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Name: People v. Flores
Case #: F055859
Court: CA Court of Appeal
District 5 DCA
Opinion Date: 08/17/2009

Battery by a prisoner on a non-prisoner (Pen. Code, § 4501.5) is a necessarily included offense of battery by gassing (Pen. Code, § 4501.1). As a correctional officer was leaving appellant’s cell, the officer heard appellant spit and felt spittle hit the back of his uniform. A jury convicted appellant of battery by gassing and battery by a prisoner on a non-prisoner based on this single act of spitting. The Court of Appeal accepted respondent’s concession that battery by a prisoner on a non-prisoner is a lesser included offense of battery by gassing. Applying the elements test, it is obvious that an inmate who gasses a correctional officer will always violate both statutes. The act of placing or throwing bodily fluids or excrement, thereby causing that substance to make contact with the skin of the officer, is also a harmful or offensive touching. And both sections require the defendant to act in a willful manner. On the other hand one could commit a battery on a correctional officer without gassing him or her, for example by throwing a punch. The court vacated the section 4501.5 conviction and remanded for resentencing.