P. v. Sims
Filed 12/4/13 P. v. Sims CA2/5
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
FIVE
THE PEOPLE,
Plaintiff and Respondent,
v.
MICHAEL A. SIMS II,
Defendant and Appellant.
B242500
(Los Angeles
County
Super. Ct.
No. SA077558)
APPEAL from
a judgment of the Superior Court
of
County, Elden S. Fox, Judge.
Affirmed.
Verna
Wefald, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance
E. Winters, Senior Assistant Attorney General, Steven D. Matthews, Supervising
Deputy Attorney General, Connie H. Kan, Deputy Attorney General, for Plaintiff
and Respondent.
>
INTRODUCTION
A jury
found defendant and appellant Michael A. Sims II guilty of first degree
burglary (Pen. Code, § 459
name="_ftnref1" title="">[1]),
two counts of forcible oral copulation
(§ 288a, subd. (c)(2)(A)), and false
imprisonment by violence (§ 236). The
jury found true the allegation that the forcible oral copulation offenses were
committed during the commission of a first
degree burglary. (§ 667.61, subds.
(a) & (d).) The trial court found
true the allegations that defendant suffered two prior convictions within the
meaning of sections 1170, subdivision (h)(3); 667, subdivisions (a)(1) and (b)
through (i); and 1170.12, subdivisions (a) through (d). The trial sentenced defendant to state prison
for a term of 10 years plus 150 years to life. On appeal, defendant contends that the trial
court violated his right to due process when it denied his request to instruct
the jury on attempted oral copulation as a lesser included offense of forcible
oral copulation. We asked the parties to
submit supplemental letters briefs
addressing whether attempted forcible oral copulation is a lesser included
offense of forcible oral copulation. We
hold that attempted forcible oral copulation is a lesser included offense of
forcible oral copulation, but that substantial evidence did not support an
attempt instruction. Accordingly, we
affirm the judgment.
BACKGROUND
V.S. and
her 10-year-old son lived in an apartment in West Hollywood. On
May 6, 2011, V.S. was asleep on her living room couch. Her son, who was not feeling well, was asleep
in her bed. About 12:30 a.m., V.S. woke
up and turned off the television and the lights. As she was walking to her bedroom, she heard a
knock. She went to her door, looked
through the peephole, and saw defendant.
Defendant said,
“Open the door.†V.S. replied, “I don’t
know you. Who are you looking for?†Defendant said a name that V.S. did not
know. V.S. said, “You have the wrong
place, please leave.†Defendant kept saying,
“Open the door.†At some point, V.S.
told defendant that she would call the police if he did not leave. Defendant walked away from the door and down
the stairs. V.S. closed the living room window and ran to the bedroom to
close all the windows.
V.S. returned
to the living room. Defendant had
returned and was by the door again. Defendant
told V.S. to open the door. V.S. called
911.
saw defendant trying to open the living room window. V.S. cried and her son, who was then standing
between the bedroom and the living room, screamed. As V.S. went to her son, defendant pushed the
window screen into the living room and entered the apartment through the
window. V.S. grabbed her son and ran to
the bedroom.
V.S. closed
the bedroom door and moved a nightstand against the door. She and her son also tried to move the bed, but
it was too heavy. Defendant pushed on
the door. V.S. tried to hold the door closed,
but defendant overcame her resistance and entered the bedroom.
V.S. and
her son started to back away from defendant.
V.S. believed that defendant was there to rob her and said, “Take
whatever you want. What do you
want?†Defendant told V.S. to take off
her clothes. He said he had a gun and
would kill her and her son. The recording
of V.S.’s 911 call reflected that defendant told V.S. to put her son in the
closet. V.S.’s son went into the closet.
V.S. took
off her pajama bottoms. She was still
wearing a t-shirt and underwear. Defendant
pushed V.S. to her knees. He took out
his genitals and told V.S. to put his penis in her mouth. V.S. put defendant’s penis in her mouth. She thought that if she did what defendant
told her to do, the incident would end.
She did not want defendant to become violent and do something to her
son. She also was afraid for
herself. Defendant repeatedly told V.S. to
suck his penis.
V.S. asked defendant to stop and to let her
son go. At some point, V.S. said to
defendant, “Look, let’s just go in the living room. I’ll do whatever you want.†V.S. was trying to shield her son. While he was in the closet, V.S.’s son kept
opening the door. V.S. told him to keep
the door shut and to remain in the closet.
During the attack, V.S. knew her son was listening and thought he might
be watching.
Defendant
and V.S. started to move toward the living room. When they reached the hallway between the
bedroom and the living room, V.S. saw her neighbor Izabella Shnaider at the living
room window. Shnaider had gone to V.S.’s
window after hearing someone crying and being alerted by a neighbor that V.S.’s
window had been broken and something was going on inside. Shnaider called V.S.’s name, and V.S.
screamed, “Call the police.†Defendant
dragged V.S. back into the bedroom.
Defendant
again pushed V.S. to the floor. He took
off all of his clothes and repeatedly said, “Suck it. Suck it.
Put it all the way in.†As
reflected on the 911 recording, defendant said that he would kill V.S. if she
did not “suck it.†V.S. “tried to do it
with [her] hand†to avoid putting defendant’s penis in her mouth, but he kept saying,
“Put it in your mouth.†Because she did
not want defendant to become violent and she was still afraid for her son and
her herself, she complied and put defendant’s penis in her mouth for a second
time.
Both times
that defendant ordered V.S. to put his penis in her mouth, defendant’s penis
went in and out of her mouth more than one time. Defendant “push[ed] it all the way in,†V.S.’s
lips were “around his penis,†and her “tongue also touched [his] penis.†Asked if she were able to hear the act of
oral copulation on the 911 recording, V.S. responded, “I heard—there were times
when I heard different noises than me crying or screaming or saying things, and
it sounded like the noise that I would be making if my mouth was closed, like
if something was in there and it was preventing me from saying it. Those sounds I heard. And I think also some of the crying sounds
are in rhythm of the act that he was doing.â€
Shnaider,
who babysat V.S.’s son and had a key to V.S.’s apartment, entered V.S.’s
apartment, and ran to V.S.’s bedroom.
V.S. was on her knees. Defendant
was naked and stood next to V.S., facing her.
V.S. told Shnaider that her son was in the closet and asked her to take
him out of the apartment. Defendant told
Shnaider to leave and threatened to kill her if she did not comply. Shnaider took V.S.’s son to his grandmother’s
apartment, which was in the same building.
After
Shnaider and V.S.’s son left V.S.’s apartment, defendant continued to tell V.S.
to “Put it all the way in. Suck it. Suck it.â€
V.S. complied. She thought that
the police would arrive shortly and the incident would be over. V.S.’s mother and Shnaider ran into the
bedroom. V.S.’s mother had a small rake
and Shnaider had a baseball bat. V.S.’s
mother hit defendant with the rake. Defendant
eventually released V.S., and she ran from the bedroom. Shortly thereafter, the police arrived.
The police
took V.S. to the rape treatment center at UCLA in Santa Monica. Before she went to the treatment center, V.S.
washed her mouth with soap. She could
still smell defendant on her and the smell was making her nauseous. At the treatment center, swabs were taken of
the inside of V.S.’s mouth.
In his
defense, defendant called Amy Adler, a nurse practitioner at the Santa Monica
rape treatment center. Adler testified
that she collected swabs from defendant’s penis and scrotum about 2:45 a.m. on
May 6, 2011. Melodi Moody, a nurse
practitioner at the UCLA Santa Monica rape treatment center collected a swab from
the inside of V.S.’s cheek.
Los Angeles
County Sheriff’s Department Senior Criminalist Ashley Platt tested the penis
and scrotum swabs for amylase, a substance that is found in high concentrations
in saliva, but also in other bodily fluids.
Although amylase testing generally is used to determine the presence of
saliva, the test only determines if amylase is present and not saliva. The test is used to determine the presence of
bodily fluids on which DNA testing might be performed. Amylase was found in the samples taken from
defendant. According to Platt, the
amylase likely came from saliva. Platt
forwarded the swabs for DNA testing. Platt
tested the sample from V.S. for semen.
She did not find any semen.
According to Platt, if a person washed out her mouth with soap, it would
then be difficult to obtain “bodily fluids or potential DNA.â€
Los Angeles
County Sheriff’s Department Senior Criminalist Lori Schumann testified that the
primary contributor of the DNA found on the scrotum sample probably was
male. The penis sample reflected male
DNA and may have reflected female DNA.
Ilene
Krokaugger worked in the biology section of the Los Angeles County Sheriff’s Department
crime lab. She testified that there is
no correlation between the concentration of amylase in a sample and the amount
of DNA in the same sample. The presence
of amylase in bodily fluid merely indicates that DNA might also be present in
the same bodily fluid. A test of the
penis and scrotum samples showed a mixture of DNA of at least three people—including
defendant as an assumed contributor, V.S. as a second possible contributor, and
a third possible unknown contributor. It
was possible that one of the contributors was female.
DISCUSSION
Defendant
contends that the trial court violated his due process rights when it refused
to instruct the jury on attempted oral copulation as a lesser included offense of
forcible oral copulation. Although attempted
forcible oral copulation is a lesser included offense of forcible oral
copulation, substantial evidence did not support an attempt instruction. Accordingly, the trial court did not err.
A. Background
Defense
counsel requested an instruction on attempted oral copulation as a lesser
included offense of forcible oral copulation.
He argued that “given the DNA results . . . showing no female DNA on
[defendant’s] genitalia and given the description of events, the possible
reconciliation the jury might engage in is that much of this happened but just
not the technical penis in the mouth completion of the charges, thereby an
attempt.â€
The trial
court asked the prosecutor if he wanted to comment “in light of the manner in
which it was charged.†The prosecutor
stated that he believed that the evidence showed that the oral copulation had
been completed. He surmised that a
decision had been made to charge defendant’s conduct under section 288a with an
allegation under section 667.61 which would carry a sentence of 25 years to
life rather than under section 220, subdivision (b)
would carry a life term.
The trial
court ruled, “The difficulty that I have is that I am obligated to give what
would be deemed to be necessary lesser included offenses, not necessary lesser
related offenses, and it just appears to me because of the lack of a 220
allegation by the prosecution for whatever the tactical reasons are, that it
does impose on the court and also on the prosecution the potential that the
jury could come back with a charge which doesn’t fall within the provisions as
noted within 667.61 sub (a) based on, as counsel has indicated, some type of
compromise in terms of the verdict.
“Clearly in
this case the choice is either a completed act or not a completed act. The People have chosen to proceed in that way
as opposed to the 220. And albeit under
some circumstances, that might be incorporated as a necessary lesser included,
I believe at this point in the proceedings at this stage of the case, if the
court were to accomplish that, there would have to be other charges added which
changes the tenor of the case.
“Counsel is
certainly free to argue, and certainly if the evidence is insufficient, not
only will the 228(a)’s result in not guilty verdicts if the jury does follow
the court’s instruction, which it expects to do, but then does not allow
[defendant] to be subject to any alternative theories which could potentially
be a life sentence.
“So at this
stage, I understand counsel’s position, but because of the issue regarding the
nature of this case, the facts and circumstances and the fact that the 220 of
the Penal Code was not alleged, the court is not going to give the necessary
lesser or a lesser included offense as requested by counsel of the
attempt. So the request is denied.â€
B. Attempted Forcible Oral Copulation is a
Lesser Included Offense of Forcible
Oral Copulation
In his
argues that attempted forcible oral copulation is not a lesser included offense
of forcible oral copulation because the completed offense is a general intent
crime, and the attempted offense is a specific intent crime
thus the attempted offense contains an element—specific intent—not present in
the completed offense. Defendant argues
that even though attempted forcible oral copulation is not a lesser included
offense of forcible oral copulation, the trial court was required to give the requested
attempt instruction under section 1159.
that attempted forcible oral copulation is a lesser included offense of
forcible oral copulation because the additional specific intent element
necessary for an attempt conviction does not add to the elements required for a
conviction of the completed offense of forcible oral copulation.
Two tests
are used to determine if an “uncharged offense is necessarily included within a
charged offense: the ‘elements’ test and
the ‘accusatory pleading’ test.
[Citation.] The elements test is
satisfied if the statutory elements of the greater offense include all of the
statutory elements of the lesser offense, such that all legal elements of the
lesser offense are also elements of the greater. [Citation.]
In other words, ‘“[I]f a crime cannot be committed without also
necessarily committing a lesser offense, the latter is a lesser included
offense within the former.â€â€™
Under the accusatory pleading test, a lesser offense is included within
the greater charged offense if the facts actually alleged in the accusatory
pleading include all of the elements of the lesser offense. [Citations.]â€
v. Bailey (2012) 54 Cal.4th 740, 744, 748-749, [holding that attempt to escape is not a
lesser included offense of escape from state prison because attempted escape
includes a specific intent element—i.e., the specific intent to escape—not
present in escape].)
In People v. Bailey, supra, 54 Cal.4th at pages 752-753, respondent argued
that attempted escape is a lesser included offense of escape from state
prison. In support of its argument, respondent
relied on cases holding that an attempt to commit an offense is a lesser
included offense of any completed offense:
People v. Vanderbilt (1926) 199 Cal. 461, 463-464 [“‘“it is not
conceivable that any crime can be committed in the absence of an attempt to
commit itâ€â€™â€], In re Sylvester C. (2006) 137 Cal.App.4th 601, 609 [“attempt
is a lesser included offense of any completed crimeâ€], and
v. Meyer (1985) 169 Cal.App.3d 496, 506 [“every substantive criminal
offense necessarily includes the attempt to commit itâ€]; and on cases in which
the California Supreme Court reduced a general intent offense to an attempt to
commit that offense: People v. Martinez (1999) 20 Cal.4th 225, 241 [reducing
kidnapping to attempted kidnapping] and People v. Kelly (1992) 1 Cal.4th
495, 528 [reducing rape to attempted rape].
The California Supreme Court acknowledged the cases on which respondent relied,
observed that “‘[t]he law of “attempt†is complex and fraught with intricacies
and doctrinal divergences.’
[Citation.] ‘As simple as it is
to state the terminology for the law of attempt, it is not always clear in practice how to apply it.’ [Citation.]
Thus, ‘[w]e must not generalize in the law of attempt.’ [Citation.]
Although the . . . cases relied on by the Attorney General have stated
or applied the general principle that attempt is a lesser included offense of
any completed crime, it is not applicable here, where the attempted offense includes a particularized intent that goes
beyond what is required by the completed offense.†(People
v. Bailey, supra, 54 Cal.4th at p. 753, italics added.) Accordingly, the Supreme Court held that
because the crime of escaping from prison is “‘completed when the prisoner
willfully leaves the prison camp, without authorization . . . . ,’†and the
crime of attempted escape includes the additional element that the prisoner
actually intended to escape, attempted escape is not a lesser included offense
of escaping from prison. (
Forcible oral copulation is a
general intent offense. (
557; People v. Muniz (1989) 213 Cal.App.3d 1508, 1517.) Attempted forcible oral copulation is a
specific intent offense. (
376.) CALJIC No. 10.10—used by the trial
court to instruct the jury in this case—sets forth the elements required to
find a defendant guilty of forcible oral copulation: “1. A
person participated in an act of oral copulation with an alleged victim; and
[¶] 2.
The act was accomplished against the alleged victim’s will by means of
force, violence, duress, menace or fear of immediate and unlawful bodily injury
on the alleged victim or any other person.â€
(See People v. Scott (2000) 83
Cal.App.4th 784, 794, fn. 4.)
Like forcible oral copulation, forcible
rape is a general intent offense. (
v. DePriest (2007) 42 Cal.4th 1, 48.) Like attempted forcible oral copulation, attempted
forcible rape is a specific intent offense.
(Ibid.) CALJIC No. 10.00 sets forth
the elements
required to find a defendant guilty of forcible rape:
(1) a male and female engaged in an act of sexual intercourse; (2) they
were not married at the time; (3) the act of intercourse was against the will
of the victim; and (4) the act was accomplished by means of force, violence,
duress, menace, or fear of immediate and
unlawful bodily injury to the
victim or to another person. (See
v. Maury (2003) 30
Cal.4th 342, 426.)
The California Supreme Court
treats attempted forcible rape as a lesser included offense of forcible
rape. (People v. Kelly, supra, 1
Cal.4th at p. 528 [reducing rape to attempted rape], cited without criticism in
People v. Bailey, supra, 54 Cal.4th
at p. 753; People v. Atkins (2001) 25
Cal.4th 76, 88 [citing People v. Kelly
for the proposition that “attempted rape, a specific intent crime, is a lesser
included offense of rape, a general intent crimeâ€].) For purposes of lesser included offense
analysis—i.e., whether an attempted offense is a lesser included offense of a
completed offense, there is no meaningful distinction between the elements of
forcible rape and forcible oral copulation.
That is, the specific intent required both for attempted forcible rape
and for attempted forcible oral copulation is not a “particularized intent that
goes beyond what is required by the completed offense†of forcible rape or
forcible oral copulation. (See
753.) According, just as attempted
forcible rape is a lesser included offense of forcible rape, attempted forcible
oral copulation is a lesser included offense of forcible oral copulation.
People v. Bailey, supra, 54 Cal.4th 740 is distinguishable. Unlike in People
v. Bailey, where the specific intent element of attempted escape added the
intent to escape from prison, an element that was not required for the
completed offense of escape from prison (id.
at p. 749), the specific intent element of attempted forcible oral copulation
does not add an intent element not already present in the offense of forcible
oral copulation. That is, the completed
offense of forcible oral copulation requires that the defendant forced the
victim to orally copulate the defendant against the victim’s will by means of
force, violence, duress, menace or fear of immediate and unlawful bodily injury
on the alleged victim or any other person.
Attempted forcible oral copulation includes the specific intent element
that the defendant specifically intended to force the victim to orally copulate
the defendant against the victim’s will by means of force, violence, duress,
menace or fear of immediate and unlawful bodily injury on the alleged victim or
any other person.
Evidence Did Not Support an Instruction on Attempted Forcible
Oral Copulation
A trial
court has no duty to give a requested instruction on a lesser included offense
unless substantial evidence supports the instruction. (People v. Castaneda (2011) 51 Cal.4th
1292, 1327.) “Substantial evidence ‘is
not merely “any evidence . . . no matter how weak†[citation], but
rather “‘evidence from which a jury composed of reasonable [persons] could . . .
conclude[ ]’†that the lesser offense, but not the greater, was committed. [Citations.]’
(People v. Cruz (2008) 44 Cal.4th 636, 664 [80 Cal.Rptr.3d 126,
187 P.3d 970].) ‘“On appeal, we review
independently the question whether the court failed to instruct on a lesser included offense.†[Citation.]’ (People v. Avila (2009) 46 Cal.4th 680,
705 [94 Cal.Rptr.3d 699, 208 P.3d 634].)†(Id.
at pp. 1327-1328.)
The trial
court instructed the jury on a violation of section 288a, subdivision (c)(2)(A)
oral copulation, in relevant part as follows:
“Every
person who participates in an act of oral copulation against the will of the
victim by means of force, violence, duress, menace or fear of immediate and
unlawful bodily injury on the victim or any other person, is guilty of the
crime of unlawful oral copulation in violation of the Penal Code section 288a,
subdivision (c)(2)(A). [¶] ‘Oral copulation’ is the act of copulating
the mouth of one person with the sexual organ or anus of another person. Any contact, however slight, between the
mouth of one person and the sexual organ or anus of another person constitutes
oral copulation. Penetration of the
mouth, sexual organ or anus in not required.
Proof of ejaculation is not required.â€
Defendant
contends that the evidence supported his request to instruct the jury on attempted
oral copulation. According to defendant,
the “saliva, amylase and DNA evidence†and the recorded 911 call “did not showâ€
that the offense of oral copulation had been completed. The evidence did not support an instruction
on attempted forcible oral copulation.
First, to
the extent that defendant argues that V.S.’s testimony had to be corroborated
by other evidence, he misstates the law.
As the jury was instructed, “It is not essential to a finding of guilt
on a charge of forced oral copulation . . . that the testimony of the witness
with whom forced oral copulation is alleged to have been committed be
corroborated by other evidence.†(CALJIC
No. 10.60; People v. Gammage (1992) 2
Cal.4th 693, 701.)
Second, based
on the evidence, no reasonable juror could have found that defendant committed
attempted forcible oral copulation but not forcible oral copulation. Although the evidence need not have shown
that defendant’s penis penetrated V.S.’s mouth to support a forced oral
copulation conviction, V.S. repeatedly testified that defendant forced her to
put his penis in her mouth. She
testified with respect to both instances of oral copulation that defendant’s
penis went in and out of her mouth more than one time, defendant “push[ed] it
all the way in,†her lips were “around his penis,†and her “tongue also touched
[his] penis.†In the 911 recording, V.S.
testified that she could hear noises on the recording that showed the act of
oral copulation—that is, noises that reflected that her mouth was closed and
something was in her mouth that prevented her from speaking. As for the physical evidence, Schumann
testified that the primary contributor of the DNA found on the scrotum sample
probably was male, that the penis sample reflected male DNA, but that the penis
sample also may have reflected female DNA.
Krokaugger testified that it was possible that one of the contributors
to the DNA on the penis and scrotum swabs was female. She further testified that those swabs
potentially contained V.S.’s DNA.
Third, even
if the trial court should have instructed on attempted forcible oral
copulation, such an error was harmless under any standard of prejudice. “The failure to instruct on a lesser included
offense in a noncapital case does not require reversal ‘unless an examination
of the entire record establishes a reasonable probability that the error
affected the outcome.’ (People v.
Breverman [(1998)] 19
Cal.4th [142,] 165.) ‘Such posttrial
review focuses not on what a reasonable jury could do, but what such a jury
is likely to have done in the absence of the error under consideration. In making that evaluation, an appellate court
may consider, among other things, whether the evidence supporting the existing
judgment is so relatively strong, and the evidence supporting a
different outcome is so comparatively weak, that there is no reasonable
probability the error of which the defendant complains affected the result.’ (Id. at p. 177.)†(People v. Thomas (2012) 53 Cal.4th
771, 814, fn. omitted; People v. Rogers
(2006) 39 Cal.4th 826, 867-868 & fn. 16 [holding that the standard in
generally applies, but acknowledging a potential “exception
when the error deprives the defendant of the federal due process right to
present a complete defense.
[Citation.]â€.) Whether reviewed
under the state standard in People v.
Watson or the federal standard in Chapman
v. California (1967) 386 U.S. 18, 24, no reasonable juror could have considered
the evidence set forth above and found that the act of forcible oral copulation
was not completed.
Defendant’s
claim that section 1159 required the trial court to instruct the jury on
attempted forcible oral copulation also fails.
Section 1159 provides, “The jury, or the judge if a jury trial is waived,
may find the defendant guilty of any offense, the commission of which is
necessarily included in that with which he is charged, or of an attempt to
commit the offense.†Section 1159 does
not expand the circumstances under which lesser included offense instructions
are appropriate. Instead, it is simply
the statutory authorization that permits “[a] defendant [to] be convicted of an
uncharged crime if, but only if, the uncharged crime is necessarily included in
the charged crime.†(
v. Reed (2006) 38 Cal.4th 1224, 1227.)
DISPOSITION
The
judgment is affirmed.
NOT TO BE
PUBLISHED IN THE OFFICIAL REPORTS.
MOSK,
J.
I concur:
TURNER,
P. J.
KRIEGLER, J., Concurring.
I concur in
the judgment but see no need to settle the parties’ dispute over whether
attempted forcible oral copulation is a necessarily included offense of
forcible oral copulation. The record
contains no substantial evidence defendant committed an offense other than the
completed crime of forcible oral copulation.
Defendant’s contention that the trial court erred by denying his request
for instructions on attempted forcible oral copulation as a lesser included
offense is therefore without merit. A
trial court need only instruct on a lesser included offense “when the evidence
raises a question as to whether all of the elements of the charged offense were
present (see, e.g., People v. Hood
(1969) 1 Cal.3d 444), but not when there is no evidence that the offense was
less than that charged. (
People v. Osuna (1969) 70 Cal.2d 759,
767.)†(People v. Breverman (1998) 19 Cal.4th 142, 154-155;
245.) Attempting to unravel the
application, if any, of People v.
presented here is not jurisprudentially necessary to resolve this appeal.
KRIEGLER,
J.
name="_ftn1" title="">
otherwise noted.
name="_ftn2" title="">
remained open during the ensuing events.
Parts of a recording of the 911 call were played for the jury.
