People v. Cuellar, 208 Cal. App. 4th 1067

Cuellar was charged with and convicted of continuous sexual abuse of a child under 14 under Penal Code section 288.5(a).
The charged conduct involved a child who resided in the same home with Cuellar for at least three months with three or more acts of lewd or lascivious conduct.
CALCRIM No. 1120, the pattern jury instruction for the offense, was given and analyzed on appeal.
Cuellar requested to represent himself at trial; the trial court denied the request as the motion came late in the proceedings.
The People presented extensive testimony from the victim and Cuellar’s confession; Cuellar offered a competing narrative through his testimony.
The reviewing court concluded the instructional defect, while present, was harmless given the overwhelming evidence of guilt and suggested clarifying the instruction.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the denial of self-representation was proper	Cuellar argues the denial violated his right to self-representation.	Cuellar contends the request should have been granted despite lateness.	Yes; denial was within the court’s discretion due to lateness.
Whether CALCRIM No. 1120 improperly negates an element of the crime	Cuellar claims the second sentence contradicts the required lewd or lascivious element.	State argues the instruction read as a whole conforms to Martinez and conveys the requisite intent.	Instruction was problematic but harmless; the conviction affirmed with a suggested revision.

People v. Raley, 2 Cal.4th 870 (Cal. 1992) (touching need not be on an intimate part for lewd conduct; intent controls)
People v. Martinez, 11 Cal.4th 434 (Cal. 1995) (touching must be with intent to arouse sexual gratification)
People v. Sigala, 191 Cal.App.4th 695 (Cal. Ct. App. 2010) (read as a whole, CALCRIM 1120 can be consistent with Martinez)
People v. Guiton, 4 Cal.4th 1116 (Cal. 1993) (prejudicial risk when prosecution emphasizes invalid ground)