Opinion
F074102
08-20-2018
THE PEOPLE, Plaintiff and Respondent, v. PHILLIP ANTHONY KAYLOR, Defendant and Appellant.
Diane E. Berley, under appointment by the Court of Appeal, Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lewis A. Martinez, and Sarah J. Jacobs, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 14CMS0536)
OPINION
APPEAL from a judgment of the Superior Court of Kings County. Donna L. Tarter, Judge. Diane E. Berley, under appointment by the Court of Appeal, Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lewis A. Martinez, and Sarah J. Jacobs, for Plaintiff and Respondent.
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Phillip Anthony Kaylor was convicted of 11 counts of sexual molestation of his adopted daughter. The offenses took place when the victim was between the ages of 11 and 17.
Kaylor now argues that the convictions should be reversed because the trial court excluded evidence that the victim's biological father molested her at some point when she was five years old or younger. Kaylor maintains that these rulings deprived him of the ability to present "perpetrator substitution" as his "principal defense," and thereby violated his constitutional right to present a defense.
The record does not bear out the contention that the trial court prevented Kaylor from mounting any defense he attempted to mount. Kaylor's trial counsel never articulated a view that Kaylor's main defense, or indeed any portion of his defense, was premised on the implausible notion that the victim could not distinguish between the charged actions of the defendant and actions of her biological father that took place at least six to 12 years earlier. The issue thus has been forfeited by Kaylor's failure to raise it in the trial court.
Nor has Kaylor shown his trial counsel was constitutionally ineffective because he did not attempt this defense. Nothing in the record shows that reasonable counsel would have done so, or that there is any likelihood such a defense would have led to a better outcome for Kaylor.
Kaylor also asserts that the evidence was insufficient to support the convictions on counts 3 and 5. These counts required proof, which Kaylor says was lacking, that he used force, violence, duress, menace, or fear of immediate and unlawful bodily injury. He is mistaken; there was sufficient evidence of force.
As will be seen, however, counts 2 and 4 were lesser offenses necessarily included in counts 3 and 5. Count 2 was based on the same conduct as count 3, and count 4 was based on the same conduct as count 5. Counts 2 and 4 charged violations of Penal Code section 288, subdivision (a), lewd act on a child under 14, while counts 3 and 5 charged violations of section 288, subdivision (b)(1), forcible lewd act on a child under 14. The trial court was required to dismiss the convictions on the lesser offenses, but instead it pronounced sentences on them and stayed the sentences under section 654. This was unauthorized. We reverse these convictions and direct their dismissal.
We affirm the balance of the judgment.
FACTS AND PROCEDURAL HISTORY
In 1999, when M. was five years old, she was adopted by Kaylor and his wife, who was M.'s aunt. They also adopted two siblings of M.'s; a daughter and two grandchildren of the aunt lived with them as well. M. regarded Kaylor and his wife as her parents. She called them dad and mom.
When M. was 11 years old, the family lived on Ogden Street in a town in central California. When she was 12, they moved to a smaller, adjacent town, and when she was 13 they moved again to Willow Circle in the larger town. They lived in the Willow house until M. was 17, when they moved to Colorado. A year later, M. moved out of the family home and went to live in Montana with her future husband. The two later moved back to the California town and were married.
In 2013, when M. was 19 and shortly before her wedding, she began to worry that Kaylor would abuse her niece (the adoptive mother's daughter's daughter) who would soon turn 11. She contacted the authorities in California and reported her history of abuse by Kaylor, leading to his prosecution in this case.
The information filed by the district attorney, as subsequently modified to conform to proof and to correct errors in statutory citations, charged the following 12 counts:
| Count | Offense | Dates | Specification |
|---|
| 1 | 288.5,subd. (a) | Continuous sexual abuse ofchild | 1/26/05-1/25/06 | Three or more violations of §288, subd. (a), other than thepool and gazebo incidents,while living at Ogden Street |
| 2 | 288, subd.(a) | Lewd act on child under 14 | 1/26/05-1/25/06 | Pool incident on Ogden Street |
| 3 | 288, subd.(b)(1) | Lewd act by force on childunder 14 | 1/26/05-1/25/06 | Pool incident on Ogden Street |
| 4 | 288, subd.(a) | Lewd act on child under 14 | 1/26/05-1/25/06 | Gazebo incident on OgdenStreet |
| 5 | 288, subd.(b)(1) | Lewd act by force on childunder 14 | 1/26/05-1/25/06 | Gazebo incident on OgdenStreet |
| 6 | 288a, subd.(c)(2)(B)[former] | Oral copulation by force | 1/26/06-1/25/08 | Incident while moving out ofhome in adjacent town |
| 7 | 220, subd.(a)(2)[former] | Assault with intent tocommit rape or oralcopulation | 1/26/07-1/25/12 | Incident at Willow Court afterM. showered |
| 8 | 220, subd.(a)(2)[former] | Assault with intent tocommit forcible sexualpenetration | 1/26/07-1/25/12 | Incident in Willow Courtliving room after M. got water |
| 9 | 243.4,subd. (a) | Sexual battery | 1/26/07-1/25/12 | Incident in Willow Courtliving room after M. got waterand Kaylor touched her breasts |
| 10 | 243.4,subd. (a) | Sexual battery | 1/26/07-1/25/12 | Incident in Willow Courtliving room after M. got waterand Kaylor touched her vagina |
| 11 | 288, subd.(c)(1) | Lewd act on 14 or 15 yearold victim by perpetrator atleast 10 years older | 1/26/08-1/25/10 | Touching breast while livingat Willow Court; not incidentafter M. got water and notincident after M. showered |
| 12 | 288, subd.(c)(1) | Lewd act on 14 or 15 yearold victim by perpetrator atleast 10 years older | 1/26/08-1/25/10 | Touching vagina while livingat Willow Court; not incidentafter M. got water and notincident after M. showered |
Subsequent statutory references are to the Penal Code unless otherwise noted.
At trial, M. testified that Kaylor began molesting her at the Ogden house, when she was 11 years old. In one incident, she was in the backyard with Kaylor helping him set up a new above-ground swimming pool. While she was busy with this, he grabbed her arm, pulled her toward him, put his hand on her breast, and kissed her on her mouth. She went inside and did not tell anyone what happened.
In another incident at the Ogden house, when M. was still 11 years old, M. was helping to assemble a patio gazebo in the yard. As she stood on a ladder and worked on getting the cloth over the frame, Kaylor grabbed her by the waist, turned her to face him, put his hands on her buttocks and breasts, put his hands under her shirt to touch her bare breasts, and kissed her, putting his tongue in her mouth. She asked him what he was doing and he assured her this was normal behavior. Again, M. did not tell anyone.
While the family was moving from the house in the adjacent town to the Willow house, when M. was 13 years old, she went with Kaylor to the old house to pack up the last of the boxes. While she was working in one of the bedrooms, Kaylor came in and said he wanted to have sex with her. She said no. He backed her into a corner and said she had to choose between intercourse and what he called "oral pleasure." In fear, she submitted to the latter. He told her to take her clothes off and get on her knees, then exposed his penis and put it in her mouth. It was in her mouth for about five minutes. Then, frightened and disgusted, she ran to the bathroom and put her clothes back on.
During the family's residency in the Willow house, when M. was 13 to 17 years old, Kaylor sexually assaulted her one to three times every week. He touched her breasts every time, and, starting when she was 14 years old, he sometimes touched her vagina as well. He touched her vagina about 10 times in all during this period. He sometimes kissed her on these occasions as well.
M. described a night at the Willow house when she exited her bedroom to get some water and Kaylor heard her door open and came out and met her in the living room. He took her by the arm and pulled her aside, and touched her breasts over her shirt. Then he turned her around so her back was toward him, and he put a hand under her shirt and touched her breasts, and put a hand inside her pants. His fingers touched her vagina and moved close to its opening.
On another occasion at the Willow house, when M. was 15 years old, she had taken a shower and was in her bedroom wearing a towel. No one else but Kaylor was in the house. Kaylor entered the room and pushed M. onto the bed. He pulled the towel partly off her. Frightened, she told him to stop, but he did not. She tried to kick him away. He grabbed at her ankles as she lay on the bed and secured the left one. He stood over her and began to unbutton his pants. M. believed he was trying to have sex with her. Then the front door of the house could be heard opening and someone came in. Kaylor stopped and left the room. A moment later M.'s sister entered the bedroom and asked why M. was crying. M. did not explain. Later, M. told her adoptive mother about this incident. "And her response was just stay away from him. Don't worry about it. Kind of nonchalant to just stay away from him."
When M. was 17 years old, after the move to Colorado, Kaylor raped her. He got her some concert tickets and said she "would have to do something for him" in exchange. He did not say specifically what he expected. She took the tickets and agreed, intending to make an excuse later. About two days after the concert, when M. was in her bedroom preparing to go out, Kaylor came in, closed the door, pushed her face first onto the bed, and turned her over. She told him to stop. Holding her down with one arm, he took off her pants and underwear and his pants and underwear. She struggled to get up, but he pushed her back down. Then he got on top of her and inserted his penis into her vagina. She continued trying to push him off. After about five minutes, he ejaculated. Then he pulled his pants up, said, "I told you I would get what I wanted sooner or later," and left the room.
It was two years after this that M. decided to contact the police. She communicated with her adoptive mother about this decision. The adoptive mother advised her to put it behind her instead and be a "survivor," not a "victim."
Kaylor testified in his own defense and said he was innocent of all the charges. He also was questioned individually about most of the specific incidents M. described in her testimony. He denied each one about which he was asked.
The adoptive mother, Kaylor's wife, testified that she had never witnessed any untoward behavior between Kaylor and M., and she believed he was innocent. She claimed that while M. was living with them, M. never told her about any inappropriate behavior by Kaylor. M.'s aunt and two of her sisters testified that they had never witnessed anything that would support M.'s accusations and never heard anything about them from M. until she went to the police.
The jury found Kaylor guilty of all counts. The court dismissed count 1 at the request of the prosecutor.
The court imposed an aggregate sentence of 39 years, calculated as follows: eight years each on counts 3, 5 and 6; six years each on counts 7 and 8; and three years on count 11. Sentences for counts 2, 4, 9, 10 and 12 were stayed pursuant to section 654.
DISCUSSION
I. Exclusion of evidence of prior molestation
Kaylor's argument that the court deprived him of his constitutional right to present a defense is based on four occasions during the trial when the court ruled that evidence of prior molestation by M.'s biological father was inadmissible. These four occasions were as follows:
From testimony presented at an Evidence Code section 402 hearing, it appears that M.'s biological father sexually abused M. at age four, and went to prison for child abuse, but not child sexual abuse. M. was then adopted by Kaylor and his wife at age five.
First, the prosecutor made a motion in limine to exclude evidence of prior molestation by M.'s biological father. Defense counsel did not argue against the motion. He said he did not want to "get into the details" of the prior molestation. If the jury heard or saw references to the prior molestation in a recorded phone call or some text messages that were expected to be presented, defense counsel intended to "mention" that these references were to "a different situation and not this one." That was "probably as far as we can go." In other words, defense counsel's position was that if any references to the prior molestation reached the jury, the defense would only want to be able to make the point that this was not the molestation of which Kaylor was accused. The trial court ruled simply that the prior molestation would not be mentioned.
Second, during the prosecution's case-in-chief, defense counsel cross-examined a police officer about a forensic interview M. had undergone. Defense counsel inquired whether, in such an interview, where more than one person was accused, there would be "an effort made to divide those from each other." In response to the prosecutor's relevance objection, defense counsel explained, outside the presence of the jury, that he was aware M. had mentioned the prior abuse during the interview and he wanted to "divide the incident out." The trial court sustained the objection, again ruling that the prior molestation would not be mentioned at all.
Third, during defense counsel's examination of the adoptive mother, the adoptive mother gave a nonresponsive answer that appeared to refer obliquely to the prior molestation. Outside the presence of the jury, the court confirmed that this was, in fact, what the witness was referring to. The court stated that evidence of this was not admissible and the witness must not refer to it. Defense counsel did not object. Instead, he affirmed that he had, in fact, advised the witness that evidence of the prior molestation was not admissible and she should not mention it.
Finally, while the prosecutor was questioning the adoptive mother, the adoptive mother again made indirect references to the prior molestation. The court again questioned her outside the presence of the jury, and this time she said she believed M.'s reports of molestation by Kaylor were really "coming from the past." The court repeated the admonition that the witness was not to refer to the prior molestation when testifying to the jury.
These are the rulings upon which Kaylor bases his argument that the trial court unconstitutionally deprived him of the right to assert his "principal defense" of "perpetrator substitution." Perpetrator substitution, he explains, is when "a victim makes a valid accusation but accuses someone other than the actual perpetrator." He cites a psychology textbook on child sexual abuse in which this phenomenon is described.
Trial court error violates a criminal defendant's constitutional right to due process of law if it deprives the defendant of "a meaningful opportunity to present a complete defense." (California v. Trombetta (1984) 467 U.S. 479, 485.) There is no constitutional error if the challenged ruling only rejects certain evidence supporting a defense. (People v. Bradford (1997) 15 Cal.4th 1229, 1325.)
As we will explain, Kaylor's trial counsel did not attempt to rely on "perpetrator substitution" at all, let alone as Kaylor's "principal defense," so it cannot be said that the rulings in question deprived Kaylor of a meaningful opportunity to present a complete defense. In other words, Kaylor forfeited the issue in the trial court; and he is not only raising it for the first time on appeal, but doing so without a record that would show such a defense could have helped him. Further, Kaylor has not shown that his trial counsel rendered ineffective assistance by not undertaking to mount such a defense. The appellate record does not support the conclusions that a reasonable attorney would have attempted the defense or that there is a reasonable probability the defense would have led to a better outcome for Kaylor.
Kaylor is raising for the first time on appeal the notion that the trial court blocked presentation of his principal defense of perpetrator substitution. On the four occasions when the trial court ruled on the admissibility of evidence of the prior molestation by M.'s biological father, Kaylor's counsel never said anything more than that he wanted to be able to separate any references to the molestation by the biological father from references to molestation by Kaylor. In other words, counsel just wanted to make sure that if a witness referred to the prior molestation, the jury would not receive the mistaken impression that the reference was intended to be to the incidents charged against Kaylor. The trial court obviated this concern by ruling that references to the prior molestation would simply be excluded. Unlike the adoptive mother (Kaylor's wife), Kaylor's trial counsel never suggested that the currently charged incidents might be confused in the mind of the victim with those from years earlier.
Ordinarily, we do not consider claims of error that were not raised in some appropriate form at trial. Such claims are generally deemed forfeited. (People v. Saunders (1993) 5 Cal.4th 580, 590; Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184-185, fn. 1.)
Kaylor argues that we should not deem the issue forfeited because it is a constitutional issue. But there is no general rule that constitutional issues need not be preserved by objection in the trial court. (People v. Saunders, supra, 5 Cal.4th at pp. 589-590.) Only certain constitutional issues, singled out by case law—and not at issue here—are free of this requirement. (People v. Vera (1997) 15 Cal.4th 269, 276-277; People v. French (2008) 43 Cal.4th 36, 46-48.) Beyond this, there is no basis in the record for the claim that any error in the challenged rulings was of constitutional dimension. The idea that perpetrator substitution could have been an important part of Kaylor's defense is unsupported. Kaylor points to nothing in the record to indicate any likelihood that M. mixed up her memories of her biological father's abuse when she was five or younger with her memories of Kaylor's abuse beginning when she was 11 and ending when she was 17. This is not a case in which, for instance, there was someone else who could have committed the charged offenses who was present around the same times or in the same places as the defendant; nor did the charged offenses take place when the victim was very young or in the distant past; nor did defense counsel offer expert testimony that would tie the facts of the case to the claimed psychological phenomenon. Appellate counsel has simply asserted that trial counsel might conceivably have been able to raise a reasonable doubt based on perpetrator substitution because the victim was molested by another person long before the charged incidents. Thus there is no foundation in the record upon which Kaylor could build a viable claim on appeal that the trial court's rulings unconstitutionally deprived him of a meaningful opportunity to present a defense.
Kaylor next argues that the issue has not been forfeited because raising it in the trial court would have been futile. The futility doctrine applies to relieve an appellant of the requirement of objection in the trial court when the objection would almost certainly have been overruled. (People v. Seumanu (2015) 61 Cal.4th 1293, 1366, fn. 20.) But there is no reason to suppose the trial court would almost certainly have disallowed a defense based on perpetrator substitution had trial counsel proposed to mount one and proffered evidence in support. The proffered evidence would, of course, have needed to be relevant, admissible, and of such a character as to overcome objection based on Evidence Code section 352—but nothing in the record supports the conclusion that the trial court would have prevented Kaylor from putting on a defense based on such evidence.
Finally, Kaylor contends that if his trial counsel forfeited the issue by not raising it, this constituted a violation of his Sixth Amendment right to effective counsel.
To establish ineffective assistance of counsel, a defendant must show that counsel's performance "fell below an objective standard of reasonableness," and that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Strickland v. Washington (1984) 466 U.S. 668, 688, 694; see People v. Hester (2000) 22 Cal.4th 290, 296.) When determining whether counsel's performance was professionally unreasonable, we must consider whether the appellate record affirmatively shows this or whether, by contrast, it is possible that considerations not appearing in the record could have justified counsel's conduct. If the situation is simply that nothing could justify the attorney's action, then we can find ineffective assistance on direct appeal; but if counsel could have had a tactical reason for acting as he or she did, and this reason does not appear in the record, then the matter should be addressed instead in habeas proceedings, where a record of counsel's reasons or lack of them can be developed. (People v. Pope (1979) 23 Cal.3d 412, 425-426, overruled on other grounds in People v. Berryman (1993) 6 Cal.4th 1048, 1081, fn. 10; In re Dennis H. (2001) 88 Cal.App.4th 94, 98 & fn. 1; People v. Plager (1987) 196 Cal.App.3d 1537, 1543.)
Kaylor has shown neither that it was professionally unreasonable not to attempt to mount the perpetrator substitution defense nor that there is a reasonable probability that he would have obtained a better result if counsel had attempted it. Again, the key is that the record contains scant indications of how trial counsel could have gained any material advantage from such a defense. All we know is that some evidence apparently existed that M. was molested by her biological father during the time when she lived with him, which ended when she was five years old, and that she claimed Kaylor molested her from the ages of 11 to 17. These facts certainly do not demonstrate that there could be no conceivable tactical reason why a defense attorney would choose not to try to build a defense based on perpetrator substitution in this case. Is there any reason to believe perpetrator substitution occurs under conditions like these, or that it actually occurred here? The record sheds no light. A reasonable defense attorney could conclude that, under these circumstances, focusing attention on the prior molestation would not persuade the jury that M. confused Kaylor with her biological father, and would instead maximize the sympathy the jury would feel for the victim and place Kaylor in an even worse light by suggesting he took advantage of M.'s prior victimization. For the same reasons, it has not been demonstrated that there is a reasonable probability that attempting this defense would have led to a better result for Kaylor.
If there exists outside the record evidence amounting to a colorable defense based on perpetrator substitution, evidence Kaylor's trial counsel did not proffer, that evidence could form the basis of a petition for a writ of habeas corpus premised on ineffective assistance of counsel. But there is no basis in the record for a claim of ineffective assistance now.
For all the above reasons, we conclude that Kaylor failed to preserve for appeal the issue of the admissibility of evidence of "perpetrator substitution" and that he has not shown that the nonpreservation of the issue constituted ineffective assistance of counsel. II. Sufficiency of evidence on counts 3 and 5
The People argue that Kaylor failed to preserve the issue for appeal in an additional way not discussed above: He did not follow the procedures set forth in Evidence Code section 782. It does not appear, however, that this statute was applicable to the situation. The statute prescribes procedures for proffering "evidence of sexual conduct of the complaining witness" in prosecutions for sex offenses. (Evid. Code, § 782, subd. (a).) Evidence that M. was molested at age five or younger would not seem to be evidence of her "sexual conduct," which has been held to mean "any behavior that reflects the actor's or speaker's willingness to engage in sexual activity." (People v. Franklin (1994) 25 Cal.App.4th 328, 334.) It has been held that Evidence Code section 782's procedures also apply to evidence of a child witness's prior molestation proffered to show that a young child witness's knowledge of sexual language and sex acts could be derived from experiences other than the charged offenses. (People v. Daggett (1990) 225 Cal.App.3d 751, 757.) But that reasoning does not apply here either, since the victim was not a young child by the time the abuse was disclosed. We need not reach any conclusion on this point, however.
Kaylor argues that the evidence failed to support the convictions on counts 3 and 5. When considering a challenge to the sufficiency of the evidence to support a judgment, we review the record in the light most favorable to the judgment and decide whether it contains substantial evidence from which a reasonable finder of fact could make the necessary finding beyond a reasonable doubt. The evidence must be reasonable, credible and of solid value. We presume every inference in support of the judgment that the finder of fact could reasonably have made. We do not reweigh the evidence or reevaluate witness credibility. We cannot reverse the judgment merely because the evidence could be reconciled with a contrary finding. (People v. D'Arcy (2010) 48 Cal.4th 257, 293.)
Counts 3 and 5 charged violations of section 288, subdivision (b)(1), which provides as follows:
"(b)(1) Any person who commits an act described in subdivision (a) by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person, is guilty of a felony and shall be punished by imprisonment in the state prison for 5, 8, or 10 years."Subdivision (a) provides:
"(a) Except as provided in subdivision (i), any person who willfully and lewdly commits any lewd or lascivious act, including any of the acts constituting other crimes provided for in Part 1, 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 and shall be punished by imprisonment in the state prison for three, six, or eight years."
Kaylor's argument is that the evidence in support of counts 3 and 5 did not include proof that he used "force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person."
Regarding count 3, which was based on an incident that happened when M. was 11 years old, M. testified as follows:
"It was around summer time and we recently got an above ground doughboy pool. And we were all excited, so me and my sister and my brother went out to go help set it up, but it was a lot bigger than my sister and brother anticipated and they didn't want to help anymore. And I was always the worker bee, so I would help with anything. And I was out there helping trying to get this pool together and [Kaylor] was out there, as well. And he walked over and he began to grab my arm and rub my arm and stuff. And I didn't really think much of it. And, then, he started to pull me closer to him. And he—he started to touch—he started to try to touch my breasts and, then, he kissed me. And I got terrified and I freaked out and I told him that I didn't want to do it and I just ran inside."
Asked for more detail, M. testified, "[H]e grabbed me by my arm to pull me closer and he also had his other hand on my waist." Next, "he grabbed my breast and, then, he tried to kiss me, and, then, he did. And, then, I pulled away."
Kaylor argues that this testimony did not describe an application of force, but he furnishes no explanation of why not. A case cited in his own brief held that "'[a]cts of grabbing, holding and restraining that occur in conjunction with the lewd acts themselves' are sufficient to support a finding that the lewd act was committed by means of force." (People v. Garcia (2016) 247 Cal.App.4th 1013, 1024.) This is precisely the type of force the evidence in this case showed: M. testified that Kaylor grabbed her by the arm and pulled her to him to commit the lewd acts; to escape, she had to pull away. The evidence was sufficient to show the offense in count 3 was committed by use of force.
About count 5, which was based on another incident that happened when M. was 11 years old, she gave this testimony:
"We got a gazebo—a patio gazebo and I volunteered to help him put it up, but me being so short I needed a ladder. And I was helping drape the lining over the gazebo and I had to climb the ladder to do so. And that's when he walked up to the ladder as I was doing that and he grabbed me by the waist and turned me toward him and sat me down and he was touching me on my breasts and kissing me."
M. specified that Kaylor grabbed her waist with both hands when he turned her around. He put his hands on her breasts both over and under her shirt. He put his hands on her buttocks. When he kissed her, he put his tongue in her mouth. This went on for about three minutes. M. asked Kaylor what he was doing. He replied that this was normal and people do it all the time. M. had never been kissed in that way before and thought "[m]aybe this is how it was supposed to be."
As with count 3, M.'s testimony in support of count 5 described acts of grabbing and holding that occurred in conjunction with the lewd acts themselves and that facilitated the commission of the lewd acts. This evidence was sufficient to show that the lewd acts were accomplished by means of force.
The People maintain the evidence also showed that the acts charged in counts 3 and 5 were accomplished through the use of duress. They maintain that duress arose from Kaylor's longstanding position of authority, dominance, and trust as M.'s adoptive father, and was illustrated by his exploitation of M.'s youth and inexperience to persuade her that his abuse was normal. They cite People v. Cochran (2002) 103 Cal.App.4th 8, 16, footnote 6, in which the Court of Appeal stated: "[A]s a factual matter, when the victim is as young as this victim [fourth grade] and is molested by her father in the family home, in all but the rarest cases duress will be present." This analysis is probably also correct, but we need not decide, as the discussion above of force is enough to affirm the convictions. III. Lesser included offenses
Counts 2 and 4 charged violations of section 288, subdivision (a). Counts 3 and 5 charged violations of section 288, subdivision (b)(1). As the trial court acknowledged at sentencing, and as the prosecution conceded, count 2 was based on the same conduct as count 3 (the pool incident), and count 4 was based on the same conduct as count 5 (the gazebo incident).
The elements of section 288, subdivision (a) and section 288, subdivision (b)(1) are the same, except that to be guilty of a violation of the latter, the defendant must use "force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person." (§ 288, subd. (b)(1).)
A lesser offense is necessarily included in a greater offense if it is not possible to commit the greater offense without also committing the lesser offense. In other words, the lesser offense is necessarily included in the greater if the elements of the lesser are a subset of the elements of the greater. (People v. Miranda (1994) 21 Cal.App.4th 1464, 1467.) A violation of section 288, subdivision (a), therefore, is a lesser offense necessarily included in a violation of section 288, subdivision (b)(1). (People v. Chan (2005) 128 Cal.App.4th 408, 421.)
It has long been held in California that if a defendant is convicted of both a greater offense and a lesser offense necessarily included in it, the conviction of the lesser offense is unlawful and must be reversed. (People v. Pearson (1986) 42 Cal.3d 351, 355, overruled on other grounds by People v. Vidana (2016) 1 Cal.5th 632, 650; People v. Cole (1982) 31 Cal.3d 568, 582; People v. Moran (1970) 1 Cal.3d 755, 763; People v. Bauer (1969) 1 Cal.3d 368, 375; People v. Greer (1947) 30 Cal.2d 589, 604.) This rule has been applied when a defendant is convicted under both section 288, subdivision (a) and section 288, subdivision (b)(1) for the same conduct. (People v. Chan, supra, 128 Cal.App.4th at p. 421.) "When such a state of affairs is discovered on appeal, the correct course of action is to reverse the conviction for the included offense and direct entry of dismissal of the less serious crime." (Ibid.) The parties have overlooked this issue, but we see no alternative but to reverse and direct dismissal of the convictions on counts 2 and 4.
DISPOSITION
The convictions on counts 2 and 4 are reversed. The trial court is directed to dismiss those counts with prejudice and strike the sentences imposed on them. The balance of the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment and forward it to the appropriate correctional authorities.
/s/_________
SMITH, J. WE CONCUR: /s/_________
PEÑA, Acting P.J. /s/_________
ELLISON, J.
Retired judge of the Fresno Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------