Aguilar guilty under an erroneous legal theory; hence, reversal of defendant’s conviction (under the rule of People v. Guiton (1993) 4 Cal.4th 1116 [ 17 Cal.Rptr.2d 365 , 847 P.2d 45 ]) was improper. Accordingly, the judgment is reversed and the cause remanded to the Court of Appeal for consideration of defendant’s other appellate claims.

Facts

During the evening of July 19, 1993, defendant, his codefendant Richard Perez and two companions, Bobby Nieblas and Edward Prado, had…