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Name: People v. Fuentes
Case #: G030438
Court: CA Court of Appeal
District 4 DCA
Division: 3
Opinion Date: 02/26/2004
Subsequent History: Rev. den. and DEPUBLISHED 5/19/04

Appellant was convicted of three counts of robbery by force and fear. On appeal, he argued that the trial court erred by refusing his request to instruct the jury on the lesser included offense of battery on one of the counts, where there was substantial evidence that Fuentes battered the victim, but took nothing from him. The appellate court here agreed, but found the error harmless. The trial court should have instructed on the lesser offense of battery because the victim said that no property was taken from him, and officers found money in his wallet. Though a robbery can be committed by force OR fear, here it was alleged that force was used in the robbery. Force is also an element of battery. Therefore, under the accusatory pleading test, battery is a lesser included offense of robbery if the force required for the robbery was sufficient to prove battery. However, in his preliminary hearing testimony, which was read at trial, the victim said that Fuentes took money from him. Considering the evidence as a whole, there was no reasonable probability the jury would have convicted Fuentes of battery rather than robbery, if instructed on both offenses.