Battery with serious bodily injury is not a lesser included offense of mayhem. A jury convicted Poisson of mayhem (Pen. Code, § 203) and battery with serious bodily injury (Pen. Code, § 243, subd. (d)). On appeal he claimed he could not be convicted of both offenses because battery with serious bodily injury is a lesser included offense (LIO) of mayhem. Held: Affirmed. A defendant may be convicted of multiple offenses based on the same act or course of conduct. However, the law prohibits two convictions where both offenses arise from the same act and one is an LIO of the other. To make this determination, the elements test is applied: if a crime cannot be committed without also committing a lesser offense, the latter is an LIO within the former. Penal Code section 203 lists as illustrative offenses slitting the nose, ear, or lip. These acts do not necessarily involve protracted loss or impairment of functioning, disfigurement, or extensive suturing and thus do not constitute serious bodily injury as a matter of law. Therefore, proof of serious bodily injury is not required for a conviction of mayhem. (People v. Santana (2013) 56 Cal.4th 999.) Based on Santana, the court concluded that battery with serious bodily injury is not an LIO of mayhem. The court distinguished People v. Quintero (2006) 135 Cal.App.4th 1152, which held that battery with serious bodily injury is an LIO of mayhem, because in Quintero the prosecution conceded the issue. Further, the Quintero court relied on a Court of Appeal case that preceded the California Supreme Court’s opinion in Santana.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/D067962.PDF