CERTIFIED FOR PUBLICATION COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA D067962
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1 Filed 3/30/16 CERTIFIED FOR PUBLICATION COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA THE PEOPLE, D Plaintiff and Respondent, v. (Super. Ct. No. SCD254615) JAMES MICHAEL POISSON, Defendant and Appellant. APPEAL from an order of the Superior Court of San Diego County, Runston G. Maino, Judge. Affirmed. Alex Kreit, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Britton B. Lacy, Deputy Attorneys General, for Plaintiff and Respondent. A jury convicted James Michael Poisson of mayhem (Pen. Code,1 203, count 1) and battery with serious bodily injury ( 243, subd. (d), count 3). The trial court 1 All further statutory references are to the Penal Code unless otherwise specified.
2 sentenced Poisson to prison for 12 years, consisting of eight years for mayhem and four years for battery with serious bodily injury. Poisson appeals, contending he could not be convicted separately of both mayhem and battery with serious bodily injury because the latter is a lesser included offense of the former. 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, & 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
3 ( 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
4 (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 ) 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 ) 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
5 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 ) Similarly, we are unpersuaded by Poisson's reliance on People v. Quintero (2006) 135 Cal.App.4th 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 ) 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 ["[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
6 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
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Filed 8/26/14; opinion following remand CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT SCOTT R. JAMES, Plaintiff and Respondent, v. STATE OF CALIFORNIA
CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
Filed 8/11/16 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT STANISLAUS COUNTY DEPUTY SHERIFFS ASSOCIATION, Petitioner and Appellant, v. COUNTY OF
IN THE COURT OF APPEALS OF INDIANA
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P Appellant No WDA 2013
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NOT TO BE PUBLISHED IN OFFICIAL REPORTS IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO A119999
Filed 4/30/09 P. v. Murphy CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE
Filed 6/25/14; pub. order 7/22/14 (see end of opn.) IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE WILLIAM JEFFERSON & CO., INC., Plaintiff and Appellant, v.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT
Filed 11/18/14 Escalera v. Tung CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
CERTIFIED FOR PUBLICATION COURT OF APPEAL - FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA D064633
Filed 10/22/14 CERTIFIED FOR PUBLICATION COURT OF APPEAL - FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA LAVINA CAROL WOFFORD, Petitioner, v. D064633 (San Diego County Super. Ct. No. SCD233212)
COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Filed 11/18/08 CERTIFIED FOR PUBLICATION COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA STEVEN SURREY, D050881 Plaintiff and Appellant, v. (Super. Ct. No. GIC865318) TRUEBEGINNINGS
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE
Filed 9/16/13 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE MOUNT VERNON FIRE INSURANCE CORPORATION, Plaintiff, Cross-Defendant and
IN THE SUPREME COURT OF CALIFORNIA
Filed 5/10/18 IN THE SUPREME COURT OF CALIFORNIA THE PEOPLE, ) ) Plaintiff and Appellant, ) ) S237602 v. ) ) Ct.App. 4/2 E064099 STEVEN ANDREW ADELMANN, ) ) Riverside County Defendant and Respondent. )
SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN BERNARDINO SAN BERNARDINO DISTRICT. Defendant
SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN BERNARDINO SAN BERNARDINO DISTRICT THE PEOPLE OF THE STATE OF CALIFORNIA, vs. Plaintiff William Jason Jones, Emeshia Delayshon Montgomery, aka Emeshia Delayshon
CERTIFIED FOR PUBLICATION COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Filed 12/21/18 CERTIFIED FOR PUBLICATION COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA THE PEOPLE, D073034 Plaintiff and Respondent, v. (Super. Ct. No. SCD266542) ROBERT L.
IN THE SUPREME COURT OF CALIFORNIA
Filed 11/23/09 IN THE SUPREME COURT OF CALIFORNIA THE PEOPLE, ) ) Plaintiff and Respondent, ) ) S166894 v. ) ) Ct.App. 6 H031095 TIMOTHY JOHNSON, ) ) Santa Clara County Defendant and Appellant. ) Super.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO A126207
Filed 4/15/10 In re Armani T. CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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Filed 2/3/16 CERTIFIED FOR PARTIAL PUBLICATION* IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION TWO WILSON DANTE PERRY, B264027 v. Plaintiff and Appellant, (Los Angeles
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FOUR A123145
Filed 1/12/11 P. v. Small-Long CA1/4 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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Filed 12/21/17 IN THE SUPREME COURT OF CALIFORNIA THE PEOPLE, ) ) Plaintiff and Respondent, ) ) S231260 v. ) ) Ct.App. 2/6 B257357 SULMA MARILYN GALLARDO, ) ) Los Angeles County Defendant and Appellant.
CASENOTE JAMES GRAFTON RANDALL, ESQ. LAWATYOURFINGERTIPS
CASENOTE JAMES GRAFTON RANDALL, ESQ. LAWATYOURFINGERTIPS SUMMARY JUDGMENT AFFIRMED IN FAVOR OF DEFENDANT WHEN PLAINTIFF CLAIMS TO HAVE BEEN CAUSED TO SLIP AND FALL DUE TO UNKNOWN OBJECT ON THE FLOOR. DEFENDANT
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NOT TO BE PUBLISHED IN OFFICIAL REPORTS IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO
Filed 6/16/11 In re Jazmine J. CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
INTHE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO A114344
Filed 11/19/07 P. v. Anderson CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
REPLY BRIEF OF THE APPELLANT
E-Filed Document Jul 1 2016 11:19:28 2014-KA-01335-COA Pages: 7 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI LORI GRIFFIN APPELLANT v. No. 2014-KA-1335-COA STATE OF MISSISSIPPI APPELLEE REPLY BRIEF
NOT DESIGNATED FOR PUBLICATION. No. 115,146 IN THE COURT OF APPEALS OF THE STATE OF KANSAS. STATE OF KANSAS, Appellee, REGINALD D. MCCRAW, Appellant.
NOT DESIGNATED FOR PUBLICATION No. 115,146 IN THE COURT OF APPEALS OF THE STATE OF KANSAS STATE OF KANSAS, Appellee, v. REGINALD D. MCCRAW, Appellant. MEMORANDUM OPINION Appeal from Sedgwick District Court;
FN2. The jury found defendant guilt of petty theft and defendant admitted having committed the specified prior.
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion
ATTORNEYS FOR APPELLEE IN THE COURT OF APPEALS OF INDIANA. Case Summary. felony; Battery, as a Class C felony; Domestic Battery, as a Class A
MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res
NOT TO BE PUBLISHED IN OFFICIAL REPORTS IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE A118621
Filed 4/3/08 P. v. Ritch CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication
[Practice Tip: See chapter 2 of the ADI Appellate Practice Manual, et seq., for additional information on constructive filing.
Parts in blue print are instructions to user, not to be included in filed document except as noted. [Practice Tip: In Division One of the Fourth District, the pleading should be framed as a motion to amend
TO BE PUBLISHED IN THE OFFICIAL REPORTS
Filed 11/6/13 TO BE PUBLISHED IN THE OFFICIAL REPORTS his opinion has been certified for publication in the Official Reports. It is being sent to assist the Court of Appeal in deciding whether to order
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Filed 5/20/10 P. v. Jones CA1/4 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication
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