PEOPLE v. YOUNG (1992)

OPINION

Following a rash of burglary/robbery/sexual assaults in Fresno County, defendant Stephen Wayne Young was apprehended.   Young later stood trial on numerous charges involving multiple victims;  various enhancements were alleged, including a Penal Code section 667, subdivision (a) ¹ allegation that he had been previously convicted of a serious felony, second degree rape, in Oklahoma.   Young was convicted of all counts.   Almost all of the enhancements were found to be true, including the section 667, subdivision (a) allegation.

FACTS

Although the charges were many and the jury trial lengthy, defendant's contentions do not require a detailed recitation of the facts relating to the victims.   Therefore, the pertinent details shall be incorporated, as necessary, within the discussion of the issues raised.

DISCUSSION

I. Sexual battery (§ 243.4) is not a lesser included offense of sexual penetration with a foreign object (§ 289, subd. (a)).

In count II of the information, it was alleged that defendant, on or about December 8, 1988, committed a violation of section 289, subdivision (a) upon Ruth K.   At trial, Ruth testified that on the date in question, she was awakened in her home by a noise in the hallway.   Looking up, she saw a figure in the doorway to her bedroom.   She inquired of the intruder what he was doing.   In response, defendant grabbed Ruth and pulled her out of bed;  he put the knife to her throat and told her to be quiet or he would hurt her.   He made her lay on the bed, put a pillowcase over her head and tied her wrists and ankles with a telephone cord.   He then thoroughly searched the house for anything of value.   Defendant later left the house, taking with him certain property he had found.

At trial, Ruth testified that at one point, defendant “put his fingers in my vagina and asked me if I liked sex.”

Upon cross-examination of the investigating officer, defense counsel brought out that Ruth had previously given a statement which indicated to the officer that no penetration occurred, only a touching on the outside of the vagina.²

Prior to instructing the jury, the trial judge asked defense counsel if she wanted an instruction on a lesser included offense to count II;  the reply was in the negative.

 Defendant contends the trial court erred in failing to instruct the jury sua sponte that sexual battery (§ 243.4) is a lesser included offense of sexual penetration by a foreign object (§ 289, subd. (a)).   The People concede the trial court must instruct sua sponte on lesser included offenses but argue sexual battery is not a lesser included offense of sexual penetration with a foreign object;  therefore, absent a request, the trial court was not required to instruct on sexual battery.   As we shall explain, the People's position is correct.

Section 289, subdivision (a) provides, in pertinent part:

“Every person who causes the penetration, however slight, of the genital or anal openings of any person ․ for the purpose of sexual arousal, gratification, or abuse by any foreign object, substance, instrument, or device when the act is accomplished against the victim's will by means of force, violence, duress, menace, or fear of immediate unlawful bodily injury on the victim ․ shall be punished by imprisonment in the state prison for three, six, or eight years.”

Section 243.4 defines sexual battery as follows:

“Any person who touches an intimate part of another person while that person is unlawfully restrained by the accused or an accomplice, and if the touching is against the will of the person touched or is for the purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of sexual battery․

“․

“․ ‘[T]ouches' means physical contact with the skin of another person whether accomplished directly or through the clothing of the person committing the offense.”

 An offense is necessarily included within the charged offense “if under the statutory definition of the charged offense it cannot be committed without committing the lesser offense, or 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. Geiger (1984) 35 Cal.3d 510, 517, fn. 4, 199 Cal.Rptr. 45, 674 P.2d 1303.)

Initially, it is defendant's contention that the evidence established the trial court's sua sponte duty to instruct on sexual battery.   The implication is that since the penetration complained of was by the fingers, in fact a sexual battery was committed.

 This argument is meritless.   If the facts developed at trial, as distinguished from the facts charged, indicate that a lesser offense was also committed, the lesser offense is a related offense, not an included offense.   In that case, the trial court must only instruct upon the request of defense.   There is no sua sponte duty to do so.  (People v. Geiger, supra, 35 Cal.3d at p. 530, 199 Cal.Rptr. 45, 674 P.2d 1303.)   To hold otherwise would allow conviction of an offense to which defendant had no notice.  (Ibid.;  People v. Santos (1990) 222 Cal.App.3d 723, 738, 271 Cal.Rptr. 811.)   As stated by the California Supreme Court in People v. Lohbauer (1981) 29 Cal.3d 364, 173 Cal.Rptr. 453, 627 P.2d 183:

“ ‘ “Due process of law requires that an accused be advised of the charges against him in order that he may have a reasonable opportunity to prepare and present his defense and not be taken by surprise by evidence offered at his trial.”  [Citations.]’  [Citation.]   As to a lesser included offense, the required notice is given when the specific language of the accusatory pleading adequately warns the defendant that the People will seek to prove the elements of the lesser offense.”  (29 Cal.3d at pp. 368–369, 173 Cal.Rptr. 453, 627 P.2d 183.)

Having established that the focus of an analysis of a “lesser included issue” is on the charge, rather than the evidence, we now examine the pertinent language of section 289, subdivision (a) and section 243.4.³

In order to prove the crime of unlawful penetration by a foreign object, the following elements must be proved:  (1) A person caused the genital or anal opening of another person, however, slightly, to be penetrated by a foreign object, substance, instrument or device;  (2) the penetration was against the will of such person;  (3) the penetration was accomplished by the use of force, violence, duress, menace or fear of immediate and unlawful bodily harm to such person;  and (4) the penetration was done for the purpose and specific intent to cause sexual arousal, gratification or abuse.  (§ 289;  CALJIC No. 10.30 (5th ed. 1988).)

In comparison, in order to prove sexual battery, the following elements must be proved:  (1) The person touched an intimate part of another person, (2) such touching occurred while the other person was unlawfully restrained by the accused, (3) such touching was against the will of the person touched, and (4) such touching was done with the specific intent to cause sexual arousal, sexual gratification or sexual abuse.  (§ 243.4;  CALJIC No. 10:37 (5th ed. 1988).)

 We perceive two potential areas of dissimilarity.

Restraint

At first glance, it would appear that because sexual battery requires restraint by the accused, it cannot be a lesser included offense of penetration by a foreign object, which can be committed by the use of fear without force.   However, this court recently held that a person is unlawfully restrained when his or her liberty is being controlled by words, acts or authority of the perpetrator aimed at depriving the person's liberty against the person's will.  (People v. Arnold (1992) 6 Cal.App.4th 18, 30–31, 7 Cal.Rptr.2d 833.)   Hence, the use of force, fear, violence, duress, menace or fear constitutes unlawful restraint and does not distinguish the two sections.

Touching

A somewhat more difficult issue is whether penetration with a foreign object can occur without the “touching” requisite in a sexual battery.   If so, then sexual battery is not a necessarily lesser included offense;  if not, it is.

In pertinent part, section 243.4, subdivision (e) states:  “ ‘touches' means physical contact with the skin of another person whether accomplished directly or through the clothing of the person committing the offense.”

The statutory definition of “touches” mandates a conclusion that actual direct contact with the skin of the intimate part of the victim is essential to a violation of felony sexual battery.   Where the statutory language is clear and unambiguous, there is no need for statutory construction and the courts should not engage in it.  (In re Gustavo M. (1989) 214 Cal.App.3d 1485, 1498, 263 Cal.Rptr. 328;  In re Keith T. (1984) 156 Cal.App.3d 983, 986, 203 Cal.Rptr. 112.)

There is no similar requirement of touching in a violation of section 289, subdivision (a).   Penetration can be committed by an object in a manner which does not require the placement of any part of the body of the perpetrator upon the skin of the victim.   For example, a stick or other object could accomplish the act constituting a violation of section 289, subdivision (a), but which act would not necessarily include a touching as defined in section 243.4.   There would be no actual direct contact;  the touching would be accomplished indirectly.  (Cf., In re Gustavo M., supra, 214 Cal.App.3d at p. 1498, 263 Cal.Rptr. 328.)

Hence, although every penetration would involve a touching of the foreign object to the skin, that touching would not necessarily be the touching as specified in section 243.4, subdivision (e), since it would be neither direct nor through the clothing of the perpetrator.   Finally, reference in the statute to the clothing of the perpetrator as an exception to otherwise direct contact precludes any other type of indirect contact under the maxim, “expressio unius est exclusio alterius” (the enumeration of acts or things coming within the operation or exception of a statute will preclude by implication in the class covered or excepted other acts or things).   (Henderson v. Mann Theatres Corp. (1976) 65 Cal.App.3d 397, 403, 135 Cal.Rptr. 266.

This significant distinction compels a conclusion that section 243.4 is not a necessarily lesser included offense of section 289, subdivision (a).

II–IV.***

DISPOSITION

The case is remanded for resentencing in accordance with this opinion.   In all other respects, the judgment is affirmed.

FOOTNOTES

1.   All statutory references are to the Penal Code unless otherwise indicated.

2.   Through redirect examination of the officer, it was revealed that there was no specific inquiry regarding penetration;  the officer's report merely reflected his assumption based on what Ruth had told him.   It is fair to say that this point was in issue.

3.   The information did not allege the specific instrumentality used, to wit, fingers;  it recited generally the language of section 289.

FOOTNOTE.   See footnote *, ante.

BUCKLEY, Associate Justice.

HARRIS, Acting P.J., and FRANSON, J.†, concur.