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P. v. Marion CA2/6
Otto Clifford Marion appeals the judgment entered after a jury convicted him of assault with a deadly weapon, i.e., a box cutter (Pen. Code, § 245, subd. (a)(1)) and battery (§ 242). The trial court sentenced him to 4 years in state prison, plus 180 days in county jail. Appellant contends (1) the court violated its sua sponte duty to instruct the jury on simple assault (§ 240) as a lesser included offense of assault with a deadly weapon; and (2) the court abused its discretion in denying probation. We affirm.

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