APPEAL from a judgment of the Superior Court of Stanislaus County. Thomas D. Zeff, Judge.
The opinion of the court was delivered by: Cornell, Acting P.J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
A jury convicted appellant Thomas Raymond Shockley of one count of
violation of Penal Code section 288, subdivision (a),*fn2
committing a lewd act on a child under the age of 14. He
contends the trial court erred by failing to instruct the jury that
battery was a lesser included offense to the charged crime. He also
claims the trial court omitted several other instructions, thus
requiring reversal of the judgment. We disagree and affirm the
judgment. We are publishing our discussion of whether battery is a
lesser included offense to a charge of a violation of section 288,
subdivision (a) as two appellate courts have come to different
FACTUAL AND PROCEDURAL SUMMARY
R.C. is the victim's father. R.C. is married to Shockley's daughter, making Shockley's daughter the victim's stepmother. Shockley is not the victim's biological grandfather, but the victim referred to him as her grandfather.
As a birthday present, Shockley took the victim and her stepsister to the movies. The three returned later that night and there was no obvious sign of a problem. After Shockley left, the girls stated they wanted to tell R.C. something. R.C. could tell something was wrong with the victim. R.C. was shocked by what the victim related and called the police the next day.
At trial the victim testified she was 11 years old. There had been a family gathering for her 10-year birthday party, at which Shockley was present. The victim was on the computer when Shockley arrived at the house. Shockley came up to her and gave her a kiss on the lips. She could not remember if his mouth was open or closed. The victim believed she told her dad about the kiss. At the preliminary hearing, the victim testified that her mouth was closed when Shockley kissed her, but there may have been some confusion about the visit at which the first kiss occurred. At the end of cross-examination, defense counsel succeeded in convincing the victim that she was unsure whether the incident occurred.
A few days later Shockley took her to the movies as a birthday present. Her stepsister accompanied them to the movies. On the drive to the movies, the victim's stepsister sat next to Shockley; the victim sat by the door. Shockley bought the girls candy and drinks at the movie theater. Shockley put the candy in their mouths during the movie. The victim said this behavior was unusual and made her uncomfortable. Shockley also put the drink straw into the victim's mouth, again making her uncomfortable.
After the movie, Shockley bought the girls milkshakes at an ice cream parlor and bought a beer at an adjoining pizza parlor. Shockley then drove the girls to a gas station because the girls had to use the restroom facilities.
The victim was seated next to Shockley after they left the gas station. During the drive, the victim removed the sweater she was wearing. When she did so, Shockley began rubbing her stomach, which was uncovered. The victim was uncomfortable and began giggling. At the preliminary hearing the victim testified that Shockley did not touch her on the stomach, but shortly thereafter she again claimed Shockley did touch her on the stomach.
The victim asked Shockley if she could steer the vehicle while they drove; Shockley allowed her to do so. Shockley told the victim to put her leg over his leg while her hands were on the steering wheel. That is when Shockley touched the victim on her vagina. His hand was outside of the victim's clothes. Shockley was rubbing the victim with his hand. The victim was squirming a lot but did not do anything else to make Shockley stop. The victim asked her stepsister to trade seats with her so she could get away from Shockley. The victim's stepsister traded seats with the victim because the stepsister also wanted to drive.
When the three returned to R.C.'s house, the two girls went to the bedroom and began talking. The victim told her stepsister what had occurred in the car. When Shockley left, the victim told her father what had occurred.
This was the first time Shockley had done anything like this to the victim. On cross-examination the victim became somewhat confused about the details.
Police Officer Scott Nelson interviewed Shockley about the incident. Shockley admitted taking the girls to the movies and then to the ice cream parlor. On the way back to the girls' house, Shockley allowed the girls to sit in the middle seat and place their hands on the steering wheel, pretending to drive. While the girls were doing so, Shockley put his arm around the girls' shoulders. While in this position he poked them in the belly button and rubbed their stomachs. Shockley thought the victim may have thought he touched her vagina because she had had a large amount of caffeine in her drink at the ice cream parlor. Shockley also stated that while in the movie theater, he spilled some soda on his face. While he was licking the spilled soda with his tongue, the victim kissed him on the lips. That may have been why the victim thought he kissed her with an open mouth.
Police Officer Scott Myers interviewed the victim and her stepsister. He testified that when he interviewed the victim, her testimony essentially was consistent with her trial testimony. The recorded ...