Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Appeal from a judgment of the Superior Court of Orange County, Dan McNerney, Judge. Super. Ct. No. 05NF1476
Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Peter Quon, Jr., Quisteen S. Shum and Lynn McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MOORE, J.
Defendant was convicted of one count of violating Penal Code section 288, subdivision (a), committing a lewd act on a child under 14. He claims the court erred by allowing evidence of prior sexual misconduct and argues numerous other errors, mostly with respect to jury instructions. We find no error and affirm the conviction.
I
FACTS
We present the facts in the light most favorable to the judgment in accord with established rules of appellate review. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) One of defendant’s daughters was best friends with K.J. One evening in February 2005, Lauren J., K.J.’s sister, was at a friend’s house. Lauren was nearing her 12th birthday. Lauren called her mother for a ride home, but defendant picked her up instead. On the way back to Lauren’s house, defendant parked the car near a local swimming pool complex. The complex was closed and the area was dark. Defendant asked Lauren some questions, then he turned her body towards him and kissed her on the lips while inserting his tongue into her mouth. The kiss lasted about 10 seconds, after which defendant drove Lauren home.
Lauren did not say anything about this incident to her parents at the time. It came to light several weeks later when a friend’s mother overheard a conversation between Lauren and her child in the mother’s car. Once Lauren’s parents learned of the incident, they contacted the Brea Police Department. The police had Lauren make a covert call to defendant. During the call, defendant initially denied kissing Lauren and insisted that he only hugged her. He later acknowledged kissing her but denied placing his tongue in her mouth or kissing her with his mouth open. He apologized if the kiss had bothered her and promised not to do it again, but he remained firm that he had not put his tongue in her mouth. Defendant stated he never harmed another child, but admitted that he had been in trouble a long time ago when his stepsister had been raped at his brother’s house. The people in the house thought that he had committed the rape.
As a police detective explained at trial, a covert call is one made by the victim of a crime working with police to the suspect. The intent is to get the suspect to make an incriminating statement.
Defendant was charged with one count of violating Penal Code section 288, subdivision (a), committing a lewd act on a child under 14. Prior to trial, the prosecutor filed a motion pursuant to Evidence Code section 1108. The evidence the prosecutor sought to admit concerned two prior instances of sexual misconduct. In February 1987, Teresa S., defendant’s stepsister, told the Santa Ana police that she had been raped by defendant around Christmas of the prior year. The case was filed under Penal Code section 288, subdivision (a), but dismissed when Teresa was not available to testify. During the investigation of the instant case, Teresa told the police that her family had sent her to Mexico so she could not testify against defendant. Teresa also stated that defendant had exposed himself to her, fondled her, and orally copulated her from the time she was 10 or 11 years old.
Unless otherwise noted, subsequent statutory references are to the Evidence Code.
The prosecutor also sought to admit testimony by B.H., who, in 1997, told law enforcement that she was molested by defendant. He was her mother’s boyfriend at the time. She told police that she was 10 or 11 years old when she was awakened by defendant, who had his hand down her pants and was touching her vagina. She also told police in connection with this investigation that for four to five years after that incident, defendant attempted to “French kiss” her at least 20 to 25 times and sometimes put his hands between her legs when she rode with him in a car.
The trial court heard the motion on February 27, 2007. Defense counsel objected to the evidence on a number of grounds, including that the jury might want to punish defendant for the prior offenses and that the evidence was remote, time-consuming and prejudicial. The court, however, granted the prosecutor’s motion and permitted the presentation of the prior offense evidence.
At the conclusion of trial, defendant was found guilty. He was sentenced to six years in state prison.
II
DISCUSSION
Evidence of Prior Sex Offenses
Defendant makes three separate arguments regarding the admissibility of the prior offense evidence. He first claims that the evidence was inadmissible pursuant to section 1108. He then asserts the court’s ruling deprived him of equal protection and his due process right to a fair trial. Finally, he argues the court abused its discretion under sections 352 and 1101.
The court granted the prosecutor’s motion to allow evidence of prior sexual misconduct. Thus, at trial, B.H. testified that she was about nine or ten when she woke up on the couch one night and found that defendant had pulled up her nightgown, placed his hands inside her underwear, and was touching her vagina. On multiple occasions, he touched her breasts, grabbed her bottom, and kissed her by pinning her down and forcing his tongue into her mouth.
Teresa testified that defendant touched her in a way she did not like after he began living with her and her mother. When her mother was not home, defendant exposed himself to her, masturbated in her presence, kissed her while sticking his tongue in her mouth, touched her private parts, and inserted his fingers inside her private parts.
In a prosecution for sexual crimes, section 1108 specifically allows the admission of a defendant’s other sexual offenses as long as the evidence is not inadmissible under section 352. Penal Code section 288 is specifically enumerated as a crime to which section 1108 applies. (§ 1108, subd. (d)(1)(A).) “‘Evidence of a prior sexual offense is indisputably relevant in a prosecution for another sexual offense.’ [Citation.] In fact, it is precisely because such evidence is so highly probative that traditionally it has been subject to exclusion as improper character evidence in criminal trials. [Citation.] Recently, however, the ‘Legislature has determined that the policy considerations favoring the exclusion of evidence of uncharged sexual offenses are outweighed in criminal sexual offense cases by the policy considerations favoring the admission of such evidence. The Legislature has determined the need for this evidence is “critical” given the serious and secretive nature of sex crimes and the often resulting credibility contest at trial. . . .’ [Citations.]” (People v. Yovanov (1999) 69 Cal.App.4th 392, 403.)
Section 352 gives the trial court discretion to exclude evidence “if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” (§ 352.) “Where, as here, a discretionary power is statutorily vested in the trial court, its exercise of that discretion ‘must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]’ [Citation.]” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125; People v. Cain (1995) 10 Cal.4th 1, 33.) For purposes of analysis, “‘prejudicial’ is not synonymous with ‘damaging,’ but refers instead to evidence that ‘“uniquely tends to evoke an emotional bias against defendant”’ without regard to its relevance on material issues. [Citations.]” (People v. Kipp (2001) 26 Cal.4th 1100, 1121.)
People v. Harris (1998) 60 Cal.App.4th 727 (Harris), offers some useful guidance in evaluating a case under section 1108. The court suggested the following factors were relevant to evaluating the admissibility of prior sex crimes under section 1108: the inflammatory nature of the evidence, the probability of confusion, the remoteness in time of the uncharged acts to the charged crime, the consumption of time, and the probative value of the evidence, especially as to the degree of similarity.
(Id. at pp. 737-740.)
Overall, we find these factors, taken together, preclude a finding that the trial court abused its discretion. With respect to the nature of the evidence, it is proper that uncharged crimes which are far more serious than the charged crime may be admitted. (People v. Frazier (2001) 89 Cal.App.4th 30, 40-42.) Indeed, to find otherwise would be to undermine the Legislature’s intent in enacting section 1108. While any sex crime against a child is horrible, in the context of such crimes, the acts alleged were not so shocking or violent as to unduly inflame the passions of the jury, particularly a jury which had been selected with the nature of the charged crime squarely in mind.
As to confusion, we do not find that likely in this case. The jury was instructed as to the use of uncharged sex offenses (properly, as we discuss below), the reasonable doubt standard, and the necessity of proof beyond a reasonable doubt. We find nothing in the record to suggest jury confusion.
With respect to remoteness, the acts against Teresa and B.H. occurred approximately 10 and 20 years before the charged crime. This is remote, but we keep in mind that courts have found that sexual offenses as old as 30 years may be admissible. (People v. Branch (2001) 91 Cal.App.4th 274, 284.) Thus, while somewhat remote, the acts are not automatically precluded on that ground.
Any argument as to the consumption of time at trial, the next factor, is moot on appeal. Nonetheless, we do not find that the testimony in question unduly took up the court’s time. The testimony of the two witnesses at trial occupy approximately 68 pages of a 367 page trial transcript. We do not find this factor weighs in favor of finding an abuse of discretion.
The last factor, probative value, weighs squarely on the side of the prosecution. “‘Evidence of a prior sexual offense is indisputably relevant in a prosecution for another sexual offense.’ [Citation.]” (People v. Yovanov, supra, 69 Cal.App.4th at p. 403.) At trial, defendant argued that he did not kiss Lauren with sexual intent. Evidence that he had previously committed sexual acts with girls of a similar age is directly probative on this point. Defendant spends much time arguing that the uncharged acts are not sufficiently similar to the charged crime. While the uncharged acts are, for the most part, more serious, both testified that defendant committed the same act upon them, kissing them while inserting his tongue into their mouths. We do not find the fact that defendant’s behavior also included more serious acts sufficient to preclude testimony that he committed the same act on prior victims.
Taken together, the Harris factors weigh sufficiently in favor of the prosecution that we find no abuse of discretion. Defendant also urges us to consider another factor, specifically, the jury’s awareness that he was not punished for these crimes. Defendant cites no authority in support of this proposition (he cites Harris, but we find no relevance in the portions cited to this argument). Indeed, defendant’s argument, if we were to accept it, would undermine the Legislature’s intent in adopting section 1108. Moreover, even accepting this as prejudice, we find the trial court was within its discretion to determine any prejudice was outweighed by the probative value of the evidence of prior crimes.
With respect to defendant’s federal due process and equal protection challenges (which he admits he advances here to preserve for federal review) we find no merit in either argument. Section 1108 was upheld against a due process challenge in People v. Falsetta (1999) 21 Cal.4th 903, 910-911, and that decision is, of course, binding upon this court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) We also reject defendant’s argument that section 1108 violates the equal protection clause, an argument squarely rejected in the past. (People v. Fitch (1997) 55 Cal.App.4th 172, 184.)
Finally, we decline defendant’s invitation to relitigate the admissibility of this evidence in the context of section 1101 and 352. Section 1101 does not apply in cases of sex abuse: “In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant’s commission of another sexual offense or offenses is not made inadmissible by Section 1101 , if the evidence is not inadmissible pursuant to Section 352.” (§ 1108, subd. (a), italics added.) Thus, challenging the admissibility of the evidence under section 1101 is merely asking us to, once again, analyze the issue under section 352. We have already done so, and we found the court did not abuse its discretion in admitting the evidence of other sex crimes.
Evidence Suppression
With respect to Teresa’s testimony, defendant also claims the court erred by allowing her to testify that she was taken to Mexico after she told police that defendant had been molesting her. He argues this was evidence of a third party’s attempt to suppress evidence and was inadmissible because there was no indication that defendant had authorized it. Respondent argues the evidence was not admitted to demonstrate consciousness of guilt and that the court expressly limited the jury’s consideration of the evidence as to why defendant had no further contact with her after she reported his conduct to the police.
At trial, the court heard extensive argument regarding the sequence of events outside the presence of the jury. Ultimately, the court concluded that Teresa could testify that it was a family member that took her to Mexico, and limited information about her time there and return and reunification with her mother, which was delayed by an immigration inquiry. Prior to Teresa’s testimony, the court gave a limiting instruction that her testimony “cannot be considered by you as suggesting that the defendant, Mr. Vega, was in some way responsible for what became of the witness or that the defendant took some action directly or indirectly to have something happen to the witness. It can only be considered by you for the limited purpose of evaluating the witness’s testimony, her credibility and also for evaluating the circumstances that resulted in the discontinuation of any contact between the two individuals, the witness and the defendant.”
As the defendant argues, evidence that someone other than defendant attempted to suppress evidence is not admissible to show the defendant’s consciousness of guilt, unless there is evidence that defendant authorized the attempt. (People v. Williams (1997) 16 Cal.4th 153, 200.) But in the instant case, Teresa’s testimony that she left the country was not admitted to prove consciousness of guilt, but for the limited purpose of evaluating her testimony and credibility. This is in accord with section 780, which, among other things, allows the jury to consider the character of the witness’s testimony in evaluating their credibility. The jury was specifically instructed not to infer that defendant was responsible for her absence. Absent some indication in the record, we presume the jury followed the court’s instructions and that its verdict reflects the limitations the instructions imposed. (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 803-804; People v. Sanchez (2001) 26 Cal.4th 834, 852.)
Given the court’s instruction and the limited purpose for which the testimony was admitted, we find no error.
CALCRIM No. 1191
The jury was instructed with a modified version of CALCRIM No. 1191, which pertains to uncharged sex offenses. Defendant argues his conviction must be reversed because CALCRIM No. 1191 violated his right to due process and interfered with the presumption of innocence by allowing the jury to infer guilt of the charged crime. Specifically, he argues that the requirement that the prosecution prove the prior acts by a preponderance of the evidence renders the instruction constitutionally infirm.
Defendant acknowledges that the California Supreme Court has already rejected this argument, but presents the issue to preserve it for federal review.
This argument was rejected by the California Supreme Court in People v. Reliford (2003) 29 Cal.4th 1007 (Reilford) with respect to the prior version of this instruction. We reject that argument, as have other courts: “As defendant acknowledges, his contention that the language of this instruction violated his due process rights was rejected by the California Supreme Court in [Reilford]. Although the instruction considered in Reliford was the older CALJIC No. 2.50.01, there is no material difference in the manner in which each of the instructions allows the jury to conclude from the prior conduct evidence that the defendant was disposed to commit sexual offenses and, therefore, likely committed the current offenses. CALCRIM No. 1191, as given here, cautions the jury that it is not required to draw these conclusions and, in any event, such a conclusion is insufficient, alone, to support a conviction. Based on Reliford, we therefore reject defendant’s contention that the instruction violated his due process rights.” (People v. Cromp (2007) 153 Cal.App.4th 476, 480.) We agree and therefore reject defendant’s argument.
CALCRIM No. 220
The court instructed the jury with CALCRIM No. 220 as follows: “The fact that a criminal charge has been filed against the defendant is not evidence that the charge is true. You must not be biased against the defendant just because he has been arrested, charged with a crime, or brought to trial. [¶] A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove each element of a crime beyond a reasonable doubt . . . . Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt. [¶] Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt. [¶] In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty.” The jury was also instructed with CALCRIM No. 222, which defines evidence was “the sworn testimony of witnesses, the exhibits admitted into evidence.”
Defendant complains that taken together, these instructions limited the jury’s determination of reasonable doubt to the evidence received at trial and precluded jurors from considering the lack of evidence showing that defendant’s kiss was not motivated by an intent to sexually arouse himself or Lauren. He claims he was therefore deprived of his right to be convicted by evidence beyond a reasonable doubt. This argument has been rejected before. “CALCRIM No. 220 does not suggest an impermissible definition of reasonable doubt to the jury. The instruction defines reasonable doubt as the absence of an abiding conviction in the truth of the charges. ‘An instruction cast in terms of an abiding conviction as to guilt, . . . correctly states the government’s burden of proof.’ [Citation.] The instruction neither lowers the prosecution’s standard of proof nor raises the amount of doubt the jury must have in order to acquit a defendant. [¶] Contrary to defendant’s suggestion, CALCRIM No. 220 instructs the jury to acquit in the absence of evidence. In addressing defendant’s claim, we consider whether a ‘reasonable juror would apply the instruction in the manner suggested by defendant.’ [Citation.] The jury is instructed to consider only the evidence, and to acquit unless the evidence proves defendant’s guilt beyond a reasonable doubt. If the government presents no evidence, then proof beyond a reasonable doubt is lacking, and a reasonable juror applying this instruction would acquit the defendant. [¶] Due process requires nothing more. CALCRIM No. 220 does not violate due process.” (People v. Guerrero (2007) 155 Cal.App.4th 1264, 1268-1269.) Other courts have agreed. (See People v. Flores (2007) 153 Cal.App.4th 1088, 1091-1093; People v. Westbrooks (2007) 151 Cal.App.4th 1500, 1505-1510; People v. Hernández Ríos (2007) 151 Cal.App.4th 1154-1157.) We agree with the overwhelming weight of uncontradicted authority and find no error.
CALCRIM No. 226
Defendant next contends that CALCRIM No. 226 should not have been given to the jury because it invited the jurors to consider matters outside the record in violation of defendant’s right to confrontation, due process, and a fair trial. The relevant part of CALCRIM No. 226 reads: “You alone must judge the credibility or believability of the witnesses. In deciding whether testimony is true and accurate, use your common sense and experience. The testimony of each witness must be judged by the same standard. You must set aside any bias or prejudice you may have, including any based on the witness’s gender, race, religion, or national origin. You may believe all, part, or none of any witness’s testimony. Consider the testimony of each witness and decide how much of it you believe.” Defendant argues that the invitation to the jury to use “common sense” can be used as a substitute for evidence of guilt.
This precise argument was rejected in People v. Campos (2007) 156 Cal.App.4th 1228, 1239-1240 (Campos). In doing so, the court explained: “When the instructions here are considered as a whole, it is not reasonably likely that the jury would understand CALCRIM No. 226 to mean what Campos claims. [Citation.] [¶] To tell a juror to use common sense and experience is little more than telling the juror to do what the juror cannot help but do. In approaching any issue, a juror’s background, experience and reasoning must necessarily provide the backdrop for the juror’s decisionmaking, whether instructed or not. CALCRIM No. 226 does not tell jurors to consider evidence outside of the record, but merely tells them that the prism through which witnesses’ credibility should be evaluated is common sense and experience. Unlike[the cases] cited by Campos, CALCRIM No. 226 does not instruct jurors to use their common sense and experience in finding reasonable doubt, which could potentially conflict with the beyond a reasonable doubt standard, but only in assessing a witnesses’ credibility. [¶] Furthermore, other instructions given to jurors make clear that the term ‘common sense and experience’ is not a license to consider matters outside of the evidence. Jurors were instructed that they must decide the facts based on the evidence presented (CALCRIM No. 200), that they were not to conduct research or investigate the crime (CALCRIM No. 201), that their determination of guilt had to be based on evidence received at trial (CALCRIM No. 220), that they were only to consider evidence (sworn testimony and exhibits) presented in the courtroom (CALCRIM No. 222), that they had to decide whether facts have been proved based on ‘all the evidence’ (CALCRIM No. 223), that they should review all the evidence before concluding that the testimony of one witness proves a fact (CALCRIM No. 301) and other instructions emphasizing the exclusive significance of the evidence (CALCRIM No. 302).” (Campos, supra, 156 Cal.App.4th at p. 1240.)
Here, as in Campos, the jurors were instructed with CALCRIM Nos. 200, 201, 220, 222, 223, 301 and 302. And like the court in Campos, we reject defendant’s argument.
CALCRIM No. 1110
Defendant argues that CALCRIM No. 1110, which states the elements of Penal Code section 288, subdivision (a), is argumentative, duplicative and improperly diminishes the weight of the evidence by telling jurors what the prosecution need not prove.
The jury was instructed as follows: “‘The defendant is charged in count 1 [with] committing a lewd and lascivious act on a child under 14 years. To prove that the defendant is guilty of this crime, the People must prove, one, that the defendant willfully touched any part of a child’s body either on the bare skin or on the clothing; two, the defendant committed the act with the intent of arousing, appealing to, or gratifying lusts or passions or sexual desires of himself or the child; the child was under the age of 14 at the time of the act. [¶] ‘The touching need not be done in a lewd or sexual manner. Someone commits an act willfully when he or she does it willingly or on purpose. It does not require that he or she intend to break the law, hurt someone or gain an advantage. Actually arousing, appealing to, or gratifying lusts or passions or sexual desires of the perpetrator or child is not required.’”
Defendant specifically claims about the portions of the instruction which state the touching need not be done in a lewd or sexual manner, and that it is not required that the child or perpetrator be sexually aroused. He claims that by focusing on the lack of lewdness and lack of arousal, CALCRIM No. 1110 is impermissibly argumentative.
“‘The trial court functions . . . as the jury’s guide to the law. This role requires that the court fully instruct the jury on the law applicable to each particular case. “‘It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury’s understanding of the case.’ [Citations.]”’” (People v. Daya (1994) 29 Cal.App.4th 697, 712.)
The language of a statute defining a crime is generally a sufficient basis for an instruction. (People v. Smithey (1999) 20 Cal.4th 936, 980-981.) If the legal meaning of a statutory term differs from its meaning in “‘common parlance,’” the trial court should provide clarifying instructions. (Id. at p. 981.) Argumentative instructions, however, should be avoided. An argumentative instruction “‘invite[s] the jury to draw inferences favorable to [a party] from specified items of evidence on a disputed question of fact, and therefore properly belongs . . . in the arguments of counsel to the jury.’ [Citation.]” (People v. Flores (2007) 157 Cal.App.4th 216, 220.)
As discussed above, Penal Code section 288, subdivision (a) defines the lewd act offense as committed when a person “willfully and lewdly commits any lewd or lascivious act” upon a child under age 14, “with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child.” CALCRIM No. 1110 sets forth the touching and the intent elements—i.e., a lewd or lascivious act consisting of a willful touching with sexual intent—and then clarifies that the touching need not be done in a lewd or sexual manner, the defendant need not intend to break the law, hurt someone, or gain advantage, and there is no requirement of actual sexual arousal.
Given its ordinary meaning, the phrase “lewd or lascivious act” could be construed to require a touching that is inherently sexual, such as the touching of an area of the body associated with sexuality or touching in a sexual manner. But this is not the legal meaning of the lewd act element, because any touching of a child with lewd intent suffices, even if the act has “‘the outward appearance of innocence.’” (People v. Martinez (1995) 11 Cal.4th 434, 444, italics omitted; People v. Lopez, supra, 19 Cal.4th at p. 289.) Similarly, the sexual intent element could commonly be understood to require actual sexual arousal, which is not necessary. (People v. Cordray (1963) 221 Cal.App.2d 589, 593.) Finally, the statutory requirement that the touching be done “willfully” does not clearly explain what state of mind suffices to establish the offense. Without clarification of the term, the jury might question whether some type of additional intent is required such as intent to harm the victim or to break the law. Thus, CALCRIM No. 1110 properly clarifies that the sole necessary intent is a nonaccidental act committed with sexual motivation. (People v. Martinez, supra, 11 Cal.4th at p. 449.)
The additional information in CALCRIM No. 1110 provided appropriate clarifying information. It did not focus on specific items of evidence in argumentative fashion, nor was it duplicative. To the contrary, it served to assist the jury in understanding the meaning of the offense. Sometimes defining what something is not can help to define what it is, and this is such an instance. The trial court, therefore, did not err in instructing the jury in the language of CALCRIM No. 1110.
Defendant’s Requested Instructions
Defendant next contends the court’s refusal to give his requested instructions violates the Sixth and Fourteenth Amendments to the United States Constitution. Specifically, he claims his rights were violated by the court’s refusal to instruct the jury on the lesser related offense of annoying or molesting a child.
During discussions on proposed jury instructions, defense counsel asked for an instruction on the offense of annoying or molesting a child (Pen. Code, § 647.6). Counsel referred the court to People v. Isom. The prosecutor initially agreed that it was a lesser included offense, but then reconsidered and stated it would be a lesser related offense. The court took the matter under submission. At the next hearing, defense counsel argued that an instruction on Penal Code section 647.6 would be appropriate because the issue was what had happened and whether defendant had acted with sexual intent. The prosecutor, relying on People v. Lopez (1998) 19 Cal.4th 282 (Lopez), argued that the facts in the instant case did not fit the elements of a Penal Code section 647.6 offense. According to Penal Code section 647.6, a misdemeanor is committed by annoying or molesting a child. Lopez held that a violation of Penal Code section 647.6 was not a lesser included offense of lewd acts on a child, the crime with which defendant was charged. Based on Lopez, the court ultimately agreed with the prosecution and refused the instruction.
The Supreme Court granted review, thus depublishing the case, in March 2007, but in September, the court dismissed review pursuant to People v. Black (2007) 41 Cal.4th 799. (67 Cal.Rptr.3d 172; 2007 Cal. LEXIS 11379.) A later request to republish the case was denied. (2007 Cal. LEXIS 13336 (Nov. 28, 2007).)
Under well-established California law, if the prosecution objects, a defendant is not entitled to an instruction on a lesser related, as opposed to a lesser included offense of a charged crime. (People v. Birks (1998) 19 Cal.4th 108, 136 (Birks).) Defendant does not argue that Penal Code section 647.6 is a lesser included offense. Instead, he argues that where refusal to give an instruction on a lesser related offense “violates the defendant’s right to present a defense” the court commits federal constitutional error under the Sixth and Fourteenth Amendments.
We disagree, noting that defendant fails to cite any California law supporting this theory. Further, the federal law defendant cites relates to lesser included offenses and actual defenses, not lesser related offenses.
In his reply brief, defendant claims that a lesser related offense was at issue in U.S. v. Brown (8th Cir. 1994) 33 F.3d 1002. He argues that the court’s finding that he was entitled to an instruction on accessory after the fact as a lesser related offense of robbery applies here. That case was not decided on constitutional grounds, but on the basis of federal law pertaining to instructions, which is different from California law. Thus, we find it has no application in his constitutional argument here.
In People v. Valentine (2006) 143 Cal.App.4th 1383 (Valentine), the defendant, charged with robbery, made a similar argument, claiming that he was entitled to an instruction on receiving stolen property. It was rejected by the court: “Valentine acknowledges that receiving stolen property is not a lesser included offense of robbery. Valentine asserts he nonetheless was entitled to the requested instruction because the omission amounted to a failure to instruct on a defense theory—that he received property he knew to be stolen but that he did not steal it. [¶] In essence, Valentine contends that he has a right to have the jury instructed on the elements of a crime not charged in order to urge the jury that he is not guilty of the charged offense but that he is guilty of something else. It has never been the law that an accused is entitled to instructions on offenses for which he is not charged in order to urge the jury that he could have been convicted of something other than what is alleged. Although it was the law of this state from 1984 to 1998 that an accused was entitled to have the jury instructed on ‘lesser related offenses,’ the rule was abolished in [Birks] . . . . [¶] Valentine would turn Birks on its head. Prior to Birks, one accused of robbery could offer evidence that he received the proceeds of the robbery knowing them to be stolen. Thereafter he would be entitled to an instruction on the lesser related offense shown by the evidence to have been committed and urge the jury that he be convicted of that lesser crime. [Citation.] He could not, however, argue for acquittal of both the greater and the lesser related offense. Valentine acknowledges that Birks overruled [prior law] and that he is neither entitled to an instruction on a lesser related offense nor to urge his conviction for that offense. Rather, he wants the instruction so that he can argue for an outright acquittal! To paraphrase Winston Churchill, this is the sort of thing up with which we will not put. [¶] Moreover, the offense of receiving stolen property is not a defense to robbery; rather, it is a theory of criminal liability based on a different offense. Thus, the failure to give the instruction did not impinge on Valentine’s right to present a defense to robbery. It simply reflected the fact that the prosecutor chose not to file on the other charge. We do not suggest, however, that Valentine could not argue to the jury that his culpability was as one who was in possession of stolen property but not one who committed a robbery. (Valentine, supra, 143 Cal.App.4th at pp. 1387-1388, fn. omitted, original italics.)
We agree with the Valentine court. Like receiving stolen property, the offense of annoying or molesting a minor is not a defense to the lewd act charge, but a different theory of criminal liability altogether. The failure to instruct on that charge does not, therefore, deprive defendant of a defense to the crime for which he was charged. We find no error.
Cumulative Error
As discussed above, we found no error in the court’s decisions. We therefore, unsurprisingly, find no cumulative error.
III
DISPOSITION
The judgment is affirmed.
WE CONCUR: O’LEARY, ACTING P. J., IKOLA, J.