Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. SWF021693. Dennis A. McConaghy, Judge. (Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.).
Mark L. Christiansen, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lise S. Jacobson, and Kristine A. Gutierrez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Codrington, J.
I
INTRODUCTION
Defendant Jesus Martin Flores (defendant) appeals from judgment entered following jury convictions for molesting his 10-year-old daughter on two separate occasions. The jury convicted defendant of two counts of committing lewd and lascivious acts with a child under the age of 14 by force or duress (counts 1 & 3; Pen. Code, § 288, subd. (b)) and one count of aggravated sexual assault by forcible sodomy (count 2; § 269, subd. (a)(3)). The trial court sentenced defendant to 23 years to life in prison.
Unless otherwise noted, all statutory references are to the Penal Code.
Defendant contends that, as to count 2, there was insufficient evidence of penetration and, as to counts 1 and 2, there was insufficient evidence of force or duress. Defendant also asserts that the trial court erred in failing to instruct on the lesser included offenses of nonforcible lewd and lascivious conduct (§ 288, subd. (a)), assault with intent to violate section 288 (§ 220), and assault with intent to commit sodomy (§ 220). Defendant further argues the trial court erred in terminating competency proceedings at defense counsel’s request, without conducting a competency hearing.
We conclude the trial court committed reversible error as to count 1, in not instructing sua sponte on the lesser included offense of nonforcible lewd and lascivious conduct (§ 288, subd. (a)). The judgment is affirmed in all other respects.
II
FACTS
Jane Doe’s mother (mother) and defendant divorced shortly after Jane Doe’s birth. In August and September 2005, when Jane Doe was 10 years old, defendant molested Jane Doe at her older brother’s home. The first time she told anyone about the molestation was in December 2005, when she told her brother’s girlfriend, Tiffany.
Jane Doe’s Interview
Denise Rodriguez (Rodriguez) of the Riverside Child Assessment Team interviewed Jane Doe on February 8, 2006. The interview was videotaped and shown to the jury. Jane Doe was 11 years old and in the sixth grade at the time of her interview. She stated that something bad happened to her, with her dad, on two occasions, in August and September 2005. Both incidents happened in the living room at her brother’s home. During the August incident, defendant touched her buttocks, breasts, and her genital area (the “pee part”) under her clothes. Defendant told her not to tell anyone what happened. At the time, her older brother was at the store and Jane Doe was left in defendant’s care.
During the September incident, defendant again touched her breasts, buttocks, and private parts. He also put his penis in her buttocks. Rodriguez asked Jane Doe if it hurt when defendant touched Jane Doe’s buttocks with his penis. After Jane Doe gave an unintelligible response, Rodriguez said, “Hu[]h?, ” and Jane Doe said, “Uh huh, ” while crying. Rodriguez asked Jane Doe to describe her clothes when defendant put his penis in her buttocks. Jane Doe said they were “bunched down, ” including her underwear. When defendant did this to her, he told her to lie down beside him because it was cold. Jane Doe lay on the floor, on her side, and defendant lay behind her, with a blanket on top of them.
When Jane Doe tried to push defendant away, she inadvertently touched his penis. Defendant told her, “Touch my Peter.” She did not touch it. Defendant tried to make Jane Doe touch his penis by grabbing her hand and pulling it toward his penis. Jane Doe tried to pull her hand away, but could not because defendant was “pulling hard.” She did not touch his penis. Jane Doe got up and defendant followed her. Rodriguez asked Jane Doe what made defendant stop. Jane Doe said, “I started moving and I got away from him and laid on the couch and he kept following me, and I said ‘Stop. I’m gonna tell on you.’ And I didn’t.” Defendant then ran to the bathroom and was in there for 10 minutes. About 25 minutes later someone came home. Later in the day or the next day she did not experience any bleeding or pain in her buttocks when going to the bathroom or sitting down.
The first time defendant molested Jane Doe, defendant told her not to tell anyone. The second time he molested Jane Doe, defendant asked her if she had told anyone about the previous incident. Jane Doe said “no, ” and defendant said, “good.” Defendant again told her not to tell anyone about the molestation. Jane Doe was afraid that if she told, defendant would get mad at her.
Jane Doe’s Testimony
Consistent with her recorded statement, Jane Doe testified at trial that the first time defendant molested her happened in August, when she was 10 years old. Defendant touched her genital area, buttocks, and breasts. The second incident happened in September, while she was watching TV with defendant. They were both lying on the floor. Defendant touched Jane Doe in the same places as he did during the first incident. During both incidents, defendant told Jane Doe not to tell anyone. After the two incidents, Jane Doe tried to act like nothing happened. She was scared and confused.
Defendant’s Interview
In April 2007, sheriff’s detective Darin Gray (Gray) interviewed defendant at the sheriff’s station. The interview was videotaped and shown to the jury. Defendant was not under arrest during his interview. He stated during his interview that he and mother had been divorced for 12 years. Jane Doe was currently living with her mother. Jane Doe was very intelligent and honest.
When asked if anything of a sexual nature happened between him and Jane Doe, defendant said that, on one occasion, Jane Doe lay down on defendant, and it was “more than what it should be.” It scared defendant. Jane Doe pulled her pants down and “[p]ut her rear end... I couldn’t believe it.” Defendant told Jane Doe to stop it but she would not stop. Defendant said he should have reacted differently and asked Gray to forgive him. Gray said defendant did not need to ask for forgiveness from him. Defendant said, “I messed up. I went the wrong way about it. [¶]... [¶] And I’m sorry. [¶]... [¶] I went too far.” “She pulled her rear end towards me and I attempted and then I stopped.” “I attempted to penetrate her, but I stopped myself.” Defendant again apologized. He claimed the incident happened very quickly. Defendant said Jane Doe touched him “[l]ike she’s never touched me before.” When asked to explain, defendant said she touched him in the groin area. Defendant acknowledged he should not have done what he did. “If, if you want; if you have to – put me in jail or do something....”
When asked how many times he sexually abused Jane Doe, defendant said, “[o]nce.” One time in August or September 2005. Defendant stated the incident happened during the evening, in his son Jeremiah’s living room, while defendant was lying down watching TV. Jane Doe’s mother left Jane Doe with defendant. The other children were sleeping. Jeremiah was not there. Jane Doe came into the living room, threw a blanket on defendant, and said it was cold. She then touched defendant and defendant told her to stop. She gave him a hug. Jane Doe pushed her rear end up against defendant and the two cuddled. She had her back to defendant. They were both on their sides.
Defendant further stated that during the incident Jane Doe tried to unbutton his pants and defendant helped her. Jane Doe pulled down her underwear. Defendant attempted to have sex with her. Defendant’s penis rubbed against Jane Doe’s hand. He stopped his penis from touching her buttocks. Defendant denied his penis went in. Jane Doe stopped it with her hand. Jane Doe then lay down next to defendant to go to sleep. Defendant got up and went to the bathroom.
Defendant denied molesting Jane Doe on two separate occasions. Defendant again admitted he “messed up.” “[T]o be truthful, I was aroused at first.” After the first time, he stopped. There was no second time. “I messed up. I should have [gone] about it a different way.” Defendant believed what he did was wrong because he was older and should have known better. “I’ll pay for my mistake. [¶]... [¶] I did wrong. [¶]... [¶]... I messed up. [¶]... [¶] Big time.” “I made a mistake.” Defendant again claimed it happened only once.
Dr. Horowitz’s Testimony
Dr. Susan Horowitz, a forensic physician at the Riverside County Regional Medical Center in the Child Abuse Unit, testified that usually child sexual abuse does not cause noticeable lasting physical injury, even if a child is examined right after abuse. Even if there is “full penetration into an anus, that would not necessarily leave any traumatic findings” or cause bleeding. If a child is seen within a day or two, Horowitz might see little tears or abrasions but these heal within a matter of days. Horowitz stated that healing takes place very, very quickly. By the time Jane Doe disclosed that she had been abused it was months later and Jane Doe was not experiencing any pain or bleeding. An exam several weeks after the sexual abuse would not have shown anything abnormal. This is why a forensic examination was not done on Jane Doe.
III
SUFFICIENCY OF EVIDENCE OF PENETRATION
Defendant contends that there was insufficient evidence of penetration as to count 2 (aggravated sexual assault by forcible sodomy). We disagree.
In determining whether there is sufficient evidence to support a conviction, this court reviews “the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence – that is, evidence which is reasonable, credible, and of solid value – such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578.) Furthermore, we “‘presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence, ’” and “‘resolve the issue in the light of the whole record....’” (Id. at p. 576.) “[U]nless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction. [Citation.]” (People v. Young (2005) 34 Cal.4th 1149, 1181.)
Penetration is an essential element of the crime of forcible sodomy. (People v. Ribera (2005) 133 Cal.App.4th 81, 85-86.) The term “sodomy” is defined in section 286, subdivision (a) as “sexual conduct consisting of contact between the penis of one person and the anus of another person. Any sexual penetration, however slight, is sufficient to complete the crime of sodomy.” “Lack of trauma to a victim’s rectum does not preclude a finding that the victim was sodomized.” (People v. Farnam (2002) 28 Cal.4th 107, 144.) Penetration may be established by circumstantial evidence. (People v. Adams (1993) 19 Cal.App.4th 412, 429.)
Here, substantial evidence supported the jury’s inherent finding that defendant penetrated Jane Doe’s anus, however slightly. Jane Doe acknowledged defendant’s penis touched her buttocks. She stated in her recorded statement the following.
“RODRIGUEZ: _____ boys and men, they have a pee part just like girls in the front.
Did he touch you with that, too?
“DOE: __________.
“RODRIGUEZ: Okay. He touched you with his pee part. Um, where did he touch – point – with his pee pee. The butt, okay. What did that feel like? Was there any hurting to your body? Did it hurt?
“DOE: _________.
“RODRIGUEZ: Hu[]h?
“DOE: Uh huh. (Crying).”
In an attempt to clarify that defendant put his penis in Jane Doe’s anus, the following dialogue took place.
“RODRIGUEZ: And um, when your dad put his pee part on your butt, was that inside where the poop comes out or just, or just in the middle? Inside where the poop comes out, okay. What did that feel like?
“DOE: ____
“RODRIGUEZ: And when your dad put his pee part inside your butt where the poop comes out, was there any moving with his pee part in his butt? Yes? What kind of movement?
“DOE: (no response)”
“RODRIGUEZ: Were you... how were your clothes when he put the pee part in your butt?
“DOE: They were bunched down.”
Although some of Jane Doe’s responses were unintelligible, her statement was videotaped and the jury likely viewed Jane Doe’s physical responses, such as nodding her head. It can reasonably be inferred from the above testimony, in conjunction with the following testimony, that defendant committed sodomy by putting his penis inside Jane Doe’s anus.
“RODRIGUEZ:... When he said, ‘Touch my Peter’ was that the time... he, ah [put] Peter in your butt?
“DOE: After.
“RODRIGUEZ: After. First he did the Peter in the butt and then after he said ‘Touch it.’
Jane Doe referred to defendant’s penis as “Peter.” Defendant had referred to it as “Peter” when he told Jane Doe to “Touch my Peter” and grabbed her hand in an attempt to force her to touch his penis.
“DOE: Um Hum (Affirmative).”
In addition, defendant stated during his recorded statement: “... I’m sorry. [¶]... [¶] I went too far.” “She pulled her rear end towards me and I attempted and then I stopped.” “I attempted to penetrate her, but I stopped myself.” It can be reasonably inferred from Jane Doe’s recorded statement that defendant did not stop until after he had penetrated Jane Doe’s anus. When Rodriguez asked Jane Doe if it hurt when defendant touched Jane Doe’s buttocks with his penis, Jane Doe initially gave an unintelligible response, but after Rodriguez said, “Hu[]h?, ” Jane Doe said, “Uh huh, ” indicating defendant had hurt her when penetrating her anus. A reasonable inference could be made that, because it hurt when defendant’s penis touched Jane Doe’s buttocks, defendant penetrated Jane Doe’s anus.
Citing the following testimony, defendant argues Jane Doe expressly denied experiencing any pain:
“RODRIGUEZ: ___Okay. Um... Later on, like later in the day, or the next day was there any hurting like when you go to the bathroom or you’re just sitting down to you[r] pee part or your butt?
“DOE: No.
“RODRIGUEZ: No? After you went to the bathroom was there any hurting or any bleeding to your body?
“DOE: _____”
This testimony does not establish that Jane Doe did not experience momentary pain when defendant penetrated Jane Doe’s anus. Rather, the testimony merely indicates that the pain did not last. Defendant conceded he “attempted to penetrate her” but claimed he stopped himself. Then defendant claimed Jane Doe stopped him from doing so with her hand. The jury could reasonably infer that, as defendant began to penetrate Jane Doe’s anus, Jane Doe experienced pain and pushed him away. The penetration may have been brief and minimal but it nevertheless was sufficient to satisfy the element of penetration required for a sodomy conviction.
IV
SUFFICIENCY OF EVIDENCE OF DURESS OR FORCE
Defendant contends there was insufficient evidence of force or duress to support his convictions on counts 1 (forcible lewd and lascivious acts; § 288, subd. (b)(1)) and 2 (forcible sodomy; § 269, subd. (a)(3)).
A. Count 1 (Lewd and Lascivious Acts)
In count 1, the People allege in the information that in August 2005, defendant committed a lewd and lascivious act upon Jane Doe by use of force, violence, duress, menace, and fear of immediate and unlawful bodily injury. Defendant concedes there was evidence defendant used force during the second incident in September 2005 (count 3), but argues there was no evidence he used force during the first incident in August.
Given this court’s limited role on appeal, defendant bears an enormous burden in claiming there was insufficient evidence to sustain his molestation convictions. If the verdict is supported by substantial evidence, we are bound to give due deference to the trier of fact’s findings and not retry the case ourselves. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) Applying this standard of review, we conclude the record discloses sufficient evidence to support defendant’s conviction on count 1.
Under section 288, subdivision (b)(1), any person who commits a lewd or lascivious act upon a child under 14 “by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person, is guilty of a felony....” The People argued at trial that defendant committed the lewd and lascivious acts in count 1 through duress, premised on Jane Doe’s young age, defendant’s paternal relationship with Jane Doe, and defendant telling her not to tell anyone about the molestation.
For purposes of section 288, subdivision (b), “duress” means “‘a direct or implied threat of force, violence, danger, hardship or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to (1) perform an act which otherwise would not have been performed or, (2) acquiesce in an act to which one otherwise would not have submitted.’ [Citations.]” (People v. Cochran (2002) 103 Cal.App.4th 8, 13 (Cochran); see also People v. Soto (2011) 51 Cal.4th 229, 246.) Duress is measured by a purely objective standard with the focus “on the defendant’s wrongful act, not the victim’s response to it.” (Soto, at p. 246.)
In People v. Pitmon (1985) 170 Cal.App.3d 38, 51, the court held that the defendant used duress to accomplish lewd acts on his eight-year-old victim. The Pitmon court explained: “The total circumstances, including the age of the victim, and his relationship to defendant are factors to be considered in appraising the existence of duress. We note that at the time of the offenses, Ronald was eight years old, an age at which adults are commonly viewed as authority figures. The disparity in physical size between an eight-year-old and an adult also contributes to a youngster’s sense of his relative physical vulnerability. In addition, defendant was a stranger whom Ronald encountered in a fairly isolated location. These factors all bear upon the susceptibility of a typical eight-year-old to intimidation by an adult.” (Ibid.; see also People v. Cardenas (1994) 21 Cal.App.4th 927, 940.)
As in Pitmon, in the instant case, Jane Doe was a young child, who was within the physical control of an older, physically larger and stronger adult. She was also isolated, in that she was alone with defendant. The circumstances supporting a finding of duress in the instant case are even stronger than in Pitmon because defendant was Jane Doe’s own father, as opposed to a stranger in Pitmon. In addition, defendant told Jane Doe not to tell anyone about the molestation.
This case is similar to Cochran, supra, 103 Cal.App.4th at pages 14-15, in which the court held there was sufficient evidence of duress to support the defendant’s convictions for aggravated sexual assault of a child and forcible lewd conduct with a child under 14 years of age. In Cochran the court concluded that, “This record paints a picture of a small, vulnerable and isolated child who engaged in sex acts only in response to her father’s parental and physical authority. Her compliance was derived from intimidation and the psychological control he exercised over her and was not the result of freely given consent.[] Under these circumstances, given the age and size of the victim, her relationship to the defendant, and the implicit threat that she would break up the family if she did not comply, the evidence amply supports a finding of duress.” (Id. at pp. 15-16.)
Likewise, here, the circumstances surrounding defendant’s lewd and lascivious conduct in August 2005 are sufficient to support a reasonable finding that defendant committed count 1 by means of duress.
B. Count 2 (Forcible Sodomy)
Defendant argues that, as with count 1, there was insufficient evidence of force or duress as to count 2 (aggravated sodomy). The prosecutor argued at trial that the aggravated sodomy offense was based on duress. Defendant claims that taking advantage of a position of trust may be grounds for imposing an upper term but does not constitute duress.
We conclude that there was sufficient evidence of duress. The same factors supporting a finding of duress as to count 1 also apply to count 2. Those factors include defendant holding a position of authority and control over Jane Doe, as her father, and Jane Doe being a young, vulnerable child, left alone in defendant’s care.
In addition, during the sodomy incident defendant asked Jane Doe if she had previously told anyone about the previous molestation incident in August. Jane Doe said “no, ” and defendant said, “good.” Defendant again told her not to tell anyone about the molestation. Jane Doe thought defendant would get mad if she told anyone.
There was also evidence defendant may have used physical force. Defendant stated in his recorded statement that Jane Doe used her hand to block him from committing sodomy against her. Jane Doe said she pushed defendant away. There is evidence that, nevertheless, he penetrated Jane Doe, causing her to experience pain. Even though defendant stopped penetrating Jane Doe when Jane Doe resisted, there is sufficient evidence to support a finding that defendant used duress, if not also force, to commit sodomy against Jane Doe.
V
INSTRUCTION ON LESSER INCLUDED OFFENSES
Defendant contends the trial court erred in failing to instruct sua sponte on several lesser included offenses. Specifically, as to counts 1 and 3, the trial court did not instruct on the lesser offenses of nonforcible lewd conduct (§ 288, subd. (a)) and assault with intent to violate section 288 (§ 220). As to count 2, the court did not instruct on assault with intent to commit sodomy (§ 220).
The trial court has a sua sponte duty to instruct on lesser included offenses if there is substantial evidence which would support a determination that the defendant is guilty only of the lesser offense. (People v. Parson (2008) 44 Cal.4th 332, 349.) An uncharged offense is included in a greater charged offense if either (1) the greater offense, as defined by statute, cannot be committed without also committing the lesser (the elements test), or (2) the language of the accusatory pleading encompasses all the elements of the lesser offense (the accusatory pleading test). (Ibid.) Under the elements test, a court determines whether, as a matter of law, the statutory definition of the greater offense necessarily includes the lesser offense. (Ibid.)
As our Supreme Court stated in People v. Hughes (2002) 27 Cal.4th 287, 365: “instructing on lesser included offenses shown by the evidence avoids forcing the jury into an ‘unwarranted all-or-nothing choice’” that could lead to an improper conviction. (Ibid.) The instruction need not be given if there is no evidence that the offense was less than the offense charged. (People v. Breverman (1998) 19 Cal.4th 142, 154 (Breverman).) “[T]he existence of ‘any evidence, no matter how weak’ will not justify instructions on a lesser included offense, but such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is ‘substantial enough to merit consideration’ by the jury. [Citations.] ‘Substantial evidence’ in this context is ‘“evidence from which a jury composed of reasonable [persons] could... conclude[]”’ that the lesser offense, but not the greater, was committed. [Citations.]” (Id. at p. 162.)
A. Invited Error
The People argue defendant forfeited his objection by inviting such error. The People claim defendant did not request instructions on additional lesser included offenses for tactical reasons and therefore defendant cannot now complain of instructional error in not giving such instructions.
“Under the doctrine of invited error, when a party by its own conduct induces the commission of error, it may not claim on appeal that the judgment should be reversed because of that error.” (People v. Barton (1995) 12 Cal.4th 186, 198; Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 212; 6 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Reversible Error, § 31, p. 489.) “‘The obligation to instruct on lesser included offenses exists even when as a matter of trial tactics a defendant not only fails to request the instruction but expressly objects to its being given.’ [Citations.]” (People v. Eilers (1991) 231 Cal.App.3d 288, 295, fn. 4 (Eilers).) Nonetheless, the trial court’s error in not giving instruction on a lesser included offense cannot be relied upon by defendants to justify a reversal because the commission of such error was “invited” by defendant. “The only effect of the defendant’s objection is to render that error ‘invited’ and therefore nonreversible.” (Eilers, at pp. 295-296; see also Barton, at p. 198; People v. Matian (1995) 35 Cal.App.4th 480, 484, fn. 4.)
Here, defense counsel told the trial court that, as to counts 1 and 3, defendant’s theory was that there was no touching and, if there was a touching, it was not done with force or duress. The court stated that nonforcible lewd and lascivious conduct (§ 288, subd. (a)) was not an option as a lesser offense because, either counts 1 and 3 happened with force, the way Jane Doe described them, or they did not happen at all, as defendant claimed. The court indicated there was insufficient evidence of nonforcible lewd and lascivious conduct because there was no evidence of consent. Defense counsel agreed. As a consequence, defense counsel requested the trial court instruct on the lesser included offense of battery as to counts 1 and 3. Defense counsel said she was not asking for any instruction on any other lesser offenses, such as simple assault or attempted lewd act by force on a child. As to count 2, defense counsel stated that she was only asking for instruction on the lesser included offenses of battery and attempted forcible sodomy.
There was no invited error as to the trial court not instructing on the lesser included offense of nonforcible lewd and lascivious conduct because the trial court told defense counsel it was not an option.
As to instruction on the lesser included offense of assault with intent to violate section 288, defense counsel invited error by telling the court defendant did not want instruction on any other lesser included offenses, including assault and attempted lewd act by force on a child. Defense counsel further stated this was because of the theory of defendant’s case. Even if there was no invited error, the trial court was not required to give the instruction sua sponte because there was no evidence that defendant only assaulted Jane Doe, without actually touching her. (Breverman, supra, 19 Cal.4th at pp. 154, 162.) The evidence did not support an instruction on the lesser included offense of assault with intent to violate section 288.
As to the trial court’s failure to instruct on the lesser offense on count 2 of assault with the intent to commit sodomy (§ 220), the trial court asked defense counsel if she was requesting instruction on any lesser offenses other than battery and attempted forcible sodomy. Defense counsel said no. This did not constitute invited error since, “under the doctrine of ‘invited error, ’ a trial court’s sua sponte obligation to instruct on the applicable law ‘could be negated only in that special situation in which the defense counsel deliberately and expressly, as a matter of trial tactics, objected to the rendition of an instruction.’ [Citations.]” (Eilers, supra, 231 Cal.App.3d at p. 295.) Here, there was no such objection to instruction on the lesser offense of assault with the intent to commit sodomy.
B. Counts 1 and 3 (Nonforcible Lewd and Lascivious Conduct)
In counts 1 and 3, defendant was charged with forcible lewd and lascivious acts (§ 288, subd. (b).) Count 1 is based on defendant touching Jane Doe with his hands on her breasts, buttocks, and genitalia. The incident occurred in August 2005. Count 3 is based on a second incident in September 2005, in which defendant again touched Jane Doe with his hands on her breasts, buttocks, and genitalia. He also touched her buttocks with his penis, and then grabbed Jane Doe’s hand and tried to force her to touch his penis.
As to counts 1 and 3, the trial court instructed the jury on the lesser included offense of battery (§§ 242, 243, subd. (a)). Defendant contends the trial court erred in failing to instruct sua sponte on the lesser offense of nonforcible lewd and lascivious acts (§ 288, subd. (a)). The only difference between the charged crimes and the lesser offense of nonforcible lewd and lascivious acts is that the charged crime required a finding of the use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury.
We agree the trial court erred in not instructing on the lesser included offense of nonforcible lewd and lascivious acts (§ 288, subd. (a)). The trial court indicated that instruction on the lesser offense was inappropriate because there was no evidence of consent and the instruction was inconsistent with the defense that defendant did not commit the charged acts. As to consent, our high court in People v. Soto, supra, 51 Cal.4th at page 246, recently held that consent is not a valid defense to the crime of forcible lewd and lascivious conduct upon a child. Furthermore, there was evidence defendant committed lewd and lascivious acts without force or duress. Regardless of any inconsistency with the defense, instruction on the lesser offense of nonforcible lewd and lascivious conduct should have been given.
As explained in Eilers, “‘When the charged offense... encompasses lesser offenses, and there is evidence from which the jury could conclude that the lesser offense had been committed, the court must instruct on the alternate theory even if it is inconsistent with the defense elected by the defendant under the rule obliging the court to instruct on lesser included offenses....” [Citation.] []” (Eilers, supra, 231 Cal.App.3d at p. 294.)
C. Harmless Error
Any error in failing to instruct sua sponte on a lesser included offense which is supported by the evidence “must be reviewed for prejudice exclusively under [People v. Watson (1956) 46 Cal.2d 818, 836]. A conviction of the charged offense may be reversed in consequence of this form of error only if, ‘after an examination of the entire cause, including the evidence’ (Cal. Const., art. VI, § 13), it appears ‘reasonably probable’ the defendant would have obtained a more favorable outcome had the error not occurred (Watson, supra, 46 Cal.2d 818, 836).” (Breverman, supra, 19 Cal.4th at p. 178.)
Count 1 is based on the theory defendant used duress to commit lewd and lascivious acts against Jane Doe. The only evidence of duress was Jane Doe’s young age, defendant’s authority and control over Jane Doe as her father, and defendant’s admonition not to tell anyone about the molestation. The trial court instructed the jury that “Duress means a direct or implied threat of force, violence, danger, hardship, or retribution that causes a reasonable person to do or submit to something that he or she would not otherwise do or submit to. When deciding whether the act was accomplished by duress, consider all the circumstances, including the age of the other person and her relationship to the defendant.”
Because there was no evidence of force and little evidence of duress as to count 1, it is reasonably probable defendant would have obtained a more favorable outcome had the jury been instructed on the lesser offense of nonforcible lewd and lascivious acts. (Breverman, supra, 19 Cal.4th at p. 178.) Therefore failure to instruct on the lesser offense as to count 1 was thus prejudicial error.
We cannot say the same as to count 3 since, in addition to essentially the same evidence of duress present in count 1, there was evidence defendant used force when molesting Jane Doe in September, including grabbing her hand to force her to touch defendant’s penis and committing forcible sodomy. There was also additional evidence of duress. During the September incident, defendant not only told Jane Doe not to tell anyone about the molestation, he also asked her if she had told anyone about the previous molestation incident in August. No doubt, because of this additional evidence of force and duress, defendant did not argue on appeal that, as to count 3, there was insufficient evidence of force or duress.
As to count 3, we conclude it is not reasonably probable the jury would have found defendant guilty of the lesser included offense of nonforcible lewd and lascivious acts, had the court instructed the jury on the lesser included offense.
D. Count 2 (Forcible Sodomy)
Defendant argues that, as to count 2 (forcible sodomy), the trial court erred in failing to instruct sua sponte on the lesser included offense of assault with intent to commit sodomy (§ 220). The trial court instructed the jury on the lesser included offenses of attempted sodomy by force and sodomy. The People argue there was no error because the evidence did not support such an instruction and, if there was error, it was harmless.
The lesser offense of assault with intent to commit sodomy requires an assault and intent to commit sodomy. (§ 220.) An assault is defined in section 240 as “an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.” The People do not dispute that assault with intent to commit sodomy is a lesser included offense of aggravated assault by forcible sodomy. Rather, the People argue there was insufficient evidence to support the instruction.
The People claim that, if the jury believed defendant’s recorded statement, it could not have found him guilty of the lesser offense of assault with intent to commit sodomy. Defendant stated in his recorded statement that he attempted to commit sodomy and Jane Doe initiated the sexual act. Defendant argues that, since there was no evidence the sodomy was committed against Jane Doe’s will, there was insufficient evidence to support instruction on assault with intent to commit sodomy. And if the jury did not believe defendant, the evidence supported a finding of sodomy by force and duress.
We conclude there was sufficient evidence to support instruction on the lesser offense of assault with intent to commit sodomy. Nevertheless any error in not giving instruction on the lesser offense was harmless. We cannot say “it appears ‘reasonably probable’ the defendant would have obtained a more favorable outcome had the error not occurred.” (Breverman, supra, 19 Cal.4th at p. 178, quoting People v. Watson, supra, 46 Cal.2d at p. 836.) There was substantial evidence of sodomy by force and duress. Jane Doe stated she used her hand to deflect defendant’s penis and experienced pain when he touched her with his penis. Furthermore, the jury rejected the lesser included offenses of attempted sodomy by force and sodomy. Therefore it is not reasonably probable that the jury would have found defendant guilty of the lesser included offense of assault with intent to commit sodomy, had the trial court instructed on it.
VI
COMPETENCY EXAMINATION
Defendant contends the trial court committed reversible error per se by not proceeding with a court-ordered competency examination to determine whether he was competent to stand trial. Defendant argues that the trial court erred in aborting the competency proceedings without appointing a second doctor, receiving evaluation reports, and holding a competency hearing.
A. Background Facts
Prior to trial, on February 25, 2008, defense counsel Roland Fairfield (Fairfield) made an oral motion for a section 1368 competency examination of defendant. Fairfield informed the court that he was declaring a doubt as to defendant’s competency to stand trial. Without any further comment or findings, the court ordered the proceedings suspended. The court appointed a doctor to examine defendant and report on defendant’s competency at the next hearing in April 2008.
At the hearing on April 10, 2008, new defense counsel Lorene Mies (Mies) told the court that she wanted to withdraw the former defense counsel’s request for section 1368 competency hearing. Mies further requested reinstatement of the criminal proceedings. The court stated that this could not be done because section 1368 proceedings had already been initiated. Mies told the court that defendant had not been evaluated and prior counsel had passed away. Mies further stated that the day before the April 10, 2008, hearing, she spoke to defendant for a significant period of time. She also spoke to him before the hearing on April 10, 2008. Mies told the court she believed there were no grounds for a section 1368 competency evaluation.
The trial judge stated that he was not sure he could vacate the previous order initiating section 1368 competency proceedings. He took a break in the proceedings to research the matter. After a brief recess, the court noted that Mies had indicated she had not observed anything that would cause her to doubt defendant’s ability to stand trial. Mies agreed this was correct. The court concluded that, after reviewing case law on the matter, “unless the Court itself had observed something that would tend to make the Court doubt the defendant’s competency to stand trial, and in the absence of any other substantial evidence that the defendant is incompetent to stand trial, that once the matter is referred under 1368, the parties may ask to rescind that referral.”
The court further concluded that it could rescind the competency hearing order in the instant case. The court noted that it had not seen anything that would indicate that defendant was incompetent to stand trial. The prosecutor stated she also had not observed anything indicating defendant was incompetent. The court noted that the only indication that defendant was incompetent was his previous attorney’s representation that defendant might not be competent, and that attorney had passed away. Since the court, prosecutor, and defendant’s current attorney had not observed anything that would substantiate Fairfield’s representation that defendant might be incompetent, the trial court rescinded the section 1368 order and reinstated the criminal proceedings.
B. Applicable Law
“The due process clause of the federal Constitution’s Fourteenth Amendment prohibits trying a criminal defendant who is mentally incompetent. [Citations.] A defendant is deemed competent to stand trial only if he ‘“has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding”’ and ‘“has a rational as well as factual understanding of the proceedings against him.”’ [Citation.]
“When a trial court is presented with evidence that raises a reasonable doubt about a defendant’s mental competence to stand trial, federal due process principles require that trial proceedings be suspended and a hearing be held to determine the defendant’s competence. [Citations.] Only upon a determination that the defendant is mentally competent may the matter proceed to trial. [Citation.]
“California law reflects those constitutional requirements. Section 1368, in subdivision (a), requires a trial court to suspend criminal proceedings at any time ‘prior to judgment’ if the court reasonably doubts ‘the mental competence of the defendant.’ A defendant can create reasonable doubt through substantial evidence of mental incompetence, or the trial court can raise the issue on its own. [Citations.] Section 1369 provides for the appointment of psychiatrists as well as licensed psychologists to assess the defendant’s mental competence (id., subd. (a)); and it allows both the defense and the prosecution to present evidence to either support or counter a claim of the defendant’s mental incompetence to stand trial (id., subds. (b)-(d)).
“As to who has the burden of proof on the question of the defendant’s mental competence, section 1369, subdivision (f), states in part: ‘It shall be presumed that the defendant is mentally competent unless it is proved by a preponderance of the evidence that the defendant is mentally incompetent.’ Thus, under California law, when a trial court ‘prior to judgment’ (§ 1368, subd. (a)) suspends criminal proceedings and holds a mental competency hearing, it is the defendant who bears the burden of establishing lack of competence (§ 1369, subd. (f); [citation.]” (People v. Ary (2011) 51 Cal.4th 510, 517-518 (Ary).)
C. Discussion
Defendant argues the trial court could not rescind its previous order staying the criminal proceedings and requiring a competency evaluation of defendant under section 1368. The People argue that rescinding the section 1368 order was proper because there was insufficient evidence of incompetency when the order was made. We agree. At the time of the initial order and during the subsequent hearing on the matter, there was insufficient evidence of incompetence to raise a reasonable doubt as to defendant’s competency to stand trial. (People v. Lewis (2008) 43 Cal.4th 415, 525 (Lewis).)
The California Supreme Court explained in Lewis that “‘Both federal due process and state law require a trial judge to suspend trial proceedings and conduct a competency hearing whenever the court is presented with substantial evidence of incompetence, that is, evidence that raises a reasonable or bona fide doubt concerning the defendant’s competence to stand trial.’” (Lewis, supra, 43 Cal.4th at p. 524, quoting People v. Rogers (2006) 39 Cal.4th 826, 847; see also Ary, supra, 51 Cal.4th at p. 517.) The court in Lewis added that, “... to be entitled to a competency hearing, ‘a defendant must exhibit more than bizarre... behavior, strange words, or a preexisting psychiatric condition that has little bearing on the question of whether the defendant can assist his defense counsel. [Citations.]’” (Lewis, at p. 524, quoting People v. Ramos (2004) 34 Cal.4th 494, 508.)
In Lewis the defendant argued there was substantial evidence of the defendant’s incompetency to stand trial, “consisting of trial counsel’s declaration of a doubt that defendant was able to rationally assist in his defense; the opinion of defense psychologist Dr. Crinella that defendant’s brain functioning was abnormal; and defendant’s irrational and counterproductive behavior at trial.” (Lewis, supra, 43 Cal.4th at p. 525.) The court in Lewis held this was not enough to require a competency hearing. (Ibid.)
In the instant case there was far less evidence of defendant’s incompetency. There is nothing in the record of any incompetent or even bizarre behavior. There is merely the suggestion by defendant’s attorney, Fairfield, that defendant might be incompetent. Fairfield told the trial court, without elaboration, that he had a doubt as to defendant’s competency. In Lewis, supra, 43 Cal.4th at page 525, our high court stated: “[A]lthough a defense counsel’s opinion that his client is incompetent is entitled to some weight, such an opinion alone does not compel the trial court to hold a competency hearing unless the court itself has expressed a doubt as to the defendant’s competence.”
Here, the trial court was not required to proceed with incompetency proceedings because the trial court did not state it had a doubt as to defendant’s competency and there was no substantial evidence at the February hearing that defendant lacked competence to stand trial. (Ary, supra, 51 Cal.4th at p. 513.) Furthermore, at the subsequent April hearing, the court confirmed there was no evidence that defendant was incompetent.
It is unclear why defendant’s previous attorney thought defendant might be incompetent since the attorney passed away after the initial hearing and before the second hearing two months later. However, the prosecutor, trial judge, and defendant’s new attorney all agreed defendant did not appear to be incompetent to stand trial. Because there was no evidence defendant was incompetent to stand trial, and the court confirmed this at the second hearing, the trial court appropriately vacated its initial unsubstantiated order initiating competency proceedings.
This case is distinguishable from those cases in which the trial court properly ordered competency proceedings based on substantial evidence raising a reasonable doubt as to the defendant’s mental competence. (Ary, supra, 51 Cal.4th at p. 513.) Defendant relies on People v. Hale (1988) 44 Cal.3d 531, for the proposition that once the trial court has ordered a competency hearing, the trial court cannot vacate the order, even if the trial court later believes the defendant is no longer incompetent. Generally this is true, but this assumes the trial court properly ordered a competency hearing founded on the presentation of substantial evidence of incompetency. (Id. at p. 541.) Here, there was never any substantial evidence of defendant’s incompetency presented to the court, either at the initial February hearing or subsequent April hearing. Furthermore, at the April hearing, this became apparent. Therefore, the trial court appropriately vacated the unfounded competency hearing order and reinstated the criminal proceedings.
Defendant also cites the recent case of Ary, supra, 51 Cal.4th at pages 16-17, for the proposition that the trial court’s failure to hold a competency hearing cannot be rectified by remanding the case for a retrospective competency hearing. Ary is inapposite because in the instant case there was no error in not conducting a competency hearing since there was no substantial evidence of incompetency. We conclude the trial court did not violate defendant’s due process rights by withdrawing the order upon verifying there was no evidence of defendant being incompetent to stand trial.
VII
DISPOSITION
Defendant’s conviction on count 1 is reversed based on the failure to instruct sua sponte on the lesser included offense of nonforcible lewd and lascivious conduct (§ 288, subd. (a)). We remand with instructions that the people may, if they choose, retry appellant on count 1, within 60 days after the filing of the remittitur in the trial court pursuant to section 1382, subdivision 2, unless time is waived by defendant, but if the People do not choose the retrial option, the trial court is to resentence defendant on counts 2 and 3.
The judgment is affirmed in all other respects.
We concur: Hollenhorst Acting P.J., McKinster, J.