Opinion
F075921
10-16-2019
THE PEOPLE, Plaintiff and Respondent, v. TONY MAURICE LANG, Defendant and Appellant.
Mark Alan Hart, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Michael Chamberlin, Amanda D. Cary and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. MF012352A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. John W. Lua, Judge. Mark Alan Hart, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Michael Chamberlin, Amanda D. Cary and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Tony Maurice Lang was convicted by jury as charged in count 1 of oral copulation with a person under age 16 while being over age 21 (Pen. Code, § 288a, subd. (b)(2)); in count 2 of dissuading a witness (§ 136.1, subd. (a)(1)); and in count 3 of lewd and lascivious conduct with a child 14 or 15 years old while being at least 10 years older than the victim (§ 288, subd. (c)(1)). Lang was sentenced to five years eight months in prison, with credit for 317 days in custody. Various fees and fines were imposed, he was ordered to register as a sex offender (§ 290), and a criminal protective order was imposed.
All further statutory references are to the Penal Code unless otherwise stated.
On appeal, he contends the trial court erred in denying a Kelly hearing as to general scientific acceptance of the TrueAllele software utilized in the present case to decipher DNA evidence. He also contends there is insufficient evidence he harbored lewd intent when he touched the victim over her clothing, and that the trial court erred when it failed to instruct on battery as a lesser-included offense to lewd conduct. We find no error and affirm.
People v. Kelly (1976) 17 Cal.3d 24 (Kelly).
STATEMENT OF THE FACTS
Jane Doe was born in October of 2001. She met Lang when she was six or seven years old and living with her family in Ohio. At one point, Doe lived an entire school year with her biological father; later she lived in Ohio with Lang, her mother, A.B., her grandmother, and her two brothers.
Later A.B. and Lang moved to Boron, California. Doe joined them approximately two months later. For a time, both before and after the move, Doe and A.B. were not on speaking terms because A.B. had promised Doe she could live with her biological father again, but then changed her mind. Lewd and Lascivious Conduct
One evening, around late spring of 2016, Lang came into Doe's room to check on her; Doe had her own bed but shared the room with her brothers. Doe suffered from severe asthma with "bad breathing problems," and if she started to cough while sleeping, it was hard for her to wake up. Lang woke Doe and gave her something to drink before she went back to sleep.
Around midnight, Lang came into Doe's room again, and this time touched her over her clothing between her legs in "the middle" in her "swimsuit area." Doe was uncertain whether the touching lasted less than a minute. Neither Lang nor Doe said anything. After Lang left the room, Doe opened her eyes and saw that her brothers were still asleep. Doe was scared and wanted to go back to her biological father. She was also sad, as she had thought of Lang as her real father for a long time. Doe did not tell anyone what had happened. Forcible Oral Copulation
Sometime in early December of 2016, before the Sadie Hawkins dance at school, Doe had a coughing episode. Lang came into her room, gave her a drink, and encouraged her to take a breathing treatment. Doe did so and went to sleep. By this time, the family had moved and Doe had her own bedroom.
Later that night, Lang came into Doe's room and lay down next to her, scaring her. Lang left when he heard a noise, and Doe fell asleep again.
Lang came into Doe's room again, lay down on her bed, and this time pulled her head down, forcing her to orally copulate him. This continued for a few minutes, until she had something "sour and nasty" in her mouth. Doe did not scream or say anything, and Lang left without saying anything as well. After Lang left, Doe spit what was in her mouth onto the carpet. She then sat next to a small trash bin in her room and stayed there, thinking she might vomit. Doe's Response
The following morning, Doe told her boyfriend what had happened. He encouraged her to tell someone so she could get help.
Doe also told Tamara C., one of her mother's friends. On the day of the Sadie Hawkins school dance, Doe went to Tamara's house so Tamara could do Doe's hair and makeup. While there, Doe told Tamara what had happened, that she was scared, ashamed and sad, and that she was not sure what to do, as she did not want to get anyone in trouble. When Tamara mentioned calling the police, Doe was scared that no one would believe her. Tamara described Doe as "crying," "shaking pretty bad," and emotional.
At Tamara's urging, Doe attended the dance for approximately an hour and half, but then returned to Tamara's house. By this time, Tamara's mother, Becky C. was there and Doe described to her what had happened and that she was afraid to go home. Becky described Tamara as "[v]ery upset, shaking, bawling, and trying to catch her breath." When Becky said that law enforcement needed to be called, Doe hesitated as she was afraid of what they would do. Becky contacted law enforcement and when deputies arrived, Doe was "shaking, very nervous, crying." Law Enforcement Response/Pretext Call
On December 10, 2016, Deputy Sheriff James Rupe responded to the call and spoke to Doe. He then set up a recorded pretext telephone call between Doe and Lang, which occurred at 1:43 a.m. At the time, Lang and A.B. thought Doe was spending the night at Tamara's house.
In the telephone call, Doe told Lang she did not want what had happened that Tuesday to happen again. Lang asked what she was talking about, and Doe responded, "I don't want you to touch me no more." Lang asked who was there, but Doe said she was alone in the bathroom. Lang then said, "Ok. You got a deal." Lang repeatedly asked Doe who was there and accused her of lying when she responded, "Nobody." When Doe said she did not want to come home because she was scared, Lang said, "I swear to you, [Doe], I won't bother you. But who there?" When asked, Lang again promised he would not touch her again. Doe cried when the call ended, and when Deputy Rupe asked what was wrong, Doe said "My mom really loves him."
Deputy Rupe then went to Doe's house and seized the rug, trash can and sheets in Doe's room. Deputy Rupe spoke with Lang, who spontaneously said something like, "Is this what she's going to do to get back with her father?" Lang's Police Interview
In a Mirandized, recorded interview at the police station, Lang stated he had been Doe's stepfather for eight years. Lang stated that it was "impossible" for him to have touched Doe's vagina in April, because she shared a room at the time with her two brothers. Lang said both brothers had witnessed Doe telling Lang things that were impossible, "[l]ike she would wake up and say, 'I had an inappropriate dream about you'...." After Deputy Rupe told Lang about the allegation that Lang had forced Doe to orally copulate him, Lang no longer wished to speak and the interview was terminated. Lang's Telephone Calls from Jail
Miranda v. Arizona (1966) 384 U.S. 436.
On December 12, 2016, Lang made three telephone calls from jail to A.B. The calls were recorded and played for the jury. In the first, at 11:32 a.m., Lang opined that Doe was trying to get back with her real father. During the call, Lang related an episode in which Doe thought her brother was touching her when he was simply waking her up during an asthma episode while Lang went to get some water for her. A.B. stated that, if Doe was lying to get to her father, "she could fuckin' go." Lang encouraged A.B. to tell Doe this and "then make a deal where she's drop this and get me outta here and she go."
Approximately and hour and a half later, in the second call, A.B. told Lang, "She's still saying' the same thing" "[t]hat it happened." A.B. said Doe denied the occurrence regarding her brother.
At this point during the call, A.B. said, apparently to Doe, "He's lookin' at 10 years. Sitting in prison. Ok? ... So if this is a lie, I need to know now. Because this is ten years that you're gonna ruin somebody's life because of a fucking lie.... Are they going to find DNA on that carpet or is it going to come back that there's nothing there?" Doe's response was unintelligible.
Lang then asked Doe if she wanted to fight him in court and said he would have an attorney. Doe said she did not recall the incident with her brother. During the call, Doe said that she did not want Lang to go to prison for 10 years, but also said, "I know what happened" and repeatedly asked "[r]emember what you did?"
Lang told Doe he was willing to go to counseling and, if she wanted to be with her father, he was willing to help her with that. Lang warned Doe that "[t]he cops ain't gonna help you. They gonna just lock me up and they gonna throw you to the side." Doe said she was willing to go with A.B. to, in Lang's words, "solve this problem" so that "we can go to a medical doctor and get help[.]"
Lang then told Doe that A.B. could not pay the rent by herself and Doe had to retract her story so that Lang could get out and "come help you all" as they were about to become homeless. Lang said, "I'm not sayin' your story isn't true, okay" and he promised not to come near her or even talk to her if she did not want him to. Lang then told Doe he knew she wanted to have sex and "spend the night with some guy," and he could help her with that too.
After A.B. indicated that she took the telephone off speaker, Lang asked her, "You ok with that," and then said "There's a lot you don't know mommy, 'cause I been relyin' on [Doe] to tell you herself." Lang told A.B. that Doe talks to him because A.B. scares her. A.B. assured Lang that Doe was willing to take back her story, and they would do so.
At 6:17 p.m., in the third call, A.B. said that Doe was willing to retract her story. Lang suggested that, when "they" ask why, Doe should say that she missed her father and was trying to use Lang to get to him. A.B. said that she called the district attorney's office and was told that they would have to go through the arraignment and then wait for the evidence to come back. Doe's Letter Retracting Allegations
On March 2, 2017, A.B. had Doe write a letter to "Sheila Johnson," whom she did not know. A.B. wrote the letter, telling Doe to reword it, write it in her own handwriting, and sign it. A.B. had asked Doe to write the letter because her brothers no longer had a father figure in their lives, they would no longer have a house, and their lives were "messed up" because of Doe. This made Doe feel "really bad." The body of the letter stated:
Sheila Johnson was defense counsel in the present case.
"I lied on my step dad. I did it while he was sleeping and I'm sorry but I wanted to go to my real dad's and my mom wouldn't let me. My step dad told me to tell my mom and I was scared to so I blamed him to a friend instead. I do not want to testify in court. I just want this to be over."DNA Testing
Police collected known reference oral swab samples from Doe and Lang, as well as samples from the trash can, rug and bedsheets in Doe's room. The bedsheet sample was extracted and separated into a sperm cell sample and an epithelial cell sample to perform DNA testing. The sperm sample contained only one DNA profile, which matched Lang's DNA profile and the match was found to be very rare in various populations. The epithelial sample was a mixture that consisted of two DNA profiles. The mixture was analyzed by the TrueAllele software and one profile was found to match Lang's profile and, again, the match was found to be very rare in various populations. The second profile in the mixture was too incomplete to allow matching, but the three alleles identified in the profile were consistent with three of the alleles in Doe's profile. The rug and trash can were not tested due to resource allocation but were still available for testing at the time of trial. Defense
The TrueAllele software program will "exclude[]" even true donors to a sample when not enough of the profile exists to make a match.
One of Doe's younger brother's, Tyler, stated that Lang was a good dad and had never done anything inappropriate toward Doe. One time, around May of 2016, Tyler woke Doe up from her sleep because she was coughing. When Doe woke up, she said it felt like someone was having sex with her, but Tyler did not see anyone. When asked about Doe's truthfulness, Tyler stated, "If she doesn't care about it, ... she won't tell the truth, but if she cares about it, she will." Tyler testified that Doe told her mother in 2016 that she wanted to stay with her father. This did not occur during a fight, but that they were just talking.
DISCUSSION
I. ADMISSION OF EVIDENCE DERIVED FROM TRUEALLELE PROGRAM
Lang contends the trial court erred when it denied the defense a Kelly hearing prior to the admission of DNA analysis obtained by the Kern County Sheriff's Department using a computer software program called "TrueAllele." Lang alleges that the trial court mistakenly ruled, without citation to authority, that the TrueAllele procedure did not require a Kelly hearing because TrueAllele had been accepted in California courts. Lang contends this left the defense without a viable way of challenging admission of the prosecution's expert testimony. We find no prejudicial error. Background
Lang filed a motion in limine requesting, inter alia, that, if the People wished to introduce DNA evidence and an analysist's findings, they be entitled to a Kelly hearing. The People filed a motion to admit DNA analysis conducted by Brooke Ramirez of the Kern Regional Crime Laboratory, who utilized the "Cybergenetics TrueAllele Casework System" in testing the bedsheets belonging to Doe. The motion explained that the TrueAllele program
"is a computerized DNA interpretation system that objectively infers genetic profiles from all types of DNA samples. These profiles can then be automatically matched against available references or large databases, producing informative match statistics that are easy to explain and report. The system further eliminates any potential bias because it eliminates the human element of potential bias, and furthermore develops profiles of the evidentiary samples without considering the 'known' samples of suspects and victims. Furthermore, the TrueAllele Casework system does not need to disregard data by use of analytical thresholds to simplify things for the analysis, as is the case with human review. Rather, the TrueAllele Casework system incorporates all of the data in developing profiles and arriving with match statistics."The motion went on to state that,
"[i]n many ways, the TrueAllele Casework system is merely a combination of scientifically accepted procedures and principles that incorporate genetics, computer engineering, probability, and the product rule. However, to the extent that the TrueAllele Casework system's application of these principles is deemed novel, there is considerable research that is published by credible sources, and is a product of the scientific community which validates the reliability of the TrueAllele System and demonstrates its acceptance in the scientific community."
At the hearing on the motion, the trial court noted that the issue of how to handle the anticipated DNA evidence arose earlier in chambers, "as well as the analysis that was administered, specifically the TrueAllele procedure," and that the trial court had informed counsel that the TrueAllele system "has been utilized throughout California generally and in this courtroom specifically on no less than four or five occasions." The trial court continued, stating that, "[t]o the extent that there is a request for a Kelly [hearing], this Court finds that it has already been accepted by courts in this jurisdiction, as well as in others, and therefore does not require a Kelly hearing." The court stated it would allow an Evidence Code section 402 hearing (402 hearing) outside the presence of the jury on the qualifications of the anticipated criminalist.
A 402 hearing was subsequently held as to criminalist Brooke Ramirez's qualifications. The trial court found Ramirez qualified to render an opinion in DNA analysis and interpretation. In her testimony, she described the TrueAllele program as "very accurate." She testified they had done an internal validation and there have also been "external validations by the company that created TrueAllele, as well as other forensic laboratories that are using it in this nation." Applicable Law and Analysis
Lang contends the trial court erred in admitting the DNA evidence. Specifically, he contends the method used to calculate the evidence, through the TrueAllele computer program, has not achieved general scientific acceptance and required a Kelly hearing.
As relevant here, the Kelly test can be summarized as follows: The "admissibility of expert testimony based on 'a new scientific technique' requires proof of its reliability—i.e., that the technique is '"sufficiently established to have gained general acceptance in the particular field to which it belongs"' [citation]." (People v. Venegas (1998) 18 Cal.4th 47, 76 (Venegas).) Evidence obtained by use of a new scientific technique is admissible only if the proponent of the evidence establishes at a hearing (sometimes called a first prong Kelly hearing) that the relevant scientific community generally accepts the technique as reliable. (Venegas, supra, at p. 76.) However, proof of such acceptance is not necessary if a published appellate opinion affirms a trial court ruling admitting evidence obtained through use of that technique, at least until new evidence is admitted showing the scientific community has changed its attitude. (People v. Nelson (2008) 43 Cal.4th 1242, 1257 (Nelson); Kelly, supra, 17 Cal.3d at pp. 30-32.) As such, the question before us is whether using the TrueAllele program to conduct DNA analysis in this case is a new scientific technique requiring the court to hold a first prong Kelly hearing.
"Forensic DNA analysis is a comparison of a person's genetic structure with crime scene samples to determine whether the person's structure matches that of the crime scene sample such that the person could have donated the sample." (Nelson, supra, 43 Cal.4th at pp. 1257-1258.) Our Supreme Court has repeatedly described the basic methodology behind modern DNA testing, which has long been accepted in court. (See, e.g., Venegas, supra, 18 Cal.4th at pp. 57-63.) "It has now been over 20 years [now over 27 years] since DNA evidence was first approved by a California appellate court to prove identity in a criminal case." (People v. Stevey (2012) 209 Cal.App.4th 1400, 1411, (Stevey), citing People v. Axell (1991) 235 Cal.App.3d 836.) But DNA testing is continually being improved, as the exact methods have evolved over the years. "'[T]he scientific methodology, while fundamentally the same, has become more refined and sophisticated.'" (Stevey, supra, at p. 1411, quoting People v. Hill (2001) 89 Cal.App.4th 48, 51.)
Although we do not find a published California case which has upheld the use of TrueAllele technology, out-of-state opinions have done so. In Commonwealth v. Foley (Pa. Super. Ct. 2012) 38 A.3d 882, 890 (Foley), a Pennsylvania appellate court upheld admission of testimony based on the interpretation of data using the TrueAllele program against a challenge that it did not meet the Frye standard. The Foley court concluded the defendant failed to establish the existence of a legitimate dispute over Dr. Perlin's methodology of the TrueAllele system and failed to show that the testimony constituted novel scientific evidence. (Foley, supra, at p. 890.) And in a very recent case, People v. Wakefield (Aug. 15, 2019, 107724) 2019 N.Y. Slip Opn. 06143 (2019 N.Y.App.Div. Lexis 6153; 2019 WL 3819326) (Wakefield), the defendant challenged the trial court's Frye ruling that TrueAllele was generally accepted by the relevant scientific community and not novel. The court in Wakefield found the trial court's ruling proper. In doing so, it considered the testimony of Perlin and noted the following as well:
Frye requires that a scientific principle or discovery relied upon in expert testimony be sufficiently established to have gained general acceptance in the particular field in which it belongs. (Frye v. United States (D.C. Cir. 1923) 293 F. 1013, 1014.) Kelly expressly followed the Frye standard. (Kelly, supra, 17 Cal.3d at p. 31.) Frye's "general acceptance" test is no longer followed by the federal courts. (Daubert v. Merrell Dow Pharms., Inc. (1993) 509 U.S. 579.) Pennsylvania continues to follow the Frye standard. (Foley, supra, 38 A.3d at p. 888.)
Mark Perlin's name appears in numerous cases as an expert witness involving DNA analysis. He is the creator and owner of the TrueAllele software, through his company Cybergenetics. (See unpublished opinion in People v. Superior Court (Chubbs) (Jan. 9, 2015, B258569) [nonpub. opn.]; see also this court's unpublished opinion in People v. Johnson (July 11, 2019, F071640) [nonpub. opn.] [Dr. Perlin described as the inventor of TrueAllele].)
"The record reflects that articles evaluating TrueAllele have been published in six separate forensics journals. In addition, at the time of the Frye hearing, TrueAllele had undergone approximately 25 validation studies, some of which appeared in peer-reviewed publications. One peer-reviewed publication noted that, when a victim reference was available, 'the computer was [4½] orders of magnitude more efficacious than human review on the same data' and that, when a victim reference was unavailable, 'the average efficacy of the computer increased to six orders of magnitude.' Another publication stated that, '[w]hile [TrueAllele] does find more matches and computes stronger statistics on average, it examines DNA evidence objectively without introducing bias that may favor the prosecution or defense,' further noting that TrueAllele 'maintains excellent specificity' and 'calculates DNA match statistics with precision.' The DNA Subcommittee of the New York State Forensic Science Commission offered a binding recommendation that TrueAllele be used by the State Police for its forensic casework. Approximately one month after the Subcommittee issued its recommendation, the full Commission approved TrueAllele for forensic casework. Perlin testified that TrueAllele was used to deconvolute the remains of victims from the September 11, 2001 World Trade Center attacks upon the request from the New York City Chief Medical Examiner's office. The National Institute of Standards and Technology, a division of the United States Department of Commerce,
purchased TrueAllele, and its representatives have given presentations regarding TrueAllele's effectiveness. At the time of the Frye hearing, TrueAllele had also been used in various states and had been deemed admissible in Virginia, Pennsylvania and California." (Wakefield, supra, 2019 N.Y. Slip Opn. 06143 [pp. 5-6, fn. omitted].)
We note that the underlying case, People v. Wakefield (N.Y.Sup.Ct. 2015) 9 N.Y.S.3d 540, mentions at page 545, footnote 7, that "Kern County, California and the State of Virginia are presently using Cybergenetics TrueAllele Casework for all forensic casework."
"[O]nce a new scientific technique becomes generally accepted, a Kelly prong-one hearing is not necessary to establish whether each specific methodology employing the technique is also generally accepted. [Citation.] Rather than quibble over the components of the process or the interpretation of the results, challenges are directed to the weight of the evidence to be determined by the jury and not to its admissibility." (Stevey, supra, 209 Cal.App.4th at p. 1418, citing People v. Cooper (1991) 53 Cal.3d 771, 812-813.)
Here, we need not decide whether the trial court correctly found that the TrueAllele program had achieved general acceptance in the relevant scientific community because any alleged error in this case is harmless under either the People v. Watson (1956) 46 Cal.2d 818 or Chapman v. California (1967) 386 U.S. 18 standard of review.
Ramirez testified at trial that she received a reference sample from Lang and from Doe and compared them to the questioned item, which was a cutting from Doe's bed sheet. According to Ramirez's lab protocol, when a sample item consists of a mixture of more than two people, or was considered to be a "complex" mixture, the sample was analyzed by the TrueAllele software, which helped resolve the mixture. In contrast, a single-source sample (non-mixture) was analyzed without utilizing the TrueAllele software.
In this case, Ramirez used the TrueAllele software to analyze the epithelial cell sample, even though it was a two-person mixture, because the second contributor was "so low" and thus the sample was considered a complex mixture. The major contributor profile in the mixture matched Lang's profile. Ramirez explained the statistics related to that finding as follows: "A match between this evidence item and Tony Lang is X times more likely than a coincidental match to a random person in the following reference populations: [¶] ... [F]or African-American, it's 190 quadrillion. For Caucasian, 21 quintillion. And for Hispanic 1.7 sextillion." The minor contributor's profile in the mixture was too incomplete to allow matching, but three alleles in the profile were consistent with three of Doe's alleles.
The sperm sample was a single-source sample, not a mixture. Thus, according to Ramirez's protocol, the sample was not analyzed with the True Allele software. The DNA profile in the sample was found to match Lang's profile. Ramirez explained the statistics related to that finding as follows: "Using the random match probability, the probability of selecting a random unrelated person from the population who would have the DNA profile detected in this item is X in the population groups listed below: [¶] In African-American, it's one in 810 quintillion. In Caucasian, it's one in 110 quintillion. And for Hispanic, it's one in 6.4 sextillion."
The People presented a strong case derived from numerous pieces of circumstantial evidence that did not require the use of DNA evidence determined through the TrueAllele program. Doe testified to the events in question. Tamara and Becky both described Doe as being very upset, shaking, crying and trying to catch her breath when describing Lang's acts to them. During the pretext telephone call, Lang did not deny Doe's allegations, but promised not to touch her and repeatedly asked who was with her. And during the telephone calls from jail, Lang pressured Doe to retract her story, said that he would help her see her father, and even that she could spend the night with her boyfriend. He emphasized that, if Doe did not retract her story, Lang would be in prison and Doe and her family would be homeless. At one point, regarding Doe's allegations, Lang stated, "I'm not sayin' it's not true." We also note that the jury convicted Lang of the lewd and lascivious conduct allegation, which was not based on DNA evidence, but Doe's testimony.
Although the People buttressed their case with DNA results, the circumstantial evidence here was strong enough for conviction, and use of the TrueAllele program did not prejudice Lang under any standard of review.
II. SUFFICIENT EVIDENCE OF LEWD INTENT
Lang next contends there is insufficient evidence to support his conviction for count 3, specifically that he harbored lewd intent when he touched Doe over her clothing. We disagree.
Our standard of review is well established. "[The] appellate court must view the evidence in the light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." (People v. Reilly (1970) 3 Cal.3d 421, 425; accord People v. Pensinger (1991) 52 Cal.3d 1210, 1237.) A trier of fact may rely on inferences to support a conviction only if those inferences are "of such substantiality that a reasonable trier of fact could determine beyond a reasonable doubt" that the inferred facts are true. (People v. Raley (1992) 2 Cal.4th 870, 890-891.) "Evidence of a defendant's state of mind is almost inevitably circumstantial, but circumstantial evidence is as sufficient as direct evidence to support a conviction." (People v. Bloom (1989) 48 Cal.3d 1194, 1208.)
Section 288, subdivision (a) provides in relevant part: "Except as provided in subdivision (i), any person who willfully and lewdly commits any lewd or lascivious act ... upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony...." The statute is violated if there is "'any touching' of an underage child accomplished with the intent of arousing the sexual desires of either the perpetrator or the child." (People v. Martinez (1995) 11 Cal.4th 434, 452 (Martinez).) Thus, the offense described by section 288, subdivision (a) has two elements: "'(a) the touching of an underage child's body (b) with a sexual intent.' [Citation.]" (United States v. Farmer (9th Cir. 2010) 627 F.3d 416, 419.)
Section 288, subdivision (c)(1), on which Lang was convicted, qualifies, in relevant part, that subdivision (a) of section 288 also pertains to "[any] person who commits an act described in subdivision (a) with the intent described in that subdivision, and the victim is a child of 14 or 15 years, and that person is at least 10 years older than the child ...."
"Conviction under [section 288] has never depended upon contact with the bare skin or 'private parts' of the defendant or the victim. [Citations.] Stated differently, a lewd or lascivious act can occur through the victim's clothing and can involve 'any part' of the victim's body." (Martinez, supra, 11 Cal.4th at p. 444.) In addition to a touching, section 288, subdivision (a) "requires proof of 'the specific intent of arousing, appealing to, or gratifying the lust of the child or the accused.' [Citation.]" (People v. Warner (2006) 39 Cal.4th 548, 557.) "Because intent for purposes of ... section 288 can seldom be proven by direct evidence, it may be inferred from the circumstances." (In re Mariah T. (2008) 159 Cal.App.4th 428, 440.) "[T]he lewd character of an activity cannot logically be determined separate and apart from the perpetrator's intent. It is common knowledge that children are routinely cuddled, disrobed, stroked, examined, and groomed as part of a normal and healthy upbringing. On the other hand, any of these intimate acts may also be undertaken for the purpose of sexual arousal. Thus, depending upon the actor's motivation, innocent or sexual, such behavior may fall within or without the protective purposes of section 288.... [T]he only way to determine whether a particular touching is permitted or prohibited is by reference to the actor's intent as inferred from all the circumstances." (Martinez, supra, at p. 450.) The relevant circumstances 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 avoid detection [citation]." (Id. at p. 445.)
Lang contends the evidence "suggests" he was innocently checking on Doe by following up on her asthma attack. However, there is considerable evidence that Lang's conduct was motivated by a lewd intent. The evidence before the jury was that Lang touched Doe between her legs in "the middle" in her "swimsuit area." Doe was not sure whether the touching lasted less than a minute. The touching occurred at night, when Doe should have been asleep; Doe's brothers were both asleep when it occurred. Lang did not say anything to Doe; he provided her with no innocent explanation or apology for the touching. In the subsequent telephone calls, both the pretext call and the calls from jail, Lang did not deny the allegations and repeatedly attempted to get Doe to recant her story. Under the circumstances, the jury could readily infer Lang had the requisite intent, particularly when this act is considered with the subsequent oral copulation Lang forced Doe to perform. (Martinez, supra, 11 Cal.4th at p. 445.)
Lang's contention fails, and we reject his claim to the contrary.
III. INSTRUCTION ON BATTERY NOT REQUIRED
Finally, Lang challenges the trial court's refusal to instruct the jury on battery as a lesser included offense to a violation of section 288, subdivision (a). As part of this contention, Lang acknowledges the California Supreme Court, in People v. Shockley (2013) 58 Cal.4th 400, 405-406 (Shockley), held battery is not a lesser included offense of that statute. He also acknowledged that this court is required to follow that majority opinion. However, he raises the issue in this court to preserve for later review. We find no error. Background
After the close of evidence, outside the presence of the jury, the trial court stated there had been an in-chambers discussion and no instruction on lesser included offenses would be given, noting that, "if an assault occurred or a battery occurred, it is consistent with the substantive offenses charged in this case ...." Defense counsel submitted on the trial court's comments.
Later defense counsel stated the defense was asking for simple battery instructions as lesser-included offenses to counts 1 and 3. The trial court reiterated its earlier ruling and stated, "There is not a doubt in the Court's mind or a question based on the evidence presented that an offense less than the substantive offenses charged have been committed. For those reasons, the motion to include lesser-included offenses is denied." Applicable Law and Analysis
As noted above, Lang contends the trial court erred by failing to instruct the jury on battery as a lesser included offense of the section 288, subdivision (a) lewd and lascivious conduct charge. But, as also noted above, Shockley holds battery is not a lesser included offense of the lewd and lascivious charge. (Shockley, supra, 58 Cal.4th at p. 406.) Lang concedes Shockley's holding, but argues it should not control in his case.
Although defense counsel also requested battery instructions as to the oral copulation charge be given, he does not further that argument on appeal.
A trial court has a duty to instruct on lesser included offenses supported by the evidence. (People v. Breverman (1998) 19 Cal.4th 142, 154-155.) Lesser included instructions are required only when a jury could reasonably conclude the defendant committed the lesser offense but not the greater one. (People v. Hardy (2018) 5 Cal.5th 56, 98.) Failure to instruct on a lesser included offense requires reversal only if an examination of the entire record establishes a reasonable probability the error affected the outcome of the trial. (Breverman, supra, 19 Cal.4th at p. 165.)
A lesser offense is included in a greater offense if one of two tests is met. Under the statutory elements test, where all of the statutory elements of the greater offense include all the elements of the lesser offense, the latter offense is included in the former. In such a case, it is not possible to commit the greater offense without committing the lesser offense. (People v. Reed (2006) 38 Cal.4th 1224, 1227-1228.) Under the accusatory pleading test, if the facts alleged in the charging document establish that if the greater offense was committed then the lesser offense must also have been committed, the latter offense is included in the former. (People v. Montoya (2004) 33 Cal.4th 1031, 1035.) The accusatory pleading test arose to ensure that defendants receive notice before they can be convicted of an uncharged crime. The required notice of the lesser included offense is given when the specific language of the accusatory pleading adequately warns the defendant the People will seek to prove the elements of the lesser offense. (People v. Reed, supra, 38 Cal.4th at p. 1229.)
Section 288 provides, in relevant part, that any person who willfully "commits any lewd or lascivious act ... upon or with the body, or any part or member thereof, of a child ... with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony." Section 242 defines battery as "any willful and unlawful use of force or violence upon the person of another." Any harmful or offensive touching satisfies the element of unlawful use of force or violence for purposes of battery. (People v. Pinholster (1992) 1 Cal.4th 865, 961, disapproved on other grounds in People v. Williams (2010) 49 Cal.4th 405, 459.) Thus, the issue here is whether a defendant can commit a lewd act without touching the victim in a harmful or offensive manner. (People v. Sanders (2012) 55 Cal.4th 731, 737 [in deciding whether an offense is necessarily included within another, the inquiry is whether the greater offense can be committed without also committing the lesser crime].)
Shockley held battery is not a lesser included offense of lewd conduct upon a child under 14 years of age. (Shockley, supra, 58 Cal.4th at p. 406.) Shockley was premised upon the statutory elements test because the accusatory pleading "simply tracked section 288(a)'s language without providing additional factual allegations." (Id. at p. 404.) In Shockley, the prosecution argued a lewd act on a child need not always involve touching the victim in a harmful or offensive manner. (Id. at p. 405.) The defendant contended that touching a child with lewd intent is inherently harmful and objectively offensive, so every touching with lewd intent under section 288 also is harmful or offensive for purposes of the battery statute. (Ibid.)
Declining to resolve the specific argument the parties posed, Shockley found the defendant's argument conflated the offenses so they were identical: "If we were to agree with defendant, that would mean this form of battery (where lewd conduct supplies the required harmful or offensive touching) is not a lesser and included offense of lewd conduct but is essentially the identical offense. If guilt of battery is predicated on guilt of lewd conduct—i.e., if a person is guilty of battery because that person committed lewd conduct—neither crime would have an element not also required of the other." (Shockley, supra, 58 Cal.4th at p. 405.) Shockley continued, "we merely conclude that when the elements of two offenses are essentially identical, as when guilt of battery would be predicated on being guilty of lewd conduct, neither is a lesser and included offense of the other." (Id. at p. 406.)
The accusatory pleading here tracked the statutory language, so Shockley, is directly on point: count 3 alleged Lang "willfully and unlawfully commit[ed] an act described in Penal Code section 288(a) with the intent described in that subdivision upon Jane Doe ... , a child of 15 years and said person was at least 10 years older than Jane Doe ...., the victim, in violation of Penal Code section 288(c)(1), a felony." Thus, under Shockley, no lesser included instruction was required.
Even if we were to conclude battery was a lesser included offense in this case, a battery instruction was not warranted on the evidence and Lang was not prejudiced by its exclusion. A "court need instruct the jury on a lesser included offense only '[w]hen there is substantial evidence that an element of the charged offense is missing, but that the accused is guilty of' the lesser offense. [Citation.]" (Shockley, supra, 58 Cal.4th at p. 404.)
Here, as discussed in part II, above, substantial evidence established Lang committed a lewd act upon Doe, who testified Lang came into her room at night, when her brothers were asleep and, under the guise of assisting her with her asthma, put his hand on her "swimming suit" area for an unspecified amount of time. On a subsequent occasion, Lang had Doe perform an act of oral copulation. There was no harmful and offensive touching that was not lewd from which the jury could conclude defendant merely committed a battery. (People v. Chenelle (2016) 4 Cal.App.5th 1255, 1265 [lesser included instruction not required where evidence shows defendant is either guilty of the crime charged or not guilty of any crime].) Put differently, it is not reasonably probable the result would have been different in the presence of the instruction. (People v. Gonzalez (2018) 5 Cal.5th 186, 195-196 [failure to instruct on lesser included reviewed under Watson standard].)
DISPOSITION
The judgment is affirmed.
/s/_________
FRANSON, Acting P.J. WE CONCUR: /s/_________
PEÑA, J. /s/_________
SNAUFFER, J.