The People v. Madison CA3

DISCUSSION

INSTRUCTIONAL ERROR

Defendant argues the court failed to instruct on simple assault as a lesser included offense. Therefore, his conviction on count 1 must be reversed. Background The information charged defendant with assault by means of force likely to produce great bodily injury in count 1 against “R.W.,” Rebecca Wilson. In count 3, defendant was charged with battery against Wilson. During trial, the prosecution asked about lesser included offenses. Defense counsel stated: “[I]t’s really not necessary, if the charging document is correct. Count 3 is what I am arguing is my defense, but it’s Count 3 not Count 1. . . . I suppose the lesser for Count 1 could be a [section] 240, but it seems to me that the [section] 240 would be completed, if a guilty [sic] of Count 3, which is the battery.”

3 The trial court asked the prosecution whether count 3 was an alternative to count 1 or if they were two different attacks. The prosecution stated it was the “same event” and would “be deemed [a] lesser included offense.” The trial court reasoned: “Count 1, lesser included is, of course, [sections] 242 and 240, but the Court typically does not instruct on the [section] 240. The…