Conviction for battery by gassing is reversed and remanded where battery by gassing is a necessarily included offense of battery by a prisoner on a nonprisoner, and thus defendant should not have been convicted of battery by gassing once the jury found him guilty of battery by a prisoner on a nonprisoner.
APPEAL from a judgment of the Superior Court of Kern County. Gary A. Ingle, Judge.
FIFTH APPELLATE DISTRICT
Filed August 11, 2009
Before CORNELL, J., ARDAIZ, P.J., VARTABEDIAN, J.
Opinion by CORNELL, J.
For Plaintiff: Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, R. Todd Marshall and Raymond L. Brosterhous II, Deputy Attorneys General.
For Defendant: Gretchen Franklin, under appointment by the Court of Appeal.