Order Filed 2/26/14
Superior Court Stanislaus County Nos. 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.
ORDER MODIFYING OPINION AND DENYING PETITION FOR REHEARING
The opinion in this matter filed on December 26, 2013, and appearing at 58 Cal.4th 400, is modified as follows and the petition for rehearing is denied:
On page 405, the third sentence in the third full paragraph that now reads: “If guilt of battery is predicated on guilt of lewd conduct - i.e., if a person guilty of lewd conduct is automatically also guilty of battery - there would be no elements of battery not also required of lewd conduct, ” is modified to read as follows: “If guilt of battery is predicated on guilt of lewd conduct - i.e., if a person is guilty of battery because that person committed lewd conduct - neither crime would have an element not also required of the other.”
This modification does not change the judgment.
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 ...