Opinion
A097381.
7-30-2003
THE PEOPLE, Plaintiff and Respondent, v. DAVID WASHINGTON, Defendant and Appellant.
Defendant David Washington was convicted of rape, oral copulation, and two counts of penetration with a foreign object. The victim was his minor daughter. He claims that the trial court erred in not allowing cross-examination of his daughter regarding an alleged motive to lie, erroneously instructed the jury on the definition of "force," and failed to instruct sua sponte on the lesser offense of sexual battery. He also maintains that there was insufficient evidence supporting his rape conviction. We affirm.
PROCEDURAL BACKGROUND
The Alameda County District Attorney charged defendant by information with rape (Pen. Code, § 261, subd. (a)(2), count 1), forcible oral copulation ( § 288a, subd. (c)(2), count 2) and penetration with a foreign object ( § 289, subd. (a)(1), counts 3 and 4). The information also alleged that defendant had three prior felony convictions. Following a jury trial, defendant was convicted of all counts. He admitted the three prior felony convictions. The court struck one of defendants prior convictions, and sentenced him to an indeterminate term of 25 years to life, plus 5 years each for the two prior convictions. This timely appeal followed.
Unless otherwise noted, all further statutory references are to the Penal Code.
FACTUAL BACKGROUND
The victims testimony
Defendants minor daughter, Elena, was 16 years old in the fall of 1999. Until July 1999, she had not had a relationship with her father, who had been incarcerated during her childhood. She was raised by her maternal grandparents. After her grandmothers death she and her father began to exchange letters. A few weeks later she moved in with her maternal uncle and his wife in San Francisco. Elena and her uncle got along but had some disagreements. Elena hoped to establish a relationship with her father. She called her father and asked if she could stay with him, and he consented. She moved in with defendant, his fiancee Alice McLane, her three children, and McLanes mother in July 1999.
Initially, Elena and her father got along well. Then her father started to get more strict, and "didnt want [her] outside or going anywhere unless [she] called him . . . first." By September 1999, the relationship had deteriorated. Her father forbid her to see her boyfriend because he felt the boyfriend was too old for her. Defendant punished Elena by grounding her—forbidding her to go anywhere or use the telephone. Once when defendant felt she was not home on time, he grabbed her, "pushed [her] down the hall towards his room, . . . threw [her] on his bed and slapped [her] in [the] face."
On September 24, 1999, defendant arrived home from work about 10:00 or 11:00 p.m. He told Elena to "get in the car because [they] were going for a ride." She complied. Defendant drove to a Motel 6 near Hegenberger Road in Oakland. They went directly to a room, without stopping first to check in. Once inside, defendant asked Elena if she had gone somewhere that day that she was not supposed to go. He then asked Elena questions about her boyfriends, past boyfriends, and past sexual experiences. The conversation lasted a few hours. Elena testified that she thought the conversation was unusual, but defendant explained to her that she should be able to tell him anything because he was her father, that he had to trust her, and she had to tell him the truth. They left the motel at 1:00 or 2:00 in the morning and returned home. They did not discuss the trip to the motel, and Elena did not tell anyone about it at the time.
On Friday, October 1, 1999, defendant came home between 9:00 and 11:00 p.m., while Elena was laying down, getting ready to go to sleep. Defendant told her to get up and come with him. Elena got up, put on her clothes and shoes, and got in the car. Defendant did not tell her where they were going, and Elena was afraid to ask. Defendant took Elena to the same motel, and entered a room using a key defendant had with him.
Once in the motel room, defendant asked Elena where she went that evening. She responded that she was babysitting. Defendant accused of her lying. Elena admitted at trial that she was lying. Defendant asked her where she really went and whether she had sex that night. Elena denied having sex and defendant again said she was lying. After continuing to question her, defendant told her to take off her clothes. Elena asked why, and "he said because I was lying." She could tell he was serious by the look on his face. Elena was mad and scared "because [she] didnt know what he was doing." She continued to ask him why, but after a couple of minutes, removed her clothes but left on her underwear. Defendant told her to take off everything. She was "trying to do what he said, so [they] could leave."
Defendant then told Elena to lay down. He kept asking her whether she had sex, and she kept denying it. Defendant wanted Elena "to prove to him that [she] didnt . . . have sex." She testified that "he wanted me to stick my finger inside of myself to see if it was wet." Elena kept asking defendant why; she kept saying she was telling the truth. Defendant told her she was lying, and that if she complied they could leave. Elena wanted to go home, so she put her finger inside her vagina, "took it out, and [defendant] felt [her] finger, and he said that he didnt feel anything." Elena started crying, and did not stop crying. Defendant told her that "he couldnt feel nothing and that he wanted to do it." Elena asked him why and repeated that she was telling the truth. Defendant responded that "he wanted to do it, and we werent leaving."
Defendant told her he wanted her to lay down and open her legs. Elena was lying on her back on the bed with her knees in the air and her legs closed and her arms covering her chest. Elena refused to open her legs, so defendant put his hands on her knees and opened them. Elena shut her legs. Defendant told her to "stop playing" and opened her legs again. Elena shut her legs again. Defendant opened her legs by putting a hand on each knee and pushing outward with enough force that it forced her to open up her legs. She "just left them there." Elena continued to cry and defendant told her "they were fake tears" and to stop playing. Elena was mad and scared because defendant was acting "funny" and inappropriately and she wanted to go home. She did not think she had a choice to stop, because she thought that they would not leave if she did not comply.
Defendant put his finger inside Elenas vagina, removed it, and "said that it was wet." He again asked her whether she had sex and she told him no. Afterwards, he sat on the edge of the bed and watched television. Elena asked to get up, but defendant said no. Elena was lying on the bed with her legs open and her hands on her eyes. She was afraid to get off the bed.
Defendant next started asking Elena questions about oral sex. He asked her to name the boyfriends with whom she had had oral sex and to tell him whether she liked it. Elena was crying during this conversation. She asked defendant if he was drunk or on drugs. She wanted to know "what was wrong with him, and he said nothing was wrong." Though defendant did not appear intoxicated to her, she asked those questions because "he was making me do stuff that I didnt think that he would ever make me do."
Defendant then got on top of the bed, and he laid between her legs. He "put his head down there, and . . . put his tongue inside of [her]." Elena told him to stop and tried to push his head away. She was still crying. At one point she used enough pressure that she was able to move his head, but "he kept trying to go back, so [they] just went back and forth moving, and [she] kept telling him to stop." At one point Elena stopped trying to push his head away. She "just gave up and . . . let him do it" because she "thought he was going to stop." Elena was afraid because defendant had "a very bad temper, and [she] didnt want him to be mad." Defendants tongue penetrated Elenas vagina for "a couple of minutes."
Defendant then got up and went to the bathroom. Elena did not get up from the bed because defendant did not say that she could and she was afraid. When defendant came out of the bathroom, he "held up a condom and said this is what [she] was supposed to use when [she] had sex with boys." He walked to the bed, took off his shirt and pants, and put on the condom. Defendant got on top of her. Elena started crying again and "pulled" her hands over her eyes. Defendant tried "to put himself inside of [her], and [she] was trying to push him away, and . . . telling him to stop." Defendant told Elena that "Asian people have sex with their daughters to teach them how to have sex." When Elena called him "dad," defendant told her to call him "Mark" and that he would call her "Michelle." During the time defendant was on top of her, Elena tried to push him away by "pushing on the shoulders just telling him to stop." She also tried "to scoot up so . . . [her] vagina was away from his penis." When she tried to scoot away from him, he would "come back, come closer." Elena finally "gave up" because "he was very persistent, and [she] didnt think that he was going to stop," and she did not think she had a choice. Defendant put his penis in her vagina for "a couple of minutes." Elena "just laid there with [her] hands over [her] eyes."
Defendant then got up and went to the bathroom. Elena did not try to move from the bed while he was in there because "he hadnt said I could get up yet" and she was scared. When he came out of the bathroom, Elena asked for his permission to put her clothes on and he gave it. Defendant asked her if she was going to tell anybody, and she told him no. He asked why, and Elena "told him because hes my father, and if this is the way that hes going to punish me then nobody else can say anything else about it." Defendant told her that she could see her boyfriend if she did not tell anyone what had happened. After Elena put her clothes on, they got in the car and went home. When they arrived home, Elena did not tell anybody what happened.
The next day, Elena acted "like everything was normal" because she didnt want anybody to know. Defendant called her from work and told her she was now allowed to see her boyfriend. He also wanted to offer her boyfriend a job at Sleep Train, where he worked.
It made Elena feel sick to see defendant in the following week. She did not tell anyone what happened because she did not want anyone to know. She never considered calling the police because she did not want defendant to get in trouble. On Saturday, a week after the incident, Elena ran away because she did not want to see defendant anymore. She went to her friend Jackie F.s house. Elena asked to stay there, telling Franklin that she and her father were not getting along. After she had been there over a week, the girls got into an argument. During the discussion, Elena told Jackie F. that "my dad took me to a motel and he raped me." Both girls were crying. Jackie F. then relayed the information to her mother, who contacted Child Protective Services.
A police officer took Elenas written statement regarding the incident, and she gave a videotaped statement at the CALICO Center. In that statement, she said the first trip to Motel 6 occurred on September 17th. At the preliminary examination and at trial, she testified that the date was actually September 24th. She testified that she "got confused, and . . . made a mistake," but was sure the date was September 24th because the incidents were a week apart. She did not mention the digital penetration in her videotaped statement.
That videotape is in evidence as Peoples Exhibit 5, and has been reviewed by this Court.
The Defendants Testimony
Defendant testified that he had no contact with Elena while she was growing up because he was incarcerated and he did not know where she was staying. He began writing her letters a few months before she moved in.
While she was living with him, defendant imposed punishments such as not allowing her to use the telephone. Elena did not question his authority. When she had concerns, she would discuss them with McLane. McLane told defendant he was too strict and that he needed to "back up." Defendant testified that he grabbed Elena on one occasion, but never slapped or assaulted her.
The defendant testified that he never took Elena to a Motel 6, and never had any kind of sexual contact with her. He testified that he had been to the Motel 6 on Hegenberger Road in Oakland twice. The prosecutor indicated she would show him Motel 6 records indicating three visits, and defendant then testified he had been to that Motel 6 three times. Defendant testified that he went to the Motel 6 on September 28, 1999 and on October 8, 1999 by himself. Defendant testified that when he and McLane got into a fight, he sometimes would leave the house and get a motel room for peace of mind. He never took McLane to the Motel 6, and she did not know that he went there.
On one occasion in mid-September, he took Elena with him to his job at Sleep Train. The Motel 6 was nearby, and he pointed it out to her, saying, "If you need me Im over here."
Evidence of Alibi
Defendant testified that on October 1, 1999, he went to the Motel 6 with his sons aunt, a prostitute whom he was seeing that evening in a prostitute-client relationship. He left the motel at about 11:00 p.m. because McLane kept calling him on his pager and mobile phone. Defendant returned home, where he and McLane argued. He did not leave home again that night.
McLane testified that she was home on the evening of October 1, 1999. She paged and called defendant repeatedly, but he did not return the calls. He came home at about midnight. McLane and defendant "got into it because he was smelling like a female and he was intoxicated." She corroborated that defendant did not leave the house again that night. She did not recall any evening during September or October of that year when defendant came home from work and then left with Elena.
Taisha B., McLanes daughter, testified that she did not recall defendant and Elena ever going out on a Friday night together in the month before Elena ran away.
Opinion and Reputation Testimony Regarding Elenas Veracity
Three individuals testified regarding their opinion of Elenas reputation for veracity. Taisha testified that she had known Elena since about May 1999. She and Elena slept on a pullout couch in the living room. They had a sister relationship, and confided in each other, but Elena never told her about any sexual conduct with the defendant. The two girls "hung around with the same people." Taisha testified that Elena did not have the reputation of being honest and truthful. Though she testified that she liked Elena, Taishas opinion was that Elena "is a liar and shes nasty . . . ."
McLane described her relationship with Elena as more as a friend rather than an authority figure. She would cover for her when Elena had done things defendant forbade. Elena and Taisha "got in trouble together . . . all the time . . . [and] sometimes got in trouble on their own." McLane felt Elena was a normal teenager trying to get around rules. McLane testified that her opinion of Elenas character for truthfulness was that "she was sneaky and she lied a lot."
Thelma Hollis testified that Elena applied for a volunteer job in her childcare business, telling her that she needed the volunteer hours in order to graduate from high school. Elena actually had been ordered to do volunteer work as a condition of her probation for an altercation in Fresno. Elena testified that she did not tell Hollis the truth because she "thought maybe she wouldnt have let me volunteer because I was around little children."
DISCUSSION
I.Preclusion of Questions About Elenas Alleged Motive to Fabricate
Defendant argues that the court erred in precluding the defense from questioning Elena about her alleged motive to lie. He maintains that because Elena knew that Taisha had been molested by her stepfather, and that Taisha had received $ 40,000 for counseling, Elena had a motive to falsely accuse him of sexual assault: that she, too, would receive money. However, a careful review of the record does not support the premise of defendants argument that the trial court precluded defendant from eliciting testimony on this issue.
Defendant also asserts that the court prevented him from questioning Elena about whether she believed she was pregnant, which he argues provided her with a motive to lie about being raped. At the Evidence Code section 402 hearing, Taisha testified that Elena knew she was not pregnant "a couple of weeks" before she ran away. At the conclusion of that hearing, the court cautioned the defense attorney, stating "Im assuming that you wrote what you were told from whatever source you were told in good faith."
Before trial, the court heard testimony in limine to determine the admissibility of foundational evidence that the prospect of financial gain was a motive for Elena to lie about the sexual assault. McLane, defendants fiancee and Taishas mother, testified at the hearing that Elena overheard her conversation with the Victims of Crime about Taisha going to therapy. McLane testified that she "remembers telling Taisha that they awarded her, I think it was like, $ 40,000, and Elena asked questions after that, you know." McLane never had any direct conversation with Elena regarding Taishas claim of molestation. The conversation she had with Taisha while Elena was in the room "included only Victims of Crime and therapy that Taisha was going to be allowed to do basically for free. . . ."
Taisha testified at the same hearing that she told Elena that she had been molested by her stepfather. When she would sometimes cry because of the molestation, Elena would offer sympathy but it did not do any good. Taisha never told Elena that she should lie about something like this, or that she got special attention or privileges as a result of reporting the molestation.
At the end of the hearing, the court ruled that before Elena testified there had to be an offer of proof regarding Elenas knowledge of money received by Taisha for counseling as a result of Taishas molestation. At trial, defense counsel asked Elena the question: "Now, prior to this incident happening, were you aware that Taisha had a similar incident with her stepfather?" The prosecutor objected, and a discussion took place in chambers, which regrettably was not reported. The court then ruled on the record: "As to the form of the question and any specific incident that may involve other people, as to the form of the question, Im going to sustain the objection. You can ask a more general question if you would like" (emphasis added). Defense counsel then asked, "Was your relationship with Taisha . . . such that she would confide in you serious matters?" Elena responded, "No." Counsel persisted, "She would not confide in you her intimate matters? Is that your testimony?" Elena responded, "Yes." Defense counsel asked no other questions about Elenas knowledge of Taishas molestation or any money received for counseling.
After the appeal was filed, appellate counsel requested a hearing to establish a settled statement of facts regarding the in-chambers discussion. Appellate counsel asked the court on what basis the objection was sustained. The court indicated that, "You know, just in listening to you tell me what I said, my ruling I would think at that point was not that it wasnt irrelevant, it was just that particular question . . . it sounds like a form of the question kind of ruling on my part." The court also explained, "As to the $ 40,000, its just a question I raised with counsel, and its based on my own experience that, when the figure $ 40,000 was mentioned, to my knowledge, from the state system, that compensation would be made to a victim of a violent crime, but it is made to cover other expense thats have been incurred already, such as therapy. . . . And I indicated that if he could lay a proper foundation, I will allow that" (emphasis added).
While defendant argues that he was precluded from questioning Elena about her knowledge of the $ 40,000 Taisha received as a result of reporting the molestation, the record does not demonstrate that he was prevented from questioning her on that topic. The court ruled before trial that defense counsel had to make an offer of proof regarding what Elena knew. There is no record of any offer of proof being made or any further Evidence Code section 402 hearing being requested on that topic.
On this record, we do not find that defendant was prevented from offering evidence regarding Elenas alleged motive to fabricate testimony. To the contrary, it appears that the necessary foundational evidence could not be elicited from the witnesses.
In fact, defendant elicited testimony from Elena and others that he was strict and authoritarian and Elena chafed under his rules. Defendant argued that it was reasonable to infer that Elena lied about the rape so that her father would be arrested and she would be free from his control.
II. Substantial Evidence of Rape
Defendant maintains that there was no evidence of force, and insufficient evidence of fear or duress to support his conviction of rape. We disagree. In order to support a rape conviction, substantial evidence of only one of these elements is required. Substantial evidence of fear of bodily injury alone is sufficient. (People v. Knox (1988) 204 Cal. App. 3d 197, 201-203, 251 Cal. Rptr. 121.) Nevertheless, here there is substantial evidence of both force and fear.
"The test on appeal for determining if substantial evidence supports a conviction is whether `"a reasonable trier of fact could have found the prosecution sustained its burden of proving the defendant guilty beyond a reasonable doubt." [Citation.] In making this determination, we `"must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence."" (People v. Iniguez (1994) 7 Cal.4th 847, 854, 872 P.2d 1183, citing People v. Johnson (1980) 26 Cal.3d 557, 576, 162 Cal. Rptr. 431, 606 P.2d 738.)
A.Evidence of Fear
Defendant maintains there was no substantial evidence of fear because "Elena did not testify that she was afraid defendant would cause immediate and unlawful bodily injury to her if she did not perform the sexual acts he requested." Defendant argues that at most, she testified that she "didnt know what he would do."
The prosecution is not required to elicit testimony from the victim "regarding what precisely she feared. `Fear may be inferred from the circumstances despite even superficially contrary testimony of the victim." (People v. Iniguez, supra, 7 Cal.4th at p. 857.) Iniguez cited with approval People v. Borra (1932) 123 Cal.App. 482, 11 P.2d 403, where the court held that "`in spite of the bravado of the merchant in declaring that he was not much afraid, we are inclined to believe he meant he was not afraid of receiving bodily harm so long as he complied with the demands of the robber." (People v. Iniguez, supra, 7 Cal.4th at p. 857, citing People v. Borra, supra, 123 Cal.App. at p. 485.)
The fear element has both a subjective and objective component. "The subjective component asks whether a victim genuinely entertained a fear of immediate and unlawful bodily injury sufficient to induce her to submit to sexual intercourse against her will. In order to satisfy this component, the extent or seriousness of the injury feared is immaterial. [Citation.] `The kind of physical force that may induce fear in the mind of a woman is immaterial . . . it may consist in the taking of indecent liberties or of embracing and kissing her against her will." (People v. Iniguez, supra, 7 Cal.4th at p. 856, citing People v. Harris (1951) 108 Cal. App. 2d 84, 89, 238 P.2d 158.) The objective component "asks whether the victims fear was reasonable under the circumstances, or, if unreasonable, whether the perpetrator knew of the victims subjective fear and took advantage of it." (People v. Iniguez, supra, 7 Cal.4th at p. 857.)
Here, Elena testified that she was afraid throughout the October 1 incident at Motel 6. When defendant first told her to take off her clothes, she was "mad and scared "because [she] didnt know what he was doing." She was trying to do what he said, so they could leave. Defendant promised that they would leave if she complied with his demands. Elena started crying and she did not stop crying. Defendant then forced her knees open in order to digitally penetrate her. Elena was crying, and defendant told her "they were fake tears" and to "stop playing." Elena was mad and scared and wanted to go home. She did not think she had a choice to stop. When defendant removed his finger and began to watch television, Elena was afraid to get off the bed. She lay there with her "legs open and [her] hands on [her] eyes."
When defendant began to orally copulate Elena, she was still crying and telling him to stop. She tried to push his head away, but at some point "just gave up." Elena was afraid because defendant had "a very bad temper, and [she] didnt want him to be mad." When defendant went into the bathroom, Elena did not get up from the bed because defendant did not give her permission and she was afraid.
When defendant began to have intercourse with Elena, she tried to push him away and told him to stop. She finally gave up because "he was very persistent, and [she] didnt think that he was going to stop," and she did not think she had a choice. When defendant got up and went into the bathroom, Elena did not try to move because "he hadnt said I could get up yet" and she was scared. She asked his permission to put on her clothes before she did so. Elena told defendant she would not tell anyone because he was her "father, and if this is the way hes going to punish me then nobody else can say anything else about it." Elena testified that once when he felt she was not home on time, defendant had grabbed her, "pushed [her] down the hall . . . threw [her] on his bed and slapped [her] in [the] face." Defendant admitted that Elena did not question his authority.
The evidence clearly demonstrates fear on Elenas part. While Elena does not testify that she was afraid of immediate and unlawful bodily injury, we can infer that fear from the record. Defendant had previously grabbed Elena, thrown her on his bed, and slapped her. He was strict and had a bad temper. He had previously taken her to the same motel under similar circumstances, asked inappropriate questions, and learned that Elena would comply with his requests and never question his authority. The jury, which also had the benefit of observing the demeanor of both Elena and the defendant while testifying, properly could have inferred that Elenas fear was of immediate and unlawful bodily injury of some kind.
B. Evidence of Force
We also find that there was sufficient evidence that defendant used force. When defendant told Elena to open her legs, she "didnt want to open them, so [defendant] put his hands on my knees and opened them." Elena then shut her legs. Defendant told her to "stop playing" and opened them again. Elena shut her legs again, but defendant "finally opened them, and [she] just left them there" (italics added). Defendant opened her legs by putting a hand on each knee and pushing outward with "enough force that it forced [her] to open up [her] legs." After pulling her legs apart three times, Elena tried to scoot away, but he would not let her escape. She tried to push him off, but he was too heavy. She told him to stop, but he persisted. She was crying throughout. Finally, she covered her eyes.
When defendant began to orally copulate Elena, Elena told him to stop and tried to push his head away. At one point she used enough pressure that she was able to move his head, but "he kept trying to go back, so [they] just went back and forth moving, and [she] kept telling him to stop." At some point, Elena "just gave up and . . . let him do it" because she "thought he was going to stop."
When defendant "got on top of [her]" and tried "to put himself inside of [her] . . . [Elena] was trying to push him away, and . . . telling him to stop." During the time defendant was on top of her, Elena tried to push him away by "pushing on the shoulders just telling him to stop." She also tried "to scoot up so . . . [her] vagina was away from his penis." When she tried to scoot away from him, he would "come back, come closer." Appellants acts in forcing Elenas knees open, continuing to "go back" and orally copulate her after she pushed his head away, and effectively pinning Elena with his body by getting on top of her so that she could not continue her struggle to move away and raping her despite her attempts to push his shoulders and scoot away, constitute force.
III. Instructional Error
We now address defendants claim of error in the courts instruction defining "force." The court instructed the jury that "force means physical force in a degree sufficient to support a finding that the act was against the will of the alleged victim." (See People v. Young (1987) 190 Cal. App. 3d 248, 257, 235 Cal. Rptr. 361, criticized on other grounds in People v. Knox (1988) 204 Cal. App. 3d 197, 251 Cal. Rptr. 121; People v. Cicero (1984) 157 Cal. App. 3d 465, 475-476, 204 Cal. Rptr. 582.) Defendant argues on appeal that the jury should have been instructed that the force necessary is "physical force substantially different from or substantially greater than that necessary to accomplish the sexual act itself." (See People v. Cicero, supra, 157 Cal. App. 3d at p. 474.) We conclude that the instruction as given is a correct statement of the law.
In his opening brief, defendant relied on People v Griffin, No. S109734, previously published at 100 Cal. App. 4th 917, but review was granted Oct 23, 2002, during the briefing period.
Other courts have applied the "substantially greater than or different from" definition of force in rape cases. (People v. Mom (2000) 80 Cal.App.4th 1217, 1224, and cases cited therein.) In In re John Z. (2003) 29 Cal.4th 756, the Supreme Court referred to the "substantially different" language in People v. Mom. (In re John Z., at p. 763.) However, at issue in In re John Z. was whether forcible rape was committed if a victim initially consents but later withdraws her consent during an act of intercourse. (Id. at pp. 757-758.)
The "substantially different from or substantially greater than" definition of force in the context of rape derives from the formulation of the court in Cicero as it construed the term "force" in the context of section 288, subdivisions (a) and (b) prosecution. Section 288, subdivision (a) proscribes lewd conduct with a child under the age of 14. Section 288, subdivision (b) proscribes lewd conduct with a child under the age of 14 committed by use of force, violence, duress, menace, or fear. The Cicero court held that where a defendant is charged with violating section 288, subdivision (b), the allegation can be sustained only by evidence of "physical force substantially different from or substantially greater than that necessary to accomplish the lewd act in itself." (People v. Cicero, supra, 157 Cal. App. 3d at p. 474.) Such a definition is required to differentiate between the crimes described in section 288, subdivisions (a) and (b).
This is not so in the context of rape. We follow the view that the lewd conduct cases are distinguishable from rape cases under section 261. Force is not an aggravating factor; it is an integral element of the crime. "The essential guilt of rape consists in the outrage to the person and feelings of the victim of the rape. Any sexual penetration, however, slight is sufficient to commit the crime." (Pen. Code, § 263.) The Cicero court recognized that "The law of rape primarily guards the integrity of a womans will and the privacy of her sexuality from an act of intercourse undertaken without her consent." (People v. Cicero, supra, 157 Cal. App. 3d at p. 475.) Cicero draws a distinction between the force necessary to prove rape and the force necessary to prove a lewd touching under section 288, subdivision (b). The Cicero court explained that where rape is charged," `force plays only a supporting evidentiary role, as necessary only to insure an act of intercourse has been undertaken against a victims will." (Id. at pp. 475-476.)
"[ § 288(b)] cases are distinguishable in that a mere touching with the requisite intent may constitute a lewd and lascivious act under section 288 [citations omitted], while forcible rape under section 261, subdivision (2) requires penetration, however slight, of the females vagina by the penis of the male." (People v. Young, supra, 190 Cal. App. 3d at p. at p. 258, fn. 3)
Defendants attempt to graft the "substantially greater than" language from the section 288, subsection (b) prosecution to forcible rape demonstrates the fallacy. The proposed instruction tracks the Cicero definition until the final phrase which is changed from "necessary to accomplish the lewd act itself" to "necessary to accomplishthe sexual act itself." There is an implicit assumption that some degree of force is an integral part of consensual sex. Strength or vigor may be more precise terms in the context of consensual sex. The courts instruction defining force as "physical force in a degree sufficient to support a finding that the act was against the will of the alleged victim" is accurate because force is an integral element in the crime of rape, it is consonant with section 263, and it does not assume that there is a quantum of force inherent in consensual sex.
Also, the instruction on "force" in the instant case does not wreak havoc on other definitions of "force," for example, as synonymous with violence in the battery instruction. (CALJIC No. 16.141.)
IV. Sexual Battery as a Necessarily Included Offense
Defendant maintains that the court erred in not giving a sua sponte instruction on sexual battery because it is a necessarily included offense of penetration with a foreign object. In his reply brief, defendant concedes that his only authority for the proposition that battery is a necessarily included offense is a case that was depublished. (People v. Vu (June 4, 2002, H022334) opn. ordered nonpub. Aug. 21, 2002.) Nevertheless, he contends that the reasoning of the court in Vu is persuasive.
We need not reach that issue. Even assuming that battery is a lesser included offense, there was no sua sponte obligation to give the instruction because there was no substantial evidence supporting battery. "The existence of `any evidence, no matter how weak will not justify instructions on a lesser included offense, but such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is `substantial enough to merit consideration by the jury. [Citations.]" (People v. Breverman (1998) 19 Cal.4th 142, 162, 960 P.2d 1094.) "`Substantial evidence in this context is `"evidence from which a jury composed of reasonable [persons] could . . . conclude[]" that the lesser offense, but not the greater, was committed." (Id. at p. 162, citing People v. Flannel (1979) 25 Cal.3d 668, 684, 160 Cal. Rptr. 84, 603 P.2d 1, disapproved on another point in In re Christian S. (1994) 7 Cal.4th 768, 777, 872 P.2d 574.)
Even if we assume that sexual battery is a necessarily included offense of digital penetration, we conclude that there is no evidence from which a reasonable jury could conclude that the lesser offense of sexual battery occurred but that the greater offense of digital penetration did not.
Defendant claims that there was equivocal evidence of digital self-penetration by Elena. He bases this claim on a partial recitation of Elenas testimony: "I put my finger inside, and I took it out, and [defendant] felt my finger, and he said that he didnt feel anything." Defendant contends that the fact that defendant did not feel anything suggests that Elena only touched the outside of her vagina. But defendant reaches this conclusion by ignoring the subsequent testimony elicited from Elena: "Q. When you say your finger inside of yourself, did you actually put your finger inside of your vagina? A. Yes. Q. And did you actually penetrate your vagina, meaning going inside? A. Yes." No reasonable jury could conclude that sexual battery rather than sexual penetration occurred based on this evidence.
Further, at trial defendant denied any sexual conduct with Elena. His denial formed the basis of his defense, as illustrated by defense counsels agreement that no instruction on lesser included offenses including a battery instruction was required. The jury had to choose whether to believe defendant or Elena.
There was no error in failing to instruct the jury sua sponte on sexual battery.
DISPOSITION
The judgment is affirmed.
We concur. STEVENS, ACTING P. J., SIMONS, J.