PEOPLE v. MARSHALL (1989)

William Marshall appeals his conviction by jury of two counts of committing lewd and lascivious acts upon a child under the age of fourteen.  (Pen.Code, § 288(a).) ¹  He asserts the trial court erred by  failing to give, sua sponte, jury instructions on battery (§ 242) and misdemeanor child molestation (§ 647.6), as necessarily included lesser offenses of section 288(a).  [ [-] ] We disagree.

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 In criminal cases trial courts must instruct, sua sponte, on necessarily included lesser offenses whenever the evidence raises a question of whether all of the elements of the charged offense were shown and there is some evidence from which a reasonable jury could find that the lesser offense was committed.  (People v. Wickersham (1982) 32 Cal.3d 307, 323–324, 185 Cal.Rptr. 436, 650 P.2d 311;  People v. Leach (1985) 41 Cal.3d 92, 106, 221 Cal.Rptr. 826, 710 P.2d 893.)

 “ ‘The test in this state of a necessarily included offense is simply that where an offense cannot be committed without necessarily committing another offense, the latter is a necessarily included offense.’  [Citations.]”  (People v. Pearson (1986) 42 Cal.3d 351, 355, 228 Cal.Rptr. 509, 721 P.2d 595.) ²  The issue of whether one offense is necessarily included in another is a legal one, not a factual one;  it must be determined that “․ under the statutory definition of the charged offense it cannot be committed without committing the lesser offense․”   (People v. Geiger (1984) 35 Cal.3d 510, 517, fn. 4, 199 Cal.Rptr. 45, 674 P.2d 1303.)   A necessarily included offense must share common elements with the greater offense but lack one or more of such elements.   If the relationship between the greater and lesser offenses is merely factual, i.e., based on evidence of conduct admitted to prove the accused's guilt of the greater offense, the lesser offense is a “related” rather than “lesser included” offense.   In this instance, a defendant is entitled to instructions on the lesser offense only if requested by him.  (Id., at pp. 530–531, 199 Cal.Rptr. 45, 674 P.2d 1303.)

 It is clear neither battery nor child molestation are necessarily included offenses of lewd conduct with a child under the age of 14 based on the elements of the offense test.

 Lewd Conduct

The necessary elements of a violation of section 288(a) are:  the commission of a lewd or lascivious act upon the body of a child, under the age of 14, with the specific intent to arouse, appeal to or gratify the lust, passions or sexual desires of the perpetrator or the child.   Essentially, it is the touching of a child with a lustful intent.  (People v. Austin (1980) 111 Cal.App.3d 110, 113, 168 Cal.Rptr. 401;  CALJIC 10.41.)

Battery

 Battery is defined by section 242 as “․ any willful and unlawful use of force or violence upon the person of another.”   It may be committed by the slightest touching.   However, the willful use of “force” requires that the touching be harmful or offensive in nature, even though this is a general intent crime.  (See Allstate Ins. Co. v. Overton (1984) 160 Cal.App.3d 843, 848–850, 206 Cal.Rptr. 823;  People v. Martinez (1970) 3 Cal.App.3d 886, 889, 83 Cal.Rptr. 914).   CALJIC 16.141 states that the touching must be accomplished in an “․ insolent, rude or an angry manner․”

Section 288(a) does not require force in the sense of a harmful, offensive, insolent, rude or angry touching;  it requires a touching with a lustful intent.   Because of this distinction, battery, while lacking the elements of age and lustful intent, adds an element relating to the nature of the touching.   One may therefore commit a lewd and lascivious touching of a child without committing battery.   Battery is not a necessarily included offense of section 288(a).

Misdemeanor Child Molestation

Section 647.6 provides, in pertinent part, “[e]very person who annoys or molests any child under the age of 18 is punishable by a fine not exceeding one thousand dollars ($1,000) or by imprisonment in the county jail for not exceeding one year or by both the fine and imprisonment.”

 To violate section 647.6, one must commit an act to annoy, irritate or offend a child.  (People v. Thompson (1988) 206 Cal.App.3d 459, 463, 465, 253 Cal.Rptr. 564.)   Section 647.6 can be violated without actually either annoying or touching the child, and without committing a lewd act, provided that the commission of the act was motivated by an abnormal or unnatural sexual interest in the victim and that a normal person would unhesitatinglybe annoyed, offended or irritated by those acts.   (Id., at p. 465, 253 Cal.Rptr. 564;  also see CALJIC 16.441.)

Section 647.6 shares no element in common with section 288(a).   It has neither a touching nor a lustful specific intent requirement.   Section 647.6 has an element that 288(a) does not have, that the “child” can be between the ages of 14 and 18.   Section 647.6 is not a necessarily included lesser offense of 288(a).

We are mindful that People v. La Fontaine (1978) 79 Cal.App.3d 176, 144 Cal.Rptr. 729 and its progeny held that section 647a (now § 647.6) was a necessarily included lesser offense of section 288(a).  (See People v. Poon (1981) 125 Cal.App.3d 55, 80, 178 Cal.Rptr. 375;  People v. Gordon (1985) 165 Cal.App.3d 839, 864, 212 Cal.Rptr. 174;  People v. Callan (1985) 174 Cal.App.3d 1101, 1112, 220 Cal.Rptr. 339.)   The court in People v. La Fontaine, supra, 79 Cal.App.3d at page 183, 144 Cal.Rptr. 729 stated, “[t]here can be no rational dissent from the fact that a violation of Penal Code section 647a[fn. omitted]—the misdemeanor of annoying or molesting a minor under the age of 18—is necessarily included in the offense provided by Penal Code section 288—that of willfully and lewdly committing a lewd or lascivious act upon the body of a child under the age of 14.”   We disagree, and believe our position to be supported by subsequent Supreme Court decisions.

The La Fontaine court did no further analysis of the basis of its holding Penal Code section 647a was a necessarily included offense.   The court's subsequent discussion of that defendant's conduct, however, illustrates that it was focusing on the evidence of the offense and not the elements of each offense in making its determination.   In addition, its determination was made in a case not involving instructional issues on greater and lesser offenses but rather to determine whether the Court of Appeal could modify the verdict.   Later cases have relied on La Fontaine without any analysis at all.   Because Supreme Court cases noted above decided subsequent to La Fontaine have clarified the definition of a lesser necessarily included offense and recognized lesser related offenses, we find the La Fontaine court erred in holding child molestation was a lesser necessarily included offense of section 288(a).

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 The judgment is affirmed.

FOOTNOTES

1.   All further statutory references are to this code.

2.   An additional manner of finding a lesser offense is necessarily included in another offense is where charging allegations contain language describing the offense in such a way that if committed as specified the lesser offense is necessarily committed.  (See People v. Lohbauer (1981) 29 Cal.3d 364, 368–369, 173 Cal.Rptr. 453, 627 P.2d 183;  People v. Marshall (1957) 48 Cal.2d 394, 405, 309 P.2d 456.)   This method is not applicable here.

ABBE, Associate Justice.

STONE, P.J., and GILBERT, J., concur.