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Name: People v. Martinez
Case #: C043341
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 01/14/2005
Subsequent History: Revw den. 4/20/05

Where a defendant is charged with torture and also with specific offenses that include elements in common with the underlying acts alleged as part of the torture charge, multiple convictions are not barred unless the underlying acts are lesser included offenses of torture. None of the offenses charged in this case met the elements-of-the-offense test for determining whether an offense is a lesser included. Corporal injury to a cohabitant, forcible rape and oral copulation, criminal threats, dissuading a witness, and false imprisonment by violence all include elements that are not part of the offense of torture. And while assault by means likely to cause great bodily injury under section 245, subdivision (a)(1), may arguably be a lesser included offense of torture, in this case it was clear that defendant was convicted of assault with a deadly weapon under that section, which is not a lesser included. Finally, Penal Code section 206 is not superseded by the federal government’s ratification of an anti-torture treaty, because it does not appear that Congress intended to supersede state law by entering into a treaty that provided a more limited definition of torture.