Milward

While serving a life sentence, defendant attacked another inmate with a deadly weapon. He was convicted of two crimes: (1) assault with a deadly weapon or by means likely to inflict great bodily injury by a prisoner serving a life sentence (Pen. Code, § 4500; hereafter aggravated assault by a life prisoner), and (2) assault with a deadly weapon other than a firearm or by means likely to inflict great bodily injury (§ 245, subd. (a)(1); hereafter aggravated assault).

Defendant argues that the conviction for aggravated assault must be reversed because that offense is lesser than, and necessarily included within, the offense of aggravated assault by a life prisoner. We agree. Because the Court of Appeal reached a contrary conclusion, we reverse that court’s judgment.

I

On June 16, 2001, Donald Jones, a correctional officer at Folsom State Prison, saw two life prisoners—Ernesto Torres and defendant George Milward—attack inmate Ricardo Gonzales. When the attackers ignored Jones’s order to lie down, he fired nonlethal rubber bullets at them, but they continued their attack on Gonzales. After Jones’s fourth shot appeared to have hit defendant’s leg, defendant backed away from…