Opinion
E050864
08-10-2011
THE PEOPLE, Plaintiff and Respondent, v. EMANUEL CHIRIAC, Defendant and Appellant.
John L. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton and Alana Cohen Butler, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super.Ct.No. RIF138126)
OPINION
APPEAL from the Superior Court of Riverside County. Mac R. Fisher, Judge. Affirmed.
John L. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton and Alana Cohen Butler, Deputy Attorneys General, for Plaintiff and Respondent.
The People charged defendant and appellant Emanuel Chiriac by amended information with three counts of lewd and lascivious behavior with a minor under the age of 14 by force or duress (counts 1-3—Pen. Code § 288, subd. (b)(1))., The jury convicted defendant of the lesser included offense of lewd and lascivious behavior on count 1 (§ 288, subd. (a)), but hung on counts 2 and 3. The court declared a mistrial on the latter counts. The court granted defendant probation and sentenced him to time served. On appeal, defendant contends the court erred in failing to instruct the jury on battery as a lesser included or lesser related offense of the count 1 charge. We affirm the judgment.
The prosecutor argued to the jury that count 1 involved kissing, count 2 oral copulation, and count 3 rape.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTS
A. PROSECUTION
The victim testified that in May of 2006, when she was 13 years old, defendant (her uncle by marriage) asked her if she wanted to go to the store with him; she agreed. Defendant drove to a nearby "golf park." They got out of the car and walked down a hill to the park. The victim lay down in the grass; defendant lay down beside her. He asked her if she was a good kisser; the victim told him that was none of his concern. Nevertheless, defendant repeatedly asked her for a kiss. The victim kept telling him "No." He leaned in to kiss her; she relented and kissed him for about 10 seconds. Defendant told the victim she was a good kisser.
Soon thereafter they saw smoke arising from a nearby home. They got up, went to the car, and drove to the fire. A fire truck responded. They watched the fire for several minutes, but then returned to the same spot where they parked before.
Defendant locked the doors of the car so that the victim could not exit. He asked her if she wanted to see his penis; she told him he was stupid. Defendant pulled his pants halfway down, revealing his erect penis. Defendant asked her if she wanted to suck his penis; he told her to "suck his dick." She told him no; nonetheless, he continued to ask, and told her he would not take her home until she did. The victim was scared; she did not know what to do. She repeatedly told him no. Defendant then grabbed her head and pulled it down toward his penis; he used "hard force." She unsuccessfully tried to pull away. Defendant told her to "suck his dick." The victim again told him she did not want to; however, she started to orally copulate him because she wanted to go home and thought defendant would kill her if she did not. Defendant ejaculated into her mouth after approximately 30 seconds; he unlocked the door so the victim could open it and spit out his semen. Defendant warned her if she ever told anyone he would kill her. He then drove her back to her grandmother's house.
They never went to the store. When they returned, another uncle asked them why they had returned without groceries. The victim did not tell anyone what had happened because she remained scared of defendant.
The victim testified that on another occasion approximately two months later and sometime prior to July 9, 2006, the victim and her mother spent the night at defendant's apartment. The victim's mother had engaged in an argument with the victim's father, necessitating that she stay somewhere else. The victim wanted to go with her mother to stay at defendant's apartment. She slept in the living room with her mother. The next morning, her mother and defendant's wife, Claudia, went to the store while the victim was still sleeping.
The victim awoke and went to the restroom. Defendant knocked on the door and told her to come out. She asked him why; he said he wanted to talk. The victim exited the restroom because she believed her mother had returned to the apartment. Defendant was sitting on the edge of his bed; he told her sit on the bed. She declined. He got up off the bed and pulled her onto it with both his hands. She told him to stop before her mother and Claudia returned. He told her they were not coming back. Defendant bent her down over the bed so she was lying on her stomach.
The victim attempted to fight defendant off, but was unable to overcome him because he had both his hands on her back. While still holding down on her back with his left hand, he pulled her pants halfway down with his right hand. Defendant moved her underwear to the side. The victim kept telling him to stop; she was scared and crying. Defendant pulled down his pants and put his penis inside her vagina; it hurt. She continued to resist and repeatedly told him to stop. After 25 to 30 seconds, defendant ejaculated. Defendant then saw the victim's mother and Claudia entering the apartment complex. Defendant went into the bathroom to clean himself. The victim pulled up her pants and went into the living room; defendant told her not to say anything or he would kill her. She did not tell anyone because she was scared defendant would kill her.
The victim eventually told her cousin what defendant had done to her during the first incident. Her cousin told the victim's boyfriend, who told her uncle, who told her mother; her mother questioned her regarding the incident. When her mother approached her, she revealed the details of the first incident. After everyone found out what had occurred, defendant again threatened to kill her unless she denied everything. The victim denied anything had occurred between her and defendant when first confronted by her boyfriend and uncle; she did so because she was scared defendant would kill her.
The victim's mother, father, and grandmother then brought her to the police station, where she reported the first incident. However, she did not initially provide every detail of the episode. Likewise, she did not report the second incident because she was nervous and scared. At a later date, when she spoke to another officer, she reported the second incident. The victim initially reported she was unsure if defendant penetrated her during the latter occurrence; at trial, she testified she was certain he did because it hurt. The victim could not testify as to whether defendant's penis had any distinguishing characteristics or whether he was circumcised, though she testified he shaved his pubic hair.
Rachelle Walker, the owner of a home near the golf park, testified that the fire department was called to her home sometime between May and July 2006. One of the victim's uncles and one of her aunts both testified they recalled the victim going to the store with defendant and returning without groceries on one occasion. The victim's mother testified she and the victim stayed overnight at defendant and Claudia's apartment prior to July 9, 2006. The victim's mother left the apartment at one point and returned to find the victim crying. She heard about the first incident from her brother. The victim's mother, the victim, the victim's father, and the victim's grandmother all drove to the police department to report the incident.
The victim's former boyfriend (her husband at the time of trial), testified he heard rumors regarding an incident between the victim and defendant from the victim's cousin; he confronted the victim, but she initially denied the rumors. He later overheard a telephone conversation between the victim and defendant in which the victim reported to defendant that her family knew what had occurred between them; defendant told her to deny everything or he would kill her. The victim's husband then confronted her and she revealed everything. The victim's husband admitted that he never told anyone, prior to his testimony, about overhearing the phone conversation; he did not do so because he had an outstanding warrant for his arrest.
B. DEFENSE
The victim's grandmother testified she went to the police station with the victim, and the victim's mother and father on June 27, 2007. On the way to the police station, the victim's father coached the victim what to tell the police. She testified the victim was a liar.
Defendant's wife, Claudia, testified defendant had a large birthmark on his penis, was uncircumcised, and had never shaved his pubic hair. The victim's father had Claudia sign a mortgage on a home for him; she asked that her name be removed from the mortgage when he started to make late payments. Although Claudia's name was eventually removed from the mortgage, the victim's father threatened her that someday she would be made to pay for her decision. While the victim's mother spent several nights at her apartment, the victim never did. Claudia testified the victim was a "big liar."
DISCUSSION
A. BATTERY AS A LESSER INCLUDED OFFENSE OF LEWD AND LASCIVIOUS ACTS
Defendant contends the trial court was obligated to instruct the jury on misdemeanor battery as a lesser (necessarily included) offense of count 1, particularly because he both requested such instruction and the People acceded to it. We hold that battery is not a lesser included offense of lewd and lascivious behavior; thus, the court had no duty to so instruct the jury. Moreover, insufficient evidence supported giving an instruction on battery to the extent it could be considered a lesser included offense. Finally, even if the court was required to instruct on battery, we hold its failure to do so harmless.
1. PROCEDURAL HISTORY
In the middle of trial, the court first noted defense counsel had requested jury instructions on both simple battery and simple assault, at least as to count 1. The court noted, "I have preliminarily said to both of the attorneys that I do not see any evidence in support of a simple assault in the sense that the . . . state of the evidence right now is there was some touching in such that qualifies as a battery as opposed to simple assault, but nonetheless I will reserve final judgment in that regard until all evidence is posed [sic]." The court later indicated it intended to instruct the jury with CALCRIM No. 960, the pattern jury instruction for battery.
After the conclusion of trial, the court indicated, "I've given this a lot of thought. I am not sure this can go to the jury for anything other than the [section] 288 [subdivision] (b) charge. I have heard no testimony from any witness, other than [the victim], with regard to [section] 288 [subdivision] (b); specifically, that force was used." The court asked defense counsel if there was any evidence he could point to that would support an instruction on a lesser included offense: "Based upon what I heard, it seems to me it's [a section] 288 [subdivision] (b) [conviction] or not guilty." Defense counsel responded, "[t]he one count is an alleged French Kiss. I think that falls under the lesser. There is evidence they went out to the . . . golf course . . . and they French-Kissed . . . . So I think, under that theory, the lesser must be given." Defense counsel contended the lack of evidence and the vagueness of the allegations would support a conviction under section 288, subdivision (a), or simple battery, rather than a lewd act by force. Nevertheless, defense counsel later indicated, "we want all or nothing." The People conceded the jury "could come to [the] conclusion that it's a simple battery." However, the People contradictorily noted that they did not "know . . . exactly how [the jury could] come to [that] conclusion if they believe she is 13 and there is kissing involved."
The next day, the trial court resolved the issue: "As to Count 1, the Defense and Prosecution believe the lessers shall be given. I will respectfully decline the opportunity to give the simple battery instruction. I've reviewed the evidence and conclude that the kissing event was only described by [the victim]. There was no other evidence upon which the jury could rationally decide that the defendant is guilty of simple battery. The lessers must be supported by the evidence, even to a limited extent." Defense counsel did not object to the court's decision not to instruct on simple battery. When the court concluded its enumeration of its indicated jury instructions, it asked defense counsel if there "are . . . instructions that you feel should be given that have not been described in the packet that I intend on giving?" Defense counsel responded, "No, Your Honor." The court then asked, "Are there objections you have to the instructions?" Defense counsel again replied, "No, Your Honor." The court then instructed the jury on non-forceable lewd acts as a lesser included offense of forceable lewd acts, but did not instruct on simple battery.
2. DISCUSSION
"[A] trial court is obligated to instruct the jury on all general principles of law relevant to the issues raised by the evidence. [Citation.] It is error for a trial court not to instruct on a lesser included offense when the evidence raises a question whether all of the elements of the charged offense were present, and the question is substantial enough to merit consideration by the jury. [Citation.] When there is no evidence the offense committed was less than that charged, the trial court is not required to instruct on the lesser included offense. [Citation.]" (People v. Booker (2011) 51 Cal.4th 141, 181.) The obligation to instruct on lesser included offenses arises even where inconsistent with the defense's theory of the case or where specifically objected to by the defense, so long as substantial evidence supports it. (People v. Breverman (1998) 19 Cal.4th 142, 159.) "[E]very lesser included offense, or theory thereof, which is supported by the evidence must be presented to the jury." (Id. at p. 155.) "On appeal, we review independently whether the trial court erred in failing to instruct on a lesser included offense. [Citation.]" (Booker, at p. 181.)
For the purpose of instructing on lesser included offenses, two tests apply in determining whether an uncharged offense is included within a charged offense: the elements test and the accusatory pleading test. (People v. Parson (2008) 44 Cal.4th 332, 349.) "[A] lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense [(the elements test)], or the facts actually alleged in the accusatory pleading [(accusatory pleading test)], include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser. [Citations.]" (People v. Birks (1998) 19 Cal.4th 108, 117-118, fn. omitted.) Under the elements test, we look strictly to the statutory elements of the offenses, not to the facts of the case. (People v. Ramirez (2009) 45 Cal.4th 980, 985.) We ask whether "'"all the legal ingredients of the corpus delicti of the lesser offense [are] included in the elements of the greater offense." [Citation.]' [Citation.]" (People v. Lopez (1998) 19 Cal.4th 282, 288.) In other words, "if a crime cannot be committed without also necessarily committing a lesser offense, the latter is a lesser included offense within the former." (Ibid.; see also People v. Montoya (2004) 33 Cal.4th 1031, 1034.)
"Under the second, or 'accusatory pleading' test, we review the information to determine whether the accusatory pleading describes the crime in such a way that if committed in the manner described the lesser must necessarily be committed. [Citation.] The evidence actually introduced at trial is irrelevant to the determination of the status of an offense as lesser included. [Citation.]" (People v. Wright (1996) 52 Cal.App.4th 203, 208.) "[W]hen the accusatory pleading describes the crime in its statutory language . . . only the statutory elements test is relevant in determining if an uncharged crime is a lesser included offense of that charged. [Citations.]" (People v. Moussabeck (2007) 157 Cal.App.4th 975, 981.)
We conclude that battery is not a necessarily lesser included offense of a lewd and lascivious act under section 288, subdivision (b), under either test. Section 288, subdivision (b) penalizes "[a]ny person who willfully and lewdly commits any lewd or lascivious act, . . . upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child." (§ 288, subd. (a).) A violation of section 288, subdivision (b), requires a touching of the victim. (People v. Martinez (1995) 11 Cal.4th 434, 444.) The touching may be accomplished by any contact on any part of the victim's body or clothes; it need not appear objectively sexual so long as the perpetrator's subjective intent is to arouse his own, or the victim's, passion or sexual desire. (Ibid.)
Section 242 defines battery as "any willful and unlawful use of force or violence upon the person of another." The slightest touching can constitute a battery so long as the victim incurs unreasonable harm or offense. (People v. Myers (1998) 61 Cal.App.4th 328, 335 [battery occurs even where touching results only in the victim's feelings being hurt].) The touching must be perceived as harmful or offensive in order to constitute the unlawful use of force sufficient to convict for battery. (People v. Martinez (1970) 3 Cal.App.3d 886, 889 [barefoot kick to shin is offensive].) Thus, the essence of the crime of battery is a touching which is objectively and subjectively perceived as harmful or offensive; no specific intent on the part of a defendant is required. (Ibid.)
Therefore, where a contact has all outward appearances of propriety, a lewd act can, nonetheless, be committed upon a child without committing a battery. This is because a child may find a particular touching, which may normally constitute a battery, non-offensive such that the offender may escape conviction for battery despite his specific lewd intent. Nonetheless, a perpetrator cannot elude conviction for a lewd act simply because the child finds the touching non-offensive, so long as the act is subjectively motivated by an intent to arouse. Hence, consent is no defense to a charge of lewd and lascivious behavior. (People v. Hillhouse (2003) 109 Cal.App.4th 1612, 1619.) On the other hand, while consent is generally not a defense to battery, it may be deemed one "in a situation involving ordinary physical contact." (People v. Samuels (1967) 250 Cal.App.2d 501, 513.) Thus, where a person touched a child on the shoulder with no intent to arouse either herself or the child, and the touching is not perceived as offensive or harmful, the individual has committed no crime. However, where the individual touches a child's shoulder with the intent to arouse himself, but without causing any harm or offense, that individual has committed the offense of lewd and lascivious behavior, but not battery. Therefore, one does not necessarily commit battery in committing a lewd act. (People v. Santos (1990) 222 Cal.App.3d 723, 739 (Santos)["[S]ince battery (§ 242) is not a lesser included offense to the offenses charged in this case, the trial judge was not obliged to give the instruction sua sponte. At best, battery was a lesser related offense."].)
Defendant essentially argues that even an apparently innocuous touching of a child's shoulder with the intent to arouse is inherently harmful or offensive. However, we do not agree that every minor who was the object of such a touching would necessarily find it harmful or offensive, especially if unaware of the perpetrator's lewd intent. Moreover, if a jury found that a defendant had an intent to arouse in so touching the minor, then it would be required to find the defendant guilty of lewd and lascivious acts, not battery. Likewise, it could find an intent to arouse on the defendant's part without rendering a finding that the victim subjectively perceived the touching as harmful or offensive.
Defendant contends this court has noted that battery is a lesser included offense of section 288 citing People v. Lopez (2010) 185 Cal.App.4th 1220 (Fourth Dist., Div. Two); however, that decision merely recognized that the defendant had been convicted of "two counts of the lesser-included offense of misdemeanor battery . . . ." (Id. at p. 1224.) Lopez in no way addressed the propriety of instructing on battery as a lesser included offense of the originally charged counts under section 288, subdivision (a) offenses. (People v. Jennings (2010) 50 Cal.4th 616, 684 ["'It is axiomatic that cases are not authority for propositions not considered.'"].) In fact, the sole issue addressed in the published portion of Lopez was whether sufficient evidence had been adduced to support the defendant's convictions on two other counts under section 288, subdivision (a). (Lopez, at pp. 1230-1234.)
In People v. Thomas (2007) 146 Cal.App.4th 1278, 1282, 1293, the appellate court held that battery is a lesser included offense of lewd acts. The People conceded that any actual physical touching of the victim within the meaning of section 288 would necessarily be harmful or offensive. (Thomas, at p. 1292, fn. 8.) The Thomas court provided no real analysis of the respective offenses pursuant to the elements or accusatory pleading tests. Rather, it focused its analysis exclusively on whether the element of "touching" could be accomplished constructively for purposes of both the offenses of battery and lewd acts. (Id. at pp. 1291-1293.) The court concluded there was "no basis to conclude that the touching can be constructive under section 288 but not under section 242." (Id. at p. 1293, italics added.) Although we agree with Thomas that either offense may be accomplished by direct or constructive touching, it does not change the fact that, as discussed above, an offender may commit a lewd and lascivious act (by a touching committed with the intent to arouse), but not commit a battery (by ensuring that the touching is not deemed offensive or harmful by the victim).
The People, in their respondent's brief, exposited People v. Shockley (2010) 190 Cal.App.4th 896, 905, for the proposition that battery is not a lesser included offense of a violation of section 288. However, the California Supreme Court granted review of that decision on March 16, 2011; thus, that decision is no longer published and may no longer be cited or relied upon. (Cal. Rules of Court, rules 8.1105(e)(1), 8.115(a).)
Defendant contends any touching of a child with an intent to arouse is always harmful or offensive, even if the child consents. Moreover, defendant maintains that the California Supreme Court's recent decision in People v. Soto (2011) 51 Cal.4th 229, 248 precludes a minor's "consent" to such a touching under any circumstances. We agree the Court's narrow holding in Soto precludes a minor's consent as a defense to a charge of aggravated lewd acts on a minor under the age of 14: "[T]he victim's consent is not a defense to the crime of lewd acts on a child under age 14 under any circumstances." (Id. at p. 233, fn. omitted.) However, the Soto decision did not require that the victim of a lewd act necessarily find the act offensive or harmful. Indeed, as discussed above, while society might objectively find, and a victim might subjectively deem, any genital, anal, or oral touching inherently harmful or offensive, the same may not be said about the touching of a hand, foot, finger, or shoulder, especially if the minor was unaware of a defendant's salacious purpose in committing the touching. For purposes of section 288, the victim's awareness of the defendant's lewd intent would be irrelevant to his conviction; however, as it relates to battery, even the victim's awareness would not necessarily translate into a subjective determination by the victim that he or she is being harmed or that the touching is offensive. This subjective determination of harm or offense is different conceptually, intellectually, and actually, than the concept of consent.
As to the accusatory pleading test, the information here alleged that defendant violated section 288, subdivision (b) by "willfully, unlawfully, and lewdly commit[ing] a lewd and lascivious act upon and with the body and certain parts and members thereof of [the victim], a child under the age of fourteen years, by use of force, violence, duress, menace, and fear of immediate and unlawful bodily injury, with the intent of arousing, appealing to, and gratifying the lust, passions, and sexual desires of the said defendant and the said child." Thus, the pleading is couched in statutory language and does not allege that the "acts" were perceived as harmful or offensive. Therefore, the accusatory pleading test is irrelevant. (People v. Moussabeck, supra, 157 Cal.App.4th at p. 981.) While the evidence adduced at trial certainly reflected that the victim perceived the touching as harmful and offensive, that evidence is irrelevant for determining whether battery was a lesser included offense of lewd acts. (People v. Wright, supra, 52 Cal.App.4th at p. 208.) Of course, the People could have written the complaint or information to include such an allegation, but here, they did not. Therefore, we hold that battery is not a necessarily lesser included offense of lewd acts under section 288, subdivision (a).
Moreover, even to the extent that battery could be deemed a lesser included offense of lewd acts, the court is not required to instruct the jury on a lesser included offense when there is no evidence that the offense committed was less than that charged. (People v. Booker, supra, 51 Cal.4th at p. 181.) Here, there was simply no evidence that defendant kissed the victim with any other intent than to arouse himself, the victim, or both. Indeed, we agree with the prosecutor's succinct summarization of the issue: "I'm not going to insult your intelligence, ladies and gentlemen. When you ask somebody to kiss you, it's obviously for an intent to satisfy yourself, or your sexual desires. Not necessarily the other person, but definitely yourself." Indeed, the kiss was described as "ten seconds" long. After it was completed, defendant told her she was a good kisser. Counsel and the court consistently referred to the kiss as a "French Kiss"; the obvious inference from the testimony at trial. Thus, there was simply no evidence, as argued by defendant, that the kiss was simply intended in a "playful," "obnoxious," or familial manner.
Finally, there was no reasonable probability the jury would have found defendant guilty of battery even if the trial court had instructed it as requested. (People v. Breverman, supra, 19 Cal.4th at p. 165 [failure to instruct sua sponte on lesser included offense in noncapital case subject to Watson standard of error]; People v. Thomas, supra, 146 Cal.App.4th at pp. 1293-1294 [error in failing to instruct jury with battery as lesser included offense of lewd and lascivious behavior not prejudicial because it was not reasonably probable the jury would have accepted defendant's account that touching was simply offensive rather than a lewd act].) Contrary to defendant's assertion, the jury could not have reasonably believed that defendant kissed the victim with no intent to arouse. Here, as discussed above, the victim described the kiss as lasting around 10 seconds. In other words, it was not a peck on the cheek. Even defense counsel referred to the kiss as a French Kiss, the rational inference of the evidence adduced below. Defendant thereafter described the victim as a good kisser. It is not reasonably probable the jury would have found that defendant acted without an intent to arouse.
People v. Watson (1956) 46 Cal.2d 818, 836.
B. BATTERY AS A LESSER RELATED OFFENSE OF LEWD ACTS
Defendant contends that since he requested instruction on battery as a lesser related offense of lewd acts, the trial court was required to so instruct the jury, particularly since the prosecution agreed. We disagree with defendant's characterization of the record as indicating that defendant clearly and unambiguously requested instruction on battery as a lesser included or related offense. Moreover, we do not see the prosecutor's remarks on the matter as assent to such instruction. Nonetheless, even assuming that defendant did request and the People agreed to such instruction, counsel has failed to cite any case for the proposition that a trial court is required to instruct on a lesser related offense once such a factual predicate is demonstrated. We hold that trial courts have discretion to evaluate the evidence and make a determination whether substantial evidence supports such an instruction even when the defendant has requested and the People have agreed to such instruction.
"'[T]here is no federal constitutional right of a defendant to compel the giving of lesser-related-offense instructions. [Citation.]' [Citation.]" (People v. Foster (2010) 50 Cal.4th 1301, 1343.) "[I]nstruction on a lesser related offense is proper only upon the mutual assent of the parties. [Citations.]" (People v. Taylor (2010) 48 Cal.4th 574, 622.) "[A] trial court has no duty to instruct on an uncharged lesser related offense when requested to do so by the defendant [citation] . . . ." (People v. Schmeck (2005) 37 Cal.4th 240, 292.)
First, we disagree with defendant's contention that he unambiguously requested instruction on simple battery. Although the record makes clear that defendant initially requested such instruction off the record, defendant later appeared to recant that request. In further discussions regarding jury instruction, defendant eventually stated, "we want all or nothing." This necessarily implicated that defendant wished the jury to either find him guilty of the charged offense or find him not guilty, with no potential for finding guilt on any lesser included or lesser related offense. When the court later completed its enumeration of its intended jury instructions, defendant did not object. When specifically asked whether there were any additional instructions defense counsel believed the court should give the jury, defense counsel replied that there were not. When asked whether defendant had any objections to the proposed instructions, defense counsel replied that he did not. Thus, it would appear that defendant had changed his mind about the request to instruct on simple battery. Second, although the People agreed the jury could come to a determination that defendant committed simple battery rather than lewd acts, they did not expressly "mutually assent" to instruction on simple battery. Indeed, the People immediately thereafter noted they did not see how the jury could find that defendant did anything other than commit a lewd act in kissing the victim. Thus, the prerequisite "mutual assent" to instruction on a lesser related offense would appear to be lacking in this case.
Nonetheless, even assuming such concurrence, we hold that the trial court retains discretion to refuse such an instruction where it finds insufficient evidence of the lesser offense has been adduced at trial. The California Supreme Court has found problematic a legal system that would permit defense counsel to press a jury for leniency by requesting instructions on every conceivable lesser crime that could be extracted from the evidence adduced at trial. (People v. Birks, supra, 19 Cal.4th at p. 122, fn. 12.) "When the prosecution discharges [its] responsibility by filing an accusatory pleading, it assumes the obligation to prove beyond a reasonable doubt all the elements, but only the elements, of the stated charge and any lesser offense necessarily included therein. [Citation.]" (Id. at p. 128, second italics added.) Thus, the court in Birks overruled its decision in People v. Geiger (1984) 35 Cal.3d 510, which permitted a defendant to unilaterally determine on what lesser related offenses the trial court must instruct the jury.
In People v. Taylor, supra, 48 Cal.4th at pages 621 through 622, the court held the trial court committed no error in refusing the defendant's requested instruction on a lesser related crime of trespass where the defendant was charged with first degree felony murder after the People objected. After initially denying the defendant's request, the trial court "indicated it would revisit the issue if warranted by evidence adduced during the defense case or on rebuttal, but found that the facts of the case did not 'in any way, shape or form' support giving the instructions the defense proposed." (Id. at p. 622.) On reconsideration, after the close of evidence, the trial court again denied the request noting "'[t]his is a felony murder case.'" (Ibid.)
In People v. Foster, supra, 50 Cal.4th at page 1344, the court held the trial court committed no error in failing to instruct the jury sua sponte on a lesser related crime of trespass where defendant was charged with burglary. "Regardless of defendant's legal and factual theories concerning how his conduct may have constituted trespass, that potential crime nonetheless remains at most a lesser offense related to (but not included in) the offense of burglary." (Id. at p. 1344.) In People v. Lam (2010) 184 Cal.App.4th 580, the defendant contended trial counsel provided ineffective assistance of counsel by neglecting to request that the trial court instruct the jury on a lesser related offense of aiding and abetting suicide where he was charged with murder. (Id. at p. 583.) The court noted, "even if counsel had requested the instruction, no reasonable possibility existed that the prosecutor and trial court would have agreed to it because no substantial evidence supported it." (Ibid., italics added.) The court held that, even assuming the accuracy of the defendant's characterization of the facts of the victim's death, an instruction on aiding and abetting suicide would not have applied. (Id. at p. 584.)
In Santos, supra, 222 Cal.App.3d 723, the People charged the defendant with two counts of lewd and lascivious acts by force (§ 288, subd. (b)), four counts of oral copulation by force (§ 288a, subd. (c)), and one count of penetration by a foreign object by force (§ 289, subd. (a)); the jury convicted the defendant on all charged counts. (Santos, at p. 729.) On appeal, the defendant argued the trial court erred in refusing to give the jury instructions on battery as a lesser related offense of all the charged offenses. (Id. at p. 738.) The appellate court concluded, "battery . . . is not a lesser included offense to the offenses charged in this case, the trial judge was not obliged to give the instruction sua sponte. At best, battery was a lesser related offense, and the court was obliged to give defendant's requested instruction only if it satisfied the Geiger test." (Id. at p. 739, italics added.) Thus, the appellate court did not conclude that, as a matter of law, battery was or always is a lesser related offense of section 288 crimes; rather, it conducted an analysis of the evidence adduced at trial and determined it met the Geiger criteria. (Santos, at pp. 739-740.)
The opinion fails to indicate whether the People objected to the defendant's request that the jury be so instructed. Regardless, the People's objection or agreement to the instruction would have been irrelevant under the then-existing state of the law; at that time, a defendant had a unilateral right to demand or refuse instruction on lesser related offenses so long as the court found certain criteria had been met. (People v. Geiger, supra, 35 Cal.3d 510, overruled in People v. Birks, supra, 19 Cal.4th at pp. 123, 136.)
The Court of Appeal noted, "[a] conviction for battery alone fit precisely with the theory of defense . . . . [¶] . . . [¶] [D]efendant's theory of defense was perfectly consistent with a conviction of the related offense of battery but not of the charged offenses." (Santos, supra, 222 Cal.App.3d at p. 739.) Furthermore, it observed, "[b]y the same token, there was a basis in the evidence, other than an unexplained rejection of prosecution evidence, on which the jury could find the offense to be less than that charged." (Ibid.)This consisted of the defendant's testimony the victim had previously watched pornographic films that may have accounted for her descriptions of the carnal acts, which she attributed to the defendant, and the defendant's cousin's testimony he was at the apartment during the time of the purported sexual offenses and observed no such behavior. Finally, the court noted, "the offense of battery was closely related to the offenses charged and shown by the evidence." (Ibid., italics added.) It noted the People had presented extensive evidence of battery including testimony regarding physical assaults, concomitant injuries, and threats of additional physical assaults. (Ibid.) Thus, the appellate court in no way determined that, as a matter of law, battery was necessarily a lesser related offense of the charged crimes. Instead, it conducted an analysis of the facts adduced at trial in order to determine whether, in the case before it, the evidence showed that battery was a lesser related offense. While the appellate court found battery was, in that case, a lesser related offense of the charged crimes, and that the court erred in refusing to instruct as requested by the defendant, it found the error harmless. (Id. at pp. 739, 740.)
Ultimately, we find the rule distilled from these cases is that regardless of whether the parties below agree on the instruction, the court is only required to give an instruction on a lesser related offense where substantial evidence adduced at trial supports giving that instruction. Thus, even if the parties agree to the instruction, trial courts may conduct a factual analysis of the evidence to determine if such an instruction is warranted before giving it. Here, the court acted appropriately in refusing to instruct the jury on battery as a lesser related offense of lewd acts, because insufficient evidence was adduced below that defendant's intent in kissing the victim was anything other than an intent to arouse himself, the victim, or both. Defendant essentially posits a theory of battery which relies exclusively on "an unexplained rejection of prosecution evidence," a process expressly repudiated by the Santos court. (Santos, supra, 222 Cal.App.3d at p. 739.) As the court noted, the defense produced no evidence that the kissing was committed with anything other than an intent to arouse. Thus, the court acted within its discretion in determining that, regardless of the parties' alleged agreement, insufficient evidence supported instruction on battery as a lesser included offense.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J.
We concur:
HOLLENHORST
Acting P. J.
McKINSTER
J.