Error and/or relief
The trial court erred by failing to instruct the jury on simple battery as a lesser included offense of the sexual battery count. Thus, we reverse the misdemeanor sexual-battery conviction and remand for the People to elect whether to retry that charge or accept a modification of the judgment to reflect a conviction of simple battery. In either case, the defendant shall be fully resentenced.
First Holding:
The trial court has a duty to instruct the jury sua sponte on all lesser included offenses if there is substantial evidence from which a jury can reasonably conclude the defendant committed the lesser, uncharged offense, but not the greater. Thus, even though the defendant did not request an instruction on simple battery below, the claim is preserved for appeal.
Authority:
People v. Brothers (2015) 236 Cal.App.4th 24, 29, 33, fn. 6
Second Holding:
We review de novo whether a trial court erred by not instructing on a lesser included offense, considering the evidence in the light most favorable to the defendant to determine whether substantial evidence supported the instruction.
Authority:
People v. Brothers (2015) 236 Cal.App.4th 24, 30
Third Holding:
It is a crime to touch an intimate part of another person, if the touching is done against the will of the person touched, and is for the specific purpose of sexual arousal, sexual gratification, or sexual abuse. Simple battery is defined as any willful and unlawful use of force or violence upon the person of another. The least touching may constitute battery, and a touching is unlawful if it is harmful or offensive. It is undisputed that simple battery is a lesser included offense of sexual battery. Viewing the evidence in the light most favorable to the defendant, we conclude that there was substantial evidence on which a reasonable juror could have relied to determine that he committed simple battery only.
Authority:
PEN 243.4(e)(1)
PEN 242
People v. Shockley (2013) 58 Cal.4th 400, 404
People v. Yonko (1987) 196 Cal.App.3d 1005, 1010
Fourth Holding:
Generally, a trial court’s failure to instruct on a lesser included offense supported by substantial evidence is state law error that requires reversal if a different result was reasonably probable under Watson. A reasonable juror could have believed everything the victim said said but still harbored a reasonable doubt that the defendant’s purpose in touching her was sexual. The prejudice stemming from such an error is the risk that the jury ignored its instructions and convicted the defendant of an offense for which the prosecution did not carry its burden. The jury might have been convinced that the defendant was guilty of some lesser included offense and, as a result, been tempted to convict of a greater offense rather than acquit. Nor did the jury make any other findings establishing that it necessarily concluded the defendant had such a purpose. Particularly given that the jury was willing to convict him of lesser included offenses on other counts, we perceive nothing in the record dispelling the risk that because it was not instructed on simple battery, it convicted him of sexual battery rather than acquitting him.
Authority:
People v. Watson (1956) 46 Cal.2d 818
People v. Gonzalez (2018) 5 Cal.5th 186, 196, 200, 201
People v. Schuller (2023) 15 Cal.5th 237, 260
Fifth Holding:
The People must elect whether to retry that charge or accept a modification of the judgment to reflect a conviction of simple battery. In either case, the defendant shall be fully resentenced.
Authority:
People v. Navarro (2007) 40 Cal.4th 668, 681