Flores

A jury convicted Jose Angel Flores of violating Penal Code sections 4501.1 (battery by gassing), 4501.5 (battery by a prisoner on a nonprisoner), and 69 (interfering with a peace officer in the performance of his duties). Flores argues reversal is required because the trial occurred before his Pitchess motion was heard. We conclude that Flores waived the right to a hearing on the motion by refusing to continue the trial date.

In the published portion of the opinion, we conclude that battery by a prisoner on a nonprisoner is a necessarily included offense of battery by gassing. Accordingly, Flores should not have been convicted of violating section 4501.5 once the jury found him guilty of violating section 4501.1. We therefore will vacate the section 4501.5 conviction and remand the matter to the trial court for resentencing.

FACTUAL AND PROCEDURAL SUMMARY

Flores was imprisoned at Wasco State Prison. On November 15, 2007, he was being transported between cells by Correctional Officer Jerry Brazeal. Brazeal testified that after Flores arrived in his new holding cell, Brazeal instructed Flores to stand facing the back wall so Brazeal could exit the cell. As Brazeal left…