The PEOPLE, Plaintiff and Respondent, v. Caesar Augustus LOPEZ, Defendant and Appellant.
Appellant Caesar Augustus Lopez was charged by information in Count One with committing a lewd act upon a child under the age of 14 (Pen.Code, 2 § 288, subd. (a)) with enhancement allegations that he had kidnapped the victim for purposes of committing a sexual offense (§ 667.8, subd. (b)) in a manner which substantially increased the risk of harm to the victim (§ 667.61, subds. (a), (c) & (d)), and in violation of section 207, 208, 209 or 209.5 (§ 667.61, subds.(b), (c) & (e)); and in Count Two with possession of methamphetamine (Health & Saf.Code, § 11377, subd. (a)). The information also charged a prior serious felony conviction within the meaning of section 667, subdivision (a)(1) and a prior serious or violent felony conviction within the meaning of section 667, subdivisions (b)-(i).
Lopez pleaded guilty to Count Two. The jury convicted Lopez of Count One and found true the Count One enhancement allegations. Lopez admitted the truth of the prior serious or violent felony conviction allegations.
This appeal challenges (1) the sufficiency of the evidence to support the true findings on the Count One enhancement allegations, (2) the propriety of admitting evidence of Lopez's prior molestation of a different victim, (3) alleged instructional errors, and (4) alleged sentencing errors.
THE EVIDENCEA. The Offense
During a late afternoon in 1995, five-year-old Arielle H. (Arielle) was visiting her friend Vicky at an apartment building in Escondido. Vicky and Arielle were playing outside the building. Lopez approached them, held out a lollipop and said, “Hey, little girl, want some candy?” Vicky warned Arielle not to take the candy and not to talk to strangers, but Arielle took the lollipop.
Lopez told Arielle he was going to take her home.3 She accompanied him. They walked approximately 90 feet, rounded a corner and walked another 118 feet on a more secluded walkway bordered in part by a block wall and a fence.
Lopez then touched Arielle on her vaginal area through her underwear. Vicky saw Lopez touching Arielle and thought he was trying to lift Arielle. Vicky grabbed Arielle by the arm and pulled her away from Lopez. The girls ran to Vicky's mother and told her what had occurred.
Lopez was detained by neighbors until police arrived. Police searched him and found two lollipops and a jar of Vaseline.4 Lopez had purchased two lollipops and a jar of Vaseline earlier that day at a store two blocks distant from Vicky's apartment.
Lopez waived his Miranda rights. He told police he had gone to the apartment complex to visit a woman and had spoken to a man about renting an apartment. He noticed the two girls and touched the friendlier one. He admitted touching Arielle's vagina through her dress for purposes of sexual gratification. He admitted having sexual fantasies about children.
The next day Lopez telephoned a social worker he knew and told her he had been involved in a child molestation. He stated he accepted responsibility for those actions and wanted to go to jail because “it would be safe for him [there].”
A few days later Detective Claytor contacted Lopez. Lopez told Claytor he was worried about reuniting with his family because he feared molesting again. Lopez stated he felt he could not control himself.
B. The Prior Conduct
Taron S. (Taron) testified she was seven years old in 1984 when Lopez molested her. She was playing with friends at a school yard when Lopez approached her and asked for her help in locating a missing cat. He walked with her to a kindergarten playground, where he gave her a lollipop. They then walked down an alley, and Lopez led her by the wrist to his truck, placed her inside and drove away. He kept Taron in the truck for a five-hour period during which he repeatedly molested her. He touched her vagina over her dress, and after placing Vaseline on his hand he touched her under her dress. He forced her to touch his penis with her hands and mouth and to masturbate him until he ejaculated. He eventually released her near the school and threatened to hurt her or her family if she said anything about the incident.
Taron returned to her family, who had been searching for her. Although Lopez was prosecuted and convicted of kidnapping in connection with the incident, he was not prosecuted for molestation because Taron did not reveal what had happened. The first time she told anyone of the molestation was two years after the event. At that time, her best friend spoke of being molested by her stepfather, and Taron then told her friend of the molestation by Lopez.
LESSER INCLUDED OFFENSE CLAIM
Lopez argues that because he was charged with violating section 288, subdivision (a), the trial court was obliged to instruct sua sponte on misdemeanor child annoyance (§ 647.6, subd. (a)) as a lesser included offense of the principal charge. We conclude that instructions on section 647.6, subdivision (a) may be required in certain cases on request of the defendant as a “lesser related offense” of section 288, subdivision (a) under People v. Geiger (1984) 35 Cal.3d 510, 199 Cal.Rptr. 45, 674 P.2d 1303, but that instructions on section 647.6, subdivision (a) are not required sua sponte as a lesser included offense of section 288, subdivision (a).5
A. Legal Framework
A court must instruct sua sponte on general principles of law which are closely and openly connected with the facts presented at trial. (People v. Wickersham (1982) 32 Cal.3d 307, 323, 185 Cal.Rptr. 436, 650 P.2d 311, disapproved on other grounds in People v. Barton (1995) 12 Cal.4th 186, 200-201, 47 Cal.Rptr.2d 569, 906 P.2d 531.) An instruction on a lesser included offense is required sua sponte when the evidence raises a question of whether all of the elements of the charged crime have been shown and the evidence would be sufficient to support a conviction of the lesser included offense. (People v. Ramkeesoon (1985) 39 Cal.3d 346, 351, 216 Cal.Rptr. 455, 702 P.2d 613.) Lopez argues a jury could have had a reasonable doubt as to the intent he harbored at the time he touched Arielle: Did he intend to arouse or gratify his or Arielle's sexual desires by the touching, or was he trying to “lift” Arielle, as Vicky described, to move Arielle to another locale where he would commit the section 288, subdivision (a) offense as he had done with Taron. Lopez argues that if a jury concluded the latter scenario occurred, they could have found his acts did not violate section 288, subdivision (a) but constituted acts which would disturb or annoy a reasonable person and which were motivated by an abnormal sexual interest in the child, within the proscriptions of section 647.6, subdivision (a). (People v. Maurer (1995) 32 Cal.App.4th 1121, 1127, 38 Cal.Rptr.2d 335.)
Although a court must instruct sua sponte on lesser included offenses of the charged offense (People v. Barton (1995) 12 Cal.4th 186, 204, 47 Cal.Rptr.2d 569, 906 P.2d 531), instructions on lesser related offenses are required only on a defense request (People v. Geiger, supra, 35 Cal.3d at pp. 524-532, 199 Cal.Rptr. 45, 674 P.2d 1303). Because Lopez did not request instructions on section 647.6, subdivision (a) under Geiger, we examine only whether section 647.6, subdivision (a) is a lesser included offense requiring sua sponte instructions.6
To determine whether a lesser offense is necessarily included in the charged offense, one of two tests (denominated the “elements” test and the “accusatory pleading” test) must be met. The elements test is satisfied when “ ‘all the legal ingredients of the corpus delicti of the lesser offense [are] included in the elements of the greater offense.’ ” (People v. Anderson (1975) 15 Cal.3d 806, 809-810, 126 Cal.Rptr. 235, 543 P.2d 603, quoting People v. Francis (1969) 71 Cal.2d 66, 73, 75 Cal.Rptr. 199, 450 P.2d 591.) Stated differently, if a crime cannot be committed without also necessarily committing another offense, the latter is a necessarily lesser included offense within the former. (People v. Miranda (1994) 21 Cal.App.4th 1464, 1467, 26 Cal.Rptr.2d 610.) The accusatory pleading test states that a lesser offense is included within the greater charged offense “ ‘if the charging allegations of the accusatory pleading include language describing the offense in such a way that if committed as specified the lesser offense is necessarily committed.’ ” (People v. Toro, supra, 47 Cal.3d at p. 972, 254 Cal.Rptr. 811, 766 P.2d 577, quoting People v. Geiger, supra, 35 Cal.3d at p. 517, fn. 4, 199 Cal.Rptr. 45, 674 P.2d 1303.) 7
Because both tests begin with a comparison of the elements of the greater and lesser crimes, we compare section 288, subdivision (a) with section 647.6, subdivision (a). Section 288, subdivision (a) is violated by “any touching” of a child under the age of 14 even if the touching is innocent or innocuous, when the touching is accompanied by the intent to arouse or gratify the sexual desires of either the perpetrator or the victim. (People v. Martinez (1995) 11 Cal.4th 434, 452, 45 Cal.Rptr.2d 905, 903 P.2d 1037.) Section 647.6, subdivision (a) does not require a touching (People v. Memro (1995) 11 Cal.4th 786, 871, 47 Cal.Rptr.2d 219, 905 P.2d 1305) but does require (1) conduct a “ ‘normal person would unhesitatingly be irritated by’ ” if the conduct were directed at a normal person (People v. Carskaddon (1957) 49 Cal.2d 423, 426, 318 P.2d 4, quoting People v. McNair (1955) 130 Cal.App.2d 696, 698, 279 P.2d 800), and (2) conduct “motivated” by an abnormal sexual interest in the victim.8 (People v. Maurer, supra, 32 Cal.App.4th at p. 1127, 38 Cal.Rptr.2d 335.) The assessment of whether the conduct would unhesitatingly irritate or disturb a reasonable person is an objective test and does not depend on whether the child was in fact irritated or disturbed. (People v. Pallares (1952) 246 P.2d 173, 112 Cal.App.2d Supp. 895 [adopting objective standard to measure whether conduct would annoy]; In re Gladys R. (1970) 1 Cal.3d 855, 868, 83 Cal.Rptr. 671, 464 P.2d 127 [approving Pallares's construction of statute].)
Under the elements test for lesser included offenses, the “actus reus” element of a section 288, subdivision (a) crime could occur without that same conduct necessarily violating the actus reus of section 647.6, subdivision (a). A relative who shows familial affection to a child with hugs and kisses does not engage in conduct which would cause a normal person to be unhesitatingly irritated or disturbed, because physical affection among relatives is acceptable conduct. Although that conduct would satisfy the “any touching” aspect of section 288, subdivision (a) and violate that section if accompanied by the requisite intent, it would not violate section 647.6, subdivision (a) because it is not objectively irritating or disturbing. It is therefore possible to violate section 288, subdivision (a) without necessarily violating section 647.6, subdivision (a).
Lopez argues a violation of section 288, subdivision (a) necessarily violates section 647.6, subdivision (a), because touching a child with lewd intent would disturb a reasonable person. Lopez's argument, however, is based on the erroneous premise that the disturbing nature of the conduct under section 647.6, subdivision (a) is not evaluated by the objective nature of the conduct alone (i.e., the conduct divorced from any consideration of what motivated the actor) but instead is evaluated by examining the conduct together with the actor's motivations and mental states. However, in the cases decided under section 647.6, subdivision (a), the actor's mental state is disregarded in evaluating whether the element of objectively disturbing conduct has been met. In every reported case in which the courts have upheld convictions under section 647.6, the defendant's objective conduct would have unhesitatingly irritated or disturbed a reasonable person had it been directed at that person regardless of the defendant's intent.9 Conversely, in the only case reversing a conviction under section 647.6, subdivision (a), the court in People v. Carskaddon, supra, 49 Cal.2d 423, 318 P.2d 4 examined the defendant's conduct alone and held that regardless of the defendant's subjective plans (i.e., whether he might have intended later to molest the child) the conduct would not have unhesitatingly irritated or disturbed a reasonable person had it been directed at that person. (Id. at pp. 426-427, 318 P.2d 4.)
For these reasons, we conclude section 647.6, subdivision (a) is not a lesser included offense of section 288, subdivision (a) under the elements test.10
Lopez alternatively argues the accusatory pleading here described conduct which would necessarily have violated section 647.6, subdivision (a). Assuming arguendo the accusatory pleading test governs sua sponte instructional obligations (but see fn. 6, ante ), the conduct described in the accusatory pleading would not necessarily have violated section 647.6, subdivision (a). The language of the accusatory pleading on which Lopez relies was the allegation he violated section 288, subdivision (a) by “touch[ing] the victim's vaginal area outside of her underwear.” Nothing in this language is inconsistent with a mutually consensual touching,11 and section 288, subdivision (a) can be violated even if the victim consented to touching. (People v. Cardenas (1994) 21 Cal.App.4th 927, 937, fn. 7, 26 Cal.Rptr.2d 567.)
We therefore assess whether the conduct described in the accusatory pleading-a nonforcible or consensual touching of the vaginal area of a female through her clothing-necessarily violates section 647.6, subdivision (a). The answer is no. A female child who rides on her father's shoulders might have contact between her vaginal area and her father's neck or shoulders, but that contact would not unhesitatingly irritate or disturb a reasonable person. A consenting female partner would not be unhesitatingly irritated or disturbed if her partner engaged in the type of contact described by the accusatory pleading.
We therefore conclude that section 647.6, subdivision (a) is not a necessarily lesser included offense of section 288, subdivision (a) under either the elements test or the accusatory pleading test, and there was no sua sponte instructional obligation in this case.
Lopez claims the trial court made two sentencing errors: (1) by sentencing him to 25 years to life under section 667.61, subdivision (a), and (2) by doubling that term under section 667, subdivision (e)(1). He also asserts it was error to use the same prior felony conviction to double the term under section 667, subdivision (e)(1) and to impose a five-year enhancement under section 667, subdivision (a).
We need not consider these sentencing claims because we agree with Lopez's argument that this matter must be remanded for reconsideration of the sentence under People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 53 Cal.Rptr.2d 789, 917 P.2d 628. The trial court's comments indicate it imposed the sentence under the impression it had no discretion to strike the prior serious or violent felony conviction allegation. Because that impression was erroneous, we remand to allow the trial court to exercise the discretion discussed in Romero.
The matter is remanded for resentencing consistent with the sentencing standard set forth in Romero; in all other respects the judgment is affirmed.
FN2. All further statutory references are to the Penal Code unless otherwise specified.. FN2. All further statutory references are to the Penal Code unless otherwise specified.
3. Arielle's testimony was unclear and contradictory on this point: at times she denied that Lopez told her he was taking her home, and at other times she said he did say he was taking her home.
4. Detective Claytor testified that child molesters sometimes use lubricants such as Vaseline to masturbate or to allow penetration of younger children.
5. We recognize that People v. La Fontaine (1978) 79 Cal.App.3d 176, 183, 144 Cal.Rptr. 729 and its progeny (see People v. Poon (1981) 125 Cal.App.3d 55, 178 Cal.Rptr. 375; People v. Gordon (1985) 165 Cal.App.3d 839, 212 Cal.Rptr. 174; People v. Callan (1985) 174 Cal.App.3d 1101, 220 Cal.Rptr. 339) have stated section 647.6 subdivision (a), and its predecessor statute, former section 647a, is a lesser included offense of section 288, subdivision (a). For the reasons we discuss, we disagree with La Fontaine and its progeny.
6. When a crime does not qualify as a lesser included offense because all of its elements are not subsumed within the elements of the charged crime or the charging allegations, it may still be a lesser related offense of the charged crime. When an offense “is closely related to that charged and the evidence provides a basis for finding the defendant guilty of the lesser but innocent of the charged offense,” the offense is deemed to be “lesser related,” and on a defendant's request, a trial court must instruct the jury on the lesser related offense. (People v. Toro (1989) 47 Cal.3d 966, 974, 254 Cal.Rptr. 811, 766 P.2d 577.)
7. For the reasons discussed below, we conclude section 647.6, subdivision (a) is not a lesser included offense of section 288, subdivision (a) under either formulation. However, we question whether the “accusatory pleading” test is an appropriate method to establish a trial court's sua sponte instructional obligations. Lopez cites no case in which a sua sponte instructional obligation was imposed when the elements test was not met but the particular verbiage of the accusatory pleading described a potential lesser included offense. Of the cases cited by Lopez, one of them used the elements test to assess the propriety of multiple convictions (People v. Miranda, supra, 21 Cal.App.4th at p. 1467, 26 Cal.Rptr.2d 610), another did not involve an accusatory pleading (People v. Lagunas (1994) 8 Cal.4th 1030, 36 Cal.Rptr.2d 67, 884 P.2d 1015), and a third evaluated a defense request for instructions on lesser related offenses (People v. Barrick (1982) 33 Cal.3d 115, 133-135, 187 Cal.Rptr. 716, 654 P.2d 1243).We are unaware of any case in which a sua sponte instructional obligation arose based on the accusatory pleading test. Due process precludes convicting a defendant of an offense which is neither charged nor necessarily included within the charged offense even if the evidence at trial shows the uncharged offense was committed. (People v. Lohbauer (1981) 29 Cal.3d 364, 369, 173 Cal.Rptr. 453, 627 P.2d 183.) If due process does not permit a conviction for an offense neither charged nor necessarily included in the charged offense, we do not see how due process would permit a conviction for an offense over defense objection (People v. Barton, supra, 12 Cal.4th at p. 198, 47 Cal.Rptr.2d 569, 906 P.2d 531) merely because the accusatory pleading describes the possible evidence on which the prosecutor intends to rely.
8. Our analysis relies in part on cases decided under former section 647a. Section 647a was the predecessor statute to section 647.6, subdivision (a), and the two statutes are identical in relevant respects (People v. Memro, supra, 11 Cal.4th at p. 871, 47 Cal.Rptr.2d 219, 905 P.2d 1305). We hereafter refer to the statute by its current designation as section 647.6, subdivision (a).
9. For example, in People v. McNair, supra, 130 Cal.App.2d 696, 279 P.2d 800, the defendant exposed himself to a seven-year-old in a public place, which satisfied the “conduct” element as conduct that would irritate or disturb a normal person. (Id. at p. 697, 279 P.2d 800.) In In re Sheridan (1964) 230 Cal.App.2d 365, 40 Cal.Rptr. 894, the defendants offered to give the children a ride but after driving a short distance the defendants refused to allow them out of the car and held them against their will for a period of time, which again was conduct that would irritate or disturb a normal person regardless of the defendant's subjective mental state. (Id. at p. 371, 40 Cal.Rptr. 894.) In People v. Thompson (1988) 206 Cal.App.3d 459, 253 Cal.Rptr. 564, a 12-year-old child was riding her bicycle, and the defendant followed her, staring at her and making gestures toward her with his hand and lips; he continued following her for an extended period of time, driving at slow speeds and making U-turns to maintain contact with her. (Id. at pp. 461-462, 253 Cal.Rptr. 564.) The court concluded that, although the conduct was not lewd, the “behavior would place a normal person in a state of being unhesitatingly irritated, if not also fearful” (id. at p. 467, 253 Cal.Rptr. 564), thereby satisfying the conduct element of section 647.6, subdivision (a).
10. Our analysis compels us to disagree with the conclusion of People v. La Fontaine, supra, 79 Cal.App.3d 176, 144 Cal.Rptr. 729 that section 647.6, subdivision (a) is a lesser included offense of section 288, subdivision (a). La Fontaine did not analyze the elements before reaching its conclusion, but instead simply declared: “There can be no rational dissent from the fact that a violation of [section 647.6] ․ is necessarily included in the offense provided by [section 288].” (Id. at p. 183, 144 Cal.Rptr. 729.) Based on our analysis, we believe the ipse dixit holding of La Fontaine should not be perpetuated. We believe our conclusion does not involve rejection of well-reasoned analysis, because the other courts making similar statements appear to have done so without significant analysis (People v. Poon, supra, 125 Cal.App.3d at p. 80, 178 Cal.Rptr. 375 [uncritically relying on La Fontaine ]; People v. Gordon, supra, 165 Cal.App.3d at p. 864, 212 Cal.Rptr. 174 [uncritically relying on Poon and La Fontaine ]; People v. Callan, supra, 174 Cal.App.3d at p. 1112, 220 Cal.Rptr. 339 [uncritically relying on Gordon ] ), and the most recent Supreme Court authority is equivocal on the subject (see People v. Memro, supra, 11 Cal.4th at pp. 870-871, 47 Cal.Rptr.2d 219, 905 P.2d 1305 [“It has been held that misdemeanor child molestation under former section 647a was a lesser included offense of section 288. [Citation.] Even if that is so ․-issues we do not decide-we disagree that he was entitled to an instruction on former § 647a]”).
11. The court in People v. Lohbauer, supra, 29 Cal.3d 364, 173 Cal.Rptr. 453, 627 P.2d 183 faced an analogous issue. The accusatory pleading charged the defendant with burglary (§ 459) “in that ․ he entered the house of [victim] ․ with intent to commit theft.” The trial court acquitted him of the burglary charge but convicted him of violating section 602.5 (entry of a non-commercial dwelling without the consent of the owner). (Lohbauer, supra, at p. 368, 173 Cal.Rptr. 453, 627 P.2d 183.) The court concluded that section 602.5 was not a lesser included offense of the charged allegation because burglary can be committed by a defendant who has entered with the consent of the victim, and section 602.5 required nonconsent. (Lohbauer, supra, at p. 369, 173 Cal.Rptr. 453, 627 P.2d 183.)
FOOTNOTE. See footnote 1, ante.
McDONALD, Associate Justice.
HUFFMAN, Acting P.J., and McINTYRE, J., concur.