Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC629089
Mihara, J.
Defendant Wallace Charles Wilber was convicted by jury trial of one count of aggravated sexual assault on a child under 14 (Pen. Code, § 269), three counts of forcible lewd conduct on a child under 14 (Pen. Code, § 288, subd. (b)(1)), one count of non-forcible lewd conduct on a child under 14 (Pen. Code, § 288, subd. (a)), one count of attempted forcible oral copulation (Pen. Code, §§ 288a, subd. (c)(2), 664), and one count of continuous sexual abuse of a child under 14 (Pen. Code, § 288.5). The jury also found true allegations as to all of the counts, except for the aggravated sexual assault count, that defendant had committed offenses against more than one victim (Pen. Code, § 667.61, subds. (b), (c), (e)(5)). He was committed to state prison to serve an indeterminate term of 60 years to life consecutive to a nine-year determinate term.
On appeal, his sole contention is that the trial court prejudicially erred in failing to instruct the jury on non-forcible sexual penetration on a child under 14 (Pen. Code, § 289, subd. (j)) as a lesser included offense of the charged aggravated sexual assault on a child under 14 count. We conclude that the evidence presented at trial did not support instruction on this lesser offense. Consequently, we affirm the judgment.
As defendant’s only appellate contention concerns solely the aggravated sexual assault on a child count, it is not necessary to recount the evidence that supported the counts involving the two other victims. We recount only the evidence regarding the victim of the aggravated sexual assault on a child under 14 count. This evidence also supported a count of forcible lewd conduct on a child under 14 on the same victim, which defendant does not challenge on appeal. The remaining counts concerned other victims with no connection to this victim.
Defendant, who was an old friend of A.’s mother and grandmother, frequently spent the night at A.’s mother’s home and often babysat A. and her siblings. On October 8, 2005, defendant spent the night at A.’s mother’s home. A.’s mother went out that evening and left 11-year-old A. and her siblings in defendant’s care.
A., her siblings, and defendant’s granddaughter fell asleep on the living room floor after watching movies. A. was awakened by what felt “[l]ike a bite” on her ear. She saw defendant next to her on the floor. A. “tried getting up,” but she was unable to do so because defendant’s “legs were on my legs.” A. was scared, and she tried to get the attention of her sister, who was sleeping near her. However, when A. tried to speak to her sister, defendant put his hand over A.’s mouth.
Defendant put his hand down the front of A.’s pants, underneath her underwear, and put part of his hand inside her “private area.” This hurt A. and it felt like defendant’s fingernail “scratched me down there.” Defendant also put a hand underneath her shirt and touched her breast. Defendant then grabbed hold of A.’s hand and made her touch his penis inside his pants. A. tried to prevent him from placing her hand on his penis, but he was “too strong.” He moved her hand “around” on his penis. When defendant let go of her hand, A. “ran upstairs.”
A. telephoned her grandmother. A. heard defendant pick up the phone and listen in on her call. A. was “[h]ysterical” during this telephone call. She told her grandmother that defendant had “touched me where he’s not supposed to.” A.’s grandmother immediately went to A.’s mother’s home and picked up A. and her siblings. A. was “shaking, crying” when A.’s grandmother arrived.
During a subsequent tape-recorded telephone conversation with A.’s mother, defendant made a number of incriminating statements regarding A.’s mother’s accusation that he had touched A. between her legs. He suggested that he might have been asleep when he touched A. “I can’t deny what she said, maybe I did, I don’t know.” “I fucked up, I fucked up, you know? I’m paying the price for it.” “I didn’t want anything like this to happen and evidently it happened.” “[S]he won’t lie, I know A[.], she won’t lie.”
II. Procedural Background
Defendant was charged by second amended information with aggravated sexual assault on a child under 14 (Pen. Code, § 269), three counts of forcible lewd conduct on a child under 14 (Pen. Code, § 288, subd. (b)(1)), two counts of non-forcible lewd conduct on a child under 14 (Pen. Code, § 288, subd. (a)), attempted forcible oral copulation (Pen. Code, §§ 288a, subd. (c)(2), 664), and continuous sexual abuse of a child under 14 (Pen. Code, § 288.5). It was further alleged as to all of the counts, except for the aggravated sexual assault count, that defendant had committed an offense against more than one victim (Pen. Code, § 667.61, subds. (b), (c), (e)(5)). The underlying offense for the aggravated sexual assault on a child count was forcible sexual penetration by a foreign object (Pen. Code, § 289, subd. (a)). Only the aggravated sexual assault on a child count and one of the forcible lewd conduct counts related to his conduct with A. The remaining counts related to conduct with other victims.
When A. testified at trial, defendant’s trial counsel’s cross-examination did not concern the details of the offenses defendant had committed against her. Defendant testified on his own behalf at trial. He claimed that he had been awakened by A. putting her leg over his leg. Defendant asked her “what?” and she put his hand on her abdomen. He testified that he thought “she wanted her stomach rubbed because she’s been complaining to me about stomach pains.” Defendant rubbed A.’s stomach for two or three minutes. Then he kissed A. goodnight on the side of her face and went back to sleep. When he next awakened, A. was no longer in the room. Defendant went back to sleep. The next time he awakened, he saw A. upstairs “peeking down.” He got up to check his e-mail and soon noticed that the telephone was being used. Defendant picked up the telephone and heard A. say that he had touched her “down there.” Defendant denied having touched A. below her belly button or having put his hand down A.’s pants.
The jury was instructed on simple assault (Pen. Code, § 240) as a lesser included offense of the aggravated sexual assault on a child count. The court’s instruction on the aggravated sexual assault on a child count did not define “force.” The court’s instructions on the forcible lewd conduct counts defined force as “physical force that is substantially different from or substantially greater than that necessary to accomplish the lewd act itself.”
The prosecutor argued that the two offenses against A. had been committed by force. The prosecutor pointed out that the aggravated sexual assault count was based on defendant’s sexual penetration of A., while the touching of her breast was the basis for the forcible lewd conduct count. The prosecutor argued: “Well, we know he held her down by his leg. We know that he grabbed her by the arm. We know that he put his hand over her mouth. We know that he bit her ear. We know that he grabbed her hand and, basically, demonstrated to her that she was going to do what he wanted. [¶] All of this is force. It doesn’t require that he backhand her, doesn’t require that he physically injure her. It’s any use of force that goes beyond that necessary to actually do the penetration. And when I say ‘do the penetration,’ I mean literally, if she was just laying there unconscious and you just stick your finger in, that’s all the force necessary to make that penetration, anything substantially beyond that or different than that is force or violence as far as these crimes are concerned and we have it.” “He has to hold her down to do it. He used force and violence, by putting his leg on her, grabbing her arm, biting her ear, covering her mouth, any of those is sufficient. You’ve got four of them there.”
Defendant’s trial counsel’s closing argument did not challenge the forcible nature of the alleged assault on A. Instead, he simply argued that it was illogical that defendant would have “forcibly attack[ed]” her in the manner she described.
After more than a day of deliberations, the jury returned guilty verdicts on all counts except for one of the non-forcible lewd conduct counts. It found the Penal Code section 667.61 allegations true. The court committed defendant to state prison to serve an indeterminate term of 60 years to life consecutive to a determinate term of nine years. His prison sentence included a 15 years to life term for the aggravated sexual assault count, which was the principal term. Defendant filed a timely notice of appeal.
The jury acquitted defendant on one non-forcible lewd conduct count, which did not involve A.
III. Analysis
Defendant contends that the trial court prejudicially erred in failing to instruct the jury on non-forcible sexual penetration of a child under 14 as a lesser included offense of the charged aggravated sexual assault on a child under 14 count.
The first question is whether non-forcible sexual penetration of a child under 14 was a lesser included offense of the charged aggravated sexual assault on a child under 14 count. “An uncharged offense is included in a greater charged offense if either (1) the greater offense, as defined by statute, cannot be committed without also committing the lesser (the elements test), or (2) the language of the accusatory pleading encompasses all the elements of the lesser offense (the accusatory pleading test).” (People v. Parson (2008) 44 Cal.4th 332, 349.)
The aggravated sexual assault count, as charged in the second amended information, alleged that defendant had committed a violation of Penal Code section 289, subdivision (a) on a child under 14 who was 10 or more years younger than him. Penal Code section 289, subdivision (a) proscribes the offense of “sexual penetration when the act is accomplished against the victim’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person” or “by threatening to retaliate in the future against the victim or any other person, and there is a reasonable possibility that the perpetrator will execute the threat.” Thus, as charged, the elements of the aggravated sexual assault on a child count were: (1) sexual penetration, (2) on a child under 14 who is 10 or more years younger than the perpetrator, (3) accomplished against the victim’s will, and (4) by means of force, violence, duress, menace, fear, or a threat to retaliate.
The lesser offense that defendant asserts the court should have instructed upon is non-forcible sexual penetration of a child under 14, a violation of Penal Code section 289, subdivision (j). “Any person who participates in an act of sexual penetration with another person who is under 14 years of age and who is more than 10 years younger than he or she shall be punished by imprisonment in the state prison for three, six, or eight years.” This offense has just two elements: (1) sexual penetration, and (2) on a child under 14 who is more than 10 years younger than the perpetrator. These elements of this lesser offense are very close to, but not quite included within, the elements of the aggravated sexual assault on a child under 14 count, as that count was charged in the second amended information.
Aggravated sexual assault on a child under 14, as charged in the second amended information, could be committed by sexually penetrating a child under 14 who was precisely 10 years younger than the perpetrator. If the child was precisely 10 years younger than the perpetrator, this offense would not violate Penal Code section 289, subdivision (j), as a violation of Penal Code section 289, subdivision (j) requires that the child be “more than 10 years younger” than the perpetrator. (Italics added.) Because a violation of Penal Code section 289, subdivision (j) was therefore not a lesser included offense of the charged aggravated sexual assault on a child under 14 count, the trial court had no obligation to instruct on this lesser offense.
Even if a violation of Penal Code section 289, subdivision (j) had been a lesser included offense of the charged aggravated sexual assault on a child under 14 count, the trial court still would not have been obligated to instruct on this lesser offense. “[A] trial court errs if it fails to instruct, sua sponte, on all theories of a lesser included offense which find substantial support in the evidence. On the other hand, the court is not obliged to instruct on theories that have no such evidentiary support.” (People v. Breverman (1998) 19 Cal.4th 142, 162.) “A criminal defendant is entitled to an instruction on a lesser included offense only if [citation] ‘there is evidence which, if accepted by the trier of fact, would absolve [the] defendant from guilt of the greater offense’ [citation] but not the lesser.” (People v. Memro (1995) 11 Cal.4th 786, 871 (Memro).)
Here, the greater offense required that the sexual penetration be accomplished against the child victim’s will and by force, violence, duress, menace, fear, or a threat to retaliate, while the lesser offense did not require that the sexual penetration be accomplished against the child victim’s will or by force, violence, duress, menace, fear, or a threat to retaliate. It follows that instructions on the lesser offense would not be merited (even if it were a lesser included offense) unless there was evidence which, if believed by the jury, would have shown that the sexual penetration was either (1) not accomplished against A.’s will or (2) not by means of force, violence, duress, menace, fear, or a threat to retaliate.
A.’s testimony established without equivocation that defendant’s sexual penetration of her was accomplished against her will, and defendant presented no evidence to the contrary. He does not claim otherwise. Instead, defendant claims that the evidence of force was “not so strong as to preclude the possibility that a rational juror could have concluded” that force was lacking. He is incorrect.
“A defendant uses ‘force’ if the prohibited act is facilitated by the defendant’s use of physical violence, compulsion or constraint against the victim other than, or in addition to, the physical contact which is inherent in the prohibited act.” (People v. Bolander (1994) 23 Cal.App.4th 155, 163 (Mihara, J. concurring).) “The evidentiary key to whether an act was forcible is not whether the distinction between the ‘force’ used to accomplish the prohibited act and the physical contact inherent in that act can be termed ‘substantial.’ Instead, an act is forcible if force facilitated the act rather than being merely incidental to the act.” (Id. at pp. 163-164.)
Defendant’s placement of his legs over A. plainly constrained her and facilitated his act of sexual penetration. No evidence to the contrary was placed before the jury, and no rational juror could have concluded that this conduct was insufficient to establish force. Nor was there any evidence which could have served as a foundation for a jury to disbelieve A.’s testimony about defendant’s utilization of his legs to constrain her and facilitate his act, while at the same time believing her testimony about his sexual penetration of her. As no evidence was presented to the jury that could have absolved defendant of the greater offense, but not the lesser offense, the trial court was not obligated to instruct the jury on the lesser offense of non-forcible sexual penetration of a child under 14. (Memro, supra, 11 Cal.4th at p. 871.)
IV. Disposition
The judgment is affirmed.
WE CONCUR: Premo, Acting P. J., Elia, J.