Filed 1/14/15 P. v. Reed CA3
                                           NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
                                      THIRD APPELLATE DISTRICT
                                                        (Placer)
                                                            ----




THE PEOPLE,                                                                                  C075227

                   Plaintiff and Respondent,                                     (Super. Ct. No. 62112428)

         v.

KEVIN ANDREW CHARLES REED,

                   Defendant and Appellant.




         Defendant Kevin Andrew Charles Reed was the father of a teenage daughter (the
victim) whom he molested from the time she was 15 in 2009 until she was 17 in 2011.
The molests began when the victim confided in defendant that she was nervous about her
first kiss with her boyfriend, and defendant made her French kiss him instead. The
molests progressed to them kissing hundreds of times, the victim masturbating him once
a week between January 2010 and summer 2010, and the victim orally copulating him
once a week between summer 2010 and fall 2011. There were also four more specific
incidents of molest: (1) in December 2009, defendant made the victim touch his penis

                                                             1
before buying pajamas for her; (2) in January 2010, defendant made her touch his penis
before allowing her to see a movie; (3) in February 2010, defendant made her touch him
to “get off grounding” and get her cell phone back for mistakenly reading a weather
report (that incorrectly stated it was not snowing) before they went on a trip to Nevada;
and (4) around Thanksgiving 2011, defendant made the victim “suck” his penis before
she could visit her sick boyfriend. A few weeks later, the victim told a girlfriend about
the molests, the girlfriend’s mother called police, and defendant was arrested.
       Defendant testified at trial and denied molesting the victim. Defendant’s teenage
niece also testified. According to the niece, defendant and the victim had a normal
father-daughter relationship. The niece did see defendant pat the victim on her rear end,
and defendant had done that to her, too. The niece was “[a]bsolutely not” offended by
the pat, and it was done “in a way as if to congratulate [her].” When she saw defendant
pat the victim on her rear end, it was a “similar type of pat.”
       A jury found defendant guilty of 11 lewd acts on a child and 15 acts of oral
copulation, and the trial court sentenced him to 19 years and eight months in prison.
       Defendant appeals, contending the trial court erred in: (1) failing to sua sponte
instruct on the lesser included offenses of attempted lewd acts and attempted oral
copulation; and (2) denying his motion for new trial because his counsel was ineffective.
Disagreeing, we affirm.
                                       DISCUSSION
                                              I
     The Trial Court Properly Did Not Instruct On The Lesser Included Offenses Of
                   Attempted Lewd Acts And Attempted Oral Copulation
       Defendant contends the trial court erred in failing to sua sponte instruct on the
lesser included offenses of attempted lewd acts and attempted oral copulation. His
reasoning is as follows: Leaving aside four counts that were based on specific testimony,
the remaining sex acts were based on the generic testimony that the victim

                                              2
masturbated him once a week, she orally copulated him once a week, and they kissed
hundreds of times. But the victim also testified there were times when defendant would
initiate sexual contact, and she would “stand up for [her]self,” or defendant would initiate
sexual contact in her bedroom, and she stopped him by telling him that her bedroom was
her “sanctuary.” Defendant therefore argues that “a reasonable juror could have
concluded that . . . no completed sex act occurred and that only an attempted sexual act
occurred.”
       The problem with defendant’s argument is that the court is required to instruct on
lesser included offenses only when there is substantial evidence the jury could conclude
that the lesser offense, but not the greater, was committed (People v. Breverman (1998)
19 Cal.4th 142, 162), and here there was no evidence that, as to the charged acts, only
the lesser and not the greater offense was committed. We explain. As to the generic acts,
the victim testified that defendant perpetrated these acts either once a week over specific
time periods or hundreds of times. From this testimony, the jury found defendant guilty
of eight lewd acts and 14 acts of oral copulation. There was no evidence that these acts
were not committed because the victim persuaded defendant to back off. Rather, the
evidence was that defendant attempted to commit additional lewd acts on the victim and
additional oral copulations with the victim and that she successfully fended those off.
So, potentially there were uncharged attempted lewd acts and uncharged attempted oral
copulations but no evidence that as to the charged offenses, only attempts were made
instead of the completed offenses. Therefore, there was no reason the court had to
instruct on lesser included offenses as to the charged crimes.
                                             II
             Defense Counsel Was Not Ineffective, So The Trial Court Did Not
              Abuse Its Discretion In Denying Defendant’s New Trial Motion
       Defendant contends the trial court erred in denying his motion for new trial
because his counsel was ineffective in two instances: (1) counsel failed to introduce

                                             3
evidence of defendant’s low testosterone level; and (2) counsel failed to object to the
niece’s testimony that defendant would pat her on the rear end. As we will explain, we
find no abuse of discretion. (See People v. Fosselman (1983) 33 Cal.3d 572, 582
[ineffective assistance of counsel is a permissible nonstatutory ground on which to bring
a new trial motion]; People v. Thompson (2010) 49 Cal.4th 79, 140 [a trial court’s ruling
on a motion for a new trial is reviewed under a deferential abuse-of-discretion standard].)
       As to defendant patting the niece on her rear end, defense counsel elicited on
cross-examination that the niece was “[a]bsolutely not” offended by the pat and it was
done “in a way as if to congratulate [her].” When she saw defendant pat the victim on
her rear end, it was a “similar type of pat.” Counsel’s performance was not deficient
because his reasonable tactic was to show there was no sexual connotation to defendant’s
behavior. (See Strickland v. Washington (1984) 466 U.S. 668, 687, 689 [80 L.Ed.2d 674,
693, 694] [deficient performance is the first prong of an ineffective assistance of counsel
claim, and second-guessing of trial counsel’s strategy is impermissible under the
deferential review of counsel’s trial tactics that we undertake on a claim of ineffective
assistance].)
       As to the evidence defendant had a low testosterone level, the utility of any
evidence supporting this1 was speculative at best for two reasons. One, there was no
evidence that linked defendant’s low testosterone level to any type of sexual drive, let
alone a criminal desire to molest a minor. Thus, there was no evidence that, in appellate
counsel’s words, this evidence (even if admissible) would have “caused the jurors to
question whether [defendant] had the interest in having sexual relations with [the victim]




1       The evidence of defendant’s low testosterone levels was a medical report (attached
to defendant’s reply to the People’s opposition to defendant’s motion for new trial) that
stated that on December 28, 2012, defendant had a testosterone “total” of “180 L” and
stated that the “reference range” was “241-827.”

                                             4
in the first place.” Two, the test was administered one year after the last charged offense.
There was no evidence of defendant’s testosterone level at the times of the molests, so the
trial court could have reasonably excluded the test as irrelevant. Defendant therefore
cannot prove that his counsel was deficient for failing to introduce a speculative test with
no demonstrated link to the charged crimes.
       For these reasons, the trial court did not abuse its discretion in denying the new
trial motion.
                                      DISPOSITION
       The judgment is affirmed.



                                                        ROBIE                 , J.



We concur:



      HULL                  , Acting P. J.



      MAURO                 , J.




                                              5
