California, United States of America
The following excerpt is from People v. Hearne, C039855 (Cal. App. 10/29/2003), C039855 (Cal. App. 2003):
The prosecutor had told the jury hands or feet could be deadly weapons if used in a manner to cause great bodily injury. (People v. Aguilar, supra , 16 Cal.4th at p. 1036.) The jury, therefore, had to find defendant's feet were used in a manner to cause great bodily injury to find they were deadly weapons; that is the same finding as that necessary for force likely to cause great bodily injury. Since the same reasoning was required, there was no legally erroneous theory offered to the jury. The jury had to find defendant's conduct had the capability and the probability of inflicting great bodily injury under either the "deadly weapon" or the "force likely" theory. (Id. at p. 1037.)
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