Superior Court Stanislaus County No. 1238243, Ct.App. 5 F058249, Thomas D. Zeff Judge
Gregory W. Brown, under appointment by the Supreme Court, for Defendant and Appellant.
Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lloyd G. Carter, Janet Neeley and Leanne LeMon, Deputy Attorneys General, for Plaintiff and Respondent.
We must decide whether battery is a lesser and necessarily included offense of lewd and lascivious conduct with a child under 14 years of age (hereafter referred to as lewd conduct). We conclude it is not.
I. Factual and Procedural Background
On October 17, 2007, defendant Thomas Raymond Shockley attended a family gathering in Modesto to celebrate victim Jane Doe’s 10th birthday. Jane, the stepdaughter of defendant’s adult daughter, was not biologically related to defendant, but Jane often called him “grandpa.” When Jane was alone at the computer, defendant kissed her on the lips and stuck his tongue in her mouth.
Two days later, as a birthday present to Jane, defendant took Jane and her nine-year-old stepsister (defendant’s biological granddaughter) to the movies. On the drive home, Jane sat between defendant and her stepsister in the front seat. After Jane took off her sweatshirt, defendant began rubbing her bare stomach, near her belly button, with his hand. When Jane asked defendant if she could steer the car, defendant told her to put her leg over his leg. Defendant rubbed Jane’s genital area with his hand through her clothes for about five minutes. After giving her stepsister a worried look, Jane asked to switch seats with her.
When they got home, Jane told her stepsister what had happened in the car. She also told her father, who later called police. Modesto Police Officer Scott Nelson interviewed defendant. Defendant admitted rubbing Jane’s stomach and poking her belly button. He said “his girlfriend would do the same thing to him just for fun.” He denied rubbing Jane’s genital area. Defendant said Jane could have thought he kissed her with his mouth open because at the theater, he spilled soda on his mouth and was licking the soda off with his tongue when Jane leaned over and kissed him. Defendant also thought that Jane might have said those things about him because she had had large coffee drinks after the movie, and the caffeine might have affected her thinking.
A jury found defendant guilty of lewd conduct under Penal Code section 288, subdivision (a) (section 288(a)). On appeal, he argued that the trial court had a sua sponte duty to instruct the jury on battery under Penal Code section 242 (section 242) as a lesser and necessarily included offense of lewd conduct. The Court of Appeal disagreed and affirmed the judgment. We granted defendant’s petition for review.
A trial court has a sua sponte duty to “instruct on a lesser offense necessarily included in the charged offense if there is substantial evidence the defendant is guilty only of the lesser.” (People v. Birks (1998) 19 Cal.4th 108, 118) Substantial evidence in this context is evidence from which a reasonable jury could conclude that the defendant committed the lesser, but not the greater, offense. (People v. Ochoa (1998) 19 Cal.4th 353, 422.) “The rule’s purpose is... to assure, in the interest of justice, the most accurate possible verdict encompassed by the charge and supported by the evidence.” (People v. Breverman (1998) 19 Cal.4th 142, 161.) In light of this purpose, the court need instruct the jury on a lesser included offense only “[w]hen there is substantial evidence that an element of the charged offense is missing, but that the accused is guilty of” the lesser offense. (People v. Webster (1991) 54 Cal.3d 411, 443.)
To determine if an offense is lesser and necessarily included in another offense for this purpose, we apply either the elements test or the accusatory pleading test. “Under the elements test, if the statutory elements of the greater offense include all of the statutory elements of the lesser offense, the latter is necessarily included in the former. Under the accusatory pleading test, if the facts actually alleged in the accusatory pleading include all of the elements of the lesser offense, the latter is necessarily included in the former.” (People v. Reed (2006) 38 Cal.4th 1224, 1227-1228.) In this case, because the information charging defendant with lewd conduct simply tracked section 288(a)’s language without providing additional factual allegations, we focus on the elements test. (People v. Anderson (1975) 15 Cal.3d 806, 809.)
Under section 288(a), “any person who willfully and lewdly 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.” “Any touching of a child under the age of 14 violates this section, even if the touching is outwardly innocuous and inoffensive, if it is accompanied by the intent to arouse or gratify the sexual desires of either the perpetrator or the victim.” (People v. Lopez (1998) 19 Cal.4th 282, 289.) By focusing on the defendant’s intentto sexually exploit a child rather than on the nature of the defendant’s ...