Filed 3/28/13 P. v. Hernandez CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H037587
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. C1077378)

         v.

LUCIANO HERNANDEZ,

         Defendant and Appellant.


         A jury convicted defendant Luciano Hernandez of 10 counts of lewd act on a child
under 14. (Pen. Code, § 288, subd. (a).) Defendant committed five counts against victim
1 and five counts against victim 2. On appeal, defendant contends that (1) the trial court
erred by giving the jury a modified instruction in the language of CALCRIM No. 1191
(charged offenses can be considered for propensity) and No. 375 (charged offenses can
be considered for intent, motive, lack of mistake), (2) the prosecutor engaged in
misconduct during argument about voluntary intoxication, and (3) the trial court erred by
failing to instruct the jury sua sponte on the lesser included offenses of battery and
attempted lewd act. We disagree and affirm the judgment.1




         1
         The parties agree that the abstract of judgment incorrectly records the judgment
in two respects and we will correct the abstract therefor.
                                     BACKGROUND
       Victim 1 was defendant’s stepdaughter; victim 2 was defendant’s niece. The
incidents in question occurred in the home or in the home of defendant’s brother when
defendant and his family were living with the brother. They were exposed after victim 1,
12 years old, told her teacher that defendant had been touching her since she was seven
years old.
       The first incident occurred when victim 1 was seven or eight years old and in
second grade; defendant carried victim 1, put her on a bed, pulled down her pants, and
rubbed her genital area. A second incident occurred when victim 1 was 10 years old and
in fourth grade; defendant put the victim on a bed, pulled down her pants, and touched
her genital area with his penis. Other incidents occurred when victim 1 started seventh
grade; defendant touched victim 1’s genital area through bed sheets three times on
different mornings and four times in different evenings. A similar, final incident
occurred in a morning when victim 1 was 12 years old.
       Defendant admitted to the police that he had grabbed victim 1’s genital area about
10 times over the years and once rubbed his penis over the area. He also admitted that,
during the prior two months, he hugged, kissed, and grabbed the genital area of victim 2,
13 years old. According to victim 2, defendant touched or rubbed her genital or buttocks
area three times in the kitchen and, during three incidents in the bedroom, defendant (1)
touched her genital area and tried to kiss her, (2) got on top of her and tried to make her
touch his penis while kissing her, and (3) succeeded in having her touch his penis.
During a final incident in the bedroom, defendant touched her genital area.
       At trial, defendant attacked the victims’ credibility by pointing out inconsistencies
between their statements and testimony and posing that they had motives to lie. He also
relied on his own police interview statements to the effect that he lacked sexual intent as
to some of the incidents because he was either intoxicated or joking.



                                              2
                           CALCRIM NO. 1191 AND NO. 375
       The trial court instructed the jury in the language of CALCRIM No. 1191 as
follows: “If you decide the defendant committed one or more of these charged offenses
beyond a reasonable doubt, you may but are not required to conclude from that evidence
that the defendant was disposed or inclined to commit sexual offenses, and based on that
decision also conclude that the defendant was likely to commit and did commit other
charged offenses.”
       Defendant contends that “it violates due process to allow a jury to use such
evidence to infer that a defendant had a criminal disposition and therefore committed the
other offenses charged in the case.” He concedes, however, that the California Supreme
Court has rejected this argument in People v. Villatoro (2012) 54 Cal.4th 1152, and we
are bound by Villatoro.
       As part of the same instruction, the trial court also instructed in the language of
CALCRIM No. 375 as follows: “If you decide that the defendant committed one or more
of these charged offenses beyond a reasonable doubt, you may but are not required to
consider that evidence for the purpose of deciding whether or not the defendant acted
with the intent of arousing, appealing to or gratifying the lust, passions or sexual desires
of himself or of the child as required. [¶] To prove the offenses alleged in this case or the
defendant had a motive to commit offenses charged in this case or the defenses--alleged
actions were the result of mistake or accident, if you conclude that the defendant
committed one or more of these offenses, that conclusion is only one factor to consider
along with all the other evidence. It is not sufficient by itself. [¶] To prove the defendant
is guilty of other charged offenses of lewd act upon a child under fourteen, the People
must still prove each charge and allegation beyond a reasonable doubt.”
       Defendant contends that the instruction transgressed due process principles
because it lowered the burden of proof. Defendant urges that, “it did not require the jury
to use the same degree of scrutiny required for drawing conclusions from other types of

                                              3
circumstantial evidence.” According to defendant, the instruction conflicted with the
general instruction on circumstantial evidence given by the trial court (CALCRIM No.
224) because it did not tell “the jury that a finding of guilt may not be based on
circumstantial evidence unless each fact in the chain of circumstances was proved beyond
a reasonable doubt and the proved circumstances were consistent with guilt and cannot be
reconciled with any other reasonable conclusion.”
       “With regard to criminal trials, ‘not every ambiguity, inconsistency, or deficiency
in a jury instruction rises to the level of a due process violation. The question is “
‘whether the ailing instruction . . . so infected the entire trial that the resulting conviction
violates due process.’ ” [Citation.] “ ‘[A] single instruction to a jury may not be judged
in artificial isolation, but must be viewed in the context of the overall charge.’ ”
[Citation.] If the charge as a whole is ambiguous, the question is whether there is a “
‘reasonable likelihood that the jury has applied the challenged instruction in a way’ that
violates the Constitution.” ’ (Middleton v. McNeil (2004) 541 U.S. 433, 437.)” (People
v. Huggins (2006) 38 Cal.4th 175, 192.) In this regard, “we must assume that jurors are
intelligent persons and capable of understanding and correlating all jury instructions
which are given.” (People v. Mills (1991) 1 Cal.App.4th 898, 918.)
       Defendant’s analysis is erroneous. There is no conflict between CALCRIM No.
375 and CALCRIM No. 224 as given by the trial court. Defendant’s complaint is that
CALCRIM No. 375 is deficient because it did not repeat the concepts stated in
CALCRIM No. 224 (circumstances proven beyond a reasonable doubt; circumstances
consistent only with guilt). But, read together, the instructions are not ambiguous,
inconsistent, or deficient. Defendant makes no argument to the effect that there is a
reasonable likelihood that the jury understood that the concepts stated in CALCRIM No.
224 did not apply to the concepts stated in CALCRIM No. 375. The most he offers is
that “Jurors unschooled in the law would not necessarily recognize that evidence of
charged offenses is a subset of circumstantial evidence unless they had the benefit of

                                               4
some specific instruction educating them on that point.” But this view of the jurors is
inconsistent with our presumption that jurors are intelligent and capable of understanding
and correlating the instructions as a whole.
                           PROSECUTORIAL MISCONDUCT
       The trial court instructed the jury in the language of CALCRIM No. 3426 as
follows: “You may consider evidence, if any, of defendant’s voluntary intoxication only
in a limited way. You may consider that evidence only in deciding whether defendant
acted with the specific intent required of the charges. [¶] A person is voluntarily
intoxicated if he or she becomes intoxicated by willingly using any intoxicating drug,
drink or substance and knowing that it could produce an intoxicating affect or willfully
assuming the risk of that affect in connection with the charges of lewd or lascivious acts
on a child under fourteen as charged in counts one to ten. [¶] The People have the burden
of proving beyond a reasonable doubt that the defendant acted with the intent of arousing,
appealing to or gratifying the lust, passions or sexual desires of himself or the child. If
the People have not met this burden, you must find the defendant not guilty of lewd or
lascivious acts on a child under fourteen. You may not consider evidence of voluntary
intoxication for any other purpose.”
       Thereafter the prosecutor argued the following to the jury.
       “Let me just say something about that instruction since it was read. It is basically
we heard evidence based on the defendant’s statements to the police that he said that he
was intoxicated. [¶] He talked about drugs and alcohol, and throughout most of his
statement he wanted to blame drug and alcohol for his poor decision making. [¶] There is
an instruction that says you get to decide what instructions apply based on the facts that
you find, and I submit to you that under the circumstances of this case and the facts, that I
am encouraging you to find that instruction has no applicability to the facts of this case.
[¶] Essentially that instruction is saying hey, and we will find out if the defense is even
going to argue it, but basically it is saying drugs and alcohol were an accomplice in my

                                               5
crime. Drugs and alcohol was like a gun to my head and made me do this. It is not me. I
didn’t have the specific intent. I didn’t have the lewd intent. It was the drugs and alcohol
talking. [¶] It was the drugs and alcohol--that it was the drugs and alcohol that made me
find the girls at night, and it was the drugs and alcohol that guided my hand to their
vaginas. [¶] It was the drugs and alcohol that helped me only touch the girls when nobody
else was looking. It was the drugs and alcohol that--[court overrules defendant’s
objection that prosecutor was misstating the law]. It was the drugs and alcohol--not my
interest in--my sexual interest in young girls, but it was the drugs and alcohol that helped
me time the touching of the girls when their parents were at work. [¶] We know that he
wasn’t so intoxicated that, for instance, in the [victim 1] incident when [s]he was in
fourth grade he wasn’t so intoxicated that he couldn’t get his pants down and he couldn’t
get her pants down, that he couldn’t get an erection, that he even ejaculated. [¶] He
wasn’t so intoxicated that he couldn’t do those things because he did all of those things, I
think under the facts of this case that instruction doesn’t have applicability and that you
can comfortably find that was driving him to do what he was doing was his lewd intent
and sexual interest in young girls. It wasn’t the alcohol. It wasn’t the drugs.”
       Defendant contends that the prosecutor misstated the law by (1) urging that the
voluntary intoxication instruction had no applicability to the case, (2) equating voluntary
intoxication to an aider and abettor, and (3) implying that voluntary intoxication could
not reduce his culpability unless he had no control over his physical actions. According
to defendant, “The argument as a whole indicated that evidence of voluntary intoxication
should not affect the verdicts unless [he] could show that his intoxication had compelled
him to undertake the physical acts of touching [victim 1] or [victim 2].” Defendant’s
analysis is erroneous.
       Misconduct involves the use of deceptive or reprehensible methods to attempt to
persuade either the trial court or the jury. (People v. Haskett (1982) 30 Cal.3d 841, 866.)
And, of course, it is misconduct for a prosecutor to mischaracterize the evidence (People

                                              6
v. Hill (1998) 17 Cal.4th 800, 823), misstate the law (People v. Bell (1989) 49 Cal.3d
502, 538), or appeal to the passion of the jurors (People v. Pensinger (1991) 52 Cal.3d
1210, 1250).
       When the claim of misconduct is based on arguments or comments the prosecutor
made before a jury, “ ‘the question is whether there is a reasonable likelihood that the
jury construed or applied any of the complained-of remarks in an objectionable fashion.’
” (People v. Ochoa (1998) 19 Cal.4th 353, 427.)
       In examining whether there is a reasonable likelihood the jury understood or
applied the complained-of comments in an improper or erroneous manner, “we ‘do not
lightly infer’ that the jury drew the most damaging rather than the least damaging
meaning from the prosecutor’s statements.” (People v. Frye (1998) 18 Cal.4th 894, 970
disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421.) “Juries
are warned in advance that counsel’s remarks are mere argument, missteps can be
challenged when they occur, and juries generally understand that counsel’s assertions are
the ‘statements of advocates.’ Thus, argument should ‘not be judged as having the same
force as an instruction from the court.’ ” (People v. Gonzalez (1990) 51 Cal.3d 1179,
1224, fn. 21; Boyde v. California (1990) 494 U.S. 370, 384-385.) “This is not to say that
prosecutorial misrepresentations may never have a decisive effect on the jury, but only
that they are not to be judged as having the same force as an instruction from the court.
And the arguments of counsel, like the instructions of the court, must be judged in the
context in which they are made.” (Boyde v. California, supra, at pp. 384-385.) “[W]e
cannot focus exclusively on a few erroneous words . . . and then reverse the conviction
unless it is ‘reasonably likely’ that the jury applied the erroneous standard described or
implied by those few words. We must examine the overall charge that the jury heard for
a better view of the standard the jury took into its deliberations and applied.” (Chalmers
v. Mitchell (2nd Cir. 1996) 73 F.3d 1262, 1267; United States v. Park (1975) 421 U.S.
658, 674-675.) The instructions are particularly significant because “ ‘[t]he crucial

                                             7
assumption underlying our constitutional system of trial by jury is that jurors generally
understand and faithfully follow instructions.’ ” (People v. Delgado (1993) 5 Cal.4th
312, 331.) Thus, “[w]e presume that jurors treat the court’s instructions as a statement of
the law by a judge, and the prosecutor’s comments as words spoken by an advocate in an
attempt to persuade.” (People v. Clair (1992) 2 Cal.4th 629, 663, fn. 8; see also People v.
Smith (2005) 35 Cal.4th 334, 372.)
       Here, it is true that the prosecutor urged that the voluntary intoxication instruction
was inapplicable. But such a remark cannot reasonably be construed as urging that the
jury should ignore the evidence on voluntary intoxication as defendant argues. The
prosecutor conceded that evidence of voluntary intoxication existed. And he
acknowledged that the point of the evidence was to show that defendant “didn’t have the
specific intent” and “It was the drugs and alcohol talking.” Similarly, the “accomplice”
and “guiding my hand” remarks can be construed as building on the specific-intent theme
rather than creating issues additional to specific intent for which the intoxication evidence
must pass muster.
       The prosecutor is given wide latitude to argue broadly the law and facts of a case.
(People v. Lucas (1995) 12 Cal.4th 415, 473.) The prosecutor may comment on the
actual state of the evidence (People v. Medina (1995) 11 Cal.4th 694, 755) and may “urge
whatever conclusions he deems proper.” (People v. Lewis (1990) 50 Cal.3d 262, 283.)
The argument may be vigorous as long as it amounts to fair comment on the evidence,
which can include reasonable inferences, or deductions to be drawn therefrom. (People
v. Ward (2005) 36 Cal.4th 186, 215.) “Their reasoning may be faulty, their deductions
from the premises illogical, but this is a matter for the jury ultimately to determine, and
not a subject for exception on the part of opposing counsel.” (People v. Willard (1907)
150 Cal. 543, 552.)
       Moreover, in addition to the specific instruction on voluntary intoxication, the trial
court advised the jurors in the language of CALCRIM No. 200 that they must accept and

                                              8
follow the law as stated by the court and “If you believe the attorney’s comments on law
conflict with my instructions, you must follow my instructions.”
       In light of the instructions given by the trial court and the argument of the
prosecutor that highlighted the purpose of the voluntary intoxication evidence, there is no
reasonable likelihood that the jury construed or applied the assailed remarks in an
objectionable fashion. Indeed, the circumstances convince us that the supposed
misconduct and any potential prejudice are more apparent than real, more arguable on
appeal than actual at trial.
                               LESSER INCLUDED OFFENSES
       Defendant contends that the trial court erred by failing to instruct the jury sua
sponte on the lesser included offense of battery.
       It is settled that in criminal cases, even in the absence of a request, the trial court
must instruct the jury on the general principles of law relevant to the issues raised by the
evidence. (People v. Breverman (1998) 19 Cal.4th 142, 149.) The general principles of
law include instructions on lesser included offenses if there is a question about whether
the evidence is sufficient to permit the jury to find all the elements of the charged
offense. (Ibid.) There is no obligation to instruct the jury on theories that do not have
substantial evidentiary support. (Id. at p. 162.) “[T]he existence of ‘any evidence, no
matter how weak’ will not justify instructions on a lesser included offense, but such
instructions are required whenever evidence that the defendant is guilty only of the lesser
offense is ‘substantial enough to merit consideration’ by the jury.” (Ibid.) Evidence is
substantial if it would permit the jury to conclude the lesser offense was committed, but
the greater offense was not. (Ibid.)
       The parties acknowledge that the intermediate appellate courts are in conflict on
whether battery is a lesser included offense of committing a lewd act on a child (Compare
People v. Santos (1990) 222 Cal.App.3d 723, 739 [battery is not a lesser included offense
of lewd act] with People v. Thomas (2007) 146 Cal.App.4th 1278, 1291-1293 [battery is

                                               9
a lesser included offense of lewd act]) and the issue is currently before our Supreme
Court, which granted review of two recent decisions that reached opposite conclusions.
(People v. Gray (2011) 199 Cal.App.4th 167, review granted Dec. 14, 2011, S197749
[battery is a lesser included offense of lewd act]; People v. Shockley (2010) 190
Cal.App.4th 896, review granted Mar. 16, 2011, S189462 [battery is not a lesser included
offense of lewd act].) Defendant asks us to join those courts which have held that battery
is a lesser included offense of lewd conduct.
       But we need not address the issue because, if battery were a lesser included
offense of a lewd act, the record in this case does not support a battery instruction.
       “An offense is necessarily included . . . if the charged offense, either by statutory
definition or as described in the accusatory pleading, cannot be committed without also
committing the lesser offense.” (People v. Santos, supra, 222 Cal.App.3d at p. 738.)
Penal Code section 288, subdivision (a), states that “any person who willfully and lewdly
commits any lewd or lascivious act . . . upon or with the body, or any part or member
thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing
to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of
a felony . . . .” Battery, however, is “any willful and unlawful use of force or violence
upon the person of another.” (Pen. Code, § 242.) Any harmful or offensive touching
satisfies the element of unlawful use of force or violence. (People v. Pinholster (1992) 1
Cal.4th 865, 961, overruled on other grounds by People v. Williams (2010) 49 Cal.4th
405, 459.)
       Defendant argues that “Some of the alleged touchings consisted of fleeting casual
contact over the girls’ clothes.” He adds that he made statements about his intoxication
and “denied being sexually aroused or interested during these momentary touchings.”
His point is that these facts show that he did not have the specific sexual intent required
for a lewd conduct conviction but the jury could have found him guilty of battery.



                                               10
       But no objectively nonsexual acts were at issue in this case. Defendant’s acts
were touching and rubbing the genital area, hugging, kissing, touching his penis, and
having his penis touched. It therefore cannot be said that the explicit nature of the
contact between defendant and his victims shows that defendant was merely guilty of a
harmful or offensive touching. Defendant’s explanation that some of the touchings were
“just playing” was extremely incredible considering his admissions to the police and
implicit concession that some of the touchings were sexual. We do not find that this thin
assertion of playfulness constitutes substantial evidence that would have warranted a
lesser included battery instruction. (People v. Valdez (2004) 32 Cal.4th 73, 116 [there
must be evidence a reasonable jury could find persuasive to warrant instruction on lesser
offense].)
       For similar reasons, we reject defendant’s argument that the trial court erred by
failing to instruct the jury sua sponte on attempted lewd act as to victim 2.
       According to defendant, victim 2 told the police that she had slapped defendant’s
hand away before he could touch her and defendant told the police that victim 2 would
push his hand away when he tried to touch her.
       Victim 2 had initially told the police that she “smacked [defendant’s] hand away
before he touched her private parts.” But she later changed that statement after the
investigating officer “explained to her that I know it was hard to talk about and that I
really needed her to tell me the truth.” Victim 2 then related the several specific
instances where defendant had touched her in the bedroom. Moreover, defendant told the
police that he grabbed victim 2’s breasts under her clothes and bit them four or six times
and touched victim 2’s vagina on top of her underwear four or six times. In addition, he
related that he kissed victim 2 and grabbed her buttocks on the evening preceding his
police interview. And he expressed gratification to the police that he had never had
sexual relations with the victims but admitted that “it could come to something bigger.
One begins with touching their hand. Touching the hand and maybe later one begins

                                             11
going inside. . . . I’m happy because at least I didn’t, didn’t violate, I didn’t penetrate
either of them and well that’s better.” As to victim 2, he offered “we hugged so often”
and “We would kiss each other.” No reasonable jury would credit the vague statements
of hand slapping over victim 2’s specific statements of sexual contact and defendant’s
admissions so as to convict defendant of attempted lewd act rather than lewd act. The
lesser offense instruction on attempt was not warranted by the evidence.
                                         ABSTRACT
       The trial court sentenced defendant to 45 years to life and issued “an order
prohibiting visitation between the defendant and the children victims.” The abstract of
judgment, however, states “TOTAL TERM: 46 YEARS TO LIFE” and “No contact
and/or visitation with either victim.”




                                              12
                                  DISPOSITION
      The judgment is affirmed. The abstract of judgment is corrected to read “TOTAL
TERM: 45 YEARS TO LIFE” and “No visitation with either victim.”




                                                         Premo, Acting P.J.




      WE CONCUR:




            Mihara, J.




            Márquez, J.




                                        13
