Aguayo

*760 Veronica Aguayo hit her elderly father about 50 times with a bicycle lock and chain, then threw a ceramic pot on his head. A jury found her guilty of assault with a deadly weapon other than a firearm ( Pen. Code, § 245, subd. (a)(1) ) and assault by means of force likely to produce great bodily injury (force-likely assault) ( Pen. Code, § 245, subdivision (a)(4) ). 1 The trial court placed her on probation. Aguayo appealed.

This is our second opinion in this appeal. In our original opinion, we rejected the sole issue Aguayo initially asserted: that we must vacate her conviction for force-likely assault because it is a lesser included offense of assault with a deadly weapon. Aguayo then filed a petition for rehearing in which she challenged the reasoning of our original opinion and asserted a new argument based on legislation enacted while this appeal was pending. Specifically, she argued that newly enacted sections 1001.35 and 1001.36, which grant trial courts the discretion to place defendants with mental disorders into pretrial diversion, apply retroactively to her case. We *845 granted Aguayo's petition on the newly asserted issue and received supplemental briefing from…