If a jury does not agree to find a defendant guilty of battery with serious bodily injury on a charge of mayhem, is this error harmless?

For the same reasons, even assuming arguendo the trial court was required to explicitly instruct the jury that if it had a doubt that defendant committed the greater or lesser offense it must find him guilty solely of the lesser, the error was harmless. There is no reasonable probability the jury thought it could convict defendant of both the mayhem and battery counts even though it was not sure whether his acts constituted mayhem or just battery with serious bodily injury. (See People v. Crone, supra, 54 Cal.App.4th at p. 78 [reasonable probability standard applies to instructional error concerning how to handle necessarily included offenses].) As stated, the jury was instructed that it must evaluate each count separately and it could return a guilty verdict only if the charge was

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proven beyond a reasonable doubt. We presume the jury followed these instructions. (People v. Gray (2005) 37 Cal.4th 168, 217.) Based on the instructions provided to the jury, if any juror had reasonable doubt about the mayhem charge, the jury would not have returned a guilty verdict for this count.

There was no prejudice from the failure to instruct on necessarily included offenses.