California Court of Appeal Mar 24, 2025 No. E083605Unpublished
Filed 3/24/25 P. v. Michaux CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E083605
v. (Super.Ct.No. INF2301748)
MICHAEL DEFRAN MICHAUX II, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Matthew C. Perantoni,
Judge. Affirmed in part; reversed in part with directions.
Sheila O’Connor, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Charles C. Ragland, Assistant Attorney General, Arlene A. Sevidal and James
M. Toohey, Deputy Attorneys General, for Plaintiff and Respondent.
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A jury convicted defendant and appellant Michael Defran Michaux II of an assault
and a battery on his girlfriend. He argues, and the People concede, his conviction of
assault must be reversed because it is a necessarily included offense of battery. (Pen.
Code, § 954, unlabeled statutory citations refer to this code.) We agree.
subd. (a), count 4), misdemeanor violation of a protective order (§ 166, subd. (c)(1),
count 5), and misdemeanor child endangerment (273a, subd. (b), count 6). It was further
alleged defendant suffered a prior strike for manslaughter (§§ 192, subd. (a), 667,
subds. (c) & (e)(l), 1170.12, subd. (c)(l)) and was subject to the following aggravating
factors: being on probation or parole at the time he committed these offenses (Cal. Rules
of Court, rule 4.421(b)(4)) and serving a prior prison term (Cal. Rules of Court,
rule 4.421(b)(3)).
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The jury convicted defendant of the lesser included offense of simple battery
(§ 243, subd. (e)(1), count 1), the lesser included offense of simple assault (§ 240,
count 2), making a criminal threat, stalking, and violating a protective order.1 Separately,
the trial court found the strike prior to be true. On March 11, 2024, defendant was
sentenced to six years in state prison, comprised of a middle term of three years on
count 4 (stalking), doubled to six years for the prior strike, and 180 days concurrent on
each of counts 1 (battery), 2 (assault), and 5 (violation of protective order); count 3
(making criminal threats) was stayed pursuant to section 654.
II. DISCUSSION
Defendant contends that simple assault is a lesser included offense of simple
battery, meaning he could not be convicted of both crimes. The People agree. The
conviction in count 2 should be reversed.
“‘While section 654 prohibits multiple punishment, it is generally permissible to
convict a defendant of multiple charges arising from a single act or course of conduct.
[Citations.] However, a “judicially created exception to this rule prohibits multiple
convictions based on necessarily included offenses. [Citations.]” [Citation.]’ [Citation.]
[¶] ‘In deciding whether multiple conviction is proper, a court should consider only the
statutory elements.’ [Citation.] ‘Under the elements test, if the statutory elements of the
greater offense include all of the statutory elements of the lesser offense, the latter is
necessarily included in the former.’ [Citation.] In other words, ‘“[i]f a crime cannot be
1 The trial court dismissed the charge of misdemeanor child endangerment pursuant to the defense motion under section 1118.1.
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committed without also necessarily committing a lesser offense, the latter is a lesser
included offense within the former.”’ [Citation.]” (People v. Delgado (2017) 2 Cal.5th
544, 570; see People v. Ortega (1998) 19 Cal.4th 686, 692; People v. Reed (2006)
38 Cal.4th 1224, 1227-1229.)
Both parties acknowledge that simple assault is a lesser included offense of
battery. “Every completed battery includes an assault, but if the assailant does not go
beyond the attempted use of force or violence, then assault has been committed without
battery. It follows, therefore, that while simple assault is an offense included within
battery, battery is not included within assault.” (People v. Yeats (1977) 66 Cal.App.3d
874, 878.) Because simple assault is a lesser included offense of battery, defendant’s
conviction on count 2 must be reversed. (People v. Milward (2011) 52 Cal.4th 580, 589
[“The law prohibits simultaneous convictions for both a greater offense and a lesser
offense necessarily included within it, when based on the same conduct.”]; People v.
Ortega, supra, 19 Cal.4th at p. 692 [“[a] defendant who commits a battery may not be
convicted of both battery and assault” against the same victim]; People v. Sanders (2012)
55 Cal.4th 731, 736 [“When a defendant is found guilty of both a greater and a
necessarily lesser included offense arising out of the same act or course of conduct . . .
the conviction of the lesser offense must be reversed.”].)
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III. DISPOSITION
We reverse the judgment of conviction as to count 2 (simple assault). The trial
court is directed to prepare an amended abstract of judgment and to forward a certified
copy to the Department of Corrections and Rehabilitation. In all other respects, the
judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER Acting P. J.
We concur:
FIELDS
J. RAPHAEL J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that the defendant's conviction for simple assault must be reversed because it is a necessarily included offense of the battery conviction arising from the same conduct.
Issues
Whether simple assault is a necessarily included offense of simple battery, precluding simultaneous convictions for both.
Disposition. Affirmed in part; reversed in part.
Quotations verified verbatim against the opinion
“Because simple assault is a lesser included offense of battery, defendant’s conviction on count 2 must be reversed.”
“The law prohibits simultaneous convictions for both a greater offense and a lesser offense necessarily included within it, when based on the same conduct.”