Poisson's contention fails because battery with serious bodily injury is not a lesser
included offense of mayhem. (People v. Santana (2013) 56 Cal.4th 999, 1005-1011 &
fn. 6 (Santana).)
FACTUAL AND PROCEDURAL BACKGROUND
On March 2, 2014, at about 1:55 a.m., Robert Gerari was standing near his
motorcycle outside of Gilly's Bar located at 2306 El Cajon Blvd. Poisson walked by
Gerari and said, "nice bike," to which Gerari replied, "thank you." Poisson then struck
Gerari on the side of his head and attempted to run away. In response, Gerari chased
Poisson, took him to the ground, and began punching him. Witnesses soon interrupted
the fight and Poisson fled on foot.
Gerari felt blood running down his face and went back to Gilly's Bar to examine
his injury. When Gerari looked at his injury, he noticed that his right ear had been cut
horizontally. A bartender at Gilly's then called the police. When San Diego Police
Department Officer Luis Angulo arrived, Gerari provided a statement to the officer and
handed him a cell phone, which Poisson had dropped on the ground during the incident.
On March 6, 2014, San Diego Harbor Police Officer David Bulthuis found
Poisson walking westbound on California Street in San Diego and arrested him.
Thereafter, on March 11, 2014, Poisson was charged by felony complaint with mayhem
2
(§ 203, count 1), assault with a deadly weapon (§ 245, subd. (a)(1), count 2), and battery
with serious bodily injury (§ 243, subd. (d), count 3).
DISCUSSION
Poisson contends that battery with serious bodily injury is a lesser included
offense of mayhem because it is impossible to commit mayhem without also committing
battery with serious bodily injury. We disagree.
Generally, a defendant may be convicted of multiple offenses based on the same
act or a single course of conduct. (§ 954; People v. Ortega (1998) 19 Cal.4th 686, 692;
People v. Reed (2006) 38 Cal.4th 1224, 1226.) However, "California law prohibits
convicting a defendant of two offenses arising from a single criminal act when one is a
lesser offense necessarily included in the other." (People v. Montoya (2004) 33 Cal.4th
1031, 1033.) "In deciding whether an offense is necessarily included in another, we
apply the elements test, asking whether ' " 'all the legal ingredients of the corpus delicti of
the lesser offense are included in the elements of the greater offense.' [Citation.]" ' In
other words, 'if a crime cannot be committed without also necessarily committing a lesser
offense, the latter is a lesser included offense within the former.' " (Id. at p. 1034,
quoting People v. Lopez (1998) 19 Cal.4th 282, 288.)
Section 203 defines simple mayhem: "Every person who unlawfully and
maliciously deprives a human being of a member of his body, or disables, disfigures, or
renders it useless, or cuts or disables the tongue, or puts out an eye, or slits the nose, ear,
or lip, is guilty of mayhem." In Santana, supra, 56 Cal.4th 999, our high court addressed
whether it was proper for the trial court to instruct the jury with CALCRIM No. 801
3
(mayhem), which, then, required the prosecution to prove the defendant had caused the
victim "serious bodily injury."2 Noting that mayhem, as defined in section 203, includes
among the acts constituting mayhem, cutting or disabling the tongue and slitting the nose,
ear or lip, the Supreme Court stated: "Nothing suggests that these injuries must involve
protracted loss or impairment of function, require extensive suturing, or amount to
serious disfigurement." 3 (Santana, supra, at p. 1010.) The court stated that the
examples are "merely illustrative and do not constitute serious bodily injuries as a matter
of law," and that it was error "to superimpose a wholesale definition of 'serious bodily
injury' from [felony battery on the mayhem] instruction." (Ibid.)
Poisson argues that Santana is distinguishable from the instant matter. He asserts
that Santana only addressed whether the jury instruction for mayhem should include a
serious bodily injury component. However, Poisson's argument ignores the court's
conclusion in Santana that proof of serious bodily injury is not required for a conviction
of mayhem. (Santana, supra, 56 Cal.4th at p. 1011.) In other words, battery with serious
bodily injury is not a lesser included offense of mayhem.
2 CALCRIM No. 801, which has since been amended, provided in part: "To prove that the defendant is guilty of mayhem, the People must prove that the defendant caused serious bodily injury when (he/she) unlawfully and maliciously: [¶] [1. Removed a part of someone's body (;/.)] [¶] [OR] [¶] [2. Disabled or made useless a part of someone's body and the disability was more than slight or temporary (;/.)]. . . ." Serious bodily injury has since been removed from this instruction.
3 For purposes of battery, section 243, subdivision (f)(4) defines serious bodily injury as "a serious impairment of physical condition, including, but not limited to, the following: loss of consciousness; concussion; bone fracture; protracted loss or impairment of function of any bodily member or organ; a wound requiring extensive suturing; and serious disfigurement." 4
The flaw in Poisson's contention is further illuminated by the cases on which he
relies. For example, he relies on People v. Ausbie (2004) 123 Cal.App.4th 855 (Ausbie)
to support his position, but that case preceded the Supreme Court's opinion in Santana.
In fact, our high court explicitly disapproved Ausbie and stated, "the Ausbie court did not
hold that serious bodily injury is a separate element of mayhem." (Santana, supra, 56
Cal.4th at p. 1011.)
Similarly, we are unpersuaded by Poisson's reliance on People v. Quintero (2006)
135 Cal.App.4th 1152. In that case, the Court of Appeal's conclusion that battery with
serious bodily injury is a lesser included offense of simple mayhem was based on "the
People's concession" as well as the court's reliance on Ausbie, supra, 123 Cal.App.4th
855. (Quintero, supra, 135 Cal.App.4th at p. 1168.)
Finally, Poisson's contention that mayhem cannot be committed without the
infliction of great bodily injury does not support his position here. (See People v. Brown
(2001) 91 Cal.App.4th 256, 272.) He implies that the terms, great bodily injury and
serious bodily injury, should be used interchangeably. However, our high court rejected
a similar argument seeking to bootstrap a serious bodily injury element to mayhem by
equating serious bodily injury with great bodily injury. (See Santana, supra, 56 Cal.4th
at p. 1009 ["[W]e cannot conclude that the offense of mayhem includes a serious bodily
injury requirement simply based on cases holding that mayhem includes a great bodily
injury component."].) Poisson offers no compelling argument that we should disregard
this portion of Santana.
5
In short, none of the cases on which Poisson relies leads us to conclude that
battery with serious bodily injury is a lesser included offense of mayhem. In essence,
Poisson is asking us to ignore Santana, supra, 56 Cal.4th 999. This we cannot do. (See
Auto Equity Sales, Inc. v. Superior Court of Santa Clara County (1962) 57 Cal.2d 450,
455.) Because Santana makes clear that serious bodily injury is not an element required
to be proven for the crime of simple mayhem, the offense of battery with serious bodily
injury is not a lesser included offense of mayhem. There was no error below.
DISPOSITION
The judgment is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
HALLER, J.
AARON, J.
6
AI Brief
AI-generated · verify before citing
Holding. The court held that battery with serious bodily injury is not a lesser included offense of mayhem because proof of serious bodily injury is not an element required for a conviction of mayhem.
Issues
Whether battery with serious bodily injury is a lesser included offense of mayhem.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“battery with serious bodily injury is not a lesser included offense of mayhem.”
“Because Santana makes clear that serious bodily injury is not an element required to be proven for the crime of simple mayhem, the offense of battery with serious bodily injury is not a lesser included offense of mayhem.”