Simple battery (Pen. Code, § 242) is not a lesser included offense of committing a lewd act on a dependent adult (Pen. Code, § 288, subd. (c)(2)). A jury convicted Chenelle of committing a lewd act on a dependent adult, T.P. Chenelle appealed, arguing that the trial court erred by failing to instruct on simple battery as a lesser included offense (LIO). Held: Affirmed. “[E]ven absent a request and over the parties’ objections, a trial court must instruct on a lesser offense necessarily included in a charged offense if there is substantial evidence the defendant is guilty of only the lesser.” (People v. Breverman (1998) 19 Cal.4th 142, 162.) To determine whether an offense is an LIO of another, courts employ the elements test and the accusatory pleading test. Simple battery is not an LIO of lewd acts on a dependent adult under the elements test. In People v. Shockley (2013) 58 Cal.4th 400, the court analyzed a similar question (whether, under the elements test, simple battery was an LIO of lewd acts on a child) and reached the same conclusion. But even if battery were an LIO of lewd acts on a dependent adult, there was not substantial evidence of simple battery in this case. Chenelle was either stroking T.P.’s penis, as the prosecution alleged, or adjusting T.P.’s pants, as he claimed. If the jury believed Chenelle, no battery instruction was required because adjusting a dependent adult’s pants is not a harmful or offense touching.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/A147073.PDF