Filed 3/30/16

                            CERTIFIED FOR PUBLICATION



                COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                      DIVISION ONE

                                STATE OF CALIFORNIA



THE PEOPLE,                                        D067962

        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.
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, 1005-1011 &

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


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(§ 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. 801


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(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. 1010.) 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. 1011.) 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."
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       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. 1011.)

       Similarly, we are unpersuaded by Poisson's reliance on People v. Quintero (2006)

135 Cal.App.4th 1152. 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. 1168.)

       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. 1009 ["[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.




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      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.




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