Is assault by means likely to inflict great bodily injury a lesser included crime?

The law is well settled on this issue. "'[A] trial court must instruct on lesser included offenses, even in the absence of a request, whenever there is substantial evidence raising a question as to whether all of the elements of the charged offense are present.' [Citation.] Conversely . . . a trial judge has no duty to instruct on any lesser offense unless there is substantial evidence to support such instruction. [Citation.]" (People v. Cunningham (2001) 25 Cal.4th 926, 1008.) A lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense such that the greater cannot be committed without also committing the lesser. (People v. Breverman (1998) 19 Cal.4th 142, 154.)

Defendant contends that assault by means likely to inflict great bodily injury, simple assault, simple battery, and aggravated battery are lesser included offenses of torture. According to defendant, it is impossible to inflict the great bodily injury required for a conviction of torture without assaulting and battering the victim. We disagree. As we stated in People v. Lewis (2004) 120 Cal.App.4th 882, 887), battery and aggravated battery are not lesser included offenses of torture. Battery is "any willful and unlawful use of force or violence upon the person of another." ( 242.) An aggravated form of battery occurs when the battery results in serious bodily injury. ( 243, subd. (d).) Aggravated battery requires proof that the defendant used physical force or violence

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