Filed 11/27/13 P. v. Moore CA2/6
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                     SECOND APPELLATE DISTRICT

                                                   DIVISION SIX


THE PEOPLE,                                                                 2d Crim. No. B247649
                                                                        (Super. Ct. No. MA054317-01)
     Plaintiff and Respondent,                                              (Los Angeles County)

v.

CHARLES ELLIE MOORE,

     Defendant and Appellant.



                   Charles Ellie Moore appeals his conviction, by jury, of five counts of
committing a lewd act upon a child under 14 years of age. (Pen. Code, § 288, subd. (a).)1
The trial court sentenced appellant to a term of 75 years to life in state prison. Appellant
contends the trial court erred when it refused to instruct the jury on battery as a lesser
included offense of lewd acts. The question of whether battery qualifies as a lesser
included offense of lewd acts is currently pending before our Supreme Court in People v.
Shockley, review granted March 16, 2011, S189462. This appeal does not, however,
depend on the resolution of that issue. Because there was no substantial evidence
appellant committed batteries rather than lewd acts, the trial court had no obligation to
instruct on battery, regardless of whether it qualifies as a lesser included offense of lewd
acts.


1
    All statutory references are to the Penal Code unless otherwise stated.
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                                            Facts
              The victims here are S. M., A. S., Megan B. and Cara S. S. and A. are
appellant's granddaughters. Megan and Cara were students at a private school where
appellant worked as a math and computer science teacher. Appellant molested S. in
2011, when she was six years old. He molested A. in about 2002, when she was 11 or 12
years old. The crimes against Megan and Cara occurred between 2001 and 2002, when
they were in the sixth, seventh and eighth grades.
              S. testified that she was watching television and reading books with
appellant early one morning when he put his hand under her nightgown and underwear
and touched her "private." When she told him to stop, appellant said, "Okay," but he
touched her again. Appellant kept touching S. until she told him to stop a third time. He
said that what happened had been an accident. As soon as S.'s father, Vincent, got home,
S. told him that appellant had touched her "pee-pee." Vincent called S.'s mother,
Jennifer, who was at work. Jennifer came home and made a video recording of S.
describing the incident.2
              Appellant and his wife, Jennifer's mother, had been staying in their mobile
home at Vincent and Jennifer's house. Vincent and Jennifer asked them to leave and they
did. S.'s parents reported the incident to police about five days later, after discussing
their options with their pastor, a counselor and some friends who are police officers.
              While investigating the incident, Los Angeles Police Detective Susan
Velasquez discovered that appellant had committed unreported lewd acts on the other
three girls. A., who was 21 at the time of appellant's trial, testified that appellant touched
her vagina one time, while they were having a "tickle fight." They were alone in the
house at the time. A. told her mother, appellant's daughter Margo, about the incident as
soon as Margo got home. Appellant told Margo that A. was blowing everything out of
proportion and that any touching had been an accident.



2
 Jennifer testified that she made the video so that S. would not have to keep talking about
the incident while it was being investigated.
                                              2
              Megan B. was 23 years old when she testified at appellant's trial. She was
his student for math and computers from sixth through eighth grade. Appellant bought
her candy from the school store and loaned her money to buy candy. One day when she
was in the sixth grade, she was alone with appellant after school. Appellant called
Megan over to his desk, unbuttoned his shirt and put her hand on his chest, showing her a
scar from an earlier surgery. Appellant then put his hands on Megan's stomach and
breasts, touching her under her bra. Megan told no one about the incident.
              One or two years later, Megan approached appellant for help with an
assignment. He touched her knee under her dress and then moved his hand up her leg
and rubbed her vagina under her underwear. That evening, Megan told her mother what
had happened. They reported the incident to school administrators but not to police.
Appellant was fired shortly thereafter.
              Cara S., also 23 at the time of trial, was another of appellant's students at
the private school. She testified that one day after class, appellant put his hands under her
shirt and touched her breasts. She did not report the incident to police.
              Appellant testified that he never deliberately touched the girls' breasts or
vagina. Megan asked to touch the scar from his heart transplant operation, so he let her.
He also occasionally hugged Megan and may have accidentally touched her breasts at
that time. Appellant testified he never touched Megan's vagina. Appellant admitted that
he hugged Cara one day because she was upset. He did not touch her breasts
intentionally, although he may have touched them accidentally during the hug.
              Appellant testified that the incidents with A. and S. were also accidents. He
may have touched A.'s vagina accidentally during their tickle fight, because she was
squirming around a lot. S. had been sitting on his lap. He picked her up to move her, and
his hand may have accidentally touched her vagina.
                                          Discussion
              Appellant contends the trial court erred when it refused to instruct the jury
on battery (§ 242) as a lesser included offense of the charged offense, lewd acts on a child
under 14 years of age. (§ 288.) There was no error because no substantial evidence

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supported a battery instruction, even if battery qualifies as a lesser included offense of the
charged crime.
              A trial court has a duty to instruct the jury on all theories of a lesser
included offense which find substantial support in the evidence. (People v. Smith (2013)
57 Cal.4th 232, 239.) " 'To justify a lesser included offense instruction, the evidence
supporting the instruction must be substantial -- that is, it must be evidence from which a
jury composed of reasonable persons could conclude that the facts underlying the
particular instruction exist.' " (People v. Souza (2012) 54 Cal.4th 90, 116, quoting People
v. Blair (2005) 36 Cal.4th 686, 745.) The evidence must be sufficient to permit a jury of
reasonable people to conclude that the lesser offense was committed, but not the greater.
(People v. Wyatt (2012) 55 Cal.4th 694, 704; see also People v. Avila (2009) 46 Cal.4th
680, 705.) "[T]he court is not obliged to instruct on theories that have no such
evidentiary support." (People v. Breverman (1998) 19 Cal.4th 142, 162.)
              Appellant was charged with having committed lewd acts on children under
14 years of age, in violation of section 288. " ' "[A]ny touching" of an underage child
committed with the intent to sexually arouse either the defendant or the child' establishes
a section 288 violation." (People v. Murphy (2001) 25 Cal.4th 136, 145-146, quoting
People v. Martinez (1995) 11 Cal.4th 434.) Battery is a general intent crime which
"requires that the defendant actually intend to commit a 'willful and unlawful use of force
or violence upon the person of another.' [Citations.] In this context, the term 'willful'
means 'simply a purpose or willingness to commit the act . . . .' (§ 7, subd. 1.)" (People
v. Lara (1996) 44 Cal.App.4th 102, 107.)
              Even if battery qualifies as a lesser included offense of lewd acts, the
evidence here would not have supported an instruction on it. The victims described
intentional, lewd touching by appellant. Appellant testified that he intended to lawfully
touch the victims -- by hugging Megan and Cara, picking up S., and tickling A. -- but
then accidentally also touched their vaginas or breasts. He denied touching Megan's
vagina at all. This evidence provides no support for a battery instruction. The intentional
touching described by appellant did not involve the use of force or violence and was not,

                                              4
therefore, battery. Accidental touching is not "willful" and thus cannot constitute battery.
Appellant's testimony provided no evidentiary basis upon which a reasonable juror could
find that he committed battery but did not commit a lewd act. (People v. Breverman,
supra, 19 Cal.4th at p. 162.) As a consequence, the trial court did not err when it
declined to instruct the jury on battery as a lesser included offense.
                                         Conclusion
              The judgment is affirmed.
              NOT TO BE PUBLISHED.



                                                          YEGAN, J.


We concur:



              GILBERT, P.J.



              PERREN, J.




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                               Kathleen Blanchard, Judge

                         Superior Court County of Los Angeles

                          ______________________________


             Vanessa Place, under appointment by the Court of Appel, for Appellant.


             Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Victoria B.
Wilson, Supervising Deputy Attorney General, Jonathan J. Kline, Deputy Attorney
General, for Plaintiff and Respondent.




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