Battery (Pen. Code, § 242) is not a lesser included offense of lewd conduct on a child (Pen. Code, § 288, subd. (a)). Appellant was convicted of lewd conduct against his step-granddaughter. The Court of Appeal rejected his claim that the trial court erred in not instructing the jury on battery as a lesser and necessarily included offense. The California Supreme Court affirmed. To determine if battery is a lesser and necessarily included offense of lewd conduct, the court applied the elements test, which is based on statutory language, rather than the accusatory pleading test because the information tracked the language of section 288, subdivision (a) without providing additional factual allegations. Under the elements test, an offense is necessarily included in a greater offense if the statutory elements of the greater offense include all the statutory elements of the lesser offense. Under section 288, subdivision (a), any touching of a child is illegal if committed with the requisite lewd intent. A battery includes any harmful or offensive (i.e., unlawful) touching. A person can commit a battery without committing a lewd act by touching a child unlawfully, but without lewd intent. In this situation, the unlawful touching is an element of battery that is not included within the elements of lewd conduct. If there was a form of battery where lewd conduct supplied the required unlawful touching, the offense would be identical to the lewd conduct offense. Responding to the concurring/dissenting opinion the court stated: “when the elements of two offenses are essentially identical, as when guilt of battery would be predicated on being guilty of lewd conduct, neither is a lesser and included offense of the other.” In the dissent, J. Kennard found a lewd act on a child always a battery, but would have affirmed this case based on the evidence.