Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. 050706374
Ruvolo, P. J.
I. INTRODUCTION
Following a jury trial in which appellant Achi Ben Shalom denied his music student’s accusation that he touched her breast and genital area when she was approximately 10 years old, appellant was found not guilty of committing a lewd act on a child under the age of 14 years (Pen. Code, § 288, subd. (a)). Notwithstanding this acquittal, appellant was found guilty of the lesser included offenses of misdemeanor assault (§ 240) and misdemeanor battery (§§ 242/243, subd. (a).
All subsequent undesignated statutory references are to the Penal Code.
Notably, in this appeal, appellant concedes that the evidence supports his conviction of the lesser misdemeanor offenses because he admitted at trial that he rubbed the girl’s stomach over her clothes after she complained of a stomach ache, and he also gave her a shoulder/back massage. While appellant acknowledged that this touching was “not appropriate,” he claimed the touching was done without any sexual intent, and was done with the girl’s express consent.
On appeal, appellant contends that his testimony squarely raised the defenses of consent and mistake of fact; and he claims that the trial court committed prejudicial error by failing to instruct sua sponte on these defenses. Appellant additionally brings this issue before us by way of a writ of habeas corpus alleging his trial counsel was ineffective in failing to request jury instructions regarding consent (CALJIC No. 1.23) and mistake of fact (CALCRIM No. 3406), and by failing to argue to the jury that either consent or mistake of fact as to consent precluded conviction on the assault and battery charges. We agree that the court had a sua sponte duty to instruct on these defenses; consequently, we reverse appellant’s convictions for misdemeanor assault and battery.
Because we reverse appellant’s convictions based on the arguments made on appeal, we need not address the merits of the ineffective assistance claim made by appellant in his petition for writ of habeas corpus. (See People v. Ledesma (1987) 43 Cal.3d 171, 214-215.)
II. FACTS AND PROCEDURAL HISTORY
Jane Doe, who was 11 years old at the time of trial, testified about several incidents where she claimed appellant sexually touched her during private guitar lessons that appellant, her music teacher, conducted in his office at Tehiyah Day School, a private school in El Cerrito. She testified that appellant’s sexual misconduct with her began in October 2006 when appellant touched her breast over her clothing. This happened approximately three other times with the first touch lasting a short time––seconds at most––but increasing in time with each subsequent touch. She thought it “strange” but dismissed the incidents as accidents. During his testimony, appellant vehemently denied that he ever intentionally touched Jane Doe’s breast. However, he admitted viewing sexually explicit websites involving young teen girls on his work computer and finding them “arousing.”
Pursuant to section 293.5, the complaining witness is identified as Jane Doe throughout the record on appeal.
Of pertinence to this appeal, both Jane Doe and appellant testified about an incident occurring on November 9, 2006. While the testimony of appellant and Jane Doe differed in critical respects, both agreed that appellant placed his hand upon Jane Doe’s stomach after she complained of an upset stomach and that he gave her a shoulder/neck massage.
Jane Doe’s testimony confirmed that, when she said her stomach hurt during a private music lesson, appellant offered to massage her stomach. Jane Doe “didn’t know what it was,” so she said “okay.” After placing his hand on her stomach, appellant moved his hand below the elastic waistband of her pants and underneath her underwear. His fingers then reached into her pubic hair as he moved his hand around, although he never touched her genitalia. To make him stop, Jane Doe complained her shoulders hurt and asked him to massage her shoulders. Appellant withdrew his hand from underneath her underwear and gave her a quick shoulder massage. Jane Doe looked at the clock and said she needed to go.
According to appellant’s statement to police, which was admitted into evidence without objection, he applied “light pressure” with his hand “gently... moving” on Jane Doe’s stomach over her clothing after she complained about her stomach hurting. He claimed he did this with Jane Doe’s consent after he told her that this usually helped his daughter when she had a stomach ache. He recalled that Jane Doe responded negatively because “she did not like that [sic] stomach pressure that I gave her.” Then, at Jane Doe’s request, he gave her a neck massage that lasted “a few seconds.” Afterward, “[s]he seemed fine.... I think it was relaxing to her.”
Appellant denied that the touching was motivated by any sexual intent; instead, claiming that his actions were consistent with their close, affectionate relationship that involved frequent physical conduct. Their music lessons would typically end with Jane Doe giving appellant a hug; and during her testimony, Jane Doe recalled that she sometimes sat on appellant’s lap when they were looking for music on the computer. Evidence was presented that Jane Doe viewed appellant as a father figure, even calling him “abba,” which means “my dad” in Hebrew, and that she confided in him about her social life and relationships, including informing him about the onset of menstruation.
In submitting the case to the jury, the court gave the standard instructions for a violation of section 288, subdivision (a), which stated that appellant could be found guilty if he “willfully touched any part of a child’s body, either on the bare skin or through the clothing... with the intent of arousing, appealing to, or gratifying the lust, or sexual desires of himself or the child....” The jury was also told that it was no defense to this charge that the child may have consented to the lewd act.
The court also gave instructions on the lesser included offenses of misdemeanor assault and battery. The jury was instructed that to commit the crime of assault, appellant must willfully commit an act “which, by its nature, directly and probably would result in the application of physical force to a person....” The jury was further told that the terms “application of force” and “applied force” mean “to touch in a harmful or offensive manner.”
The court instructed the jury that appellant could be found guilty of battery if he “willfully touched JANE DOE in a harmful or offensive manner.” The jury was further told that the touching required for battery could be the “slightest touching” as long as it was “done in a rude or angry way.” Moreover, contact through clothing was “enough,” even if the touching did not “cause pain or injury of any kind.”
Notably, neither the instruction on assault nor the instruction on battery included the victim’s lack of consent as an element of the crime. Instead, consent is an affirmative defense that must be raised by the defendant. (See People v. Sanchez (1978) 83 Cal.App.3d Supp. 1 [defendant has the burden of raising a reasonable doubt that the defendant had a bona fide and reasonable belief that the victim impliedly consented and thereby would not be offended by the touching].)
The jury found appellant not guilty of violating section 288, subdivision (a), but guilty of the lesser included offenses of simple misdemeanor assault and battery. On September 21, 2007, the court dismissed the assault conviction pursuant to section 654 and suspended imposition of sentence on the battery count during a three-year period of probation, conditioned on appellant serving a 90-day county jail term, stayed pending appeal. In addition, the court ordered appellant to receive 52 weeks of counseling at Crossroads, and imposed further conditions. Appellant was not required to register as a sex offender pursuant to section 290.
The substantive differences between the crimes charged against appellant and the conduct they proscribe provides a rational explanation of the jury’s verdict. The nature of the series of acts described by Jane Doe were clearly sexual, and no reasonable jury could have concluded that appellant repeatedly touched Jane Doe on her breast and that he placed his hand near her genitalia as she testified, but nonetheless, find there was insufficient evidence to establish his liability for lewd conduct with a minor (§ 288, subd. (a)). However, even if the jury found Jane Doe’s testimony not credible, there remains a reasonable basis in the evidence for appellant’s convictions for misdemeanor assault and battery based on what occurred on November 9, 2006, as appellant described it, and not on what took place as Jane Doe described it. Consequently, in evaluating appellant’s conduct, we must keep in mind that he was not convicted of a sex crime. Instead, he was convicted of assault and battery for giving a 10-year-old girl a shoulder massage and rubbing her stomach after she complained of a stomach ache.
On September 27, 2007, appellant filed a notice of appeal. On August 19, 2008, appellant filed a petition for writ of habeas corpus.
III. Discussion
Based on his own admissions at trial, appellant concedes that the evidence in this case satisfied the requirements for misdemeanor assault and battery. He acknowledges: “[t]he evidence in this case established that [appellant] willfully rubbed Jane on her stomach (directly or through her clothing), and on her back/shoulders. The jury was told that contact through clothing was ‘enough,’ even if the touching did not ‘cause pain or injury of any kind,’ as long as the touching was ‘harmful or offensive.’ There was, of course, undisputed evidence that Jane was offended by the touching.” (Appellant’s record citations omitted.)
Nevertheless, in this appeal, appellant argues that his convictions must be reversed because the trial court had a duty to instruct, sua sponte, on the defenses of (1) consent and (2) mistake of fact as to consent. He claims this error was prejudicial because if the jury had been properly instructed that Jane Doe’s consent, or appellant’s good faith belief that she had consented, were possible defenses to the charges, his trial counsel could have credibly argued that his actions, though admittedly inappropriate, were not crimes.
“ ‘ “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.]’ ” (People v. Breverman (1998) 19 Cal.4th 142, 154.) “In the case of defenses,... a sua sponte instructional duty arises ‘only if it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant’s theory of the case.’ [Citation.]” (Id. at p. 157, italics omitted; accord, People v. Salas (2006) 37 Cal.4th 967, 982 (Salas); People v. Montoya (1994) 7 Cal.4th 1027, 1047.)
Appellant argues that the trial court had a duty to instruct sua sponte on the defenses of consent and mistake of fact because there was substantial evidence that Jane Doe had expressed no objection to appellant rubbing her stomach and shoulders, and appellant claimed he had a reasonable belief that she had consented, and thus would not be offended by the touching. We agree with appellant that his testimony was sufficient to raise these defenses. “When a defendant describes noncommunicative conduct by the victim from which consent is inferred, the testimony is relevant to prove actual consent and, also, to prove the defendant had reason to believe the victim consented. The effect of either of these two categories of evidence is to raise two theories of defense simultaneously: the defense of actual consent, and the defense of defendant’s belief the victim consented.” (People v. Burnham (1986) 176 Cal.App.3d 1134, 1144-1145; see also People v. Rivera (1984) 157 Cal.App.3d 736, 743 (Rivera).)
The fact that Jane Doe described a far different scenario than that described by appellant is irrelevant because we do not judge the credibility of the witnesses or the evidence raising the defenses. (Salas, supra, 37 Cal.4th at p. 982.) A trial court must instruct sua sponte on an affirmative defense if the record contains substantial evidence sufficient for a reasonable jury to find in favor of the defendant unless the defense is inconsistent with the defendant’s theory of the case. (Ibid.) In determining whether the evidence is sufficient to warrant a jury instruction, the trial court determines only whether “ ‘there was evidence which, if believed by the jury, was sufficient to raise a reasonable doubt....’ [Citations.]” (Ibid.) “The threshold is not high; it does not include a predetermination by the court of the credibility of witnesses and what evidence it believes or disbelieves. [Citation.]” (People v. Cole (2007) 156 Cal.App.4th 452, 484.) “ ‘ “ ‘Doubts as to the sufficiency of the evidence to warrant instructions should be resolved in favor of the accused.” [Citations.]’ [Citation.]” ’ [Citation.]” (Ibid.)
Appellant also insists that the defenses were not inconsistent with his theory of defense below. “The defense theory was not that [appellant] did not touch Jane, but that he did not touch her in the way she described, and did not touch her with the sexual intent required under section 288.... Adding the defenses of consent and mistake of fact as to the touching would have been perfectly compatible with the defenses used at trial.”
Significantly, respondent does not contest appellant’s assertion that the evidence was sufficient to raise both of these defenses and that the defenses were consistent with appellant’s theory of the case. Instead, respondent claims that appellant was not entitled to an instruction on consent or mistake of fact as to consent because “[g]enerally, as a matter of public policy, consent is not a defense to battery or assault....”
It is true that there are certain acts that so contravene public policy that consent is not recognized as a valid defense to an assault and battery charge. For example, voluntary mutual combat outside the rules of sport is a breach of the peace. Therefore, mutual consent is no justification and both participants may be found guilty of criminal assault and battery. (See People v. Lucky (1988) 45 Cal.3d 259, 291; 1 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Defenses, § 87, p. 426.) If, however, the contact is of an “ordinary physical contact” and does not threaten bodily harm, consent is an available defense. (People v. Samuels (1967) 250 Cal.App.2d 501, 513 (Samuels).)
In accordance with these principles, it has been determined that consent of the victim may render an otherwise unlawful touching to be lawful because “[w]here a defendant reasonably believes the touching constituting the alleged assault was consensual he cannot be guilty because there is nothing unlawful about the physical contact between the parties.” (Rivera, supra, 157 Cal.App.3d at p. 742; see also People v. Sanchez, supra, 83 Cal.App.3d Supp. 1, 3 [suggesting that “affirmative defense of a bone fide and reasonable belief by defendant that the ‘victim’ impliedly consented and thereby would not be offended by the touching” is available where defendant is charged with simple assault].)
In the present case, we conclude that appellant’s conduct was “ordinary physical contact” and not likely to result in great bodily harm. (Samuels, supra, 250 Cal.App.2d at p. 513.) Consequently, it would be permissible if engaged in with the consent of the other party. In so holding, we are sensitive to the fact that Jane Doe was a minor and appellant was an adult and her teacher. While respondent argues that “the law does not countenance a defense of consent or mistaken belief in consent” in a case like this involving physical contact between an adult and “a naïve 10-year-old child,” we find no indication that the law intends to put a cloud of potential criminality over consensual, non-sexual affectionate touching between adults and children. With regard to respondent’s grave expressions of concern about protecting children from sexual predators, we emphasize, once again, that appellant was acquitted of lewd conduct with a minor. Therefore, by its verdict, the jury necessarily found that appellant did not have the intent to arouse the sexual desires of himself or Jane Doe at the time he committed the touching.
Thus, we conclude that the defenses of consent and mistake of fact were available to appellant under these circumstances in which consent would preclude the conduct from being criminal. We further reject respondent’s contention that the trial court’s failure to instruct sua sponte on these defenses was harmless. Our Supreme Court has not yet decided which test of prejudice applies to the failure to instruct on affirmative defenses (Salas, supra, 37 Cal.4th at p. 984). However, even under the more lenient standard set out by People v. Watson (1956) 46 Cal.2d 818, 836, we find it is reasonably probable that appellant would have obtained a more favorable result if the jury had been provided a “legal framework against which it could apply [appellant’s] factual contentions” that he believed he had Jane Doe’s consent when he gave her a stomach and shoulder massage. (Rivera, supra, 157 Cal.App.3d at p. 744 [reversing assault with intent to commit rape conviction for failure to instruct on defendant’s good faith belief that the victim consented to his actions].)
While we reject respondent’s argument that Jane Doe was legally incapable of giving consent to the acts in question, we stress that the question of whether she lacked the capacity to consent in light of her age and whether appellant exercised undue influence over her will be live issues if appellant is retried. Among the elements that must be proved for consent, CALJIC No. 1.23, requires the person “must possess the mental capacity to make an intelligent choice whether or not to do something proposed by another person. [¶] Merely being passive does not amount to consent. Consent requires a free will and positive cooperation in act or attitude.”
Under the instructions as given, the jury had no reason to believe that consent was a defense to assault and battery, or that appellant’s reasonable and good faith belief that Jane Doe had consented was also a defense. In fact, the jury reasonably could have thought that appellant’s state of mind as to Jane Doe’s consent was an inappropriate subject of deliberation on the charges of assault and battery because, while the jury was expressly told that consent was not a defense to lewd conduct with a minor, the jury received no instructions on consent or mistake of fact as potential defenses in an assault and battery case.
We also reject respondent’s claim that the instructions given the jury “adequately guide[d] the jury in reaching factual determinations on those issues which would have been presented to the jury by the omitted instruction....” (People v. Jones (1991) 234 Cal.App.3d 1303, 1314.) Respondent claims it is “inconceivable” the jury would have reached a different result if they had been instructed on consent and mistake of fact because the existence of these defenses would be totally inconsistent with the jury’s finding of an “unwanted... harmful, rude, offensive, angry touching.”
However, the prosecution did not have to prove an “unwanted... harmful, rude, offensive, angry touching” in order to convict appellant of assault and battery. As reflected in the instructions given here, “ ‘[A]ny harmful or offensive touching constitutes an unlawful use of force or violence’ and thus a battery under section 243. [Citation.]” (People v. Pinholster (1992) 1 Cal.4th 865, 961.) The same standards apply to the instructions on assault. (See People v. Colantuono (1994) 7 Cal.4th 206, 216 [“assault is an incipient or inchoate battery; a battery is a consummated assault”].) Given the undisputed evidence that Jane Doe found the touching offensive, the jury had no choice but to convict appellant of assault and battery because they were given no guidance or legal framework on how to consider appellant’s testimony that he believed Jane Doe had consented. In light of the jury’s verdict in acquitting appellant of the principal offense, we are not convinced that the jury would have found appellant guilty of assault and battery if they had been properly instructed.
The portion of the relevant CALCRIM instructions that refers to “rude” or “angry” touching must be considered in context, i.e., that those words were used to explain that “even the slightest touching” may constitute a battery. Under any reasonable interpretation of the evidence, the conduct underlying these convictions was not a slight touching.
IV. DISPOSITION
The judgment is reversed based on the grounds argued in appellant’s appeal. Appellant’s petition for writ of habeas corpus is dismissed as moot.
We concur: Sepulveda, J., Rivera, J.