People v. Macias
26 Cal. App. 5th 957
Cal. Ct. App. 5th2018Background
- Defendant lived in a household with his partner Raquel and several minor children, including 13-year-old L.
- Raquel found a missing children’s tablet; videos on the tablet showed L. nude in the bathroom and defendant setting up and retrieving the tablet camera.
- Police viewed two videos showing L.’s exposed breasts, buttocks, and vaginal area; physical evidence suggested a concealed camera had been installed in the bathroom and in L.’s room.
- Defendant was charged with two counts of using a minor for purposes of posing for sexual conduct (Pen. Code § 311.4(c)); two child-molesting counts were dismissed before trial and the jury convicted on one count.
- On appeal defendant argued the trial court had a sua sponte duty to instruct the jury on the lesser, uncharged misdemeanor offense of unauthorized invasion of privacy (Pen. Code § 647(j)(3)(A)). The court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court had a sua sponte duty to instruct on unauthorized invasion of privacy as a lesser included offense of using a minor for posing for sexual conduct | Trial (People) argued the court need only instruct on necessarily included offenses and that invasion of privacy is not included here | Defendant argued invasion of privacy was a lesser included offense under the accusatory pleading test because preliminary hearing evidence supplied the missing elements (concealed camera and intent) | Court held no duty to instruct: invasion of privacy is not a lesser included offense under the elements test, and the accusatory pleading test looks only to the charging pleading (not preliminary hearing evidence) |
| Whether preliminary hearing evidence can be used to expand the accusatory pleading test to supply missing elements | People maintained precedent requires examining only the accusatory pleading; preliminary hearing evidence cannot broaden the pleading | Defendant relied on People v. Ortega to argue preliminary hearing testimony can supply missing elements so the lesser offense is included | Court rejected Ortega, followed People v. Montoya: preliminary hearing evidence may not be used to expand the accusatory pleading test; only the pleading itself is considered |
Key Cases Cited
- People v. Landry, 2 Cal.5th 52 (Cal. 2016) (describes sua sponte duty to instruct on lesser included offense when substantial evidence shows defendant guilty only of lesser)
- People v. Shockley, 58 Cal.4th 400 (Cal. 2013) (explains elements and accusatory pleading tests for lesser included offenses)
- People v. Montoya, 33 Cal.4th 1031 (Cal. 2004) (accusatory pleading test limited to the pleading; preliminary hearing evidence not used to create lesser included offenses)
- People v. Ortega, 240 Cal.App.4th 956 (Cal. Ct. App. 2015) (held preliminary hearing testimony could supply missing elements under an expanded accusatory pleading test; rejected by this opinion)
- People v. Smith, 57 Cal.4th 232 (Cal. 2013) (supports rule that only the accusatory pleading is examined under the accusatory pleading test)