Opinion
E066220
04-30-2018
THE PEOPLE, Plaintiff and Respondent, v. FRANCISCO GABRIEL OLMOS, Defendant and Appellant.
Raymond Mark DiGuiseppe, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Eric A. Swenson, Lynne G. McGinnis, and Kristine A. Gutierrez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SWF1500905) OPINION APPEAL from the Superior Court of Riverside County. Jerome E. Brock, Judge. (Retired judge of the Santa Clara Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed in part and reversed in part with directions. Raymond Mark DiGuiseppe, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Eric A. Swenson, Lynne G. McGinnis, and Kristine A. Gutierrez, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
A jury found defendant and appellant, Francisco Gabriel Olmos, guilty as charged in 13 counts of sex offenses against his three nieces, twin girls, I.L. and K.L., and their cousin, W.T. The jury also found two "One Strike" law allegations true. Defendant was sentenced to six consecutive terms of life without the possibility of parole on counts 1 through 6, plus 35 years eight months to life on counts 7 through 13.
The jury found in counts 1 through 6 that defendant entered an inhabited dwelling with the intent to commit sexual penetration in violation of Penal Code section 289. All further statutory references are to the Penal Code. (§ 667.61, subds. (c), (d)(4).) The jury also found that counts 1 through 6, 11, and 12 were committed against multiple victims. (§ 667.61, subds. (c), (e)(4), (e)(5).)
In counts 1 through 6, defendant was convicted of forcibly sexually penetrating K.L., a minor age 14 or older. (§ 289, subd. (a)(1)(C).) Defendant claims the trial court prejudicially erred in failing to instruct the jury sua sponte on three lesser included offenses in counts 1 through 6: (1) nonforcible sexual penetration of a minor (§ 289, subd. (h)); (2) assault with intent to commit sexual penetration (§§ 220, subd. (a)(2), 289); and (3) sexual battery (§ 243.4, subds. (a), (d), (e)(1)).
In counts 7 through 10 and 13, defendant was convicted of lewd and lascivious acts with a child under age 16 and more than 10 years younger than defendant. (§ 288, subd. (c).) In counts 11 and 12, he was convicted of lewd and lascivious acts with a child under age 14. (§ 288, subd. (a).) Counts 7 through 10 were committed against K.L., count 11 against I.L., and counts 12 and 13 against W.T.
We agree that nonforcible sexual penetration (§ 289, subd. (h)) is a lesser included offense to forcible sexual penetration (§ 289, subd. (a)(1)) under the statutory elements test. We also agree that the trial court prejudicially erred in failing to instruct on this lesser included offense in counts 1 through 6. Substantial evidence shows and the jury could have reasonably concluded that defendant did not use force, violence, duress, menace, or fear of immediate and unlawful bodily injury (§ 289, subd. (a)(1)(C)), in sexually penetrating K.L. as charged in counts 1 through 6. The court did not err, however, in failing to instruct on assault with intent to commit sexual penetration (§§ 220, subd. (a)(2), 289) or sexual battery (§ 243.4, subds. (a), (d), (e)(1)) in counts 1 through 6, because these offense are not lesser included offenses of forcible sexual penetration under the elements test or the accusatory pleading test.
We therefore reverse defendant's convictions in counts 1 through 6, together with the One Strike law enhancements on counts 1 through 6. We remand the matter with directions to amend the abstract of judgment to show the correct time frames counts 11, 12, and 13 occurred. We affirm the judgment in all other respects, including defendant's unchallenged convictions in counts 7 through 13.
Because we reverse defendant's convictions in counts 1 through 6 based on instructional error, we need not address defendant's claims that (1) the court erroneously denied his motion for a new trial on counts 1 through 6, or (2) his sentence of six consecutive terms of life without the possibility of parole on counts 1 through 6 constitutes cruel and/or unusual punishment.
II. FACTUAL BACKGROUND
A. Defendant's Lewd Acts Against W.T. (Counts 12-13)
Defendant was born in 1977. Defendant has a large, extended family which regularly met at the Murrieta home of defendant's sister, L.T., and L.T.'s husband, H.T. (the T.'s). The T.'s daughter, W.T., was born in 1989 and was age 26 at trial. Defendant is 12 years older than W.T.
Around 1999 or 2000, when W.T. was around age 10 and in sixth grade, W.T. and her brother were staying overnight at the home of defendant and his wife. W.T. was watching a movie and sitting next to defendant when defendant reached over and put his hand on W.T.'s breast over her clothing for 30 to 60 seconds. W.T. did not yell out or say anything because she did not know what to do. W.T. told her mother she felt uncomfortable around defendant, but W.T. did not tell anyone what defendant had done.
Around 2003 and 2004, when W.T. was around age 14 or 15, defendant would try to get close to W.T. at the T.'s home when W.T. was alone, but W.T. would quickly leave defendant's presence. On one of these occasions, defendant kissed W.T. on the lips and put his tongue in her mouth, but W.T. pushed defendant away and told him to stop, and he complied. On another occasion during the same period, defendant climbed on top of W.T. while she was lying on her bed and began "grinding" his pelvis up and down on her body while they were clothed. W.T. told defendant to stop and get off of her, but he continued for at least 30 seconds until she rolled out from underneath him. W.T. was scared. Around 10 years later, on New Year's Eve in 2013, defendant whispered to W.T. that he loved her in a "sexual tone" and said he didn't know what he would do without her. His statements made W.T. uncomfortable. B. Defendant's Lewd Act Against of I.L. (Count 11)
Defendant's sister, A.O., has twin stepdaughters, K.L. and I.L. K.L. and I.L. were born in 1997 and were almost age 18 at trial. Defendant is nearly 20 years older than K.L. and I.L. Between 2003 and 2005, when I.L. was around six or seven years old, defendant began to do things that made I.L. uncomfortable. One night during this period, defendant took I.L. into a bathroom at the T.'s home during a family gathering and touched her breasts and vaginal area under her clothing. I.L. did not tell anyone about this incident when it occurred. The incident made I.L. "confused" but not fearful. C. Defendant's Lewd Acts (Counts 7-10) and Forcible Penetration of K.L. (Counts 1-6)
At a family gathering at the T.'s home on Christmas Eve 2011, after K.L. turned age 14, K.L. and defendant wished each other "Merry Christmas" and gave each other a hug and kiss, as their family members traditionally did. But this time, defendant kissed K.L. on the lips, which surprised K.L. because family members kissed each other on their cheeks. Within a week, and for the next two years when K.L. was ages 14 and 15, defendant sexually abused K.L. five or six times a month—that is, every time there were family gatherings at the T.'s home. Around the time the sexual abuse began, K.L. told her older stepbrother M. that she was "scared" and did not want to attend family gatherings, but K.L. did not mention this to M. again.
After the kissing incident with K.L., defendant began spending more time upstairs at the T.'s home where the children congregated. He would tell the other children to go downstairs and join the rest of the family but would keep K.L. upstairs by grabbing her shoulder or arm to hold her back. Once he was alone with K.L. in an upstairs bedroom, he would touch her in a sexual manner. He would kiss K.L. on her mouth, put his tongue into K.L.'s mouth, and touch K.L.'s breasts and vaginal area under her clothes.
The breast touching occurred at least once a month, or 30 to 35 times, over a two-year period. Defendant would also insert his finger into K.L.'s vagina and move his finger around while using his other fingers to rub the area outside K.L.'s vagina. The vaginal penetrations occurred at least 15 times when K.L. was ages 14 and 15. K.L. would tell defendant to stop and would try to push his hands away, but defendant would not stop. He would hold K.L.'s wrists and sometimes push her up against a wall, while he digitally penetrated her vagina. According to K.L., defendant "forced" K.L. to allow him to touch her. K.L. could have yelled for help but did not do so because she felt the molestations were her fault. D. The Disclosure and Investigation
On January 26, 2014, K.L. and her family attended a birthday party at defendant's home, but K.L. stayed outside during the entire party. After K.L. and her family returned home, K.L. told her stepmother, A.O., and her father about defendant's sexual molestations of her. K.L. was nervous and crying, because she feared her parents would not believe her. K.L. explained that she did not disclose the molestations sooner because she was worried defendant's children would lose their father. I.L. then disclosed that defendant had sexually abused her. I.L. was also nervous and crying. I.L. explained that the bathroom incident with defendant had "slipped her mind."
The next day, January 27, 2014, A.O., L.T., and H.T. confronted defendant at his home, in the presence of his wife, about what I.L. and K.L. had said. When they told defendant what K.L. and I.L. had said, defendant looked down and began to cry. When they asked him why he had done what he had done to I.L. and K.L., defendant said, "I'm sorry. I don't know."
Two days later, after W.T. learned from her mother of K.L.'s and I.L.'s disclosures, W.T. revealed defendant's sexual molestations of her. W.T.'s family called the police. E. Expert Testimony on Child Sexual Abuse Accommodation Syndrome (CSAAS)
Clinical and forensic psychologist Jody Ward testified as an expert on CSAAS for the prosecution. CSAAS is a pattern of behaviors exhibited by many children who have been sexually abused by a person they know. The five basic components of CSAAS are: (1) secrecy (children molested by someone they know tend to keep the molestations secret for years); (2) helplessness (children tend to be abused by adults because they are less powerful); (3) entrapment and accommodation (children become entrapped in and tend to accommodate sexually abusive situations); (4) delayed, unconvincing disclosure (children hesitantly and partially reveal sexual molestations); and (5) retraction or recantation (when faced with negative consequences, children may retract or recant their sexual abuse disclosures). These "hallmarks" of sexual abuse do not occur with every child. F. Defendant's Interview
Defendant was interviewed by Murrieta Police Detective Matthew Hess on January 30, 2014, and the interview was videotaped and played for the jury. During the interview, defendant admitted kissing K.L. and grabbing her breasts over and under her shirt. He also admitted touching the area around K.L.'s vagina under her clothing, but he denied putting his fingers inside K.L.'s vagina. He admitted touching K.L.'s breasts around 30 times and her vagina around 10 times.
In closing argument, the defense conceded defendant was guilty of lewd acts against K.L. in counts 7 through 10.
Defendant claimed the abuse started when K.L. kissed him on the lips. He confirmed his sexual abuse of K.L. occurred at family gatherings, began with kissing and hugging, and progressed to more serious sexual conduct in one of the upstairs bedrooms at the T.'s home. The abuse occurred every time defendant and K.L. were together, which was around once a month for one and a half to two years. Defendant wrote an apology letter to K.L. Defendant claimed that K.L. never "refused" or said "no" to him touching her, and she never told him to stop or tried to avoid him. He denied grabbing K.L.'s hands, holding her against a wall, or in any way "forc[ing]" K.L. to engage in any sexual activities with him.
Defendant also admitted touching I.L.'s breast, but claimed it only happened "one time." He said he put his arms around I.L. while she was using a computer with her back to defendant, and when I.L. turned toward defendant his hand accidentally touched her breast. He said I.L. made a gesture indicating she wanted defendant to "touch her more" but he did not do so.
Defendant was not asked about W.T., but when asked whether any other family members would claim he had molested them, defendant said W.T. was going to say he had molested her, but he denied he had touched W.T. in a sexual manner. He claimed he only gave W.T. a "quick kiss" on the mouth when he told her to behave after she was scolded for misbehaving at school. Detective Hess testified that in his experience child molesters sometimes minimize their conduct by admitting only part of it or denying the more serious allegations. G. Defense Evidence
Defendant's ex-wife, N.S., split up with defendant after she learned he had been sexually touching I.L., W.T., and K.L. N.S. testified that K.L., I.L., and W.T. would kiss defendant on the cheek at family gatherings, as they did other relatives, but N.S. never saw anything out of the ordinary occur between any of the three girls and defendant. N.S. had never seen K.L. upset.
Defendant's mother, C.M., similarly testified that the girls would greet and say good-bye to defendant with a hug and a kiss, as they did other relatives, but C.M. had never seen anything indicating that defendant annoyed or bothered any of the girls. C.M. had also never seen K.L. look upset and had never seen defendant go upstairs in the T.'s home. Before Christmas in 2013, K.L. looked "[h]appy" when she drew defendant's name in a gift exchange. It was difficult for C.M. to accept that defendant had sexually abused K.L. H. Rebuttal Evidence
M. testified that around two years before K.L. disclosed that defendant had been sexually abusing her, K.L. told M. she was "really uncomfortable" when they attended family gatherings. M. began "keep[ing] an eye on" K.L. at family gatherings to make sure she was okay. Later, M. did not always attend the family gatherings because of his work schedule. At the family gatherings, M. noticed K.L. was more comfortable around her cousins, but her attitude or facial expression would change when she saw defendant. On one occasion, M. found defendant and K.L. locked in a bathroom together. When she emerged from the bathroom, K.L. "looked troubled" and gave M. "a look."
When M. began discussing the details of his conversation with K.L., the court sustained a defense hearsay objection.
I. Surrebuttal
M. told a defense investigator that K.L. did not appear upset when she emerged from the locked bathroom with defendant.
III. DISCUSSION
A. Defendant's Convictions and Enhancements in Counts 1 Through 6 Must Be Reversed
The jury found defendant guilty as charged in counts 1 through 6 of sexually penetrating K.L., a minor, age 14 years or older, by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury. (§ 289, subd. (a)(1)(C).) Defendant claims the court prejudicially erred in failing to instruct sua sponte on three lesser included offenses in counts 1 through 6: (1) nonforcible sexual penetration of a minor (§ 289, subd. (h)); (2) assault with intent to commit forcible sexual penetration (§§ 220, subd. (a)(2), 289); and (3) sexual battery (§ 243.4, subds. (a), (d), (e)(1)).
For the reasons we explain, the court prejudicially erred in failing to instruct sua sponte on nonforcible sexual penetration of a person age 18 or younger. (§ 287, subd. (h).) But the court was not required to instruct on assault with intent to commit sexual penetration (§§ 220, subd. (a)(2), 289) or sexual battery (§ 243.4).
1. Relevant Background
The court held an on-the-record discussion with counsel concerning the giving of lesser included offense instructions in all counts. In counts 1 through 6, in which defendant was charged with the forcible sexual penetration of K.L., a minor age 14 or older (§ 289, subd. (a)(1)(C)), the court determined that it would instruct the jury and later instructed the jury on simple assault (§ 240) and simple battery (§ 242) as lesser included offenses. (CALCRIM Nos. 915 & 960.)
Defense counsel asked the court to instruct on three additional offenses as lesser included offenses in counts 1 through 6: (1) nonforcible sexual penetration (§ 289, subd. (h)); (2) assault with intent to commit forcible sexual penetration (§§ 220, subd. (a)(2), 289; CALCRIM Nos. 890 & 1102); and (3) committing a lewd act on a minor age 14 or 15 and more than 10 years younger than defendant (§ 288, subd. (c)(1); CALCRIM No. 1112). Defense counsel did not ask the court to instruct on felony or misdemeanor sexual battery (§ 243.4, subds. (a), (d), (e)(1); CALCRIM No. 938) as lesser included offenses in counts 1 through 6.
In requesting the three lesser offense instructions, defense counsel explained that defendant's interview statements indicated "there was no force used" in counts 1 through 6, and argued, "there has to be something lesser than the [section] 289 that he's charged with, if the jury believes that there was never any force . . . ." Regarding nonforcible sexual penetration (§ 289, subd. (h)), the prosecutor noted that section 289, subdivision (h) can be violated without violating section 289, subdivision (a)(1)(C), if the victim is under age 14.
The court declined to give any of the additional instructions by the defense, but noted that if the jury believed defendant did not use force in counts 1 through 6, its choice would be to find defendant not guilty in counts 1 through 6, or convict him of simple assault or simple battery in those counts. Earlier, the court noted it was important to "get [the instructions] right" because instructional error on lesser included offenses is "the number one reason cases are reversed" on appeal. Still, the prosecutor objected to instructing the jury on any lesser included offenses in counts 1 through 6, except simple assault and simple battery.
2. Applicable Law and Analysis
"In criminal cases, even absent a request, a trial court must instruct on the general principles of law relevant to the issues the evidence raises. [Citation.] '"That obligation has been held to include giving instructions on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present [citation], but not when there is no evidence that the offense was less than that charged. [Citations.]"' [Citation.]" (People v. Taylor (2010) 48 Cal.4th 574, 623.)
In other words, "[a] trial court has a sua sponte duty to 'instruct on a lesser offense necessarily included in the charged offense if there is substantial evidence the defendant is guilty only of the lesser.' [Citation.] Substantial evidence in this context is evidence from which a reasonable jury could conclude that the defendant committed the lesser, but not the greater, offense. [Citation.] 'The rule's purpose is . . . to assure, in the interest of justice, the most accurate possible verdict encompassed by the charge and supported by the evidence.' [Citation.] In light of this purpose, the 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.]" (People v. Shockley (2013) 58 Cal.4th 400, 403-404.)
We review de novo the trial court's failure to instruct on a lesser included offense. (People v. Licas (2007) 41 Cal.4th 362, 366.) In determining whether an offense is necessarily included in a greater, charged offense, we apply either the statutory elements test or the accusatory pleading test. (People v. Shockley, supra, 58 Cal.4th at p. 404.) "Under the elements test, if the statutory elements of the greater offense include all of the statutory elements of the lesser offense, the latter is necessarily included in the former. Under the accusatory pleading test, if the facts actually alleged in the accusatory pleading include all of the elements of the lesser offense, the latter is necessarily included in the former." (People v. Reed (2006) 38 Cal.4th 1224, 1227-1228.)
3. Nonforcible Sexual Penetration (§ 289, subd. (h))
The parties agree, and so do we, that, under the statutory elements test, nonforcible sexual penetration of a minor under age 18 (§ 289, subd. (h)) is a lesser included offense of forcible sexual penetration of a minor age 14 or older (§ 289, subd. (a)(1)(C)). A violation of section 289, subdivision (a)(1)(C) includes all of the elements of a violation of section 289, subdivision (h), because (1) a minor age 14 or older is under age 18, and (2) an act of forcible sexual penetration against the victim's will (§ 289, subd. (a)(1)(C)) necessarily includes an act of sexual penetration (§ 289, subd. (h)). Both statutes also require the defendant to commit the act of sexual penetration with the specific intent to gain sexual arousal or gratification, or to abuse the victim. (People v. McCoy (2013) 215 Cal.App.4th 1510, 1535-1540; § 289, subd. (k)(1).)
Section 289, subdivision (h) provides: "Except as provided in Section 288, any person who participates in an act of sexual penetration with another person who is under 18 years of age shall be punished by imprisonment in the state prison or in a county jail for a period of not more than one year." (Italics added.)
Section 289 defines "'[s]exual penetration'" as "the act of causing the penetration, however slight, of the genital or anal opening of any person . . . for the purpose of sexual arousal, gratification, or abuse by any foreign object, substance, instrument, or device, or by any unknown object." (§ 289, subd. (k)(1).)
Section 289, subdivision (a)(1)(C) provides: "Any person who commits an act of sexual penetration upon a minor who is 14 years of age or older, when the act is accomplished against the victim's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person, shall be punished by imprisonment in the state prison for 6, 8, or 10 years." (Italics added.) For ease of reference, we use the term "forcible" to refer to "force, violence, duress, menace, or fear of immediate and unlawful bodily injury. . . ." (§ 289, subd. (a)(1)(C).)
Further, substantial evidence shows and the jury reasonably could have found that defendant committed nonforcible but not forcible sexual penetration of K.L. in counts 1 through 6. During his police interview, defendant denied forcing K.L. to engage in any sexual acts with him. He denied forcing K.L. to go upstairs or stay upstairs with him, and denied holding K.L.'s hands or holding her against a wall in order to keep her from getting away. He also claimed K.L. never "refused" or said "no" to performing sexual acts with defendant, and that during the sexual acts K.L. never told defendant to stop. The jury also heard evidence that tended to discredit K.L.'s testimony that defendant forced her to engage in acts of sexual penetration. For example, evidence was presented that K.L. was Facebook friends with defendant, did not appear to be uncomfortable around him, and regularly greeted and said good-bye to him with a hug and a kiss during the time counts 1 through 6 allegedly occurred. Thus, on this record, the court had a duty to instruct sua sponte on the lesser included offense of nonforcible sexual penetration (§ 289, subd. (h)) in counts 1 through 6. (See People v. Woods (2015) 241 Cal.App.4th 461, 474-476 [sua sponte duty to instruct on nonforcible oral copulation of minor as lesser included offense to forcible oral copulation of minor where substantial evidence showed victim consented to alleged oral copulations].)
The People argue insufficient evidence supported instructing the jury on nonforcible sexual penetration in counts 1 through 6 (§ 289, subds. (h), (i)), but the People's argument disregards defendant's police interview statements.
The failure to instruct on the lesser included offense of nonforcible sexual penetration (§ 289, subd. (h)) in counts 1 through 6 was also prejudicial. It appears "reasonably probable" that defendant would have been convicted of this lesser included offense had the jury been instructed on it. (People v. Watson (1956) 46 Cal.2d, 818, 836; People v. Breverman (1998) 19 Cal.4th 142, 149, 178.) The evidence that defendant used force in sexually penetrating K.L.'s vagina as charged in counts 1 through 6 was at odds with defendant's police interview statements in which he denied he forced K.L. to engage in any sexual activities with him. Additionally, the evidence that K.L. never appeared to be uncomfortable around defendant at family gatherings tended to discredit K.L.'s claim that defendant "forced" her to engage in all of the alleged sexual activities, including the sexual penetrations. But as instructed, the jury's only choice, if it believed defendant did not use force in counts 1 through 6, was to convict defendant of simple assault or simple battery or find him not guilty as charged of forcible sexual penetration in counts 1 through 6. Thus, on this record, the instructional error was prejudicial.
4. Assault with Intent to Commit Sexual Penetration (§§ 220, subd. (a)(2), 289)
As we next explain, the court did not have a duty to instruct sua sponte on assaulting a person under age 18 with the intent to commit any violation of section 289 (§§ 220, subd. (a)(2), 289), including "forcible" sexual penetration in violation of section 289, subdivision (a)(1)(C), in counts 1 through 6.
Section 220, subdivision (a)(2) prohibits assaulting a person under age 18 "with the intent to commit rape, sodomy, oral copulation, or any violation of Section . . . 289 . . . ." (Italics added.) Violations of section 289 include sexual penetration of a minor age 14 or older "by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury . . . ." (§ 289, subd. (a)(1)(C).) An assault is "an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another." (§ 240, italics added.) But violations of section 289, including "forcible" sexual penetration on a minor age 14 or older (§ 289, subd. (a)(1)(C)), can be committed without committing an assault. Thus, under the elements test, assaulting a person under age 18 with the intent to commit any violation of section 289, is not a lesser included offense of a violation of section 289, subdivision (a)(1)(C), the charged offense in counts 1 through 6.
A violation of section 289, subdivision (a)(1)(C) can be committed by duress, for example, which is not synonymous with force or violence. (People v. Senior (1992) 3 Cal.App.4th 765, 775 [distinguishing force and duress].) Likewise, violations of section 289 that do not involve force, violence, duress, menace, or fear of immediate and unlawful bodily injury (e.g., § 289, subds. (h), (i)) can be committed without committing an assault, that is, without attempting to commit a violent injury on the person of another (People v. Leal (2009) 180 Cal.App.4th 782, 793 [sexual penetration "by artifice, pretense or concealment" (§ 289, subd. (f)) can be committed without force and without committing an assault]).
Additionally, the information tracked the statutory language in charging the section 289, subdivision (a)(1)(C) violations in counts 1 through 6, and further alleged only that K.L. was "a minor age 14 or older" when the charged crimes were committed. Thus, the information did not allege that the charged offenses involved an assault. (§ 240.) It follows that the court did not have a duty to instruct sua sponte on assaulting a person under age 18 with the intent to commit a violation of section 289 (§§ 220, subd. (a)(2), 289), under the accusatory pleading test.
In re Jose M. (1994) 21 Cal.App.4th 1470 is distinguishable. There, the court observed that assault with intent to commit rape (§ 220, subd. (a)(1)), is a lesser included offense of rape in concert, which is a form of rape by force or violence (In re Jose M., supra, at p. 1477; § 261, subd. (a)(2)). As the court pointed out, "[e]very act of rape . . . necessarily includes an assault[,]" and assault with intent to commit rape is "merely an aggravated form of attempted rape" which also requires an assault. (In re Jose M., supra, at p. 1477; see also People v. Moran (1973) 33 Cal.App.3d 724, 730 [assault with intent to commit rape is lesser included offense of rape].) But as explained, forcible sexual penetration of a minor age 14 or older (§ 289, subd. (a)(1)(C)) does not require an assault.
5. Sexual Battery (§ 243.4, subds. (a), (d), (e)(1))
The court also did not have a duty to instruct sua sponte on felony and misdemeanor sexual battery (§ 243.4, subds. (a), (d), (e)(1)) as lesser included offenses to forcible sexual penetration (§ 289, subd. (a)(1)(C)) in counts 1 through 6. To begin with, sexual battery is not a lesser included offense to forcible sexual penetration (§ 289, subd. (a)(1)(C)) under the elements test. (People v. Ortega (2015) 240 Cal.App.4th 956, 966-967.) As Ortega explained, "[t]he sexual battery statute [(§ 243.4)] does not encompass touching by a foreign object other than the offender's body. In contrast, sexual penetration by force [(§ 289, subd. (a)(1))] is not limited to physical contact and can be broader: Penetration may be caused 'by any foreign object, substance, instrument, or device, or by any unknown object.' (§ 289, subd. (k)(1).)" (Id. at p. 967.) Thus, forcible sexual penetration can be committed without committing felony or misdemeanor sexual battery "(e.g., where penetration is accomplished by means other than a part of the perpetrator's body.) Sexual battery is therefore not a lesser included offense of forcible sexual penetration under the statutory elements test." (Ibid.)
Ortega held, however, that sexual battery was a lesser included offense of forcible sexual penetration under "an expanded accusatory pleading test." (People v. Ortega, supra, 240 Cal.App.4th at pp. 967-970.) Ortega looked to the preliminary hearing transcript, and did not rely solely on the factual allegations of the accusatory pleading, or information, in applying the accusatory pleading test. Ortega explained: "Due process principles of fairness, and defendant's right to be prosecuted only on the noticed charges consistent with the probable cause showing supporting the accusatory pleading, compel us to agree that sexual battery is a lesser included offense of forcible sexual penetration where, as here, the preliminary hearing testimony identified defendant's fingers as the only object supporting the forcible sexual penetration charge." (Id. at p. 967.)
Here, as in Ortega, the preliminary hearing transcript shows defendant sexually penetrated K.L. with his fingers and not with any foreign object that was not a part of his body. (People v. Ortega, supra, 240 Cal.App.4th at pp. 967-969.) Substantial evidence also shows and the jury could have reasonably determined that defendant committed sexual battery, but not forcible sexual penetration, for the same reasons the evidence shows defendant committed nonforcible but not forcible sexual penetration: based on defendant's interview statements denying that he forced K.L. to engage in any sexual activities, and K.L.'s demeanor toward defendant, the jury could have reasonably concluded that K.L. acquiesced to the sexual penetrations.
Nonetheless, we decline to adopt Ortega's "expanded accusatory pleading test," because Ortega has not been followed in any published decision and represents an exception to the settled principle that a court does not look beyond the face of a pleading in applying the accusatory pleading test. (People v. Montoya (2004) 33 Cal.4th 1031, 1036 ["Consistent with the primary function of the accusatory pleading test—to determine whether a defendant is entitled to instruction on a lesser uncharged offense we consider only the pleading for the greater offense."].) B. Amendment of Abstract of Judgment Regarding Counts 11 Through 13
Regarding defendant's unchallenged convictions in counts 11, 12, and 13, the parties agree the abstract of judgment must be amended to show that count 11 occurred between October 2003 and October 2005, that count 12 occurred between August 2001 and August 2002, and that count 13 occurred between August 2003 and August 2004. The abstract of judgment currently shows that each of these offenses occurred in 2011, but the information alleged and the evidence at trial showed they occurred on the earlier dates indicated. We therefore remand the matter with directions to amend the abstract of judgment in these respects. (People v. Mitchell (2001) 26 Cal.4th 181, 185 [court has inherent authority to correct clerical errors in court records].)
IV. DISPOSITION
Defendant's convictions in counts 1 through 6 (§ 289, subd. (a)(1)(C)) and One Strike law enhancements in counts 1 through 6 (§ 667.61, subds. (c), (d)(4), (e)(4), (e)(5)) are reversed. The matter is remanded to the trial court with directions to (1) retry defendant on counts 1 through 6, or, if defendant is not retried on counts 1 through 6, to (2) resentence defendant on counts 7 through 13 and on the multiple victim One Strike law enhancements on counts 11 and 12. (§ 667.61, subds. (c), (e)(4).)
The court is further directed to prepare an amended abstract of judgment showing that counts 11, 12 and 13 occurred, not in 2011, but during the time periods indicated in section III. B. of this opinion. The court is to forward a copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J. We concur: RAMIREZ
P. J. McKINSTER
J.