P. v. Oseguera















Filed 4/10/13 P. v. Oseguera CA4/3













NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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 THREE




>

THE PEOPLE, Plaintiff and Respondent, v. JOSE ALFREDO OSEGUERA, Defendant and Appellant.

G046973 (Super. Ct. No. 10NF2663 ) O P I N I O N

Appeal from a judgment
of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Orange
County, Sheila F. Hanson, Judge. Affirmed.

Patrick J. Hennessey,
Jr., under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L.
Garland, Assistant Attorney General,
Kevin Vienna and Heidi T. Salerno, Deputy Attorneys General, for
Plaintiff and Respondent.

*
* *

A jury found defendant
Jose Alfredo Oseguera guilty of committing a lewd act on a 14-year-old child at
least 10 years his junior. (Pen. Code,
§ 288, subd. (c)(1); all further unspecified statutory references are to
the Penal Code.) Oseguera contends the
trial court erred by not instructing the jury href="http://www.mcmillanlaw.com/">sua sponte on the lesser offense of
misdemeanor sexual battery under section 243.4, subdivision (e)(1). For the reasons expressed below, we affirm.

I

Factual and Procedural Background

In August
2010, 14-year-old Karina R. lived with her mother, brother and her mother’s
boyfriend in an Anaheim apartment. Between 5:00 and 6:00
p.m. on August 25, Karina took the trash out to the apartment’s
dumpsters, one of her daily chores.
Oseguera, age 26, approached Karina at an apartment gate as she returned
home. She recognized Oseguera as a
neighbor who had stared at her while she played with her friends. She had never spoken to him other than to say
“hi.”

Oseguera,
without saying a word, grabbed Karina’s arms, pushed her against the wall, and
inserted his tongue into her mouth. She
bit his tongue and told him to stop, but he maintained hold of her right wrist,
squeezing her left breast and vagina over her clothing for approximately five
to 10 seconds. Karina eventually freed
her arms, pushed Oseguera in the chest, and walked back to her apartment. The ordeal lasted about 15 seconds. She did not tell anybody because she feared
her mother would blame her.

The
following night Karina took the trash out and again encountered Oseguera. He extended his arms to prevent her from
walking past him. Karina said “excuse
me” in Spanish, and Oseguera replied, “not until you give me a kiss.” Karina said, “okay,” and Oseguera put his
arms down. Karina elbowed him and walked
past without kissing him. Karina’s
10-year-old cousin witnessed the incident from the front lawn.

After
she returned home, Karina spoke with her cousin about both incidents and he
encouraged her to tell her mother. He
said it was not her fault and she must tell someone or Oseguera would torment
her “over and over again.” Karina told
her mother later that night.

On
August 27, Anaheim Police Officer James Brown contacted Oseguera in the
apartment courtyard and informed him about the sexual assault
investigation. Oseguera first declared
“he did not know anyone” from Karina’s apartment, but admitted seeing Karina
over “ten times.” Nonetheless, Oseguera
asserted “nothing happened,” and he only said “hi” and “bye” to her. Oseguera described Karina as a 14- or
15-year-old “pesada,” a Spanish slang term meaning “heavy set” or
overweight. Officer Brown arrested
Oseguera.

Detective
Salvador Enriquez interviewed Oseguera about the incident with Karina. Oseguera claimed Karina initiated their encounter. He explained Karina entered the laundry room
to talk to him, but she left when he told her he was doing his laundry. After finishing, Oseguera left to watch Disneyland
fireworks from the alley. Karina found
him at the gate, blocked his path, and said, “I’m not going to let you go until
you give me a kiss.” Oseguera replied,
“[o]kay, then” and gave her a “thirty-second” kiss on the mouth. He “wanted to leave” but Karina said, “[n]o
come here. Don’t leave.” Oseguera admitted he did not need to use the
specific gate where he encountered Karina to get to his apartment, and in his
excitement he touched her breasts and vagina over her clothes. Oseguera denied grabbing Karina’s arms,
explaining he could not do so because a “chubby” little boy and another “dark”
girl were “right there.”

The
jury convicted Oseguera of committing a lewd act on Karina, but acquitted him
of attempting to commit a lewd act the following day. The trial court sentenced Oseguera to two
years in prison.

II

Discussion

Oseguera contends the
trial court erred in failing to instruct on misdemeanor sexual battery (§
243.4, subd. (e)(1)) as a lesser included offense of felony lewd conduct (§
288, subd. (c)(1)). We disagree.

The prosecution has
broad discretion in deciding which charges to bring against a defendant and the
“courts do not generally supervise [this] ‘purely prosecutorial function.’ [Citations.]”
(People v. Ceja (2010) 49 Cal.4th 1, 7; People v. Richardson> (2008) 43 Cal.4th 959, 1013.) Due process, however, imposes a sua sponte
duty on trial courts to instruct the jury on a lesser included offense “when the record contains substantial evidence of
the lesser offense, that is, evidence from which the jury could reasonably
doubt whether one or more of the charged offense’s elements was proven, but
find all the elements of the included offense proven beyond a reasonable
doubt.” (People v. Moore
(2011) 51 Cal.4th 386, 408-409 (Moore).) In contrast, “a trial court has no sua sponte
duty to instruct on lesser related offenses.”
(People v. Lam (2010) 184 Cal.App.4th 580, 583; People v.
Valentine (2006) 143 Cal.App.4th 1383, 1387 (Valentine) [“defendant has no right to instructions on lesser
related offenses even if he requests the instruction and it would have been supported
by substantial evidence”].) A lesser
related offense is one closely related to the charged offense, and where the
evidence provides a basis for finding the defendant guilty of the related
offense and innocent of the charged offense.
(People v. Babaali (2009) 171 Cal.App.4th 982, 1000.)

A lesser included
offense is defined by one of two tests, the “‘elements’” test and the
“‘accusatory pleading”’ test. (>People v. Lopez (1998) 19 Cal.4th 282,
288.) An offense is a lesser included
offense under the “‘elements’” test “if the statutory elements of the greater
offense include all the elements of the lesser offense so that the greater
offense cannot be committed [also] without committing the lesser offense.” (People
v. Cook (2001) 91 Cal.App.4th 910, 918 (Cook).) An offense is a lesser included offense under
the “‘accusatory pleading’” test if the facts alleged in the pleading “describe
the offense in such a way that, if committed as alleged, the lesser offense
necessarily must have been committed.” (>People v. Cheaves (2003) 113 Cal.App.4th
445, 454 (Cheaves).) An appellate court reviews the trial court’s
failure to instruct on an assertedly lesser included offense under an
independent or de novo standard of review.
(People v. Licas (2007) 41 Cal.4th
362, 366.)

Application of the
elements test here demonstrates misdemeanor sexual battery under section 243.4,
subdivision (e)(1), is not a lesser included offense of felony lewd conduct
under section 288, subdivision (c)(1). Section
288 defines lewd conduct as “any lewd or lascivious act . . . upon or with the
body, or any part or member thereof, of a child . . . with the intent of
arousing, appealing to, or gratifying the lust, passions, or sexual desires of
that person or the child,” where the child is “14 or 15 years [old], and that
person is at least 10 years older than the child.” (§ 288, subd. (a)(1) & (c)(1).) Misdemeanor sexual battery occurs when “[a]ny
person [ ] touches an intimate part of another person, if the touching is
against the will of the person touched, and is for the specific purpose of
sexual arousal, sexual gratification, or sexual abuse.” (§ 243.4, subd. (e)(1).)

It is readily apparent
that a lewd act on a child may be committed without committing a sexual
battery. A lewd act can occur on any
part of the body; misdemeanor sexual battery requires touching of an >intimate body part. Lack of consent is not an element of section
288 violations; misdemeanor sexual battery must be nonconsensual. Unlike sexual battery, a lewd act on a child does
not require either touching of an intimate body part or nonconsensual
conduct. Thus, the greater offense of a
lewd act on a child can be committed without committing the lesser offense of href="http://www.fearnotlaw.com/">sexual battery. (Cook,
supra, 91 Cal.App.4th at p. 918.)>

As for the accusatory
pleading test, count one of the information charged Oseguera with “willfully,
lewdly, and unlawfully commit[ting] a lewd and lascivious act upon and with the
body of Karina R., a child of fourteen (14) years of age and at least ten (10)
years younger than the defendant, with the intent of arousing, appealing to,
and gratifying the lust, passions, and sexual desires of the defendant and the
child.” The information does not allege
Oseguera acted without Karina’s consent or that he touched an intimate body
part. The word “unlawfully” merely
describes the act alleged violated the law, not that it occurred without the
victim’s consent. As noted above,
whether Karina consented to Oseguera’s touching is irrelevant under section
288. Nor does the charge allege Oseguera
touched an intimate body part of the victim, a requirement for the commission
of sexual battery. As noted above, a
person violates section 288 by committing a lewd or lascivious act upon “any
part” of the victim’s body with sexual intent.
“Lewd” is defined as “sexually unchaste or licentious.” (Merriam-Webster’s Collegiate Dict. (10th ed.
1996) p. 669.) Oseguera therefore fails
to satisfy the accusatory pleading test because he could commit the lewd act as
alleged in the information without necessarily committing misdemeanor sexual
battery. (Cheaves, supra, 113
Cal.App.4th at p. 454.)

Oseguera asserts trial
courts must instruct on lesser offenses “where there is evidence that would
justify a conviction” on those lesser offenses.
As noted above, there is no duty to instruct on lesser >related offenses, even if supported by
substantial evidence. (Valentine, supra, 143 Cal.App.4th at p.
1387.) Similarly, the trial court’s
failure to instruct on sexual battery did not violate Oseguera’s federal due
process rights. The right of a federal
noncapital defendant to obtain instructions on a lesser offense is limited to
the elements test, which compares only the statutory definitions of the two
crimes. (People v. Birks
(1998) 19 Cal.4th 108, 124.) As
previously noted, Oseguera failed to satisfy the elements test.

Because >People v. Thomas (2007) 146 Cal.App.4th
1278 held that battery is a lesser included offense of section 288, Oseguera
reasons misdemeanor sexual battery also must qualify as a lesser included
offense. Section 242 defines battery
as “any willful and unlawful use of force or violence upon the person of
another.” “[A]ny harmful or offensive
touching” satisfies section 242’s element of unlawful use of force or
violence. (People v. Pinholster (1992)
1 Cal.4th 865, 961, overruled on another point in People v. Williams (2010) 49 Cal.4th 405, 459.) Any lewd act within the meaning
of section 288 is necessarily a harmful or offensive touching. (People v. Martinez (1995) 11
Cal.4th 434, 444.) Thomas held battery was a lesser included offense of section 288
because section 288 requires a harmful or offensive touching of the
victim. As explained above, while section
288 may require a harmful or offensive touching that would constitute battery
under section 242, it does not require a nonconsensual touching of an intimate
body part. We also note the California
Practice Guide on sex crimes lists attempt, simple assault, and battery as
lesser included offenses of section 288, but does not include misdemeanor
sexual battery. (Couzens & Bigelow,
Cal. Practice Guide: Sex Crimes (The Rutter Group 2013) ¶ 12:18, p. 12-109.) Oseguera therefore was not entitled to an instruction
on misdemeanor sexual battery.

III

Disposition

The
judgment is affirmed.









ARONSON,
J.



WE CONCUR:







MOORE, ACTING
P. J.







FYBEL, J.