P. v. Lewandowski
Defendant appeals from his conviction and sentence for assault with a deadly weapon. Lewandowski, who was angry because his car had been towed from the parking lot at Scripps Clinic, entered the facility and charged toward the receptionist's desk. During the course of this outburst, Lewandowski threw or "swept" a ceramic flowerpot in the direction of the receptionist who was sitting behind the counter on which the ceramic pot was located. A jury convicted Lewandowski of assault with a deadly weapon, the deadly weapon being the flowerpot.
Defendant contends that the trial court erred in failing to instruct the jury sua sponte on the lesser included offense of simple assault. He further maintains that there was insufficient evidence to support his conviction on the charge of assault with a deadly weapon. In the alternative, Lewandowski contends that the trial court abused its discretion in denying his motion to modify the verdict to a conviction on a lesser included offense, pursuant to Penal Code section 1181, circumstance .Court conclude that under the circumstances of this case, the trial court should have instructed the jury on the lesser included offense of simple assault, a misdemeanor. Court further conclude that the court's error prejudiced Lewandowski. The judgment must therefore be reversed and the matter remanded for retrial.
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