People v. Dupclay CA2/5

DISCUSSION

A. Appeal From Conviction for Assault Defendant is not challenging his conviction for battery; indeed, he testified at trial that he struck Officer Eckler “once or twice.” He contends, and the People concede, that assault is a

3 lesser included offense of battery, meaning defendant could not be convicted of both crimes. This is an issue of statutory construction (People v. Sanchez (2001) 24 Cal.4th 983, 988), which we review de novo. (Carrington v. Starbucks Corp. (2018) 30 Cal.App.5th 504, 519.) “[W]here one offense cannot be committed without committing another offense, the latter offense is a necessarily included offense.” (People v. St. Martin (1970) 1 Cal.3d 524, 536.) Defendant is correct 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 was a lesser included offense of battery,…