California Court of Appeals, Fourth District, Second Division
[CERTIFIED FOR PARTIAL PUBLICATION[*]]
APPEAL from the Superior Court of Riverside County No. RIF1104807. Thomas E. Kelly, Judge. (Retired judge of the Santa Cruz Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
[Copyrighted Material Omitted]
Lise M. Breakey, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton, Teresa Torreblanca, Brendon W. Marshall, Charles C. Ragland and Robin Urbanski, Deputy Attorneys General, for Plaintiff and Respondent.
MCKINSTER, ACTING P. J.
Defendant Renee Robinson was charged with both aggravated mayhem, in violation of Penal Code section 205, and mayhem, in violation of Penal Code section 203 (sometimes hereafter called “simple mayhem”). Both charges were based on a single incident in which defendant poured scalding water over her husband’s head, resulting in serious burns to his face and various parts of his body, with residual scarring. She contends that she could not be convicted of both offenses based on the same act because simple mayhem is a lesser included offense of aggravated mayhem.
The argument defendant originally made has been nullified by People v. Santana (2013) 56 Cal.4th 999 [157 Cal.Rptr.3d 547, 301 P.3d 1157], which was decided after the conclusion of the initial briefing in this case. However, after supplemental briefing requested by the court and further oral argument, we conclude that Penal Code section 203 is a necessarily included lesser offense of section 205. Accordingly, we will reverse defendant’s conviction for violation of section 203. We will also direct the trial court to correct defendant’s sentence as discussed below.
Defendant was charged with aggravated mayhem (count 1; Pen. Code, § 205); torture (count 2; § 206); mayhem (count 3; § 203); assault with a deadly weapon, to wit, boiling water, and by force likely to cause great bodily injury (count 4; § 245, subd. (a)(1)); and domestic battery with corporal injury (count 5; § 273.5, subd. (a)). The information also alleged that in the commission of counts 4 and 5, defendant personally inflicted great bodily injury under circumstances involving domestic violence within the meaning of sections 12022.7, subdivision (e) and 1192.7, subdivision (c)(8).
A jury convicted defendant on all counts and found the great bodily injury allegations true. The court sentenced defendant to “seven years to life” on counts 1 and 2,  and to a determinate term of four years on count 4, plus five years for the great bodily injury enhancement. The court imposed and stayed sentences on counts 3 ...