Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. SWF017401. Richard John Hanscom, Judge. (Retired judge of the San Diego Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Law Offices of Robert C. Kasenow II and Robert C. Kasenow II for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia and Jeffrey J. Koch, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MILLER, J.
A jury convicted defendant Luis Alonzo Martinez of lewd and lascivious conduct with a child (Pen. Code § 288, subd. (a)), a lesser included offense of that charged under count 1. The court sentenced defendant to a five-year term of probation with terms including a one-year jail sentence, attendance in a program for sexual offenders, and lifetime registration as a sex offender. On appeal, defendant makes five contentions: (1) the trial court erred in denying defendant’s section 1118.1 motions for acquittal; (2) the purported insufficiency of the evidence to support defendant’s conviction violates his state and federal constitutional rights to due process; (3) the trial court erred in not giving a sua sponte unanimity instruction with respect to the lesser included offense; (4) the prosecutor committed prejudicial misconduct in his rebuttal argument; and (5) the trial court erred in not giving a sua sponte jury instruction on misdemeanor battery as a lesser included offense of lewd and lascivious behavior. We affirm.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL HISTORY
Andrea met defendant in San Felipe, Mexico in early 2004. They opened a clothing boutique together in San Felipe. He contributed all the investment capital in the business while Andrea played an active role in the business by acting as its primary buyer, overseeing inventory, and overseeing the employees responsible for the day-to-day operations of the store. Andrea and defendant became romantically involved in April 2004.
To preserve the anonymity of the mother and daughter in this matter, we shall refer to mother by her first name. We refer to her daughter as the “victim.”
In late May 2004, Andrea and the victim (born October 1999), moved in with defendant in a rented house in Tijuana, Mexico. In August 2004, they moved into a house with defendant in Menifee, California. Defendant’s two sons also resided in the home. Andrea frequently traveled back and forth across the border between the shop and home.
Andrea testified that the victim loved defendant like a father; she called him “dad.” Defendant similarly testified that he had a good relationship with the victim; she called him “daddy.” Defendant and his son both testified that the victim would frequently touch herself inappropriately.
Defendant traveled frequently for business. Andrea testified that defendant would be gone for as long as a month or two at a time, although defendant testified that he would be gone an average of one week, but at most, two weeks. Defendant testified that he took sole care of the financial responsibilities of the home. He never authorized anyone to write checks on his account. However, Andrea testified that defendant had asked her to sign checks on his checking account for household bills when he was gone. Andrea began writing checks on defendant’s account as early as March 2005. Defendant testified that he gave Andrea cash both for her personal expenses and to purchase inventory for the store.
Defendant’s son testified that his father would typically leave for Mexico on business for a few weeks at a time; however, he once left for about a month or so.
Defendant’s son likewise testified that his father paid all the household bills.
On August 4, 2005, Andrea wrote a check to herself for $3,000 on defendant’s account; she signed his name. She used the money to buy food, clothing, and gas. She also admitted writing checks on his account on May 11, 2005, and October 25, 2005. Andrea testified that she had defendant’s authorization to write the checks, but not his specific permission regarding the amounts. Defendant specifically testified that he did not give her permission to write a check on his account to herself for $3,000.
Defendant testified that on December 4, 2005, his son Andre called him in Mexico and reported that he found a cashed check in the amount of $3,000 made out to Andrea, on defendant’s account. Defendant called Andrea to ask her about it; she denied writing the check. On December 9, 2005, Andre called defendant to report that the house had burned down. Andre testified that Andrea and the victim packed up and left thereafter. Defendant found another check made out to Andrea on his account in the amount of $500; in total, he found between six and seven checks on his account signed in his name by someone else. Defendant attempted to contact Andrea for three or four days before he reached her. When he reached her, she denied writing any of the checks. He met her face-to-face on December 15 or 16, 2005. Andrea admitted writing the checks, but maintained that she needed the money for the clothing store.
One of the checks signed by Andrea in defendant’s name on his checking account was made payable to Corona Temecula Orthopedic Association for services admittedly rendered to defendant. Defendant initially informed an investigator that he never received treatment at that facility.
Defendant paid for various hotel rooms for Andrea and the victim to stay in during the months of December 2005 and January 2006. The victim would sleep in her own bed if the hotel room had two beds; if not, she would sleep on the floor. “One day, I don’t remember the day-I remember that one night, Christmas, we were at Motel 6 with [defendant].” Receipts from Motel 6 reflected that she stayed there December 12 through December 21, 2005. Andrea and defendant’s relationship ended in January 2006, because defendant informed her he would no longer pay for their hotel rooms.
At some point thereafter, while living with a friend, Andrea noticed that the victim was behaving strangely. The victim would put balls up to her privates and move them around. She asked the victim why she was behaving that way; the victim initially refused to answer. Eventually, Andrea asked the victim if something had happened to her; the victim started to cry and reported that “Alonzo had touched her in her private parts.” They went to a counselor; the police called them thereafter.
On March 23, 2006, a Riverside Children Assessment Team (RCAT) interview with the victim was conducted. The victim stated, “I don’t have a dad, ” but that, before, she had one named “Alonso.” She reported that Alonzo “d[i]d something bad” to her at the hotels. She indicated that she did not like what occurred between her and Alonzo. She was asleep on the floor; her mother was asleep on the bed. “It’s because how I was asleep... and that is why he got in trouble. That he did bad with me. It’s because he got me on my private parts [¶]... [¶] [w]ith his hand.” She explained that “privates” are the organs one urinates and defecates with. Alonzo only touched the part with which one goes “peepee, ” not the one with which one goes “poopoo.” She was asleep when she felt something over her clothing. It occurred on Santa Clause’s birthday.
The spelling of defendant’s name is interchangeably listed in the interview as “Alsonso, ” “Alonzo, ” and “Alanso.” For continuity, we will spell the name Alonzo, as reflected in the court documents.
The victim also reported that the incidents occurred on “[a]ll the days.” Defendant touched her privates 100 times. She counted from one to 24 and then skipped directly to 100. She reported that the incidents occurred both in the hotel and in the house that burned down. At trial, the victim testified that her “real dad” lives in Mexico. However, she knows a man named Alonzo with whom she lived in a house that burned down; Alonzo’s sons also lived in the home. Alonzo touched the victim’s private, the lower area of her body with which she urinates. She was wearing pajamas and underwear when it occurred. She simply woke up one night to go to the bathroom and found Alonzo touching her private area. She did not like it; she wanted it to stop. The victim testified that she did not “know if he touched me once or a lot.” Her mother was in the hotel room when it happened.
On May 15, 2006, defendant reported allegations of check forgery with respect to those checks written and signed by Andrea on defendant’s account. Detective David Cardoza with the Riverside County Sheriff’s Department was assigned to investigate the case. He interviewed Andrea, who initially told him that defendant signed the checks and then gave them to her; however, she later admitted writing and signing the checks, though she contended she had permission to do so. Detective Cardoza determined that defendant and Andrea stayed together in 12 or 13 different rooms in hotels in December 2005; however, he could not obtain all the records from each of the four hotels in which they had stayed. In particular, Detective Cardoza could not obtain any hotel records for either defendant or Andrea for December 24 or 25, 2005. Defendant told Detective Cardoza that he and Andrea had spent Christmas 2005 at the Motel 6 in Temecula, but not specifically December 24 or 25, 2005.
Detective Cardoza later testified that the report of check forgery was initially made on June 15, 2006. No clarification of the actual date is made in the record.
Defendant was arrested on the molestation charges in August 2006.
The People charged defendant with one count of continuous sexual abuse of a child under the age of 14 years. At trial, defendant denied ever touching the victim inappropriately. Defendant acknowledged going over to the hotel at which Andrea and the victim were staying a couple of times in December 2005 and January 2006; however, he denied ever staying the night, particularly on December 24 or 25, 2005. Defendant acknowledged having told the investigator that he stayed with Andrea and the victim in a Motel 6 in Temecula in December 2005.
Earlier defendant testified that he did spend the night with Andrea sometime after Christmas 2005.
DISCUSSION
Defendant contends the trial court erred in denying his section 1118.1 motions for acquittal. He maintains that insufficient evidence to support a conviction had been adduced by the People because the victim never definitively identified the individual responsible for her molestation, indicating only that it was “Alonzo.” Thus, he argues that the evidence was insufficient to find that he, and not some other “Alonzo, ” was responsible for the molestation. We hold that substantial evidence supported the trial court’s denial of defendant’s motions.
Section 1118.1 authorizes a trial court to enter a judgment of acquittal “if the evidence then before the court is insufficient to sustain a conviction of such offense or offenses on appeal.” (§ 1118. 1.) “In ruling on a motion for judgment of acquittal[, ] a trial court applies the same standard an appellate court applies in reviewing the sufficiency of the evidence to support a conviction.... ‘Where the... motion is made at the close of the prosecution’s case-in-chief, the sufficiency of the evidence is tested as it stood at that point.’ [Citation.] [¶]... [¶] We review independently a trial court’s ruling... that the evidence is sufficient to support a conviction. [Citations.]” (People v. Cole (2004) 33 Cal.4th 1158, 1212-1213.) “In reviewing a challenge to the sufficiency of the evidence... we review the entire record in the light most favorable to the judgment to determine whether it discloses substantial evidence-that is, evidence that is reasonable, credible, and of solid value-from which a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. [Citations.]” (Id. at p. 1212.)
While “the sufficiency of an out-of-court identification to support a conviction should be determined under the substantial evidence test... [¶]... [¶]... other types of out-of-court statements may [also] serve as the sole evidence of guilt if they satisfy the substantial evidence test.” (People v. Cuevas (1995) 12 Cal.4th 252, 257, 266 (Cuevas).) Appropriate considerations for determining the veracity of an out-of-court identification should include whether “the witness’s failure to confirm the identification [in court] arises from fear or intimidation.” (Id. at p. 268; People v. Roa (2009) 171 Cal.App.4th 1175, 1181, fn. 3.) “[T]he availability of the identifying witness for cross-examination, the opportunity of the defense to present other evidence questioning the reliability of the out-of-court identification and to request appropriate jury instructions, and the requirement that substantial evidence support the conviction are adequate safeguards against the unjust conviction of a defendant solely on the basis of an unreliable out-of-court identification.” (Cuevas, at pp. 274-275, fn. omitted.)
Here, although the victim failed to provide an in-court identification of defendant during trial, or identify him by photograph at an earlier date, we hold that substantial evidence supported a determination that defendant was the individual responsible for the molestation. Measured at the time of defendant’s first motion for acquittal, at the close of the People’s case, the evidence clearly established that defendant was the “Alonzo” the victim accused of molesting her.
During the RCAT interview, the victim indicated that she did not now have a father, but that she had one before named “Alonzo.” When asked what happened to “Alonzo”, the victim replied “he d[i]d something bad” to her at the hotels. She stated that she did not like what happened between her and “Alonzo.” It occurred on Santa Clause’s birthday, while she was asleep on the floor and her mother was asleep on the bed. She reported that Alonzo touched her private on top of her clothes with his hand “[a]ll the days, ” 100 times, both at the hotel and the house that burned down.
At trial, the victim testified that she knew a man named “Alonzo” with whom she lived, along with his sons, in a house that eventually burnt down. This was the individual who touched her privates inappropriately. She was sleeping on the floor in a hotel; she awoke to Alonzo touching her private area. The victim’s mother testified that while they lived in the house with defendant in Menifee, they had their own rooms. They stayed in hotels during Christmas. Only when they stayed in hotels, after the house burned down, did the victim sometimes sleep on the floor in the same room as Andrea. She testified that the victim called defendant “dad.” The victim’s initial report of the molestation to her mother indicated that “Alonzo had touched her in her private parts.” Thus, the evidence adduced presented direct connections between the individual identified as the person with whom they lived, the particular house in which they lived (the one that burned down), the person with whom they had stayed in hotels, the location where the victim slept in the hotels, the location of the molestation (on the floor), the time of year in which it occurred, and the defendant’s specific name. Taken together, this amounted to substantial evidence upon which the jury could have determined that defendant was the individual responsible. The court correctly determined that “[t]here isn’t any question that the person she’s referring to as having done what she says happened, she’s referring to the defendant.”
While the victim twice indicated that she did not see the person with whom she lived, and whom she knew as “Alonzo, ” in the courtroom, as the People below noted, the victim avoided looking in the direction of defendant when asked to identify him. As argued by the People below, this was “an absolutely reasonable reaction” for a young child faced with confronting her molester. (Cuevas, supra, 12 Cal.4th at p. 268 [failure to identify defendant in court due to fear]; People v. Roa, supra, 171 Cal.App.4th at p. 1181, fn. 3 [same].) Indeed, a comparison of the victim’s testimony with her RCAT interview demonstrates a drastic divergence in the victim’s personality and responsiveness. (In re S.A. (2010) 182 Cal.App.4th 1128, 1140 [“We review a cold record and, unlike a [trier of fact], have no opportunity to observe the appearance and demeanor of the witnesses. [Citation.] ‘Issues of fact and credibility are questions for the [trier of fact].”].)
The victim repeatedly responded to numerous questions during trial with “I don’t know” or “I don’t remember.”
During the RCAT interview, when the victim was six years old and only about four months after the molestation, she seemed happy, outgoing, garrulous, playful, and responsive. At trial, when she was then nine years old (three and one-half years after the molestation), she seemed laconic, withdrawn, non-responsive, and fearful. Indeed, the victim twice broke down crying on the stand-once, which required a recess. Obviously, the victim’s reticence to identify defendant in court, as the offender, stemmed largely from the formal setting and his immediate presence in front of her. Nevertheless, despite the lack of an in-court identification or out-of-court photographic identification, substantial evidence was adduced that defendant was the “Alonzo” who had molested the victim.
Likewise, by the time of defendant’s second motion for acquittal after the defense rested, even more evidence solidified the identification of the perpetrator. Defendant’s son testified that he lived in a house with his father, Andrea, and the victim; the house burned down on December 9, 2005. Defendant’s son testified that the victim called defendant “dad.” He testified that the victim and Andrea had their own, separate bedrooms when they lived in the house. Detective Cardoza testified that defendant had informed him that he had spent Christmas of 2005 at the Motel 6 in Temecula. Defendant himself testified that the victim and Andrea lived with him since May 2004. In August 2004, they moved into his home in Menifee. That house burned down on December 9, 2005. Defendant went to the hotel at which the victim and Andrea were staying a couple of times in December 2005 and January 2006. Defendant testified that he spent the night with Andrea at least once, after Christmas. Thus, substantial evidence supported the identity of defendant as the perpetrator of the molestation and rendered the court’s denial of defendant’s motion for acquittal proper. Likewise, for the same reasons discussed above, we find defendant’s contention, that his due process rights were violated because his conviction was not supported by substantial evidence, lacking.
A. UNANIMINITY INSTRUCTION
Defendant contends the court had a sua sponte duty to give the jury the unanimity instruction with respect to the lesser included offense because the prosecution had adduced evidence of a number of alleged incidents of molestation with respect to the greater offense. Thus, he maintains the unanimity instruction was required to ensure the jury unanimously convicted defendant of the same act of molestation. We agree with defendant that the court erred in failing to give the unanimity instruction; however, we hold that defendant suffered no prejudice.
A criminal defendant is entitled to a verdict in which all 12 jurors concur as a matter of due process under the state and federal Constitutions. (People v. Russo (2001) 25 Cal.4th 1124, 1132.) In any case in which the evidence would permit jurors to find the defendant guilty of a crime based on two or more discrete acts, either the prosecutor must elect among the alternatives or the court must require the jury to agree on the same criminal act. (Id. at pp. 1132-1133.) Where it is warranted, the court must give the instruction sua sponte. (People v. Riel (2000) 22 Cal.4th 1153, 1199.) The omission of a unanimity instruction is reversible error if, without it, some jurors may have believed the defendant guilty based on one act, while others may have believed him guilty based on another. (Russo, at p. 1133.)
Assuming that a unanimity instruction would have been appropriate under the circumstances, the question then becomes whether the court’s failure to give the instruction requires reversal. Failure to give a unanimity instruction where it is warranted has the effect of lowering the prosecution’s burden of proof in that the prosecution may obtain a conviction without having convinced all 12 jurors beyond a reasonable doubt that the defendant committed a particular criminal act. Therefore, such an error is reviewed under the standard enunciated in Chapman v. California (1967) 386 U.S. 18. (People v. Smith (2005) 132 Cal.App.4th 1537, 1545-1546; People v. Wolfe (2003) 114 Cal.App.4th 177, 186-188.) Under that standard, we must examine the evidence and inquire whether it is possible to determine, beyond a reasonable doubt, that the jury unanimously relied on the same “specific act[] in finding defendant guilty....” (Smith, at pp. 1546-1547; see Wolfe, at p. 188.) In addition, where the defendant offers the same defense to all the charged criminal acts, and “the jury’s verdict implies that it did not believe the only defense offered, ” then the failure to give the instruction is harmless error. (People v. Diedrich (1982) 31 Cal.3d 263, 283 called into doubt on other grounds in People v. Greenberger (1997) 58 Cal.App.4th 298, 370 & 370, fn. 60.)
Here, although there was evidence of more than one act of sexual misconduct, the overwhelming majority of the evidence focused on one act in particular: the incident in the hotel during Christmas when the victim was sleeping on the floor. As discussed above and below, Andrea and the victim stayed in hotels after the Menifee house burned down on December 9, 2005. In the Menifee house, the victim had her own bedroom; however, when they stayed in hotels she sometimes had to sleep on the floor. The incident occurred when she was sleeping on the floor at the hotel. Thus, it is not possible that, having failed to convict defendant of continuous sexual abuse requiring at least three acts over a three-month period, the jury convicted defendant on the lesser included offense for anything other than the molestation on the floor of the hotel room during Christmas. Moreover, defendant offered the same defense to all the charged acts; that he never touched the victim inappropriately. Therefore, while error, the court’s failure to give the jury the unanimity instruction was harmless beyond a reasonable doubt.
We disagree with defendant’s contention that the victim’s statement, that the incident occurred on Santa Clause’s birthday, necessarily means it happened either on Christmas day (December 25, 2005) or the feast day of St. Nicholas (December 6, 2005). Rather, the evidence is reasonably susceptible to a broader interpretation that the incident occurred during the Christmas season. Indeed, Andrea testified that she stayed at the Motel 6 with defendant during Christmas: “I just remember that it was a Christmas.” Despite being confronted with a lack of evidence in the form of receipts establishing that she stayed at the hotel on December 24 or 25, 2005, Andrea insisted it was Christmas when she stayed at the hotel. Likewise, Detective Cardoza testified that defendant told him he spent Christmas 2005 at the Motel 6 with Andrea, but not specifically on the days of December 24 or 25, 2005. Detective Cardoza obtained documentary evidence that “they, ” i.e. defendant and Andrea, stayed in 12 or 13 different rooms at, at least, four different hotels during “Christmastime.” Finally, defendant testified that he met Andrea face-to-face on either December 15 or 16, 2005. He went to her hotel a couple of times in the evening. He spent the night with her at least once after Christmas. We take judicial notice of the ubiquity of representations of Santa Clause during the period between Thanksgiving Day and New Years Day (though many complain of his omnipresence at even earlier dates), commonly known as the “Christmas Season.” Thus, the evidence was reasonably amenable to an interpretation that the molestation occurred sometime between December 9 and 31, 2005, when defendant was visiting Andrea and the victim at a hotel.
Even defendant’s defense that he never spent the night at the hotel and, thus, could not have molested the victim while she was at the hotel, fails any level of logical scrutiny. Defendant admitted on the stand that he went to a hotel at which Andrea and the victim were staying on at least two occasions in the evening. It does not require spending the entire night in order to molest someone; all one has to do is have some degree of access to the molestee. Defendant’s own testimony established that he had such access. Moreover, this defense was impugned by defendant’s own testimony that he stayed with Andrea after Christmas, his admission that he told Detective Cardoza that he stayed with Andrea at Christmas, and Detective Cardoza’s testimony that defendant told him he stayed with Andrea at Christmas.
B. PROSECUTORIAL MISCONDUCT
Defendant contends that the prosecutor committed several acts of misconduct in his statements during rebuttal argument. To the extent defendant did not forfeit at least one of the alleged acts of misconduct, we conclude that the comments were either not misconduct or that any misconduct was harmless.
During the People’s rebuttal argument, the prosecutor stated, “I want to talk for a second about distractions, because it’s what defense attorneys do.” The defense objected on the grounds of improper argument. The court told the prosecutor to “[g]o ahead.” Later, in an apparent effort to counter the defense’s theory that Andrea manufactured the allegations of molestation in order get back at defendant for refusing to continue to support them, the prosecutor argued that “three years later when [Andrea and the victim’s lives are] going well, [Andrea’s] going to put this little girl-drag her down here to the court, make her get on this stand and subject her daughter to the cross-examination of an experienced defense attorney that results in her in tears? Mothers don’t do that to their children. Mothers don’t do that to be vindictive and to just get back at someone who had provided for them at one time in their lives.” The defense offered no objection.
Finally, at the close of the prosecutor’s argument, he proposed a hypothetical for the jury: “For a second I want you to picture that hotel room in 2005, December of 2005. Imagine that you’re standing over that hotel room and that you can look through the roof. The roof of that hotel room is off. You can look through there. In there you see a bed, you see some blankets on the floor. You see [the victim] lying on the floor in her pajamas underneath those blankets. [¶] And you see [defendant] on that bed, awake. You see Andrea... on that bed, sound asleep. Sound asleep. And you picture [the victim] sound asleep in her little pajamas, the pant ones, with her underwear on, with her shirt on, sleeping underneath those blankets. You slowly see [defendant] get up off of that bed. He walks over to [the victim]. Andrea... doesn’t wake up because she’s sound asleep. And he lays down next to [the victim], and he slowly puts his hand near her private area. Then all of a sudden that roof comes back on to that motel, and you can’t see in. [¶] If your heart just sunk and you found yourself reaching out for [the victim], that is your body telling you what your mind already knows.” Defendant objected on the ground of improper argument. The court responded “No. This is obviously argument.”
Misconduct by the prosecutor violates the federal Constitution when it “‘“‘comprises a pattern of conduct “so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.”’”’ [Citations.]” (People v. Hill (1998) 17 Cal.4th 800, 819.) “‘Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves “‘“the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.”’” [Citation.]’ [Citation.]” (Ibid.) However, the general rule requires that the defendant must have timely objected on the specific basis of prosecutorial misconduct and requested a jury admonishment in order to preserve the issue for appeal, unless such an objection or admonition would be futile. (Id. at p. 820.) Nevertheless, “‘[a] prosecutor is allowed to make vigorous arguments and may even use such epithets as are warranted by the evidence, as long as these arguments are not inflammatory and principally aimed at arousing the passion or prejudice of the jury.’ [Citation.]” (People v. Young (2005) 34 Cal.4th 1149, 1195.)
First, defendant failed to object to the second complained-of comment; thus, he has forfeited any contention that it amounted to misconduct. Second, none of the prosecutor’s comments amounted to egregious, deceptive, or reprehensible conduct calculated to infect the trial or render it unfair. Indeed, we fail to see how the first and second complained-of comments amounted to misconduct at all. The first warning against defense counsel’s presumed use of “distractions” was less objectionable than comments made by the prosecutors in People v. Gionis (1995) 9 Cal.4th 1196 and People v. Breaux (1991) 1 Cal.4th 281, which were found to have been proper reminders that the jury should focus on the evidence and not arguments. (Gionis, at pp. 1215-1216 [defense counsel arguing out of both sides of his mouth; had engaged in great lawyering; and an implication that defense counsel in general regularly utilize lying, deceit, and distortion]; Breaux, at pp. 305-306 [if the defense has neither facts nor law on its side, defense counsel will attempt to confuse the jury].) Thus, the remark about creating “distractions” was a perfectly legitimate argument that did not constitute misconduct. Likewise, the second commentary simply argued that the jury consider the context of the victim’s testimony when determining its credibility. This was similarly proper argument.
Nonetheless, in the interest of judicial economy and to forestall defendant’s ineffective assistance of counsel claim, we will address the merits of his claim.
The third complained of commentary, however, came more precipitously close to misconduct. Inviting the jury to “‘view the case through the victim’s eyes’” is an improper appeal to the passion and prejudice of the jurors. (People v. Lopez (2008) 42 Cal.4th 960, 969.) Nevertheless, here, like in Lopez, the prosecutor did not ask the jurors to be placed in the shoes of the victim, but asked them to imagine a hypothetical; in this case, one in which they were omniscient observers of the crime. (Id. at p. 970)
Nonetheless, even assuming error, we discern no prejudice. “[P]rosecutorial commentary should not be given undue weight.... Juries are warned in advance that counsel’s remarks are mere argument... and juries generally understand that counsel’s assertions are the ‘statements of advocates.’ Thus, argument should ‘not be judged as having the same force as an instruction from the court. And the arguments of counsel, like the instructions of the court, must be judged in the context in which they are made. [Citations.]’ [Citation.] ‘[A] court should not lightly infer that a prosecutor intends an ambiguous remark to have its most damaging meaning or that a jury, sitting through lengthy exhortation, will draw that meaning from the plethora of less damaging interpretations.’ [Citation.]” (People v. Gonzalez (1990) 51 Cal.3d 1179, 1224, fn. 21, superseded by statute on another ground as stated in In re Steele (2004) 32 Cal.4th 682, 691.) Here, substantial evidence supported the jury’s verdict. Moreover, the jury was properly instructed to decide the case on the facts presented at trial and the law provided by the court. (CALCRIM Nos. 200, 220, 222, 226; People v. Holt (1997) 15 Cal.4th 619, 662 [jury presumed to have followed trial court’s instruction not to be influenced by pity, prejudice, sentiment, conjecture, sympathy, or passion and not to consider statements by counsel as evidence].) Furthermore, by all appearances the jury appropriately deliberated: it requested access to the video recording of the victim’s RCAT interview, requested a read-back of testimony, deliberated over the course of two days, acquitted defendant of the greater offense, and found defendant guilty solely of a lesser included offense. Thus, any prejudice was harmless.
C. INSTRUCTION ON BATTERY AS A LESSER INCLUDED OFFENSE
Defendant contends that the court had a sua sponte duty to give the jury instructions on battery as a lesser included offense of lewd and lascivious behavior. The People counter that by tactically requesting that the court not give the instruction on the lesser included offense of lewd and lascivious behavior, let alone not requesting an instruction on battery, defendant has forfeited the contention on appeal. Moreover, the People maintain that the expiration of the statute of limitations on battery, and defendant’s failure to waive it, nullified any duty of the trial court to instruct upon it. We disagree with the People’s contention that defendant’s failure to request the instruction forfeited the issue. Similarly, we disagree with the People’s argument that an instruction on battery was time-barred by the statute of limitations. Nevertheless, we hold that battery is not a lesser included offense of lewd and lascivious behavior; thus, the court had no duty to so instruct the jury on its own motion. To the extent the court was required to instruct on battery, we hold its failure to do so harmless.
“‘“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.”’” (People v. Breverman (1998) 19 Cal.4th 142, 154.) “That obligation has been held to include giving instructions on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present [citation], but not when there is no evidence that the offense was less than that charged.” (Ibid.) It arises even where inconsistent with the defense’s theory of the case or where specifically objected to by the defense. (Id. at p. 159.) “[E]very lesser included offense, or theory thereof, which is supported by the evidence must be presented to the jury.” (Id. at p. 155.)
Nevertheless, “There is no sua sponte duty to instruct on a time-barred [lesser included] offense for essentially the same reason there is no such duty to instruct on a lesser related offense: the defendant cannot properly be convicted of the lesser offense in either situation. Ordinarily, a defendant may not be convicted of... a time-barred offense because of the statute of limitations. But just as a defendant may request or consent to an instruction on a related offense [citation] and, upon request, is entitled to the instruction if the facts warrant [citation], so too may one affirmatively waive the statute of limitations.” (Cowan v. Superior Court (1996) 14 Cal.4th 367, 376.) On the other hand, where the record is silent such that nothing indicates defendant requested or acquiesced in the giving of instructions on a time-barred offense, defendant cannot be said to have waived or forfeited the statue of limitations. (People v. Beasley (2003) 105 Cal.App.4th 1078, 1089-1090.)
Here, it is clear that defendant preferred the jury to be instructed solely on the greater, charged offense. He specifically objected to the court’s instruction of the jury on the lesser included offense of lewd and lascivious behavior. Thus, defendant tactically determined the jury should be faced with an all-or-nothing scenario. Therefore, it is similarly unlikely that defendant would have requested an instruction on battery, let alone that he would have waived the statute of limitations on the offense. Nevertheless, there is a substantive error in the People’s statute of limitations argument.
While the People provide some law and a conclusion regarding their contention, they provide no application of the law to the facts, i.e., there is no analysis of the issue. Likewise, appellant did not file a reply brief. Thus, there is no substantive analysis of the issue in the briefs.
Battery is a misdemeanor. (§§ 17, subd. (b), 243, subd. (a).) The statute of limitations on battery is one year. (§§ 243, subd. (a), 802, subd. (a).) A prosecution charging a misdemeanor commences when the complaint is filed. (§ 804, subd. (b).) If a defendant is initially charged with a felony, but is convicted of a necessarily included misdemeanor, the one-year statute of limitations for the misdemeanor applies. (People v. Mincey (1992) 2 Cal.4th 408, 453.)
“When a series of acts occurs so that an offense continues over a period of time, the statutory period usually does not commence to run until after the last overt act or omission occurs.” (Cal. Crim. Defense Prac., Vol. 2, § 40.09[2][b]; People v. Zamora (1976) 18 Cal.3d 538, 548; People v. Keehley (1987) 193 Cal.App.3d 1381, 1385.)
Here, defendant was alleged to have committed the charged acts between March 1, 2005, and February 25, 2006. The jury obviously determined the defendant committed the offense for which he was convicted in December 2005. The complaint was filed on July 31, 2006. Thus, an instruction on battery was not time-barred by the statute of limitations, i.e., the complaint was filed within one year of either the last overt act alleged in the complaint or the date the act occurred as determined by the jury. Therefore, we must determine whether battery actually is a necessarily lesser included offense of lewd and lascivious behavior.
For the purpose of instructing on lesser included offenses, two tests apply in determining whether an uncharged offense is included within a charged offense: the elements test and the accusatory pleading test. (People v. Parson (2008) 44 Cal.4th 332, 349.) “[A] lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense [the elements test], or the facts actually alleged in the accusatory pleading [accusatory pleading test], include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser.” (People v. Birks (1998) 19 Cal.4th 108, 117.) Under the elements test, we look strictly to the statutory elements of the offenses, not to the facts of the case. (People v. Ramirez (2009) 45 Cal.4th 980, 985.) We ask whether “‘“all the legal ingredients of the corpus delicti of the lesser offense [are] included in the elements of the greater offense.” [Citation.]’ [Citation.]” (People v. Lopez (1998) 19 Cal.4th 282, 288.) In other words, “if a crime cannot be committed without also necessarily committing a lesser offense, the latter is a lesser included offense within the former.” (Ibid.; see also People v. Montoya (2004) 33 Cal.4th 1031, 1034.)
“Under the second, or ‘accusatory pleading’ test, we review the information to determine whether the accusatory pleading describes the crime in such a way that if committed in the manner described the lesser must necessarily be committed. [Citation.] The evidence actually introduced at trial is irrelevant to the determination of the status of an offense as lesser included. [Citation.]” (People v. Wright (1996) 52 Cal.App.4th 203, 208.) “[W]hen the accusatory pleading describes the crime in its statutory language... only the statutory elements test is relevant in determining if an uncharged crime is a lesser included offense of that charged. [Citations.]” (People v. Moussabeck (2007) 157 Cal.App.4th 975, 981.)
We conclude that battery is not a necessarily lesser included offense of a lewd and lascivious act under section 288, subdivision (a), under either test. Section 288, subdivision (a) penalizes “[a]ny person who willfully and lewdly 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.” A violation of section 288, subdivision (a), requires a touching of the victim. (People v. Martinez (1995) 11 Cal.4th 434, 444.) The touching may be accomplished by any contact on any part of the victim’s body or clothes; it need not appear objectively sexual so long as the perpetrator’s subjective intent is to arouse his own, or the victim’s, passion or sexual desire. (Ibid.)
Section 242 defines battery as “any willful and unlawful use of force or violence upon the person of another.” The slightest touching can constitute a battery so long as the victim incurs unreasonable harm or offense. (People v. Myers (1998) 61 Cal.App.4th 328, 335.) Thus, the essence of the crime of battery is an offensive touching; no specific intent is required.
Therefore, where a contact has all outward appearances of propriety, a lewd act can nonetheless be committed upon a child without committing a battery. This is because a child may find a particular touching, which may normally constitute a battery, non-offensive such that the offender may escape conviction. Nonetheless, a perpetrator cannot elude conviction for a lewd act simply because the child finds the touching non-offensive, so long as the act is subjectively motivated by an intent to arouse. (People v. Hillhouse (2003) 109 Cal.App.4th 1612, 1619.) Hence, consent is no defense to a charge of lewd and lascivious behavior. (Ibid.) On the other hand, while consent is generally not a defense to battery, it may be deemed one “in a situation involving ordinary physical contact.” (People v. Samuels (1967) 250 Cal.App.2d 501, 513.) Thus, where a person touched a child on the shoulder with no intent to arouse either herself or the child, and the touching is not perceived as offensive or harmful, the individual has committed no crime. However, where the individual touches a child’s shoulder with the intent to arouse himself, but without causing any harm, that individual has committed the offense of lewd and lascivious behavior, but not battery. Therefore, one does not necessarily commit battery in committing a lewd act. (People v. Santos (1990) 222 Cal.App.3d 723, 739 [battery is, at best, a lesser related offense of lewd and lascivious acts].)
In People v. Thomas (2007) 146 Cal.App.4th 1278, the court held that battery is a lesser included offense of lewd acts. (Id. at pp. 1282, 1293.) However, the Thomas court focused on the identity of the element of “touching, ” be it direct or constructive, in both offenses of battery and lewd acts. (Id. at pp. 1291-1293) While we agree with Thomas, that either offense may be accomplished by direct or constructive touching, that does not change the fact that, as discussed above, an offender may commit a lewd and lascivious act (by a touching committed with the intent to arouse), but not commit a battery (by ensuring that the touching is not deemed offensive or harmful by the victim).
As to the accusatory pleading test, the information here alleged that defendant violated section 288.5 by “willfully, unlawfully, and lewdly commit[ing] three (3) [or] more lewd and lascivious acts upon and with the body and certain parts and members thereof of [the victim], a child under the age of fourteen years... with the intent of arousing, appealing to, and gratifying the lust, passions, and sexual desires of the said defendant and the said child.” Thus, the pleading is couched in statutory language and does not allege that the “acts” were perceived as harmful or offensive. Therefore, the accusatory pleading test is irrelevant. (People v. Moussabeck, supra, 157 Cal.App.4th at p. 981.) While the evidence adduced at trial certainly reflected that the victim perceived the touching as harmful and offensive, that evidence is irrelevant for determining whether battery was a lesser included offense of lewd acts. (People v. Wright, supra, 52 Cal.App.4th at p. 208.) Of course, the People could have written the complaint or information to include such an allegation, but here, they did not. Therefore, we hold that battery is not a necessarily lesser included offense of lewd acts under section 288, subdivision (a).
Finally, there was no reasonable probability the jury would have found defendant guilty of battery even if the trial court had instructed it as requested on appeal. (People v. Breverman, supra, 19 Cal.4th at p. 165 [failure to instruct sua sponte on lesser included offense in noncapital case subject to Watson standard of error].) Here, the victim repeatedly stated, both during the RCAT interview and during her trial testimony, that defendant touched her inappropriately on her privates. It is not reasonably probable the jury would have determined that defendant inappropriately touched the victim’s genitalia for any other purpose than with an intent to arouse either himself, or the victim, or both.
People v. Watson (1956) 46 Cal.2d 818, 836.
DISPOSITION
The judgment is affirmed.
We concur: RAMIREZ, P. J., KING, J.