IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
December 8, 2010
THE PEOPLE, PLAINTIFF AND RESPONDENT,
THOMAS RAYMOND SHOCKLEY, DEFENDANT AND APPELLANT.
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 interview of the victim was then played for the jury.
The jury found Shockley guilty of the sole count in the information. Prior to sentencing, Shockley was examined pursuant to section 288.1. The report prepared by the psychologist found that there was a low risk that Shockley would commit another sexual offense. Based on this report and pursuant to the provisions of section 1203.066, subdivision (d), Shockley was placed on probation and ordered to serve 120 days in jail and attend sex offender counseling.
Shockley identifies three specific instructions that were omitted that he claims resulted in his conviction. Shockley did not request any of the omitted instructions. Therefore, unless the trial court had a sua sponte duty to give the instructions, Shockley has forfeited the claimed error by his failure to object unless the instruction affected his substantial rights. (§§ 1259, 1469; People v. Rodrigues (1994) 8 Cal.4th 1060, 1192; People v. Rivera (1984) 162 Cal.App.3d 141, 146.)
"'It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury's understanding of the case.' [Citation.]" (People v. Sedeno (1974) 10 Cal.3d 703, 715 (Sedeno), overruled on other grounds in People v. Blakeley (2000) 23 Cal.4th 82, 89-91 and People v. Breverman (1998) 19 Cal.4th 142, 149 (Breverman).)
I. Battery as a Lesser Included Offense
Shockley contends the trial court erred in failing to instruct the jury that battery was a lesser included offense to the charged crime of committing lewd and lascivious acts.
As stated ante, the trial court must instruct the jury on the general principles of law relevant to the issues raised by the evidence. (Breverman, supra, 19 Cal.4th at pp. 154-155.) The general principles of law include instructions on lesser included offenses if there is a question about whether the evidence is sufficient to permit the jury to find all the elements of the charged offense. (Ibid.) There is no obligation to instruct the jury on theories that do not have substantial evidentiary support. (Id. at p. 162.) "[T]he 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.]" (Ibid.) Evidence is substantial if it would permit the jury to conclude the lesser offense was committed, but the greater offense was not. (Ibid.) The trial court must instruct on lesser offenses, even in the absence of a request for such instructions or in the face of an objection by the defendant to the giving of the instructions. (Id. at pp. 154-155.)
A lesser offense is included in the charged offense if either of two tests is met. The first test is the statutory elements test. This test provides that a lesser offense is included in the greater offense when all of the statutory elements of the greater offense include all of the statutory elements of the lesser offense. (People v. Birks (1998) 19 Cal.4th 108, 117; see also People v. Reed (2006) 38 Cal.4th 1224, 1227-1230.) In other words, it is not possible to commit the greater offense without also committing the lesser offense. (Reed, at pp. 1227-1230.) The second test is referred to as the accusatory pleading test. This test provides that a lesser offense is necessarily included in the greater offense if the allegations in the charging document establish that if the greater offense was committed as pled, then the lesser offense also must have been committed. (People v. Montoya (2004) 33 Cal.4th 1031, 1035.)
If the trial court fails to instruct on a lesser included offense, reversal is required only if an examination of the entire record establishes a reasonable probability that the error affected the outcome of the trial. (Breverman, supra, 19 Cal.4th at p. 165.)
Shockley relies on the statutory elements test to argue that battery is a lesser included offense to the charged violation of section 288, subdivision (a). The parties cite two cases that have reached different conclusions on the question -- People v. Santos (1990) 222 Cal.App.3d 723 (Santos) and People v. Thomas (2007) 146 Cal.App.4th 1278 (Thomas). Section 288, subdivision (a) explains that any person who willfully "commits any lewd or lascivious act ... upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony." "Battery" is defined in section 242 as "any willful and unlawful use of force or violence upon the person of another." Any harmful or offensive touching satisfies the element of unlawful use of force or violence. (People v. Pinholster (1992) 1 Cal.4th 865, 961, overruled on other grounds in People v. Williams (2010) 49 Cal.4th 405, 459.) Thus, the issue is whether a defendant can commit a lewd act without touching the victim in a harmful or offensive manner.
In Santos the defendant was convicted of several counts related to the molestation of his stepdaughter. The defendant's theory at trial was that while he admitted he battered his stepdaughter, he did not molest her. He had battered the stepdaughter because he was angry with his wife. The defendant theorized that his stepdaughter made up the molestation allegations in retaliation for the battery. The defendant requested instructions on misdemeanor battery, which the trial court refused. The appellate court stated, without citation to authority or analysis, that battery was not a lesser included offense to a violation of section 288. (Santos, supra, 222 Cal.App.3d at p. 739.)
In Thomas the defendant was convicted of numerous counts of lewd and lascivious acts on four victims. The defendant argued to the appellate court that the trial court erred in failing to instruct the jury that battery was a lesser included offense to a violation of section 288. The appellate court concluded battery was a lesser included offense. (Thomas, supra, 146 Cal.App.4th at p. 1293.)
The Thomas court focused on the People's argument that battery was not a lesser included offense because a defendant could commit a lewd act by convincing a minor to touch himself or herself in a sexual manner, thus appealing to the defendant's sexual interests. The appellate court concluded that under such circumstances the defendant would be guilty of constructively touching the victim, thus committing a battery. (Thomas, supra, 146 Cal.App.4th at pp. 1292-1293.) The appellate court dismissed Santos because of its lack of analysis or citation to authority. (Thomas, at p. 1293.)
We conclude that Thomas is not controlling because the issue addressed in Thomas is different than the issue presented in this case. The appellate court in Thomas stated that the People conceded that any lewd act within the meaning of section 288 was necessarily an offensive touching within the meaning of section 242. (Thomas, supra, 146 Cal.App.4th at p. 1292, fn. 8.) The only authority for this proposition was a citation to People v. Martinez (1995) 11 Cal.4th 434 (Martinez). The appellate court focused on the statement in Martinez that "'young victims suffer profound harm whenever they are perceived and used as objects of sexual desire.'" (Thomas, at p. 1292, fn. 8, quoting Martinez, at p. 444.)
Martinez, however, addressed the issue of whether a violation of section 288 required the People prove that the act was not only sexually motivated, but also had to be lewd in and of itself. (Martinez, supra, 11 Cal.4th at pp. 438, 442.) The Supreme Court, in rejecting the defendant's argument, held that a violation of section 288 occurs where any touching is involved, so long as the touching is sexually motivated. (Martinez, at pp. 442, 444-445, 452.) As part of its rationale for its holding, the Supreme Court explained that the broad prohibition of any sexually motivated touching met the purpose of the statute, which was to protect children from sexual exploitation. (Id. at p. 443.) The justification for providing children with special protection was that they were "'uniquely susceptible'" to abuse because of their dependence on adults, their smaller stature, and their naivet©. (Id. at p. 444.) For these reasons, the Supreme Court stated that section 288 "assumes that young victims suffer profound harm whenever they are perceived and used as objects of sexual desire." (Martinez, at p. 444.)
Martinez emphasized that any touching could form the basis for a violation of section 288 since the issue is whether the touching is sexually motivated. (Martinez, supra, 11 Cal.4th at p. 444.) Simply stated, any contact with a child, to any part of the body, even through clothes, can constitute a violation of section 288 if the defendant's conduct is sexually motivated. (Martinez, at p. 444.)
While we concur with the Supreme Court's analysis in Martinez, we cannot agree with Thomas that Martinez established that any sexually motivated touching is necessarily a battery. That issue was not addressed by the Supreme Court, and the quoted statement was not intended to be such a bold proclamation.
This case provides an example where a sexually motivated touching may not be a battery, an example with which many parents are familiar. Many children enjoy being tickled on their stomachs. In this case, Shockley was accused of having a sexual motivation when he touched and rubbed the victim's stomach. If the victim enjoyed being tickled on her stomach, no battery would occur because she would be consenting to the touching. Even if the victim expressly consented to the tickling episode, however, Shockley still would be guilty of violating section 288 if his conduct was sexually motivated.
Or a perpetrator may put ice cream on his finger and ask a child to lick off the ice cream. The child may willingly perform the requested task, but the perpetrator's conduct would violate section 288 if it was sexually motivated.
To assume, as Thomas did, that all sexually motivated touching is a battery, is unsupported by common sense. Nor are we willing to conclude that somehow a child's consent was invalid because of the defendant's sexual motivation. Indeed, a child under the age of 14 may consent to the act, even knowing the defendant's motivation, if the reward is perceived as sufficient. A violation of section 288 would occur if the defendant had the requisite motivation, regardless of the child's consent. A bright-line rule, like the one assumed by Thomas, simply is unrealistic.
We conclude that battery is not a lesser included offense to a violation of section 288 because a defendant may violate section 288 without committing a battery. Accordingly, the trial court did not have a sua sponte obligation to instruct the jury that battery was a lesser included offense to lewd and lascivious conduct.
II. View Shockley Statements with Caution*fn3
The prosecution introduced evidence of Shockley's statements to Nelson as part of its case-in-chief. Shockley contends the trial court erred in failing to instruct the jury that it should view the statements with caution if they were not recorded.
CALCRIM No. 358*fn4 instructs the jury how to evaluate an out-of-court statement made by the defendant. The trial court instructed the jury with CALCRIM No. 358, but omitted the following portion of the instruction: "[Consider with caution any statement made by (the/a) defendant tending to show (his/her) guilt unless the statement was written or otherwise recorded.]" Shockley argues the trial court erred in failing to instruct the jury with the entirety of the instruction.
The cautionary instruction is not required if the defendant's statements are not incriminating (People v. Slaughter (2002) 27 Cal.4th 1187, 1200 (Slaughter)), or if they are written or recorded (People v. Mayfield (1997) 14 Cal.4th 668, 776). In this case, Shockley's statement was recorded, but the recording was not played for the jury. Instead, Nelson testified to portions of the statement that were deemed relevant by the parties.
Shockley argues that since the recording was not played for the jury, the cautionary portion of the instruction should have been given to the jury. We disagree. The purpose of the instruction is to aid the jury in determining if the defendant made the statements attributed to him. (Slaughter, supra, 27 Cal.4th at p. 1200.) Here, the jury learned from Nelson that Shockley's statement was tape recorded, and there were numerous references to the transcript of the recording. Therefore, since the jury knew Shockley's statements were recorded, and knew there was a transcript of the interview, the cautionary instruction was unnecessary because there was no dispute that the statements were made. Accordingly, the trial court did not err in failing to give the cautionary instruction.
III. Corpus Delicti*fn5
Shockley's statements to Nelson attempted to explain how innocent actions may have formed the basis for the victim's claims. Shockley, however, denied having touched the victim in a sexual manner. Shockley argues the trial court erred because it failed to instruct the jury that his statements alone could not establish that criminal conduct occurred.
"Whenever an accused's extra-judicial statements form part of the prosecution's evidence, the cases have ... required the trial court to instruct sua sponte that a finding of guilt cannot be predicated on the statements alone. [Citations.]" (People v. Alvarez (2002) 27 Cal.4th 1161, 1170.) "The independent proof may be circumstantial and need not be beyond a reasonable doubt, but is sufficient if it permits an inference of criminal conduct, even if a non-criminal explanation is also plausible. [Citations.]" (Id. at p. 1171.) "Error in omitting a corpus delicti instruction is considered harmless, and thus no basis for reversal, if there appears no reasonable probability the jury would have reached a result more favorable to the defendant had the instruction been given. [Citations.]" (Id. at p. 1181.)
We assume, arguendo, the prosecution relied on Shockley's statements to Nelson, but we reject Shockley's claim because there is no possibility the jury would have reached a more favorable result had the instruction been given.
CALCRIM No. 359*fn6 simply requires proof independent of the defendant's statements to establish that criminal conduct occurred. Here, the proof that criminal conduct occurred came from the victim, who described incidents where Shockley kissed her inappropriately, rubbed her vagina, and tickled her in a manner that made her uncomfortable. Shockley denied rubbing the victim's vagina and kissing her inappropriately and claimed the tickling was innocent. He attempted to explain, however, how the victim possibly could have made a mistake about the acts. This testimony was not relevant because the victim's statements established that criminal conduct occurred.
We conclude that simply instructing the jury that it could not find that criminal conduct occurred based only on Shockley's statements would have had no affect on the judgment. There was ample independent evidence establishing that criminal conduct occurred. The verdict would not have been different if the jury had been instructed with CALCRIM No. 359.
The judgment is affirmed.