People v. Lopez
| Decision Date | 25 July 1997 |
| Docket Number | No. D025078,D025078 |
| Citation | 56 Cal.App.4th 762,65 Cal.Rptr.2d 827 |
| Parties | Previously published at 56 Cal.App.4th 762 56 Cal.App.4th 762, 97 Cal. Daily Op. Serv. 5921, 97 Daily Journal D.A.R. 9523 The PEOPLE, Plaintiff and Respondent, v. Caesar Augustus LOPEZ, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
Stefanie A. Sada, San Diego, under appointment by the Court of Appeal, for Defendant and Respondent.
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Robert M. Foster, Supervising Deputy Attorney General, and Randall D. Einhorn, Deputy Attorney General, for Plaintiff and Respondent.
Appellant Caesar Augustus Lopez was charged by information in Count One with committing a lewd act upon a child under the age of 14 (PEN.CODE, § 2882, subd. (a)) with enhancement allegations that he had kidnapped the victim for purposes of committing a sexual offense (§ 667.8, subd. (b)) in a manner which substantially increased the risk of harm to the victim (§ 667.61, subds. (a), (c) & (d)), and in violation of section 207, 208, 209 or 209.5 (§ 667.61, subds. (b), (c) & (e)); and in Count Two with possession of methamphetamine (Health & Saf.Code, § 11377, subd. (a)). The information also charged a prior serious felony conviction within the meaning of section 667, subdivision (a)(1) and a prior serious or violent felony conviction within the meaning of section 667, subdivisions (b)-(i).
Lopez pleaded guilty to Count Two. The jury convicted Lopez of Count One and found true the Count One enhancement allegations. Lopez admitted the truth of the prior serious or violent felony conviction allegations.
This appeal challenges (1) the sufficiency of the evidence to support the true findings on the Count One enhancement allegations, (2) the propriety of admitting evidence of Lopez's prior molestation of a different victim, (3) alleged instructional errors, and (4) alleged sentencing errors.
During a late afternoon in 1995, five-year-old Arielle H. (Arielle) was visiting her friend Vicky at an apartment building in Escondido. Vicky and Arielle were playing outside the building. Lopez approached them, held out a lollipop and said, "Hey, little girl, want some candy?" Vicky warned Arielle not to take the candy and not to talk to strangers, but Arielle took the lollipop.
Lopez told Arielle he was going to take her home. 3 She accompanied him. They walked approximately 90 feet, rounded a corner and walked another 118 feet on a more secluded walkway bordered in part by a block wall and a fence.
Lopez then touched Arielle on her vaginal area through her underwear. Vicky saw Lopez touching Arielle and thought he was trying to lift Arielle. Vicky grabbed Arielle by the arm and pulled her away from Lopez. The girls ran to Vicky's mother and told her what had occurred.
Lopez was detained by neighbors until police arrived. Police searched him and found two lollipops and a jar of Vaseline. 4 Lopez had purchased two lollipops and a jar of Vaseline earlier that day at a store two blocks distant from Vicky's apartment.
Lopez waived his Miranda rights. He told police he had gone to the apartment complex to visit a woman and had spoken to a man about renting an apartment. He noticed the two girls and touched the friendlier one. He admitted touching Arielle's vagina through her dress for purposes of sexual gratification. He admitted having sexual fantasies about children.
The next day Lopez telephoned a social worker he knew and told her he had been involved in a child molestation. He stated he accepted responsibility for those actions and wanted to go to jail because "it would be safe for him [there]."
A few days later Detective Claytor contacted Lopez. Lopez told Claytor he was worried about reuniting with his family because he feared molesting again. Lopez stated he felt he could not control himself.
Taron S. (Taron) testified she was seven years old in 1984 when Lopez molested her. She was playing with friends at a school yard when Lopez approached her and asked for her help in locating a missing cat. He walked with her to a kindergarten playground, where he gave her a lollipop. They then walked down an alley, and Lopez led her by the wrist to his truck, placed her inside and drove away. He kept Taron in the truck for a five-hour period during which he repeatedly molested her. He touched her vagina over her dress, and after placing Vaseline on his hand he touched her under her dress. He forced her to touch his penis with her hands and mouth and to masturbate him until he ejaculated. He eventually released her near the school and threatened to hurt her or her family if she said anything about the incident.
Taron returned to her family, who had been searching for her. Although Lopez was prosecuted and convicted of kidnapping in connection with the incident, he was not prosecuted for molestation because Taron did not reveal what had happened. The first time she told anyone of the molestation was two years after the event. At that time, her best friend spoke of being molested by her stepfather, and Taron then told her friend of the molestation by Lopez.
Lopez argues that because he was charged with violating section 288, subdivision (a), the trial court was obliged to instruct sua sponte on misdemeanor child annoyance (§ 647.6, subd. (a)) as a lesser included offense of the principal charge. We conclude that instructions on section 647.6, subdivision (a) may be required in certain cases on request of the defendant as a "lesser related offense" of section 288, subdivision (a) under People v. Geiger (1984) 35 Cal.3d 510, 199 Cal.Rptr. 45, 674 P.2d 1303, but that instructions on section 647.6, subdivision (a) are not required sua sponte as a lesser included offense of section 288, subdivision (a). 5
A court must instruct sua sponte on general principles of law which are closely and openly connected with the facts presented at trial. (People v. Wickersham (1982) 32 Cal.3d 307, 323, 185 Cal.Rptr. 436, 650 P.2d 311, disapproved on other grounds in People v. Barton (1995) 12 Cal.4th 186, 200-201, 47 Cal.Rptr.2d 569, 906 P.2d 531.) An instruction on a lesser included offense is required sua sponte when the evidence raises a question of whether all of the elements of the charged crime have been shown and the evidence would be sufficient to support a conviction of the lesser included offense. (People v. Ramkeesoon (1985) 39 Cal.3d 346, 351, 216 Cal.Rptr. 455, 702 P.2d 613.) Lopez argues a jury could have had a reasonable doubt as to the intent he harbored at the time he touched Arielle: Did he intend to arouse or gratify his or Arielle's sexual desires by the touching, or was he trying to "lift" Arielle, as Vicky described, to move Arielle to another locale where he would commit the section 288, subdivision (a) offense as he had done with Taron. Lopez argues that if a jury concluded the latter scenario occurred, they could have found his acts did not violate section 288, subdivision (a) but constituted acts which would disturb or annoy a reasonable person and which were motivated by an abnormal sexual interest in the child, within the proscriptions of section 647.6, subdivision (a). (People v. Maurer (1995) 32 Cal.App.4th 1121, 1127, 38 Cal.Rptr.2d 335.)
Although a court must instruct sua sponte on lesser included offenses of the charged offense (People v. Barton (1995) 12 Cal.4th 186, 204, 47 Cal.Rptr.2d 569, 906 P.2d 531), instructions on lesser related offenses are required only on a defense request (People v. Geiger, supra, 35 Cal.3d at pp. 524-532, 199 Cal.Rptr. 45, 674 P.2d 1303). Because Lopez did not request instructions on section 647.6, subdivision (a) under Geiger, we examine only whether section 647.6, subdivision (a) is a lesser included offense requiring sua sponte instructions. 6
To determine whether a lesser offense is necessarily included in the charged offense, one of two tests (denominated the "elements" test and the "accusatory pleading" test) must be met. The elements test is satisfied when " 'all the legal ingredients of the corpus delicti of the lesser offense [are] included in the elements of the greater offense.' " (People v. Anderson (1975) 15 Cal.3d 806, 809-810, 126 Cal.Rptr. 235, 543 P.2d 603, quoting People v. Francis (1969) 71 Cal.2d 66, 73, 75 Cal.Rptr. 199, 450 P.2d 591.) Stated differently, if a crime cannot be committed without also necessarily committing another offense, the latter is a necessarily lesser included offense within the former. (People v. Miranda (1994) 21 Cal.App.4th 1464, 1467, 26 Cal.Rptr.2d 610.) The accusatory pleading test states that a lesser offense is included within the greater charged offense " 'if the charging allegations of the accusatory pleading include language describing the offense in such a way that if committed as specified the lesser offense is necessarily committed.' " (People v. Toro, supra, 47 Cal.3d at p. 972, 254 Cal.Rptr. 811, 766 P.2d 577, quoting People v. Geiger, supra, 35 Cal.3d at p. 517, fn. 4, 199 Cal.Rptr. 45, 674 P.2d 1303.) 7
Because both tests begin with a comparison of the elements of the greater and lesser crimes, we compare section 288, subdivision (a) with section 647.6, subdivision (a). Section 288, subdivision (a) is violated by "any touching" of a child under the age of 14 even if the touching is innocent or innocuous, when the touching is accompanied by the intent to arouse or gratify the sexual desires of either the perpetrator or the victim. (People v. Martinez (1995) 11 Cal.4th 434, 452, 45 Cal.Rptr.2d 905, 903 P.2d 1037.) Section 647.6, subdivision (a) does not require a touching (People v. Memro (1995) 11 Cal.4th 786, 871, 47...
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People v. Lopez
...Respondent, v. Caesar Augustus LOPEZ, Appellant. No. S064118. Supreme Court of California. Nov. 12, 1997. Prior report: Cal.App., 65 Cal.Rptr.2d 827. Appellant's petition for review The issues to be argued before this court shall be limited to whether Penal Code section 647.6, subdivision (......