Assault With a Deadly Weapon as a Lesser Included Offense of Torture
In People v. Martinez (2005) 125 Cal.App.4th 1035, the court held that assault with a deadly weapon is not a lesser included offense of torture. (Id. at pp. 1038-1039, 1041-1045.)
In noting that section 245, subdivision (a)(1) identifies two different ways of committing aggravated assault, the court stated in dicta:
"While an assault by means of force likely to produce great bodily injury is arguably an included offense within the crime of torture, assault with a deadly weapon is not." (Id. at p. 1043.)
As the Court have explained, aggravated assault, defined as assault by means of force likely to produce great bodily injury, does not constitute a lesser included offense of torture under the statutory elements and pleading test that governs our analysis.