Hayes

YEGAN, Acting P.J.

Jim Darryl Hayes successfully appeals from the judgment entered following his conviction by a jury of battery with injury on a deputy probation officer in violation of Penal Code section 243, subdivision (c)(1). (B181822, Super. Ct. Case No. 2004044097.) [1] The trial court sentenced him to prison for two years. [2]

Appellant contends that (1) the evidence is insufficient to show that he had the required mental state for battery; and (2) the trial court prejudicially erred in failing to instruct sua sponte on the lesser included offense of battery without injury on a probation officer in violation of section 243, subdivision (b). In our original unpublished opinion we affirmed the judgment. However, we granted appellant's petition for rehearing and now conclude that the trial court committed reversible error in failing to instruct sua sponte on the lesser included offense of battery on a probation officer without injury.

Daniel Anaya was appellant's probation officer. He arrested appellant for violating probation and placed him in handcuffs. Appellant resisted. In response to Anaya's call for backup, additional probation officers and two deputy sheriffs came…