63 Cal.App.5th 107
Cal. Ct. App.2021Background:
- Defendant Camilo Vasquez was accused of sexually assaulting R., an 11‑year‑old girl who lived on the same property; the incident involved forcible intercourse and alleged tying/binding.
- A first jury convicted Vasquez of a lewd and lascivious act (Pen. Code §288(a)) but deadlocked on forcible rape (§261(a)(2)) and aggravated sexual assault (§269(a)(1) predicated on rape); a mistrial was declared on those counts.
- A second jury convicted Vasquez of forcible rape (count 1) and aggravated sexual assault of a child by means of rape (count 3), and found true tying/binding enhancements; he was sentenced to 25 years‑to‑life on the rape count, with other terms imposed but stayed.
- On appeal Vasquez raised three issues: (1) the trial court failed to sua sponte instruct on statutory rape (§261.5) as a lesser included offense of aggravated sexual assault by rape; (2) both rape and aggravated sexual assault convictions (the latter necessarily including the former) cannot stand; (3) three trial actions in the retrial allegedly reduced the prosecution’s burden of proof.
- The Court of Appeal held there was no substantial evidence requiring a statutory‑rape instruction, vacated the aggravated sexual assault conviction (count 3) by agreement of the parties because of sentencing anomalies, and rejected the claims that trial actions reduced the prosecution’s burden of proof; the remainder of the judgment was affirmed.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court had a sua sponte duty to instruct on statutory rape as a lesser included of aggravated sexual assault (rape predicate) | Statutory rape is a lesser included offense but there was not substantial evidence it was the only offense committed | Court should have instructed because evidence (defendant’s statements denying force; uncertain tying evidence) could support conviction of statutory rape only | No duty to instruct; evidence did not substantially support absence of force/fear, so no statutory‑rape instruction required |
| Whether multiple convictions based on a necessarily included offense may both stand | Agreed one conviction must be vacated; recommended vacating the aggravated sexual assault count given sentencing results | Defendant sought relief but parties jointly requested vacatur of count 3 | Vacated conviction on count 3 (aggravated sexual assault); left rape conviction (count 1) intact because it carried the longer potential term under §667.61 and §654 principles |
| Whether three trial matters in the retrial (verdict form wording; court statement that lewd act was "conceded"; CALCRIM 1191A wording) lowered the People’s burden of proof | Issues largely forfeited or, as to instructions, not prejudicial or erroneous | These actions combined to permit conviction on less than beyond a reasonable doubt | Verdict‑form and jury‑note response claims forfeited; calling the lewd act “conceded” not materially different from “assume”; propensity instruction adequately distinguished charged v. uncharged acts; no reversible error |
Key Cases Cited
- People v. Birks, 19 Cal.4th 108 (1998) (tests for determining when an offense is a necessarily included offense)
- People v. Breverman, 19 Cal.4th 142 (1998) (trial court must instruct sua sponte on lesser included offenses that have substantial evidentiary support)
- People v. Sattiewhite, 59 Cal.4th 446 (2014) (definition of "substantial evidence" for lesser‑included instruction context)
- People v. Pearson, 42 Cal.3d 151 (1986) (prohibits multiple convictions based on necessarily included offenses)
- People v. Ceja, 49 Cal.4th 1 (2010) (explains rationale for forbidding concurrent convictions on greater and necessarily included offenses)
- In re Winship, 397 U.S. 358 (1970) (prosecution must prove every element beyond a reasonable doubt)
- Victor v. Nebraska, 511 U.S. 1 (1994) (standard for assessing whether jury instructions impermissibly lowered prosecution’s burden)
- People v. Chan, 128 Cal.App.4th 408 (2005) (typical remedy is to reverse the included offense and dismiss the lesser)
- People v. Toro, 47 Cal.3d 966 (1989) (verdict form objections are generally waived if not raised at trial)
- People v. Landry, 2 Cal.5th 52 (2016) (party must request clarifying or amplifying instruction to preserve claim that an otherwise correct instruction was inadequate)