Filed 5/16/13 P. v. Bates CA1/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
A135876
v.
JASON BATES, (Sonoma County
Super. Ct. No. SCR566198)
Defendant and Appellant.
Jason Bates (appellant) was charged with five violations of Penal Code section
288.1 At the conclusion of his trial, the jury found appellant guilty of one count of
misdemeanor battery (§ 242), as a lesser included offense of section 288, subdivision (c).2
The jury found him not guilty on the remaining four counts.
Appellant’s sole contention on appeal is that he was improperly convicted of
misdemeanor battery because that crime is not a lesser included offense of lewd and
lascivious conduct. Respondent concedes that the judgment must be reversed, either
because battery is not a lesser included offense of lewd and lascivious conduct or because
appellant’s conviction for battery is barred by the statute of limitations.
The case law is conflicting as to whether battery is a lesser included offense of
section 288, subdivision (c). (Compare, e.g., People v. Thomas (2007) 146 Cal.App.4th
1
All further statutory references are to the Penal Code unless otherwise indicated.
2
Defense counsel had objected to the court instructing the jury on battery as a
lesser included offense of section 288.
1
1278, 1291-1293; People v. Santos (1990) 222 Cal.App.3d 723, 739.)3 Even assuming
that it is, we conclude the judgment must nonetheless be reversed because appellant’s
conviction is barred by the one-year statute of limitations for misdemeanor battery. (See
People v. Beasley (2003) 105 Cal.App.4th 1078, 1089-1090.) The charged offense
allegedly took place on July 14, 2007. A felony complaint was filed against appellant on
July 27, 2009, and an information was filed on February 23, 2010, both more than one
year after the date of the alleged offense. (See §§ 802, subd. (a); 804; 805, subd. (b).)~
The judgment is reversed.
_________________________
Kline, P.J.
We concur:
_________________________
Lambden, J.
_________________________
Richman, J.
3
This question is currently pending before the California Supreme Court in People
v. Shockley (2010) 190 Cal.App.4th 896, review granted March 16, 2011, No. S189462.
2