P. v. Allen
A jury found defendant David Joseph Allen guilty of assault with a deadly weapon and attempting to make a criminal threat. (Pen. Code, §§ 245, subd. (a)(1), 664, 422.)[1] The conviction was based on the prosecution’s evidence that defendant had assaulted the victim by grabbing, hitting, punching, and choking her; and that he had threatened to kill her. Defendant contends reversal is required because the prosecution relied on, and the jury was instructed with, a legally incorrect theory of aggravated assault, i.e., feet and hands as deadly weapons. We agree and shall reverse his conviction for aggravated assault.
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