California Courts of Appeal Reports
THE PEOPLE v. ISOM, C048429 (Cal.App. 12-21-2006) THE
PEOPLE, Plaintiff and Respondent, v. JEFFREY ALLEN ISOM,
Defendant and Appellant. C048429. Court of Appeal of
California, Third District, Butte. December 21, 2006.
Certified for Partial Publication.
[EDITORS’ NOTE: PURSUANT TO CALIFORNIA RULES OF COURT,
RULES 976(b) AND 976.1 THIS OPINION IS CERTIFIED FOR
PARTIAL PUBLICATION. THE SHADED TEXT BELOW REPRESENTS THE
ORIGINAL OPINION AND IS PROVIDED FOR REFERENCE PURPOSES
ONLY.]
Appeal from a judgment of the Superior Court of Butte
County, No. CM019387, Robert A. Glusman, Judge. Affirmed.
Steven Schorr, under appointment by the Court of Appeal,
for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief
Assistant Attorney General, Mary Jo Graves, Senior
Assistant Attorney General, Stan Cross and J. Robert
Jibson, Supervising Deputy Attorneys General, for Plaintiff
and Respondent.
HULL, J.
Defendant Jeffrey Allen Isom was charged and convicted of
committing three counts of lewd and lascivious acts upon a
child under the age of 14 years. (Pen. Code, § 288,
subd. (a).) The jury found true the multiple victim
enhancement allegation as to each count (Pen. Code,
§ 667.61, subd. (b) [15 years to life]) and defendant
admitted the truth of two prior strike convictions (Pen.
Code, §§ 1170.12, subds. (a)-(d); 667, subds.
(b)-(i)). The trial court imposed three consecutive terms
as follows: Count one, 45 years to life (three times 15 to
life); count two, 25 years to life; and count three, 45
years to life (three times 15 to life). The court struck
the multiple victim allegation as to count two, finding
counts one and two were committed on the same occasion.
Defendant was sentenced to a total term of 115 years to
life.
On appeal, defendant raises a number of claims. He argues:
(1) the admission of evidence of a prior sexual offense
violated his right to due process of law; (2) the trial
court abused its discretion when it failed to exclude
evidence of the prior sexual offense pursuant to Evidence
Code section 352; (3) the evidence was insufficient to
prove defendant acted with lewd intent; (4) Evidence Code
section 1108 violates the Equal Protection clause because
it fails to contain a provision presumptively excluding
remote convictions comparable to the protection against
remoteness set forth in Evidence Code section 1109; (5) the
trial court’s instruction to the jury pursuant to CALJIC
2.50.01 violated defendant’s right to due process of law;
(6) the trial court’s imposition of three consecutive
sentences based on its determination that the three
offenses were not committed on the same occasion and did
not arise from the same set of operative facts violated the
holding in Blakely v. Washington (2004) 542 U.S. 296 [159
L.Ed.2d 403] (Blakely); (7) the trial court made
contradictory sentencing findings as to counts one and two;
and (8) defendant’s aggregate sentence constitutes cruel
and unusual punishment.
In addition to defendant’s assignments of error, we asked
for supplemental briefing on the question whether the trial
court erred in failing to give a lesser included offense
instruction for annoying and molesting a child under the
age of 18 years. (Pen. Code, § 647.6, subd. (a).)
Finding no error, we affirm the judgment.
FACTS
A. Charged Offenses
On July 3, 2003, 12-year-old Samantha and her younger
sister went with their grandmother, Bonnie G., to the
Safeway store in Paradise. There were very few customers in
the store at the time. While the threesome were standing in
the card aisle looking for birthday cards, defendant walked
past Samantha, slid his hand across her bottom for a
second, continued walking down the aisle, and turned the
corner. The only other person standing nearby was at the
far end of the aisle and the aisles were wide, so it was
not necessary for defendant to pass so close to Samantha.
Nevertheless, Samantha told her grandmother a man
accidentally touched her bottom and her grandmother agreed.
A short time later, while Samantha and her grandmother were
in the cake section, defendant walked by them again and
this time he grabbed Samantha’s bottom. She told her
grandmother defendant grabbed her butt and that he had been
following her around the store, staring at her. She was
shaking and nervous and her voice was quivering.
When Samantha saw defendant standing at the checkout
counter, she pointed him out to her grandmother, who then
pointed her finger at him and said “[d]on’t you dare touch
my granddaughter.” When defendant finished paying for his
groceries, he left the store and got into his pickup truck,
where he sat for about 20 minutes.
Meanwhile, another customer, Nancy C., was in the store
with her 10-year-old granddaughter Michaela. While Michaela
was standing next to Nancy C. in one of the aisles,
defendant pinched Michaela’s buttocks. Nobody else was in
the aisle.
Michaela told her grandmother that defendant touched her
and when Nancy C. asked her whether it was an accident, the
child started to cry and said “No, grandma, it wasn’t an
accident. He grabbed my butt.” Nancy C. saw defendant who
was by then at the end of the aisle. She followed him so
she could see what he looked like and what he was doing and
continued to follow him until she saw him leave the store.
While Nancy C. and Michaela were on their way to the
checkout counter, Nancy C. overheard Bonnie G. telling the
store manager about the incident involving Samantha. After
asking Bonnie G. whether her granddaughter had been touched
too, Nancy C. told the manager what happened to Michaela.
As they left the store, Nancy C. and Michaela saw defendant
sitting in his truck in the parking lot. Before leaving the
lot, Nancy C. drove past defendant’s truck and Michaela
wrote down the license plate number and a description of
the truck. Nancy C. then saw defendant move his truck to
another area in the parking lot where he could view the
store entrance, so she returned to the store with Michaela
and called the police.
When the police arrived, defendant was still sitting in his
truck. Officer Rowe asked him why he was still there and
defendant explained that he went to buy briquettes for a
barbeque and was checking his receipt to determine if he
had enough money in his ATM account to make another
purchase. However, he did not have a receipt in his hand
and took some time to finally locate it in his wallet. The
receipt had no information showing defendant’s account
balance. When the officer asked defendant about the
reported touchings, he denied they happened, but said that
if he did touch anyone, it was an accident because it was
very busy inside.
Meanwhile, Officer Gallagher took Samantha and Michaela
outside where each one independently identified defendant
as the man who touched her. Defendant was arrested and
taken into custody.
B. Uncharged Offense
On the morning of May 31, 1991, 15-year-old Jessie was
walking alone on a trail on her way to the high school. As
she walked through some bushes to a paved bike path, she
saw defendant on the path. She walked behind him for a
short distance and he kept looking back at her. When she
left the path, he took another trail and fell in behind her.
As Jessie was about to cross a dry creek bed, defendant ran
up behind her, grabbed her, and lifted her off the ground.
He put his hand over her mouth and, using “an evil, mean”
tone, told her to “shut up” and then pushed her to the
ground face down. As she struggled, her glasses and the
rocks on the ground scratched her face.
Although defendant was sitting on her, Jessie was able to
turn over, but her legs were caught in the bushes, which
scraped her legs whenever she moved them. Meanwhile,
defendant was trying to unbuckle her belt. Believing
defendant was going to rape her, Jessie decided to fight
back and started to scream and hit him. He repeatedly told
her to shut up and unsuccessfully attempted to control her
flailing arms. When he grabbed her breast, Jessie became
enraged and hit defendant harder. He finally fled and she
was able to run to the school, where she reported the
attack. Defendant pleaded guilty to a charge of assault with
intent to commit rape (Pen. Code, § 220) and was
sentenced to state prison for the attack.
The defense rested without presenting any evidence.
DISCUSSION
I
Evidence Code Section 1108 and Due Process of Law
Defendant contends the admission of evidence of prior
sexual offenses under Evidence Code section 1108 deprived
him of his right to due process of law. He makes this
argument “solely to preserve [his] right to federal relief
in the event . . . [California] law is eventually
overturned.”
Defendant recognizes the California Supreme rejected this
argument in People v. Falsetta (1999) 21 Cal.4th 903
(Falsetta). We are bound by that decision. (Auto Equity
Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
II
Evidence Code Section 352
Defendant contends that, even if the admission of evidence
of prior sexual misconduct did not violate his right to due
process of law, the trial court abused its discretion by
admitting evidence, pursuant to Evidence Code section 1108,
of the 1991 assault with intent to commit rape committed
against Jessie. He argues that due to the significant
passage of time, the substantial dissimilarities between the
charged and uncharged offenses, and the inflammatory nature
of the uncharged offense, its minimal probative value was
substantially outweighed by its prejudicial effect.
The People contend the trial court did not abuse its
discretion, because there was some similarity between the
charged and uncharged offenses that showed defendant’s
propensity to sexually assault young girls and the evidence
of the assault was not speculative or especially
inflammatory.
We find no error.
A. Governing Principles
Evidence Code section 1108, subdivision (a), provides: “In
a criminal action in which the defendant is accused of a
sexual offense, evidence of the defendant’s commission of
another sexual offense or offenses is not made inadmissible
by [Evidence Code] Section 1101, if the evidence is not
inadmissible pursuant to [Evidence Code] Section 352.” A
“sexual offense” within the meaning of Evidence Code
section 1108, subdivision (a), includes a violation of
Penal Code section 288. (Evid. Code, § 1108, subd.
(d)(1)(A).)
Evidence Code section 352 gives the trial court discretion
to exclude evidence if the probative value of the evidence
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.)
Thus, Evidence Code section 1108 is a stand-alone statutory
exception to the exclusion of propensity evidence mandated
by Evidence Code section 1101, subdivision (a). The
admissibility of propensity evidence “radically changed
with respect to sex crime prosecutions with the advent of
[Evidence Code] section 1108. Determining that, in a sex
offense prosecution, the need for evidence of prior
uncharged sexual misconduct is particularly critical given
the `serious and secretive nature of sex crimes and the
often resulting credibility contest at trial’ (People v.
Fitch (1997) 55 Cal.App.4th 172, 181-182), the Legislature
enacted [Evidence Code] Section 1108, which provides that
evidence of a prior sexual offense `is not made inadmissible
by [Evidence Code] Section 1101, if the evidence is not
inadmissible pursuant to [Evidence Code] Section 352.’ By
removing the restriction on character evidence in [Evidence
Code] section 1101, [Evidence Code] section 1108 now
`permit[s] the jury in sex offense . . . cases to consider
evidence of prior offenses for any relevant purpose’
(People v. James (2000) 81 Cal.App.4th 1343, 1353, fn. 7,
italics added), subject only to the prejudicial effect
versus probative value weighing process required by
[Evidence Code] section 352.” (People v. Britt (2002) 104
Cal.App.4th 500, 505 (Britt).)
B. The Trial Court’s Ruling
The People moved to admit the evidence of the uncharged
offense under Evidence Code sections 1101, subdivision (b),
to show intent, and 1108, to show propensity to commit
sexual assaults. The court denied the motion under Evidence
Code section 1101, subdivision (b), finding the uncharged
and charged offenses were not sufficiently similar, but
granted the motion under Evidence Code section 1108.
C. Abuse of Discretion Under Evidence Code Section 352
We review the trial court’s ruling for an abuse of
discretion (People v. Frazier (2001) 89 Cal.App.4th 30,
42), which means “[t]he trial court enjoys broad discretion
under Evidence Code section 352 in determining whether the
probative value of particular evidence is outweighed by
concerns of undue prejudice, confusion or consumption of
time and this discretion is built into Evidence Code section
1108, subdivision (a). The exercise of this statutory
discretion will not be disturbed on appeal `”except on a
showing that the trial court exercised its discretion in an
arbitrary, capricious or patently absurd manner that
resulted in a manifest miscarriage of justice.” . . .'”
(Id. at p. 42.)
In Falsetta, supra, 21 Cal.4th 903, our high court
addressed factors to be considered in determining whether
evidence offered pursuant to Evidence Code section 1108
should be excluded pursuant to Evidence Code section 352.
The court said: “[T]rial judges must consider such factors
as [the uncharged sex offense’s] nature, relevance, and
possible remoteness, the degree of certainty of its
commission and the likelihood of confusing, misleading, or
distracting jurors from their main inquiry, its similarity
to the charged offense, its likely prejudicial impact on
the jurors, the burden of the defendant in defending against
the uncharged offense, and the availability of less
prejudicial alternatives to its outright admission, such as
admitting some but not all of the defendant’s other sex
offenses, or excluding irrelevant though inflammatory
details surrounding the offense.” (Falsetta, supra, at p.
917.)
In its discussion on this point, the Falsetta court made
reference to its holding in People v. Balcom (1994) 7
Cal.4th 414, which “explained that the probative value of
`other crimes’ evidence is increased by the relative
similarity between the charged and uncharged offenses, the
close proximity in time of the offenses, and the independent
sources of evidence (the victims) in each offense. (Balcom,
supra, 7 Cal.4th at p. 427.) [The court] also observed that
the prejudicial impact of the evidence is reduced if the
uncharged offenses resulted in actual convictions and a
prison term, ensuring that the jury would not be tempted to
convict the defendant simply to punish him for the other
offenses, and that the jury’s attention would not be
diverted by having to make a separate determination whether
defendant committed the other offenses. (Ibid.)” (Falsetta,
supra, 21 Cal.4th at p. 917.)
As we have said, we are called upon to decide whether the
trial judge’s decision to admit the evidence of the 1991
assault on Jessie with intent to commit rape was arbitrary,
capricious or patently absurd such that it resulted in a
manifest miscarriage of justice. (People v. Frazier, supra,
89 Cal.App.4th at p. 42.) It was not.
Considering the factors referred to above, the attack on
15-year-old Jessie was probative in that it demonstrated
defendant had an abnormal sexual interest in young girls,
even though Jessie was some four years older at the time
she was assaulted than the victims in this case. The
evidence of the assault on Jessie was not highly
inflammatory, since the defendant broke off the attack when
Jessie fought back and Jessie was not physically harmed
except for scrapes and bruises. The jurors were not likely
to be so angered by the attack on Jessie that they were
unable to objectively consider the evidence relating to the
charges before them.
While the incident with Jessie was somewhat remote,
defendant was, as a result of it, sent to state prison,
which necessarily reduced the number of years he was free
of custody before 2003, when the incidents charged in this
matter occurred. It is certain defendant committed the
offense against Jessie, because he admitted to it; there was
no burden on defendant in defending against it. And the
prejudicial impact of the prior offense was diminished by
the fact that defendant was convicted of the offense and
served a term in state prison. Thus, the jury in this
matter was not tempted to convict him simply to punish him
for the offense against Jessie.
There is the issue of the similarity of the offenses which
is one of the factors relevant to the Evidence Code section
352 analysis. There is obviously some dissimilarity between
an assault with intent to commit rape on a 15-year-old girl
in a secluded area and the lewd and lascivious grabbing of
the buttocks of two 11-year-old girls in a public setting.
Even so, there are similarities, too, including most
importantly, the fact that defendant demonstrated on an
earlier occasion an aberrant sexual interest in young
girls. The prior sexual offense was not, after all,
committed on an adult. It was committed on a 15-year-old
girl. Justice Blease, in dissent, refers to Jessie as “a
sexually mature 15-year-old high school student.” (Dis.
opn., post, at p. 27.) But we note that, other than
chronological age, there is no evidence in the record
relating to Jessie’s “sexual maturity” or her “maturity” in
general or the “maturity” of the two victims in the instant
case.
Justice Blease is of the opinion that the offenses were so
dissimilar that it was a prejudicial abuse of discretion to
admit the evidence of defendant’s sexual assault on Jessie.
He says the most significant issue before the jury was the
question of defendant’s intent and then imports the body of
law relating to evidence of intent as that concept appears
in Evidence Code section 1101, subdivision (b), particularly
that which speaks to the necessary degree of similarity
between the current offense and the uncharged offense. In
doing so, we think he elevates the question of similarity
of the offenses beyond that which is appropriate in judging
the admissibility of evidence under Evidence Code section
1108.
In Britt, referred to earlier, the defendant argued that
evidence offered under Evidence Code section 1108 could
only be used to prove “propensity” and not identity. If
offered to prove identity, the defendant argued, the
evidence was only admissible if the prior conduct was so
distinctive as to be like a signature, thus incorporating
the analysis of evidence offered to prove identity under
Evidence Code section 1101, subdivision (b), as set forth
in People v. Ewoldt (1994) 7 Cal.4th 380 (Ewoldt).
We rejected that argument, observing: “The flawed premise
in Britt’s argument is that [Evidence Code] section 1101,
subdivision (b)’s test for admissibility of prior uncharged
offenses in a sex offense case survived the enactment of
[Evidence Code] section 1108. It did not. `In enacting
Evidence Code section 1108, the Legislature decided evidence
of uncharged sexual offenses is so uniquely probative in
sex crimes prosecutions it is presumed admissible without
regard to the limitations of Evidence Code section 1101.’
(People v. Yovanov (1999) 69 Cal.App.4th 392, 405, italics
added.) When [Evidence Code] section 1108 swept away the
general prohibition on character evidence set forth in
[Evidence Code] section 1101, it rendered moot the
exceptions to that prohibition created by [Evidence Code]
section 1101, subdivision (b). Thus, in a sex crime
prosecution, the `signature test’ is no longer the yardstick
for admission of uncharged sexual misconduct to prove
identity.” (Britt, supra, 104 Cal.App.4th at pp. 505-506.)
Although Britt dealt with the question of Evidence Code
section 1108 evidence as it bears on identity, its holding
applies equally to Evidence Code section 1108 evidence
offered to prove intent. The similarity analysis of Ewoldt
simply does not apply. Similarity of the crimes is a
consideration in the Evidence Code section 352 analysis
required by Evidence Code section 1108, inasmuch as it is
one of many factors for the trial court to consider when
the evidence is offered pursuant to that section. However,
similarity plays a much smaller role on the question of
admissibility under Evidence Code section 1108 than it does
when the court is considering propensity evidence as an
exception to the rule of inadmissibility set forth in
Evidence Code section 1101.
Our view on this point is consistent with the legislative
history of Evidence Code section 1108. In the “Letter of
Intent” from Assembly Member Rogan dated August 24, 1995
regarding the bill that became Evidence Code section 1108
— a letter our Supreme Court relied on in part in
deciding the issues presented in Falsetta — Assembly
Member Rogan reported that “[d]uring the hearing before the
Assembly Committee on Public Safety, the language of
[section 1108] of the Evidence Code was amended to provide
explicitly that evidence of other offenses within the scope
of the section is not subject to [Evidence Code section
1101]’s prohibition of evidence of character or disposition.
This makes it clear that [Evidence Code section 1108]
permits courts to admit such evidence on a common sense
basis — without a precondition of finding a
`noncharacter’ purpose for which it is relevant — and
permits rational assessment by juries of evidence so
admitted.” (Letter by Assembly Member Rogan (Aug. 24, 1995)
regarding Assem. Bill No. 882, pub. in 2 Assem. J.
(1995-1996 Reg. Sess.) p. 3278, reprinted at 29B pt. 3
West’s Ann. Evid. Code (2006 pocket supp.) foll. §
1108, pp. 180-181 (hereinafter Letter of Intent).)
The Letter of Intent goes on to say that “[a]t the hearing
before the Judiciary Committee, there was discussion
whether more exacting requirements of similarity between
the charged offense and the defendant’s other offenses
should be imposed. The decision was against making such a
change, because doing so would tend to reintroduce the
excessive requirements of similarity under prior law which
[the bill enacting Evidence Code section 1108] is designed
to overcome, see Lungren, [Stopping Rapists and Child
Molesters by Giving Juries All the Facts — Reforms
in Federal and California Law in Prosecutor’s Brief (1995)
volume XVII, No. 2, page 14], and could often prevent the
admission and consideration of evidence of other sexual
offenses in circumstances where it is rationally probative.
Many sex offenders are not `specialists’, and commit a
variety of offenses which differ in specific character.”
(Letter of Intent, 29B pt. 3 West’s Ann. Evid. Code, supra,
foll. § 1108, at p. 181.)
Properly considered, the arguable dissimilarities between
the offenses we deal with here cannot lead to the
conclusion that the trial court abused its discretion when
it admitted, pursuant to Evidence Code section 1108,
evidence of the assault on Jessie in 1991.
III
Sufficiency of the Evidence
Defendant contends the evidence presented at trial was
insufficient to establish the element of intent necessary
for a violation of Penal Code section 288, subdivision (a).
He argues evidence of the charged offenses, standing alone,
was ambiguous regarding his intent and “would not have
permitted a reasonable trier of fact to infer beyond a
reasonable doubt that the touching was committed with a lewd
intent.” He further argues evidence of the uncharged
offense against Jessie did not provide the requisite level
of proof because of the dissimilarity between that offense
and those charged in this matter. We disagree.
In reviewing the sufficiency of the evidence supporting a
conviction, we view the evidence in the light most
favorable to the prosecution and determine if a rational
trier of fact could have found the elements of the offense
beyond a reasonable doubt. (People v. Davis (1995) 10
Cal.4th 463, 509.) Reversal on the basis of insufficient
evidence is unwarranted unless it appears “that upon no
hypothesis whatever is there sufficient substantial
evidence to support [the conviction].” (People v. Redmond
(1969) 71 Cal.2d 745, 755.)
The criminal intent required for a violation of Penal Code
section 288 is “the intent of arousing, appealing to, or
gratifying the lust, passions, or sexual desires of” the
defendant or the victim. (Pen. Code, § 288, subd.
(a).) “The intent with which the act is done is manifested
by the circumstances under which the act is committed.
([Pen. Code,] § 21.) Each case involving a lewd act
must be decided on its own facts.” (In re Paul C. (1990)
221 Cal.App.3d 43, 54.) “‘[T]he trier of fact looks to all
the circumstances, including the charged act, to determine
whether it was performed with the required specific
intent.’ [Citations.] Other relevant factors can include
the defendant’s extrajudicial statements [citation], other
acts of lewd conduct admitted or charged in the case
[citations], the relationship of the parties [citation],
and any coercion, bribery, or deceit used to obtain the
victim’s cooperation or to avoid detection [citation].”
(People v. Martinez (1995) 11 Cal.4th 434, 445.)
In this matter, the circumstances of the three criminal
acts alone are sufficient to support a finding of the
requisite criminal intent. Within a short period of time,
in a store that was not crowded, defendant touched the
buttocks of two different girls under the age of 14 years.
Although one of the touchings involved defendant sliding his
hand across Samantha’s bottom for a second, something that
could conceivably have been accidental, the other two
touchings involved a grabbing. Defendant asserts the
touchings were consistent with an intent to “tease, annoy
or satisfy curiosity.” This is probably true. However, they
are also consistent with an intent to arouse, appeal to, or
gratify defendant’s lust, passions, or sexual desires,
especially given that defendant chose to grab a sexual area
of the girls rather than some more innocuous part of their
bodies.
At any rate, in addition to the circumstance of the three
touchings within a short period of time, there is the fact
that defendant gave a misleading statement to the police
about remaining in the parking lot to check his receipt to
see if he had enough money in his account to make another
purchase. There is also the prior uncharged sexual offense,
which served the purpose for which Evidence Code section
1108 was enacted, i.e., to allow an inference that
defendant had a disposition to commit sexual offenses and a
further inference that he committed the charged offenses.
(See CALJIC No. 2.50.01.) Defendant argues the facts of the
uncharged offense are not sufficiently similar to those
charged in this matter to give that evidence any probative
value. Nevertheless, the evidence had some probative value
and, coupled with the other evidence, provided substantial
evidence of the intent necessary for a violation of Penal
Code section 288.
IV
Evidence Code Section 1108 and Equal Protection
As noted earlier, Evidence Code section 1108 provides that,
in a prosecution for a sexual offense, evidence that the
defendant committed other sexual offenses is not made
inadmissible by Evidence Code section 1101. (Evid. Code,
§ 1108, subd. (a).) Similarly, Evidence Code section
1109 provides that, in a prosecution for domestic violence,
evidence that the defendant committed other acts of
domestic violence is not made inadmissible by Evidence Code
section 1101. (Evid. Code, § 1109, subd. (a).)
However, Evidence Code section 1109 contains a presumption
of remoteness not found in Evidence Code section 1108.
Evidence Code section 1109, subdivision (e), states:
“Evidence of acts occurring more than 10 years before the
charged offense is inadmissible under this section, unless
the court determines that the admission of this evidence is
in the interest of justice.”
Defendant contends the absence of a comparable presumption
of remoteness in Evidence Code section 1108 is a violation
of equal protection. He argues the two offenses are similar
in that they both involve acts that are often committed in
secret, involve repetitive misconduct, and may involve a
special relationship between the victim and the abuser.
Therefore, defendant argues, there can be no rational basis
for treating them differently.
The People contend defendant has no standing to assert an
equal protection claim under the circumstances of this
case. “One who seeks to raise a constitutional question
must show that his rights are affected injuriously by the
law which he attacks and that he is actually aggrieved by
its operation.” (People v. Black (1941) 45 Cal.App.2d 87,
96.) Although the prior offense against Jessie occurred more
than 10 years before those charged in this matter, the
People argue the trial court retained discretion to admit
the evidence and, in light of the fact defendant did not
even argue remoteness in seeking to exclude the evidence,
it is likely the trial court would have found admission of
the evidence was in the interest of justice.
We are not persuaded. Evidence Code section 1109,
subdivision (e), creates a presumption of remoteness. If,
as defendant argues, equal protection requires that this
presumption apply as well to Evidence Code section 1108,
the presumption would have weighed in the trial court’s
exercise of its discretion under Evidence Code section 352.
We cannot say on this record that the trial court
necessarily would have admitted the evidence
notwithstanding this presumption. Thus, we shall consider
the merits of defendant’s challenge.
The constitutional guaranty of equal protection requires
that those similarly situated with respect to the purpose
of a particular law receive similar treatment under it.
(People v. Buffington (1999) 74 Cal.App.4th 1149, 1155.)
Thus, “[t]he first prerequisite to a meritorious claim
under the equal protection clause is a showing that the
state has adopted a classification that affects two or more
similarly situated groups in an unequal manner.” (In re Eric
J. (1979) 25 Cal.3d 522, 530.) If the defendant fails to
show the two affected groups are similarly situated, the
equal protection claim fails at the threshold. (Buffington,
supra, at p. 1155.)
Defendant has failed to demonstrate those accused of a
sexual offense are similarly situated to those accused of
domestic violence. Although the two offenses have
similarities, as defendant suggests, they also have
differences. Domestic violence need not involve sexual
conduct. It is also an offense in which the perpetrator and
victim are adults who are intimately familiar with each
other and are on, more or less, equal footing. Sexual
offenses all too often involve child victims and parties
who are unknown to each other. More importantly, those who
commit sexual offenses, especially against children, are
generally considered to suffer some type of psychological
problem and may not intend any physical harm to their
victims, whereas domestic violence, by definition, involves
“intentionally or recklessly causing or attempting to cause
bodily injury.” (Pen. Code, § 13700, subd. (a).)
Simply stated, the two groups of offenders are not
similarly situated. Hence, defendant’s equal protection
claim fails at the threshold.
V
CALJIC No. 2.50.01
The jury was instructed pursuant to CALJIC No. 2.50.01 as
follows:
“Evidence has been introduced for the purpose of showing
that the defendant engaged in a sexual offense other than
that charged in this case.
“‘Sexual offense’ means a crime under the laws of the
United States that involves any of the following:
“Any conduct made criminal by Penal Code Section 220. The
elements of this crime are set forth elsewhere in this
instruction.
“If you find that the defendant committed a prior sexual
offense, you may, but are not required to infer that the
defendant had a disposition to commit sexual offenses. If
you find that the defendant had this disposition, you may,
but are not required to infer that he was likely to commit
and did commit the crime or crimes for which he is now
accused; however, if you find by a preponderance of the
evidence that defendant committed a prior sexual offense,
that is not sufficient by itself to prove beyond a
reasonable doubt that he committed the charged crime.
“If you determine an inference properly can be drawn from
this evidence, this inference is simply one item for you to
consider along with all of the other evidence in
determining whether the defendant has been proved guilty
beyond a reasonable doubt of the charged crime. Unless you
are otherwise instructed, you must not consider this
evidence for any other purpose.”
Defendant contends this instruction violated his due
process right to be convicted on proof beyond a reasonable
doubt. He acknowledges the instruction states that
“propensity evidence is insufficient to return a conviction
when the evidence of prior sexual offenses is found to be
true `by a preponderance of the evidence.'” However, he
argues this statement in the instruction may be read to
imply that such propensity evidence is sufficient to prove
the charged offense if the prior sexual offense is proved
beyond a reasonable doubt. He argues “a reasonable juror
would so understand the instruction.” Defendant further
contends the instruction violates due process because “it
is doubtful that jurors could abide by the limitations it
places on the use of highly prejudicial evidence.”
We evaluate a claim of instructional error by examining
jury instructions as a whole and determining whether there
is a reasonable likelihood the jury misunderstood the
instructions in the manner suggested by defendant. (People
v. Clair (1992) 2 Cal.4th 629, 662-663.) In this instance,
we find no reasonable likelihood the jury would have
misconstrued or misapplied the language of this instruction
to convict defendant based on predisposition evidence alone
if it found such evidence was proved beyond a reasonable
doubt. Such a construction would ignore the language of the
instruction informing the jury that, “this inference is
simply one item for you to consider along with all of the
other evidence in determining whether the defendant has been
proved guilty beyond a reasonable doubt of the charged
crime.” Moreover, as defendant concedes, the Supreme Court
rejected a due process challenge to an earlier version of
CALJIC No. 2.50.01 (1999 rev.) in People v. Reliford (2003)
29 Cal.4th 1007, 1009 (Reliford) and, in doing so, noted
that the 2002 version used in this case is an improvement.
(Id. at p. 1016.) Defendant raises the issue here merely to
preserve it for federal review. We are bound by Reliford
(Auto Equity Sales, Inc. v. Superior Court, supra, 57
Cal.2d at p. 455) and therefore reject defendant’s due
process claim.
VI
Blakely Error and Full Consecutive Sentencing
Defendant was sentenced under the three strikes (Pen. Code,
§ 667) and one strike (Pen. Code, § 667.61)
laws. On counts one and three, he received terms of 15
years to life, tripled to 45 years to life. On count two,
he received a term of 25 years to life. The court ran these
terms consecutively, for an aggregate term of 115 years to
life. Citing Blakely, supra, 542 U.S. 296 [159 L.Ed.2d
403], defendant contends the trial court violated his Sixth
and Fourteenth Amendment right to trial by jury when it
imposed consecutive sentences based on findings of fact not
submitted to the jury or found beyond a reasonable doubt. We
find no error.
Applying the Sixth Amendment to the United States
Constitution, the United States Supreme Court held in
Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d
435] that, other than the fact of a prior conviction, any
fact that increases the penalty for a crime beyond the
statutory maximum must be tried to a jury and proved beyond
a reasonable doubt. (Id. at p. 490 [147 L.Ed.2d at p.
455].) The statutory maximum is the maximum sentence that a
court could impose based solely on facts reflected by a
jury’s verdict or admitted by the defendant. Thus, when a
sentencing court’s authority to impose an enhanced sentence
depends upon additional fact findings, there is a right to
a jury trial and proof beyond a reasonable doubt on the
additional facts. (Blakely, supra, 542 U.S. at pp. 303-304
[159 L.Ed.2d at pp. 413-414].)
In United States v. Booker (2005) 543 U.S. 220 [160 L.Ed.2d
621] (Booker), the court further explained: “If the
[sentencing scheme] could be read as merely advisory
provisions that recommended, rather than required, the
selection of particular sentences in response to differing
sets of facts, their use would not implicate the Sixth
Amendment. We have never doubted the authority of a judge
to exercise broad discretion in imposing a sentence within
a statutory range. [Citations.] . . . For when a trial
judge exercises his discretion to select a specific
sentence within a defined range, the defendant has no right
to a jury determination of the facts that the judge deems
relevant.” (Id. at p. 233 [160 L.Ed.2d at p. 643].)
Defendant argues the trial court in the present matter
imposed consecutive sentences based on findings, under
Penal Code section 667, subdivision (c)(6), that the three
offenses were not committed on the same occasion and did
not arise from the same set of operative facts. However, as
we shall explain in the next section, that was not the
basis of the trial court’s sentencing decision. Rather, the
court imposed consecutive sentences based on a finding that
defendant had time between the offenses to reflect on his
actions but proceeded anyway.
However, regardless of what findings the court used to
justify its sentencing decision, defendant’s Sixth and
Fourteenth Amendment arguments must be rejected. In People
v. Black (2005) 35 Cal.4th 1238 (Black), the California
Supreme Court held: “[T]he judicial factfinding that occurs
when a judge exercises discretion to impose an upper term
sentence or consecutive terms under California law” (id. at
p. 1244) does “not violate a defendant’s right to a jury
trial under the principles set forth in Apprendi, Blakely,
and Booker.” (Id. at p. 1254.) The holding in Black is
binding on this court. (Auto Equity Sales, Inc. v. Superior
Court, supra, 57 Cal.2d at p. 455.)
Defendant’s claim must also be rejected notwithstanding
Black. Because the trial court had discretion to impose
consecutive sentences, a decision to do so would not
implicate the Blakely line of cases. Those cases do not
prohibit judicial fact-finding in the exercise of
discretion to impose a sentence within the statutory maximum
range. Because there is no right to concurrent sentences,
the statutory maximum sentence where a defendant stands
convicted of multiple offenses is an aggregate consecutive
term. Consequently, the sentence imposed here did not
exceed the maximum sentence that could be imposed based
solely on the jury’s findings. Hence, the trial court’s
findings of fact to support consecutive sentences did not
violate defendant’s right to a jury trial.
VII
Conflicting Findings
Defendant contends the trial court made conflicting
findings regarding counts one and two. According to
defendant, the court found the three counts were not
committed on the same occasion and did not arise from the
same set of operative facts within the meaning of Penal Code
section 667, subdivision (c)(6). However, the court further
found the acts underlying counts one and two, the two
molests of Samantha, “occurred on the same occasion” within
the meaning of People v. Jones (2001) 25 Cal.4th 98
(Jones). Defendant contends these “contradictory” findings
suggest either an abuse of discretion or the court’s
confusion with its sentencing discretion. Either way,
defendant argues, the matter must be remanded for
resentencing.
We conclude there was no conflict in the court’s findings.
In Jones, the state high court considered Penal Code
section 667.61, the one-strike law that provides for life
sentences for certain sex offenses if committed under one
or more special circumstances, including kidnapping and use
of a deadly weapon. The former version of Penal Code
section 667.61 (added by Stats. 1994, ch. 447, § 1,
p. 2412) in effect from 1994 to 1998 (amended by Stats.
1998, ch. 936, § 9, eff. Sept. 28, 1998), is the
operative statute. (See Stats. 2006, ch. 337, § 33,
eff. Sept. 20, 2006.) Former subdivision (g) of that
section permitted only one such life term where multiple
qualifying offenses are “committed against a single victim
during a single occasion.” (Italics added.) In Jones, the
defendant committed several sexual offenses against the
victim over a two-hour period after grabbing her off the
street and forcing her into the back seat of a car. He also
threatened her with a knife. The jury found the defendant
guilty of five qualifying sexual offenses and found the
offenses were facilitated both by kidnapping and by use of
a deadly weapon. The trial court concluded three of the
offenses had occurred on separate occasions and imposed
three consecutive life terms. The Court of Appeal affirmed.
(Jones, supra, 25 Cal.4th at pp. 101-103.)
The Supreme Court reversed. The court specifically rejected
an interpretation of “single occasion” in Penal Code
section 667.61, former subdivision (g), consistent with the
definition of “separate occasions” found in Penal Code
section 667.6, subdivision (d). The later definition looks
to whether the defendant had a reasonable opportunity to
reflect on his actions between offenses. Instead, the court
concluded the Legislature “intended to impose no more than
one [life] sentence per victim per episode of sexually
assaultive behavior.” (Jones, supra, 25 Cal.4th at p. 107.)
According to the court, “for purposes of Penal Code section
667.61, subdivision (g), sex offenses occurred on a `single
occasion’ if they were committed in close temporal and
spatial proximity.” (Id. at p. 107.)
A similar standard has been applied to Penal Code section
667, subdivision (c)(6). In People v. Deloza (1998) 18
Cal.4th 585, the state Supreme Court resolved a conflict in
the Courts of Appeal as to whether the standard for
determining if multiple offenses occurred on the “same
occasion” for purposes of Penal Code section 1170.12,
subdivision (a)(6) (which is identical to Penal Code
section 667, subdivision (c)(6)) is the same as the
standard for determining if the defendant may be subjected
to multiple punishments under Penal Code section 654. The
court concluded it was not. The court indicated nothing in
either the language of the provision or its legislative
history “suggests the electorate intended these words to
have a special or peculiar import different from their
ordinary, generally understood meaning.” (Deloza, supra, at
p. 594.) According to the court, “[t]he phrase `committed
on the same occasion’ is commonly understood to refer to at
least a close temporal and spatial proximity between two
events, although it may involve other factors as well.”
(Ibid.)
Because the standards for finding whether multiple offenses
occurred on the same occasion under Penal Code section
667.61, former subdivision (g), and Penal Code section 667,
subdivision (c)(6), are essentially the same, the trial
court could not have found counts one and two occurred on
the same occasion for purposes of Penal Code section 667.61,
former subdivision (g), but did not occur on the same
occasion for purposes of Penal Code section 667,
subdivision (c)(6). However, that is not what the court
did. In its pronouncement of sentence, the court said: “The
court’s comments with regard to the consecutive sentence are
that he had time to reflect upon his behavior that he’d
engaged in in the card aisle before he re-offended in the
bakery aisle. And so as a matter of principle and as a
matter of justice to Samantha, the Court is declining to
exercise its discretion to run these two sentences Counts 1
and 2 concurrent.” (Italics added.) If, as defendant
suggests, the court had found counts one and two were not
committed on the same occasion and did not arise from the
same set of operative facts, it would have had no
discretion to sentence the offenses other than
consecutively. Thus, the court did not implicitly so find.
Although the court later said it was sentencing counts one,
two, and three “fully consecutive to each other pursuant to
Penal Code Section 667(c)(6),” this does not mean, as
defendant surmises, that the court was invoking its
mandatory duty to impose consecutive sentences. Rather, as
a number of cases have recognized, where the court finds
either that multiple offenses occurred on the same occasion
or arose from the same set of operative facts, the court
retains discretion under Penal Code section 667,
subdivision (c)(6), to impose consecutive sentences. (See
People v. Hendrix (1997) 16 Cal.4th 508, 514; People v.
Cartwright (1995) 39 Cal.App.4th 1123, 1140-1141.) Here,
the court exercised its discretion to sentence
consecutively based on the fact defendant had time to
reflect on his behavior but proceeded to molest Samantha a
second time. This was a sufficient basis for imposing
consecutive sentences. (People v. Coelho (2001) 89
Cal.App.4th 861, 886-888.)
VIII
Cruel and Unusual Punishment
Defendant contends the aggregate sentence of 115 years to
life amounts to cruel and unusual punishment. We disagree.
The infliction of cruel and unusual punishment is
prohibited by the federal and state Constitutions. (U.S.
Const., 8th Amend.; Cal. Const., art. I, § 17.) The
United States Supreme Court and the California Supreme
Court have adopted the proportionality test in evaluating
whether a three strikes sentence amounts to cruel and
unusual punishment. (Ewing v. California (2003) 538 U.S. 11
[155 L.Ed.2d 108] (Ewing); In re Lynch (1972) 8 Cal.3d 410
(Lynch).) The factors to be considered are: (1) the gravity
of the offense and the harshness of the penalty; (2) the
sentences imposed on other criminals in the same
jurisdiction; and (3) the sentences imposed for commission
of the same crime in other jurisdictions. (Ewing, at p. 22
[155 L.Ed.2d at p. 118]; Lynch, at pp. 425429.)
In Ewing, the court recognized increased incapacitation and
deterrence for career criminals were legitimate rationales
for California’s three strikes law. (Ewing, supra, 538 U.S.
at pp. 24-28 [155 L.Ed.2d at pp. 119-122].) The court
reasoned that in weighing the gravity of the defendant’s
offenses, “we must place on the scales not only his current
felony, but also his long history of felony recidivism. Any
other approach would fail to accord proper deference to the
policy judgments that find expression in the
[L]egislature’s choice of sanctions.” (Id. at p. 29 [155
L.Ed.2d at p. 122].) The court concluded the defendant’s
criminal record, which included three prior burglaries and
one robbery, typified the career criminal the Legislature
wanted to incapacitate. (Id. at pp. 20, 29-30 [155 L.Ed.2d
at pp. 116-117, 122-123].) “‘[T]he constitutionality of the
practice of inflicting severer criminal penalties upon
habitual offenders is no longer open to serious
challenge.'” (Id. at p. 25 [155 L.Ed.2d at p. 120], quoting
Oyler v. Boles (1962) 368 U.S. 448, 451 [7 L.Ed.2d 446,
450].)
Similarly, the California Supreme Court has focused on
deference to the Legislature and “whether the punishment is
grossly disproportionate to the defendant’s individual
culpability as shown by such factors as his age, prior
criminality, personal characteristics, and state of mind.”
(People v. Dillon (1983) 34 Cal.3d 441, 479.) Following
this standard, the California courts have consistently
upheld three strikes sentences against claims of cruel and
unusual punishment. (See, e.g., People v. Romero (2002) 99
Cal.App.4th 1418, 1433-1434 [upholding a third strike
sentence of 25 years to life for petty theft]; People v.
Byrd (2001) 89 Cal.App.4th 1373, 1376, 1382-1383 [upholding
a sentence of 559 years to life for 14 offenses, including
attempted murder]; People v. Cuevas (2001) 89 Cal.App.4th
689, 692, 693-694, 702 [upholding a sentence of 85 years to
life for three nonviolent bank robberies]; People v.
Cartwright, supra, 39 Cal.App.4th at pp. 1134-1137
[upholding a sentence of 428 years to life for 19 felony
offenses].)
Defendant recognizes the foregoing authorities and that
the United States Supreme Court and the courts of this
state have upheld the three strikes law against cruel and
unusual punishment claims. He raises the issue here “solely
to preserve his right to future relief in the event the
courts’ views on the matter change at some future date.”
Based on the authorities cited above, we reject defendant’s
cruel and unusual punishment challenge.
IX
Penal Code Section 647.6 — Annoying or Molesting A
Child
At our request, the parties filed supplemental briefs
addressing the question whether the trial court erred in
failing to give a lesser included offense instruction on
annoying and molesting a child in violation of Penal Code
section 647.6, subdivision (a).
Defendant contends this offense is a lesser included
offense of Penal Code section 288, subdivision (a) under
the accusatory pleading test and that failure to give the
instruction as requested by counsel was reversible error.
Relying on People v. Lopez (1998) 19 Cal.4th 282 (Lopez),
the People contend Penal Code section 647.6 is not a lesser
included offense of Penal Code section 288 under either the
elements or the accusatory pleading test. We conclude the
instruction would not have been appropriate.
The trial court has a sua sponte duty to instruct the jury
on lesser included offenses “if the evidence `raises a
question as to whether all of the elements of the charged
offense are present and there is evidence that would
justify a conviction of such a lesser offense.
[Citations.]’ [Citations.]” (Lopez, supra, 19 Cal.4th at
pp. 287-288.) Stated another way, “‘[a] criminal defendant
is entitled to an instruction on a lesser included offense
only if [citation] “there is evidence which, if accepted by
the trier of fact, would absolve [the] defendant from guilt
of the greater offense” [citation] but not the lesser.
[Citations.]'” (Id. at p. 288, quoting People v. Memro
(1995) 11 Cal.4th 786, 871.)
Two tests are used for determining whether an offense is a
lesser included offense, the “elements” test and the
“accusatory pleading” test. (Lopez, supra, 19 Cal.4th at p.
288.) Under the elements test, if the greater offense
cannot be committed without necessarily satisfying all the
elements of the lesser offense, the latter is a necessarily
included lesser offense. (Ibid.) Under the “accusatory
pleading” test, a lesser offense is included within the
greater offense if “the facts actually alleged in the
accusatory pleading, include all the elements of the lesser
offense.” (People v. Birks (1998) 19 Cal.4th 108, 117; see
also Lopez, at p. 289.)
Penal Code section 288 makes it a felony for any person
“who willfully and lewdly commits any lewd or lascivious
act . . . upon or with the body . . . of a child who is
under the age of 14 years, with the intent of arousing . .
. or gratifying the lust, passions, or sexual desires of
that person or the child. . . .” This section is violated by
any touching of the under-age child if it is accompanied by
the intent to arouse or gratify the sexual desires of
either the perpetrator or the child. (Lopez, supra, 19
Cal.4th at p. 289; People v. Martinez, supra, 11 Cal.4th at
pp. 450-452.)
Penal Code section 647.6 defines a misdemeanor offense for
“[e]very person who annoys or molests any child under 18
years of age. . . .” A violation of this section does not
require a touching (People v. Memro, supra, 11 Cal.4th at
p. 871) but does require “(1) conduct a `”normal person
would unhesitatingly be irritated by”‘ [citations], and (2)
conduct `”motivated by an unnatural or abnormal sexual
interest”‘ in the victim.” (Lopez, supra, 19 Cal.4th at p.
289.) The “words `annoy’ and `molest’ . . . are synonymous
and generally refer to conduct designed to disturb,
irritate, offend, injure, or at least tend to injure,
another person.” (Id. at p. 289.) The words “ordinarily
relate to offenses against children, with a connotation of
abnormal sexual motivation.” (Id. at p. 290.) Because the
prohibited conduct relates not to the child’s state of mind
but to the defendant’s objectionable acts, the courts
employ an objective test “to determine whether the
defendant’s conduct would unhesitatingly irritate or
disturb a normal person.” (Ibid.)
Employing these principles, the court in Lopez held that a
violation of Penal Code section 647.6 is not a lesser
included offense of Penal Code section 288 under the
elements test. (Lopez, supra, 19 Cal.4th at p. 292.) The
court reasoned that a violation of Penal Code section 288
“requires a touching, even one innocuous or inoffensive on
its face, done with lewd intent. [Penal Code] Section 647.6
. . . on the other hand, requires an act objectively and
unhesitatingly viewed as irritating or disturbing, prompted
by an abnormal sexual interest in children.” (Id. at p.
290.) The court noted that physical affection among
relatives is generally considered acceptable conduct, but if
it is imposed on an under-age child with the requisite lewd
intent, such conduct would violate Penal Code section 288.
However, the conduct may be objectively inoffensive
behavior, which would not violate Penal Code section 647.6.
The court therefore concluded the criminal conduct
prohibited by Penal Code section 288 could occur without
necessarily violating Penal Code section 647.6 because “not
every touching with lewd intent will produce the objective
irritation or annoyance necessary to violate [Penal Code]
section 647.6.” (Lopez, supra, at pp. 290-291.)
The court in Lopez also held that Penal Code section 647.6
was not a lesser included offense of Penal Code section 288
under the accusatory pleading test, because the pleading in
that case alleged the defendant “‘touch[ed] [the] victim’s
vaginal area outside of her underwear’ for purposes of his
sexual gratification.” (Lopez, supra, 19 Cal.4th at p.
293.) The court found that language did not necessarily
allege an objectively irritating or annoying act of child
molestation because “[a] female child who rides on her
father’s shoulders might have contact between her vaginal
area and her father’s neck or shoulders but that contact
would not unhesitatingly irritate or disturb a reasonable
person.” (Id. at p. 294.)
Applying the reasoning of Lopez, we hold that Penal Code
section 647.6 is not a lesser included offense of the
crimes here alleged.
In count one it was alleged that “defendant touched [the]
victim’s buttocks with his hand,” while in counts two and
three it was alleged “defendant grabbed and squeezed [the]
victim’s buttocks.”
The determinative question then is whether the alleged acts
of “touching” or “grabbing and squeezing” the victims’
buttocks necessarily constitute an objectively irritating
or annoying act. In determining whether Penal Code section
647.6 constituted a lesser included offense of Penal Code
section 288 under the elements test, the court in Lopez
rejected the argument that an objective appraisal of the
defendant’s conduct would include consideration of his
intent. (Lopez, supra, 19 Cal.4th at p. 291.) The same may
also be said under the accusatory pleading test, because
the same test applies for determining whether the conduct
is unhesitatingly annoying and disturbing.
Therefore, disregarding the alleged lewd intent, we
consider whether the defendant’s act of “touch[ing the]
victim’s buttock with his hand” is, standing alone,
unhesitatingly irritating or annoying. We conclude it is
not because it may be the act of a male family member who
touches a child’s buttocks with his hand in the course of
lifting or carrying the child or when encouraging a young
child by pushing her forward. Because that touching may
appear innocent and inoffensive to a normal observer, the
allegation fails to allege conduct necessarily within the
definition of Penal Code section 647.6.
Arguably, one may reach the same conclusion with respect to
the allegations of grabbing and squeezing the victims’
buttocks. There may be circumstances where such an act
might not be considered an objectively irritating or
annoying act of child molestation as where a parent or a
medical practitioner may be called upon to do so in a
legitimate effort to tend to a child’s needs. In fact, given
the test in Lopez, that is, by asking whether there may be
a setting where the act of which the defendant is accused
is not objectively irritating, most touchings of a child
could be accomplished under some circumstances that might
not be objectively irritating or annoying.
While we hold that Penal Code section 647.6 was not a
lesser included offense in this matter under the accusatory
pleading test, an instruction on that offense would not
have been appropriate here for another reason as well.
A trial court is required to instruct the jury on a lesser
included offense only if there is substantial evidence
that, if accepted by the jury, would absolve the defendant
of the greater offense, but not the lesser. (People v.
Waidla (2000) 22 Cal.4th 690, 733; People v. Memro, supra,
11 Cal.4th at p. 871.)
In this matter, the evidence was overwhelming that
defendant intentionally touched, grabbed, and squeezed the
buttocks of two young girls he did not know while he was
walking around a grocery store. The defense did not present
evidence and the prosecution’s evidence was such that,
under the circumstances, such touchings, if done
intentionally as the jury found they were, could only have
been done by a person harboring a lewd and lascivious
intent. There was no evidence to the contrary for the jury
to consider, much less substantial evidence that would
absolve the defendant of the greater offense. The fact that
he did not flee after these assaults does not change the
character of them once the jury concluded he intentionally
touched these children in the manner alleged in the
complaint. And the fact that he did not flee, but did move
his truck so that he had a better view of the entrance of
the store, is equally consistent with the thought that he
was watching the door for further opportunities to sexually
assault young girls.
One may, of course, speculate that defendant acted without
a lewd and lascivious intent by imagining scenarios under
which acts such as these might have occurred without the
required intent. “‘But speculation is not evidence, less
still substantial evidence.’ [Citations.]” (People v.
Waidla, supra, 22 Cal.4th at p. 735.) Thus, in the final
analysis, there was insufficient evidence to justify an
instruction on a lesser offense of violating Penal Code
section 647.6, even if such lesser offense had been
theoretically available under the accusatory pleading test.
There was no error.
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