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PEOPLE v. McDANIEL

No. H029860.

71 Cal.Rptr.3d 845 (2008)

159 Cal.App.4th 736

The PEOPLE, Plaintiff and Respondent, v. Greg McDANIEL, Defendant and Appellant.

Court of Appeal of California, Sixth District.

January 31, 2008.

Attorney(s) appearing for the Case

Edward Mahler under appointment by the Court of Appeal for Appellant, for Defendant and Appellant Greg McDaniel.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Senior Assistant Attorney General, Dorian Jung, Supervising Deputy Attorney General, Sharon R. Wooden, Deputy Attorney General, for Plaintiff and Respondent The People.

RUSHING, P.J.

STATEMENT OF THE CASE

A jury found defendant Greg McDaniel guilty of assault by a prisoner and aggravated assault, and the court later found that he had a prior strike conviction. (Pen.Code, §§ 245, subd. (a)(1), 4501, 1170.12, subd. (c)(1).)1

On appeal from the judgment, defendant claims the trial court erred in failing to instruct the jury on the lesser included

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