Opinion
E050055 Super.Ct.No. FVA800865
10-06-2011
THE PEOPLE, Plaintiff and Respondent, v. JESSE OGAZ, Defendant and Appellant.
Kurt David Hermansen, 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, Steve Oetting, and Collette C. Cavalier, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from the Superior Court of San Bernardino County. Dwight W. Moore, Judge. Affirmed as modified.
Kurt David Hermansen, 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, Steve Oetting, and Collette C. Cavalier, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found defendant and appellant Jesse Ogaz (defendant) guilty as charged of committing one count of sodomy with a child under 10 years of age (defendant's then five-year-old great-grandson) in violation of Penal Code section 288.7, subdivision (a) (count 1) and two counts of oral copulation on a child under the age of 10 (defendant's five-year-old great-grandson and his then eight-year-old great-granddaughter) in violation of Penal Code section 288.7, subdivision (b) (counts 2 and 3). The trial court sentenced defendant to serve a term of 40 years to life in state prison based on the jury's guilty verdicts.
Defendant raises numerous claims of error in this appeal, all of which are directed at counts 1 and 2, the counts that involve John Doe, defendant's great-grandson. First, defendant contends that statements John Doe made to a nurse and the investigating police officer were inadmissible hearsay and therefore the trial court erred in admitting those statements into evidence. Next, defendant contends the evidence was insufficient to support the jury's verdict on count 1, the sodomy charge, because there was no evidence of penetration. Defendant's third claim of error is that the trial court had a sua sponte duty to instruct the jury on the crime of attempted sodomy as a lesser included offense to the charged crime. As his fourth claim of error, defendant contends he was denied his state and federal constitutional rights to be personally present and to be represented by counsel when the court reporter read back testimony the jury requested during deliberations. Defendant contends, as his fifth claim of error, that he was denied the effective assistance of counsel at trial. As his final contention defendant claims the cumulative effect of the errors committed in this case was prejudicial and requires reversal of the judgment.
For reasons we explain below, we agree with defendant's claim that his trial attorney should have objected to the police officer's testimony recounting John Doe's hearsay statements about whether defendant's penis penetrated John Doe's anus. We also agree with defendant's claim that the evidence warranted an instruction on the lesser included offense of attempted sodomy because the evidence on the issue of penetration at best was minimal. Therefore, we will reduce defendant's conviction on count 2 from sodomy to an attempt to commit sodomy and will remand this matter to the trial court for resentencing.
FACTS
In the morning on May 10, 2008, defendant was visiting his granddaughter M.R. and her family at their home. M.R. was in the kitchen making breakfast while her eight-year-old daughter, Jane Doe, and five-year-old son, John Doe, were in John Doe's bedroom with defendant. M.R. noticed the door to John's bedroom was closed and no sounds were coming from the room. When she opened the bedroom door, M.R. saw her son lying face up on the bed. His pants were pulled down below his knees and his legs were up in the air. Defendant was leaning over John Doe, supporting himself with his hands on the bed, one on each side of John Doe's body, and he was thrusting his pelvis toward John's bare buttocks. Jane Doe was under the bed with her face buried in the carpet. M.R. screamed for the children to get out of the bedroom.
About a minute after M.R. and the children left the bedroom defendant followed them into the kitchen where he said to M.R. that "he was not doing what it appeared that he was doing." M.R. told defendant to get out of her house. Defendant acted as if he had not heard M.R. and just kept drinking from the coffee cup he had in his hand when he walked out of John Doe's bedroom. M.R. screamed at defendant, asking him how he could do that to her children. Defendant did not respond; he was "[v]ery calm, like if nothing was [sic]wrong." John and Jane were in the kitchen with M.R. while she screamed at defendant. Both children were crying. M.R. assured them they had not done anything wrong. After about 10 minutes, defendant left M.R.'s house.
John Doe, who was seven years old at the time of trial, testified in pertinent part that Pop is his grandpa. Sometimes John and his family visit Pop in Las Vegas and sometimes Pop comes to their house. When asked if Pop had ever hurt him, John said "yes." When asked how Pop hurt him, John answered, "My feelings." John explained that Pop hurt his feelings "[b]y what he done to me." John confirmed that when Pop "hurt his feelings" John was in his bedroom; he and his sister had been under the bottom bunk bed of John's bed eating chips and watching TV when Pop walked into the bedroom. John jumped out from under the bed to scare Pop. Jane stayed under the bed.
The attorneys and witnesses referred to defendant as both Pop and Pops during trial. We use Pop in this opinion.
John was reluctant at trial to talk about what happened after he scared Pop, but eventually he testified that Pop said "the S word," "the s-e-x" word, which John said spells sex. John also testified that when Pop pulled down John's pants and underwear, John said no, and tried to pull them back up. John said that Pop pushed him down onto the bed, pulled his legs up, and put "his thing in my butt." John explained that Pop's "thing" is his "privacy," and confirmed it is "where you go to the bathroom out of." When the prosecutor asked John, "Do you know what that word is," John said, "yes." The word is "pee."
The prosecutor asked John to "tell us exactly what Pop would do with his pee," and John answered, "He would hump me." Humping, according to John, is "[w]hen you stick your private in somebody's butt." John confirmed that is what Pop did to him, he stuck his private in John's butt. When asked how he felt when Pop did that, John said, "Sad." John confirmed that it hurt, that he felt the pain "around my butt," on the outside but he did not feel any pain on the inside of his butt. John did not know whether Pop's "privacy" ever went inside John's butt. When the prosecutor asked, "Did his privacy ever touch your butt hole," John said, "No." John confirmed that Pop did not do anything else to him that day.
When the prosecutor asked if Pop had ever done anything to him before the time in John Doe's bedroom, John said, "No." John remembered talking to the SART nurse, Ms. Del Degan, and talking with a police officer after Pop "hurt his feelings." John also confirmed that when he and his family visited Pop in Las Vegas, Pop would hurt John's feelings by "[d]oing the same stuff that he did in [John's] bedroom." The prosecutor asked John, "So how many times would you say Pops hurt your feelings?" John answered, "Hmm, since I was in preschool." John testified that he was four years old in preschool. John confirmed that in Las Vegas Pop would stick his privacy in John's butt, but not in his butt hole. John denied that Pop ever kissed him or ever asked John to do anything to Pop. John did not know how many times Pop had stuck his privacy in John's butt. However, he confirmed that it had been happening since John was four years old. John testified that he did not tell his parents because Pop "said he was going to hurt me."
SART stands for sexual assault response team.
Jane Doe testified at trial that she was under the bottom bunk in John's bedroom watching TV when her mother came into the bedroom. Jane said her mother was angry when she came into John's bedroom, but Jane could not remember what happened after that, except that her mother was angry at Pop. Jane confirmed that Pop hurt her when he would visit at her house, but she did not want to say how he hurt her. Jane told the prosecutor that she did not want to remember what happened. After the prosecutor explained the importance of her testimony, Jane acknowledged that she remembered a little but did not want to talk about it. Jane did confirm that Pop only hurt her at her house, not at his house in Las Vegas. Jane insisted that she did not remember when asked specific questions about how Pop hurt her. Jane would not point to or describe the part of her body Pop hurt. Jane acknowledged she spoke to a police officer but did not remember telling the officer how defendant had hurt her. Jane also said she told her cousins, but she could not remember her cousins' names or did not want to say their names. Jane confirmed that she told the police officer that Pop had hurt her "front part" but when asked to point to that part of her body, Jane declined, saying she was embarrassed. Eventually, Jane agreed to point to the pertinent body part on the prosecutor. Jane also confirmed that Pop had hurt the part of her body that she goes "pee pee out of." Jane remembered telling the police officer the parts of her body that Pop hurt, but she could not remember at trial what she had said. Jane did not know when Pop started touching her, but she knew it was before she was nine years old.
Mirella Del Degan, a sexual assault nurse examiner, performed a SART exam on John Doe and Jane Doe on May 10, 2008. Del Degan testified that neither Jane nor John had any injuries; John's anal area was normal, and Jane's hymen was normal. Del Degan was unable to determine whether penetration had occurred with either child. During the examination, Del Degan asked John and Jane questions. John told her that defendant, whom he and his family call Pop, had sex with him; that "He puts his tongue in my mouth. He sucks my private," which according to Del Degan is John's term for his penis. John also told Del Degan that defendant "puts his pee in my bottom," which refers to John's "buttock, anal area." Del Degan testified that Jane told her "'Pop rubs her privates with his hand.' She said, 'It's happened in the past.' And she also said, 'Today he said he wanted me to - - he would give me money if I had s-e-x with him'" Del Degan confirmed that Jane actually spelled the word sex.
Del Degan also testified that John "calls his male private part his pee."
Detective Angela Frydendall, a police officer assigned to her department's sex crimes and child abuse unit, interviewed John Doe on May 10, 2008. John told the detective that Pop put his private No. 1 (Pop's penis) in John's private No. 2 (John's butt). John said Pop had done this at John Doe's house in John's bedroom and also in Las Vegas. When Detective Frydendall asked if Pop put his private inside or outside John's private on May 10, 2008, John replied, "'Inside.' And then [the detective] asked him if it hurt, he said, 'Only the zipper [on Pop's pants] hurt.'" Detective Frydendall also testified that John said Pops forced John to open his mouth and suck Pop's pee before Pop "put his private No. 1" in John's butt. John also told Detective Frydendall that Pop sucked John's penis before Pop put his penis in John's butt on May 10, 2008. When he asked John how many times Pop had stuck his penis in John's butt, Detective Frydendall answered, "Um I asked him to estimate and he said 50 times. But then he later said between five, maybe over ten times." John told the detective that he put his mouth on Pop's penis three times and Pop only once put his mouth on John's penis.
Detective Frydendall also interviewed Jane Doe on May 10, 2008, in the detective's office. Jane told the detective that Pop would put his hand down her pants under her underwear and would rub her front private, which Jane indicated by pointing was her "front vaginal area." Jane could not give the detective a number but said that "it happened a lot," both at her house and at his house in Las Vegas. Jane told Detective Frydendall that Pop once inserted his finger in her vagina and that it hurt. Another time defendant made her touch his penis. Defendant also offered her money for sex.
Three of defendant's other great-granddaughters, ages 11, 9, and 7, also testified at trial that defendant had sexually molested them. The details are set out in the parties' respective briefs. Because those details are not directly relevant to any issue defendant raises in this appeal, we will not recount them here.
Additional facts pertinent to the issues defendant raises on appeal will be recounted below in our discussion of the issues.
DISCUSSION
We begin our discussion with defendant's claim that the trial court erroneously admitted John Doe's hearsay statements into evidence at trial.
1.
ADMISSIBILITY OF HEARSAY STATEMENTS
Defendant contends the trial court erred when it permitted Detective Frydendall and Mirella Del Degan, the SART nurse, to testify at trial about statements John Doe made to them while he was being interviewed and examined. Defendant contends those statements are hearsay and not within any exception to the rule that hearsay is inadmissible. The Attorney General contends defendant did not object at trial to the testimony of either witness and consequently has forfeited the issue for review on appeal. We agree with the Attorney General.
The record reflects that during a break in Jane Doe's testimony, a discussion occurred in chambers after which the trial court made a finding on the record that statements Jane Doe and John Doe made to the SART nurse were admissible under Evidence Code section 1253, assuming the appropriate foundation is laid regarding the timing and purpose of her interview. The trial court's ruling suggests defense counsel did object, at least to the admissibility of nurse Del Degan's testimony recounting the statements John made during her examination of him. On appeal, defendant contends the prosecutor did not lay the necessary foundation. However, defense counsel did not assert the foundation objection at trial. Defense counsel also did not object to Detective Frydendall's testimony recounting John Doe's statements.
"It is the general rule that questions relating to the admissibility of evidence will not be reviewed on appeal in the absence of a specific and timely objection at the trial on the ground sought to be urged on appeal . . . ." (People v. Welch (1972) 8 Cal.3d 106, 114-115.) Defendant did not assert the appropriate objection at trial. Defendant raises trial counsel's failure to object as part of an ineffective assistance of counsel claim. Therefore, we will address the evidence issues in that context.
2.
REPORTER'S READBACK OF TESTIMONY TO JURY
During deliberations the jury twice asked the trial court for testimony to be read back to them. Defendant contends he was denied his state and federal constitutional rights to be represented by counsel and to be personally present at critical stages of trial because the record on appeal does not reflect whether his attorney was advised of the jury's requests, and if so whether defense counsel waived her right to be present, or whether defendant waived his right to be present.
The record pertinent to this issue is minimal. It consists of the notes from the jury, the first dated November 25, 2009, at 2:49 p.m., asking for the transcript of the testimony of Detective Frydendall and nurse Del Degan regarding John Doe, and the second dated November 30, 2009, at 11:07 a.m., asking "to hear testimony of John Doe." The record also includes the clerk's minutes which note the time the court reporter started and ended each readback of the requested testimony.
On our own motion we directed the court clerk to supplement the record with any written waiver by defendant of his right to be notified and/or present during the readback of witness testimony. In the absence of a written waiver, our order directed the trial court to settle the record regarding whether trial counsel was notified of the jury's requests and whether defendant waived his presence for the readback of testimony. In retrospect, we recognize that order was improvidently issued. Therefore, we will not consider the filings in response to that order, or any objections to those filings, in resolving this issue on appeal.
A defendant's right to be present during the readback of testimony is statutory. (See Pen. Code, § 1138 ["After the jury have retired for deliberation, if there be any disagreement between them as to the testimony . . . they must require the officer to conduct them into court. Upon being brought into court, the information required must be given in the presence of, or after notice to, the prosecuting attorney, and the defendant or his counsel, or after they have been called."].) That statutory right can be waived. (See Pen. Code, § 977, subd. (b)(1) ["In all cases in which a felony is charged, the accused shall be present at the arraignment, at the time of plea, during the preliminary hearing, during those portions of the trial when evidence is taken before the trier of fact, and at the time the imposition of sentence. The accused shall be personally present at all other proceedings unless he or she shall, with leave of court, execute in open court, a written waiver of his or her right to be personally present . . . ."].)
Because the record does not include a written waiver of defendant's right to be present, and the reporter's transcript does not include a discussion of that issue, we must assume the trial court did not obtain the necessary waiver. As a result, defendant's absence during the readback of testimony violated Penal Code section 977. "But the error was 'statutory only and thus "is reversible only if it is reasonably probable the result would have been more favorable to defendant absent the error." [Citation.]' [Citation.]" (People v. Avila (2006) 38 Cal.4th 491, 598.)
Defendant contends that any number of things might have gone wrong during the readback of testimony, and because we cannot tell from this silent record, we must presume those things occurred and therefore his absence was prejudicial. We are not at liberty to presume error from a silent record. In fact, we are obliged to do precisely the opposite. (See Evid. Code, § 664 [Presumption that official duty has been regularly performed].) Because defendant cannot demonstrate prejudice from this silent record, we must conclude no prejudice resulted from the trial court's error in failing either to obtain a written waiver of defendant's personal presence, or absent such waiver, to have defendant present during the readback of testimony. "For the same reason, his absence [and his attorney's apparent absence] at the readback did not offend his constitutional rights to due process or a fair and reliable trial." (People v. Avila, supra, 38 Cal.4th at p. 598.)
3.
INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant contends he was denied the effective assistance of counsel at trial because his trial attorney (1) did not file any motions; (2) waived opening statement; (3) did not call any defense witnesses; (4) did not argue in closing that the prosecution failed to prove the sodomy charge because there was no evidence of penetration; and (5) did not object to the hearsay statements of John Doe recounted in the testimony of Detective Frydendall and Mirella Del Degan.
A. Standard of Review
In order to establish a claim of ineffective assistance of counsel, defendant must "demonstrate (1) counsel's performance was deficient in that it fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel's deficient representation prejudiced the defendant, i.e., there is a 'reasonable probability' that, but for counsel's failings, defendant would have obtained a more favorable result. [Citations.] A 'reasonable probability' is one that is enough to undermine confidence in the outcome. [Citations.]" (People v. Dennis (1998) 17 Cal.4th 468, 540-541, citing, among other cases, Strickland v. Washington (1984) 466 U.S. 668.) In evaluating counsel's actions at trial, "A court must indulge a strong presumption that counsel's acts were within the wide range of reasonable professional assistance. [Citation.] Thus, a defendant must overcome the presumption that the challenged action might be considered sound trial strategy under the circumstances. [Citation.]" (People v. Dennis, supra, at p. 541.) Moreover, "When a defendant on appeal makes a claim that his counsel was ineffective, the appellate court must consider whether the record contains any explanation for the challenged aspects of the representation provided by counsel. 'If the record sheds no light on why counsel acted or failed to act in the manner challenged, "unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation," [citation], the contention must be rejected.'" (People v. Mitcham (1992) 1 Cal.4th 1027, 1058.),
B. Analysis
Defendant does not identify the motions trial counsel should have filed in order to effectively represent him in the trial court. Although he notes specifically that trial counsel did not file in limine motions, defendant does not specify the subject of those motions. Absent such a showing, defendant has not demonstrated trial counsel's performance was deficient.
Defendant also challenges trial counsel's decision to waive opening statement and to not present any witnesses. Both decisions are "matters of trial tactics and strategy which a reviewing court generally may not second-guess." (People v. Mitcham, supra, 1 Cal.4th at p. 1059.) "In any event, because the record does not reveal why counsel elected not to present a defense, defendant's claim must fail." (Ibid.)
Defendant's criticism notwithstanding, trial counsel's closing argument was not deficient. Trial counsel's argument, even though very brief, focused on reasonable doubt stemming, first, from the testimony of four of defendant's five great-grandchildren that they had each practiced what they were going to say before coming to court and, next, from Nurse Del Degan's testimony that neither John Doe nor Jane Doe showed any sign of physical trauma or injury. Trial counsel also pointed out that Jane and John Does' testimony had been influenced by their parents. "The decision of how to argue to the jury after the presentation of evidence is inherently tactical; counsel's approach comes within the permissible range of competent representation." (People v. Freeman (1994) 8 Cal.4th 450, 498.)
The only aspect of defendant's ineffective assistance of counsel claim we must address is his assertion that trial counsel should have objected on the basis of hearsay to various statements John Doe made to Detective Frydendall and Nurse Del Degan. The trial court, as noted above, found that John Doe's statements to Nurse Del Degan were admissible under Evidence Code section 1253 which "provides, in substance, that hearsay statements of a child victim describing any act, or attempted act, of child abuse or neglect are admissible if the statement was made for purposes of medical diagnosis or treatment and describes medical history as reasonably pertinent to diagnosis or treatment. Such evidence is inadmissible if the statement was made under circumstances such as to indicate its lack of trustworthiness. (Evid. Code, § 1252.)" (People v. Brodit (1998) 61 Cal.App.4th 1312, 1330-1331 (Brodit).)
Defendant contends the prosecutor did not lay the pertinent foundation and, therefore, his trial counsel should have objected to John Doe's statements to Nurse Del Degan. We disagree.
Nurse Del Degan testified at trial that she is a sexual assault nurse examiner and as such is "called out by different law enforcement agencies to perform forensic medical examination [sic] on sexual assault victims." The purpose of a SART exam according to Del Degan "is twofold. One is to make sure that the patient is medically all right, that there's [sic] no injuries that need to be evaluated on a medical basis. And the other part of it is to collect evidence and evaluate for possible sexual assault and sexual abuse and, again, to collect evidence for the crime lab." Del Degan testified that she examined John Doe on May 10, 2008, about 1:20 p.m.
Del Degan's testimony establishes that the SART exam has two purposes one of which is medical diagnosis and treatment. In order to diagnose and treat an injury, Del Degan would have to ask her patient, in this case John Doe, what happened to him. In short, the prosecutor laid the necessary foundation for John Doe's statements to nurse Del Degan to be admissible under Evidence Code section 1253.
The court in Brodit noted, under the federal rule of evidence on which Evidence Code section 1253 is patterned, that the identity of the person responsible for causing the injury is not admissible unless that person is a member of the victim's family or household, in which case the person's identity is pertinent to treatment. (Brodit, supra, 61 Cal.App.4th 1331.) We adopted that same view in In re Daniel W. (2003) 106 Cal.App.4th 159, 165 [Fourth Dist., Div. Two].)
Moreover, John Doe's statements to Nurse Del Degan and Detective Frydendall were also admissible as prior inconsistent statements, i.e., a statement inconsistent with the witness's trial testimony. Under Evidence Code section 1235, "Evidence of a statement made by a witness is not made inadmissible by the hearsay rule if the statement is inconsistent with his testimony at the hearing and is offered in compliance with Section 770." Evidence Code section 770 requires that the witness be given an opportunity to explain or deny the statement. Prior inconsistent statements are admissible as substantive evidence, i.e., for the truth of the matter asserted in the statement. (People v. Johnson (1992) 3 Cal.4th 1183, 1219.)
At trial John Doe denied that defendant did anything other than put his penis in John's butt. As previously noted, John said otherwise to Nurse Del Degan. John Doe also told Detective Frydendall that defendant put his mouth on John's penis and forced John to put his mouth on defendant's penis. The testimony of Del Degan and Detective Frydendall recounting John Doe's prior statements was admissible under Evidence Code section 1235 as prior inconsistent statements made by John.
According to defendant, in order for a statement to be admissible as a prior inconsistent statement, the prosecutor must show John was being evasive at trial by feigning an inability to remember what happened. Defendant is wrong in his view that an inconsistent statement is inadmissible only if the witness is being evasive. Deliberate evasiveness is one circumstance in which a witness's prior statements are admissible. (See People v. Green (1971) 3 Cal.3d 981, 988-989.) Another is when the witness's trial testimony is inconsistent with a prior statement. (See Evid. Code, § 1235.) The evidence recounted above shows John Doe's trial testimony was inconsistent with his prior statements to Detective Frydendall and Nurse Del Degan. Therefore, those prior statements were admissible under Evidence Code section 1235, defendant's contrary claim notwithstanding.
We reach a different conclusion, however, with respect to Detective Frydendall's testimony recounting John's statements about whether defendant's penis penetrated John's anus. In our view, John's statements to Detective Frydendall are not inconsistent with John's testimony at trial. As previously noted, John testified that defendant put his penis in John's butt. At trial Detective Frydendall also testified that John Doe told her defendant put his penis in John Doe's butt. When the prosecutor asked if John Doe said defendant's penis "actually went into his butt hole," Detective Frydendall consulted her report and responded, "Yes. I asked the victim - or I'm sorry - John Doe if the suspect put his private inside or outside his private No. 2 [which, according to Detective Frydendall, is what John Doe called his "butt"], and John Doe replied, 'Inside.' And then when I asked him if it hurt, he said, 'Only the zipper hurt.'"
Detective Frydendall's testimony was that John Doe said defendant put his private inside John Doe's butt. That is what John Doe also said at trial. Therefore, John Doe's statements to Detective Frydendall are not inconsistent with his trial testimony and were inadmissible at trial. Defendant's trial attorney should have objected that John Doe's statements to Detective Frydendall were inadmissible hearsay.
To prevail on his ineffective assistance of counsel claim, defendant must not only show trial counsel's performance was deficient but also that trial counsel's oversight was prejudicial, i.e., "there is a 'reasonable probability' that, but for counsel's failings, defendant would have obtained a more favorable result. [Citations.] A 'reasonable probability' is one that is enough to undermine confidence in the outcome. [Citations.]" (People v. Dennis, supra, 17 Cal.4th at pp. 540-541.)
John Doe's statements as recounted by Detective Frydendall were pertinent to the sodomy charge alleged in count 1. Sodomy is defined in Penal Code section 286, subdivision (a) as "sexual conduct consisting of contact between the penis of one person and the anus of another person. Any sexual penetration, however slight, is sufficient to complete the crime of sodomy." In order for the jury to find defendant guilty of sodomy the evidence had to show that defendant's penis slightly penetrated John Doe's anus. The prosecution's evidence on that issue consisted entirely of Detective Frydendall's testimony. That testimony did not establish penetration; it showed only that defendant put his penis in John Doe's "butt." John Doe distinguished his "butt" from his "butt hole," as evidenced by his testimony, recounted above, that defendant did not put his penis in John Doe's "butt hole." In short, Detective Frydendall's testimony recounting John Doe's hearsay statements was not prejudicial because it did not prove anything more than what John Doe established through his own trial testimony, namely that defendant put his penis in John Doe's "butt." Consequently, we must reject defendant's ineffective assistance of counsel claim because defendant has failed to demonstrate that trial counsel's oversight was prejudicial in that it is reasonably probable the jury would have reached a result more favorable to defendant if trial counsel had objected and the jury had not heard the hearsay statements. (People v. Dennis, supra, 17 Cal.4th at pp. 540-541.)
4.
LESSER INCLUDED OFFENSE INSTRUCTION
Defendant contends the trial court had a sua sponte duty to instruct the jury on the lesser included offense of attempted sodomy. We agree.
A. Standard of Review
"A trial court must instruct on a lesser included offense if substantial evidence exists indicating that the defendant is guilty only of the lesser offense. [Citation.]" (People v. Manriquez (2005) 37 Cal.4th 547, 584.) On appeal, "we employ a de novo standard of review and independently determine whether an instruction on the lesser included offense . . . should have been given." (Ibid.)
B. Analysis
The only evidence of penetration presented in this case is Detective Frydendall's unsolicited statement on cross-examination in response to defense counsel asking whether the detective asked John Doe "how he knew what sex was." Detective Frydendall answered, "I think later on I did. It was either him or Jane Doe that I did. But he proceeded to tell me that, 'He put his pee in my butt hole.'" All the other evidence was that defendant put his penis in John Doe's "butt." The evidence presented at trial shows that John Doe distinguished between his "butt hole," which presumably means his anus, and his "butt," which presumably means the cheeks of his buttocks. In addition, John Doe denied that defendant put his penis in John Doe's anus. This evidence is sufficient to show defendant only attempted to commit sodomy but did not complete the crime. The trial court therefore should have instructed the jury on the lesser included offense of an attempt to commit sodomy.
That statement is sufficient to support the jury's verdict finding defendant guilty of sodomy. Therefore, we reject defendant's challenge to the sufficiency of the evidence on that charge.
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Failure to instruct on a lesser included offense requires reversal of a conviction on the greater offense if the error was prejudicial under the standard set out in People v. Watson (1956) 46 Cal.2d 818. (People v. Breverman (1998) 19 Cal.4th 142, 178.) Therefore, we must determine whether it is reasonably probable the jury would have reached a result more favorable to defendant if the trial court had instructed on the lesser included offense. (Ibid.) As recounted above, the evidence on the issue of penetration at best was minimal. John Doe denied that defendant put his penis in John Doe's anus; John Doe testified that defendant put his penis in John Doe's butt. The evidence that John Doe distinguished his anus, which he referred to as his butt hole, from his butt cheeks, which he referred to as his butt, leads us to conclude it is reasonably probable the jury would have found defendant guilty of the lesser included offense of attempted sodomy if they had been instructed on that crime. In other words, we conclude the failure to instruct on the included offense was prejudicial in this case.
Because the evidence is undisputed that defendant attempted to commit sodomy, we will not reverse defendant's sodomy conviction. Instead we will reduce his conviction on count 1 to an attempt to commit a violation of Penal Code section 288.7, subdivision (a). (See Pen. Code, § 1181, subd. 6 ["When the verdict or finding is contrary to the law or evidence, but if the evidence shows the defendant to be not guilty of the degree of the crime of which he was convicted, but guilty of a lesser degree thereof, or of a lesser crime included therein, the court may modify the verdict, finding or judgment accordingly without granting or ordering a new trial, and this power shall extend to any court to which the cause may be appealed."].)
DISPOSITION
The judgment is modified by reducing defendant's conviction on count 1 to an attempt to commit sodomy in violation of Penal Code sections 664/288.7, subdivision (a). The matter is remanded to the trial court for resentencing. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKinster Acting P.J. We concur: King J. Miller J.