In what circumstances will a defendant be convicted of assault with a deadly weapon for placing a plastic bag over the victim's head?

Second, although we agree that convictions included within greater convictions cannot stand (People v. Pearson (1986) 42 Cal.3d 351, 355 [228 Cal.Rptr. 509, 721 P.2d 595]), that principle does not apply here. Count one charged assault with a deadly weapon based on defendant's act of placing a plastic bag over the victim's head. The jury convicted defendant of the included charge of simple assault for count one. Count three charged assault by means likely to cause great bodily injury, and in support the prosecutor elected defendant's act of attempting to ignite the oven gas. Thus, the counts were not based on the same acts and count one is not included within count three.