People v. Shockley, 58 Cal. 4th 400

Background

Defendant Shockley attended a 10th birthday party for Jane Doe, Jane being the stepdaughter of his granddaughter, where he kissed Jane with his tongue in her mouth.
Two days later, Shockley and Jane (and Jane’s nine-year-old stepsister) went to a movie; on the drive home he rubbed Jane’s stomach and touched her vaginal area with his hand outside her clothes for about five minutes.
Jane reported the conduct to a family member; police interviewed Shockley, who admitted rubbing Jane’s stomach and belly button, but denied touching the vaginal area.
A jury found Shockley guilty of lewd conduct with a child under 14 (Pen. Code § 288(a)); he appealed claiming the trial court had a sua sponte duty to instruct on battery (Pen. Code § 242) as a lesser included offense.
The Court of Appeal affirmed; the Supreme Court granted review to decide whether battery is a lesser included offense of lewd conduct with a child.
The majority held that battery is not a lesser included offense of lewd conduct; the concurrence argued the opposite but concurred in the affirmation based on the facts.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Is battery a lesser included offense of lewd conduct with a child?	Shockley: battery is included because lewd touching inherently harms/offends.	Thomas: battery is not lesser because lewd conduct and battery can be the same act when lewd intent exists.	Battery is not a lesser included offense.
Was the trial court required to instruct on battery sua sponte?	Shockley argues court had duty if substantial evidence supports battery alone.	Thomas contends no instruction needed where lewd conduct and battery are not hierarchically subsetted.	No sua sponte duty to instruct on battery.
What test governs whether an offense is lesser included (elements vs accusatory pleading)?	Shockley relies on existing tests focusing on elements/pleading to identify inclusion.	Thomas emphasizes the traditional elements test; majority adopts a nuanced approach but not the traditional framework.	Court applied the elements test; battery not a lesser included offense.
If both offenses are charged, may jury convict of battery as a lesser offense?	If facts support only battery, jury could convict of battery even if lewd conduct is charged.	Prosecution may charge both; jury could convict of either or both depending on proof.	If both charged, battery would be instructed as a separate offense, not a lesser included offense.
What is the practical consequence for notice and defense if only lewd conduct is charged?	Charging only lewd conduct would not give notice of a potential battery theory.	Not explicitly necessary if sufficient lewd intent is proven.	Charging only lewd conduct without battery does not preclude conviction if evidence supports lewd conduct; notice concerns exist if battery predicates guilt.

Key Cases Cited

People v. Birks, 19 Cal.4th 108 (Cal. 1998) (required instruction on lesser included offenses when substantial evidence supports it)
People v. Reed, 38 Cal.4th 1224 (Cal. 2006) (elements and accusatory pleading tests for lesser included offenses)
People v. Breverman, 19 Cal.4th 142 (Cal. 1998) (purpose of lesser included offenses in ensuring justice)
People v. Webster, 54 Cal.3d 411 (Cal. 1991) (standard for determining lesser included offenses)
People v. Anderson, 15 Cal.3d 806 (Cal. 1975) (fair notice and defense rights in charging and instruction)
People v. Martinez, 11 Cal.4th 434 (Cal. 1995) (touching a child with lewd intent is harmful or offensive)
People v. Rocha, 3 Cal.3d 893 (Cal. 1971) (definition of battery—any touching; need not be violent)
People v. Pinholster, 1 Cal.4th 865 (Cal. 1992) (harmful or offensive touching required for battery element)
People v. Santos, 222 Cal.App.3d 723 (Cal. App. 1990) (battery not always a lesser included offense of lewd conduct (historical view))
People v. Thomas, 146 Cal.App.4th 1278 (Cal. App. 2007) (battery as lesser included offense of lewd conduct disputed)