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Name: People v. Shockley
Case #: F058249
Court: CA Court of Appeal
District 5 DCA
Opinion Date: 12/08/2010
Subsequent History: rev. granted 3/16/11 (S189462)

Battery is not a lesser included offense of the crime of lewd acts on a child. Appellant was convicted of lewd acts on a child under age 14. (Pen. Code, sec. 288, subd. (a).) On appeal he argued the trial court should have instructed the jury that it could convict appellant of battery as a lesser included offense to the charged crime. There is currently a split of authority on whether battery is a lesser included offense of lewd acts. (Compare People v. Santos (1990) 222 Cal.App.3d 723 [battery is not an LIO] and People v. Thomas (2007) 146 Cal.App.4th 1278 [battery is an LIO].) The Court of Appeal was not persuaded by the analysis of either of those decisions. Conducting its own analysis, it concluded battery is not a lesser included offense of a lewd act because the defendant can commit a lewd act without touching the victim in a harmful or offensive manner. As the Supreme Court held in People v. Martinez (1995) 11 Cal.4th 434, any touching can form the basis of a lewd act as long as it is sexually motivated. A touching, such as tickling, might not be harmful or offensive, and might even be done with consent, yet it could still qualify as a lewd act if committed with sexual motivation. Thus, battery is not an LIO of a lewd act.