Opinion
D068815
12-21-2016
THE PEOPLE, Plaintiff and Respondent, v. STEVEN DANIEL JIMENEZ, Defendant and Appellant.
Dacia A. Burz, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Seth M. Friedman, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. JCF31678) APPEAL from a judgment of the Superior Court of Imperial County, Diane B. Altamirano, Judge. Affirmed. Dacia A. Burz, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Seth M. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.
Steven Jimenez was convicted by a jury of one count of oral copulation of a child 10 years old or younger (Pen. Code, § 288.7, subd. (b); R.R.) and two counts of forcible lewd acts upon children under 14 years old (§ 288, subd. (b)(1); R.R. & L.R.). The jury determined that Jimenez had committed the forcible lewd act offenses against more than one victim. (§ 667.61, subds. (b), (e)(4).). He was sentenced to a total term of 45 years to life, consisting of 15 years to life on the oral copulation conviction (§ 288.7, subd. (b)), and two consecutive terms of 15 years to life for the forcible lewd acts convictions (§ 288, subd. (b)(1)).
All further statutory references are to the Penal Code unless noted. Section 288, subdivision (b)(1) prohibits the commission of a lewd or lascivious act on a child under 14 "by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person."
On appeal, Jimenez initially contends the trial court erroneously failed to instruct the jury, sua sponte, on lesser included offenses (LIOs) arguably included within the two charged forcible lewd acts counts of section 288, subdivision (b)(1) (i.e., an LIO of § 647.6, subd. (a)(1) [annoying or molesting each child]). (People v. Lopez (1998) 19 Cal.4th 282, 287 (Lopez) [ruling that § 647.6, subd. (a) is not an LIO offense of a nonforcible lewd touching under § 288, subd. (a)].) Jimenez makes a similar argument as to the section 288, subdivision (b)(1) count concerning L.R., by claiming the court erroneously failed to instruct the jury sua sponte on a lesser included offense, a nonforcible lewd act (§ 288, subd. (a)).
With respect to the charged oral copulation count as to R.R., Jimenez claims the court erroneously failed to instruct the jury, sua sponte, on a lesser included offense he argues applied here (i.e., an LIO of attempted forcible sexual penetration in violation of § 289). (§ 288.7, subd. (b).) Jimenez argues each such error was harmful and of constitutional dimension, because the trial court erroneously failed to allow the jury to consider every material issue of fact presented by the evidence. (Chapman v. California (1967) 386 U.S. 18, 24; Lopez, supra, 19 Cal.4th 282, 288.)
We find no merit in his contentions. The jury was properly instructed and we affirm the judgment.
I
FACTUAL BACKGROUND
In 2008, R.R. and L.R. were ages 9 and 6 when child protective services (CPS) investigated drug and other problems their mother, L.G. (Mother), was having. Her children were removed from Mother's custody. She went to a shelter, while R.R., L.R. and their brother were placed with her adult niece, a cousin of the boys, D.J. (Cousin). R.R. was in the third or fourth grade when he and his brothers were living with Cousin, and L.R. was in "kinder."
Cousin's brother, Jimenez, was 20 years old in 2008 and lived at their mother Maria's house. Cousin often visited Maria's house, and she brought R.R., L.R. and their brother there at least three times per week. They played there with other young relatives and often visited Jimenez in his room, which was equipped with video game consoles and books.
15-year-old R.R. testified at trial that while he and L.R. were playing outside during that year, Jimenez would sometimes invite them to play video games in his room. After a while, Jimenez would kick out the other boys, saying it was R.R.'s turn to play. Jimenez would stay in the room. On several occasions, he used his hands to pull down R.R.'s pants and then touched the boy's penis with his hands and mouth. He told R.R. that he would beat him up if he told anyone. Once or more when R.R. tried to get away, Jimenez bit his penis. Jimenez was tall, big, and chunky, and R.R. did not want him to do those things to him. R.R. did not tell anyone because he was afraid Jimenez would beat him up.
Sometimes, Jimenez put R.R. in the bedroom closet when he finished touching him. Sometimes he put both of the boys in there, once overnight. It was dark and they waited for Cousin to show up.
At times, Jimenez threw things at R.R. while they were in the bedroom, for no reason that R.R. understood. Another time, Jimenez knocked R.R.'s head into the wall and told Cousin that they were playing when R.R. ran into the wall and got a bump on his head. Once, R.R. and the other boys were playing outside when Jimenez hit him all over with a stick. R.R. did not remember whether they were all roughhousing at the time.
According to L.R.'s testimony, given when he was 12, he and his brothers were taken by Cousin to Maria's home "almost every day" during the week. The boys and a younger cousin often played video games in Jimenez's bedroom. At the time, he thought Jimenez looked nice and cool, although he was big and sometimes scary. About three times, Jimenez touched L.R.'s genitals, scaring and hurting him. They were in the bedroom when Jimenez pulled down L.R.'s shorts and underwear and used his hand to touch and squeeze L.R.'s penis or testicles. It hurt L.R. a little and he cried. Sometimes R.R. was there too. L.R. also remembered that Jimenez sometimes seemed mad and hit him or R.R., and sometimes put both L.R. and R.R. in his bedroom closet. When L.R. told Cousin what was happening in the bedroom, she told him he was lying since "her brother wouldn't do that." Later, L.R. told Mother what was happening to him.
One day at the end of the year that the boys lived with Cousin, Jimenez was sitting down in his bedroom and holding R.R. up in the air. R.R.'s pants were pulled down and Jimenez was in the process of trying to put his mouth on R.R.'s penis, when Jimenez's 18-year-old sister O.D. came into the room and surprised them. Jimenez threw R.R. onto the bed, and both O.D. and R.R. left the room. O.D. immediately went to the shelter where Mother was staying and told her about it. Mother arrived and R.R. told her that Jimenez "was playing with [him] and sucking on it." After that, the boys did not live with Cousin any more.
Mother did not tell anyone what R.R. and L.R. told her, because she was afraid it would interfere with regaining custody of her children, which she did in late 2009. She observed during the next few years that R.R. seemed depressed and "shut down with a lot of anger."
In 2013, R.R. and L.R. were at Bible study taught by members of their church (church brothers), and they told the men that Jimenez had touched and played with their private parts. R.R. testified that he felt angry about the way he was treated by Jimenez. The church brothers told CPS, whose representatives told Mother that she had to report it to police. She then did so.
After the report to CPS, police detective Alfredo Hernandez started investigating it. He was unable to make contact with Jimenez at his home. A few days later, two police officers were allowed entry and they went up to Jimenez's bedroom. He was locked and barricaded inside and threatening to set the room on fire. They were able to persuade him to open the door and he was taken to the hospital.
At the hospital, Detective Hernandez conducted a recorded interview of Jimenez. He told Jimenez he was under arrest and read him his rights. Hernandez asked Jimenez what had happened at the time O.D. walked in on him. First, Jimenez said he did not want to talk about it and he was going to kill himself eventually. When Hernandez asked Jimenez whether he had been touched inappropriately when he was younger, Jimenez said, "[t]hey told you that too[]." He said he had been touched the same way that he had touched R.R., when he was about the same age, and he was full of anger and "wanted someone else to feel what I felt." Even though he understood it was unfair, his feeling was that "if I did something to him I would, the - the thing that happened to me will go away from me to someone else." He now felt bad for doing those things to his cousin, because of how bad he felt when it happened to him. He said he was full of bits of rage and could not control himself, because of what had happened to him as a kid. For that reason, he hit his sisters and had hurt somebody on a bus.
Jimenez told the interviewing detective that his memory of what happened that day was vague. He said he had a flashback of what had happened to him and he stopped before putting R.R.'s penis in his mouth, just before his sister walked in. Earlier, he had just undressed R.R. twice, and he did not ever touch L.R.
At trial, testimony was taken from R.R., L.R., Mother, and the police officers. A bench warrant was out for O.D. as a witness, but she could not be found. The jury viewed the videotape of Hernandez's interview with Jimenez. The prosecutor prepared a version of jury instructions that the defense found to be satisfactory. They included CALCRIM No. 225 on circumstantial evidence of intent. In CALCRIM No. 1111, the jury was given the elements of the offense of lewd acts on children, accomplished through the use of force that was "substantially different from or substantially greater than the force needed to accomplish the act itself." This instruction also defined the use of duress to accomplish the act, as meaning a direct or implied threat of force, violence, danger, hardship or retribution. In CALCRIM No. 1128, the jury was told about the elements of oral copulation with a child, defining it as "any contact, no matter how slight, between the mouth of one person and the sexual organ or anus of another person. Penetration is not required."
At argument, defense counsel focused mainly on denying that any required continuous course of conduct had been proven against his client in violation of section 288.5, subdivision (a), since the boys' testimony was somewhat generic about the time frames involved. After deliberations, the jury convicted Jimenez of both forcible lewd acts counts, as well as the oral copulation count. It acquitted him of counts 4 and 5, the continuous sexual abuse charges.
In appealing the judgment, Jimenez does not raise claims of insufficiency of the evidence to support the convictions (with one exception, the element concerning L.R. of force or duress; § 288, subd. (b); pt. IV, post).
II
RULES REGARDING DUTY TO INSTRUCT ON LESSER INCLUDED OFFENSES
"[A] trial court errs if it fails to instruct, sua sponte, on all theories of a lesser included offense which find substantial support in the evidence. On the other hand, the court is not obliged to instruct on theories that have no such evidentiary support." (People v. Breverman (1998) 19 Cal.4th 142, 162 (Breverman).) The existence of " 'any evidence, no matter how weak' will not justify instructions on a lesser included offense, but such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is 'substantial enough to merit consideration' by the jury. [Citations.] 'Substantial evidence' in this context is ' "evidence from which a jury composed of reasonable [persons] could . . . conclude[]" ' that the lesser offense, but not the greater, was committed." (Ibid., second italics added.)
" 'A criminal defendant is entitled to an instruction on a lesser included offense only if [citation] "there is evidence which, if accepted by the trier of fact, would absolve [the] defendant from guilt of the greater offense" [citation] but not the lesser.' " (Lopez, supra, 19 Cal.4th 282, 288.)
If testimony is reasonably susceptible to a jury's finding of a lesser offense, a sua sponte duty to instruct on that offense arises. If not, the jury may properly be presented only with the elements of the greater offense. In such a case, the evidence would support only a finding of guilt or no guilt, as charged. (People v. Leal (2009) 180 Cal.App.4th 782, 792 (Leal) [no LIO instruction required "where the evidence shows that if the defendant is guilty, he is guilty of the greater offense"].)
As an appellate court, we independently review whether the trial court improperly failed to instruct on a lesser included offense. (People v. Souza (2012) 54 Cal.4th 90, 113; People v. Mendoza (2015) 240 Cal.App.4th 72, 80 (Mendoza).) Two tests have been developed for determining the relationship of a charged offense and a lesser included offense. Under the statutory elements test, a lesser offense is included in the greater offense when the statutory elements of the greater offense include all the statutory elements of the lesser offense, such that the greater offense cannot be committed without commission of the lesser offense. (People v. Birks (1998) 19 Cal.4th 108, 117.) "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." (People v. Booker (2011) 51 Cal.4th 141, 181, italics added.)
An alternative test for determining the relationship of a charged offense and a lesser included offense looks to the allegations in the accusatory pleading. (See People v. Licas (2007) 41 Cal.4th 362, 366.) A reviewing court does not consider the evidence as produced at trial when analyzing the relationship of a charged offense and a possible lesser included offense, under either the elements or the accusatory pleading test. (People v. Chaney (2005) 131 Cal.App.4th 253, 256.)
III
LESSER INCLUDED OFFENSES: TWO COUNTS OF FORCIBLE LEWD ACTS
Jimenez argues the trial court committed reversible error by failing to instruct the jury regarding forcible lewd acts, counts 2 and 3, about potential lesser offenses under section 647.6, subdivision (a), of annoying or molesting the children. He claims the jury could have had a reasonable doubt on whether he entertained a lewd intent when touching R.R. and L.R., and instead found that his behavior objectively "constituted acts of annoyance or molestation within the proscriptions of section 647.6, subdivision (a)." (Lopez, supra, 19 Cal.4th at p. 287.)
A. Comparison of Section 288, Subdivision (b) and Proposed LIO
Although the language of section 288, subdivision (b)(1) describes the potential manner of commission of a lewd act on a child in different ways, using the term "and" (e.g., "by use of force . . . duress, menace, and threat of great bodily harm" [italics added]), the courts have interpreted this provision broadly, for purposes of applying the tests for determining if an instruction on a lesser included offense is warranted. (People v. Lopez (2005) 129 Cal.App.4th 1508, 1532-1533 ["When a crime can be committed in more than one way, it is standard practice to allege in the conjunctive that it was committed every way. Such allegations do not require the prosecutor to prove that the defendant committed the crime in more than one way."]; People v. Moussabeck (2007) 157 Cal.App.4th 975, 981 (Moussabeck) [when the accusatory pleading describes the crime in its statutory language, but in the conjunctive, the allegation is treated as being in its statutory disjunctive].)
Section 288, subdivision (b)(2) similarly prohibits the commission of lewd acts by a caretaker upon a dependent person. It was not alleged that Jimenez was the caretaker of either of these children. For our purposes, we shall utilize a generic reference to section 288, subdivision (b), without any need to distinguish between the two varieties of prohibitions in section 288, subdivision (b)(1) and (2). We use the same approach in discussing section 647.6, subdivision (a), since there is no need here to distinguish between the two varieties of prohibitions in it (its subd. (a)(1) refers to children, while its subd. (a)(2) refers to younger looking adults believed by defendants to be children).
The purpose of the proposed LIO, section 647.6, subdivision (a), is to protect children "from being annoyed or molested by an adult motivated by an unnatural or abnormal sexual interest." (People v. Shaw (2009) 177 Cal.App.4th 92, 103 (Shaw).) "[T]here can be no normal sexual interest in any child and it is the sexual interest in the child that is the focus of the statute's intent." (Ibid.; italics omitted.)
In Lopez, supra, 19 Cal.4th 282, 294, the court concluded that section 647.6, subdivision (a), is not a lesser included offense of section 288, subdivision (a), under either the elements test or the accusatory pleading test. "[N]ot every touching with lewd intent will produce the objective irritation or annoyance necessary to violate section 647.6." (Lopez, supra, at p. 290.) Thus, an objective test must be applied to determine whether a defendant's outwardly observable conduct amounted to the type of annoyance or molestation forbidden by section 647.6. (Lopez, supra, at p. 290.) " 'Annoy' and 'molest' ordinarily relate to offenses against children, with a connotation of abnormal sexual motivation. The forbidden annoyance or molestation is not concerned with the child's state of mind, but rather refers to the defendant's objectionable acts that constitute the offense." (Ibid.) A violation of section 647.6, subdivision (a) is committed by "an act objectively and unhesitatingly viewed as irritating or disturbing, prompted by an abnormal sexual interest in children." (Lopez, supra, at p. 290; Shaw, supra, 177 Cal.App.4th 92, 103.) It is possible to violate this statute by annoying or molesting conduct that falls short of a touching, if the abnormal sexual motivation can be proven. (Lopez, supra, at p. 289.)
By comparison, "Section 288, subdivision (a), requires a touching, even one innocuous or inoffensive on its face, done with lewd intent." (Lopez, supra, 19 Cal.4th at p. 290.) It follows, "Under the elements test for lesser included offenses, the criminal conduct that section 288, subdivision (a), prohibits could occur without necessarily also violating section 647.6, subdivision (a)." (Lopez, supra, at p. 290.) As a matter of law, section 647.6, subdivision (a) is not a lesser included offense of section 288, subdivision (a), since the elements differ. (Lopez, supra, at pp. 290, 292.)
B. Application of LIO Principles
Jimenez's LIO arguments mainly focus on evidence about his motivation to commit the charged acts, as being different from a lewd intent as described in section 288. The jury heard Jimenez's interview with Detective Hernandez and was put on notice of his position that he was full of rage from being molested as a child and he believed that doing the same things to another child might make his anger go away.
Jimenez concedes that forcible touching of children as alleged is objectively annoying. He reasons that because of this similarity, an LIO instruction under section 647.6, subdivision (a) was appropriate as a matter of law. Even though conduct in violation of section 647.6, subdivision (a) has an abnormal sexual motivation, the Lopez analysis of that offense still requires objective evaluation of the charged conduct, without consideration of the defendant's intent. (Lopez, supra, 19 Cal.4th at p. 291.) Jimenez seems to argue that the evidence, including his denials and claims that his conduct was ambiguous in nature, could have properly supported an LIO instruction for objective evaluation of his acts.
The Supreme Court in Lopez did not address LIOs in the context of a forcible lewd touching offense, but rather discussed the defendant's conduct of touching and persuading the child to cooperate with his sexually motivated behavior, as a violation of section 288, subdivision (a). (Lopez, supra, 19 Cal.4th at p. 286.) Jimenez claims the distinctions in Lopez do not necessarily apply to a forcible lewd act offense under section 288, subdivision (b), and argues the court's application of the LIO elements test and the accusatory pleading test have left that instructional question open. (Lopez, supra, at pp. 293-294.)
When focusing on the alleged intent of a defendant charged under section 288, we look to the analysis in People v. Martinez (1995) 11 Cal.4th 434 (Martinez). "Whether a particular touching is 'lewd' and criminal under section 288 cannot be determined separate and apart from the actor's intent. The nature or form of the act circumstantially bears on this determination . . . ." (Martinez, supra, at p. 438.) The court stated that violations of section 288 require that the defendant have a present intent regarding sexual gratification, at the time the touching occurs. (Martinez, supra, at pp. 444, 452.) Relevant factors going toward proof of a defendant's intent may include "the relationship of the parties [citation], and any coercion, bribery, or deceit used to obtain the victim's cooperation or avoid detection." (Id. at p. 445.)
As a matter of law, it is improper to treat lewd acts, and any forcibleness used to accomplish them, as the same element to be proven under section 288, subdivision (b). (People v. Babcock (1993) 14 Cal.App.4th 383, 388 (Babcock); People v. Bolander (1994) 23 Cal.App.4th 155, 158-159, 160 (Bolander) ["In order to establish 'force' within the meaning of subdivision (b) of section 288, the prosecution must show the defendant 'used physical force substantially different from or substantially greater than that necessary to accomplish the lewd act itself.' "].) Even with this distinction in mind, the reasoning of Lopez does not indicate that the Supreme Court would have reached different conclusions with regard to charged forcible lewd acts. In that case, the court was not required to consider facts about force being utilized in a sexually motivated touching of the child, and it determined it was not necessary to reach the substantial evidence issue of whether that trial's evidence had warranted instructions on the lesser offense. (Lopez, supra, 19 Cal.4th at p. 294.) It concluded that in the abstract, proof of objectively annoying conduct is unnecessary to sustain a conviction of nonforcible lewd acts under section 288, subdivision (a), since that focus should be on evidence tending to show a subjective lewd intent of the perpetrator when touching the child. (Lopez, supra, at pp. 290-292.)
For purposes of applying the LIO elements test, we see no principled reason for treating lewd acts accomplished by force in a different manner from considerations about the legal consequences of nonforcible lewd acts on a child. The same basic concerns about the nature of the conduct and the intent of the perpetrator arise for charges under either section 288, subdivisions (a) or (b). The reasoning of Lopez indicates that it is possible for a greater offense under section 288, subdivision (b) to be committed with the statutorily specified intent, without the same type of conduct satisfying the elements of the misdemeanor offense under section 647.6, subdivision (a). (Lopez, supra, 19 Cal.4th at p. 290.)
In People v. Smith (2013) 57 Cal.4th 232 (Smith), the Supreme Court was first required to discuss the elements test in determining whether a sua sponte instructional duty arose concerning lesser offenses, but found that test was not dispositive, and therefore also considered the language of the accusatory pleading. (Id. at p. 242.) In that case, the use of the accusatory pleading test was appropriate because additional facts beyond the statutory language were pled to supplement the statute (explaining how it was allegedly violated in a different way; ibid.). However, the court did not abandon or restrict the use of the elements test, as Jimenez seems to suggest. (Id. at pp. 241-245.)
Alternatively applying the accusatory pleading test, we cannot conclude that any legal basis has been shown for the lesser included instruction, as now requested on appeal. No particularized allegations were added to the amended information about the manner of commission of the offenses charged in counts 2 and 3, in such a manner as to raise legal issues about the availability of a lesser included offense as a matter of law. Jimenez's argument that he made a showing about the "twisted" type of intent he had at the time does not support a conclusion that the same elements are present in both types of offenses.
C. Lack of Substantial Evidence to Support LIO
The existence of " 'any evidence, no matter how weak' will not justify instructions on a lesser included offense." (Breverman, supra, 19 Cal.4th 142, 162.) The prosecutor acknowledged to the jury that Jimenez had suggested in his interview with the detective that he had other motivations for his conduct, that were not lewd but were somehow wishful thinking. The prosecutor argued that was not an acceptable defense.
For a charge of section 647.6, subdivision (a) to be presented to the jury, evidence would be required to show that Jimenez's acts were motivated by an unnatural or abnormal sexual interest toward children generally. (Shaw, supra, 177 Cal.App.4th 92, 104.) The jury would also have to be able to conclude from the evidence that there was another, more innocuous explanation for the conduct toward the boys, so that it might be deemed just objectively annoying or molesting. In support of his argument that substantial evidence supported the giving of such a lesser included offense instruction, Jimenez claims there was no testimony on whether he became physically aroused or was masturbating while he was handling or playing with the boys' genitalia, thus possibly weakening the showing that he had a lewd intent at the time.
The testimony given here was not reasonably susceptible to a finding that the lesser offense was committed. (Leal, supra, 180 Cal.App.4th 782, 792.) An objective consideration of the evidence supports a finding that Jimenez had the mental state justifying a conviction of section 288, subdivision (b), when engaging in the conduct described, and that it included the use of force or duress. He used his greater strength and threats to hold R.R. to pull down his pants, to make him submit to manual touching and oral contact with his penis or else be beaten up or bitten. The testimony likewise showed Jimenez was able to manipulate L.R.'s genitals by using words, deeds and body language that put the boy into a sustained state of fear and intimidation. From the evidence of Jimenez's sexually charged touching behavior, the jury could infer the requisite lewd intent was present, as well as the use of force and/or duress. Where the evidence reasonably supports the conclusion that the defendant behaved in a sexually predatory fashion, "no purpose other than sexual gratification reasonably appears." (Martinez, supra, 11 Cal.4th 434, 452.)
This record does not contain substantial evidence to support a conclusion that Jimenez's conduct violated section 647.6, subdivision (a) but not section 288, subdivision (b). The nature of his acts was not so ambiguous as to support a jury finding that they were only annoying in nature, within the meaning of section 647.6, subdivision (a), or that they were committed with abnormal sexual motivation within the meaning of that section, a motivation that was qualitatively different from a lewd intent as prohibited by section 288. The trial court correctly instructed the jury about the elements of section 288, subdivision (b), including lewd intent. Without a finding of error, no harmless error issues arise.
IV
LESSER INCLUDED OFFENSE OF LEWD ACT ON A CHILD: ABSENCE OF FORCE
A. Section 288, Subdivisions (a) and (b)
In arguing error for failure to give a lesser included offense instruction on the charge concerning L.R., Jimenez essentially argues there was insufficient evidence to support the element of force or duress on this section 288 conviction of lewd acts on a child. We review the evidence presented to the jury on this charge.
In his testimony, L.R. described how he was scared and crying in the bedroom when Jimenez touched his genitals, at least three times. L.R. did not remember if Jimenez talked to him while pulling down his shorts and underwear, then using a hand to touch L.R.'s penis or testicles. When Jimenez squeezed and touched L.R.'s genitals, it hurt a little. L.R. did not want the touching to happen as it did and he cried.
Sometimes six-year-old L.R. was scared of Jimenez, who seemed big to him, and at other times, L.R. thought he looked "nice" and "cool." At times in the bedroom, Jimenez seemed mad when he hit L.R. with his hand, but L.R. did not know why. It kind of hurt. At other times, Jimenez put L.R. and R.R. into his dark bedroom closet and closed the door on them, without explaining why. They cried and then after a while, opened the closet door and left. L.R. did not remember how long he was in the closet or how many times it happened. When he told Cousin what was happening to him in Jimenez's room, she did not believe him. Later on, L.R. told Mother what had happened.
B. Analysis: No Substantial Evidence of Commission of LIO
Section 288, subdivision (a) provides that any person who willfully "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, is guilty of a felony." (Martinez, supra, 11 Cal.4th 434, 452.) Where the lewdly motivated touching is accomplished "by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person," section 288, subdivision (b) is chargeable.
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.) Thus, proof of only nonforcible lewd acts in violation of section 288, subdivision (a) would support convictions of lesser included offenses of the charged forcible lewd acts. (§ 288, subd. (b); Ward, supra, at p. 472.)
Jimenez claims that the evidence at trial supported the giving of an instruction that invoked section 288, subdivision (a), to allow the jury to consider whether he committed a lesser included offense of nonforcible lewd acts on L.R. According to Jimenez's interview, he did not touch L.R. in any manner. He suggests that even if he did hit L.R., it was at different times and not necessarily during any sexual touching. Also, it was unclear whether L.R. physically tried to resist, or if this was merely preliminary "grooming" activity. (See Babcock, supra, 14 Cal.App.4th 383, 387 [evidence of a victim's resistance is not required to prove forcible sexual assault, but resistance is a relevant factor to assess whether force was used to accomplish a lewd act].)
The problem with this lesser included offense argument is the lack of any substantial evidence that Jimenez's touching of L.R. was unaccompanied by duress or force. (Breverman, supra, 19 Cal.4th 142, 162.) The existence of " 'any evidence, no matter how weak' will not justify instructions on a lesser included offense." (Ibid.) We must separately analyze the proof that lewd acts occurred, and the evidence about how and whether force was used to accomplish them. (Bolander, supra, 23 Cal.App.4th 155, 158-159 [§ 288, subd. (b) proof requires showing defendant " 'used physical force - substantially different from or substantially greater than that necessary to accomplish the lewd act itself' "].)
There was no substantial evidence here of any nonforcible or apparently consensual touching. (Lopez, supra, 19 Cal.4th at p. 293.) Evidence from L.R. was presented to the jury that he, a younger and smaller boy, believed that he had no alternative to submitting to Jimenez's unwanted touching and squeezing of his genitals to the point of pain, because L.R. understood that he would suffer from force or violence if he did not submit in that manner. Jimenez did not demonstrate that only ambiguous verbal communications took place. The evidence showed that Jimenez used more force or duress than the lewd touching itself would have required. (Bolander, supra, 23 Cal.App.4th at pp. 158-159; Babcock, supra, 14 Cal.App.4th at pp. 385-386.)
Where there is no evidence that the offense committed by the defendant was less than the charged offense, the trial court is not required to instruct on such a lesser included offense. (People v. Booker, supra, 51 Cal.4th 141, 181.) This is a question of law for the appellate court. (Mendoza, supra, 240 Cal.App.4th at p. 80.) On this record, Jimenez would either be guilty of the greater offense of forcible lewd conduct or not guilty. (Leal, supra, 180 Cal.App.4th 782, 792.) The trial court was not required to give an instruction on a lesser offense of nonforcible lewd touching. Without error, there is no reason to discuss harmless error issues.
V
LESSER INCLUDED OFFENSE OF ORAL COPULATION
WITH A CHILD; NO FINDINGS OF ERROR
Jimenez further contends the trial court should have instructed the jury that attempted forcible sexual penetration in violation of section 289 was a lesser included offense of count 1 of the information, since there were two possible types of violations enumerated there. The prosecutor alleged Jimenez violated section 288.7, subdivision (b) by willfully and unlawfully engaging in "oral copulation/sexual penetration, . . . as defined in [§ 289], with [R.R], a child who was 10 years of age and younger."
Section 289 proscribes "an act of sexual penetration when the act is accomplished against the victim's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person." (§ 289, subd. (a)(1)(A)-(C).) --------
The accusatory pleading rule requires "sua sponte instruction on a lesser offense that is necessarily included in one way of violating a charged statute when the prosecution elects to charge the defendant with multiple ways of violating the statute," but it does not "depend on an examination of the evidence adduced at trial." (Smith, supra, 57 Cal.4th 232, 244.) However, substantial evidence is still required of the commission of a lesser offense, without the conduct likewise amounting to commission of the greater offense, in order for the LIO instructional duty to arise. (Ibid.)
We consider on a de novo basis whether the claimed instructional error occurred. (Mendoza, supra, 240 Cal.App.4th 72, 80.) The conjunctive language in count 1, referring to both section 288.7, subdivision (b), and to the definitions in section 289, allowed the prosecution to attempt to prove either of those violations. (Moussabeck, supra, 157 Cal.App.4th at p. 981 [LIO tests treat conjunctive allegations as statutory disjunctive, depending on evidence adduced].) However, the information did not allege facts to spell out all the elements of sexual penetration. (See Smith, supra, 57 Cal.4th 232, 240.)
As defined in section 289, subdivision (k)(1), sexual penetration is "the act of causing the penetration, however slight, of the genital or anal opening of any person or causing another person to so penetrate the defendant's or another person's genital or anal opening for the purpose of sexual arousal [etc.]." By comparison, oral copulation is defined as "any contact, no matter how slight, between the mouth of one person and the sexual organ of another. Penetration is not required." (Mendoza, supra, 240 Cal.App.4th at p. 80.) The court in that case explained, "the general principle that attempt is a lesser included offense of any completed crime is not applicable where the attempted offense includes a particularized intent that goes beyond what is required by the completed offense." (Id. at pp. 82-83.)
Proof of an attempted forcible sexual penetration (§ 289) would require a different factual showing than would proof of oral copulation under section 288.7, subdivision (b). Jimenez takes the view that since O.D. interrupted him by coming into the bedroom, while he was holding an unclothed R.R. above him and reaching toward the boy's penis with his mouth, his act of a sexual nature was merely an attempted one, potentially in violation of section 289. He also points out that his statement to the investigator said he had only undressed R.R. twice.
In R.R.'s testimony at trial, he described incidents of oral copulation that Jimenez accomplished by requiring the boy to submit to having his penis sucked or otherwise touched with Jimenez's mouth. However, there was no evidence at trial about Jimenez physically positioning himself to attempt a penetration of R.R.'s genital or anal openings, or vice versa, during that incident or at other times. (§ 289, subd. (k)(1).) Such an attempted offense would have required a particularized intent, different from the charged or completed oral copulation offense. (Mendoza, supra, 240 Cal.App.4th at pp. 82-83.)
There was accordingly no basis in the evidence establishing that such an attempted penetration offense could have taken place. The testimony was not reasonably susceptible to a finding that any such lesser offense was committed. (Leal, supra, 180 Cal.App.4th 782, 792.) It would require impermissible speculation about what happened in the bedroom to determine that such a lesser included offense instruction would have been appropriate. (People v. Waidla (2000) 22 Cal.4th 690, 735.) Because no error has been demonstrated as argued, we need not reach Jimenez's federal constitutional arguments concerning a potential failure to allow the jury to consider every material issue of fact presented by the evidence. (Chapman v. California, supra, 386 U.S. 18, 24; Breverman, supra, 19 Cal.4th 142, 165-169.)
DISPOSITION
The judgment is affirmed.
/s/_________
HUFFMAN, Acting P. J. WE CONCUR: /s/_________
NARES, J. /s/_________
HALLER, J.