What is the test for an allegation of battery in a sexual assault case?
California, United States of America
The following excerpt is from People v. Miranda, 276 Cal.Rptr.3d 503, 62 Cal.App.5th 162 (Cal. App. 2021):
The People disagree. Relying on People v. Hernandez (2011) 200 Cal.App.4th 1000, 133 Cal.Rptr.3d 229 ( Hernandez ), the People contend that battery is not a lesser included offense of these offenses. Hernandez held that "battery is not a lesser included offense of rape of an unconscious person" because battery requires use of force or violence, while "[t]here is no requirement that [a] defendant use force or violence to accomplish the act of sexual intercourse." ( Id. at p. 1006, 133 Cal.Rptr.3d 229.) The People additionally contend that any supposed error is harmless.
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