Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of San Bernardino, No. FSB801884, Arthur A. Harrison, Judge.
AARON, J.
I.
INTRODUCTION
A jury found Joe Martinez guilty of inflicting corporal injury on a spouse (Pen. Code, § 273.5, subd. (a)) (count 1), attempted sodomy by use of force (§§ 664, 286, subd. (c)(2)) (count 3), attempted sexual penetration by a foreign object (§§ 664, 289, subd. (a)(1))(count 4), and spousal rape (§ 262, subd. (a)(1)) (count 5). In a bifurcated proceeding, the jury also found, with respect to each of these counts, that Martinez had suffered two prior strike convictions within the meaning of section 1170.12, subdivisions (a) through (d) and section 667, subdivisions (b) through (i). The trial court sentenced Martinez to an aggregate term of 50 years to life in prison.
Unless otherwise specified, all subsequent statutory references are to the Penal Code.
With respect to count 4, the jury found Martinez guilty of attempted sexual penetration by a foreign object (§§ 664, 289, subd. (a)(1)) as a lesser included offense of the charged offense of sexual penetration by a foreign object (§ 289, subd. (a)(1)).
On appeal, Martinez claims that the trial court erred in failing to instruct the jury sua sponte on the offenses of assault (§ 240) and battery (§ 242), as lesser included offenses of forcible sexual penetration (§ 289, subd. (a)(1)) (count 4) and spousal rape (§ 262, subd. (a)(1)) (count 5). We affirm the judgment.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Factual background
1. The prosecution's evidence
Jane Doe testified that she had been married to Martinez for 11 years. In November 2007, Martinez struck Doe in the face several times. Doe remained in a relationship with Martinez out of fear.
a. Count 1
On April 26, 2008, Doe and Martinez went to a park to attend a barbeque with several of Martinez's friends. Doe overheard Martinez talking on a telephone with a woman with whom Doe suspected Martinez was having a romantic relationship. Doe walked over to Martinez and told him not to disrespect her in front of his friends. As she walked away, Martinez threw a full can of beer at Doe. The can struck Doe in the head, causing her to lose consciousness. When Doe regained consciousness, Martinez was hitting and kicking her. Doe suffered numerous bruises from the attack.
b. Counts 2-5
On April 30, 2008, Doe testified that Martinez came home in the early morning hours and demanded sex. Doe refused. Martinez forcefully pulled her down and began to physically and sexually assault her. Doe testified that Martinez attempted to place his penis in her mouth and in her anus. According to Doe, she was able to prevent Martinez from placing his penis in her mouth by moving her head back and forth. Doe testified that Martinez was unable to fully penetrate her anus, but that he did so slightly. Doe also testified that Martinez attempted to put his finger in her anus and that "it felt like penetration...." Doe was in "a lot" of pain. Finally, "after all of the struggle, " Martinez was able to place his penis in Doe's vagina and have sexual intercourse.
Later that same day, Doe was riding as a passenger in a car that Martinez was driving. Doe saw a police car, and mouthed the words "help me" to an officer in the car. San Bernardino Police Officer Araceli Mata and his partner stopped Martinez's car. Officer Mata testified that upon making contact with Doe, he noticed bruising on her face. Officer Mata asked Doe if everything was okay. Doe responded, "No, I just want to go home." Officer Mata requested that Doe get out of Martinez's car. Officer Mata and Doe walked about 15 feet away from Martinez's car. Doe then told Officer Mata that Martinez had sexually assaulted her that morning. Doe also told Mata about the incident at the park on April 26 during which Martinez had hit and kicked her. Officer Mata transported Doe to the hospital in order to have a sexual assault examination performed.
Sexual assault nurse examiner Kris Rowney performed the sexual assault examination. Rowney did not observe any injuries to Doe's external or internal genitalia. Rowney observed a quarter-inch tear on the outside of the Doe's anal folds in the perianal area. Rowney opined that the tear was consistent with digital penetration to the anal area.
2. The defense
Sexual assault nurse examiner Cari Caruso testified that she had reviewed records pertaining to Rowney's examination of Doe. According to Caruso, the report was unclear as to whether Martinez had penetrated Doe's anus with his penis, and the report did not indicate that Martinez had penetrated Doe's anus with his finger.
3. Rebuttal
Rowney testified that she asked Doe whether Martinez had put his penis "into [Doe's] anal area...." Rowney testified that Doe responded in the negative, but clarified that his "penis had touched up there...." Rowney also said that Doe told her that Martinez put his fingers "there in an attempt to put it into the anal area."
B. Procedural background
In August 2008, the People filed an information charging Martinez with inflicting corporal injury on a spouse (§ 273.5, subd. (a)) (count 1), attempted forcible oral copulation (§§ 664, 288a, subd. (c)(2)) (count 2), attempted sodomy by use of force (§§ 664, 286, subd. (c)(2)) (count 3), sexual penetration by a foreign object (§ 289, subd. (a)(1)) (count 4), and spousal rape (§ 262, subd. (a)(1)) (count 5). In addition, with respect to each count, the People alleged that Martinez had suffered two prior strike convictions within the meaning of section 1170.12, subdivisions (a) through (d) and section 667, subdivisions (b) through (i).
The jury found Martinez guilty of the charged offenses on counts 1, 3 and 5. The jury found Martinez guilty of the lesser included offense of attempted sexual penetration by a foreign object on count 4 (§§ 664, 289, subd. (a)(1)), and found Martinez not guilty on count 2. With respect to counts 1, 3, 4, and 5, the jury subsequently found that Martinez had suffered two prior strike convictions (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)).
At sentencing, the trial court struck the strike priors with respect to counts 3 and 4. The trial court sentenced Martinez to an aggregate sentence of 50 years to life in prison, comprised of a term of 25 years to life on count 1, and 25 years to life on count 5, to be served consecutively to the sentence on count 1. On counts 3 and 4, the trial court imposed four-year terms on each count, to be served concurrently with each other and with the sentences on counts 1 and 5.
Martinez timely appeals from the judgment.
III.
DISCUSSION
The trial court did not err in failing to instruct the jury sua sponte on assault and battery as lesser included offenses to the charged offenses in counts 4 and 5
Martinez claims that the trial court erred in failing to instruct the jury sua sponte on assault (§ 240) and battery (§ 242) as lesser included offenses of sexual penetration by a foreign object (§ 289, subd. (a)(1)) (count 4) and spousal rape (§ 262, subd. (a)) (count 5).
A. Procedural background
During a jury instruction conference, the trial court indicated to counsel that attempted sexual penetration by a foreign object (§§ 664, 289, subd. (a)(1)) is a lesser included offense of the charged offense of sexual penetration by a foreign object (§ 289, subd. (a)(1)) (count 4), and that attempted spousal rape (§§ 664, 262, subd. (a)(1)) is a lesser included offense of the charged offense of spousal rape (§ 262, subd. (a)(1)). The court inquired of counsel whether the court should instruct on attempted sexual penetration by a foreign object and attempted spousal rape. Defense counsel replied that he was not requesting such instructions. The prosecutor requested that the court instruct on attempted sexual penetration by a foreign object, but not on attempted spousal rape. The trial court stated that it was inclined to instruct on both attempted sexual penetration by a foreign object and attempted spousal rape. Neither the trial court nor counsel discussed whether the court should instruct the jury on assault (§ 240) and/or battery (§ 242).
With respect to count 4, the trial court instructed the jury on the charged offense of sexual penetration by a foreign object (§ 289, subd. (a)(1)), and attempted sexual penetration by a foreign object (§§ 664, 289, subd. (a)(1)). With respect to count 5, the trial court instructed the jury on the charged offense of spousal rape (§ 262, subd. (a)(1)), and the lesser included offense of attempted spousal rape (§§ 664, 262, subd. (a)(1)).
On count 4, the jury found Martinez guilty of the lesser included offense of attempted sexual penetration by a foreign object (§§ 664, 289, subd. (a)(1)). On count 5, the jury found Martinez guilty of the charged offense of spousal rape (§ 262, subd. (a)(1)).
B. Standard of review
"'We apply the independent or de novo standard of review to the failure by the trial court to instruct on an assertedly lesser included offense. [Citation.]" (People v. Cole (2004) 33 Cal.4th 1158, 1218 (Cole).) In considering whether the trial court had a sua sponte duty to instruct the jury on lesser included offenses, we construe the evidence in the light most favorable to the appellant. (People v. Turk (2008) 164 Cal.App.4th 1361, 1368.)
C. Governing law
1. A trial court's duty to instruct on lesser included offenses
"A trial court must instruct the jury sua sponte on a lesser included offense only if there is substantial evidence, "'that is, evidence that a reasonable jury could find persuasive'" [citation], which, if accepted, "'would absolve [the] defendant from guilt of the greater offense' [citation] but not the lesser." [Citation.]'" (Cole, supra, 33 Cal.4th at p. 1218.) In other words, "[s]uch instructions are required only where there is 'substantial evidence' from which a rational jury could conclude that the defendant committed the lesser offense, and that he is not guilty of the greater offense." (People v. DePriest (2007) 42 Cal.4th 1, 50.)
However, "'"if there is no proof, other than an unexplainable rejection of the prosecution's evidence, that the offense was less than that charged, such instructions [on lesser included offenses] shall not be given."' [Citations.]" (People v. Friend (2009) 47 Cal.4th 1, 51-52.) In such a case, the jury is properly left with "'an all-or-nothing choice'" ─ either the defendant committed the greater offense, or none at all. (Id. at p. 52; see e.g., People v. Ghent (1987) 43 Cal.3d 739, 757 [rejecting defendant's claim that trial court erred in failing to instruct on certain lesser offenses of rape, including battery and simple assault, because "under the evidence defendant was guilty of 'rape or attempted rape or nothing'"]; accord People v. Leal (2009) 180 Cal.App.4th 782, 792 [concluding trial court did not err in failing to instruct on simple assault as lesser included offense because "no reasonable juror could have found that he was guilty of simple assault but not guilty of assault with intent to commit either rape or another sexual offense"].)
2. The charged offenses
Section 289, subdivision (a)(1) provides: "Any person who commits an act of sexual penetration when the act is accomplished against the victim's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person shall be punished by imprisonment in the state prison for three, six, or eight years."
Section 262 provides in relevant part: "(a) Rape of a person who is the spouse of the perpetrator is an act of sexual intercourse accomplished under any of the following circumstances: (1) Where it is accomplished against a person's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another."
3. Assault (§ 240) and battery (§ 242)
Section 240 provides in relevant part: "An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another."
Section 242 provides in relevant part: "A battery is any willful and unlawful use of force or violence upon the person of another."
D. Application
We assume for purposes of our analysis that assault and battery are lesser included offenses of both sexual penetration by a foreign object (§ 289, subd. (a)(1)) and spousal rape (§ 262, subd. (a)(1)). Therefore, we must consider whether a reasonable jury could have found Martinez guilty of assault and/or battery but not guilty of sexual penetration by a foreign object (§ 289, subd. (a)(1)) and spousal rape (§ 262, subd. (a)(1)). (See People v. DePriest, supra, 42 Cal.4th at p. 50.)
We therefore need not consider the People's contention that battery is not a lesser included offense of sexual penetration by a foreign object.
Doe testified at trial that early in the morning on April 30, Martinez came home and demanded sex. He called Doe a derogatory name. Doe told Martinez that she did not want to have sex. According to Doe, the two then "fought" and "struggled." Martinez attempted to penetrate Doe vaginally, but she fought him off. Martinez then flipped Doe over, and attempted to penetrate her anally, both with his penis and his finger. Doe moved back and forth in an attempt to get away from Martinez. During this struggle, Doe testified that Martinez penetrated her anus with his penis "a little bit." Doe also testified that Martinez attempted to place his penis in her mouth, but she moved her mouth left and right and pushed Martinez away. Doe testified that she ultimately, "couldn't fight it no more, " and that Martinez raped her.
Neither the People nor the defense presented any evidence of an assault or battery occurring on the morning of April 30, other than Martinez's actions committed in the course of his alleged sexual assaults upon Doe.
Under these circumstances, in order to find that Martinez committed an assault and/or battery upon Doe, but that he did not sexually assault her, the jury would have had to accept that portion of Doe's testimony in which she testified that Martinez physically assaulted and battered her on the morning of April 30th, but rejected her testimony that, during that struggle, Martinez sexually assaulted her. There is no basis on which a reasonable juror could have made such a finding. The trial court was not required to instruct the jury on the lesser included offenses of assault and battery based on Doe's testimony. (See People v. Friend, supra, 47 Cal.4th at pp. 51-52[trial court not required to provide lesser included offense instruction based on "unexplainable rejection of the prosecution's evidence"].)
We reject Martinez's suggestion that the trial court was required to instruct the jury on assault and battery because the jury may have reasonably found that Doe consented to the sexual activity. (See People v. King (2010) 183 Cal.App.4th 1281, 1319 (King); People v. Lema (1987) 188 Cal.App.3d 1541 (Lema).) In King, the court rejected King's contention that the trial court was required to instruct the jury on misdemeanor sexual battery as a lesser included offense of various unlawful sexual penetration offenses, in light of the King's defense that the victim had consented to the activity. The King court reasoned:
Specifically, Martinez argues that instructions on assault and battery were required because "it is often difficult to determine where on the continuum from voluntary participation to indisputable rape a particular incident falls."
"If the jury believed [the victim] and [an eyewitness], the elements of section 289, subdivision (g) were established. On the other hand, if the jury credited King's defense that [the victim] consented, then he was entitled to acquittal. If King was guilty at all, he was guilty of sexual penetration." (King, supra, 183 Cal.App.4th at p. 1319.)
In Lema, the court concluded that the trial court had not erred in failing to instruct the jury on assault and battery as lesser included offenses of rape in a case in which the defendant contended that the victim had consented to the sexual activity. (Lema, supra, 188 Cal.App.3d at pp. 1544-1545.) The Lema court reasoned:
"Defendant attempted to convince the jury that Mary B. voluntarily accompanied him to a secluded area where they engaged in consensual sexual activity. If believed, defendant's version of the events would operate as a complete defense to the charged offenses ─ rape, oral copulation by force and kidnap[p]ing. Under this theory, the court has no obligation to instruct on the offense of assault and battery since no evidence was presented by the defense that the offenses were less than those charged." (Id. at p. 1545.)
Similarly, in this case, if the jury had found, as Martinez suggests in his brief, that Doe "voluntar[ily] participa[ted]" in the sexual activity, the jury would have acquitted Martinez of all sexual offenses related to counts 4 and 5; there would have been no basis for the jury to find him guilty of assault and/or battery.
Accordingly, we conclude that the trial court did not err in failing to instruct the jury sua sponte on assault and battery as lesser included offenses of the charged offenses on counts 4 and 5.
In light of our conclusion, we need not consider the People's contention that any error committed by the trial court was harmless.
IV.
DISPOSITION
The judgment is affirmed.
WE CONCUR: McINTYRE, Acting P. J., IRION, J.
The victim testified at trial using the pseudonym Jane Doe.