PEOPLE v. SHOCKLEY

Appellant’s Petition for Review

Cal.January 10, 2011

8189462 COPY IN THE SUPREME COURT OF THE STATE OF CALIFORNIA THE PEOPLE OF THE STATE ) Court of Appeal No. F058249 OF CALIFORNIA, ) ) Stanislaus County Superior Court Plaintiff and Respondent, ) No. 1238243 ) © ) SUPREME COURT) sueyer THOMAS RAYMONDSHOCKLEY, ) 3 Uae ate ) g 201 Defendant and Appellant. ) JAN 1 ) crederick KOnirich Cer paces i ST SERIEa sco APPELLANT’S PETITION FOR REVIEW Appeal From The Judgmentofthe Superior Court Of The State of California, County of Stanislaus Honorable ThomasD.Zeff, Judge GREGORY W. BROWN SBN 164519 2280 Grass Valley Highway #342 Auburn, California 95603 (530) 401-5554 By appointment of the Court of Appeal through the Central California Appellate Program (Assisted) Attorney for Appellant Thomas Raymond Shockley TABLE OF CONTENTS TABLE OF AUTHORITIES...........ccccccce eee n cere nnnnn Ee EEE EEE EEE EEE EE ee eesE eet ii Issue Presented for REViCW.......ccccccccecscecseesenecseeeeneesreseeesseessesesesesecaeaesesecesaesnesesseesseesseenneesneecasersees 1 1. Should this Court grant review to resolve the split of authority between courts of appeal as to whether battery (Pen. Code, § 242) is a lesser included offense to a lewd act on a child under the age of 14 (Pen. Code, § 288, subd. (a))?......cece 1 REASONS FOR GRANTING REVIEW.........cccce cece cece neennnnner ne ene ea egret tees 1 STATEMENTOF THE CASEQn... cece cece cece cecetenneee n nee nee EEE Ene rene one enEn EE 3 STATEMENTOF FACTS... ..c ccc ccccc cece cee nee ne nent e eneEEERE Eee EE EEE EES beeaettES4 ARGUMENT. .....ccccccccec cee ce cent eee ene eee een tenn EEE EERE EERE EEE EES OEE E EG CLE ES CnECEEEES 5 L. THE COURT OF APPEAL ERRED IN CONCLUDING THAT A LEWD ACT ON A CHILD IS NOT ALWAYS HARMFULOR OFFENSIVE, AND THAT A CHILD MAY CONSENT TO A LEWD ACT... cccceccceeeteetenernerreetecneensereeeneeesaesaeneens 5 CONCLUSION ooo. c cece ccc ccc cee ee neeenn EEE EEE EEE EEE EEE OEE EEE EE EEE EEE EEE EEE EERE EEE ET 10 TABLE OF AUTHORITIES STATE CASES Inre Billie ¥. (1990) 220 Cal.App.3d 127 ...cscseseseree sees eresteneneeretenees 8 Inre John L. (1989) 209 Cal.App.3d 1137 cessesees sereserenennenseces 8 In re Manuel L. (1994) 7 Cal4th 229 occssereseteneeennerersssrseees 8 JC. Penney Casualty Ins. Co. v. M.K. (1990) 52 Cal.3d 1009... 6 People v. Alfaro (1976) 61 Cal.App.3d 414 w.ccceceeesessenereereseretesereees 8 People v. Lopez (1998) 19 Cal4! 282 .ssscsssssessnnesseeeseressessseesssennnsey 9 People v. Martinez (1995) 11 Cal.4th 434 o.ecsecseeeeeeesteessssereerenens 6, 7,8 People v. Olsen (1984) 36 Cal.3d 638 c.ccccccccscceessereesseeeseteteeeiereenneeees 7,8 People v. Paz (2000) 80 Cal.App.4th 293 ...cecesccrereseceerersereeeeeeressseeseneee 7 People v. Pinholster (1992) 1 Cal.4th 865 oe eeeseeseeeees sess esseneresereciee 5 People v. Samuels (1967) 250 Cal.App.2d S01 cesses 8 People v. Santos (1990) 222 Cal.App.3d 723 .cccscecsersseseseerereteretesessess 2 People v. Thomas(2007) 146 Cal.App.4™ 1278 v.escccessseesseessreeees 2,5, 6, 7 STATUTES Pen. Code, § 242 ccececssesssceeseseceereetsesseesecsceeneeseneasenenannnanenssst esses sgte 1,2,5 Pen. Code, § 288 oi. sescccecsecsereeeeserereteeresieneersssssseanneerereeeeees 1, 2,4, 5, 6,9 Pern. Code, § 647.6 ceessesesseesssssereereesesersenennenteseeen sense cnettenes 2,9 il Pen. Code, § 667.5 ceecscssseseesesesereeerssresssessseserecnenenentscesse nnesennareenetetsgstess 6 Pen. Code, § 1192.7 c.sccsccssssesecsesesnessessesssessenensasensneereneesssestnsne ncnanneneessgss 6 CALIFORNIA RULES OF COURT Cal. Rules of Court, rule 8.500 cccrseeseeeereteenerr erseesenereetessnenrnies 1 CALCRIM CALCRIM 960 ceecessssscscsecesscesesesssesesesesseenesenseseeesneneneneecas ensaneneerscgnanesssgss 5 CALCRIM L110 ciissccssesesscecsssesnessesesnenenesessssesseeesncaensssene sssrsneneenensnssts 6,9 SECONDARY SOURCES Witkin & Epstein, California Criminal Law (3d ed. 2000) «2... 8 ill IN THE SUPREME COURT OF THE STATE OF CALIFORNIA THE PEOPLE OF THE STATE OF CALIFORNIA, Court of Appeal No. F058249 Stanislaus County Superior Court Plaintiff and Respondent, No. 1238243 THOMAS RAYMOND SHOCKLEY, ) ) ) ) ) Vv. ) ) ) ) Defendant and Appellant. ) ) TO THE HONORABLETANI CANTIL-SAKAUYE, CHIEF JUSTICE OF THE STATE OF CALIFORNIA, AND TO THE HONORABLE ASSOCIATE JUSTICES OF THE COURT: Issue Presented For Review 1. Should this Court grant review to resolvethe split of authority between courts of appeal as to whetherbattery (Pen. Code, § 242) is a lesser included offense to a lewd act on a child underthe age of 14 (Pen. Code, § 288, subd. (a))? REASONS FOR GRANTING REVIEW Review is necessary becausethe Fifth District Court ofAppeal’s published opinion in this matter, which finds that battery is not a lesser included offense to a lewd act on a child underthe age of 14, conflicts with the published opinion of another court of appeal on the sameissue, and presents important, statewide questions of law. (Cal. Rules of Court, rule 8.500(b)(1).) The Fifth District’s published holding in this case that battery (Pen. Code, § 242) is not a lesser included offense to a lewd act on a child under 14 (Pen. Code, § 288, subd. (a)) explicitly disagrees with the opinion of the First District in People v. Thomas (2007) 146 Cal.App.4" 1278, 1291-1293, which foundthatbattery is a lesser included offense to such an act. The Fifth District’s opinion in this case is in accord with the Sixth District’s opinion in People v. Santos (1990) 222 Cal.App.3d 723, 739.' Review is necessary to establish uniformity of law on the issue, i.e., to provide authoritative guidance to districts and trial courts as to whether battery instructions may be providedtojuries in cases where a lewdact on a child under the age of 14 has been charged. A ruling by this Court that battery is a lesser included offense to a lewd actona child under 14 wouldalsofill a void in the law in cases where a lewd act on a child under 14 is charged. Ifa jury in such a case determines that a defendant touched a child in a harmful or offensive manner but did so without lewd intent, and the jury does not have the option of finding that the act constitutes a battery, no criminal liability would result. In such a scenario, the harmful or offensive touching would not constitute the offenses of battery, annoying a child (Pen. Code, § 647.6, subd. (a)), or any other offense. Review is necessary to determine whether, in prosecutions for alleged violations of Penal Code section 288, subdivision (a), judges and juries may beallowedto assign criminalliability to the harmful and offensive touching of children done without lewd intent. ' As the Fifth District noted, however, the conclusion in Santosthat battery is not a lesser included offense to a lewd act on a child was reached without analysis or citation to authority. (Opinion,p.7.) 2 In addition, the decision by the Fifth District in this case is directly at odds with California statutes and case law regarding lewd acts on children under 14, battery, and the “consent” of children to such acts. The Fifth District’s decision finds that the lewd touching of a child under 14 may not be harmful and offensive (and therefore does not necessarily constitute battery), because a child can consent to such touching. (Opinion, p. 9.) But our Legislature and this Court have declared that lewd acts on children under 14 constitute serious and violent felonies, and that such acts are always harmful and offensive. Similarly, it is beyond dispute in California that a child under the age of 14 cannot consent to a lewd act or a battery, because children lack the capacity to give informed consent to such acts. Contrary to the Fifth District’s finding, any touching of a child under 14 done with lewd intent, even if the child consents, is harmful and offensive as a matter of law. Any lewd touching of a child under 14, then, must also be a battery (i.c., a harmful and offensive touching). This settled body of law was formulated by the Legislature andstate courts to protect naive and dependentchildren underthe age of 14 from child molesters. The Fifth District’s decision in this case is inconsistent with this important and well-established body of law, and should be reviewed. STATEMENT OF THE CASE OnJuly 1, 2008, the Stanislaus County District Attorney filed a one-countinformation against appellant Thomas Shockley, charging him with committing a single lewd act on a child underthe age of 14 in violation of Penal Code section 288, subdivision (a). (CT 49.) Trial began on February 2, 2009. (CT 62.) Whenthe case was submitted to the jury, thejury wasnotinstructed on thelesser included offense of battery. (CT 70-104.) On February 6, 2009, the jury found appellant guilty of committing a lewd act on a child. (CT 108.) Thetrial court sentenced appellant on July 17, 2009. (CT 159.) The court granted appellant probation, and as a condition of probation, sentenced appellant to 120 days in county jail. (CT 159-160.) Appellant appealed his conviction. (CT 161-162.) On December8, 2010, the Fifth District Court ofAppealissuedits opinion affirmingthat conviction. (See Opinion,attached as Exh.A.) Appellant petitioned the Fifth District for rehearing on December 20, 2010. The Court ofAppealdenied appellant’s Petition for Rehearing on December 21, 2010. (Exh. B.) STATEMENT OF FACTS Ten-year-old “Jane Doe”related that appellant, her step-grandfather, touched her on three occasions in October 2007: he “French kissed”her at her house (RT 84-85; 117-1 18); he rubbed her stomachas they drove home from a movie (RT 64-65, 74-75); and he rubbed her vagina through herclothes on the same drive. (RT 60-61, 80.) Regarding the alleged French kiss, Jane Doe gave several inconsistent statementsas to * Attrial, the Jury was told that any oneofthese three separate supposed acts of touching could form the basis for a finding of guilt on the single charge of committing a lewd act on a child. (Augmented RT 89, 92-93; CT 102.) In finding appellantguilty of the charge, the jury did not specify which act served as the basis for its finding. (CT 110.) whether such a kiss occurred at all. (RT 42-47, 84-85, 121-122; CT 14-15.) During the alleged events in the car, Jane Doe’s step-sister sat next to Jane Doein the front seat of the car, but she did not see appellant touch Jane Doe’s vagina. (RT 139-142.) Appellant did not testify. He told police that he did not French kiss Jane Doe or touch her vagina, but he did playfully rub her stomach. (RT 152-157, 165-169.) I. THE COURT OF APPEAL ERRED IN CONCLUDING THAT A LEWD ACT ON A CHILD IS NOT ALWAYS HARMFULOROFFENSIVE, AND THAT A CHILD MAY CONSENT TO A LEWDACT. Battery (Pen. Code, § 242) will be considered a lesser included offense to a lewd act ona child under 14 (Pen. Code, § 288, subd. (a)) if it is impossible to commit a lewd act on a child under 14 without also committing a battery. (People v. Thomas, supra, 146 Cal.App.4" at p. 1291; Opinion,p. 6.) Since any harmful or offensive touching satisfies the elements of battery (People v. Pinholster (1992) 1 Cal.4th 865, 961; CALCRIM 960 (2009ed.) Vol. 1, p. 664), the Fifth District correctly framed the essential question in this case: “whether a defendant can commit a lewd act [on a child under 14] without touching the victim in a harmful or offensive manner.” (Opinion,p. 7.) The Fifth District answered this questionin the affirmative, finding that the lewd acts on children under 14 maynot alwaysbe harmfulor offensive. (Opinion, pp. 7-9.) According to the California Legislature and this Court, however, those acts are always harmful and offensive. The Legislature has declared that any lewd act on a child under 14 is punishable by up to eight years in state prison. (Pen. Code, § 288, subd. (a).) The Legislature has also deemed suchacts as “serious” and “violent” felonies. (Pen. Code, § 1192.7, subd. (c)(6) [serious felony]; Pen. Code, § 667.5, subd. (c)(6) [violent felony].) Because these actsare, by definition of the Legislature, serious, violent, criminal offenses, they are harmful and offensive as a matter of law. And this Court has explicitly embraced this designation by the Legislature, commenting that Penal Code section 288, subdivision (a) violations are always profoundly harmful to the child victims. (People v. Martinez (1995) 11 Cal.4" 434, 443-444; J.C. Penney Casualty Ins. Co. v. M.K. (1990) 52 Cal.3d 1009, 1025-1026.) “The act [touching a child under 14 with lewdintent] is the harm.” (1.C. Penney Casualty Ins. Co.v. M.K., supra, 52 Cal.3d at p. 1026.) If the act is the harm, then touching a child with lewd intentis, by definition, harmful. It is a matter of law decreed by the Legislature, then, that a person cannot commit a lewd act on a child underthe age of 14 without touching the victim in a harmful or offense manner. In this case, however, the Fifth District came to the opposite conclusion. (Opinion, pp. 7-9.) If our Legislature has deemed such acts harmful and offensive as a matter of law, the Fifth District cannot rule otherwise. The Fifth District’s ruling is without authority and is contrary to well-established law. In contrast to the Fifth District, the First District has found that battery is a lesser included offense to a lewd act on a child under 14. (People v. Thomas, supra, 146 Cal.App.4"at pp. 1291-1293; see also CALCRIM 1110 (2009 ed.) Vol. 1, p. 809 [battery is aPp Jesser included offense to a lewd act on a child under 14].) In that decision,the First District found (and the Attorney General conceded) that any lewd act on a child under 14 is necessarily a harmful and offensive touching. (People v. Thomas, supra, 146 Cal.App.4" at p. 1292, fn. 8.) In Thomas, the Attorney General argued that battery was not a lesser included offense to such acts because a battery requires an actual touching, while a lewd act does not (i.e., an adult could persuade a child to touch himself or herself, a “constructive touching”). (/d. at p. 1292.) In its opinion, the First District disagreed with the Attorney General, ruling that defendants mayalso be found guilty ofbattery ifthey compelchildren to touch themselves in a harmful or offensive way. (/d. at p. 1293.) In this case, in finding that not every lewd act on a child under 14 is necessarily a battery, the Fifth District adopted a different rationale. The Fifth District, without citation to any authority, found that children under 14 can consent to a lewd act. (Opinion,p. 9 [Nor are we willing to conclude that somehow child’s consent was invalid because of the defendant’s sexual motivation.”’].) But this Court has unambiguously found that a child under 14 cannot consent to a lewd act, because children lack the capacity to give informed consent to such acts. (People v. Martinez, supra, 11 Cal.4™" 434, at p. 451, fn. 17; People v. Olsen (1984) 36 Cal.3d 638, 645-648.) Therefore,the Fifth District’s conclusionthat naive and dependentchildren underthe age of 14 can consentto sexualacts by an adult is contrary to settled California Supreme Court precedent. Indeed, it is even contrary to the Fifth District’s own previous findings on the subject. (People v. Paz (2000) 80 Cal.App.4" 293, 301; In re Billie Y. (1990) 220 Cal.App.3d 127, 131, overruled on other groundsby Jn re ManuelL. (1994) 7 Cal.4" 229, 239; In re JohnL. (1989) 209 Cal.App.3d 1137, 1141.) This body of law was formulated by the Legislature and state courts to protect naive and dependentchildren underthe age of14 from child molesters. (People v. Olsen, supra, 36 Cal.3d at pp. 645-648; People v. Martinez, supra, 11 Cal.4"at pp. 443-444, 450.) The Fifth District’s decision in this case is inconsistent with, and inimical to, this important and well- settled body of law. In its opinion,the Fifth District further reasoned (again, withoutcitation to authority) that ifa child consents to a lewd act, no battery would occur. (Opinion,p. 9.) Implicit in this ruling are the propositions that consentis a defense to a battery, and that a child can consent to a battery. Neither proposition is true. Exceptfor the limited exception ofphysical contact incidentto participation in sporting events, a person cannot consentto a criminal battery. (1 Witkin & Epstein, California Criminal Law (3d ed. 2000) Defenses, § 87, p. 426; 58 A.L.R.3d 662; People v. Samuels (1967) 250 Cal.App.2d 501, 513; People v. Alfaro (1976) 61 Cal.App.3d 414, 429.) In any event, a child cannot consentto a criminal act such as battery, because a child lacks the capacity to give informed legal consentto criminalacts. (1 Witkin & Epstein, California Criminal Law (3d ed. 2000) Defenses, §89, p. 428 [“Apparent consentofperson without legal capacity to give the consent, e.g., of a child or insane person, is ineffective.”]; People v. Samuels, supra, 250 Cal.App.2d at p. 513 [same].) Finally, the Fifth District’s decision,if left standing, would create a void in the law in cases where a lewd act on a child under 14 is charged. If a jury in such a case determines that a defendant touched a child under 14 in a harmful or offensive mannerbutdid so without lewd intent, and the jury does not havethe optionoffinding that the act constitutes a battery, no criminal liability would result. In such a scenario, the harmful or offensive touching would not constitute the offenses of battery or annoying a child (Pen. Code, § 647.6, subd. (a); People v. Lopez (1998) 19 Cal.4" 282), or any other offense (CALCRIM 1110 (2009 ed.) Vol. 1, p. 809). In prosecutionsfor alleged violations ofPenal Codesection 288, subdivision (a), judges and juries should be allowed to assign criminal liability to the harmful and offensive touching of children under 14 done without lewdintent. In sum,the Fifth District’s opinion wasin error, because it conflicts with an important and well-established body of law, and that opinion creates a legal vacuum for assigning criminalliability to the harmful or offensive touching of children. CONCLUSION For all these reasons, review should be granted. Dated: December 3/, 2010 10 Respectfully submitted, GREGORY W. BROWN Gigine 1. Ao By: Grégoty W. Brown Attorney for Defendant and Appellant Thomas RaymondShockley EXHIBIT A CERTIFIED FOR PARTIAL PUBLICATION* IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT THE PEOPLE, F058249 Plaintiff and Respondent, (Super. Ct. No. 1238243) V. THOMAS RAYMOND SHOCKLEY, OPINION Defendant and Appellant. APPEALfrom a judgment of the Superior Court of Stanislaus County. Thomas D. Zeff, Judge. Gregory W. Brown, under appointment by the Court of Appeal, for Defendant and Appellant. EdmundG. Brown,Jr., Attorney General, Dane R.Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lloyd G. Carter and Leanne LeMon, Deputy Attorneys General, for Plaintiff and Respondent. -00000- “Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinionis certified for publication with the exception ofparts II and III. Ajury convicted appellant Thomas RaymondShockley of one countofviolation of Penal Code section 288, subdivision (a),! committing a lewd act on a child under the age of 14. He contendsthetrial court erred by failing to instruct the jury that battery was a lesser included offense to the charged crime. Healso claimsthetrial court omitted severalotherinstructions, thus requiring reversal of the judgment. We disagree and affirm the judgment. Weare publishing our discussion of whether battery is a lesser included offense to a chargeof a violation of section 288, subdivision (a) as two appellate courts have cometo different conclusions. FACTUAL AND PROCEDURAL SUMMARY R.C.is the victim’s father. R.C. is married to Shockley’s daughter, making Shockley’s daughter the victim’s stepmother. Shockley is not the victim’s biological grandfather, but the victim referred to him as her grandfather. As a birthday present, Shockley took the victim and her stepsister to the movies. The three returned later that night and there was no obvious sign of a problem. After Shockley left, the girls stated they wantedto tell R.C. something. R.C. couldtell something was wrong with the victim. R.C. was shocked by whatthe victim related and called the police the next day. Attrial the victim testified she was 11 years old. There had been a family gathering for her 10-year birthday party, at which Shockley was present. The victim was on the computer when Shockley arrived at the house. Shockley cameupto her and gave her a kiss on the lips. She could not rememberif his mouth was open or closed. The victim believed she told her dad aboutthe kiss. At the preliminary hearing, the victim testified that her mouth was closed when Shockley kissed her, but there may have been someconfusion about the visit at which the first kiss occurred. At the end of cross- 1A1] further statutory references are to the Penal Code unless otherwise stated. examination, defense counsel succeeded in convincing the victim that she was unsure whether the incident occurred. A few days later Shockley took her to the moviesas a birthday present. Her stepsister accompanied them to the movies. On the drive to the movies, the victim’s stepsister sat next to Shockley; the victim sat by the door. Shockley boughtthe girls candy and drinks at the movie theater. Shockley put the candy in their mouths during the movie. The victim said this behavior was unusual and made her uncomfortable. Shockley also put the drink straw into the victim’s mouth, again making her uncomfortable. After the movie, Shockley bought the girls milkshakes at an ice cream parlor and boughta beer at an adjoining pizza parlor. Shockley then drovethegirls to a gas station becausethe girls had to use the restroom facilities. The victim was seated next to Shockleyafter they left the gas station. During the drive, the victim removed the sweater she was wearing. Whenshe did so, Shockley began rubbing her stomach, which was uncovered. The victim was uncomfortable and began giggling. At the preliminary hearing the victim testified that Shockley did not touch her on the stomach, but shortly thereafter she again claimed Shockley did touch her on the stomach. The victim asked Shockley if she could steer the vehicle while they drove; Shockley allowed her to do so. Shockley told the victim to put her leg over his leg while her hands were on the steering wheel. That is when Shockley touchedthe victim on her vagina. His hand wasoutside of the victim’s clothes. Shockley was rubbingthe victim with his hand. The victim was squirming a lot but did not do anything else to make Shockley stop. The victim asked her stepsister to trade seats with her so she could get away from Shockley. The victim’s stepsister traded seats with the victim because the stepsister also wantedto drive. Whenthe three returned to R.C.’s house, the two girls went to the bedroom and began talking. The victim told her stepsister what had occurred in the car. When Shockleyleft, the victim told her father what had occurred. This wasthe first time Shockley had done anything like this to the victim. On cross-examination the victim became somewhat confused aboutthe details. Police Officer Scott Nelson interviewed Shockley about the incident. Shockley admitted taking the girls to the movies andthento the ice cream parlor. On the way back to the girls’ house, Shockley allowedthe girls to sit in the middle seat and place their handson the steering wheel, pretending to drive. While the girls were doing so, Shockley put his arm aroundthe girls’ shoulders. While in this position he poked them in the belly button and rubbedtheir stomachs. Shockley thought the victim may have thought he touchedher vagina because she had had large amountof caffeine in her drink atthe ice cream parlor. Shockley also stated that while in the movietheater, he spilled some soda on his face. While he waslicking the spilled soda with his tongue, the victim kissed him on the lips. That may have been whythe victim thought he kissed her with an open mouth. Police Officer Scott Myersinterviewed the victim andherstepsister. Hetestified that when heinterviewedthevictim, her testimony essentially was consistent with her trial testimony. The recorded interview of the victim wasthen played forthe jury. The jury found Shockley guilty of the sole count in the information. Prior to sentencing, Shockley was examined pursuantto section 288.1. The report prepared by the psychologist found that there was a low risk that Shockley would commit another sexual offense. Based on this report and pursuantto the provisionsof section 1203.066, subdivision (d), Shockley was placed on probation and ordered to serve 120 daysin jail and attend sex offender counseling. DISCUSSION Shockley identifies three specific instructions that were omitted that he claims resulted in his conviction. Shockley did not request any of the omitted instructions. Therefore, unless thetrial court had a sua sponte duty to give the instructions, Shockley has forfeited the claimederror by his failure to object unless the instruction affected his substantial rights. (§§ 1259, 1469; People v. Rodrigues (1994) 8 Cal.4th 1060, 1192; People v. Rivera (1984) 162 Cal.App.3d 141, 146.) “It is settled that in criminal cases, even in the absence of a request,thetrial court mustinstruct on the generalprinciples of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury’s understanding of the case.’ [Citation.]” (People v. Sedeno (1974) 10 Cal.3d 703, 715 (Sedeno), overruled on other grounds in People v. Blakeley (2000) 23 Cal.4th 82, 89-91 and People v. Breverman (1998) 19 Cal.4th 142, 149 (Breverman).) I. Battery as a Lesser Included Offense Shockley contendsthe trial court erred in failing to instruct the jury that battery wasa lesser includedoffense to the charged crime of committing lewd and lascivious acts. Asstated ante, the trial court must instruct the jury on the general principles of law relevantto the issues raised by the evidence. (Breverman, supra, 19 Cal.4th at pp. 154- 155.) The general principles of law includeinstructions on lesser included offensesif there is a question about whether the evidenceis sufficient to permit the jury to find all the elements of the charged offense. (/bid.) There is no obligation to instruct the jury on theories that do not have substantial evidentiary support. (/d. at p. 162.) “[T]he existence of ‘any evidence, no matter how weak’ will notjustify instructions on a lesser included offense, but such instructions are required whenever evidencethat the defendantis guilty only of the lesser offense is ‘substantial enough to merit consideration’ by the jury. [Citations.]” (/bid.) Evidenceis substantialif it would permit the jury to conclude the lesser offense was committed, but the greater offense was not. bid.) Thetrial court mustinstruct on lesser offenses, even in the absence of a request for such instructions or in the face of an objection by the defendant to the giving of the instructions. (Jd.at pp. 154-155.) A lesser offense is included in the charged offenseif either of two tests is met. Thefirst test is the statutory elements test. This test provides that a lesser offenseis included in the greater offense whenall ofthe statutory elements ofthe greater offense include all of the statutory elements of the lesser offense. (People v. Birks (1998) 19 Cal.4th 108, 117; see also People v. Reed (2006) 38 Cal.4th 1224, 1227-1230.) In other words,it is not possible to commit the greater offense without also committing the lesser offense. (Reed, at pp. 1227-1230.) The secondtest is referred to as the accusatory pleading test. This test provides that a lesser offense is necessarily included in the greater offense if the allegations in the charging documentestablish that if the greater offense was committed as pled, then the lesser offense also must have been committed. (People v. Montoya (2004) 33 Cal.4th 1031, 1035.) If the trial court fails to instruct on a lesser included offense, reversal is required only if an examination ofthe entire record establishes a reasonable probability that the error affected the outcomeofthetrial. (Breverman, supra, 19 Cal.4th at p. 165.) Shockleyrelies on the statutory elements test to argue that battery is a lesser included offense to the charged violation of section 288, subdivision (a). The parties cite two cases that have reached different conclusions on the question -- People v. Santos (1990) 222 Cal.App.3d 723 (Santos) and People v. Thomas (2007) 146 Cal.App.4th 1278 (Thomas). Section 288, subdivision (a) explains that any person whowillfully “commits any lewd orlascivious act ... upon or with the body, or any part or memberthereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or 6. gratifying the lust, passions, or sexual desires of that person orthe child, is guilty ofa felony.” “Battery” is defined in section 242 as “any willful and unlawful use of force or violence upon the person of another.” Any harmful or offensive touchingsatisfies the element of unlawful use of force or violence. (People v. Pinholster (1992) 1 Cal.4th 865, 961, overruled on other grounds in People v. Williams (2010) 49 Cal.4th 405, 459.) Thus, the issue is whether a defendant can commit a lewd act without touching the victim in a harmful or offensive manner. In Santos the defendant was convicted of several counts related to the molestation of his stepdaughter. The defendant’s theoryat trial was that while he admitted he battered his stepdaughter, he did not molest her. He had battered the stepdaughter because he was angry with his wife. The defendant theorized that his stepdaughter made up the molestation allegationsin retaliation for the battery. The defendant requested instructions on misdemeanorbattery, whichthetrial court refused. The appellate court stated, without citation to authority or analysis, that battery was not a lesser included offense to a violation of section 288. (Santos, supra, 222 Cal.App.3d at p. 739.) In Thomas the defendant was convicted of numerous counts of lewd andlascivious acts on four victims. The defendant argued to the appellate court that the trial court erred in failing to instruct the jury that battery was a lesser included offenseto a violation of section 288. The appellate court concluded battery wasa lesser includedoffense. (Thomas, supra, 146 Cal.App.4th at p. 1293.) The Zzomas court focused on the People’s argument that battery was not a lesser included offense because a defendant could commit a lewd act by convincing a minorto touch himself or herself in a sexual manner, thus appealing to the defendant’s sexual interests. The appellate court concluded that under such circumstances the defendant would be guilty of constructively touching the victim, thus committing a battery. (Thomas, supra, 146 Cal.App.4th at pp. 1292-1293.) The appellate court dismissed Santos becauseofits lack of analysis or citation to authority. (Zhomas, at p. 1293.) Weconclude that Thomasis not controlling because the issue addressed in Thomasis different than the issue presented in this case. The appellate court in Thomas stated that the People concededthat any lewd act within the meaning of section 288 was necessarily an offensive touching within the meaning of section 242. (Thomas, supra, 146 Cal.App.4th at p. 1292,fn. 8.) The only authority for this proposition wasa citation to People v. Martinez (1995) 11 Cal.4th 434 (Martinez). The appellate court focused on the statement in Martinez that “‘young victims suffer profound harm wheneverthey are perceived and used asobjects of sexual desire.” (Thomas, at p. 1292, fn. 8, quoting Martinez, at p. 444.) Martinez, however, addressed the issue of whether a violation of section 288 required the People prove that the act was not only sexually motivated, but also had to be lewdin andofitself. (Martinez, supra, 11 Cal.4th at pp. 438, 442.) The Supreme Court, in rejecting the defendant’s argument, held that a violation of section 288 occurs where any touchingis involved, so long as the touching is sexually motivated. (Martinez, at pp. 442, 444-445, 452.) Aspart ofits rationale for its holding, the Supreme Court explained that the broad prohibition of any sexually motivated touching met the purpose ofthe statute, which wasto protect children from sexual exploitation. (/d. at p. 443.) The justification for providing children with special protection was that they were “‘uniquely susceptible” to abuse becauseof their dependence on adults, their smaller stature, and their naiveté. (Jd. at p. 444.) For these reasons, the Supreme Court stated that section 288 “assumes that young victims suffer profound harm wheneverthey are perceived and used as objects of sexual desire.” (Martinez, at p. 444.) Martinez emphasized that any touching could form thebasis for a violation of section 288 since the issue is whether the touching is sexually motivated. (Martinez, supra, 11 Cal.4th at p. 444.) Simply stated, any contact with a child, to any part of the body, even through clothes, can constitute a violation of section 288 if the defendant’s conductis sexually motivated. (Martinez, at p. 444.) While we concur with the Supreme Court’s analysis in Martinez, we cannot agree with Thomas that Martinez established that any sexually motivated touchingis necessarily a battery. That issue was not addressed by the Supreme Court, and the quoted statement wasnot intendedto be such a bold proclamation. This case provides an example where a sexually motivated touching maynot be a battery, an example with which many parents are familiar. Many children enjoy being tickled on their stomachs. In this case, Shockley was accused of having a sexual motivation when he touched and rubbedthe victim’s stomach. If the victim enjoyed being tickled on her stomach, no battery would occur because she would be consenting to the touching. Even if the victim expressly consentedto the tickling episode, however, Shockleystill would be guilty of violating section 288 if his conduct was sexually motivated. Or a perpetrator may put ice cream on his finger and ask a childto lick offthe ice cream. The child may willingly perform the requested task, but the perpetrator’s conduct would violate section 288 if it was sexually motivated. To assume, as Thomas did, thatall sexually motivated touching is a battery,is unsupported by commonsense. Nor are we willing to conclude that somehow child’s consent was invalid because of the defendant’s sexual motivation. Indeed, a child under the age of 14 may consentto the act, even knowing the defendant’s motivation,if the reward is perceived as sufficient. A violation of section 288 would occurif the defendant had the requisite motivation, regardless of the child’s consent. A bright-line rule,like the one assumed by Thomas, simplyis unrealistic. Weconcludethat battery is not a lesser included offense to a violation of section 288 because a defendant may violate section 288 without committing a battery. Accordingly, the trial court did not have a sua sponte obligation to instruct the jury that battery was a lesser included offense to lewd andlascivious conduct. Il. View Shockley Statements with Caution* The prosecution introduced evidence of Shockley’s statements to Nelson as part of its case-in-chief. Shockley contendsthe trial court erred in failing to instruct the jury that it should view the statements with caution if they were not recorded. CALCRIM No. 358?instructs the jury how to evaluate an out-of-court statement madebythe defendant. Thetrial court instructed the jury with CALCRIM No.358, but omitted the following portion ofthe instruction: “[Consider with caution any statement madeby(the/a) defendant tending to show (his/her) guilt unless the statement was written or otherwise recorded.]” Shockley argues thetrial court erred in failing to instruct the jury with the entirety of the instruction. The cautionary instruction is not required if the defendant’s statements are not incriminating (People v. Slaughter (2002) 27 Cal.4th 1187, 1200 (Slaughter)), or if they are written or recorded (People v. Mayfield (1997) 14 Cal.4th 668, 776). In this case, Shockley’s statement was recorded, but the recording wasnotplayed for the jury. Instead, Nelson testified to portions of the statement that were deemedrelevantby the parties. Shockley argues that since the recording was not playedfor the jury, the cautionary portion ofthe instruction should have been given to the jury. Wedisagree. The purposeof the instructionis to aid the jury in determiningif the defendant madethe statements attributed to him. (Slaughter, supra, 27 Cal.4th at p. 1200.) Here, the jury *See footnote, ante, page 1. 2CALCRIM No.358states in full: “You have heard evidence that the defendant made [an] oral or written statement[s] (before the trial/while the court was not in session). You must decide whether the defendant made any (such/of these) statement{s], in whole or in part. If you decide that the defendant madesuch[a] statement[s], consider the statement[s], along with all the other evidence, in reaching your verdict. Itis up to youto decide how much importance to give to the statement[s]. [§] [Consider with caution any statement madeby(the/a) defendant tending to show (his/her) guilt unless the statement was written or otherwise recorded.]” 10. learned from Nelson that Shockley’s statement was tape recorded, and there were numerousreferencesto the transcript of the recording. Therefore, since the jury knew Shockley’s statements were recorded, and knew there wasa transcript of the interview, the cautionary instruction was unnecessary because there was no dispute that the statements were made. Accordingly,the trial court did not err in failing to give the cautionary instruction. HI. Corpus Delicti* Shockley’s statements to Nelson attempted to explain how innocent actions may have formed the basis for the victim’s claims. Shockley, however, denied having touched the victim in a sexual manner. Shockley arguesthetrial court erred becauseit failed to instruct the jury that his statements alone could not establish that criminal conduct occurred. ‘““Wheneveran accused’s extrajudicial statements form part of the prosecution’s evidence, the cases have ... required the trial court to instruct sua sponte that a finding of guilt cannot be predicated on the statements alone. [Citations.]” (People v. Alvarez (2002) 27 Cal.4th 1161, 1170.) “The independent proof may be circumstantial and need not be beyond a reasonable doubt, but is sufficient if it permits an inference of criminal conduct, even if a noncriminal explanation is also plausible. [Citations.]” (/d. at p. 1171.) “Error in omitting a corpus delicti instruction is considered harmless, and thus no basis for reversal, if there appears no reasonable probability the jury would have reached a result more favorable to the defendant had the instruction been given. [Citations.]” (Ud. at p. 1181.) “See footnote, ante, page 1. 11. Weassume,arguendo,the prosecution relied on Shockley’s statements to Nelson, but we reject Shockley’s claim becausethereis no possibility the jury would have reached a more favorable result had the instruction been given. CALCRIM No.3593 simply requires proof independent of the defendant’s statements to establish that criminal conduct occurred. Here, the proof that criminal conduct occurred came from the victim, who described incidents where Shockley kissed her inappropriately, rubbed her vagina, and tickled her in a manner that made her uncomfortable. Shockley denied rubbing the victim’s vagina and kissing her inappropriately and claimedthetickling was innocent. He attemptedto explain, however, how the victim possibly could have made a mistake aboutthe acts. This testimony was not relevant because the victim’s statements established that criminal conduct occurred. Weconcludethat simply instructing the jury that it could notfind that criminal conduct occurred based only on Shockley’s statements would have had noaffect on the judgment. There was ample independent evidence establishing that criminal conduct occurred. The verdict would not have been differentif the jury had been instructed with CALCRIM No.359. 3CALCRIM No.359states in full: “The defendant may not be convicted of any crime based on(his/her) out-of-court statement[s] alone. You mayonly rely on the defendant’s out-of-court statements to convict (him/her) if you conclude that other evidence showsthat the charged crime[or a lesser included offense] was committed. [{] That other evidence maybe slight and need only be enoughto support a reasonable inference that a crime was committed. [{] The identity of the person who committed the crime [and the degree of the crime] may be proved by the defendant’s statement|s] alone. [{] You maynot convict the defendant unless the People have proved (his/her) guilt beyond a reasonable doubt.” 12. The judgmentis affirmed. WE CONCUR: hid HILL,J. Deter DETIJEN,/J. DISPOSITION 13. CORNELL,Acting PJ. EXHIBIT B IN THE Court of Appeal of the State of California IN AND FOR THE Fifth Appellate District THE PEOPLE, F058249 Plaintiff and Respondent, (Stanislaus Super. Ct. No. 1238243) Vv. ORDER DENYING PETITION THOMAS RAYMOND SHOCKLEY, FOR REHEARING Defendant and Appellant. Appellant’s petition for rehearing in the above entitled action is denied. LBpealE” Cornell, Acting PJ. WE CONCUR: | LA RUT (Fo d Detjen, J. Hull, J. CERTIFICATE OF COMPLIANCE I certify that the accompanying brief was produced on a computer. The word count of the computer program usedto prepare the document showsthatthere are 2,373 wordsin the brief. Dated: December 31, 2010 bee, en Seon Gregory W. Brown Re: State v. Thomas Raymond Shockley No. F058249 DECLARATION OF SERVICE I, the undersigned, declare as follows: J am a citizen of the United States, over the age of 18 years and not a party within the action; my business address is 2280 Grass Valley Highway #342, Auburn, CA 95603 On December 31, 2010, I served the attached APPELLANT’S PETITION FOR REVIEW by placinga true copy thereof in an envelope addressed to the person(s) named belowat the address(es) shown,and by sealing and depositing said envelope in the United States Mail at Auburn, California, with postage thereon fully prepaid. Thereis delivery service by United States mail at each of the places so addressed, or there is regular communication between the place of mailing and each of the places so addressed. Office of the Attorney General The Honorable Thomas D.Zeff P.O. Box 944255 Stanislaus County Superior Court Sacramento, CA 94244-2550 800 11"Street Attorney for Respondent Modesto, CA 95354 State of California Central Calif. Appellate Program Stanislaus County District Attorney’s Office 2407 J Street 832 12" Street, Suite 300 Suite 30] Modesto, CA 95354 Sacramento, CA 95816-4736 Thomas Raymond Shockley Office of the Clerk 2371 BronzanStreet Fifth District Court of Appeal Manteca, CA 95337 2424 Ventura Street Fresno, CA 93721-3004 I declare under penalty of perjury under the lawsof the State of California that the foregoing is true and correct. Executed on December 31, 2010, at Auburn, California. we, AL —— GregoryWBrown DECLARANT