P. v. Griffin

Filed 11/30/09 P. v. Griffin CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Patrick F. Magers, Helios (Joe) Hernandez and Elisabeth Sichel, Judges. Affirmed.

Gordon S. Brownell, 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, Lilia E. Garcia and Marilyn L. George, Deputy Attorneys General, for Plaintiff and Respondent.

A jury found defendant Harold Roy Griffin guilty of two counts of raping a child who was under 14 years of age and 10 or more years younger than defendant (Pen. Code,^[1] 269, subd. (a)(1)),^[2]one count of forcibly penetrating a child who was under 14 years of age and 10 or more years younger than defendant ( 269, subd. (a)(5)); and one count of willfully committing a lewd or lascivious act upon the body of a child who was under the age of 14 years by use of force, violence, duress, menace, or fear of bodily harm ( 288, subd. (b)(1)). Defendant admitted suffering a prior strike conviction. ( 667, subds. (c) & (e)(1).) The trial court sentenced defendant to state prison for an indeterminate term of 106 years to life.

Defendant makes three contentions. First, defendant asserts that the trial court erred when it found his first Faretta^[3]motion untimely. In the alternative, if defendants first Faretta motion was untimely, then defendant asserts that the trial court abused its discretion by summarily denying defendants motion. Second, defendant contends that the trial court violated his Sixth and Fourteenth Amendment rights when it found that his second Faretta motion was untimely. Alternatively, if defendants second Faretta motion was untimely, then defendant asserts that the trial court abused its discretion by denying the motion. Third, defendant contends the trial court erred by not instructing the jury on the lesser included offense in counts 1 and 2. We affirm the judgment.

FACTUAL AND PROCEDURAL HISTORY

The facts related to the Faretta motions and jury instructions will be presented in the Discussion section post. In this section, we present the facts related to defendants crimes, and his defense to the crimes.

Defendant was 58 years old at the time of his trial in 2008. The victim was female. Defendant was a friend of the victims family, and a father figure to the victim. In approximately 2006, when the victim was 11 or 12 years old, she visited defendant at his home in Moreno Valley. While the victim was sitting on a couch or bed, defendant sat next to the victim and rubbed her breasts. Defendant removed the victims pants and underwear. The victim was afraid and told defendant to stop. The victim could not leave, because defendant was on top of her. The victim tried to keep her knees together, but defendant pushed them apart. Defendant engaged in sexual intercourse with the victim.

On a different occasion at defendants house, defendant touched the victim over her clothes. Defendant then opened her clothes. The victim told defendant that she did not want to remove her clothes, but defendant took off the victims clothing and touched the victims breasts and vagina. Defendant penetrated the victims vagina with his fingers. In a separate incident, defendant grabbed the victims hand and forced her to touch his penis.

When the victim tried to stop defendant from touching her, he became upset and called her a bitch. While at defendants house, defendant pushed the victim, causing her to fall down a staircase. The victim did not report defendants actions because she was afraid of defendant.

The victim and defendant engaged in sexual intercourse at defendants home approximately three or four times. The victim did not intend on going to defendants house by herself on these different occasions; however, defendant came to the victims house and offered to take her out to eat or to go shopping for clothes, then defendant told the victim that he needed to stop by his house to get his credit card or another item, and the two eventually went to defendants home. The victim did not want to have sex with defendant or be touched by him.

When the victim was 12 years old, she went to a store with her sister. While at the store, the victim bought a pregnancy test and used it. The test revealed that the victim was pregnant. When the victim was approximately five months pregnant, the victims mother asked the victim if the victim was pregnant, because the victims abdomen was growing. The victims mother asked who the victim had sex with, then the victims mother asked if the victim had sex with defendant. After the victim told her mother what had happened, the victims mother called the police.

After the victim gave birth, an investigator from the prosecutors office took a DNA sample from the victim and her baby. The investigator also took a DNA sample from defendant. The DNA results were consistent with the baby being the biological child of the victim and defendant.

Defendant testified that he engaged in sexual intercourse with the victim three times, and that he regretted it. Defendant said that the first time he had sex with the victim, he removed the victims clothes, the victim did not kiss defendant or touch him, and defendant spread the victims legs open; however, she did not tell defendant to stop.

Defendant testified that the second time he engaged in intercourse with the victim, he walked in on the victim changing clothestrying on the items he bought for her at the store. The victim was shaking during the second sexual encounter; however, defendant believed the victim was just nervous. The victim did not kiss defendant during the second incident. Defendant again removed the victims clothes and spread her legs open, but defendant said the victim did not resist him.

Defendant said that the third time he had sex with the victim he purchased a portable game system for her; when the two arrived at defendants house, defendant said to the victim, Well, um, I purchased the game for you, so you know what that means. Defendant testified that he was referring to sex when he made that statement to the victim. Defendant said he knew what he did was wrong and that he was sorry that [he] basically wrecked [the victims] life. Defendant stated that he never threatened the victim, never restrained the victim, and never pushed the victim down a staircase.

DISCUSSION

A. FIRST FARETTA MOTION

1. FACTS

On January 22, 2008, the trial court heard defendants Marsden^[4]motion. Defendant told the court that he did not see eye to eye with his attorney. First, defendant claimed that he had not waived his speedy trial rights, and that he had asked his attorney to provide him with transcripts so that he could prove his speedy trial rights had been violated. Defendant claimed that his attorney never provided him with the requested transcripts. Second, defendant claimed that his attorney did not return telephone calls to defendants girlfriend, so that she could ask questions about the transcripts. Third, defendant asserted that his attorney did not have an investigator question witnesses during trial preparation. Fourth, defendant contended that his attorney had only visited him once while he was in custody. Fifth, defendant claimed that at his prior court appearance, his attorney announced ready for trial despite not speaking to witnesses or discussing a defense strategy with defendant.

In regard to the transcripts, defendants trial attorney informed the court that defendant believed he was not arraigned within the 72-hour time limit. Defendants attorney provided defendant with the minute order from defendants arraignment, which reflected that his attorney had not yet been assigned to the case, and that defendant waived time until the date the case was assigned to his attorney. Defendants attorney admitted that he did not provide defendant with the reporters transcripts from defendants arraignment hearing.

Next, defendants attorney explained that he met with defendant while defendant was in custody. During the meeting, defendants attorney asked if defendant engaged in intercourse with the victim, and defendant denied engaging in intercourse with her. Defendants attorney then suggested going to trial, because it would be the victims testimony against defendants testimony. However, at trial call, the prosecutor informed defendants attorney that the DNA test of the victims baby reflected that defendant was the father of the child, with 99.9 percent accuracy.

Additionally, defendants attorney said that he did speak to defendants girlfriend, which was how defendant received his clothes for courtdefendants attorney told her to bring clothes for defendant, and explained everything to her, but also had to protect the attorney-client relationship. Defendants attorney informed the court that he was unclear which witnesses defendant wanted questioned by an investigator, because no one saw defendant rape or molest the victim.

The court informed defendant that defendants trial attorney would breach the attorney-client relationship by discussing details of the case with defendants girlfriend. The court then asked which witnesses defendant wanted questioned by an investigator. Defendant replied that he wanted witnesses to be questioned about the victims character to show that he did not use force against the victim. The court asked defendant to provide the witnesses names. Defendant responded, ChristopherI cant recall his last name. But there are people out there. . . . [T]he victims aunt[, s]he could testify about her character, about her. Defendants attorney told the court that he had already explained to defendant that the victims prior sexual relations were not something [the parties] can really get into.

The court informed defendant that the victims sexual contact with other individuals was not appropriate to go into [during] the trial. The court found good cause did not exist for appointing new counsel, and denied defendants motion. Defendant responded, Well, can I do a Faretta then? I dont want [my attorney] to represent me. The court asked if defendants case was trailing for trial, and defendants attorney responded that it was trailing in the calendar department. The court found that defendants Faretta motion was untimely, because the matter was ready to proceed to trial.

2. ANALYSIS

Defendant contends that the trial court erred by denying his first Farettamotion for being untimely. In the alternative, if defendants first Faretta motion was untimely, then defendant asserts that the trial court abused its discretion by summarily denying defendants motion. We disagree with both of defendants assertions.

a) Timeliness

We begin by analyzing defendants contention that the trial court erred by finding defendants Faretta motion was untimely. We examine the record under the independent, or de novo, standard of review. (People v. Watts (2009) 173 Cal.App.4th 621, 629.)

A criminal defendant has a constitutional right to counsel at all critical stages of a criminal prosecution . . . . [Citations.] The right to counsel may be waived by a criminal defendant who elects to represent himself at trial. [Citation.] The right of self-representation is absolute, but only if knowingly and voluntarily made and if asserted a reasonable time before trial begins. Otherwise, requests for self-representation are addressed to the trial courts sound discretion. [Citation.] (People v. Doolin (2009) 45 Cal.4th 390, 453.) Our Supreme Court has not fixed any particular time at which a motion for self-representation is considered untimely, other than that it must be [made] a reasonable time before trial. [Citations.] Nor, despite invitations to do so, [has our Supreme Court] adopted a rigid rule that any Faretta motion made before the actual commencement of trial is deemed timely. [Citation.] (People v. Clark (1992) 3 Cal.4th 41, 99.)

Defendants Faretta motion was made on the same day that defendants case was scheduled to be assigned to a courtroom for trial. The last day for defendants trial to commence within the speedy trial time limits was January 28, 2008, and defendant made his oral Faretta motion on January 22, 2008. Because defendants speedy trial deadline was approaching and defendants case was ready to proceed to trial, it was reasonable to find that defendants Faretta motion was untimely.

Defendant contends that his first Faretta motion was not untimely because his trial was repeatedly continued, and ultimately did not proceed to jury selection until March 6, 2008. Therefore, because defendants motion was made on January 22, 2008, defendant asserts that he made his motion within a reasonable time prior to trial. The problem with defendants argument is that he looks at the trial courts decision in hindsight. Our Supreme Court has concluded that when an appellate court determines whether a trial court erred by denying a Faretta motion as untimely, the appellate court must evaluate the decision based on the facts as they appear at the time of the hearing on the motion rather than on what subsequently develops. [Citation]. [Citation.] (People v. Moore (1988) 47 Cal.3d 63, 80, fn. omitted; see also People v. Marshall (1997) 15 Cal.4th 1, 25, fn. 2.) Accordingly, we must review the timeliness of defendants motion within the confines of the information available to the trial court at the time of the hearing. As of January 22, 2008, defendants case was ready to proceed to trial and January 28, 2008, was the last day for the case to be tried within the speedy trial time period. The fact that defendants case ultimately did not proceed to trial until March 2008 cannot factor into our decision.

b) Discretion

Next, we determine whether the trial court abused its discretion by denying defendants untimely Faretta motion. Defendant asserts the trial court abused its discretion because it summarily denied his motion. We disagree.

When a motion for self-representation is not made in a timely fashion prior to trial, self-representation no longer is a matter of right but is subject to the trial courts discretion. [Citation.] In exercising this discretion, the trial court should consider factors such as the quality of counsels representation of the defendant, the defendants prior proclivity to substitute counsel, the reasons for the request, the length and stage of the proceedings, and the disruption or delay which might reasonably be expected to follow the granting of such a motion. [Citations.] (People v. Jenkins (2000) 22 Cal.4th 900, 959.)

When considering defendants Marsden motion, which was made just prior to defendants Faretta motion, the trial court considered defendants reasons for wanting to remove his attorney. The trial court remarked upon (1) the transcripts defendant wanted to review; (2) the unreturned telephone calls to defendants girlfriend; (3) the witnesses that defendant wanted questioned by an investigator; and (4) defendants desire to introduce evidence of the victims sexual history. When discussing defendants Faretta motion, the trial court inquired about the current stage of the proceedings, and was informed that the matter was trailing in the calendar department and ready to proceed to trial.

Because defendants Marsden and Faretta motions were heard within moments of one another, we infer that the trial courts reasons for denying defendants Marsden motion are equally applicable to defendants Faretta motion. Accordingly, the trial court did exercise its discretion when considering defendants Faretta motion, and applied the appropriate factors when rendering its ruling. In sum, the trial court did not abuse its discretion.

Defendant asserts that the trial court abused its discretion because it did not exercise its discretion in a meaningful way, i.e., the court summarily denied defendants motion. A trial court does not need to explicitly state on the record that it has considered the various factors listed ante, if substantial evidence in the record otherwise supports the inference that the trial court had those factors in mind when it ruled. (People v. Scott (2001) 91 Cal.App.4th 1197, 1206.) The trial courts remarks, delineated ante, provide substantial evidence that the trial court had the appropriate factors in mind when it ruled on defendants Faretta motion. Accordingly, we find no error.

3. HARMLESS ERROR

We note that to the extent any error could be found in the trial courts ruling, the Faretta motion was also properly denied because defendants request for self-representation was equivocal. Defendant made his Faretta motion in response to the trial courts denial of his Marsden motion. In other words, defendants Faretta motion was an impulsive response born out of anger and frustration in regard to the denial of his Marsden motion. (People v. Marshall, supra, 15 Cal.4th at pp. 21-22; People v. Barnett (1998) 17 Cal.4th 1044, 1087-1088.) As such, it did not constitute an unequivocal assertion of the right to self-representation. (Barnett, at pp. 1087-1088.)

B. SECOND FARETTA MOTION

1. FACTS

On January 28, 2008, defendants case was continued until February 11, 2008. On February 11, 2008, the matter was scheduled for trial to begin on February 15, 2008, and counsel stipulated that the last day for trial would be February 25, 2008. On February 15, 2008, defendant filed a Faretta motion, and the trial court heard defendants motion the same day.

At the Faretta hearing, the trial court asked defendant to describe his background and education, in order to determine if defendant was capable of representing himself. Defendant explained that he had 13 years of education, but then said, In reality, my whole thing is Im trying to get transcripts to prove my innocence whereas I was not brought to trial within the 70-day time period, and thats the crux of my whole case. Defendant complained that his attorney waived defendants speedy trial rights over defendants objection. The trial court strongly discouraged defendant from proceeding pro se, telling him that he had a good trial attorney and would be facing an experienced prosecutor. Defendant said that he understood, and then went on to explain that he only wanted the transcripts showing that he did not waive his right to a speedy trial.

The trial court stated that it would order the transcripts defendant wanted. The trial court informed defendant that ordering the transcripts would take several weeks, and further delay defendants trial; however, defendant agreed to wait for the transcripts, despite his requests for a speedy trial. The trial court continued defendants Faretta motion until February 27, 2008, in order to have time to review the transcripts. The last day for defendants trial was moved to March 10, 2008.

On February 27, 2008, defendant was given the transcripts to review. The transcript from December 17, 2007, reflected the following dialogue:

Trial Court: Are you okay with January 18th, which is beyond 60 days?

Defendant: Yes.

After reviewing the transcripts, defendant maintained that he still wanted to represent himself. The court then said to defendant, [Y]ou seem intelligent enough to handle the issue, and the Faretta motion is granted. The trial court then asked defendant if he was ready to proceed to trial. Defendant said he was not ready to proceed. The trial court asked, Why should I grant your Faretta motion? Youre going to delay proceedings. Defendant explained that he needed transcripts from different hearings to show that he did not waive his speedy trial rights. The trial court asked defendant how much time he would need to prepare for trial, and defendant requested one month.

The trial court explained to defendant that he was contradicting himself by asking to delay the trial in order to enforce his right to a speedy trial. The trial court concluded that defendant was unnecessarily delaying proceedings, because defendants trial could be finished within the month. Defendant informed the court that he wanted to exercise his speedy trial rights because he wanted his trial to be completed before the DNA evidence was returned. Specifically, defendant told the court that he was trying to beat the clock.

The trial court explained that it was facing a dilemmait could either send the matter out for trial, to prevent any further delay, or grant a continuance so that defendant could prove the trial was untimely. Defendant then told the trial court that he did not want his attorney to represent him because his attorney (1) did not discuss a defense strategy with defendant; (2) did not inform defendant of any plea offers; (3) lied to defendant about the case being sent to Indio for trial; and (4) discussed defendants case with third parties. The trial court concluded that defendants motion was untimely, denied the motion, and set a trial date of March 4, 2008.

2. ANALYSIS

Defendant asserts that the trial court erred by finding that his second Faretta motion was untimely. Alternatively, defendant asserts the trial court abused its discretion by denying his untimely Faretta motion. We disagree with both of defendants contentions.

a) Timeliness

As noted ante, [a] trial court must grant a defendants request for self-representation if three conditions are met. First, the defendant must be mentally competent, and must make his request knowingly and intelligently, having been apprised of the dangers of self-representation. [Citations.] Second, he must make his request unequivocally. [Citation.] Third, he must make his request within a reasonable time before trial. [Citations.] (People v. Welch (1999) 20 Cal.4th 701, 729.)

Defendants case was ready to proceed to trial on March 4, 2008. Defendant stated that if his Faretta motion were granted, then he would need a continuance until March 27, 2008. The prosecution had announced ready for trial on September 11, 2007. Defendants Faretta motion was untimely because it would have required the trial court to continue the case yet again, after it had already been continued for several months. Accordingly, we conclude that the trial court did not err by determining that defendants second Faretta motion was untimely.

b) Discretion

Next, we determine whether the trial court erred by denying defendants untimely Faretta motion. Defendant asserts the trial court abused its discretion because it was not reasonable to deny his motion simply because he needed a one-month continuance. In People v. Valdez (2004) 32 Cal.4th 73, our Supreme Court concluded that a trial court act[s] within its discretion in concluding that [a] defendant could represent himself only if he was ready to proceed to trial without delay. [Citations.] (Id. at p. 103.) Accordingly, it was within the trial courts discretion to deny defendants motion due to defendants need for a continuance.

Defendant, relying on People v. Windham (1977) 19 Cal.3d 121, contends that a request for self-representation should be granted if the requested continuance is reasonable. Defendant asserts that his requested continuance was reasonable because he needed time to prepare a motion to dismiss based upon a violation of his speedy trial rights. Defendants argument is not persuasive because an appellate court may not disturb a trial courts exercise of discretion except on a showing that the [trial] 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.) While defendants argument demonstrates that it may have been reasonable to grant defendants Faretta motion and request for a continuance, it does not convince us that the trial court acted arbitrarily or absurdly by denying defendants motion due to defendants need for a one-month continuance.

c) Harmless Error

To the extent an error could be found in the trial courts exercise of discretion, we find any such error to be harmless.

An error in denying a timely Faretta motion is reversible per se; however, [t]he erroneous denial of an untimely Faretta motion is reviewed under the harmless error test of People v. Watson (1956) 46 Cal.2d 818, 836. (People v. Rivers (1993) 20 Cal.App.4th 1040, 1050 [Fourth Dist., Div. Two].) (People v. Rogers (1995) 37 Cal.App.4th 1053, 1058.) Accordingly, we must determine whether in the absence of [any] error, it is reasonably probable that a result more favorable to [defendant] would have been reached. (Rivers, at p. 1050.) The United States Supreme Court has . . . pointed out that the core of the Faretta right is the right to preserve actual control over the case [the defendant] presents to the jury. [Citation.] Recognition of this point led the [high] court to find no prejudicial error when standby counsel presents arguments to the court, outside the presence of the jury, over the defendants objections. (Id. at p. 1052, second italics added.)

Defendant informed the trial court that he wanted to represent himself because he felt that his right to a speedy trial had been violated and he wanted to file a motion to dismiss the case. ( 1387.) Defendant argued that his speedy trial right had been violated because he never waived the right. Contrary to defendants position, the record reflects that he waived his right to a speedy trial on December 17, 2007. Accordingly, because there was little merit to defendants claim that his speedy trial right had been violated it is unlikely that his motion to dismiss would have been successful. Nevertheless, if defendant had prevailed on his motion to dismiss, the prosecution could have refiled the charging document and proceeded to trial. ( 1387, subd. (a); Burris v. Superior Court (2005) 34 Cal.4th 1012, 1018-1019.) Therefore, it is not reasonably probable that a result more favorable to defendant would have occurred if his Faretta motion had been granted. Moreover, we note that defendants complaints relate to a motion that would have been argued outside of the jurys presence, which further supports a finding that defendant did not suffer prejudicial error.

Defendant also complained to the trial court that he wanted his case to proceed to trial before the DNA evidence was returned, proving that he was the father of the victims baby. Defendant contended, during his second Faretta motion, that he had been offered a December 10, 2007, trial date and an available courtroom in Indio, but his attorney did not want to try the case in Indio, so the trial was continued.^[5] The DNA results were published in a report dated December 4, 2007. Accordingly, if defendant had not waived his speedy trial rights and proceeded to trial on December 10, it is not reasonably probable that a result more favorable to defendant would have occurred because the DNA evidence was available as of December 4. In sum, if there were any error, it would be harmless.

A. JURY INSTRUCTIONS

1. FACTS

During a discussion regarding jury instructions, the trial court made the following comments: It seems to me that the only evidence we have before us is that there wasthe defendant was more than seven years older^[[6]] than the [victim] and the [victim] was under the age of 14 at the time of the events. Therefore, it seems to me that the lessers of the underlying crime weve been talking about that the [section] 269[, subdivision] (a) applies to should not be given in this case because theres no evidence at all to support it. Either the [section] 269[, subdivision] (a) applies or it doesnt.

The prosecutor agreed that the lesser included offense instruction should not be given for counts 1 and 2. Defendants trial attorney requested that the court instruct the jury on the lesser included offense of simple assault ( 240), but otherwise submitted. The trial court agreed to provide the jury with an instruction on simple assault.

2. ANALYSIS

Defendant contends that the trial court erred by not sua sponte instructing the jury on the lesser included offense of unlawful sexual intercourse with a person under 18 ( 261.5) for counts 1 and 2, in which defendant was charged with raping a child under 14 years of age and 10 or more years younger than defendant ( 269, subd. (a)). We agree that the trial court erred, but find the error to be harmless.

a) Lesser Included

We begin by analyzing whether unlawful sexual intercourse with a person under 18 ( 261.5) is a lesser included offense of aggravated sexual assault of a child ( 269, subd. (a)(1)).

Under California law, a lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser. [Citations.] (People v. Birks (1998) 19 Cal.4th 108, 117-118.) California decisions have held for decades that even absent a request, and even over the parties objections, the trial court must instruct on a lesser offense necessarily included in the charged offense if there is substantial evidence the defendant is guilty only of the lesser. [Citations.] (Id. at p. 118.) In other words, when there is no evidence that the offense was less than that charged, the trial court does not have a sua sponte obligation to instruct the jury on a lesser included offense. (People v. Valdez (2004) 32 Cal.4th 73, 115.)

We apply the independent, or de novo, standard of review to an assertion that a trial court erred by failing to instruct the jury on a lesser included offense. (People v. Waidla (2000) 22 Cal.4th 690, 733.)

We begin with the statutory elements test. Section 261.5, subdivision (d), provides: Any person 21 years of age or older who engages in an act of unlawful sexual intercourse with a minor who is under 16 years of age is guilty of either a misdemeanor or a felony . . . . Section 261.5, subdivision (c), provides: Any person who engages in an act of unlawful sexual intercourse with a minor who is more than three years younger than the perpetrator is guilty of either a misdemeanor or a felony . . . . Unlawful sexual intercourse is defined as an act of sexual intercourse accomplished with a person who is not the spouse of the perpetrator, if the person is a minor. ( 261.5, subd. (a).) [A] minor is a person under the age of 18 years and an adult is a person who is at least 18 years of age. ( 261.5, subd. (a).)

Section 269, subdivision (a)(1), provides that any person who raped a child under 14 years of age and 10 or more years younger than the perpetrator was guilty of aggravated sexual assault of a child. Rape is an act of sexual intercourse accomplished with a person not the spouse of the perpetrator . . . [] [w]here [the act] is accomplished against a persons will by means of force, violence, duress, menace, or fear of immediate . . . bodily injury . . . [] [or w]here the act is accomplished against the victims will by threatening to retaliate in the future against the victim or any other person, and there is a reasonable possibility that the perpetrator will execute the threat. ( 261, subds. (a)(2) & (a)(6).)

Section 261.5, subdivision (d), is not a lesser included offense of aggravated sexual assault of a child, because a 20-year-old perpetrator could be guilty of aggravated sexual assault of a child, but would not be guilty of violating section 261.5, subdivision (d), due to the requirement that a defendant be 21. Further, section 261.5, subdivision (c), is not a lesser included offense of aggravated sexual assault of a child, because a 16-year-old-perpetrator could be guilty of aggravated sexual assault of a child, but would not be guilty of violating section 261.5, subdivision (c), due to the requirement that a defendant be 18. Therefore, because all of the elements of the lesser crime are not included in the greater crime, unlawful sexual intercourse ( 261.5) is not a lesser included offense of aggravated sexual assault of a child ( 269, subd. (a)(1)), pursuant to the statutory elements test.

Next, we apply the accusatory pleading test. In counts 1 and 2, defendant was charged as follows: The District Attorney of the County of Riverside hereby accuses [defendant] of a violation of Penal Code section 269, subdivision (a), subsection (1), a felony, in that on or about June 2006 through and including January 2007, in the County of Riverside, State of California, he did willfully and unlawfully commit a violation of Penal Code section 261, subdivision (a), subsection (2), RAPE, upon [the victim], AGE 12, a child who was under 14 years of age and 10 or more years younger than defendant.

In regard to section 261.5, subdivision (c), the information alleged that defendant engaged in an act of unlawful sexual intercourse with a minor who was more than three years younger than defendant. Next, as to section 261.5, subdivision (d), the information alleged that defendant was at least 22 years old, and that he engaged in an act of unlawful sexual intercourse with a minor who was under 16 years of age. Accordingly, pursuant to the accusatory pleading test, section 261.5, subdivisions (c) and (d) are both lesser included offenses of aggravated sexual assault of a child because all of the elements of the lesser offense were alleged in the information.

b) Error

We now turn to whether the trial court erred by not sua sponte instructing the jury on the lesser included offense. A trial court has a sua sponte duty to instruct on a lesser included offense, whenever there is substantial evidence raising a question as to whether all of the elements of the charged offense are present. (People v. Benavides (2005) 35 Cal.4th 69, 102.) Substantial evidence is evidence sufficient to deserve consideration by the jury, that is, evidence that a reasonable jury could find persuasive. [Citation.] (Ibid.)

On direct examination, defendant testified that he never forced the victim to engage in sexual intercourse with him, that he never threatened the victim, and that he never restrained the victim. During closing arguments, defendants trial attorney argued that the big dispute was whether any of the sex acts [were] done by force, fear, duress, menace, threats of violence, et cetera.

Defendants testimony is substantial evidence, which raises a question as to whether the element of force was present. Accordingly, the trial court erred by not instructing the jury on the lesser included offense of unlawful sexual intercourse with a minor. ( 261.5, subds. (b) & (c).)

c) Harmless Error

Next, we determine whether the trial courts error was harmless. A trial courts failure to instruct sua sponte on all lesser included offenses that are supported by the evidence is not subject to reversal unless an examination of the entire record establishes a reasonable probability that the error affected the outcome. [Citations.] (People v. Breverman (1998) 19 Cal.4th 142, 165.)

When instructing the jury on the law related to rape by force, the trial court told the jury that [i]ntercourse is accomplished by force if a person uses enough physical force to overcome the womans will. The trial court also instructed the jury on the lesser included offense of simple assault. ( 240.) The trial court informed the jury that force, in regard to simple assault, meant touching a person in a harmful or offensive manner. (CALCRIM No. 915.)

Due to the jurys finding that defendant used enough physical force to overcome the victims will, rather than the lesser level of force required for simple assault, it is not reasonably probable that the jury would have concluded that defendant did not use force against the victim.

Further, the trial court instructed the jury that a defendant is not guilty of rape if he actually and reasonably believed that the woman consented to the intercourse. (CALCRIM No. 1000.) Because the jury found defendant guilty of rape, it appears that the jury rejected defendants version of the events, i.e., that the victim consented to having sex with defendant.

In sum, the jury found that (1) the victim did not give her consent, and (2) defendant used force against the victim. Accordingly, it is not reasonably probable that the trial courts failure to instruct on the crime of unlawful sexual intercourse with a minor affected the outcome of the trial, because the jury rejected defendants theory of the case, i.e., that the victim was a willing partner.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ MILLER

J.

We concur:

/s/ HOLLENHORST

Acting P. J.

/s/ GAUT

J.

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^[1] All further statutory references are to the Penal Code unless indicated.

^[2] All references to section 269 are to former section 269.

^[3]Faretta v. California (1975) 422 U.S. 806 (Faretta).

^[4]People v. Marsden (1970) 2 Cal.3d 118 (Marsden).

^[5] The prosecutor informed the court that the parties were offered a trial date of December 10, 2007, and an available courtroom in Indio; however, defendant agreed to continue the case because defendant wanted his attorney to negotiate a plea deal.

^[6] The trial court misspoke when it said the age difference required by the statute was seven years, rather than 10 years. ( 269, subd. (a)(1).)