Opinion
F085485
04-10-2024
THE PEOPLE, Plaintiff and Respondent, v. RAFAEL CASTRO RIVERA, Defendant and Appellant.
Beles & Beles, Robert J. Beles and Micah Reyner, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lewis A. Martinez and Amanda D. Cary, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Stanislaus County. No. 4004784, Kellee C. Westbrook, Judge.
Beles & Beles, Robert J. Beles and Micah Reyner, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lewis A. Martinez and Amanda D. Cary, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT[*]
Defendant Rafael Castro Rivera was convicted of forcible oral copulation and sexual battery by restraint arising from an incident involving his nephew's girlfriend, Jane Doe. Defendant contends: (1) there is insufficient evidence he accomplished oral copulation by means of force, violence, menace, duress, or fear to support the forcible oral copulation conviction; (2) there is insufficient evidence he unlawfully restrained Jane Doe to support the sexual battery by restraint conviction; and (3) the trial court prejudicially erred by failing to instruct the jury on the lesser included offense of misdemeanor sexual battery.
The People respond that there is sufficient evidence to support both convictions. The People further contend the trial court had no sua sponte duty to instruct the jury on the lesser included offense of misdemeanor sexual battery and any error in failing to instruct on misdemeanor sexual battery was harmless.
We conclude the evidence was sufficient to support sexual battery by restraint, but the jury should have been instructed on the lesser offense of misdemeanor sexual battery and therefore the conviction on that count must be reversed for retrial or modification of the judgment. In all other respects, we affirm.
PROCEDURAL BACKGROUND
On September 9, 2019, the Stanislaus County District Attorney filed an information charging defendant with forcible oral copulation (former Pen. Code, § 288a, subd. (c)(2)(A); count I) and unlawful touching of an intimate part of a restrained person (§ 243.4, subd. (a); count II).
All further statutory references are to the Penal Code. Effective January 1, 2019, former section 288a was amended and renumbered as section 287. (Stats. 2018, ch. 423, § 49.) The offense of forcible oral copulation is now codified, without substantive change, as section 287, subdivision (c)(2)(A). We will hereinafter refer to section 287.
On November 3, 2022, the jury found defendant guilty on both counts. On December 21, 2022, the trial court sentenced defendant to the middle term of six years on count I and the middle term of three years on count II, to be served concurrently with count I.
Defendant filed a timely notice of appeal.
FACTUAL BACKGROUND
I. Prosecution Evidence
On September 16, 2016, Jane Doe, was living in a trailer home in a trailer park with her boyfriend's mother, stepfather, and brother. Jane Doe's boyfriend was in the army and stationed in South Korea at the time. Defendant is the uncle of Jane Doe's boyfriend. Jane Doe had known defendant for about a year. She spent time with defendant with other family members at family events and when defendant worked on the trailer home where she lived but she had not spent time alone with defendant.
Jane Doe was born in 1997 and was 18 years old at the time of the offenses.
Jane Doe's boyfriend subsequently became her husband.
Defendant was born on October 22, 1969, and was 46 years old at the time of the offenses.
At around 1:00 p.m., on September 16, 2016, Jane Doe was at the trailer home alone. Jane Doe had taken a shower and was wearing a t-shirt and leggings but no bra or underwear. She was reading letters from her boyfriend in her bedroom. Defendant came into the house and knocked on Jane Doe's bedroom door to let her know he was there. Defendant was there to do work on the trailer home. Defendant saw Jane Doe was upset and asked her what was wrong. Jane Doe was tearing up and told defendant she was sad from the letters received from her boyfriend. Defendant asked Jane Doe if he could give her a hug.
Defendant asked Jane Doe if he could come in her room, and she said okay. Defendant told Jane Doe to relax and lay on the bed. Jane Doe complied because she "knew this person so [she] just did as asked without any thought." Defendant offered to give Jane Doe a massage to help her relax. Jane Doe said okay because massage was "a normal thing in that household" among the family. Defendant asked Jane Doe to turn over onto her stomach and she did so. Defendant began massaging the back of Jane Doe's shoulders with both hands while standing over her. After three minutes, defendant's hands moved down to the middle of Jane Doe's back. Defendant's hands moved down again to the lower part of her back right above her buttocks. Defendant then began massaging Jane Doe's buttocks. This made Jane Doe uncomfortable, but she did not say anything.
Defendant asked Jane Doe to flip over so he could rub her legs and she complied. Defendant massaged her thighs. Jane Doe's body got tense when defendant started massaging her legs. Defendant moved to her upper torso and rubbed Jane Doe's breasts skin-to-skin. He then licked her left breast for "maybe" three minutes. Jane Doe tried to get up when defendant had his mouth on her breast but was unable to do so because defendant's body was "over" her body.
Defendant pulled Jane Doe's pants down to below her knees. Jane Doe started to tear up and was shaking her head, "no." Defendant licked her vagina for three to five minutes. Defendant's shoulders and upper torso were on the front of the bottom part of Jane Doe's legs while he was licking her vagina. Jane Doe told defendant to stop and that she had to go while he was licking her. She told defendant to stop more than once. Defendant said, "It's okay," to Jane Doe. She tried lifting herself up again, but she could not. Jane Doe was "scared, not knowing what to do [and felt] no control" while defendant was doing these things to her. She told defendant her dad was waiting for her and if she did not go, her dad would come looking for her. Defendant let Jane Doe go then. Afterwards, defendant wrapped his arms around Jane Doe from behind her when she was trying to leave the room, and said, "I'm sorry. I'm sorry. It's okay."
Jane Doe left the house and called her mother, Tina, and her father, Abel, but they did not answer their phones. Jane Doe drove to her parents' house. Jane Doe was acting frantic and distraught when she arrived at the house. Tina was at home and had missed Jane Doe's calls because she did not hear the phone ring. Jane Doe told Tina what happened. Abel was out on his motorcycle and missed Jane Doe's calls. Abel checked his phone after he stopped and got off his motorcycle. Abel had several voice messages from Jane Doe stating she was terrified, and crying and screaming, telling him to come back to the house. Tina contacted Abel and told him what happened.
Abel went to the trailer home where Jane Doe lived. When Abel arrived, defendant was outside the trailer home doing "some kind of yard work or something." Abel confronted defendant. Abel hit defendant and defendant fell. Defendant picked up a garden tool and there was an altercation between him and Abel. Jane Doe and Tina arrived at the trailer home during the altercation. Jane Doe called 911 to report the fight. Tina got on the phone and reported to 911 the sexual assault against Jane Doe. Defendant barricaded himself inside the house and would not come out.
Stanislaus County Deputy Sheriff Andrew Nikkel was the first officer to respond to the scene. Nikkel spoke with Jane Doe and determined that a sexual assault had possibly taken place. Deputy Sheriff Donald Worsham interviewed Jane Doe about the incident after he arrived at the scene. Jane Doe was upset during the interview. Jane Doe requested an emergency protective order which Worsham issued.
The sheriffs told Jane Doe to go to the hospital for testing. Jane Doe went with Tina to Memorial Medical Center that day. Brenda Warren, a Sexual Assault Nurse Examiner, performed a sexual assault examination on Jane Doe. Jane Doe was shaken, teary and disheveled when Warren spoke with her. Jane Doe had bruising on her right lateral thigh and a scratch on her left elbow. Warren noted that defendant had grabbed Jane Doe by her legs, was pulling at her, put his body weight on her, grabbed her face and pinched her cheeks. Jane Doe told a nurse she sustained a bruise on her left arm when defendant was holding her down as she was laying down. Warren collected buccal swabs from Jane Doe's right breast and the external area of her vagina. The DNA profile from the buccal swab of Jane Doe's breast was a match to a reference sample from defendant but there was not enough DNA in the vaginal buccal swab to compare to defendant.
II. Defense Evidence
Defendant testified at trial in his defense. He remodels homes for a living and had already begun to remodel the bathroom in his sister's trailer home on September 16, 2016. Defendant's sister knew defendant was coming that day to work on the trailer home and left the door open for him to enter. Defendant arrived at the trailer home and had begun working on the bathroom when he heard Jane Doe call to him. No one else was at the trailer home.
Defendant came to Jane Doe's open bedroom door. Defendant and Jane Doe greeted each other. Defendant saw that Jane Doe was sad and asked how she was doing. Jane Doe said she was sad because she was reading some letters. Defendant told her not to worry and everything would be fine. Defendant offered Jane Doe a massage with the intention to "lift her spirits." Jane Doe accepted the offer.
Defendant began massaging Jane Doe's shoulders. While defendant was massaging Jane Doe, she "began to react in a way where she was enjoying the massage in a different way than the massage." Defendant asked her if she wanted to lie down, and Jane Doe laid face down on the bed. He kept massaging Jane Doe from her shoulders all the way down to her feet. Defendant would ask Jane Doe each time he was going to do something, and she would accept. Jane Doe never said to defendant she "[did not] want to do that." Defendant took Jane Doe's reactions and responses as consent to go further.
Defendant pulled Jane Doe's pants down since the "situation had gotten to a point that was more than the massage." He then asked Jane Doe if she wanted to lie face up and she did. When defendant saw Jane Doe nude after she laid face up, he "let [himself] go." Defendant continued upward to Jane Doe's breast and saw that she kept enjoying it. Defendant put his mouth on her breast. Up to that point, Jane Doe had not told defendant to stop or pushed his hands or head. Jane Doe did not try to get defendant to stop, and he did not hold Jane Doe down. Defendant testified he would have stopped immediately if Jane Doe had resisted physically or verbally in any way. Jane Doe suddenly remembered she had to go and cook something for her dad so defendant stopped.
Afterward, defendant reacted to the fact that they were doing something wrong because he had a commitment to his wife and Jane Doe had a relationship with his nephew. He asked Jane Doe if she was okay, and she said yes. Defendant felt bad because of what they did and told Jane Doe he was very sorry. Defendant denied restraining Jane Doe from leaving the bedroom or the trailer home. After Jane Doe left the trailer home, defendant continued with his work.
Defendant was in the yard washing tools when Abel arrived at the trailer home about an hour and a half later. Defendant fell from a blow to his head and Abel continued to beat him. Abel accused defendant of molesting his daughter and defendant denied doing so. A neighbor on a roof yelled at Abel to stop beating defendant. Once defendant was able to get up, he went inside the house, locked the doors, and called 911. Defendant told 911 Abel was accusing him of molesting Abel's daughter and he did not know what Abel was talking about. Defendant came outside the trailer home when the sheriffs called him.
DISCUSSION
I. Sufficiency of the Evidence
Defendant contends there is insufficient evidence for a rational jury to conclude he committed both offenses beyond a reasonable doubt.
A. Standard of Review
In assessing a sufficiency of the evidence claim, "we review the whole record to determine whether any rational trier of fact could have found the essential elements of the crime ... beyond a reasonable doubt. [Citation.] The record must disclose substantial evidence to support the verdict-i.e., evidence that is reasonable, credible, and of solid value-such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence." (People v. Zamudio (2008) 43 Cal.4th 327, 357; see also People v. Johnson (1980) 26 Cal.3d 557, 578.) If the"' "circumstances reasonably justify the jury's findings, the judgment may not be reversed simply because the circumstances might also reasonably be reconciled with a contrary finding." '" (People v. Houston (2012) 54 Cal.4th 1186, 1215.)" 'We do not reweigh evidence or reevaluate a witness's credibility.'" (Ibid.) A reversal for insufficient evidence "is unwarranted unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support ... '" the jury's verdict. (People v. Bolin (1998) 18 Cal.4th 297, 331.) The defendant thus "bears an enormous burden in claiming there is insufficient evidence" to support a conviction. (People v. Veale (2008) 160 Cal.App.4th 40, 46.)
B. Forcible Oral Copulation
Forcible oral copulation requires "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." (§ 287, subd. (c)(2)(A).)
The trial court instructed the jury on the forcible oral copulation count pursuant to CALCRIM No. 1015. Specifically, the jury was instructed that the People must prove: (1) the defendant committed an act of oral copulation on someone else; (2) the other person did not consent to the act; and (3) the defendant accomplished the act by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on someone. Defendant only challenges the sufficiency of the evidence to support the third element of this offense.
In People v. Cicero (1984) 157 Cal.App.3d 465, 474, disapproved on another ground by People v. Soto (2011) 51 Cal.4th 229, 243-248, the Court of Appeal defined" 'force'" for purposes of lewd acts by force on a child in section 288 as "physical force substantially different from or substantially greater than that necessary to accomplish the lewd act itself." In People v. Griffin (2004) 33 Cal.4th 1015 (Griffin), our Supreme Court considered whether the term "force" as used in section 261, the rape statute, has the same specialized legal meaning. The Griffin court held that "force" has no specialized legal meaning under the rape statute and rejected application of the definition adopted by the Cicero court to forcible rape. (Griffin, at pp. 1023-1024.) Instead, the court concluded that "[w]hen two adults engage in consensual sexual intercourse, whether with or without physical force greater than that normally required to accomplish an act of sexual intercourse, the forcible rape statute is not implicated. The gravamen of the crime of forcible rape is a sexual penetration accomplished against the victim's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury." (Id. at p. 1027.) The court acknowledged the "Legislature has never sought to circumscribe the nature or type of forcible conduct that will support a conviction of forcible rape, and indeed, the rape case law suggests that even conduct which might normally attend sexual intercourse, when engaged in with force sufficient to overcome the victim's will, can support a forcible rape conviction." (Ibid.) Thus, in a rape case, the "question for the jury [is] ... simply whether defendant used force to accomplish intercourse with [the victim] against her will, not whether the force he used overcame [the victim's] physical strength or ability to resist him." (Id. at p. 1028.) The court found the defendant in Griffin used the requisite force because he pinned the victim's arms to the floor as he penetrated her. (Id. at p. 1029.)
Following Griffin, the Court of Appeal considered how to define "force" for purposes of aggravated sexual assault of a child by forcible oral copulation under section 269. (People v. Guido (2005) 125 Cal.App.4th 566 (Guido).) The court observed that "[a]s Griffin recognized, the term 'force' as used by the Legislature in sexual offense statutes does not have a constant meaning; the meaning changes depending on the crime to which the term is applied." (Id. at p. 575.) The court found the reasoning in Griffin "appl[ies] equally to the crime of forcible oral copulation." (Id. at p. 576.) "As with forcible rape, it is only when one participant in the act uses force to commit the act against the other person's will that an otherwise lawful act becomes unlawful." (Ibid.) The court concluded that "there is no reasoned basis to apply a different concept of the term 'force' to forcible rape and forcible oral copulation and we hold oral copulation by force within the meaning of [former] section 288a, subdivision (c)(2) is proven when a jury finds beyond a reasonable doubt that [the] defendant accomplished an act of oral copulation by the use of force sufficient to overcome the victim's will." (Ibid.)
Defendant concedes the jury was instructed regarding "force" for purposes of this count consistent with Guido as follows: "An act is accomplished by force if a person uses enough physical force to overcome the other's will."
There is substantial evidence here that a rational jury could find defendant used sufficient force to overcome Jane Doe's will to orally copulate her. When defendant pulled Jane Doe's pants down below her knees, Jane Doe was tearing up and shaking her head "no." Jane Doe tried to get up when defendant was licking her vagina but was unable to do so because defendant's shoulders and upper torso were on top of her legs. This indicates defendant used his body weight to hold Jane Doe down to orally copulate her. She told defendant to stop, and she had to go while defendant had his mouth on her vagina. Defendant only "let [Jane Doe] go" when she said her father was waiting for her and would come looking for her if she did not go. Jane Doe had bruising on her right lateral thigh and a scratch on her left elbow following the incident.
Defendant argues when his torso was on top of Jane Doe's legs he was in a "normal sex position," and no rational jury could conclude the "mere application of the weight of [his] torso to Jane Doe's shins overcame her will to resist three to five minutes of cunnilingus." We reject defendant's implied assertion there must be a specific modicum of force to prove forcible oral copulation. The Griffin court acknowledged that "conduct which might normally attend sexual intercourse" can support a rape conviction "when engaged in with force sufficient to overcome the victim's will." (Griffin, supra, 33 Cal.4th at p. 1027.)" '" 'The kind of physical force is immaterial.'" '" (Ibid.) Similarly, forcible oral copulation simply necessitates the use of force sufficient to overcome the victim's will. (Guido, supra, 125 Cal.App.4th at p. 576.) The prosecution was not required to show the use of such force prevented Jane Doe from physically resisting defendant. (Ibid.)" 'Force' includes circumstances where the victim did not want to engage in the act and the evidence does not otherwise establish the victim's positive cooperation in act or attitude." (People v. Thomas (2017) 15 Cal.App.5th 1063, 1071.) Jane Doe's requests that defendant stop and attempts to get up while he was licking her vagina evinced her unwillingness to participate in this act.
Defendant contends although Jane Doe told a nurse she sustained a bruise when defendant held her down, she later clarified in her testimony that did not happen. Jane Doe testified that she told a nurse she sustained a bruise to her left arm from defendant holding her down, but later denied in her testimony that defendant restrained or held her "hands." To the extent her testimony is conflicting, it is the jury's exclusive province as the trier of fact to resolve conflicts and inconsistencies in Jane Doe's testimony. (People v. Young (2005) 34 Cal.4th 1149, 1181.) The jury "has wide latitude to believe or disbelieve witnesses, or even specific portions of their testimony" and may"' "combine the accepted portions with bits of testimony or inferences from the testimony of other witnesses thus weaving a cloth of truth out of selected available material." '" (In re Lopez (2023) 14 Cal.5th 562, 591.) Jane Doe acknowledged during her trial testimony that she did not remember everything as clearly six years later as she did back in 2016. Viewing the evidence in the light most favorable to the prosecution, the jury could rationally find that Jane Doe's disclosure to the nurse immediately after the incident about whether defendant held her down was more credible than her later trial testimony.
Defendant discusses the sufficiency of the evidence to support the offense's other purported "sub-element[s]" of menace, duress, and fear of immediate and unlawful bodily injury as though the prosecution was required to prove the act was accomplished by more than one of the factors identified in section 287. Because the statutory language is in the disjunctive, the prosecution was only required to show the act was accomplished by one of the statutory factors. (People v. Reyes (1984) 153 Cal.App.3d 803, 809 ["[t]here is no question that all of these facts need not be proven for conviction" because the statute uses the disjunctive "or" in listing the factors].) Defendant's conviction is not subject to reversal if there is substantial evidence supporting just one theory of guilt. (People v. Guiton (1993) 4 Cal.4th 1116, 1127-1129.) "[I]f a jury is presented with multiple theories supporting conviction on a single charge and on review one theory is found unsupported by sufficient evidence, reversal is not required if sufficient evidence supports the alternate theory and there is no affirmative basis for concluding the jury relied on the factually unsupported theory because it is presumed jurors would not rely on a factually deficient theory." (People v. Llamas (1997) 51 Cal.App.4th 1729, 1740.) Because there was substantial evidence the act was accomplished by force, a jury could reasonably have found defendant committed forcible oral copulation based on that factor alone. We consequently need not and do not address defendant's contentions regarding whether substantial evidence supports a finding the act was accomplished by menace, duress, or fear of immediate and unlawful bodily injury.
Indeed, the prosecutor argued in closing solely that the oral copulation was accomplished by force. Specifically, the prosecutor argued: "Element three is that the oral copulation was accomplished by force. An act is accomplished by force when a person uses enough physical force to overcome theother person's will. [Defendant] was on top of [Jane Doe]. She's 18. She can't get up. She's trying to get up and she can't. This oral copulation was accomplished by force here."
We reject defendant's sufficiency of the evidence argument for his forcible oral copulation conviction.
C. Sexual Battery by Restraint
A person commits sexual battery by restraint under section 243.4, subdivision (a) by "touching] an intimate part of another person while that person is unlawfully restrained by the accused or an accomplice, and if the touching is against the will of the person touched and is for the purpose of sexual arousal, sexual gratification, or sexual abuse."
The jury was instructed on sexual battery by restraint (count II) with CALCRIM No. 935. Pursuant to CALCRIM No. 935, the jury was instructed that to find defendant guilty on this count, the prosecution must prove: (1) the defendant unlawfully restrained Jane Doe; (2) while Jane Doe was unlawfully restrained, defendant touched an intimate part of Jane Doe; (3) the touching was done against Jane Doe's will; and (4) the touching was done for the specific purpose of sexual arousal, sexual gratification, or sexual abuse. The jury was further instructed that "[s]omeone is unlawfully restrained when his or her liberty is controlled by words, acts, or authority of another and the restraint is against his or her will. [¶] Unlawful restraint requires more than just the physical force necessary to accomplish the sexual touching."
Defendant solely challenges whether there is sufficient evidence he unlawfully restrained Jane Doe when he touched Jane Doe's breasts with his hands and mouth. He argues the evidence cannot reasonably be construed to show defendant aimed to restrain Jane Doe's liberty to touch her breasts. He further argues the record does not indicate an act of restraining Jane Doe beyond what was necessary to touch her breasts because defendant "simply stood over" Jane Doe while doing so.
While section 243.4 does not define" 'unlawfully restrained,'" the "term can be viewed as distinguishing the nonsexual physical element of sexual battery from the more wanton 'force, violence, or fear' element of rape." (People v. Pahl (1991) 226 Cal.App.3d 1651, 1661.) This court has held that "a person is unlawfully restrained when his or her liberty is being controlled by words, acts or authority of the perpetrator aimed at depriving the person's liberty, and such restriction is against the person's will.... The 'unlawful restraint required for violation of section 243.4 is something more than the exertion of physical effort required to commit the prohibited sexual act.'" (People v. Arnold (1992) 6 Cal.App.4th 18, 28 (Arnold).) Although restraint can be physical (Pahl, at p. 1661), physical restraint is not required. (People v. Grant (1992) 8 Cal.App.4th 1105, 1111-1113.) The restraint may be psychological. (Grant, at pp. 1111-1113; Arnold, at p. 28.) "There are many situations where one is compelled, i.e., forced, to do something against one's will but the compulsion does not involve personal violence or threats of personal violence. This is especially true when the person involved in the compulsion is an authority figure or posing as a person in authority. The force is a psychological force compelling the victim to comply with the orders of the authority figure." (Grant, at p. 1112.)
In People v. Alford (1991) 235 Cal.App.3d 799, the defendant, a correctional officer, on two occasions fondled and put his mouth on two inmates' breasts when he was transporting the women between jails. The defendant argued he could not commit sexual battery by restraint when the victims were inmates who had previously been placed in restraints for a lawful purpose. (Id. at p. 803.) The Court of Appeal rejected the "utter absurdity" of the defendant's argument and held that "what is lawfully begun can become unlawful when for example, it exceeds the bounds of reasonableness, when the conduct which would otherwise be lawful is engaged in for an improper purpose or when, as in this case, the original lawful purpose is replaced with or supplemented by an unlawful purpose." (Id. at pp. 803-804.)
In Arnold, a high school teacher was convicted under section 243.4, subdivision (a) for two incidents involving a student. (Arnold, supra, 6 Cal.App.4th at pp. 22-23.) During one incident, the teacher invited the victim to run together to the football stadium. (Id. at p. 22.) At the stadium, the teacher grabbed the victim's buttocks, kissed her, and put his hands under her top to touch her breasts. (Ibid.) Another time, the teacher called the victim into the wrestling room, closed the room's door, and put a mat against the door. (Ibid.) The victim went to the other side of the room but came closer to the teacher upon his request. (Id. at p. 23.) The teacher put his hand down the victim's top and touched her breasts under her bra. (Ibid.)
On appeal, the defendant teacher argued unlawful restraint requires a significant limitation on the personal liberty of the victim and renders the crime physically traumatic and psychologically terrifying. (Arnold, supra, 6 Cal.App.4th at p. 24.) This court rejected the defendant's argument and adopted the definition outlined above for unlawful restraint. (Id. at p. 28.) Applying this definition, we concluded the victim was not unlawfully restrained during the incident at the football stadium because there was no evidence the victim was unwilling and compelled by the defendant's words, acts, or authority. (Id. at p. 29.) But we found the defendant unlawfully restrained the victim during the wrestling room incident because he created "a coercive atmosphere" by using the victim's isolation and fear, and his authority as a teacher to engage in prohibited touching. (Id. at p. 31.)
In People v. Perez-Robles (2023) 95 Cal.App.5th 222 (Perez-Robles), the defendant, a massage therapist, was convicted of several sex offenses committed against his clients including two counts of sexual battery by restraint. For one of the sexual battery counts, the defendant had the victim turn on her side during a massage, moved his hand underneath the victim's leggings and rubbed her vaginal lips for four to five seconds. (Id. at p. 228.) The victim was scared, and realized the door was closed and she was alone with the defendant. (Ibid.) She felt" 'really blank,'" started crying, and left shortly after. (Ibid.) The defendant's other sexual battery victim was more than seven months pregnant at the time of the offense. (Id. at p. 229.) The defendant began massaging the victim's breasts during the massage. (Ibid.) The victim did not want the defendant to do this but did not think she could jump off the table in her advanced pregnant state. (Ibid.) She was scared because no one else was around and she thought if the defendant was capable of touching her breasts, she was" 'not sure what else he [was] capable of.'" (Ibid.) The massage continued during which the defendant put his hand underneath the victim's underwear three times touching her labia. (Ibid.)
The defendant argued there was insufficient evidence either victim was unlawfully restrained because they were adults who voluntarily consented to a therapeutic massage and could have left at any time. (Perez-Robles, supra, 95 Cal.App.5th at p. 230.) The Court of Appeal rejected this argument reasoning that while the victims may have "consented to the exertion of physical restraint that is concomitant with a therapeutic massage ... it is clear the women did not agree to being sexually assaulted during the course of that massage." (Ibid.) Following the reasoning of People v. Alford, supra, 235 Cal.App.3d 799 that lawful conduct can become unlawful when an original lawful purpose is replaced with an unlawful purpose, the court held that "[o]nce defendant took advantage of the victims' consent to a therapeutic massage by touching their genitals, he exceeded the scope of their consent and engaged in unlawful conduct." (Perez-Robles, at p. 231.) The court found the victims relied on the defendant's authority as an "expert in massage therapy," and trusted him with access to intimate parts of their bodies "to perform a legitimate and professional massage." (Id. at p. 233.) The court concluded, "[d]efendant violated both his position of authority and the women's trust in that authority by touching them inappropriately. When he did so, they froze in fear and shock, and as they both described, were psychologically compelled by defendant's actions to 'remain where [they] did not voluntarily wish to be,' which is the essence of restraint." (Ibid.)
Similarly, here, a rational jury could have found that defendant unlawfully restrained Jane Doe to touch her breasts under section 243.4, subdivision (a). When defendant told Jane Doe to relax and lay on the bed, she complied because she "knew this person so [she] just did as asked without any thought." Jane Doe consented to defendant's offer of a massage because massage "was something normal in that household." Although defendant was not a professional massage therapist like the defendant in Perez-Robles, he took advantage of his relationship with Jane Doe as a person she knew and had spent time with around family. Jane Doe reasonably trusted that defendant would massage her in a manner like she had seen other household members massage each other. The massage was lawfully begun with the victim's consent, but defendant exceeded the scope of Jane Doe's consent when he touched her breasts during that massage. Once defendant did so, the original lawful purpose of the massage was replaced with an unlawful agenda. Jane Doe tried to get up when defendant put his mouth on her breasts but was unable to do so. She was physically vulnerable as she was alone in the trailer home with defendant and emotionally vulnerable as reflected by her observable sadness from her boyfriend's letters. Jane Doe was an adult because she was 18 years old, but defendant was 28 years her senior and could be considered an authority figure due to their age difference and defendant's familial role as her boyfriend's uncle. She was "scared," did not know what to do, and felt she had "no control" while defendant did these things to her. Viewing the evidence in the light most favorable to the prosecution, a rational jury could conclude defendant created a "coercive atmosphere" that controlled Jane Doe's liberty through isolation and fear, and compelled Jane Doe's compliance despite her unwillingness. We thus conclude substantial evidence supports defendant's conviction for sexual battery by restraint.
"The age of 18 is the point where society draws the line for many purposes between childhood and adulthood." (Roper v. Simmons (2005) 543 U.S. 551, 574.)
II. Instruction on Lesser Included Offense
Defendant contends the trial court prejudicially erred by failing to instruct the jury on the lesser included offense of misdemeanor sexual battery on count II. We agree.
A. Applicable Law and Standard of Review
"Under California law, trial courts must instruct the jury on lesser included offenses of the charged crime if substantial evidence supports the conclusion that the defendant committed the lesser included offense and not the greater offense." (People v. Gonzalez (2018) 5 Cal.5th 186, 196 (Gonzalez).) The trial court has a sua sponte duty to instruct on a lesser included offense irrespective of whether the defendant requests the instruction. (Ibid.) "The prejudice arising from the failure to give such instructions is the risk that the jury ignored its instructions and convicted the defendant of an offense ... for which the prosecution did not carry its burden. The jury might have been convinced that the defendant was guilty of some lesser included offense and, as a result, tempted to convict of a greater offense rather than acquit." (Id. at p. 200.)
"Instruction on a lesser included offense is required only when the record contains substantial evidence of the lesser offense, that is, evidence from which the jury could reasonably doubt whether one or more of the charged offense's elements was proven, but find all the elements of the included offense proven beyond a reasonable doubt." (People v Moore (2011) 51 Cal.4th 386, 408-409.) "In deciding whether evidence is 'substantial' in this context, a court determines only its bare legal sufficiency, not its weight." (People v. Breverman (1998) 19 Cal.4th 142, 177 (Breverman), disapproved on other grounds in People v. Schuller (2023) 15 Cal.5th 237, 260, fn. 7.) "Although instruction on a lesser included offense 'is not required when the evidence supporting such an instruction is weak' [citation] or based on speculation [citation], it is required when the lesser included offense is supported by' "evidence that a reasonable jury could find persuasive"' [citation].' "Doubts as to the sufficiency of the evidence to warrant instructions should be resolved in favor of the accused." '" (People v. Steskal (2021) 11 Cal.5th 332, 345.)
We apply de novo review to the trial court's failure to instruct on a lesser included offense. (People v. Cole (2004) 33 Cal.4th 1158, 1218.)
B. Analysis
As outlined above, the jury was instructed on the charge of sexual battery by restraint with CALCRIM No. 935. The record does not indicate defendant asked the trial court to also instruct the jury on misdemeanor sexual battery.
As previously discussed, a conviction under section 243.4, subdivision (a) requires the victim be unlawfully restrained. Misdemeanor sexual battery, however, requires a person "touches an intimate part of another person, if the touching is against the will of the person touched, and is for the specific purpose of sexual arousal, sexual gratification, or sexual abuse." (§ 243.4, subd. (e)(1).) Misdemeanor sexual battery thus lacks the unlawful restraint element. The parties agree, as do we, that misdemeanor sexual battery is a lesser included offense of sexual battery by restraint. (People v. King (2010) 183 Cal.App.4th 1281, 1319; Gonzalez, supra, 5 Cal.5th at p. 197 ["one offense is another's 'lesser included' counterpart if all the elements of the lesser offense are also elements of the greater offense"].)
Defendant contends the testimony did not clearly explain how any physical restraint occurred beyond the act necessary to touch Jane Doe's breasts. He contends a rational jury could have found defendant guilty of misdemeanor sexual battery and not the greater offense because there was a lack of convincing testimony about restraint.
The "issue of whether there was sufficient evidence to support [the] defendant's conviction of sexual battery by restraint is different than the issue of whether the jury should have received an instruction on the lesser included offense of misdemeanor sexual battery, which lacks the unlawful restraint element [citation]." (Perez-Robles, supra, 95 Cal.App.5th at p. 237.) "That the jury chose the greater over acquittal, and that the evidence technically permits conviction of the greater, does not resolve the question whether, 'after an examination of the entire cause, including the evidence' [citation], it appears reasonably probable the jury would nonetheless have elected the lesser if given that choice." (Breverman, supra, 19 Cal.4th at p. 178, fn. 25.)
Our inquiry is thus whether a reasonable jury would have found defendant committed misdemeanor sexual battery but harbored a reasonable doubt on one or more elements of sexual battery by restraint. To the extent defendant's argument about "a lack of convincing testimony" challenges Jane Doe's credibility, we do "not evaluate the credibility of witnesses" in deciding whether there is substantial evidence of the lesser offense. (Breverman, supra, 19 Cal.4th at p. 162.) Review of Jane Doe's testimony though shows the evidence was close on the element of unlawful restraint:
"[PROSECUTION]: Did his mouth touch any other parts of your body?
"[Jane Doe]: My breasts.
"[PROSECUTION]: And how did that come about? How did that happen?
"[Jane Doe]: When he was giving me a massage, he began rubbing my breasts and putting his mouth on my breasts.
"[PROSECUTION]: Was that skin-to-skin?
"[Jane Doe]: Skin-to-skin.
"[PROSECUTION]: About how long did that happen for?
"[Jane Doe]: A couple minutes.
"[PROSECUTION]: Did you try to physically get away?
"[Jane Doe]: Yes, I tried to get up.
"[PROSECUTION]: Were you able to get up?
"[Jane Doe]: No.
"[PROSECUTION]: Why not?
"[Jane Doe]: Because his body was over my body. [¶] ... [¶]
"[DEFENSE COUNSEL]: And where was he sitting or standing when he was rubbing your legs-lower legs?
"[Jane Doe]: Standing at the edge of the bed at this point.
"[DEFENSE COUNSEL]: Okay. And so he was sitting on the bed rubbing your legs and he went up to your upper torso. When he got on your upper torso, at some point your testimony was he began to lick your leg-your breasts, your left breast, I think you said.
"[Jane Doe]: Yes.
"[DEFENSE COUNSEL]: And you said that went on maybe for about three minutes?
"[Jane Doe]: Yes.
"[DEFENSE COUNSEL]: Okay. At any point in this, did you push him with your hands, slap him with your hands
"[Jane Doe]: No. I tried moving my body up.
"[DEFENSE COUNSEL]: -kick him? You just tried to sit up. And where were your hands at this time?
"[Jane Doe]:They were down by my sides."
Jane Doe attempted to get up when defendant had his mouth on her breast, but she did not say defendant prevented her from doing so by holding her down. While Jane Doe told a nurse she sustained a bruise on her arm when defendant held her down, there was no evidence he did so while touching her breasts with his hands or mouth. Jane Doe also testified that defendant did not restrain or hold her hands down at any time.
We reject the People's argument the evidence of unlawful restraint was the same as the evidence of force for forcible oral copulation. Jane Doe testified that defendant's shoulders and upper torso were on the bottom part of her legs while he was licking her vagina. This indicates defendant used his body weight to orally copulate Jane Doe by force. Jane Doe testified she was unable to get up when defendant had his mouth on her breast because his body was "over" her body, but the testimony is unclear if defendant was holding Jane Doe down by use of his body weight while doing so.
Because the evidence on the restraint element was relatively close, at least one or more jurors could have harbored a reasonable doubt as to whether defendant committed the offense by restraining Jane Doe. (People v. Moore, supra, 51 Cal.4th at pp. 408-409; see also In re Long (2020) 10 Cal.5th 764, 785 [at least one juror harboring a reasonable doubt is sufficient to show prejudice].) Presented with an all-or-nothing choice of conviction or acquittal on this count, the jury found defendant guilty of the greater offense. (Breverman, supra, 19 Cal.4th at p. 155.) Resolving any doubts in defendant's favor about whether the evidence warrants instruction on a lesser offense (People v. Steskal, supra, 11 Cal.5th at p. 345), we conclude the trial court erred in failing to instruct the jury on misdemeanor sexual battery.
A failure to instruct on lesser included offenses in noncapital cases is an error of state law subject to the standard set forth in People v. Watson (1956) 46 Cal.2d 818. (People v. Schuller, supra, 15 Cal.5th at p. 260.) Under the Watson standard, the error is not subject to reversal unless an examination of the entire record shows there is a reasonable probability of a more favorable outcome if the jury was properly instructed. (Gonzalez, supra, 5 Cal.5th at p. 195; Watson, at p. 836.) Here, the error in failing to instruct the jury on the lesser offense was not harmless because there is a reasonable probability that if the jury was properly instructed, defendant would have been convicted of misdemeanor sexual battery instead of sexual battery by restraint.
While substantial evidence supports defendant's conviction for sexual battery by restraint, the trial court prejudicially erred by failing to instruct the jury on the lesser offense of misdemeanor sexual battery. We need not reverse defendant's conviction due to this instructional error where the evidence supports his guilt on the lesser offense. (See, e.g., People v. Edwards (1985) 39 Cal.3d 107, 118.) Defendant implicitly concedes the evidence supports a conviction for the lesser offense by arguing "a reasonable jury could have found defendant guilty of misdemeanor sexual battery." We agree. The evidence was overwhelming that defendant touched an intimate part of Jane Doe against her will and for purposes of sexual arousal, sexual gratification, or sexual abuse.
Under these circumstances, the People have the option to retry defendant on count II or to accept modification of the judgment to reflect a conviction for misdemeanor sexual battery. (People v. Kelly (1992) 1 Cal.4th 495, 528.) Because the People have expressed no view on whether they would consent to modify the judgment rather than retry defendant, we will reverse defendant's conviction on count II and preserve both options for the People. (People v. Edwards, supra, 39 Cal.3d at p. 118.)
DISPOSITION
Defendant's conviction for sexual battery by restraint on count II is reversed. The People may elect to retry defendant on count II or accept modification of the judgment to reflect a conviction for misdemeanor sexual battery (§ 243.4, subd. (e)(1)). The judgment is otherwise affirmed.
[*]Before Pena, Acting P. J., Smith, J. and DeSantos, J.