Filed 4/2/14 P. v. Orosco 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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.



                                                       COPY

              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)
                                                            ----




THE PEOPLE,                                                                                  C072784

                   Plaintiff and Respondent,                                     (Super. Ct. No. 11F03194)

         v.

JOE GALINDO OROSCO, JR.,

                   Defendant and Appellant.




         After a jury trial, defendant Joe Galindo Orosco, Jr., was found guilty of two
counts of lewd and lascivious acts with his granddaughter, A.H., a minor under the age of
14 years. Defendant was sentenced to two concurrent terms of 25 years to life pursuant
to Penal Code section 667.61 (unless otherwise stated, statutory references that follow are
to the Penal Code), plus an enhancement of five years pursuant to section 667.51 (the
“One Strike Law”), due to a prior conviction for a lewd and lascivious act with a minor
under the age of 14 years in violation of section 288, subdivision (a).


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       Defendant appeals, contending the court erred in (1) failing to sua sponte instruct
the jury regarding the lesser included offense of “attempt” for count one (charged as lewd
and lascivious act with a minor under the age of 14 for contact other than body on body)
and (2) sentencing defendant to the five-year enhancement pursuant to section 667.51
without a jury finding that the defendant had suffered a prior conviction for the purposes
of the enhancement. We affirm the judgment.

                             FACTS AND PROCEEDINGS

       On or about April 26, 2011, A.H.’s grandmother invited A.H. to watch a video on
her laptop in her bedroom, which the grandmother shared with the defendant. Seven-
year-old A.H., who was living with her grandparents at the time, did so. After the
grandmother had fallen asleep in her chair watching videos with headphones in her ears,
defendant invited A.H. to watch a television show with him from his bed. A.H. laid next
to him on the bed. A.H. demonstrated affection for defendant by rubbing his head and
kissing him, which caused him to become aroused.
       Defendant attempted to kiss A.H. on the mouth, and when she rebuffed that
attempt, he kissed her on the cheek and neck. He then climbed on top of her, and rubbed
his genitalia against her upper thigh and vaginal area. Both were clothed at the time.
While defendant was atop A.H., A.H.’s older brother happened to open the door and
interrupted what was happening. A.H.’s brother quickly left to tell their mother what
defendant was doing to A.H. When the brother walked in, defendant placed his arm over
A.H.’s mouth. Defendant got off A.H., and, despite defendant’s instruction not to tell
anyone, she ran to the bedroom and told her mother what had happened.
       After being confronted by his daughter, A.H.’s mother, about the molestation,
defendant took a knife into the bathroom and contemplated suicide. His family
convinced him to check himself into a hospital to seek help. A mandated reporter at the
hospital reported the molestation to the police and they conducted an investigation. After


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his release from the hospital, defendant confessed the molestation of A.H., and other
minors, in a police interview. Additionally, A.H., in a forensic interview and in trial
testimony, corroborated the reported molestation, though she presented potentially
conflicting testimony regarding the defendant’s admitted kiss. A.H. testified that
defendant attempted to kiss her but that she pushed him away; she also testified that he
always kissed her on the cheeks; and she testified that he did not kiss her on the date in
question.
       Defendant was charged with two counts of forcible acts of lewd and lascivious
conduct with a minor under the age of 14 (§ 288, subd. (b)), with lesser included offenses
of lewd and lascivious conduct with a minor under the age of 14 (§ 288, subd. (a)) as to
both counts, and simple battery (§ 242) as to count one. The two counts were for
separate acts: count two was for the body on body contact, and count one was for contact
other than that contemplated by count two (as argued, the kissing). The defendant
pleaded not guilty to both counts.
       After a trial, the jury returned an initial verdict on count two and was deadlocked
as to count one. In coming to this point, the jury had asked the court for clarification of
the term “force” as used in section 288, subdivision (b), and had asked the court whether
the jury could make a decision as to a lesser included offense if it could not make a
decision as to the charged offense. As to count two, the jury found the defendant not
guilty of forcible acts of lewd and lascivious conduct with a minor under the age of 14
(§ 288, subd. (b)), but guilty of acts of lewd and lascivious conduct with a minor under
the age of 14 (§ 288, subd. (a)). The jury also found the defendant had suffered a prior
conviction for violation of section 288, subdivision (a) in Yolo County in 1986.
       The district attorney dismissed the charge of forcible acts of lewd and lascivious
conduct with a minor under the age of 14 (§ 288, subd. (b)) as to count one, and the court
resubmitted the count to the jury on just the lesser included offenses. The jury returned a
verdict of guilty as to count one, acts of lewd and lascivious conduct with a minor under

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the age of 14 (§ 288, subd. (a)), and again found the defendant had suffered a prior
conviction for violation of section 288, subdivision (a) in Yolo County in 1986.
       The trial court had already found that defendant was the same person who was
identified in the 1986 Yolo County conviction for violation of section 288, subdivision
(a) as required by section 1025. Defendant pleaded guilty to that offense, and the court
documents reflecting that plea deal were admitted into evidence in the instant trial. The
jury was instructed to determine if the evidence presented proved defendant was
convicted of a previous crime, namely a violation of section 288, subdivision (a) in Yolo
County in 1986. However, the verdict forms used by the jury read that the jury found
“the allegation that the defendant suffered a prior conviction for Penal Code 288(a) in
Yolo County on June 24, 1986, within the meaning of Penal Code Section 667.61(a) and
(d) to be” true. After the jury had been discharged, the court noted a “slight irregularity”
in the verdict forms. Specifically, the prior conviction enhancements referenced other
statutes, including the one that was ultimately applied by the court, section 667.51,
subdivision (a). The court decided that the jury found the prior conviction true and that
the additional language in the verdict form regarding section 667.61 was surplusage.
       The court sentenced defendant on count one, lewd and lascivious acts with a child,
to 25 years to life. In connection with count one, because of defendant’s prior conviction,
the court sentenced the defendant to an additional five years pursuant to section 667.51,
subdivision (a). On count two, lewd and lascivious acts with a child, the court sentenced
defendant to 25 years to life to be served concurrently.

                                       DISCUSSION

                                              I

                         The Lesser Included Offense - Count One

       In count one, defendant is charged with a violation of section 288, subdivision (a),
based on the allegation that he kissed A.H. “[S]ection 288, subdivision (a), states [it is] a

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felony offense for any person who ‘willfully and lewdly commits any lewd or lascivious
act’ on the body of a child under the age of 14, ‘with the intent of arousing . . . the lust,
passions, or sexual desires of that person or the child.’ Any touching of a child under the
age of 14 violates this section, even if the touching is outwardly innocuous and
inoffensive, if it is accompanied by the intent to arouse or gratify the sexual desires of
either the perpetrator or the victim.” (People v. Lopez (1998) 19 Cal.4th 282, 289; italics
omitted.)
       Defendant contends the court should have, sua sponte, instructed the jury on
attempted lewd and lascivious conduct as a lesser included offense on count one. A trial
court must instruct sua sponte on a lesser included offense, including attempt, only where
there is substantial evidence that only the lesser and not the greater offense was
committed. (People v. Breverman (1998) 19 Cal.4th 142, 162 (Breverman).) “An
instruction on a lesser included offense must be given only when the evidence warrants
such an instruction. [Citation.] To warrant such an instruction, there must be substantial
evidence of the lesser included offense, that is, ‘evidence from which a rational trier of
fact could find beyond a reasonable doubt’ that the defendant committed the lesser
offense. [Citation.] Speculation is insufficient to require the giving of an instruction on a
lesser included offense. [Citations.] In addition, a lesser included instruction need not be
given when there is no evidence that the offense is less than that charged.” (People
v. Mendoza (2000) 24 Cal.4th 130, 174.) “[T]he testimony of a single witness . . . may
suffice to require lesser included offense instructions.” (People v. Wyatt (2012) 55
Cal.4th 694, 698 (Wyatt).)
       Here, at least arguably, a jury could dismiss defendant’s admissions and rely
instead on A.H.’s testimony that while defendant attempted to kiss her on the day in
question, he did not actually kiss her. As such, there is sufficient evidence of the lesser
included offense of attempted lewd and lascivious conduct with a child under the age of
14. Therefore, we conclude the trial court erred when it failed sua sponte to instruct the

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jury on attempt as to count one. However, it does not necessarily follow that such error is
prejudicial.
       “Instructional error is subject to harmless error review.” (People v. Whisenhunt
(2008) 44 Cal.4th 174, 214.) “ [E]rror in failing sua sponte to instruct, or to instruct fully,
on all lesser included offense and theories thereof which are supported by the evidence
must be reviewed for prejudice exclusively under [People v. Watson (1956) 46 Cal.2d
818 (Watson)].” (Breverman, supra, 19 Cal.4th at p. 178.) “[M]isdirection of the jury is
not subject to reversal unless an examination of the entire record establishes a reasonable
probability that the error affected the outcome.” (Id. at p. 165; accord Wyatt, supra, 55
Cal.4th at p. 698.) Under the Watson review, “ ‘a defendant must show it is reasonably
probable a more favorable result would have been obtained absent the error.’ ” (People
v. Beltran (2013) 56 Cal.4th 935, 955 citing People v. Mena (2012) 54 Cal.4th 146, 162.)
This review “ ‘focuses not on what a reasonable jury could do, but what such a jury is
likely to have done in the absence of the error under consideration.” (Id. at p. 956.)
       Defendant contends the error was prejudicial because the only evidence the jury
heard that supported a conviction on count one was his own out-of-court statements.
Thus, defendant contends that once we exclude his testimony based on the corpus delicti
rule, the record supports a conviction only for the lesser included offense. We disagree
because we find the corpus delicti rule was satisfied.
       In a criminal trial, the prosecution must prove the corpus delicti of the crime
without relying exclusively upon the defendant’s extrajudicial statements, confessions, or
admissions. (People v. Alvarez (2002) 27 Cal.4th 1161, 1168-1169 (Alvarez).) The main
purpose of the rule is to prevent a person from being falsely convicted of “a crime that
never happened” based on his testimony alone. (Id. at p. 1169.) It “requires
corroboration of the defendant’s extrajudicial utterances insofar as they indicate a crime
was committed, and forces the People to supply, as part of their burden of proof in every
criminal prosecution, some evidence of the corpus delicti aside from, or in addition to,

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such statements.” (Id. at p. 1178.) The corpus delicti may be proven by circumstantial
evidence and need not amount to proof beyond a reasonable doubt. (Id. at p. 1171.)
       “[T]he modicum of necessary independent evidence of the corpus delicti, and thus
the jury’s duty to find such independent proof, is not great. The independent evidence
may be circumstantial, and need only be ‘a slight or prima facie showing’ permitting an
inference of injury, loss, or harm from a criminal agency, after which the defendant’s
statements may be considered to strengthen the case on all issues.” (Alvarez, supra,
27 Cal.4th at p. 1181; see also People v. Jones (1998) 17 Cal.4th 279, 301-302 [finding
sufficient independent evidence to permit inference of forced oral copulation to permit
defendant’s admission of the same where deceased victim was found with no underwear
or shoes, and had semen in various other orifices, despite the lack of semen in the
victim’s mouth].) To satisfy the corpus delicti rule, the independent evidence need only
permit a reasonable jury to reasonably infer that the alleged crime did happen. (People
v. Valencia (2008) 43 Cal.4th 268, 297; People v. Jones, supra, 17 Cal.4th at pp. 301-
304.) Once the rule is satisfied, the jury may consider the defendant’s statements for
their full value in arriving at their verdict. (Alvarez, supra, at p. 1171.)
       The jury was properly instructed, using CALCRIM No. 359 [corpus delicti –
independent evidence of a charged crime], that it could not convict defendant of a charge
based on his out-of-court statements alone, but that it needed other evidence to show the
charged crime was committed. The jury apparently weighed A.H.’s testimony and found
that there was sufficient independent evidence of the charged crime to reasonably infer
that the charged crime occurred. (People v. Holt (1997) 15 Cal.4th 619, 662 [“Jurors are
presumed to understand and follow the court’s instructions”].)
       A.H. testified that defendant tried to kiss her, that his face was close to hers, and
that his lips were coming towards her, which is corroboration of the defendant’s
statement that he attempted to kiss her on the lips and did kiss her on the cheek and neck.
A.H. also testified that defendant frequently kissed her on the cheek. While there may be

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other possible inferences to draw from A.H.’s testimony, it is a reasonable inference to
conclude that defendant did kiss A.H. on the cheek and neck, and that A.H., a seven-year-
old girl, discounted that kiss either due to her perception that it was normal in their
familial relationship, or due to her shock at the molestation overall. Regardless, we find
that the corpus delicti rule was satisfied, and defendant’s out-of-court statements could be
considered for their full value. In light of this evidence, it is not reasonably probable that
defendant would have achieved a better result if the court had instructed the jury sua
sponte on attempt. Therefore, the court’s error in failing to instruct the jury on attempt
was harmless.

                                              II

                                    The Prior Conviction

       Defendant contends it was error for the court to sentence him to a five-year
enhancement for a prior conviction pursuant to section 667.51, subdivision (a).
Defendant’s sentencing enhancement was based on a prior conviction for a violation of
section 288, after the jury found that, in fact, he had been convicted as alleged in the
information. Defendant does not dispute his prior conviction; nor does he contend there
was insufficient evidence of his having been convicted as alleged. Rather, defendant
contends that because the verdict form indicates the jury found the defendant had
suffered the prior conviction “within the meaning of Penal Code Section 667.61(a) and
(d),” the prior conviction determination of the jury cannot be used by the court to impose
the sentencing enhancement under section 667.51, subdivision (a).
       Defendant’s contention is based on his interpretation of section 1025, subdivision
(b), which provides, in relevant part, that “the question of whether or not the defendant
has suffered the prior conviction shall be tried by the jury that tries the issue upon the
plea of not guilty . . . .” The only factual finding left to the jury under section 1025 is
whether the defendant had actually been convicted as alleged. (People v. Epps (2001)


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25 Cal.4th 19, 24, 26-27; italics omitted.) The question posed by defendant is whether a
jury’s finding that the defendant sustained a prior conviction for the purposes of one
sentencing statute permits the court to impose the sentencing enhancement under another
sentencing statute based on the same prior conviction.
       In People v. Williams (2002) 99 Cal.App.4th 696 (Williams), the defendant
challenged his prior serious felony conviction enhancement where the jury returned a
verdict finding true the prior serious felony allegation under one enhancement provision
but failed to return a verdict form for the enhancement alleged under another provision.
(Id. at pp. 699-700.) In that case, the court found that section 1025 only grants the
defendant the right to have a jury determine the factual issue of whether he had suffered
the alleged prior conviction, and that the legal question of whether that conviction was of
the type that qualified for a particular sentencing enhancement was left to the court to
decide. (Id. at pp. 700-701.) As we stated, “[t]he right to a jury trial extends only to the
fact of the conviction alleged in the information, not to the truth of the enhancement
allegation itself.” (Id. at p. 701.) Therefore, a jury’s finding that the defendant in fact
had been convicted as alleged, regardless of the enhancement designation included in the
verdict form, is the only finding necessary for a court to sentence a defendant to any
applicable enhancement based on that prior conviction.
       Here, the jury found true that defendant had been convicted as alleged of a
violation of section 288, subdivision (a) in Yolo County in 1986. The extraneous
language in the verdict forms that defendant’s prior conviction fell “within the meaning
of Penal Code Section 667.61(a) and (d)” is superfluous, and does not render the court’s
imposition of the sentencing enhancement pursuant to section 667.51, subdivision (a),
improper.
       We note that defendant alternatively asserts the sentencing enhancement is a result
of ineffective assistance of counsel because at trial, his attorney did not object to the



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court’s sentence. Because we determine that it was not error for the trial court to impose
the sentencing enhancement, we need not address this contention.

                                      DISPOSITION

       The judgment is affirmed.



                                                       HULL                  , J.



       We concur:



             RAYE           , P. J.



             MAURO          , J.




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