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Name: People v. Ausbie
Case #: F044294
Court: CA Court of Appeal
District 5 DCA
Opinion Date: 10/29/2004
Subsequent History: Rehrg. den. 11/24/04; revw. den. 1/12/05

Assault by means of force likely to produce great bodily injury is not a necessarily included offense of mayhem. The defendant was convicted of mayhem, assault by means likely to produce great bodily injury, and battery with serious bodily injury based on assaults on two women. On appeal she urged the court to reverse the assault and battery convictions because those offenses were necessarily included in the crime of mayhem. The People conceded that the battery conviction was a necessarily included offense of mayhem, and the court reversed on that count. However, the court affirmed the convictions for assault by force likely to result in great bodily injury. The mayhem statute is focused on the type of injury inflicted upon the victim and not the force used by the defendant. The court further found that an enhancement under Penal Code section 12022.7 was properly imposed as to each victim despite the fact that only one offense was charged.