Battery on public transportation (Pen. Code, § 243.35) is not a lesser included offense of battery against a transportation worker (Pen. Code, § 243.3). James committed a battery against a transit security guard while aboard a regional transit light rail train. A jury convicted him of multiple offenses, including battery against a transportation worker. On appeal, he argued that the trial court erred by failing to sua sponte instruct the jury on battery on public transportation as a lesser included offense of battery against a transportation worker. Held: Trial court did not err. Battery on public transportation is not a lesser included offense of battery against a transportation worker under the elements test. Section 243.3 provides enhanced penalties for batteries committed against specified persons on public transportation, or “against a schoolbus driver, or against the person of a station agent or ticket agent.” Except when section 243.3 applies, section 243.35 applies to batteries “committed against any person on the property of, or in a motor vehicle of, a public transportation provider.” It is possible to commit a battery against a transportation worker without committing a battery on public transportation because a battery on a school bus driver outside the bus and off the property of the public transportation provider would violate section 243.3 but it would not violate section 243.35. Additionally, section 243.35 is not a lesser included offense under the pleading test. The information alleged that James used unlawful force on a regional transit train guard, but it did not allege where the battery occurred; “thus, it does not include all the elements set forth in section 243.35, which applies only to batteries committed ‘on the property of, or in a motor vehicle of, a public transportation provider . . . . ‘”
There was insufficient evidence to uphold defendant’s conviction for battery against a transportation worker because the statute does not apply to a private security guard hired by regional transit authorities to maintain order aboard trains. Section 243.3 states that it pertains to batteries committed against: (1) operators, drivers, or passengers on a bus or other motor vehicle, (2) schoolbus drivers, and (3) station or ticketing agents. The evidence was insufficient to establish that the private security guard fell into any of these categories. There was no evidence that the guard operated or drove the trains. Although he rode on the trains, he was not a “passenger” because riding the trains was his job. Furthermore, he was not a station or ticketing agent because he worked aboard the train, not at the station, and had nothing to do with selling or checking tickets. The court disagreed with the People’s argument that section 243.3 extends to any person who is an agent of an entity that provides transportation and concluded that there was no evidence to support the jury’s finding that the security guard was a station agent at the time of the battery, or any of the other victims specified in the statute. The court reduced the conviction to the lesser included offense of battery (Pen. Code, § 242).