Filed 5/21/13 P. v. Parker 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H037709
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. CC947711)

         v.

CASSIDY LORIN PARKER,

         Defendant and Appellant.



         In this appeal, Cassidy Parker (appellant) challenges as defective a jury instruction
on simple battery (Pen. Code, § 242) that was given and then modified by the court after
a juror question was sent to the court during deliberations. Appellant argues that the trial
court's modification of the instruction removed from the jury's consideration the defenses
of consent and accident to simple battery in violation of the constitutional guarantees of
due process and a fair trial. Appellant asserts that this court must reverse the judgment.
For reasons that follow, we affirm the judgment.
                                         Facts and Proceedings Below
         On February 25, 2010, the Santa Clara County District Attorney filed an
information in which appellant was charged with one count of assault with intent to
commit rape (Pen. Code, § 220, subd. (a), count one) and one count of sodomy by force,
violence, duress, menace or fear (§ 286, subd. (c)(2), count two).1
       The charges arose from an incident that occurred on December 27, 2008. The
evidence at trial was as follows:
Victim Jane Doe2
       On December 26, 2008, Jane and her friend Erica went to a bar in San Jose at
around 11:00 p.m. Jane estimated that she drank four drinks at the bar. When the women
left the bar they planned on going to a party. Erica drove Jane's car because Jane did not
feel sober enough to drive. En route to the party the women got lost in East San Jose.
The police stopped their car at about 2:19 a.m. on December 27 because the car was
swerving; Erica was arrested for driving under the influence of alcohol. At the time, Jane
was also under the influence of alcohol and officers told her that she could not drive.
       Jane tried telephoning people that she knew lived in San Jose in order to find
someone to take her home, and to stop her car from being impounded. Jane called
appellant because they were not far from downtown San Jose. Appellant was one of the
few people she knew who had a car. Jane had never been to appellant's house but knew
that it was somewhere in San Jose. Jane explained to appellant that she needed a ride
home; appellant agreed to pick her up. Approximately 10 minutes later appellant arrived
with a friend. According to Jane the officers gave appellant and his friend the keys to her
car and the friend moved the car; he did not tell her where he parked it.
       Jane testified that when she went with appellant and his friend the plan was that
they would take her home. However, they said that Santa Clara was too far and
suggested that she sober up at appellant's house; Jane agreed. Jane remembered going
upstairs to appellant's house. One of the first things that she did was to go into the
bathroom; when she came out appellant gave her a blanket and told her to take a nap. As

1
       All unspecified section references are to the Penal Code.
2
       We refer to the victim in this case as Jane Doe to protect her anonymity.
                                              2
soon as she sat on the couch appellant started to take off his clothes. Appellant started to
lift up Jane's dress; she remembered appellant trying to spread her legs as she was on her
back. Jane moved backwards on the couch and appellant tried to put his penis inside her.
Jane was scared and told appellant to stop. At this point she was still wearing her
underwear. She told appellant that she was scared of getting pregnant, and then told him
that she had a sexually transmitted disease.
       According to Jane appellant pushed her down onto her stomach, lifted her dress,
pulled down her underwear and placed his penis in her "butt." Jane said that she started
crying hysterically because it was painful; she told appellant to stop. At this point
somebody came down the stairs and asked what was going on. According to Jane,
appellant told him to " '[g]et the fuck upstairs.' "
       When Jane's telephone rang she told appellant that it was an emergency and she
needed to answer it. Appellant stopped what he was doing and she ran for her telephone.
It was the officer that arrested her friend Erica; he called to relay a message to her. Jane
did not tell the officer what had just happened because she was scared, but when he asked
if she was okay she said "No." Jane arranged for the officer to call her back. When she
finished the telephone call with the officer, she texted her niece and told her that she had
been raped.
       At some point appellant's friend returned and took Jane to her car. Appellant's
friend had Jane's keys. When they got to her car, appellant's friend told Jane that if she
needed anything she could telephone him, but he did not give her his telephone number
as she said she was going to go to downtown San Jose. She drove to San Jose toward the
jail. Again, the officer that had arrested Erica telephoned her; when he learned that she
was driving, the officer told her to pull over. Jane did so in the area of 10th street and
San Fernando. When the officer arrived she told him that she had been raped, but did not
tell him who had raped her. The officer told her that she should report what had


                                                3
happened. All she told him was that it was one of the people that had picked her up.
Eventually, she left and drove home.
       When Jane arrived at her apartment her niece was there. The niece encouraged
her to get a rape test. Jane telephoned the police around 9 a.m. An officer took her to
Valley Medical Center for laboratory work and blood tests. Hospital personnel checked
her for injuries, removed her clothing and took photographs. Eventually, Jane returned to
her apartment; she testified that she wanted to be left alone and was embarrassed. She
was in a lot of pain and bleeding.
       Jane testified that she remembered telling the officer that came to her apartment
that she was screaming and crying hysterically during the assault.
Hospital Examination
       Registered nurse Emily Trenado conducted a SART examination on Jane.
Trenado testified that SART stands for Sexual Assault Response Team. Trenado
collected swabs from Jane's right thigh, around her lips, and on both sides of her neck. It
was stipulated that swabs of Jane's neck area had DNA from appellant.
       Jane declined a full anoscope examination. Accordingly, Trenado performed a
visual examination of Jane's anal area and took photographs. Jane complained of
tenderness in that area. There was redness in the rectal area, but no evidence of bleeding.
Trenado saw that when Jane was sitting she had one hip elevated. Emotionally, Jane was
tearful and crying.
       In Trenado's expert opinion, based on her observations of the injuries on Jane and
the pain which she said she was experiencing, Jane's injury was consistent with anal sex.
Trenado could not say whether the sex was consensual only that the injuries indicated
that there was a "lack of cooperation."
Appellant's Friend and Neighbor
       Oscar Barajas, appellant's friend and neighbor, testified that he had known
appellant for between five and seven years. In December 2008, appellant lived across the
                                             4
street from his house. Barajas recalled some events related to this case. He remembered
leaving the house around 10:30 to go to a bar with appellant. Barajas could not
remember how many drinks appellant had. The bar closed at 1:30 a.m., but Barajas
remembered "hanging out" outside the bar with friends and leaving San Jose about 2:45
a.m. Appellant was intoxicated. As they were heading home they stopped to pick up
some food. Barajas was driving appellant's pick-up truck. Just as they got to appellant's
house, appellant received a telephone call. Barajas was not really paying attention to the
call, but half-way through the telephone conversation appellant asked him if they could
go to pick up somebody. Barajas was not happy about the idea because it was late and he
had to go to work that day, but after considering that appellant had been drinking he
changed his mind.
       When they arrived in the area of Tully and Senter, Barajas parked the truck behind
a CHP car. He got out of the truck and went to talk to a CHP officer. The officer asked
him if he had had anything to drink and Barajas told him that he had not. The officer
explained that there had been a DUI stop and that one young woman was going to jail,
but the other one needed a place to go to sober up. The officer asked him to take the car
involved in the stop and park it somewhere. He got the keys from the young woman and
parked the car about a block away. When he returned to the scene he saw appellant
talking with the woman who was crying; he returned her keys to her. Appellant decided
that he would take the woman to his home and they would both sober up; in the morning
he would drive her to fetch her car.
       Barajas drove appellant and the young woman to appellant's home. The young
woman talked about how she should have been the one going to jail and she should be the
first person that her friend should see when she walked out of the jail. The journey to
appellant's home lasted about five minutes. When they arrived all three walked up the
stairs and entered the home. They sat on the couch and started watching television, but
Barajas was tired and left shortly thereafter.
                                                 5
          Barajas recalled that the young woman was under a blanket because it was cold.
He saw her go into the bathroom and when she came out he gave her his food and left.
He thought that it was around 3:45 a.m. when he left. He walked across the street to his
house and went to bed. About 45 minutes later he received a telephone call from
appellant asking him to come to get the young woman because she was " 'freaking out' "
about her friend being in jail. Barajas walked across the street and found appellant and
the young woman outside. The young woman was crying about her friend in jail similar
to when he first met her. Barajas asked her if she was "okay," and she said she was
"fine."
          Barajas drove the young woman back to her car. Again, Barajas asked her how
she was and she replied that she thought she should be the first person her friend saw
when her friend got out of jail; she blamed herself for her friend being in jail. The young
woman was texting on her telephone as he was driving. When they got to her car, the
young woman returned a sweater that Barajas had given her because it was cold, but he
told her to keep it. He told her to call him if she needed anything else; she saved his
telephone number in her telephone. Again, he asked her if she was fine, and she said she
was; she got into her car and started it up. Barajas drove away.
The DUI Stop—Deputy Elder
          Deputy Elder assisted with the DUI stop. Two young women were in the vehicle
and both had been drinking. Deputy Plett arrested the driver and several times the
passenger was offered a ride home because she could not drive the car; she had been
drinking. The passenger chose to call a friend. A pick-up truck with two people arrived
to pick up the passenger. The driver of the pick-up truck drove the car around the block
to park it in a safe location so that it would not be towed. When he walked back he gave




                                              6
the keys to the car to the passenger.3 Deputy Elder testified that she could tell that the
young woman had consumed alcohol but was not too intoxicated to care for herself.
       Later, Deputy Elder had a conversation with Deputy Plett. He informed her that
he had seen a text message from Jane on Erica's phone, which was in his possession,
indicating that the two men who had picked her up left her on the side of the road near a
bridge and she did not know where she was. Based on this information Deputy Plett had
called Jane; when he asked her if she was okay and if he needed to send another deputy
out to check on her, Jane told him that she was okay and had found another ride home.
Deputy Plett
       Deputy Plett testified to the events of the December 27, 2008 DUI stop. At
approximately 2:30 a.m. he stopped a car; he could not remember what he observed. He
remembered the names of the people in the car as Jane and Erica; Erica was the driver.
He testified that he conducted a full DUI investigation, which included administering
field sobriety tests. He arrested Erica. Two other deputies arrived to assist—Deputy
Elder and Deputy Cortez. Deputy Plett transported Erica to the jail and Jane and the car
remained at the scene. He could not remember what happened to the car.
       At some point, Deputy Plett used Erica's telephone to call people because Erica
was concerned that she was not appropriately dressed to be released from the jail, and
was worried that she would not have any transportation. Deputy Plett talked to Jane on
the telephone; he estimated that it was sometime between 2:50 and 3:10 in the morning.
Deputy Plett asked Jane to pick up Erica as Erica had requested. Jane asked if Deputy
Plett could call her back. Jane "sounded rushed and kind of frantic," but he could not
recall that she was crying. At the time, he did not think there was any cause for concern.
The conversation lasted approximately 15 to 20 seconds. When asked by the prosecutor




3
       Deputy Elder identified the young woman passenger as Jane.
                                              7
what other words he could use for how Jane sounded, Deputy Plett testified "fearful" or
"distraught."
       When Deputy Plett telephoned Jane again, he learned that she was driving. She
told him she was pulled over at the side of the road and he told her to stay there. Jane
was still emotional when he talked to her; she said she wanted to pick up Erica.
Eventually, Deputy Plett met with Jane in the area of 10th Street and San Fernando at
approximately 5:15 a.m. Deputy Plett questioned Jane about her ability to drive; she
responded that she had been raped. Jane was shaking and visibly upset. Jane did not tell
Deputy Plett who had raped her or exactly where it happened. She said that she did not
want to get anyone into trouble. Deputy Plett described Jane's responses as evasive; it
appeared to him as if she did not want to talk about it. Deputy Plett was still concerned
about Jane's ability to drive and so he asked her to blow into a PAS device. Jane just
wanted to leave. Deputy Plett offered to get a victim advocate for Jane but she declined.
Deputy Plett could not recall if Jane appeared to have been crying, but he did remember
that her eyes were red and bloodshot.
The Investigation
       In December 2008 San Jose Police Officer Justin Palmer was assigned to the
sexual assault investigative unit. He received this case around December 31, 2008. He
left a telephone message for Jane on January 6, 2009. However, he had to telephone her
a few times before she returned his call. Jane did not keep appointments made for
January 9 and January 12 or January 13. She told Officer Palmer that she needed more
time to think about what to do.
       On February 4, and February 5, 2009, Officer Palmer and Detective Kidwell met
with appellant at his residence. They recorded two interviews they had with appellant
outside the residence.4 The recordings from both interviews were played for the jury.


4
       Appellant was not aware that he was being recorded.
                                             8
       In the first interview, initially, appellant denied that anything happened and said
that he did not know of any reason why his DNA would show up in Jane's vagina or anus.
Toward the end of the interview, appellant admitted that some "stuff did happen." He
explained that the reason he had not been forthright at the beginning of the interview was
Jane's "girlfriend's boyfriend" did not like him. Appellant admitted that he had
consensual vaginal sex with Jane; he did not remember having anal sex with her, but said
that "they might have slipped out." He said that when Jane's telephone rang she asked
him to stop; he said he did. Jane became hysterical about her friend and so he asked his
friend to come to pick up Jane and take her to her car. His friend took Jane to her car and
that was the last time appellant saw her.
       In the second interview, again appellant denied having anal sex with Jane, but
conceded that his penis "might have" gone into her anus, but he "did not stick it there on
purpose."
Jane's Niece
       Jane's niece testified that she remembered receiving a text message from her aunt
at about 3:00 a.m. on December 27. The text said, " 'I was raped.' " When shown a
photograph of her telephone by the prosecutor, the niece confirmed that it was her
telephone, confirmed that the exact wording of the text was "I got raped" and that the text
came in at 4:06 a.m. Jane's niece said that she got dressed and went to find Jane. She
located her at Jane's apartment about 5 a.m. Jane was sitting on her couch watching
television. According to the niece, Jane was distraught, bewildered, very emotional, and
crying.
David Knutson
       David Knutson was appellant's foster father. Appellant had lived with him for
seven years and was living with him in December 2008. However, at the time of trial
they were no longer living together.


                                             9
       Knutson testified that on one night after Christmas 2008 he saw appellant with a
young blond woman. He did not know the woman's name and had not seen her before.
Knutson explained that on that night he had gone to bed around 10 p.m., but woke up
with a dry throat so he went to get something to drink. To get to the kitchen he had to go
from his bedroom, which was down a hallway and through the living room. As he did so,
he noticed appellant and his guest were on the couch. They were covered with a blanket;
they appeared to Knutson to be "getting along fine." According to Knutson appellant and
his guest were watching television and engaging in what he considered "some sort of
foreplay" under the blanket; they were giggling and smiling.
       When appellant saw Knutson he jumped up and told Knutson to go back to his
room; Knutson could see that appellant was fully clothed. Since Knutson slept in his
underwear and he did not want to embarrass appellant and his guest, Knutson went back
to his room to put on a pair of shorts. At this time, the young woman did not appear to be
in any distress; she did not speak to Knutson. After Knutson put on a pair of shorts he
went back to the kitchen and then returned to his room; the young woman was still
watching television and "having a good time" with appellant.
       Knutson did not recall hearing a telephone ring after going back to bed. Nor did
he remember doors opening and closing. He testified that he did not hear a woman
crying in the early morning of December 27. When asked if anything to which he had
testified was untrue because he was trying to protect appellant, Knutson replied, "None.
None whosoever [sic]. If I would have heard a woman screaming in my house, I would
have called the police."
       On cross examination, Knutson conceded that when he spoke to a defense
investigator in September 2009, neither the word "giggling" nor the word "laughing" was
mentioned by him. Nor did he say anything about foreplay. Knutson admitted that he
told the defense investigator that he did not know the girl's demeanor because he did not


                                            10
see her face. When asked by the prosecutor whether there was an internal stairway in the
residence, Knutson confirmed that there was, but it went down into the garage.
       The jury found appellant not guilty of assault with intent to commit rape, not
guilty of the lesser included offense of assault (§ 240) and not guilty of sodomy by force
or fear. However, the jury did find appellant guilty of battery (§ 242).
       Subsequently, defense counsel moved for a judgment of acquittal or in the
alternative a new trial. Counsel argued that the court had misdirected the jury as to the
elements of battery and this adversely affected her client's substantive rights. On
October 14, 2011, the court denied the motion and denied the prosecutor's request that the
court order appellant to register as a sex offender. The court sentenced appellant to one
year formal probation on the condition he serve 97 days in jail credit for time served.
The court imposed various fines and fees and ordered that appellant not have any contact
with Jane.
       Appellant filed a timely notice of appeal. As noted, on appeal appellant asserts
that the court erred when it instructed the jury on battery and then modified the
instruction during jury deliberations in response to a jury question.
                                         Discussion
Alleged Instructional Error
Background
       On the afternoon of June 22, 2011, after the conclusion of the evidentiary portion
of the trial, the court and counsel discussed the instructions to be provided to the jury.
Defense counsel noted for the record her objection to the court's proposal to instruct on
lesser included offenses.
       Before argument, the court instructed the jury on the elements of the offenses with
which appellant was charged; and as to count two, the court instructed the jury on battery
as a lesser included offense. Specifically, the court told the jury "The defendant is
charged in Count 2 with sodomy. The crime of simple battery is a lesser offense to that
                                             11
of sodomy. [¶] To prove that the defendant is guilty of this crime, the People must prove
that the defendant willfully and unlawfully touched [Jane] Doe in a harmful or offensive
manner. [¶] Someone commits an act willfully when he or she does it willingly or on
purpose. It is not required that he or she intend to break the law, hurt someone else, or
gain an advantage. [¶] The slightest touching can be enough to commit battery if it is
done in a rude or angry way. Making contact with another person, including through his
or her clothing, is enough. The touching does not have to cause pain or injury or any
kind."
         During deliberations, the jury sent a note to the court, which read—"In the simple
battery charge, can the term 'unlawfully' be defined?" On the record, out of the presence
of the jury, the court noted that the jury had asked about the battery charge and stated "I
believe that should have been deleted; and, Counsel, you both agree with me." Defense
counsel answered, "Yes." The court told counsel that the reply to the question would be
"That word should . . . have been deleted from the instruction. Please cross it out and
ignore it." Defense counsel responded "Thank you."
         Appellant argues that the trial court improperly modified the jury instruction for
battery. He contends that by directing the jury to delete the term "unlawfully" from the
instruction, the court removed an element of the offense from the jury's consideration and
relieved the prosecution of its burden to prove each element of the charged offenses
beyond a reasonable doubt in violation of his state and federal constitutional rights to due
process as well as his Sixth Amendment right to a jury trial.
         Respondent disagrees and counters that the claim of error is forfeited because
defense counsel expressly agreed to the court's modification of the instruction.
Respondent argues that appellant is estopped to complain of a purported error that
counsel expressly agreed should be modified.
         Appellant addresses this claim of forfeiture in his opening brief; he argues that if
his attorney's agreement to the deletion of the word "unlawfully" from the battery
                                               12
instruction forfeited this claim, defense counsel rendered ineffective assistance of
counsel.
       " 'When a defense attorney makes a "conscious, deliberate tactical choice" to
[request or] forego a particular instruction, the invited error doctrine bars an argument on
appeal that the instruction was [given or] omitted in error.' [Citations.]" (People v.
McKinnon (2011) 52 Cal.4th 610, 675.) "The doctrine of invited error is designed to
prevent an accused from gaining a reversal on appeal because of an error made by the
trial court at his behest. If defense counsel intentionally caused the trial court to err, the
appellant cannot be heard to complain on appeal." (People v. Wickersham (1982) 32
Cal.3d 307, 330, disapproved on other grounds in People v. Barton (1995) 12 Cal.4th
186, 201.) However, invited error will be found only if counsel expresses a deliberate
tactical purpose in resisting or acceding to the complained-of instruction. (People v.
Cooper (1991) 53 Cal.3d 771, 830; People v. Valdez (2004) 32 Cal.4th 73, 115.)
       The record does not support a conclusion that counsel expressed a deliberate
tactical purpose in agreeing with the court that the word "unlawfully" could be deleted
from the instruction—all counsel said was "Yes" when the court asked if counsel agreed
to the deletion of the word. We find it highly questionable that defense counsel would
make a deliberate tactical choice to agree to a modification of an instruction that she
expressly objected to in the first place. Accordingly, we find no invited error here.5
       Nevertheless, we cannot agree with appellant that the deletion of the word
"unlawfully" from the instruction was error under the facts of this case.
       Certainly, a "battery is any willful and unlawful use of force or violence upon the
person of another." (§ 242.) Nevertheless, as this court has explained before, "battery
does not require proof of unlawfulness separate from the use of force; lawfulness
(justification) is an affirmative defense. [Citation]" (People v. Johnson (2007) 150

5
       Since we address this issue it is not necessary to address appellant's argument that
he received ineffective assistance of counsel.
                                              13
Cal.App.4th 1467, 1482.) "Harmful or offensive contact, intentionally done, is the
essence of battery (Rest.2d, Torts §18)." (5 Witkin, Summary of Cal. Law (10th ed.
2005) Torts, § 383, p. 599.) "Any harmful or offensive touching constitutes an unlawful
use of force or violence. [Citation.]" (People v. Martinez (1970) 3 Cal.App.3d 886, 889
(Martinez).)
       For the touching not to have been unlawful, appellant must not have touched Jane
willfully (i.e., willingly or on purpose) in a harmful or offensive manner. " ' "It has long
been established . . . that 'the least touching' may constitute battery. In other words, force
against the person is enough, it need not be violent or severe, it need not cause bodily
harm or even pain, and it need not leave any mark." [Citation.]' " (People v. Myers
(1998) 61 Cal.App.4th 328, 335.) Thus, the essence of the crime of battery is a touching
which is objectively and subjectively perceived as harmful or offensive. (Martinez,
supra, 3 Cal.App.3d at p. 889 [barefoot kick to shin is offensive].)
       Relevant here, the jury instruction on simple battery provides: "The defendant is
charged with battery [in violation of Penal Code section 243(a)]. [¶] To prove that the
defendant is guilty of this crime, the People must prove that: [¶] 1 The defendant
willfully [and unlawfully] touched <insert name> in a harmful or offensive manner . . .
[¶] [AND [¶] 2 The defendant did not act (in self-defense/ [or] in defense of someone
else/ [or] while reasonably disciplining a child).] [¶] Someone commits an act willfully
when he or she does it willingly or on purpose. It is not required that he or she intend to
break the law, hurt someone else, or gain any advantage. [¶] The slightest touching can
be enough to commit a battery if it is done in a rude or angry way. Making contact with
another person, including through his or her clothing, is enough. The touching does not
have to cause pain or injury of any kind." (CALCRIM No. 960)6




6
       Judicial Council of California Criminal Jury Instruction 960.
                                             14
       As the bench notes to CALCRIM No. 960 indicate, ordinarily, the word
"unlawfully" in CALCRIM No. 960 is deleted from the instruction unless there is
evidence of self-defense, defense of another or reasonable discipline. (Judicial Council
of Cal., Crim. Jury Instns. (2012) Bench notes to CALCRIM No. 960, pp. 757-758.)
Thus, in the general sense, the court was correct that the word "unlawfully" should not
have been given as there was absolutely no evidence that appellant was acting in self-
defense or in the defense of others.
       We examine jury instructions to determine whether the law was correctly
conveyed to the jury. (People v. Kelly (1992) 1 Cal.4th 495, 525.) The question is
whether there is a " 'reasonable likelihood' " that the jury understood the charge as
appellant asserts. (Ibid.)
       At the crux of appellant's argument is that in this case Jane consented to vaginal
intercourse and that his penis entered Jane's anus by mistake. Thus, he argues in this
situation the touching was not unlawful.
       Certainly, the defenses of consent and mistake of fact were available to appellant
with regard to battery. It is true that there are certain acts that so contravene public policy
that consent is not recognized as a valid defense to an assault and battery charge. For
example, voluntary mutual combat outside the rules of sport is a breach of the peace.
Therefore, mutual consent is no justification and both participants may be found guilty of
criminal assault and battery. (See People v. Lucky (1988) 45 Cal.3d 259, 291; 1 Witkin
& Epstein, Cal.Criminal Law (4th ed. 2012) Defenses, § 96, p. 544.) If, however, the
contact is of an "ordinary physical contact" and does not threaten bodily harm, consent is
an available defense. (People v. Samuels (1967) 250 Cal.App.2d 501, 513.)
       In accordance with these principles, it has been determined that consent of the
victim may render an otherwise unlawful touching to be lawful because "[w]here a
defendant reasonably believes the touching constituting the alleged assault was
consensual he cannot be guilty because there is nothing unlawful about the physical
                                              15
contact between the parties." (People v. Rivera (1984) 157 Cal.App.3d 736, 742; see also
People v. Sanchez (1978) 83 Cal.App.3d Supp. 1, 3 (Sanchez) [suggesting that the
affirmative defense of a bone fide and reasonable belief by defendant that the victim
impliedly consented and thereby would not be offended by the touching is available
where defendant is charged with simple assault].) Nevertheless, appellant had the burden
of raising a reasonable doubt that he had a bona fide and reasonable belief that Jane
impliedly consented and thereby would not be offended by the touching. (Sanchez,
supra, 83 Cal.App.3d Supp. at p. 3.)7
       With regard to the sodomy charge, appellant chose a slightly different strategy in
that the record indicates that appellant's defense was that if there was an act of sodomy it
was not consensual, it was accidental.8 Specifically, defense counsel told the jury, "[s]o
the defense is not saying that in some way [Jane] consented to anal sex. We're . . . saying
that she consented to vaginal sex and that anal sex accidentally happened. So just want to
make sure that you're clear on that point." Subsequently, defense counsel told the jury "if
you believe [appellant's] statement to the police, they had vaginal sex. She consented to
that. And that's our position." Then, defense counsel asserted that appellant told the
police, " 'I did not put my penis in her anus, at least not on purpose. It may have
happened accidentally. . . .' " As to the sodomy charge, defense counsel argued, "So
sodomy . . . [n]ot an intentional act."


7
       In such a situation, defense counsel would have needed to request a pinpoint
instruction. (People v. Saille (1991) 54 Cal.3d 1103, 1119 [a defendant is entitled upon
request to a pinpoint instruction, which relates particular facts to a legal issue in the case
or pinpoints the crux of a defendant's case].)
8
       Pursuant to CALCRIM No. 252 [union of act and intent], the jury was instructed
with regard to the sodomy charge that to find appellant guilty they had to find that
appellant not only committed the prohibited act, but did so "with wrongful intent." In
addition, pursuant to CALCRIM No. 3404, the jury was instructed that appellant was not
guilty of sodomy by force "if he acted . . . without the intent required for that crime, but
acted instead accidentally."
                                              16
       As can be seen, appellant's position at trial was that because his penis might have
accidentally entered Jane's anus during what was consensual vaginal intercourse, his act
of sodomy was not unlawful because he lacked the intent to commit the crime. On
appeal, appellant takes the position with regard to battery that his act of battery was not
unlawful because his penis might have accidentally entered Jane's anus during what was
consensual vaginal intercourse.9 However, whether or not his act was lawful—in the
sense that defense counsel suggested with regard to the sodomy charge—was fully
covered by the battery instruction with which the jury was left after deletion of the word
"unlawfully" from the instruction. That is, the jury had to decide if appellant touched
Jane "willfully" in a harmful or offensive manner. As the battery instruction so informed
the jury—"Someone commits an act willfully when he or she does it willingly or on
purpose." We do not believe that it is reasonably likely that the jury would understand
that if appellant's penis entered Jane's anus accidentally, it was done willingly or on
purpose. Thus, the battery instruction, even after removal of the word "unlawfully" from
the instruction, adequately conveyed the requisite concept vital to appellant's defense to
battery. Despite appellant's protestations to the contrary, the court did not remove the
issue of the lawfulness of his conduct from the jury's consideration as it related to battery
and his defense to that charge.
       We reject appellant's assertion that the jury's acquittal on the sodomy charge
strengthens his claim that it was error to delete the word "unlawfully" from the battery
instruction. We are not persuaded by appellant's argument for the simple reason that it is
predicated on his assertion that the jury acquitted him of sodomy on the theory that the
contact between his penis and Jane's anus was accidental. It may have been what defense

9
       Of course, battery is a general intent crime. (People v. Colantuono (1994) 7
Cal.4th 206, 217; People v. Lara (1996) 44 Cal.App.4th 102, 107.) The intent required
for a general intent crime is simply the intent to do the act or omission in question.
(People v. Johnson (1998) 67 Cal.App.4th 67, 72.) If appellant touched Jane's anus with
his penis accidentally, he would lack the intent necessary for battery.
                                             17
counsel argued, but the jury could have acquitted him of sodomy on the theory that there
never was any penetration of Jane's anus.10
      In sum, we reject appellant's argument that it was error for the trial court to delete
the word "unlawfully" from the jury instruction on simple battery.
                                        Disposition
      The judgment is affirmed.




10
       Such a conclusion would not have been inconsistent with the evidence—if the jury
disbelieved Jane that appellant sodomized her, but believed appellant's statement to the
police that they engaged in consensual vaginal sex while Jane was lying on her stomach,
and inferred from the SART nurse's description of what she saw on Jane's anus that
appellant's penis touched Jane's rectal area but no penetration occurred and disbelieved
appellant that the touching was accidental, the jury could have concluded that there was
no sodomy but that a battery occurred.
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                                ______________________________
                                ELIA, J.


WE CONCUR:




_____________________________
RUSHING, P. J.




_____________________________
PREMO, J.




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