In People v. Aguilar (1997) 16 Cal.4th 1023, the defendant was convicted of violating section 245, subdivision (a)(1). At trial, the prosecutor had argued that the jury could find that the defendant had committed an assault with a deadly weapon because he had used his hands and feet to commit the assault. The Supreme Court concluded that hands and feet were not deadly weapons; thus, the prosecutor had invited the jury to convict based on an incorrect theory. The conviction could stand, however, because the jury must have found that the defendant had committed an assault by means of force likely to produce great bodily injury. The court explained: "Ultimately (except in those cases involving an inherently dangerous weapon), the jury's decisionmaking process in an aggravated assault case under section 245, subdivision (a)(1), is functionally identical regardless of whether, in the particular case, the defendant employed a weapon alleged to be deadly as used or employed force likely to produce great bodily injury; in either instance, the decision turns on the nature of the force used." ( Id. at p. 1035.) The court further observed that "despite the identity of the jury's reasoning processes under either the 'deadly weapon' clause or the 'force likely' clause in this case, our holding does not reduce the former clause to surplusage. There remain assaults involving weapons that are deadly per se, such as dirks and blackjacks, in which the prosecutor may argue for, and the jury convict of, aggravated assault based on the mere character of the weapon. " ( Id. at p. 1037, fn. 10.)