Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, No. DL033787 Ronald P. Kreber, Judge.
Richard Jay Moller, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton and A. Natasha Cortina, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Sills, P. J., Moore, J., and Aronson, J.
Appellant C. B. is a thirteen-year-old boy who had sexual relations with a thirteen-year-old girl. He was declared a ward of the juvenile court (Welf. & Inst. Code, § 602) and granted probation with 210 days in custody.
In the petition to declare appellant a ward of the juvenile court, it was alleged in count 1 that he committed lewd and lascivious acts on a child under the age of 14, and in count 4 of rape by use of drugs. The juvenile court found those allegations true and appellant does not contest those findings.
The petition further alleged in count 2 oral copulation of an unconscious person (Pen. Code, § 288a, subd. (f)), in count 3 sexual penetration by a foreign object of an unconscious person (Pen. Code, § 289, subd. (d)), and in count 5 rape of an unconscious person (Pen. Code, § 261, subd. (a)(4)). The common thread in these counts is that the victim was alleged to be unconscious when the crimes were committed. The juvenile court found, however, that the victim was conscious at the time. Accordingly it found the allegations in counts 2 and 5 not true. But for some reason the court found true the allegations of count 3 even though the allegations there, as in counts 2 and 5, could only be true if the victim had been unconscious.
Appellant argues, and the Attorney General concedes, that the juvenile court’s finding as to count 3 was clearly wrong because an essential element of the crime—unconsciousness of the victim—was missing. We reviewed the record on appeal and agree the juvenile court’s true finding of count 3 under Penal Code section 289, subdivision (d) was error.
The remedy, however, is not necessarily to reverse the true finding as to that count. The better approach is to reduce it to the lesser included misdemeanor offense of battery if the evidence supports the lesser charge but not the charged offense and the parties wish this court to exercise its discretion in this manner. (See People v. Stuedemann (2007) 156 Cal.App.4th 1, 9-10, fn. 6.) In making its findings regarding count 3, the juvenile court stated: “[Minor] stated to officers, ‘I fingered her.’ And with all these sex acts that were taking place, the court finds circumstantial evidence that that count was proved.” The court, as pointed out above, could not find that count true because an essential element of the crime was missing. But digital penetration constitutes a battery, a lesser included offense, and there is evidence (e.g., appellant’s admission to police) to support the court’s finding appellant “fingered her.”
Appellant asks this court either to reverse the true finding as to count 3, or modify the finding to a misdemeanor count of battery. The Attorney General agrees that the true finding in count 3 should be reduced to a misdemeanor battery. Given the parties’ acquiescence, we modify the dispositional order to reflect appellant committed a misdemeanor battery as a lesser included offense of count 3. As so modified the judgment is affirmed.