PEOPLE v. RIOS (1984)

BACKGROUND

In consolidated informations, Robert Anaya Rios (hereinafter defendant Rios and/or Rios) and Gina Marie Portier (hereinafter defendant Portier and/or Portier) were both charged in counts I and III with violating Penal Code section 288, subdivisions (a) and (b) ¹ (lewd acts on a child by force or threat;  namely, victims Tina M. [count I] and Danielle F. [count III] );  in counts II and IV, both defendants were charged with violating section 288a, subdivision (c) (oral copulation by force or threat or by a person more than ten years older than a child under fourteen years of age;  namely, victims Tammy D [count II] and Danielle F. [count IV] ).   In count V, defendant Rios was also charged with violating Health and Safety Code section 11351 (possession of cocaine for sale) and of being armed within the meaning of section 12022, subdivision (a).   In count VI, Rios was also charged with violating section 12220 (possession of a machine gun).   Both defendants pled not guilty.

Defendant Rios' motion pursuant to section 1538.5 was denied, as was his motion to quash the search warrant and his motion to sever counts V and VI from counts I through VI.   The People's motion to strike the allegation in Count V pursuant to section 1203.07, subdivision (a)(1) was granted.

The defendants' motions pursuant to section 1118.1 were denied except as to Rios' motion which was granted as to count VI (possession of a machine gun) and the trial court entered a judgment of acquittal as to count VI.

Following a jury trial, both defendants were found guilty of count I (violation of section 288, subdivision (b)—a lewd act with child [Tina M.] by use of force and violence and against the will of child) and of count II (violation of Penal Code section 288a, subdivision (c)), and further found to be true the allegation that defendant Rios was 47 years of age and the co-participant [Tammy D.], was 14 years of age.   Both defendants were also found guilty of violating section 288, subdivision (a) (lewd act with child [Danielle F.] ), which was a lesser but necessarily included offense as charged in count III.   The jury found both defendants not guilty of violating section 288a, subdivision (c) (oral copulation) as alleged in count IV involving Danielle F.   Defendant Rios was found guilty of count V (violation of Health and Safety Code section 11351) a felony (possession for sale of cocaine) and the armed allegation to be true.

Defendants Rios and Portier's motions for a new trial were denied.

Defendant Rios was denied probation and sentenced to state prison.   The court selected the mid-term of 6 years for the base term as to count I.   On counts II and III, the court selected as to each count the mid-term of 6 years and ordered those sentences to run concurrently to count I.   On count V, Rios was sentenced to the mid-term of 3 years to run concurrently to count I and was sentenced to 1 year on count V for the section 12022, subdivision (a) violation.   The 1 year for the section 12022, subdivision (a) violation was permanently stayed.

Defendant Portier was denied probation and sentenced to state prison.   The court selected the low term of 3 years for the base term as to count I.   On counts II and III, the court selected as to each count the lower term of 3 years and ordered each count to run concurrently to count I.

Both defendants filed a timely notice of appeal.

FACTS

In respect to counts I through IV, the three children (Tina M. [aged 13];  Tammy D. [aged 14];  and Danielle F. [aged 12] ) testified substantially as follows:

VICTIM TINA M.:  Tina M. testified that on May 28, 1981, she and Tammy D. and Danielle F. were taken by defendant Portier to the residence of defendant Rios to clean the house;  that when the three girls first arrived, they had some soda pop;  that when a butler brought a “bong” [water pipe] into the front room and defendant Portier “put some stuff in it and then she had this little torch and lit it” and then “she asked us if we wanted to try it”;  and that although she (Tina M.) had never done it before and was scared, she took one puff but felt no effects;  and that the other two girls smoked it more than once.

Witness Tina M. further testified that defendant Portier then removed her own clothes, explaining that she was hot.²  The girls then went into the back yard and Portier picked up some dirt and threw it at one of the girls and everyone started doing the same thing.   After the mud fight, Portier “told us to go take a bath” and all three of the girls took a bath together;  that after they had finished their bath, Portier came into the bathroom and said that she was going to wash their clothes and gave them some towels to cover themselves;  that they then went into the living room, where Portier told them that when the number “7” was called, one of the girls would go into Rios' bedroom and when the number “11” was called, that person would come out of the room;  that she (Tina M.) was the second one to go in Rios' bedroom (whom she had never met before) and the girl who went in ahead of her looked “frightened” when she came out;  that Portier went in with her (Tina M.) for a few seconds, told her to get up on the bed, and she (Portier) then left the room;  that Tina M. indicated that she did not want to go in the room, but did so because defendant Portier had told the girls that she would beat them up if they did not do so.³  Defendant Rios had on a red shirt which he took off, and was wearing “a necklace with a cross of Jesus on it” and a bracelet.   When Tina M. got up on defendant Rios' bed, he took off her towel and felt her breasts with both hands, and when she jerked away he said, “Don't be afraid.”   After touching her for “just a little while,” defendant Rios sat in his bed for about five minutes with Tina M., and then he called out “11” and defendant Portier came in and took her back to the front room and she got her towel back;  and that the third girl that went into Rios' bedroom also came out looking frightened.

After each of the girls had gone into defendant Rios' bedroom alone, defendant Portier wanted all three of the girls to go together back into his bedroom;  that Portier “said the one that could put a hard-on Robert would earn $1,000”;  that when they entered the room, defendant Portier told all three to take their towels off and get into bed [nude];  that defendant Portier then sprayed what she called “holy water” on defendant Rios' stomach and started licking it;  and that defendant Portier then told the girls to try it, but she (Tina M.) refused, while Danielle F. complied; ⁴  that she (Tina M.) did not remember any pictures being taken in the bedroom, but did remember one picture which was taken in the kitchen soon after the girls arrived.

Witness Tina M. testified that she thought that they arrived at defendant Rios' house at around noon and left at about 9 p.m.;   that she did not try to leave the house during that time because the door had several locks which were always locked, as well as a chain lock which she couldn't reach;  that she also did not attempt to run away because defendant Portier was always in the same room as the girls;  and that defendant Portier gave her (Tina M.) $15 and did not say why she was being given the money;  that defendant Portier drove the girls to a bowling alley and at around 11 p.m., Tina M.'s mother came to the bowling alley and picked up the girls;  that she [Tina M.] did not tell her mother what had happened at the Rios home until after she spoke with Officer Carol Jackson at the police station because she was ashamed and afraid her mother would be mad and hurt.   At first, she did not tell the officer about everything that had happened, but later told her the whole story.

VICTIM TAMMY D.:  Tammy D. testified that in the Spring of 1981, she (Tammy D.) [aged 14], missed school one day for illness with her mother's permission;  that later that day, she went over to Danielle F.'s home and was asked if she wanted to go with Danielle F. to clean someone's house;  that Tina M. was also at Danielle F.'s home;  that defendant Portier drove the three girls to defendant Rios' home;  that Tammy D. had known defendant Portier for at least three years through Danielle F. and her mother, and had gone places with her before;  that when the three girls arrived at defendant Rios' home, Portier introduced them to Rios and then she told them to go out into the living room where she showed them a glass “bong” and told them to smoke the material in the “bong”;  that each of the girls puffed on the “bong”;  that the three girls then went out into the back yard and Portier went outside with them and threw mud at Danielle F. and then all three of the girls got involved in the mud fight;  that all three girls then went inside to take a shower or bath;  that she (Tammy D.) put her clothing on the sink and when she was through with her shower, she noticed that her clothing was gone; ⁵  that after she wrapped herself with a towel, she walked out of the bathroom and asked Portier for her clothes but was told by Portier that she wouldn't give the clothes back unless Tammy D. had sex with defendant Rios, and also threatened to kill the girls.⁶

Tammy D. further testified that the girls then went with Portier into defendant Rios' bedroom;  that later, Portier asked Tammy D. and Tina M. to leave the room and about a minute later, Portier came out into the living room and waited until Rios called for the girls;  that when they went in the room, Danielle F. was nude and sitting in Rios' wheelchair next to his bed and looked upset and like she was about to cry;  that Rios was lying in bed with a sheet pulled up to his stomach;  that Rios asked everyone to leave except Tammy D.;   that he asked her to come over and stand close to his bed;  that he took off the towel covering Tammy D. and grabbed her by her right arm and pulled her over;  that she (Tammy D.) tried to pull away, but was unable to do so;  that defendant Rios placed his tongue against her vagina for seven minutes and then let her go;  that both Portier and Rios had told her that she had to stay with Rios for seven minutes; ⁷  and that after leaving the bedroom, she went back into the living room with her towel and Portier went back into the bedroom with Tina M.

Defendant Rios later called everyone into his bedroom and asked the girls to sit up on his bed and hold his guitar;  and that both Portier (who was naked) and Rios then took pictures of the girls in the nude;  that after the pictures were taken, the girls all got dressed and Portier gave each of them some money.   Tammy D. was given $30.   Nobody explained why she was given money and Rios did not say that she would receive money.   The girls then waited for Portier near the front door.   At that time, the butler had arrived back at the house.   There was also another woman who had been in the house whom Tammy D. believed was the butler's wife.

Defendant Portier drove the girls to a bowling alley in El Segundo, where they played a few games before going home.   She (Tammy D.) did not tell her mother what had happened when she first got home because Portier told her not to or that she would get them “really bad.”   About a month later, she started having nightmares about the incident, so she told her mother what had happened.   Later Danielle F.'s mother contacted her mother to discuss the incident.   The day after Tammy D. told her mother what had happened, her mother took her down to the police station, where she told Officer Jackson what had happened.

VICTIM DANIELLE F.:  Danielle F. testified substantially as follows:  That in the Spring of 1981, when she was 12 years old, Portier called her (Danielle F.) and asked her if she would help clean defendant Rios' house;  that she knew Portier because their mothers had once been friends;  that she agreed to help and went to the Rios house, where she had a brief conversation with Rios and then helped to put away some dishes;  that at around 8 p.m., Portier drove her back to her home in El Segundo;  that about one week later, she (Danielle F.) received another phone call from Portier, who asked if she could come over to Rios' home again to clean house;  that at the time she received this call she was with two friends, Tammy D. and Tina M;  that Portier told the girls she would pick them up the next morning;  that the next day, all three of the girls stayed home from school and at around 10 or 10:30 a.m., Portier picked them up and took them to defendant Rios' home;  that at first the girls sat in the living room talking until Portier brought them some soda;  that all three of the girls met Rios and then went into the back yard where they started a mud fight;  that about five or ten minutes later, the girls, who were dirty, came back inside the house and defendant Rios said, “Why don't you guys take a shower?”

Witness Danielle F. further testified that the three girls went in the bedroom, put their clothes on the toilet and took a shower together;  that when they came out, their clothes were not on the toilet and Portier told them that she was washing the clothes, so the girls wrapped themselves in towels and went back out into the living room;  that Portier then said “whoever gives Robert [Rios] a hard-on can get a thousand dollars”, but all three girls said “no” and Portier threatened to leave them there if they did not comply.⁸  Defendant Portier and the three girls went into defendant Rios' bedroom, talked to him and then went out into the living room, where they removed their towels and Portier took off her clothes.   She then asked the girls to go with her back into Rios' bedroom, where she put what she described as “holy water” on Rios' stomach and then started licking it.   She told each of the girls to do the same thing, which they did.   One of the girls then remained in the room while the other two went out into the living room.⁹

Eventually, Danielle F. went inside Rios' bedroom.   He was lying on the bed nude and told her to come over, which she did.   He then started kissing her on the lips, breast, and “pussy.” ¹⁰  She remained alone in the bedroom with him for about seven to ten minutes and then went back out into the living room.   Later, the three girls returned to his room and he informed them that Danielle F. and Tammy D. had almost given him a “hard-on.”   The girls went to Portier's room, where she gave the girls some money.   Danielle F. received $50 ¹¹ which she later gave to her mother.

During the girls' visit at the Rios home, Portier took some pictures of them in the living room, dining room and in Rios' bedroom.   She also brought out a “bong” and the butler showed them how to smoke from it.   Danielle F. took two or three puffs and felt a little dizzy.

Danielle F. further testified that she did not want Rios to touch her, but she allowed him to do so because she was scared and because Gina Portier had threatened to leave the girls in the home if they didn't give the defendant a hard-on.

At around 11:30 p.m., or midnight that evening, Portier drove the girls back to a bowling alley in El Segundo.   The girls played some games for about ten minutes, then went home.   About a week after the incident, Danielle F. first told her mother what had happened at the Rios home.

Between the date of the incident and the date Danielle F.'s mother contacted the police, Danielle F. became aware of a dispute between her mother and Portier's mother.   Defendant Portier's mother had reported Danielle's mother to the welfare department, claiming that she had a job.

POSSESSION FOR SALE OF COCAINE CHARGE

In respect to the count V (possession for sale of cocaine) allegation, on October 7, 1981, pursuant to a search and arrest warrant of defendant Rios' Otsego street residence, police officers found a digital scale, a triple-beam scale, two large bags of substances—each containing about 1,000 grams of cocaine, another powder-like substance used to “cut” cocaine, a “bong”, two measuring scales, and some photographs.

Officer David C. Kempton's opinion was that the cocaine found in the home was possessed for resale because of the quantity involved, the packaging materials, the scales and the fact that there were substances to “cut” the cocaine.   He indicated that if the cocaine were cut down to 17.5 percent, which was a commonly sold percentage, and put in vials containing one gram, the cocaine would be worth between 2 and 2.5 million dollars.

Also found was a machine gun on the nightstand in one of the bedrooms, and a handgun found in defendant Rios' room.

DEFENSE

DEFENDANT RIOS:  The defense consisted of a denial.   Defendant Rios denied committing any of the described acts, and attributed the cocaine to a housemate (Carlos Kaplan) who fled during the search.   Rios stated that Portier told him that the girls wanted to be hookers but that he told them that that was not the right thing to do and, before they left, he gave them a lecture and gave each one a bible, and that other than the bible, he did not give them any property.   Rios denied giving any of the girls cocaine to smoke.

In respect to the possession of cocaine for purposes of sale charge, he denied that the cocaine was his;  that it belonged to a Carlos Kaplan;  that it was Kaplan who paid the $1,500 monthly rent on the Otsego residence in Encino;  and that Kaplan gave him a small amount of cocaine for his personal use.

DEFENDANT PORTIER:  Defendant Portier's defense also consisted of a denial.   She denied having threatened or enticed the girls to participate in the acts upon them by Rios and denied any knowledge of what Rios might have done in his bedroom out of her presence.   She stated defendant Rios sounded very religious and was very sincere when he “blessed his coke.”   She denied that she threw mud on the girls;  that it was the girls who asked her to wash their clothes;  that she would not have permitted the girls to go into Rios' bedroom if they were going to be molested;  that she never threatened the girls and they never seemed scared;  that when each of the girls came out she had a bible, a candle, and each had artifacts of Jesus Christ and each were lectured and none of them seemed frightened.   When she was driving them back, they had different stories about what happened in the bedroom and said that Rios had fondled them in some way but were joking about it.   She stated that her mother [Mrs. Portier] had turned in Danielle F.'s mother to welfare for working fraudulently and turned her in to immigration for marrying an illegal alien and getting paid for it.

ISSUES

On appeal, defendant Rios and Portier both contend 1) that the trial court erred in refusing to instruct the jury as to the lesser offense of “annoying or molesting children” under section 647a and 2) that the trial court should have declared a mistrial based on the prejudicial misconduct of the district attorney.

Defendant Rios additionally contends 1) that the trial court erred in denying defendant's motion to quash the search warrant, as there was no probable cause to justify the issuance of said warrant and that the trial court committed prejudicial error by denying defendant's motion to suppress evidence from a search based upon a warrant since said evidence was the fruit of a search which was unreasonable in its scope;  2) that the trial court erred in denying defendant's motion to sever the Health and Safety Code charges from the sex charges prior to trial;  and 3) that the evidence regarding the charges in counts I through IV was insufficient to sustain the judgments of conviction.

Defendant Portier additionally contends 1) that exposure of the jury to her mother's opinion that she should be sent to jail for 20 years was incurably prejudicial and deprived her of her right to trial by an impartial jury;  thus the trial court erred in refusing to grant a mistrial before the jury had been impaneled;  and 2) that the trial court erred in allowing the investigating officer to give her opinion regarding the inconsistencies in the girls' testimony and to state the existence of prior consistencies.

DISCUSSION

I

Defendants Rios and Portier both contend that the trial court erred in refusing to instruct the jury in respect to counts I and III on the lesser offense of “annoying or molesting children” under section 657a.   We disagree.

The jury was instructed on the applicable law of violation of section 288, subdivision (b) (a lewd act with a child by use of force and violence and against the will of the child), a felony, as charged in counts I and III.   In addition, the jury was instructed as to each of those counts on the lesser included offense of violating section 288, subdivision (a) (lewd act with a child), a felony.

Defendants Rios and Portier were convicted in count I [victim Tina M.] of violating section 288, subdivision (b) (a lewd act with a child by use of force and violence and against the will of the child), a felony.   In count III [victim Danielle F.], both defendants were also convicted of a lesser included offense of violating section 288, subdivision (a) (lewd act with child), a felony.

The clerk's transcript on appeal does not show that either defendant requested that the jury be instructed on section 647a ¹² (child molestation) or that any such request was refused.

“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.  [Citations.]”  (People v. St. Martin (1970) 1 Cal.3d 524, 531, 83 Cal.Rptr. 166, 463 P.2d 390.)

 However, that obligation has been held to include giving instructions on lesser included offenses when the evidence raises a question as to whether all the elements of the charged offense were present (see e.g., People v. Hood (1969) 1 Cal.3d 444, 82 Cal.Rptr. 618, 462 P.2d 370), but not when there is no evidence that the offense was less than that charged.  (People v. Noah (1971) 5 Cal.3d 469, 479, 96 Cal.Rptr. 441, 487 P.2d 1009;  People v. Osuna (1969) 70 Cal.2d 759, 767, 76 Cal.Rptr. 462, 452 P.2d 678;  People v. Sedeno (1974) 10 Cal.3d 703, 715–16, 112 Cal.Rptr. 1, 518 P.2d 913.)   The court should instruct the jury on every theory of the case, but only to the extent each is supported by substantial evidence.  (People v. Flannel (1979) 25 Cal.3d 668, 685, 160 Cal.Rptr. 84, 603 P.2d 1;  see also p. 684, fn. 12, 160 Cal.Rptr. 84, 603 P.2d 1, disapproving language to the contrary in People v. Carmen (1951) 36 Cal.2d 768, 773, 228 P.2d 281, and People v. Modesto (1963) 59 Cal.2d 722, 729, 31 Cal.Rptr. 225, 382 P.2d 33.)

In People v. Reeves (1980) 105 Cal.App.3d 444, 164 Cal.Rptr. 426, defendant Reeves was found, among other things, guilty of three counts of lewd and lascivious conduct.  (§ 288.)   On appeal, the defendant contended that his counsel was incompetent for not requesting a “lesser included” instruction re contributing to delinquency of a minor.   The record shows that defendant Reeves' counsel had requested and was refused an instruction on child molesting.  (§ 647a.)

In Reeves, the juvenile victim stated that the defendant took nude photographs of the victim and other boys.   He showed the victim these photographs.   He then asked the boy to orally copulate him.   The boy refused but defendant Reeves kept “bugging” him and finally he relented and did so.   The victim was then masturbated by defendant Reeves.   There were other sexual activities that took place that involved touching and nontouching.   The defense consisted of character evidence of defendant's reputation for honesty and veracity and that he was not the type likely to engage in sexual activities with the young boy.   Defendant Reeves did not testify.

The Reeves court held that on the state of the evidence if defendant was guilty at all he was guilty of the offenses charged.  (Citing People v. Sedeno (1974) 10 Cal.3d 703, 715–716, 112 Cal.Rptr. 1, 518 P.2d 913;  People v. Wiley (1976) 57 Cal.App.3d 149, 163, 129 Cal.Rptr. 13.)   Moreover, the defense consisted of a denial and the presentation of character evidence and therefore there was no evidence that the offense was less than that charged.   (People v. Reeves, supra, 105 Cal.App.3d at p. 454, 164 Cal.Rptr. 426.)

In People v. La Fontaine (1978) 79 Cal.App.3d 176, 144 Cal.Rptr. 729, the court held that as a matter of law there was insufficient evidence to uphold the defendant's conviction of violating section 288.   There the defendant gave the victim a ride in his car during which the defendant asked the victim whether he would like to make some money by letting the defendant orally copulate him.   The victim declined and left the car.   The La Fontaine court held that the defendant's conduct was insufficient to uphold a conviction for attempted violation of section 288.   The court reasoned that defendant's act was one of solicitation constituting preparation only and did not rise to the level of a criminal attempt.   The court did, however, uphold the defendant's conviction for violation of section 647a.

In People v. Wickersham (1982) 32 Cal.3d 307, 185 Cal.Rptr. 436, 650 P.2d 311, the State Supreme Court discussed generally the obligation of trial courts to sua sponte instructions on lesser included offenses and defenses.¹³

In view of Reeves and Wickersham we address the issue as to whether or not in the instant case the trial court committed reversible error by failing to instruct the jury, sua sponte, on section 647a, a misdemeanor, as a lesser included offense.

We conclude that the trial court had no obligation to so instruct, and, if it did, such failure was nonprejudicial as a matter of law.

THE SCENARIO

While there were some inconsistencies or variances in the testimony of the three young female victims, the general scenario painted by the evidence, as noted by the trial court and the probation officer, was not the type that children of the three victims' ages would manufacture.  (See footnote 15, infra.)   The scenario was that defendant Rios, through defendant Portier, his aider and abettor, lured the three young girls to his home under the ruse of cleaning the house.   After the three young girls were brought to the house by defendant Portier, once inside, the doors were locked.   The girls were then given soda pop and then encouraged to puff on a “bong” [a water pipe].   Portier then suggested that the girls go into the backyard to play, and according to one of the girls, defendant Portier threw some mud on one of them which started a mud fight between the girls.   When the girls came back into the house all three took a bath or shower together at the behest of Portier, and while they were bathing, Portier removed all of their clothes from the bathroom, purportedly because the clothes needed washing.   The girls then came into the living room nude except for the towels they had wrapped around themselves.   Sometime during this series of events, defendant Portier, claiming she was “hot,” took all of her clothes off so she was in the nude.   Also, sometime during this series of events, Portier required all three of the girls to be in Rios' bedroom together in the nude where she [Portier] poured what she called “holy water” on Rios' stomach and licked it off and then had at least one, if not all, of the girls lick the water off Rios' stomach.   Defendant Portier, through threats of force, duress or menace required that each of the girls, separately, be alone with defendant Rios in his bedroom with nothing on but their towels, at which time defendant Rios removed their towels and committed the sex related acts hereinbefore described.   Photographs were also taken of all three girls, in the nude, in Rios' bedroom.   Although the three minor victims did not clean the house which they were ostensibly brought there to do, they were all given money by Portier.  (See footnotes 2, 3, 4, 5, 6, 7, 8, 9, 10, and 11, supra.).

The record reflects that the mother of one of the victims reported that her daughter had become emotionally upset due to the experience and went through a personality change, e.g., trouble in eating and sleeping, cried easily, became “very isolated,” and refused to see male peers unless in a group and that she was planning to have her daughter obtain psychiatric treatment.

Here, as in Reeves, the conduct as described above went far beyond the conduct displayed in La Fontaine.   Not only was there solicitation constituting preparation but also overt sexually related acts and touchings constituting a violation of section 288, subdivision (a) (count III) and the necessary touching with force and fear to constitute a violation of section 288, subdivision (b) (Count I).

 We construe Wickersham, as in the cases regarding defenses as quoted from Sedeno, that the duty to give instructions, sua sponte, on lesser included offenses and their relevance to the charged offenses, arises only if there is substantial evidence supportive of such a offense and the giving of such instruction is not inconsistent with the defendant's theory of the case.   Further, while the trial court is not permitted to determine the credibility of witnesses, it “frees the court from any obligation to present theories to the jury which the jury could not reasonably find to exist.”

 Here, the defense was a complete denial of committing any sexually related acts upon the persons of the three minor victims, and the court was not requested to instruct on the lesser included offense of section 647a, and therefore the giving of the instructions would be inconsistent with the defendants' theory of the case.   Under the evidence presented, the defendants here, if guilty at all, were guilty of the serious felony violations in section 288, as charged and instructed, or nothing.   Under the scenario described above, we conclude the jury could not reasonably find defendants guilty of section 647a, a misdemeanor under counts I and III.

Defendant Rios also argues that the trial court erred in refusing to instruct the jury as to the lesser offense of “annoying or molesting children,” under Penal Code section 647a as to count I because of the inconsistencies in Tina M.'s testimony.   Again this case is distinguishable from La Fontaine, where as a matter of law since there was no touching presented by the prosecution but only evidence of solicitation, there could only be a violation of Penal Code section 647a.   Here, the prosecution presented evidence that there was solicitation plus an actual sexually related touching;  therefore, like Reeves, supra, a “lesser included” instruction was inappropriate because defendants, if guilty at all, were guilty of the offense charged.

Nor does the recent Supreme Court case of People v. Geiger (1984) 35 Cal.3d 510, 199 Cal.Rptr. 45, 674 P.2d 1303, compel a contrary conclusion.   The Geiger court in footnote 13, at pages 532 and 533, 199 Cal.Rptr. 45, 674 P.2d 1303, specifically held the decision to be prospective in application only from the date the opinion became final.   However, tangentially of interest is the rationale in Geiger.   That case addressed the issue of instructing on “lesser related offenses,” as distinguished from “lesser included offenses.”   The Geiger court held that failure by the trial court under the facts of that case constituted reversible error where the lesser offense was closely related to that charged;  where the defendant requested such an instruction;  where there was evidence of its commission;  and where the theory of defense was consistent with such a finding.   Here, unlike Geiger, as previously noted, defendants Rios and Portier requested no such lesser included or related instruction and the theory of their defenses consisted of a complete denial of committing any sexually related offenses upon the persons of the three minor victims.¹⁴

II

Defendants Rios and Portier both assert that the prosecuting attorney committed prejudicial misconduct which requires a reversal.   We disagree.

 Defendant Rios' defense counsel, pursuant to Evidence Code section 352, objected to any photographs of nude women being admitted into evidence.   The court ruled that in the event defendant Rios, a paraplegic, testified and denied that he was involved in or capable of sexual conduct, then the photographs could be used for impeachment purposes.   The prosecutor in his argument stated to the court that he thought that some of the women in the photographs were under age.   The judge responded that by looking at the photographs he could not tell whether they were juveniles or adults.   The court may well have been trying to foreclose any possibility that the prosecuting attorney would present the photographs of nude women to the jury and argue that the women in the photographs were juveniles when there was no evidence from which to draw that conclusion.¹⁵

The cross-examination of defendant Rios that he now argues was reversible error is as follows:

“Q [DISTRICT ATTORNEY] During the time that you lived in the Kittridge house and here at the Otsego house, did you during this time have relations with women by other means?

“A Yes, sir, I did.

“Q And from time to time, were you photographed having relations with women by other means?

“A You might say so.   I was photographed, yes.

“Q Who took those photographs?

“A Gina [Portier].  [¶]  She made it a habit of taking photographs.   It was her hobby, sir.

“Q Did you keep any of those photographs?

“A No, sir, I did not keep any of those photographs in my possession, however, they were in my bedroom.   They belonged to Gina's compartment.

“Q You didn't keep them, but they were kept there in your bedroom anyway?

“A Yes, sir.   They were kept in my bedroom.

“Q Now, you understand, Mr. Rios, that it is against the law to have sex with women who are under a certain age?

“A I most certainly do, sir.

“Q Despite the fact that some of the women in those photographs look very young—

“MR. FOGELMAN:  May we approach the bench?

“THE COURT:  Objection sustained.”

The record shows that Danielle F. stated that defendant Portier had taken photographs of the girls while they were naked.   Tammy D. stated that both defendants had taken photographs of the girls and that defendant Portier took the nude photograph (Peo. exh. 2) of the girls.   Defendant Rios stated that he was present when Portier took nude photographs of the girls.   Defendant Portier stated that she was not present when the nude photographs were taken of the girls.   Although the photographs of the other women were not admitted into evidence, the issue as to who, if anyone, photographed people engaging in sexual activities was relevant evidence.   It had bearing on whether the juveniles photographed each other in the nude or whether they were photographed by either or both defendants.

The prosecuting attorney asked the following interrupted question:  “Despite the fact that some of the women in these photographs look very young—”  The jury was immediately admonished not to consider this partially asked question.

At defendant Rios' trial attorney's request, he [Rios] was asked the following:  “Mr. Rios, did you have in your room any photographs other than the ones that have been shown that the police recovered from your room of any girls of tender age that were not dressed or clothed or in any sexual acts?”   Rios answered in the negative.

Generally, “[P]rosecutorial misconduct objected to and properly admonished does not constitute grounds for reversal except where the case is closely balanced and there is grave doubt as to the defendant's guilt or where the act done or the remark made is of such a character that a harmful result cannot be obviated or cured by any retraction of counsel or instruction of the court.   [Citations.]”  (People v. Rodriguez (1970) 10 Cal.App.3d 18, 35, 88 Cal.Rptr. 789.)   Here, any error was cured by the admonition and defense counsel's further question of defendant Rios.

Defendants Portier and Rios both argue that the prosecuting attorney erred by giving his personal opinion during closing argument.   The statement at issue made by the district attorney is as follows:

“I want to talk to you a moment about threats.   I found the statement of the children very believable, in my own personal opinion—

“MR. FOGELMAN:  There would be an objection.

“MR. GORDON:  Objection, as to the statement about the personal opinion of the District Attorney.

“THE COURT:  Personal opinions are not proper in argument.   Objection is sustained.   Refrain.”

 It is well settled that the prosecution has a wide range in which to state his views as to what the evidence shows and the conclusions to be drawn therefrom.  (People v. Perez (1962) 58 Cal.2d 229, 245, 23 Cal.Rptr. 569, 373 P.2d 617;  People v. Mason (1960) 184 Cal.App.2d 317, 364, 7 Cal.Rptr. 627.)   And in his argument to the jury, the prosecutor may comment upon the credibility of the witnesses in light of all the evidence in the case.  (People v. Perez, supra, 58 Cal.2d at p. 245, 23 Cal.Rptr. 569, 373 P.2d 617;  People v. Baker (1960) 183 Cal.App.2d 615, 625.)   Here, after being admonished not to give his personal opinion, the prosecutor's statement that he found the girls' testimony believable, was followed by a recitation of the girls' testimony.   In doing so, the prosecutor did not improperly base his subsequent argument on his own personal knowledge or facts having no basis in the evidence.   Nor did he imply the existence of evidence other than that which had already been admitted.   Thus, no misconduct has been demonstrated.   No error occurred because the district attorney was never allowed, due to an objection, to give his personal opinion.

 Assuming, arguendo, that the district attorney's comments cited by defendant as error in fact amounted to misconduct, the question becomes whether a timely objection and admonition would have cured any resulting harm.   (People v. Green (1980) 27 Cal.App.3d 1, 34, 103 Cal.Rptr. 824;  People v. Johnson (1981) 121 Cal.App.3d 94, 103, 175 Cal.Rptr. 8.)   It is only where an objection and admonition would not have cured the harm that the reviewing court should go on to examine the whole record to determine whether the harm resulted in a miscarriage of justice.  (People v. Green, supra, 27 Cal.App.3d at p. 34, 103 Cal.Rptr. 824.)   If misconduct is of the type incurable by admonition, the ultimate question that must be answered on review is whether the conduct was prejudicial;  that is, after a review of the entire cause, reversal is not warranted unless it is reasonably probable that a result more favorable to the defendant would have occurred had the district attorney refrained from the comments attacked such that the harm resulted in a miscarriage of justice.  (People v. Green, supra, 27 Cal.App.3d at p. 34, 103 Cal.Rptr. 824;  People v. Beyea (1974) 38 Cal.App.3d 176, 197, 113 Cal.Rptr. 254.)

 Because defendants have failed to demonstrate that any federal constitutional error is involved, the burden does not shift to the state “․ to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained” (Chapman v. California (1967) 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705), and the traditional application of this state's harmless error rule providing that the test of prejudice is whether it is “ ‘․ reasonably probable that a result more favorable to the defendant would have occurred had the district attorney refrained from the comment attacked by the defendant.  [Citations.]’  (People v. Beivelman (1968) 70 Cal.2d 60, 75 [73 Cal.Rptr. 521, 447 P.2d 913].).”  (See People v. Bolton (1979) 23 Cal.3d 208, 214, 152 Cal.Rptr. 141, 589 P.2d 396.)   We hold that any misconduct which may have occurred was cured by timely admonitions.

III

Defendant Rios contends that the trial court should have granted his motion to quash the search warrant because insufficient facts were alleged to justify the affiant's conclusion that the described items would be found there.   We disagree.

Here, a warrant was issued which authorized the search of Rios' residence in Encino for photographs of nude female juveniles and other photographs of females, bongs, movie equipment, still cameras, and objects that would indicate ownership of the premises.   The affidavit, which was dated October 5, 1981, stated that on May 28, 1981, three girls aged 12 through 14 were told by Gina Portier that they were filmed at Rios' house while bathing, that the girls said that Gina Portier took nude photographs of them at the Rios residence, and that Rios offered the girls cocaine which they smoked through a bong.   These statements were supported by attached summaries of interviews with the three girls.   Based on descriptions given of the location, it was ascertained that the described events had occurred at 13341 Kittridge in Van Nuys.   It was also learned that on August 6, 1981, Rios had moved to 15551 Otsego in Encino.

 An order issuing a warrant may be set aside only if the supporting affidavit fails as a matter of law to set forth sufficient facts to establish probable cause.  (Skelton v. Superior Court (1969) 1 Cal.3d 144, 150, 81 Cal.Rptr. 613, 460 P.2d 485.)   The affidavit in the case at bench was sufficient.   The magistrate could reasonably conclude that Rios would have taken with him to his new residence any photographs, movie equipment, cameras, and narcotics paraphernalia that he owned.  (People v. Miller (1978) 85 Cal.App.3d 194, 204, 149 Cal.Rptr. 204, cert. den. (1979) 441 U.S. 925, 99 S.Ct. 2037, 60 L.Ed.2d 399.)

 Rios also contends that his motion to suppress should have been granted because the search exceeded the scope permitted by the search warrant.   His contention that any photographs of females not depicting the bodies of nude juveniles were wrongfully seized is without merit.   The warrant expressly authorized a search for “Photographs of nude female juveniles and photographs of females.”

Rios' contention that evidence of the .38 caliber weapon should have been suppressed is also meritless.

 If officers in a bona fide attempt to execute a valid search warrant discover items not included in the warrant but reasonably identifiable as contraband, they may seize those items.  (Skelton v. Superior Court, supra, 1 Cal.3d 144, 157, 81 Cal.Rptr. 613, 460 P.2d 485.)   The police may also seize instrumentalities or evidence of crime if they are aware of specific, articulable facts creating a rational link between those items and the crime with which the suspect is to be charged.  (People v. Hill (1974) 12 Cal.3d 731, 762–763, 117 Cal.Rptr. 393, 528 P.2d 1, overruled on another point in People v. De Vaughn (1977) 18 Cal.3d 889, 135 Cal.Rptr. 786, 558 P.2d 872.)

 During the course of their search for the items specified in the search warrant, the officers discovered in Rios' bedroom a large quantity of cocaine having a street value in excess of $2 million.   The .38 caliber weapon was found in the same room, was locate within Rios' immediate reach, and was in plain view.   Seizure of the weapon was reasonable both for the officers' safety and as evidence that Rios was armed in protection of the cocaine.

 Rios also contends that the machine gun seized during execution of the search warrant should have been suppressed.   This contention is also without merit as the machine gun was in plain view and was contraband.  (Pen.Code, § 12220.)

IV

Defendant Rios next contends that the trial court erred in denying his motion to sever the charges of possession of cocaine and possession of a machine gun from the sex offense charges.   We disagree.

 Penal Code section 954 provides that an accusatory pleading may charge under separate counts two or more offenses “connected together in their commission,” but that the court, “in the interests of justice and for good cause shown,” may order those counts to be tried separately.   Offenses committed at different times and places are “connected together in their commission” if they include a common element of substantial importance.   (People v. Matson (1974) 13 Cal.3d 35, 39, 117 Cal.Rptr. 664, 528 P.2d 752.)   The determination of a motion for severance is a matter resting within the sound discretion of the trial court and will not be disturbed absent a showing that such discretion was abused.  (Ibid.)

 The trial court's denial of Rios' motion to sever was not an abuse of discretion.   There was evidence in the preliminary hearing transcript that cocaine was offered to the girls before Rios committed the sex offenses with which he was charged.   This fact supplied a common element of substantial importance and was relevant to the question whether Rios possessed the cocaine for purpose of sale.

V.

Defendant Rios finally contends that there is insufficient evidence to support his conviction of violation of Penal Code section 288, subdivision (b), Penal Code section 288a, subdivision (c) and Penal Code section 288, subdivision (a).

We view the record in the light most favorable to the judgment.  (People v. Johnson (1980) 26 Cal.3d 557, 578, 162 Cal.Rptr. 431, 606 P.2d 738.)   So viewed, the evidence established that on May 28, 1981, defendant Portier drove Tina M., aged 13, Tammy D., aged 14, and Danielle F., aged 12, to defendant Rios' house for the stated purpose of cleaning that house.   After having a mudfight in the backyard, the three girls showered or bathed at the suggestion of Rios or Portier.   They then noticed that their clothes were missing, and each of the girls wrapped a towel around her body.

Defendant Portier took off her blouse and convinced Danielle F. to remove her towel.   Defendant Portier then placed what she called “holy water” on Rios' stomach and licked it.   At her suggestion, Danielle F. did the same.   She later convinced Danielle F. to go into Rios' bedroom alone, and, when Danielle F. was alone with Rios in his bedroom, Rios kissed her breasts.

Defendant Portier told Tammy D. that she would not return her clothes to her until Tammy D. had sex with Rios.   Defendant Portier also threatened to kill Tammy D. if she didn't have sex with Rios.   When Rios called out a certain number, Tammy D. understood that it was her turn to go into his bedroom.   After Tammy D. entered Rios' bedroom, Rios, aged 46, pulled the towel away from Tammy D., grabbed her by her right arm, and orally copulated her.

Tina M. went into Rios' bedroom with defendant Portier because defendant Portier threatened to “beat [her] up” if she didn't go in there.   Defendant Portier ordered Tina M. to get onto Rios' bed, and Tina complied.   Defendant Portier then left the room, and Rios removed Tina M.'s towel and touched her breasts.

Although the testimony of the three girls differed in some respects, their entire testimony was not inherently improbable.

 We conclude that the evidence adduced at trial was sufficient for a reasonable trier of fact to find defendant Rios guilty of violation of Penal Code section 288, subdivision (b), as charged in count I with respect to his conduct with Tina M., violation of Penal Code section 288a, subdivision (c), as charged in count II with respect to his conduct with Tammy D., and violation of Penal Code section 288, subdivision (a), a lesser included offense of that charged in count III, with respect to his conduct with Danielle F.

VI.

Defendant Portier contends that the trial court committed prejudicial error by denying her motion for a mistrial during the voir dire of prospective jurors.   We disagree.  (Defendant Rios on appeal does not assign denial of his motion made at the same time and on the same ground as error.)

During the voir dire of the prospective jurors, at a midmorning recess, and before jury selection, one of the prospective jurors, Nancy Jenks, overheard defendant Portier's mother (Terri Portier), tell defendant Portier in the hallway, “I hope they send you to jail for 20 years.”   At the bailiff's suggestion, prospective juror Jenks reported the incident to the judge within the hearing of all the prospective jurors.   Since the court did not hear the full statement, it inquired as to the full statement and determined that the statement was made to defendant Portier.   Mrs. Jenks further commented, “They evidently know one another.”   The counsel then approached the bench out of the hearing of the jury and defendants made their motion for a mistrial.   After determining that the person who made the statement (defendant Portier's mother) was not a People's witness, the court denied the motion.

The court, in the presence of the entire prospective panel made the following statement:

“THE COURT:  Thank you.   Ladies and gentlemen, first of all, Mrs. Jenks, thank you for allowing me the opportunity to find out about it.  [¶]  In the future if something like that does occur, I would like you to see me privately so we can handle it on a less public basis.  [¶]  If other persons were not involved, my preference is that we not involve other people.  [¶]  Now the entire panel is familiar with whatever it was.  [¶]  That aside, the Court has very little control over people outside the courtroom, obviously, and, from time to time certain things are said or done and it's part of my warning to you when I finally have you sworn in as jurors to let me know if such things take place, because they do take place from time to time.   It's been covered before, but the testimony and the evidence that you will consider in this case comes from within the four walls of the courtroom.   What happens outside, if it is designed to influence your judgment or affect your judgment in any way, I can deal with that as a separate proceeding at a different level.  [¶]  That aside, there are times when emotion does become involved within and without the courtroom.   People shoot their mouths out in the hallway, such as the occurrence of this morning, and that happens to be someone who apparently is connected with Miss Portier.  [¶]  But, whatever the statement was, which we are familiar with, first of all, the subject of penalty or punishment is not your province in this case.   That's a guiding principle.   Any punishment or penalty is never to be considered by you.   It's not your function.   So numbers of years are of no moment to you to start with.  [¶]  Secondly, somebody else's opinion out in the hallway about guilt or innocence or punishment, or whatever it is, has nothing to do with the job that you are going to be sworn to do, and that is to administer justice inside the courtroom.  [¶]  Now that we have cleared the air, it's hard to unring a bell, obviously, and I can't unring it for you.   But I am going to do the next best thing and I am going to instruct you informally now and admonish you and ask you that you use your best moral judgment and conscience in this, regarding that type of occurrence, and to proceed on this case under the evidence and the facts and the law as we proceed.  [¶]  Will all of you in the jury box promise that you will do precisely what I have outlined here:  (The prospective jurors answered in the affirmative.)  [¶]  Is there anybody in the courtroom who is unable to follow that instruction if you are called to follow that instruction?   Put up your hands.   There are no signs on that invitation.   [¶]  I apologize for that type of occurrence, but we have no control over it right now.”

Thereafter defendant Rios' counsel, out of the presence of the jury, requested a hearing on the matter in order to make a record on appeal, which the court consented to at an appropriate time.   After the noon recess, a hearing on this incident was held outside the presence of the jury.   Dennis Winkel, the court bailiff, stated that at the eleven o'clock recess, he was approached by prospective juror Jenks in the alcove of the courtroom who said that she had overheard a statement in the hallway from a woman to defendant Portier to the effect that “ ‘I hope you get twenty years.’ ”   Bailiff Winkel instructed Ms. Jenks to raise her hand and the court would recognize her.   He did not tell her what to do when the court recognized her.   He did tell her that she would be allowed to tell the judge.

Ms. Jenks stated that defendant Portier was standing at a bench just across from the window and another woman was seated near her.   The jurors were engaged in conversation but were within hearing range of defendant and the seated woman.   To her knowledge none of the other jurors appeared to be listening to what the woman said to the defendant.   Before coming into the courtroom, Ms. Jenks did not tell the other jurors what she heard.   She contacted the bailiff upon entering the courtroom.   He instructed her to raise her hand and inform the judge.   Ms. Jenks stated that the seated woman was about defendant Portier's height and very heavy set.   All the jurors could have seen the two women together even if they did not hear anything.

Defendant Portier stated that she did not come to court in the morning with her mother, she came with a friend.   At the eleven o'clock recess, the only woman she spent any time talking to in the hallway was her mother, Terri Portier.   Her mother made the statement that she hoped that defendant Portier would get 20 years.   Defendant Portier stated that her mother was yelling when she made the statement.   She stated earlier that there were a lot of jurors in the bathroom who had also listened to her mother and her arguing.   Her mother made similar statements in the bathroom.   There were approximately six or seven jurors in the bathroom when her mother made other statements.   Defendant Portier's attorney introduced exhibit A which was the return of the service.   He stated that Mrs. Portier, defendant's mother, had been subpoenaed by him.

Defendant Rios' counsel then renewed his motion for a mistrial.   The court again denied the motion and, out of the presence of the jury, made the following statement to counsel:

“THE COURT:  That request is denied.   You have perfected your record.   I have done my best to admonish this jury.  [¶]  I trust that they will follow my instructions under their obligation as jurors in the case.  [¶]  If and when that witness is called to testify there may be broad and searching cross-examination by any counsel as to her relationship to the parties in this case;  as to her involvement in the hallway;  and as to anything she has to say.   So its open season on her.  [¶]  That's my in limine ruling for somebody that does that, and that's as simple as I can make that statement.  [¶]  I didn't bring her to court, you did.   She has certain obligations.   One of them is to refrain from coming into a restroom where there are jurors and starting a donnybrook over which nobody had any control.  [¶]  The sheriff did all he could.   It may have been wiser for him to say to speak to me privately, whatever it was, but in the exercise of good faith that occurrence took place.   So I find no fault with that.  [¶]  There's nothing to prevent that kind of conversation from a person who is not a party or defendant.  [¶]  Even when the next panel, should there have been one to be summoned, she could have come to court and started that again.  [¶]  So what could I do?   Call for a third one?  [¶]  The law is sometimes dumb and deaf, but it is not totally out of it, and that ruling I feel confident about.  [¶]  Let's proceed.”

Thereafter in open court the voir dire of the prospective jurors continued.   The jurors were extensively questioned by court and counsel.   Prospective juror Jenks was not selected to serve on the jury or as an alternate.

 It is clear that a mistrial should be granted if the court is apprised of prejudice that it judges incurable by admonition or instruction.   “In other words, a motion to strike presupposes error of some sort, whereas the motion for mistrial presupposes error plus incurable prejudice.”  (People v. Woodberry (1970) 10 Cal.App.3d 695, 708, 89 Cal.Rptr. 330.)   Moreover, whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions.  (See Illinois v. Sommerville (1973) 410 U.S. 458, 461–462, 93 S.Ct. 1066, 1069, 35 L.Ed.2d 425, 429–430.)

In People v. Craig (1978) 86 Cal.App.3d 905, 150 Cal.Rptr. 676, the defendant made two motions for a mistrial as a result of picketing inside the courthouse, which the jury observed.   A third motion for a mistrial, based on spectator misconduct, occurred when a spectator was seen by jurors to be making motions with his hands during some defense-witness testimony.

In Craig, the defendants argued that necessary implication of the motions was that the testimony of the defense witness was being coached, or was fabricated.   The Craig court at page 920, 150 Cal.Rptr. 676, stated:  “Misconduct on the part of a spectator constitutes a ground for mistrial if the misconduct is of such a character as to prejudice the defendant or influence the verdict.  Ibid.  However, a motion for mistrial may properly be refused where the court is satisfied no injustice has or will result from the conduct.  (People v. Romero, supra, [68 Cal.App.3d 543] at p. 548 [137 Cal.Rptr. 675];  People v. Slocum, supra, [52 Cal.App.3d 867] at p. 884 [125 Cal.Rptr. 442].)

“The trial court indicated its satisfaction with the ability of the jury to render a fair and impartial verdict.   The jury was promptly admonished to disregard outside influences.   The trial court took proper, immediate action in each instance to insure against prejudice.  (People v. Slocum, supra, [52 Cal.App.3d] at p. 883 [125 Cal.Rptr. 442].)   We hold the denial of motions for mistrial based on incidents of spectator misconduct was proper.   We likewise hold the cumulative effect of claimed juror and spectator misconduct insufficient to constitute a denial of a fair trial.   There simply was no showing of prejudice, other than by speculation of defense counsel, which speculation was easily overcome by the actions of the trial court.”

In People v. Slocum (1975) 52 Cal.App.3d 867, 125 Cal.Rptr. 442, the defendant had made several motions for a mistrial based on the premise that he could not obtain a fair trial in that three to four incidents had occurred in which the impaneled jurors had been apprised of the fact that he had been charged with the murder of his infant daughter.   The defendant was not on trial for the murder of his infant but for defrauding the State of California by presenting false medical claims.   The court held that misconduct on the part of a spectator at a criminal trial constituted grounds for a mistrial if the misconduct was of such a character as to prejudice the defendant or influence the verdict.   The trial court, however, has a large measure of discretion in determining whether the conduct of a spectator was of such nature as to produce prejudice, and a motion for a mistrial may properly be refused where the court is satisfied that no injustice has resulted or would result from the offense from which the complaint ensued.   In Slocum, the Court of Appeal held that when the judge was informed of each unfortunate incident, the judge held an extraordinary session for the purpose of ascertaining the potential impact of the incidents on the jury and whether it would influence their decisional process.   A careful review of the evidence presented during the hearings demonstrated the soundness of the trial court's ruling denying a mistrial.  (Id., at pp. 882–885, 125 Cal.Rptr. 442.)

In People v. Guillebeau (1980) 107 Cal.App.3d 531, 166 Cal.Rptr. 45, the court found that the trial court did not err in denying the defendant's motion for a mistrial when the defendant's mother, in response to questions by the district attorney, volunteered a statement to the effect that her son had confessed to the crime.

“The legal principles relating to a motion for a mistrial are well settled.   To start with, a motion for a mistrial presupposes that the effect of the objectionable evidence ‘is so prejudicial as to be incurable by striking it and admonishing the jury to disregard it.   In other words, a motion to strike presupposes error of some sort, whereas the motion for mistrial presupposes error plus incurable prejudice.’  (People v. Woodberry (1970) 10 Cal.App.3d 695, 708 [89 Cal.Rptr. 330];  People v. Romero (1977) 68 Cal.App.3d 543, 548 [137 Cal.Rptr. 675].)   Moreover, it is widely recognized that a motion for a mistrial is addressed to the sound discretion of the trial court and it may be properly refused where the court is satisfied that no injustice has resulted from the occurrences of which the party complains.   (People v. Slocum (1975) 52 Cal.App.3d 867, 884 [125 Cal.Rptr. 442];  People v. Ray (1967) 252 Cal.App.2d 932, 962 [61 Cal.Rptr. 1] )․”  (People v. Guillebeau, supra, 107 Cal.App.3d at pp. 547–548, 166 Cal.Rptr. 45.)

In the case at bench, assuming the spectator's (Mrs. Portier) conduct was of such a character as to prejudice either defendant or influence the verdict, the trial court was unquestionably satisfied that no injustice would or had resulted following the court's prompt admonishment of the prospective jurors.   Nor has there been any showing of prejudice, other than speculation of defense counsel, which speculation was overcome by the immediate action by the court.

 It is clear from the record that the trial court exercised its sound discretion in denying defendants' motion for a mistrial on three separate occasions;  thus signifying its satisfaction that no injustice would or had resulted from the conduct.   The first occasion was when the matter was first brought to the court's attention and the prospective jurors were promptly admonished.   The second occasion was when, out of the hearing of the jury, evidence was presented on the matter, following which the court again denied the defense motion.   The third occasion was, by implication at the motion for a new trial (which was denied) after all the evidence was in and the jury had rendered its verdict, since one of the grounds raised in the motion for a new trial included error in the failure of the court to grant the motion for a mistrial.

Accordingly, we cannot say that the trial court acted improperly or abused its discretion by failing to grant the motion for a mistrial or that such failure constitutes a denial of a fair trial.

Defendant Portier's contention that, because of her mother's outburst, she was precluded from presenting an adequate defense is not supported by logic or reason.   The prospective juror (Ms. Jenks), who saw defendant Portier's mother and heard the statement made, was not a member of the jury.   The prospective jurors knew that a woman, who evidently knew defendant Portier, had stated that she hoped the defendant would be sent to jail for twenty years.   However, there is no basis for the assumption that had the defense called Mrs. Portier, that the jurors would have connected the statement made by an unidentified female with defendant Portier's mother.   Assuming, arguendo, that there was evidence that the jury knew that Mrs. Portier had made the statement, it did not preclude the calling of defendant Portier's mother as a defense witness.   The statement made by Mrs. Portier indicates that she might have been an extremely hostile witness.   Apparently, defense counsel chose not to risk calling Mrs. Portier for tactical reasons, and presented defendant Portier's defense through the testimony of other witnesses.   On cross-examination of Danielle F. it was brought out that her mother had a misunderstanding with Mrs. Portier and defendant Portier, herself, presented evidence to attribute the testimony of the three girls to the difficulties her mother [Mrs. Portier] had had with Danielle F.'s mother.

VII

Defendant Portier contends that the trial court erred in allowing the investigating officer, Carol Jackson, to give her opinion in regard to the inconsistencies in the girls' testimony.   Defendant Portier argues that the testimony was improper, irrelevant, inadmissible hearsay, highly prejudicial and admitted with no foundation.

We conclude under Evidence Code section 352, the trial court properly admitted the investigating officer's observations as to the statements made by the juvenile victims.

The prosecutor asked the investigating officer the following:  “And you progressed through interviews, preliminary hearings and the trial, from a period of August 26 of last year, almost nine months, what have you observed as to the statements that they are making?”   Defense counsel objected and the court overruled the objection.   Officer Jackson stated:  “I have noticed that their testimony is growing farther and farther apart;  that they are forgetting some of the things they have said before and mainly recollect, I guess, the highlights, and getting the names mixed up of who went in first and this type of information.”

Here, a major issue was the testimony of the juvenile victims, the consistencies and inconsistencies in their testimony.   Defense counsel on cross-examination referred to statements made by the girls to Officer Jackson that conflicted with statements the girls made during the trial.   The prosecutor on redirect examination properly asked the investigating officer if she had observed changes in the juvenile statements with the passage of time.

Except as otherwise provided by statute, all relevant evidence is admissible.  (Evid.Code, § 351.)  “ ‘Relevant evidence’ means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.”  (Evid.Code, § 210.)

“The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”  (Evid.Code, § 352.)

“Probative value goes to the weight of the evidence of other offenses.   The evidence is probative if it is material, relevant, and necessary.  ‘[H]ow much “probative value” proffered evidence has depends upon the extent to which it tends to prove an issue by logic and reasonable inference (degree of relevancy), the importance of the issue to the case (degree of materiality), and the necessity of proving the issue by means of this particular piece of evidence (degree of necessity).’  [Citation.]”  (Emphasis in original;  People v. Thompson (1980) 27 Cal.3d 303, 318, fn. 20, 165 Cal.Rptr. 289, 611 P.2d 883.)

The trial court's exercise of discretion under Evidence Code section 352 will not be reversed on appeal absent a clear showing of abuse.  (People v. Barrow (1976) 60 Cal.App.3d 984, 995, 131 Cal.Rptr. 913, disapproved on another point in People v. Jimenez (1978) 21 Cal.3d 595, 608, 147 Cal.Rptr. 172, 580 P.2d 672.)

 Here, the trial court acted within its discretion in deciding not to exclude Officer Jackson's observations as to the statements made by the juvenile victims.   The girls' credibility was a major issue in the case.   The consistencies and inconsistencies in their statements had bearing on their credibility.   Their ability to recall or not recall details was relevant and material.   The prosecution had the right to prove that some of the inconsistencies in the juveniles' court testimony arose from the fact that with the passage of time these children were beginning to forget some of the things that they had previously told the officer.   It is common knowledge that with the passage of time human beings, whether they are adults or children, can forget details surrounding a major event.

VIII

Finally, article VI, section 13 of the California Constitution mandates that:  “No judgment shall be set aside, or new trial granted, in any cause, on the ground of misdirection of the jury, or of the improper admission or rejection of evidence, or for any error as to any matter of pleading, or for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.”

From an examination of the entire cause, including the evidence, the errors complained of as hereinbefore discussed, separately or cumulatively, have not resulted in a miscarriage of justice.   It is not reasonably probable that a result more favorable to defendant(s) would have been reached in the absence of any or all of such claimed errors.  (People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243.)

 Defendants Rios and Portier are only entitled to a fair trial, not a perfect trial.   The defendants were fairly tried and justly convicted.¹⁶

DISPOSITION

The judgments of conviction, and each of them, are affirmed.

I concur in the affirmance of Rios' conviction of possession of cocaine for purpose of sale, but I respectfully dissent from the affirmance of appellants' convictions as to counts I, II, and III.

MOTION FOR MISTRIAL

The denial of defendant Portier's motion for mistrial was egregious error.   Prospective juror Jenks repeated three times in the presence of the entire jury panel that she had heard a woman (later identified as Terri Portier) who obviously knew defendant Portier tell that defendant, “I hope they send you to jail for 20 years.”   That statement was extremely prejudicial to defendant Portier because it implied that the woman had knowledge that defendant Portier was guilty of the offenses with which she was charged.   While the allegations against defendant Portier charged her with serious, atrocious acts, defendant Portier denied those allegations.   It is without question that defendant Portier is entitled to a fair trial regardless of the nature of the charges against her.

“In a criminal case, any private communication ․ directly or indirectly, with a juror during a trial about the matter pending before the jury is, for obvious reasons, deemed presumptively prejudicial ․”  (Remmer v. United States (1954) 347 U.S. 227, 229, 74 S.Ct. 450, 451, 98 L.Ed. 654.)   This is particularly so when the communication is made before any testimony has been taken.  (See People v. Woodberry (1970) 10 Cal.App.3d 695, 709, 89 Cal.Rptr. 330.)   In Woodberry the court observed, “A motion for mistrial, if made in the early stages of a trial, is more likely to be granted since the judge, having heard little of the evidence, cannot then evaluate its prejudicial effect, if any, on the case as a whole.”  (Ibid. )

The comment by Terri Portier was the kind of indirect communication to a jury that was condemned by the United States Supreme Court in Remmer.   In view of the nature of the comment, the trial court erred in denying the motion for mistrial.   This is especially true as the comment was made not only before any testimony was taken but also before any juror had been sworn to try the cause.   Furthermore, it is apparent that the judge entertained grave doubts as to whether the prejudice could be cured by an admonition to the jury since he told the jury panel, “[I]t's hard to unring a bell, obviously, and I can't unring it for you.”   I agree that the trial judge could not “unring a bell,” but he could have quite simply ordered a new, untainted jury panel.   The record shows that had he done so it would have cost in terms of expenditure of judicial time not more than three hours (the time spent on voir dire prior to the prejudicial comment of Terri Portier).   The calling of a new panel would on the other hand have removed the dire threat to defendant Portier's constitutional right to a fair trial.

That defendant Portier was charged with reprehensible offenses does not alter the fact that she was entitled to a fair trial.  “Bad men, like good men, are entitled to be tried and sentenced in accordance with law, and when it is shown to us that a person is serving an illegal sentence our obligation is to direct that proper steps be taken to correct the wrong done, without regard to the character of a particular defendant ․”  (Green v. United States (1961) 365 U.S. 301, 309–310, 81 S.Ct. 653, 657–658, 5 L.Ed.2d 670 (dis. opn. of Black, J.).)

The clear implication of Terri Portier's comment was that defendant Portier deserved a 20-year sentence because she had committed the charged crimes.   Selection of the jury from a panel that heard Terri Portier's prejudicial comment repeated three times denied defendant Portier a fair trial.

This was a close case, particularly with respect to the allegations involving victim Danielle F.   The record indicates that the alleged acts were not reported to the police until several months after the alleged offenses occurred.   It was not until after Terri Portier complained to the welfare department that Danielle F.'s mother had committed welfare fraud and after Terri Portier reported to the Immigration and Naturalization Service that Danielle F.'s mother had been paid for marrying an alien that the police report was made.   As the lead opinion recognizes, there were numerous inconsistencies among the complaining witnesses' versions of the events occurring on the day in question.

The closeness of this case is demonstrated by the fact that defendant Portier was acquitted of one of the charged sex offenses and on another count was convicted of a lesser included offense even though the evidence was more than sufficient to support convictions on both counts as charged.   It is thus apparent that the jury entertained serious doubts as to the credibility of the complaining witnesses.   Had the jury been selected from a new, untainted panel, it is reasonably probable that a result more favorable to defendant Portier would have been obtained.   Reversal of defendant Portier's convictions is required.

JURY INSTRUCTIONS

The trial court erred in failing to give CALJIC numbers 16.440 and 16.441, which instructions were requested by counsel for Rios.  People v. Wickersham (1982) 32 Cal.3d 307, 185 Cal.Rptr. 436, 650 P.2d 311 requires that the court instruct sua sponte concerning a lesser included offense whenever there is substantial evidence to support a conviction of the lesser included offense even if the only evidence of that offense consists of evidence adduced by the prosecution.  (Id., at pp. 325, 329–330, 185 Cal.Rptr. 436, 650 P.2d 311.)

The lead opinion's assertion that such instructions are not required if they are inconsistent with the defendants' theory of the case (lead opn., ante, at p. 464) indicates a misperception of the holding of Wickersham.   The lead opinion appears to rely on Wickersham's statement that “Regarding defenses, [People v.] Sedeno [ (1974) 10 Cal.3d 703, 112 Cal.Rptr. 1, 518 P.2d 913] held that ‘the duty to give instructions, sua sponte, on particular defenses and their relevance to the charged offense arises only if it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant's theory of the case.”  (People v. Wickersham, supra, 32 Cal.3d at p. 326, 185 Cal.Rptr. 436, 650 P.2d 311, original italics.)   That statement concerns defenses, not offenses.   Denial of the offense by the defendant does not obviate the requirement that instructions be given on lesser included offenses.  People v. Geiger (1984) 35 Cal.3d 510, 99 Cal.Rptr. 45, 674 P.2d 1303, relied on by the lead opinion, is inapposite as it deals not with lesser included offenses but rather with lesser, closely related offenses, and furthermore, as the lead opinion concedes, it is not retroactive.

With respect to the lesser included offense of second degree murder, the Wickersham court stated, “Indeed, an instruction on second degree murder would have been required even in the absence of appellant's testimony regarding Curt's behavior.  [Italics supplied.]   Although the evidence was sufficient to justify a finding of deliberation and premeditation, such a finding was not compelled.   The jury could have found that appellant did not premeditate but rather acted upon a ‘sudden and unconsidered impulse[ ].’  [Citation.]   Hence, even if the jury rejected her testimony, that rejection did not require a conviction for first degree murder.   Unlike certain felony-murder situations [citation], this is not a case in which appellant was either guilty of first degree murder or innocent of any charge.  [¶] Thus, the trial court erred in not instructing sua sponte on second degree murder.  [Original italics.]   There was sufficient evidence to warrant jury consideration of this alternative verdict.”  (Id., 32 Cal.3d at p. 330, 185 Cal.Rptr. 436, 650 P.2d 311.)

This was not a case in which appellants were guilty either of the charged offenses or no offenses at all.   The evidence that defendant Portier told each of the girls that, if she gave defendant Rios an erection, she would be paid $1,000 constituted substantial evidence of child molestation in violation of Penal Code section 647a (People v. La Fontaine (1978) 79 Cal.App.3d 176, 185, 144 Cal.Rptr. 729), thereby requiring the court to give CALJIC numbers 16.440 and 16.441.   The additional evidence that Rios and defendant Portier each took nude photographs of the girls was also substantial evidence of child molestation in violation of Penal Code section 647a.   (See ibid.;  People v. Thompson (1959) 167 Cal.App.2d 727, 734, 335 P.2d 249.)   Indeed, the lead opinion recognizes that there was substantial evidence of child molestation by its statement that “Here ․ the conduct went far beyond the conduct displayed in La Fontaine.”  (Lead opn., ante, at p. 464.)

The failure to instruct on child molestation is reversible per se.   Our Supreme Court has stated, “The failure to instruct on all necessarily included offenses deprives a defendant of the ‘constitutional right to have the jury determine every material issue presented by the evidence.’  [Citations.]  ‘[S]uch error cannot be cured by weighing the evidence and finding it not reasonably probable that a correctly instructed jury would have convicted the defendant of the lesser included offense.’  [Citation.]”  (People v. Wickersham, supra, 32 Cal.3d 307, 335, 185 Cal.Rptr. 436, 650 P.2d 311, italics supplied.)   The only exception to this rule exists where the question posed by the omitted instructions was necessarily resolved adversely to the defendant under a proper set of instructions, such as, for example, where a defendant has been found guilty of an underlying felony in a felony-murder case.  (See id., at pp. 330, 335, 185 Cal.Rptr. 436, 650 P.2d 311.)   Here the issue whether appellants were guilty of child molestation as contrasted with violation of Penal Code section 288 and Penal Code section 288a, subdivision (c), was not submitted to the jury for consideration.   Because of the trial court's failure to give the required instructions, reversal of Rios' convictions of the sex offenses and each of defendant Portier's convictions is required.

I would reverse defendant Portier's convictions.   I would also reverse Rios' convictions of counts I, II, and III.

FOOTNOTES

1.   Unless otherwise indicated, all code references are to the Penal Code.

2.   The reporter's transcript contains the following colloquy in direct examination of Tina M. by the prosecuting attorney:“Q Okay.   After this went on, what was the next thing that happened?“A Gina [Portier] took off her clothes.“Q Was there any reason given for that?“A She said she was hot.“Q Oh.   Was it hot in the house?“A Not really.

3.   The following colloquy occurred during direct examination of victim Tina M. by the prosecuting attorney:“Q Well, let me go back a second.  [¶] Before any of you went in the room, Gina [Portier] said she wanted you to go in?“A Yes.“Q Did you want to go in the room?“A No.“Q But you went anyway?“A Yes.“Q Was there some reason?“A Yes.   Because Gina said that if we did not she would beat us up.“Q Where did she say that?“A In the living room.“Q Was that after you got out of your clothes and were just wearing a towel?“A Yes.“Q Now, were you looking at Gina when she said that?“A Yes.“Q What did she look like to you when she said that?“A You mean—“Q Well, what about her face?   Did it look different than it usually looked?“A Yes.“Q How did it look different?“A Her eyes.“Q What about her eyes?“A They looked like—I don't know for sure, but they scared me.“Q Scared you?“A Yes.“Q How about her voice?   Did that change any when she said that?“A It got a little higher.“Q Did you think when she said that to you that she meant it?“A Yes.“Q Did it make you afraid?“A Yes.“Q So when the number was called and you were told to go into Robert's [Rios] room—“A Yes.“Q —you went?   Did you go because of what Gina said?“A Yes.”

4.   The following colloquy occurred during direct examination of victim Tina M. by the prosecuting attorney:“Q Okay.   Now everybody is back in the living room?“A Yes.“Q What happened next?“A Then we all of us went back in the room.“Q Why?“A Because Gina [Portier] wanted us to go in the room, all three of us at the same time.“Q Okay.   Did that happen, all three of you went back in the room?“A Yes.“Q Okay.   Now, you go back in the room.   All three of you went back at the same time.   What happened?“A Then Robert [Rios] gave me and my friend Tammy some nickname.“Q A nickname?“A Yes.“Q Do you remember what your nickname was?“A Not for sure.“Q Did anybody explain to you why you were being given a nickname?“A He said God told him to give us those nicknames.“Q Okay.   Anything else happen?“A Then he was playing a guitar.“Q Did anybody else play the guitar?“A Well, me and Tammy holded [sic ] the guitar in our laps.“Q Now, when you got to hold the guitar in your laps, do you remember what you were wearing?“A We wasn't [sic ] wearing nothing [sic ].“Q You went back into the room, you had your towel on?“A Yes.“Q And after awhile you were playing the guitar and you weren't wearing anything at all?   What happened to the towel?“A Because when—before we got on the bed Gina told us to take the towels off.“Q Okay.   What else happened in the room besides playing with the guitars?“A Gina—she said it was holy water and she sprayed it on Robert's stomach and was licking it.“Q Who licked it?“A Gina.“Q Did anybody else have to lick it?“A Gina told all of us to try it, but I would not.“Q Did any of the other children try it?“A Yes.“Q Who?“A I think Danielle.”

5.   The reporter's transcript contains the following colloquy in direct examination of victim Tammy D. by the prosecuting attorney:“Q Okay.   And in the mud fight did you get dirty?“A We got dirty but our clothes were still clean enough to wear, like our hands and face got dirty.”

6.   The reporter's transcript contains the following colloquy between the prosecuting attorney and witness Tammy D. during direct examination:“Q All right.   You got done taking a shower and you don't have any clothing, what did you do?“A I put a towel around me.“Q Where did you find the towel?“A In the bathroom.“Q Okay.   Here you are in some stranger's home with nothing on but a towel.   What did you do at that point?“A I kept the towel around me and tried to get out.“Q You came out of the bathroom with a towel on?   Who, if anybody, in the house did you see?   First person you saw.“A Gina [Portier].“Q All right.   Where was she at that time?“A Standing by the door before we got into Robert's [Rios] room.“Q At that point did you talk to Gina?“A Yes.“Q What was the conversation?“A Well, I asked her for my clothes back and she said she wouldn't give them back until I had sex with Robert.“Q That's what she told to you?“A Yes.   And she said if I didn't have sex she threatened to kill us.“Q Who else was present?   Who else was right there in the hallway besides yourself and Gina?“A Danielle and Tina.“Q All three of you were together at that point?“A Yes.“Q Now, you have known Gina for awhile;  is that correct?“A Yes.“Q When she made these statements to you did you see any change in the expression on her face?“A Yes.“Q Tell me about that.“A Well, at first, you know, she smiled and talked to us and stuff, and then when she said that her whole face changed and she got a dirty, mean look on her face.“Q How about her voice?   Did that change any?“A Yes, it got higher—“Q When you say higher—“A You know.“Q Well, are we talking—“A Deeper, you know, like if someone threatens you.“Q Was her voice louder?“A Yes.“Q Did she shout at you?“A She didn't actually shout at us but she said it pretty loud.“Q Okay.   Now, you said you have known Gina maybe three or five years.   [¶] In the three to five years you have known her, have you ever before seen her act like that?“A No, sir.“Q When she said to you, in that manner, what were your feelings inside?“A Scared.“Q Did you think that she might do what she said she would do?“A Well, the way she had the look on her face and the way she sounded, yes, I did.”

7.   The reporter's transcript contains the following colloquy between the prosecuting attorney and Tammy D. during direct examination:“Q Oh.   He said a number and everybody had to leave but you?“A Yes.“Q Now, at this point you still have the towel wrapped around you?“A Yes.“Q Okay.   What happened when you were left alone in the room?“A He [Rios] had me come over and stand close to the bed and that's when he took the towel.“Q How did he take the towel?“A He just ripped it off me, not ripped it off, but, you know, took it off me.“Q Okay.   He took the towel away from you?   What happened?“A And that's when we were supposed to have that sex with him.“MR. FOGELMAN:  Objection, your Honor.   Speculation.  Ask it be stricken.“THE COURT:  Overruled.“MR. GORDON:  Your Honor, unresponsive.“THE COURT:  Overruled.   Proceed.“Q BY MR. PARGAMENT:  Tell me what Robert did.“A What do you mean what he did?“Q Well, did he touch you with his hands?“A Well, he grabbed my arm with his hand.“Q Which arm was he holding?“A My right arm.“Q What did he do after he took ahold of your right arm?“A He pulled me over.“Q What else?“A And then that's when he started doing what he did.“Q Well, was he holding on you with one hand or both?“A At first it was one and then he grabbed my other hand.“Q Did you try to pull away?“A Yes.“Q Were you able to pull away?“A No.“Q While he was holding on to you with one or both hands, one hand at one time, both hands at a different time, what, if anything, did he do to you?“A You mean what kind of sex?“Q Yes.   Is this a little difficult for you to talk about?   Is it a little embarrassing for you?“A Yes.“Q I know that it is.   But it has to be done.   It's very important because these people, this is the jury over here, these people can't make a decision until you tell them exactly what happened.   So just do your best.   And tell us exactly what the man did to you.“A He had to eat us out.   Eat me out.“Q What does that mean?“A It's when he takes his tongue and puts it against our vagina.“Q Is that what he did to you?“A Yes.“Q Do you recall now for how long he placed his tongue on your vagina?“A Well, they said I had to stay for seven minutes so—“Q Well, now, was this just a momentary thing?   He brushed against you or did he hold his mouth against you for awhile?“A Yes, he held his mouth against me for awhile.“Q And could you feel him doing that to you?“A Yes.“Q You could see it as well?“A Yes.“Q And while he was doing this did you struggle to get away?“A Of course, yes.“Q Were you able to?“A No.“Q Do you have any idea how long you were in that room with Robert alone?“A Seven minutes.“Q Is there some reason that you think it was seven minutes?“A Because I looked to the side and there's a clock right there and they said to stay in there seven minutes and I timed it and it was exactly seven minutes when he let me go.“Q Okay.   Who told you that you had to be with him seven minutes?“A Both Gina and Robert.“Q And seven is a number that orders you out of the room as well?“A Yes.”

8.   The reporter's transcript contains the following colloquy between the prosecuting attorney and Danielle F. during direct examination:“Q You heard them ask why?“A Yeah.   Someone said, ‘Why?’“Q Did Gina [Portier] answer the question?“A No.   I don't think so.“Q What happened after that?“A Well, we said, ‘No,’ and then she threatened us saying that, if we don't, she is going to leave us there.“Q She was going to leave you there?“A At Robert's [Rios] house.“Q Did you know where Robert's house is [sic ]?“A No.“Q You didn't know where you were?“A No.“Q When Gina said that she was going to leave you there, how did you feel about that?“A Scared.“Q Why?“A ‘Cause.   I don't know.  ‘Cause I was afraid.’ ”

9.   The reporter's transcript contains the following colloquy between the prosecuting attorney and Danielle F. during direct examination:“Q And then you went back out in the living room?“A Yeah.“Q Okay.   While you were back in the living room, did Gina [Portier] come out in the living room with you?“A Yeah.   And then we took off our towels.“Q Well, when you say, ‘We took off our towels,’ who are you talking about?“A Me and Tina and Tammy.“Q Why did you take your towel off?“A 'Cause I was scared.“Q Did anybody say anything to you at that point that made you frightened?“A No.“Q No one asked you to take your towel off?“A No.“Q You just took it off?“A Well, yeah.   We were out in the living room, and Gina goes, ‘Oh, I'm hot.’  [¶] So she took off her shirt and goes, ‘Come on, you guys.   Take off your towels.’“Q Wait a minute.   You are talking much too fast for somebody.  [¶] Please start over and speak very slowly for me, please.“A Okay.   Gina took off her shirt, and she said, ‘I'm hot.’   So she took it off, and then she goes, ‘Come on, you guys.   Take off your shirt’—I mean, ‘your towel.’   And so we did.“Q Now you are standing out in the living room with no towel on either?“A Right.“Q What happened after that?“A We went back into Robert's [Rios] room.“Q Why?“A ‘Cause Gina asked us to.   She wanted us to go back in there.“Q Did she say anything to you?“A Huh?   No.“Q Well, how did you know she wanted you to go back in there?“A Well, she said that—she goes, ‘Let's go back into Robert's room.’“Q So everybody went?“A Yeah.“Q You got back into Robert's room this time without any towels on.   Tell me what happened.“A Well she showed us that—she put holy water on Robert's stomach, and she started licking it.  [¶] And she goes—they told us to try it, so we did.“․“Q BY MR. PARGAMENT:  Where did the word ‘holy water’ come from?“A I don't know.“Q Somebody used it?   Am I right or wrong?“A Right.“Q It wasn't a bottle marked ‘holy water,’ was it?“A No.   I don't think so.“Q Somebody said it was holy water?“A Yeah.“Q Do you recall?   Do you remember who used that word?“A Gina did.“Q You said it was placed on Robert's abdomen and stomach?“A Uh-huh.“Q Is that—“A Yes.“Q Did you yourself lick the water?“A Yeah.“Q Did you see the other two children do that also?“A Yes.“Q After that was done, what happened?“A Well, then we talked about everybody leaving the room one at a time, so we did.“Q Now, are you telling me that everybody left the room?“A Yeah.   And one of us stayed in.“Q Oh, two of you left the room and one person remained?“A Right.”

10.   The reporter's transcript contains the following colloquy between the prosecuting attorney and Danielle F. during direct examination:“Q ․ By and by, did you go into the room with Robert [Rios]?“A Yes.“Q Alone?“A Yes.“Q Just you and Robert by yourself?“A Yes.“Q What were you wearing when you went in?“A Nothing.“Q What was Robert wearing?“A Nothing.“Q What happened in the room?“A Well, he told me to ‘come her,’ so I did.   And then he started kissing me.“Q What part of your body did he kiss you?“A Everywhere.“Q Can you be specific?“A What?“Q Can you tell me which parts of your body he kissed?“A On my lips and then on my breasts and then (indicating) down there.“Q Well, when you say ‘down there,’ are you referring to the area between your legs?“A Yes.“Q Is there a word that you use to refer to that area?“A I never use the word.“Q Oh, just some word that you have heard used that refers to that area?“A Yes.“Q What area is that, please?“A Pussy.“Q Okay.   Approximately how long were you in the room with Robert alone?“A I don't remember.   About seven minutes.   Seven to ten minutes.”

11.   The following colloquy occurred during direct examination of victim Danielle F. by the prosecuting attorney:“Q Okay.   You were in the room seven or ten minutes, and then you left?“A Right.“Q Did you leave?“A Yes.“Q Where did you go?“A Back out to the living room.“Q What happened in the living room?“A Well—well, about five more minutes after that we went back into the bedroom.“Q You went back into the bedroom?“A Yes.“Q Who went back in that time?“A All three of us.“Q Where was Gina?“A Well, she—she was in the bedroom, I think still with Robert [Rios] talking, talking to him.“Q So, when you got back in, it was you three girls and Gina [Portier] and Robert who were in the bedroom?“A Right.“Q Okay.   What happened when you were in the bedroom this time?“A Then we talked, and then Robert said that me and Tammy almost gave him a hard-on.“Q Wait.   Tell me again, but slowly.   I want to hear every word.“A We talked, and then Robert said that me and Tammy almost gave him a hard-on.“Q I still didn't hear.   You and Tammy almost—“A Uh-huh.“Q Is that what you said?—gave him a hard-on?“A Yes.“Q After Robert told you that, what happened next?“A When we were talking some more, and then we went back to the living room and then—no.   We went to Gina's room.“Q Oh, Gina has a room in the place?“A Yeah.“Q Okay.   What happened in Gina's room?“A Well, we looked at her stuff, and then she—oh, yeah.   We were talking, and then she came in and she gave us some money.“Q What was that all about?“A She said that—well, I don't know.“Q What did she say about the money?“A She said, ‘Here's some money.’   So—“Q Did you all get the same amount of money?“A I don't remember.“Q How much money was given to you?“A Well, first $25, and then when—when we were about to walk out of the house, she gave me $50, and I gave her my $25.“Q Was it ever explained to you why you were being given the money?“A No.”

12.   At the time defendants committed the acts, section 647a read as follows:“Every person who annoys or molests any child under the age of 18 is a vagrant and is punishable upon first conviction by a fine not exceeding five hundred dollars ($500) or by imprisonment in the county jail for not exceeding six months or by both such fine and imprisonment and is punishable upon the second and each subsequent conviction or upon the first conviction after a previous conviction under Section 288 of this code by imprisonment in the state prison.”

13.   In Wickersham, the trial court convicted defendant of first degree murder, following a jury trial, in the shooting death of her husband.   The trial court instructed on first degree murder and involuntary manslaughter, but failed to instruct on the lesser included offenses of second degree murder and voluntary manslaughter.   The defense theory was that defendant's husband had been accidentally shot during a sudden scuffle, while she had been attempting to keep him away from her gun.   Defendant denied intending to fire the weapon or kill her husband.   Defense counsel specifically requested instructions on involuntary manslaughter, without requesting instructions on any other lesser included offenses to the charge of first degree murder.The Supreme Court reversed.   The court held that the evidence was not sufficient to obligate the trial court to instruct the jury, sua sponte, as to voluntary manslaughter.   In so ruling, the court held that the “heat of passion,” basis was unavailable, since the same facts gave rise to a finding of reasonable self-defense and hence justifiable homicide;  as to “unreasonable self-defense,” the court held that such theory was inconsistent with the defense.   However, the court held that the trial court committed reversible error in not instructing, sua sponte, on second degree murder, since the jury could have concluded that defendant did not premeditate but rather acted upon a sudden and unconsidered impulse.In respect to lesser included offenses the Wickersham court stated at pages 323–326, 185 Cal.Rptr. 436, 650 P.2d 311:  “The trial court functions both as a neutral arbiter between two contesting parties and as the jury's guide to the law.   This role requires that the court fully instruct the jury on the law applicable to each particular case.  ‘ “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.”  (People v. St. Martin (1970) 1 Cal.3d 524, 531 [83 Cal.Rptr. 166, 463 P.2d 390].)   That obligation has been held to include giving instructions on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present (see, e.g., People v. Hood (1969) 1 Cal.3d 444 [82 Cal.Rptr. 618, 462 P.2d 370] ), but not when there is no evidence that the offense was less than that charged.  (People v. Noah (1971) 5 Cal.3d 469, 479 [96 Cal.Rptr. 441, 487 P.2d 1009];  People v. Osuna (1969) 70 Cal.2d 759, 767 [76 Cal.Rptr. 462, 452 P.2d 678.)’  (People v. Sedeno (1974) 10 Cal.3d 703, 715–716 [112 Cal.Rptr. 1, 518 P.2d 913].)“The fulfillment of this obligation ensures that the jury will consider the full range of possible verdicts—not limited by the strategy, ignorance, or mistakes of the parties.   The jury should not be constrained by the fact that the prosecution and defense have chosen to focus on certain theories.  ‘Just as the People have no legitimate interest in obtaining a conviction of a greater offense than that established by the evidence, a defendant has no right to an acquittal when that evidence is sufficient to establish a lesser included offense.  (People v. St. Martin, supra, 1 Cal.3d 524, 533 [83 Cal.Rptr. 166, 463 P.2d 390].)’  (Sedeno, supra, 10 Cal.3d at p. 716 [112 Cal.Rptr. 1, 518 P.2d 913].)   Furthermore, where counsel is not aware of alternative verdicts or incorrectly believes them to be irrelevant to the case, the trial court's action will avoid an unwarranted all-or-nothing choice for the jury and will ensure that the verdict is no harsher or more lenient than the evidence merits.   These policies reflect concern both for the rights of persons accused of crimes and for the overall administration of justice.“In Sedeno, supra, 10 Cal.3d at page 716 [112 Cal.Rptr. 1, 518 P.2d 913] this court stated that the trial court was obligated to instruct on necessarily included offenses and to give requested instructions ‘whenever there is “any evidence deserving of any consideration whatsoever ․” ’  (Citing People v. Carmen (1951) 36 Cal.2d 768, 773 [228 P.2d 281].)   In People v. Flannel (1979) 25 Cal.3d 668, 684–685, footnote 12 [160 Cal.Rptr. 84, 603 P.2d 1], the lead opinion disapproved the suggestion that ‘jury instructions must be given whenever any evidence is presented, no matter how weak’ in the context of requested instructions on diminished capacity.  (Italics in original.)   The lead opinion stated that the court need only give the instruction if the accused proffers evidence sufficient to ‘deserve consideration by the jury, i.e., “evidence from which a jury composed of reasonable men could have concluded” ’ that the particular facts underlying the instruction did exist.  (At p. 684 [160 Cal.Rptr. 84, 603 P.2d 1] quoting from People v. Carr (1972) 8 Cal.3d 287, 294 [104 Cal.Rptr. 705, 502 P.2d 513].)“This does not require—or permit—the trial court to determine the credibility of witnesses.   It simply frees the court from any obligation to present theories to the jury which the jury could not reasonably find to exist.   Thus, in Flannel, the mere fact that the accused had ‘consumed relatively small amounts of alcohol over a long period of time’ did not warrant giving an instruction on diminished capacity.  (25 Cal.3d at p. 685 [160 Cal.Rptr. 84, 603 P.2d 1].)“Flannel did not directly discuss the standard to be utilized in determining when the court has a duty to instruct sua sponte on necessarily included offenses.   However, logic would seem to require that the same standard should generally apply.   The trial court is not obligated to instruct sua sponte on necessarily included offenses unless the evidence would justify a conviction of such offenses.  (See People v. Ramos (1982) 30 Cal.3d 553, 582 [180 Cal.Rptr. 266, 639 P.2d 908].)   This rule ensures that the jury's attention is properly focused on the relevant legal theories.“․“Regarding defenses, Sedeno held that ‘the duty to give instructions, sua sponte, on particular defenses and their relevance to the charged offense arises only if it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant's theory of the case.   Indeed, this limitation on the duty of the trial court is necessary not only because it would be unduly burdensome to require more of trial judges, but also because of the potential prejudice to defendants if instructions were given on defenses inconsistent with the theory relied upon.’  (Sedeno, supra, 10 Cal.3d at p. 716 [112 Cal.Rptr. 1, 518 P.2d 913].)”

14.   In Geiger, the defendant, convicted of second degree burglary, contended that the trial court erred in refusing to instruct the jury, in accordance with defendant's theory of the case, that he could be convicted of vandalism (§ 594), a related offense not necessarily included in burglary.The Geiger court in reversing the judgment under the facts of that case, prefaced its opinion with the following statements:  “Clearly a defendant has no general right to have the jury presented with a shopping list of alternatives to the crimes charged by the prosecution.   However, we find no reason in law, justice, or common sense why a jury that is not persuaded of the defendant's guilt of the charged offense should not have the opportunity to find him guilty of a lesser related offense where, as here, the lesser offense is closely related to that charged, there is evidence of its commission, and defendant's theory of defense is consistent with such a finding.   Indeed, as we shall explain, well-established principles of constitutional dimension, as well as numerous recent decisions by federal courts and the courts of other states, support the giving of instructions upon request in such a situation, and recognize that this option to acquittal benefits the People as well as defendant.  [¶]  Because we conclude that the failure to give the instruction requested by defendant requires reversal of the judgment, we do not reach defendant's additional claims of error in the admission of evidence.”  (Id., at p. 514, 199 Cal.Rptr. 45, 674 P.2d 1303.)In Geiger, the court had ruled that no instruction on vandalism would be given.   The jury was instructed on burglary and attempted burglary.   Defense counsel admitted in argument to the jury that defendant committed a crime, vandalism, and suggested that the jury might like to convict defendant of that crime, but told the jury that, because burglary and attempted burglary were the only charges, the jury had to acquit.The Geiger court concluded its discussion with the following admonition:  “Finally, the instructions must be justified by the defendant's reliance on a theory of defense that would be consistent with a conviction for the related offense.   Thus, the instruction need not be given if the defense theory and evidence reflect a complete denial of culpability as when the defense is alibi, or the only issue is identity, unless the defendant argues that the evidence at most shows guilt only of the related offense.”  (Fn. omitted.)  (Id., at p. 532, 199 Cal.Rptr. 45, 674 P.2d 1303.)

15.   Defense witness Chris Flannery, a male nurse, who attended defendant Rios, stated that he had never seen any lewd conduct take place at Rios' home.   Mr. Flannery was impeached with a photograph (Peo. exh. 27) depicting him in a chair near a couple engaging in oral copulation in Rios' home.   A stipulation was entered into that the other two persons depicted in the photographs were not the two defendants.

16.   At the time of sentencing defendant Rios, and after reading and considering the probation reports of both defendants *, hearing arguments, and before pronouncing sentence, the trial judge commented in some detail on the case from the bench.   These comments included the following:

FOOTNOTE.  [THE COURT]:  “Now, what do we have?   We have this religious business, which is fine.   Apparently he [Rios] believes in it.   He preaches it, but he didn't live up by it.   He tells the little girls, ‘Don't turn into hookers,’ and yet he'll orally copulate them in the next breath.  [¶]  He tells them to lead honest and upright lives, yet they are using cocaine in this house.  [¶]  Live good and clean, so they take pictures of these little children in the nude.   That doesn't strike me as a religious person.   That strikes me as a classic hypocrite, that's what that strikes me as.  [¶] ․  [¶]  And he [Rios] has got a friend over here supplying the girls.   Of course, she [Portier] wipes her slate clean by not going inside and not doing any of the activity herself.   Everybody has got their own compartments out here when it comes to the moral scoreboard.”“Bizarre.  Mud fights, nudity in the bathroom, washing clothing, towels around the body, going in and coming out, and on and on and on.   If you put this show on television, nobody would believe it.   I'm not going to belabor the matter anymore than that.   I've taken up the time that I have taken simply to point out the kind of problem that we are facing here.   [¶] ․  [¶]  [T]hese charges are not the type that children of these [sic ] age would manufacture, and I hate to say that these two lawyers really did their job on these kids.   They really did a number on them.   Between what the DA had to say, the places they had to go, two separate preliminary hearings, they survived through 12 people from this community, which is a glowing tribute to a concept of truth and credibility.”The clerk's transcript on appeal contains copies of the probation reports on both defendants.The probation report on defendant Rios, prepared by Deputy Probation Officer Lynette Grismore, recommends that probation be denied and that defendant be sentenced to state prison.   The report contains, in part, the following under the “Evaluation” paragraph:“He [defendant Rios] readily admits to utilizing a ‘prostitute service’ to meet his needs and that cocaine is not harmful as it is organic.   However, these charges are not the type that children of this age would manufacture.   They wore no make-up and their physical appearance, in no way, is that of a mature adult female.   The defendant attempts to use his paraplegia as a play for sympathy, and insists he had no knowledge of the goings-on within his home.   There is no doubt, in this probation officer's mind, that the defendant is indeed a pedophilac.   There is also no doubt that the defendant, had he not been incarcerated, and should he be given the opportunity, would continue in like activities.”The probation report prepared by Deputy Probation Officer Grismore on defendant Portier, also recommends that probation be denied and defendant sentenced to state prison.   Under the paragraph entitled “Evaluation,” the report contained, in part, the following:“The defendant [Portier], who admits prostitution for several years, has continued in this life style since the arrest in this current matter.   She is the product of an emotionally unstable mother who has had several marriages.   The defendant has also been under the auspices of the Department of Public Social Services, Children's Protective Services.   The mother and the defendant's prior services worker feel that she is in need of psychiatric treatment;  however, they both indicate the defendant is unamenable to treatment.   Also, defendant is totally into denial of this current matter, and without her acknowledgement, psychiatric treatment would not be feasible.   The defendant was aware of the ages of the victims and she undoubtedly was aware of their abuse.   In addition, the defendant has chosen her life style and facts indicate that she is content.   In observing the defendant, her only concern is being incarcerated;  not the seriousness of the charges.   The defendant's services worker refers to treatment as though we are dealing with a juvenile.   We are not, the defendant is an adult who has engaged in illicit activities for the past four to seven years.   It appears the defendant was preparing the victims for a future in her profession.   The defendant's chaotic childhood does not, and cannot, negate the seriousness of this offense.”

L. THAXTON HANSON, Associate Justice.

LILLIE, Acting P.J., concurs in the judgment.