Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06F07542
NICHOLSON, Acting P. J.
An information accused defendant Anthony Gabay of 16 counts of lewd and lascivious acts with a child under age 14 (Pen. Code, § 288, subd. (a) ; counts one through fifteen and seventeen), and one count of forcible lewd acts on a child under age 14 (§ 288, subd. (b)(1); count sixteen). The information further alleged defendant committed the offenses against two or more victims. (§ 667.61, subd. (e)(5).)
Further statutory references are to the Penal Code unless otherwise indicated.
A jury convicted defendant of counts one, four through ten, thirteen, and fifteen through seventeen. The special allegation was found to be true. Defendant was acquitted of the remaining counts. He was sentenced to state prison for 60 years to life, consisting of four consecutive terms of 15 years to life on counts one, thirteen, fifteen, and sixteen. Concurrent terms were imposed on the remaining counts.
On appeal, defendant contends: (1) count seventeen must be dismissed because the statute of limitations had elapsed and was not revived by section 803, subdivision (f); and (2) count sixteen (forcible lewd acts with a child) must be reversed because the evidence supported a jury instruction on the lesser included offense of lewd acts with a child, but the instruction was neither requested nor given sua sponte. We affirm the judgment.
FACTS
Prosecution Case-in-chief
Twenty-year-old M.S. was born in March 1988 and was a college student at the time of trial. Her maternal aunt is married to defendant.
M.S. had not told anyone about defendant having molested her when she was a little girl because she thought that she had been the only victim, and she did not want to break up the family by getting defendant into trouble. She later learned that she was “not the only person who was hurt.” This referred to her cousins, E.F. and K.F., the nieces of defendant, who are the victims in counts one through fourteen.
The facts of counts one through fourteen are not at issue and need not be recounted.
From age four until age 12, M.S. lived in Daly City with her grandparents. They first lived in a house, but, when M.S. was 10 or 11 years old, they moved to an apartment complex. Defendant and his wife lived in a different unit at the complex. M.S. was a frequent visitor.
When M.S. was six or seven years old, defendant sometimes would rub lotion over her naked body. He would focus on her breast area and would pinch the outer lips of her vagina. She tried to dismiss his acts as being normal, but she noticed that no one else touched her in the manner that he did. His touching of her breasts and vagina made her feel uncomfortable because she knew that those were areas that other people were not supposed to touch.
On another occasion when she was 10 years old, M.S. was sleeping on the couch at defendant’s apartment. She awoke in the middle of the night and discovered that his hand was inside her pants and underwear, rubbing her vagina. (Count fifteen.) She pretended to be asleep. Hearing heavy breathing emanating from the television, she thought that he might be viewing a pornographic movie. Even at her young age, she was aware that he had a collection of pornographic movies on a stand in the living room.
Once, before M.S. was 12 years old, she and defendant played tennis and, after they finished, he directed her to take a bath. He climbed into the bathtub with her, wearing only his underwear. When they finished, she got onto a bed and lay down on her back with her legs hanging off the end of the bed. He held down at least one of her hands, opened her vagina’s outer lips, and rubbed his penis against her vagina. He tried to kiss her by placing his tongue in her mouth at the same time his penis was against her vagina. She held her teeth together so that he could not put his tongue in her mouth. After he finished, he used his towel to wipe the inside of her vagina. (Count sixteen.)
M.S. indicated that as she got older, defendant would sometimes pinch her breasts as if it were a normal thing to do. Sometimes he touched the clothing that covered her breasts, and sometimes he reached under the clothing and groped or pinched her bare skin.
On one occasion M.S. was playing a video game on the floor of defendant’s apartment. She was lying on her stomach, and he got on top of her, placing his chest on her back. Then he groped her breasts from behind. (Count seventeen.) She kept playing the game, because there was nothing else that she could do.
M.S. told a couple of friends what defendant had done to her. She did not tell anyone in her family about it until she was a senior in high school. At that time, her young cousins, E.F. and K.F., confided to her that defendant had molested them. M.S. then revealed to them that he had also molested her.
The parties stipulated that “on March 29th, 2007, [M.S.] reported to law enforcement that she was a victim of a sexual crime specified in [P]enal [C]ode section 803(f) while under the age of 18 years. [¶] The complaint was filed within one year of that report. [¶] The statute of limitations specified in sections 800, 801, and 801.1 had expired as to the crimes charged. [¶] The alleged crimes involved substantial sexual conduct, to wit, defendant’s hand to victim’s vagina, defendant’s penis to victim’s vagina, and defendant’s hand to victim’s breast.”
Defense
Defendant testified that he was not sexually attracted to M.S. He recalled playing in the swimming pool with her and touching her waist while trying to throw her in the water, but it was not sexual in nature.
When defendant moved to Daly City, M.S. frequently was at his home. He sometimes saw her after she had bathed and frequently assisted her in drying off, but there was nothing sexual about his conduct. He never rubbed any of his body parts against any of her body parts. He admitted that he had rubbed baby oil or lotion on M.S. while she was naked, and he recalled rubbing it on her chest and vagina. However, he did not do it in order to be sexually aroused.
Defendant had no recollection of watching a pornographic movie with M.S. or of placing his hand on her vagina or inside her pants while she was sleeping. He occasionally gave M.S. a back rub, and he unintentionally may have touched her breast.
He denied ever grabbing or pinching her breasts, although he may have bumped into her various times while operating a video camera inside his small house.
DISCUSSION
I
Defendant contends count seventeen must be dismissed because the statute of limitations had elapsed and was not revived under section 803, subdivision (f). He notes that, contrary to the parties’ stipulation, the act of “defendant’s hand to victim’s breast” does not constitute “substantial sexual conduct” within the meaning of sections 803, subdivision (f)(2)(B), and 1203.066, subdivision (b). The Attorney General concedes that this is so.
Section 803, subdivision (f), provides in relevant part:
Section 1203.066, subdivision (b), provides: “‘Substantial sexual conduct’ means penetration of the vagina or rectum of either the victim or the offender by the penis of the other or by any foreign object, oral copulation, or masturbation of either the victim or the offender.”
The parties thus agree that section 803, subdivision (f), did not extend the limitation periods specified in sections 800, 801, and 801.1, which, according to the parties’ stipulation, had expired. Defendant reasons that, by entering into the stipulation as to count seventeen, his trial counsel rendered prejudicially ineffective assistance.
The Attorney General responds that the parties’ stipulation was contrary to law in a second respect: the limitation specified in section 801.1 had not expired. He is correct.
Section 801.1 provides in relevant part: “(a) Notwithstanding any other limitation of time described in this chapter, prosecution for a felony offense described in Section... 288..., that is alleged to have been committed when the victim was under the age of 18 years, may be commenced any time prior to the victim’s 28th birthday.”
M.S. was born in March 1988. Count seventeen was alleged to have occurred on or about and between March 11, 1995, and March 11, 1999, when she was under the age of 14 years. Count seventeen (then designated count eighteen) was first alleged in an amended consolidated information filed in May 2007, when M.S. was 19 years old, well prior to her 28th birthday. Thus, count seventeen was timely filed under section 801.1, subdivision (a). Defense counsel’s stipulation that count seventeen was timely filed pursuant to a different, inapplicable statute could not have been prejudicial. (E.g., People v. Avena (1996) 13 Cal.4th 394, 418.)
Defendant replies that the People ordinarily are bound by their stipulations, concessions, or representations, regardless of whether counsel was the district attorney or the Attorney General. (Citing Pitts v. County of Kern (1998) 17 Cal.4th 340, 360 (Pitts).) Pitts involved the issue whether a district attorney is a state official when preparing to prosecute and when prosecuting criminal violations of state law. (Ibid.) The court cited People v. Mendez (1991) 234 Cal.App.3d 1773 (Mendez), for the proposition that “‘[t]he People are ordinarily bound by their stipulations, concessions or representations regardless of whether counsel was the Attorney General or the district attorney.’” (Pitts, supra, at p. 360, citing Mendez, supra, at p. 1783.) Defendant reasons that, under Pitts, the Attorney General must be bound by the district attorney’s stipulation that the section 801.1 period had expired. We disagree.
By focusing on one aspect of the stipulation, defendant loses sight of its overall purpose. The gist of the stipulation is that count seventeen was timely filed and thus can be prosecuted. On appeal, the Attorney General contends for exactly that result. It is defendant, not the Attorney General, who contends for the opposite of what had been stipulated -- that count seventeen is barred by the applicable statute of limitations.
Defendant effectively argues that, although he can renounce (or not) components of the stipulation that, on reflection, are contrary to law, the Attorney General remains bound by all components regardless of their infirmity. Nothing in Pitts or Mendez suggests or compels this strange result. Count seventeen was timely prosecuted and need not be dismissed.
II
Defendant contends count sixteen (forcible lewd acts with a child) must be reversed because the evidence supported a jury instruction on the lesser included offense of lewd acts with a child, but such instruction was neither requested nor given sua sponte. We are not convinced.
“‘“It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury’s understanding of the case.” [Citation.] That obligation has been held to include giving instructions on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present [citation], but not when there is no evidence that the offense was less than that charged. [Citations.] The obligation to instruct on lesser included offenses exists even when as a matter of trial tactics a defendant not only fails to request the instruction but expressly objects to its being given. [Citations.] Just as the People have no legitimate interest in obtaining a conviction of a greater offense than that established by the evidence, a defendant has no right to an acquittal when that evidence is sufficient to establish a lesser included offense. [Citation.]’ [Citations.]” (People v. Breverman (1998) 19 Cal.4th 142, 154-155.)
Section 288, subdivision (a), is a lesser or necessarily included offense of section 288, subdivision (b). (People v. Ward (1986) 188 Cal.App.3d 459, 472.) The latter includes the additional element of force, violence, duress, menace, or fear of immediate and unlawful bodily injury.
“In [section 288,] subdivision (b), the element of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person is intended as a requirement that the lewd act be undertaken without the consent of the victim. ([People v. Cicero (1984) 157 Cal.App.3d 465], at pp. 475-476, 477-484.) As used in that subdivision, ‘force’ means ‘physical force substantially different from or substantially greater than that necessary to accomplish the lewd act itself.’ [Citations.]” (People v. Neel (1993) 19 Cal.App.4th 1784, 1787; accord, People v. Bolander (1994) 23 Cal.App.4th 155, 161.)
Under these authorities, the “obligation to instruct” on the “lesser included offense[]” of section 288, subdivision (a) arises only if there is “evidence that the offense was less than that charged.” (People v. Breverman, supra, 19 Cal.4th at p. 154; People v. Ward, supra, 188 Cal.App.3d at p. 472.) Specifically, there must be evidence “that the lewd act” was not “undertaken without the consent of the victim.” (People v. Neel, supra, 19 Cal.App.4th at p. 1787; People v. Bolander, supra, 23 Cal.App.4th at p. 161.) More simply put, the obligation to instruct on section 288, subdivision (a) arises only if there was evidence that M.S. consented to the sexual act. (Ibid.) Consent could be express, or it could be implied from evidence that the force used was neither substantially different from, nor substantially greater than, that necessary to accomplish the lewd act itself.
In this case, there was no evidence of express consent. Moreover, consensually opening outer vaginal lips and rubbing a penis against the vagina requires minimal, if any, force. Thus, almost any force employed to commit those acts will be substantially greater than necessary.
M.S. testified, “I don’t remember if I was laying [sic] down or sitting. I don’t remember. [¶] But I know that at some point he took one of his hands and he put it up like this. I don’t remember if it was -- if my other hand was involved. I don’t remember where my other hand was. [¶] I don’t know if it was up as well. But one of his hands was holding down at least one of my -- my hands.”
M.S. continued, “And then he used his hand to push the side of his towel a little. And then he used his hands to open the lips of my vagina slightly. And he put his penis in and just kind of rubbed.”
This exchange followed:
“Q. [BY DEFENSE COUNSEL] And you say that he’s holding your hand down flat on the bed?
“A. Yes.
“Q. So that your... entire arm is... connected -- or flush against the bed; right?
“A. Yes.”
In his testimony, defendant denied that he ever rubbed any of his body parts against any of her body parts.
Thus, the evidence was that defendant either (1) used enough force to pin M.S.’s arm to the bed while he performed the lewd act, or (2) did not perform any lewd act with M.S.
No evidence suggested that consensual performance of the lewd act required that M.S.’s arm be pinned down to the bed. No rational juror could have “decided that [defendant] committed lewd conduct but that the force involved was not greater than necessary to accomplish the act itself.” There was no evidence that the offense was less than that charged; no duty to instruct the jury on section 288, subdivision (a); and no ineffective assistance for having failed to request such an instruction.
DISPOSITION
The judgment is affirmed.
We concur: ROBIE, J. BUTZ, J.
“(1) Notwithstanding any other limitation of time described in this chapter, a criminal complaint may be filed within one year of the date of a report to a California law enforcement agency by a person of any age alleging that he or she, while under the age of 18 years, was the victim of a crime described in Section... 288....
“(2) This subdivision applies only if all of the following occur: [¶] (A) The limitation period specified in Section 800, 801, or 801.1, whichever is later, has expired. [¶] (B) The crime involved substantial sexual conduct, as described in subdivision (b) of Section 1203.066, excluding masturbation that is not mutual.”