What if the jury had been instructed on the lesser charge of assault under section 245, subdivision (c) of the California Criminal Code?

We conclude that it is reasonably probable that Rodriguez would have obtained a more favorable outcome if the jury had been instructed on the lesser offense of simple assault. Without the instructions, the jury faced an " 'unwarranted all-or-nothing choice' " of conviction or acquittal on facts showing that Rodriguez was guilty of some offense. (People v. Hughes (2002) 27 Cal.4th 287, 365.) The evidence concerning the amount of force that Rodriguez used could support a guilty verdict as to either offense. However, the evidence that Rodriguez used force likely to cause great bodily harm was not so strong, and the evidence that he did not use such force so weak, that it is not reasonably probable that the failure to instruct on simple assault had no effect on the outcome. The conviction under section 245, subdivision (c) is, therefore, reversed.

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