THE PEOPLE, Plaintiff and Respondent, v. CAESAR AUGUSTUS LOPEZ, Defendant and Appellant.
No. S064118
Supreme Court of California
Nov. 2, 1998
19 Cal.4th 282
COUNSEL
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Robert M. Foster, Warren P. Robinson and Randall D. Einhorn, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
CHIN, J.-In this case we consider whether the trial court, in instructing the jury on the elements of the charged felony offense of committing a lewd act upon a child under the age of 14 (
We have taken the following uncontradicted facts in large part from the Court of Appeal decision in this case. Defendant Caesar Augustus Lopez was charged by amended information in count 1 with committing a lewd act on a child under the age of 14 (
Defendant pleaded guilty to count 2. The jury convicted him of count 1 and found true the count 1 enhancement allegations. Defendant admitted the truth of the prior serious or violent felony conviction allegations. He was sentenced to state prison for an aggregate term of 61 years to life.
I. THE EVIDENCE
Late one afternoon in 1995, five-year-old Arielle H. visited her friend Vicky at an apartment building in Escondido. While Vicky and Arielle were playing outside the building, defendant approached them, held out a lollipop, and asked, “Hey, little girl, want some candy?” Vicky warned Arielle not to take the candy and not to talk to strangers, but Arielle took the lollipop.
Defendant told Arielle he was going to take her home. (Arielle‘s testimony was unclear and contradictory on this point: At times she denied that defendant told her he was taking her home, and at other times she claimed he did say that.) She accompanied him. They walked approximately 90 feet, rounded a corner, and walked another 118
Neighbors detained defendant until police arrived. Police searched him and found two lollipops and a jar of Vaseline. (Detective Claytor testified that child molesters sometimes use lubricants such as Vaseline to masturbate or to allow penetration of younger children.) Defendant had purchased two lollipops and a jar of Vaseline earlier that day at a store two blocks from Vicky‘s apartment.
Defendant waived his Miranda rights.2 He told police he had gone to the apartment complex to visit a woman and had spoken to a man about renting an apartment. He noticed the two girls and touched the friendlier one. He admitted touching Arielle‘s vagina through her dress for purposes of sexual gratification. He admitted having sexual fantasies about children.
The next day defendant telephoned a social worker he knew and told her about his involvement in a child molestation. He stated he accepted responsibility for his actions and wanted to go to jail because “it would be safe for him [there].”
A few days later, Detective Claytor contacted defendant, who told Claytor he was worried about reuniting with his family because he feared he might molest someone again. Defendant stated he felt he could not control himself.
The evidence also showed that in 1984 defendant had engaged in similar misconduct involving seven-year-old Taron S., who was playing with friends at a school yard when defendant approached her and asked for her help in locating a missing cat. He walked with her to a kindergarten playground, where he gave her a lollipop. They then walked down an alley, and defendant led her by the wrist to his truck, placed her inside, and drove away. He kept Taron in the truck for a five-hour period, during which he repeatedly molested her. He touched her vagina over her dress, and, after placing Vaseline on his hand, he touched her under her dress. He forced her to touch his penis with her hands and mouth and to masturbate him until he ejaculated. He eventually released her near the school after threatening to hurt her or her family if she said anything about the incident.
II. DISCUSSION
Defendant argues that the trial court was obliged to instruct sua sponte on misdemeanor child annoyance (
According to defendant, the jury could have had a reasonable doubt as to whether he entertained a lustful intent when he touched Arielle. He suggests the jury might have believed he was merely trying to “lift” Arielle, as Vicky described, and move her to another location where he could commit the lewd conduct offense. In defendant‘s view, a properly instructed jury could have found his acts did not amount to lewd conduct under
A. Sua Sponte Instructions
A court must instruct sua sponte on general principles of law that are closely and
The requirement that courts give sua sponte instructions on lesser included offenses “is based on the defendant‘s constitutional right to have the jury determine every material issue presented by the evidence. [Citations.]” (People v. Ramkeesoon, supra, 39 Cal.3d at p. 351.) This sua sponte duty to instruct exists even if the defendant expressly objects to the instruction. (Barton, supra, 12 Cal.4th at p. 195.) As stated in Barton, quoting from an earlier case, ” ‘[A] defendant has no legitimate interest in compelling the jury to adopt an all or nothing approach to the issue of guilt. Our courts are not gambling halls but forums for the discovery of truth.’ [Citation.]” (Id. at p. 204; see also People v. Birks (1998) 19 Cal.4th 108, 117-120 [77 Cal.Rptr.2d 848, 960 P.2d 1073] [retroactively overruling People v. Geiger (1984) 35 Cal.3d 510 [199 Cal.Rptr. 45, 674 P.2d 1303, 50 A.L.R.4th 1055]].)
B. Lesser Included Offenses
To determine whether a lesser offense is necessarily included in the charged offense, one of two tests (called the “elements” test and the “accusatory pleading” test) must be met. The elements test is satisfied when ” ‘all the legal ingredients of the corpus delicti of the lesser offense [are] included in the elements of the greater offense.’ [Citation.]” (People v. Anderson (1975) 15 Cal.3d 806, 809-810 [126 Cal.Rptr. 235, 543 P.2d 603], quoting People v. Francis (1969) 71 Cal.2d 66, 73 [75 Cal.Rptr. 199, 450 P.2d 591]; see People v. Lagunas (1994) 8 Cal.4th 1030, 1034 [36 Cal.Rptr.2d 67, 884 P.2d 1015].) Stated differently, if a crime cannot be committed without also necessarily committing a lesser offense, the latter is a lesser included offense within the former. (People v. Birks, supra, 19 Cal.4th at p. 117; People v. Toro (1989) 47 Cal.3d 966, 972 [254 Cal.Rptr. 811, 766 P.2d 577]; People v. Lohbauer (1981) 29 Cal.3d 364, 369 [173 Cal.Rptr. 453, 627 P.2d 183].)
Under the accusatory pleading test, a lesser offense is included within the greater charged offense “if the charging allegations of the accusatory pleading include language describing the offense in such a way that if committed as specified the lesser offense is necessarily committed.’ [Citation.]” (People v. Toro, supra, 47 Cal.3d at p. 972, quoting People v. Geiger, supra, 35 Cal.3d at p. 517, fn. 4; see People v. Lagunas, supra, 8 Cal.4th at p. 1034.)
C. Applying the Elements Test
We first apply the elements test of included offenses and compare the elements of
As previously observed,
We have observed that the words “annoy” and “molest” in former section 647a (now
” ‘Annoy’ and ‘molest’ ordinarily relate to offenses against children, with a connotation of abnormal sexual motivation. The forbidden annoyance or molestation is not concerned with the child‘s state of mind, but rather refers to the defendant‘s objectionable acts that constitute the offense. (People v. Carskaddon, supra, 49 Cal.2d at p. 426.)
Accordingly, to determine whether the defendant‘s conduct would unhesitatingly irritate or disturb a normal person, we employ an objective test not dependent on whether the child was in fact irritated or disturbed. (People v. Kongs (1994) 30 Cal.App.4th 1741, 1750 [37 Cal.Rptr.2d 327] [
Under the elements test for lesser included offenses, the criminal conduct that
For example, a lewdly intended embrace innocently and warmly received by a child might violate
Defendant argues that a violation of
As the Court of Appeal in this case observed, “[defendant‘s] argument is based on the erroneous premise that the disturbing nature of the conduct under
Thus, in McNair, the defendant exposed himself to a seven-year-old child in a public place, conduct that would irritate or disturb any normal person without regard to the defendant‘s intent. (People v. McNair, supra, 130 Cal.App.2d at pp. 697-698.) In In re Sheridan (1964) 230 Cal.App.2d 365 [40 Cal.Rptr. 894], the defendants offered to give the child victims a ride, but, after driving a short distance, the defendants refused to allow the victims out of the car and held them against their will for a period of time, which again was conduct that would irritate or disturb a normal person regardless of the defendants’ subjective mental state. (Id. at pp. 370-371.) In Thompson, the defendant drove alongside a 12-year-old child riding her bicycle. He stared at her and made gestures toward her with his hand and lips. He continued following her for an extended period of time, driving at slow speeds and making U-turns to maintain contact with her. (People v. Thompson, supra, 206 Cal.App.3d at pp. 461-462.) The court concluded that, although the conduct was not particularly lewd, the “behavior would place a normal person in a state of being unhesitatingly irritated, if not also fearful” (id. at p. 467), thereby satisfying the conduct element of former section 647a (now
Conversely, in the only case we have found that reversed a conviction under former section 647a (now
Of course, none of these cases are conclusive, as none expressly hold that a subjective lewd intent alone would be insufficient to sustain a conviction under
Our analysis requires us to disapprove several Court of Appeal decisions that have reached a contrary conclusion. (See People v. Callan (1985) 174 Cal.App.3d 1101, 1112 [220 Cal.Rptr. 339]; People v. Gordon (1985) 165 Cal.App.3d 839, 864 [212 Cal.Rptr. 174]; People v. Poon (1981) 125 Cal.App.3d 55, 80 [178 Cal.Rptr. 375]; People v. La Fontaine (1978) 79 Cal.App.3d 176, 183 [144 Cal.Rptr. 729].) None of these cases had the benefit of our decision in People v. Martinez, supra, 11 Cal.4th at pages 443-452, and its definitive explication of the elements comprising the offense described in
La Fontaine did not purport to analyze the elements of the two separate offenses before reaching its conclusion, but instead simply declared: “There can be no rational dissent from the fact that a violation of [former] section 647a [now
We observe that our own recent authority was equivocal on the subject. (See People v. Memro, supra, 11 Cal.4th at pp. 870-871 [“It has been held that misdemeanor child molestation under former section 647a was a lesser included offense of section 288. [Citation.] Even if that is so ... -issues we do not decide-we disagree that he was entitled to an instruction on [former section 647a].“].)
D. Applying the Accusatory Pleading Test
Defendant alternatively argues the accusatory pleading in his case described conduct that necessarily would have violated
The court in Lohbauer faced an analogous issue. The accusatory pleading charged the defendant with burglary (
As the Court of Appeal in this case correctly explained, “We therefore assess whether the conduct described in the accusatory pleading-a nonforcible or consensual touching of the vaginal area of a female through her clothing-necessarily violates
III. CONCLUSION
We therefore conclude that
The Court of Appeal had ordered the case remanded for reconsideration of the sentence under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 [53 Cal.Rptr.2d 789, 917 P.2d 628], to allow the trial court to exercise the discretion discussed in that case. The People have not objected to that remand, which appears proper. Accordingly, we affirm the judgment of the Court of Appeal remanding the matter for resentencing consistent with the sentencing standard set forth in Romero and affirming the trial court‘s judgment in all other respects.
George, C. J., Mosk, J., Kennard, J., Werdegar, J., and Brown, J., concurred.
BAXTER, J., Concurring.----I agree with the majority‘s reasoning and result. I write separately to make two additional points.
First, the People have consistently asserted that even if misdemeanor child molestation (
As the majority generally explain, a violation of
Here the evidence was conclusive that defendant touched Arielle H. on her vagina through her dress. In response to specific questions during his police interview, defendant repeatedly admitted he was sexually attracted to children, approached Arielle H. for that reason, and touched her private parts for the purpose of obtaining immediate sexual gratification. By his own admission, therefore, defendant satisfied all the elements
Defendant posits there was evidence from which the jury could infer that the touching was done not for immediate gratification, as is required under
However, there is no evidence that defendant engaged in sexually motivated conduct other than a lewd touching. Defendant made no suggestion that he merely happened to touch Arielle‘s vagina during a preparatory act; instead, he admitted a touching for the purpose of immediate gratification. Defendant notes the testimony of Arielle‘s friend Vicky that she thought defendant was trying to lift Arielle, but Vicky‘s opinion cannot contradict defendant‘s own description of his intent and state of mind when the touching occurred.
At various times in his police interview, defendant did state that he was just telling his interrogators what they wanted to hear, and that his real motive for approaching and touching Arielle H. was that he had a methamphetamine problem, was not ready to reunite with his family, and therefore wished to be caught and returned to prison. This alternate explanation does not support the theory of a sexually motivated preparatory act which defendant has pursued on appeal. Indeed, this version suggests an absence of the sexual elements of both the charged offense and the lesser offense.
Thus, only speculation, contradicted by defendant‘s express descriptions of his conduct and specific mental state, supports the notion that he engaged in annoying and irritating conduct toward Arielle for sexual reasons, but did not touch her for the purpose of immediate sexual gratification. For this reason, in addition to that set forth by the majority, the instant trial court had no sua sponte obligation to instruct on misdemeanor molestation.
Second, some additional comments on the meaning of the terms “annoy[]” and “molest[],” as used in
On the other hand, I question any inference that in deciding whether particular conduct was objectively irritating or annoying, the fact finder must consider only the inherent nature of the behavior itself, in utter isolation from its factual context. I doubt that
The statute, of course, speaks of “annoy[ing] or molest[ing] a child.” (
This purpose is undermined by any inference that the statute only applies to behavior which would be overtly obnoxious, repulsive, frightening, or disconcerting in any context.2 Sex offenders do not always approach their underage victims with behavior that is rude, obscene, or offensive on its face. Often they employ subtler means, capitalizing on childish naiveté and vulnerability to befriend, entice, and lure. Cognizant of this danger, the community understands that conduct deemed innocuous when it occurs among adults, or in a setting of family or friends, may take on a more sinister connotation when directed, for example, toward a child whom the perpetrator does not know.
Accordingly, in my view, irritating or annoying conduct, for purposes of
Thus, in deciding whether conduct not offensive on its face was nonetheless unhesitatingly irritating or annoying in context, the factfinder should be able to consider all the circumstances in which it occurred. These may include, among other things, the prior relationship, if any, between the child and the defendant, whether there was any legitimate reason for contact between the defendant and the child, the respective ages of the defendant and the child, both absolute and relative to each other, whether adults were present when the contact occurred, and whether the nature and persistence of the contact would readily cause a reasonable person to suspect the defendant‘s perverse motivation.
Such a construction of
annoying to such a person, but it still does not violate the statute unless there was perverse sexual motivation in fact.3
Furthermore, this interpretation does not affect the majority‘s conclusion that molestation, as defined by
Nor has prior authority so settled the construction of
Nor does Carskaddon, supra, 49 Cal.2d 423, clearly require that the objectionable act itself be overtly lewd, obscene, or offensive. While Carskaddon noted that its facts were distinguishable on that ground from those of McNair, supra, 130 Cal.App.2d 696, and Moore, supra, 137 Cal.App.2d 197, the narrow holding of Carskaddon is only that the particular evidence there at issue was insufficient to establish a violation of the molestation statute.
In that case, a citizen observed the defendant in the company of a six-year-old girl and a four-year-old boy in a public park. (Carskaddon, supra, 49 Cal.2d 423, 425.) After the boy left, the defendant remained under
a tree with the girl for about 10 minutes. (Ibid.) The two then went to a concession stand, where he bought her an ice cream bar. (Ibid.) Thereafter, the defendant “walked down a public street with the little girl by his side, and ... when stopped and queried by [a police] officer, ... stated that the girl was lost and he was taking her home.” (Id., at p. 426.) The girl told the officer the defendant was taking her down to the river ” ‘to show her--,’ ” but her statement was interrupted. (Ibid.) Although the two were walking in a direction away from the girl‘s address, Carskaddon reasoned, there was no evidence the defendant was not “innocently befriending” the girl and did not ultimately intend to escort her home after taking her to the river for an innocent purpose. (Ibid.) Thus, Carskaddon concluded, there was no substantial evidence of anything other than “friendly noncriminal activity“; suspicions of an ulterior motive were mere “speculation.” (Ibid.)
Carskaddon did not indicate whether it found insufficient evidence that the conduct was objectively annoying, or whether the perceived deficiency related to the defendant‘s subjective intent. Indeed, Carskaddon did not appear to recognize these two independent elements of the offense as they have since been confirmed (see, e.g., Gladys R., supra, 1 Cal.3d 855, 867), and may thus have assumed that if the act itself were not ” ‘so lewd or obscene that the normal person would unhesitatingly be irritated by it’ ” (Carskaddon, supra, 49 Cal.2d 423, 426, quoting McNair, supra, 130 Cal.App.2d 696, 698), problems of vagueness and overbreadth might arise.4 Moreover, the evidence
Accordingly, I do not read Carskaddon as precluding the construction I propose. Nor, at length, do I interpret the majority‘s opinion to foreclose such an interpretation in a case where the issue is directly presented. With these caveats, I join the reasoning and result adopted by the majority.