Filed 11/22/13 P. v. Lopez CA3
                                           NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.



              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                         (Yuba)
                                                            ----



THE PEOPLE,                                                                                  C071582

                   Plaintiff and Respondent,                                    (Super. Ct. Nos. CRF11497,
                                                                                         CRF1269)
         v.

THOMAS ALLEN LOPEZ,

                   Defendant and Appellant.




         Following a jury trial, defendant Thomas Allen Lopez was convicted of assault
with force likely to cause great bodily injury and battery causing serious bodily injury.
On appeal, he contends his conviction for assault with force likely to cause great bodily
injury must be reversed as it is a lesser included offense of battery causing serious bodily
injury. We affirm the judgment.

                                           FACTS AND PROCEEDINGS
         In January 2012, defendant was incarcerated along with two other inmates,
Michael Barabin and John Fleming. The trio was discussing Fleming’s tattoos, when
defendant mumbled something and Barabin said, “what’s it to you?” Barabin turned


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away and defendant jumped on the table and kicked Barabin on the left side of his face.
The kick broke Barabin’s jaw in two places. Barabin was treated with Tylenol and
ultimately his jaw was surgically wired shut for about a month.
       An information charged defendant with battery causing serious bodily injury (Pen.
Code, § 243, subd. (d)--count one; unless otherwise stated, statutory references that
follow are to the Penal Code) and assault with force likely to cause great bodily injury
(§ 245, subd. (a)(4)--count two). The information also alleged, as to count one, that
defendant personally inflicted great bodily injury (§ 1192.7, subd. (c)(8)) and as to count
two, personally caused great bodily injury (§ 12022.7, subd. (a)). A jury found defendant
guilty of both charges and found the enhancement allegations true. The trial court
sentenced defendant to an aggregate term of seven years in state prison, four years on
count two, with a consecutive three-year sentence for the great bodily injury
enhancement. The sentence on count one was stayed under section 654. The trial court
awarded defendant 157 days of presentence custody credits. Defendant was also
sentenced in an unrelated case, case No. CRF11-497, to a consecutive one-year term and
awarded 387 days of presentence custody credit.

                                       DISCUSSION
       Defendant contends his conviction for assault with force likely to cause great
bodily injury must be reversed because it is a lesser included offense to battery causing
serious bodily injury. As defendant acknowledges, a consistent line of case law has
rejected this position. (In re Ronnie N. (1985) 174 Cal.App.3d 731, 733-735; see People
v. Hopkins (1978) 78 Cal.App.3d 316, 319-321; People v. Bertoldo (1978) 77 Cal.App.3d
627, 633-634.)
       A defendant may not be convicted of an offense that is included within another
offense. (People v. Reed (2006) 38 Cal.4th 1224, 1227.) To determine whether one
offense is necessarily included within another, we look to the statutory elements of the


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offenses. “[I]f the statutory elements of the greater offense include all of the statutory
elements of the lesser offense, the latter is necessarily included in the former.” (Id. at
p. 1227.) Where, as here, the challenge is to a charged offense, we do not look to the
accusatory pleadings. The pleadings are relevant only when the question is whether a
defendant may be convicted of an uncharged crime. (Id. at pp. 1228–1231.)
         The statutory elements of aggravated assault are: (1) an assault, that is, “an
unlawful attempt, coupled with a present ability, to commit a violent injury on the person
of another” (§ 240); and, (2) committed with a deadly weapon or “by any means of force
likely to produce great bodily injury.” (§ 245, former subd. (a)(4).) (People v. Murray
(2008) 167 Cal.App.4th 1133, 1139.) The statutory elements of felony battery are: (1) a
battery, that is “any willful and unlawful use of force or violence upon the person of
another” (§ 242); and, (2) serious bodily injury is inflicted on the person (§ 243, subd.
(d)). (People v. Longoria (1995) 34 Cal.App.4th 12, 16.) “Because a battery inflicting
serious injury could occur without necessarily using a weapon or force likely to cause
such serious injury, . . . aggravated assault (a violation of Pen. Code, § 245, subd. (a)) is
not a lesser included offense of battery causing serious injury (a violation of Pen. Code,
§ 243, subd. (d)).” (In re Ronnie N., supra, 174 Cal.App.3d at p. 735, citing People v.
Bertoldo, supra, 77 Cal.App.3d at pp. 633-634 [push that results in fall with serious
injury is felony battery, but not aggravated assault].) We agree that “[a]ssault with force
likely to produce great bodily injury is not a lesser included offense of battery with
serious bodily injury.” (In re Jose H. (2000) 77 Cal.App.4th 1090, 1095-1096 (Jose H.).)
Our Supreme Court has examined the reasoning of Jose H., cited its conclusion with
approval and followed it to resolve a somewhat different issue. (People v. Sloan (2007)
42 Cal.4th 110, 119-120.) We find these authorities persuasive and reject defendant’s
claim.




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                                  DISPOSITION
     The judgment is affirmed.



                                                HULL   , J.



We concur:



     RAYE               , P. J.



     BLEASE             , J.




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