Filed 10/3/19
           CERTIFIED FOR PARTIAL PUBLICATION*



IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                  SECOND APPELLATE DISTRICT

                          DIVISION THREE

  THE PEOPLE,                            B288533

           Plaintiff and Respondent,     (Los Angeles County
                                         Super. Ct. No. MA067997)
           v.

  ALONZO LEE VITAL,

           Defendant and Appellant.


      APPEAL from a judgment of the Superior Court of Los
Angeles County, Frank M. Tavelman, Judge. Affirmed in part
and reversed in part with directions.
      Doris M. LeRoy, under appointment by the Court of Appeal,
for Defendant and Appellant.
      Xavier Becerra, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Assistant


       *Pursuant to California Rules of Court, rules 8.1105 and
8.1110, this opinion is certified for publication with the exception
of part 3 of the Discussion.
Attorney General, Margaret E. Maxwell and Gregory B. Wagner,
Deputy Attorneys General, for Plaintiff and Respondent.
                     ________________________
       Alonzo Lee Vital instructed a mother to engage in acts of a
sexual nature with her three-year-old son. A jury found him
guilty of oral copulation with a child 10 years old or younger and
other related charges. However, the trial court incorrectly
instructed the jury that Vital, instead of the mother who directly
perpetrated the acts, had to be 18 years old or older. In the
published portion of this opinion, we discuss why this was
prejudicial error. In the unpublished portion, we conclude that
we must reverse the convictions on counts 2, 5, 6, 7, and 8, and
remand for resentencing because there was insufficient evidence
the direct perpetrator, mother, was 18 years old or older.
           FACTUAL AND PROCEDURAL HISTORY
       1.    Facts
             a.    Prosecution Evidence
       On December 16, 2015, Vital exchanged text messages with
Zaria Vaughan, whom he had met on social media three or four
years earlier. Vital reminded Vaughan of an earlier promise to
perform oral sex on his “lil lil homie.” Vaughan initially replied,
“That was years ago.” When Vital told her that the “lil homie”
was 11 years old, Vaughan expressed unwillingness. She said
she was too old and had kids. When she complained that the “lil
lil homie” was not even 15 years old, Vital asked if 15 was the
youngest age she would consider. Vaughan replied, “No the
youngest I will go is 18.”
       On December 17, 2015, Vaughan sent 11 video clips to
Vital. Six of the video clips depicted Vaughan performing oral
sex on her three-year-old son. Four of the videos depicted




                                 2
Vaughan simulating sexual acts, including rubbing her buttocks
against her son’s penis. The remaining video showed the child
facing the camera, naked with his penis in his hand.
       In between receiving the video clips, Vital exchanged text
messages with Vaughan, instructing her to perform various acts
of a sexual nature, place the camera in specific positions, and
send the videos. During this time, Vital and Vaughan also spoke
on the phone.
       Two months later, Vital was with his friend, Joshua
Anderson. Vital allowed Anderson to borrow his cell phone. Out
of curiosity, Anderson looked at the text messages on the cell
phone, and discovered the video clips of Vaughan and her son.
Anderson described the video as containing acts between a
“young boy” and an “adult woman.” Anderson left Vital’s home,
taking the cell phone with him.
       Anderson showed the video clips to Daythron Lockley.
Lockley described the video as depicting an “older woman”
performing oral sex on a child. Lockley gave the cell phone to
Los Angeles County Sheriff Deputy David Pine.
       Deputy Pine watched a portion of the videos. He described
one of the videos as containing a “female black adult” performing
oral sex on a five to eight-year-old male. Deputy Pine provided
the cell phone to Los Angeles County Sheriff Detective John
Amis.
       Detective Amis also viewed the videos and text messages
on the cell phone and extracted additional data from it.
       On February 16, 2016, Detective Amis spoke with Vital,
who told him that he was 23 years old. Vital met Vaughan from
social media three or four years earlier. He admitted that




                                3
Vaughan sent the videos to him, and that what he did was
“[s]omewhat” wrong.
      2.     Procedure
      A jury convicted Vital of oral copulation with a child 10
years old or younger (Pen. Code, § 288.7, subd. (b); counts 2, 5, 6,
7, and 8);1 lewd or lascivious acts on a child under 14 years old
(§ 288, subd. (a); counts 3, 9, 10, 11, and 12); possession of child
pornography (§ 311.11, subd. (a); count 4); and conspiracy to use
a minor for sex acts (§§ 182, subd. (a)(1)/311.4, subd. (c);
count 13). The jury acquitted Vital of one count of violating
section 288.7, subdivision (b).
       On March 2, 2018, the trial court sentenced Vital. The trial
court imposed six years on count 3, and an additional two years
consecutive, for each violation of section 288, subdivision (a), in
counts 3, 9, 10, 11, and 12. The trial court imposed two years
each for counts 4 and 13, and stayed each term pursuant to
section 654. The total aggregate term for the determinate portion
of the sentence was 16 years in state prison.
       The trial court imposed consecutive terms of 15 years to life
for counts 2 and 5, both violations of section 288.7,
subdivision (b). The trial court imposed 15 years to life for each
of the remaining violations of section 288.7, subdivision (b), in
counts 6, 7, and 8. The indeterminate sentences in these counts
were to run concurrently with counts 2 and 5. The total
indeterminate portion of the sentence was 30 years to life in state
prison.




      1   All further statutory references are to the Penal Code.




                                   4
                            DISCUSSION
      1.     Section 288.7, subdivision (b), requires proof of a
             minimum age of the direct perpetrator
      At trial, Vital was prosecuted under an aiding and abetting
theory of liability for the violations of section 288.7,
subdivision (b), oral copulation with a child under 10 years of age
or younger. Accordingly, the trial court instructed the jury with
CALCRIM No. 1128. In this instruction, the trial court told the
jury that the prosecutor had to prove Vital was at least 18 years
old at the time of the oral copulation with the victim.2 Vital
contends that this was error because guilt for the offense
required proof that Vaughan—not Vital—was at least 18 years
old at the time of the oral copulation. Under an aiding and
abetting theory of liability against Vital, the prosecutor had to
prove the age of Vaughan, who was the direct perpetrator. As we
now explain, we agree.
       An instruction omitting an element of the charged offense
violates a defendant’s rights under the federal and state
constitutions. (People v. Cole (2004) 33 Cal.4th 1158, 1208;
People v. Flood (1998) 18 Cal.4th 470, 479–480; Sullivan v.
Louisiana (1993) 508 U.S. 275, 277–278.) “The independent or de
novo standard of review is applicable in assessing whether
instructions correctly state the law [citations] and also whether
instructions effectively direct a finding adverse to a defendant by

      2 As read in this case, CALCRIM No. 1128 stated: “To
prove that the defendant is guilty of this crime, the People must
prove that: [¶] 1. The defendant engaged in an act of oral
copulation with [the child]; [¶] 2. When the defendant did so,
[the child] was 10 years of age or younger; [¶] 3. At the time of
the act, the defendant was at least 18 years old.”




                                 5
removing an issue from the jury’s consideration.” (People v. Posey
(2004) 32 Cal.4th 193, 218.)
             a.     A conviction of section 288.7, subdivision (b),
                    under an aiding and abetting theory of liability,
                    requires the direct perpetrator to complete the
                    crime
       Principals to a crime are “[a]ll persons concerned in the
commission of a crime . . . whether they directly commit the act
constituting the offense, or aid and abet in its commission.”
(§ 31.) Proof of liability for a crime under a theory of aiding and
abetting falls into four distinct elements: (a) a crime committed
by the direct perpetrator, (b) knowledge of the direct
perpetrator’s intent to commit the crime, (c) an intent to assist in
committing the crime, and (d) conduct by the aider and abettor
that in fact assists the commission of the crime. (People v. Perez
(2005) 35 Cal.4th 1219, 1225; People v. McCoy (2001) 25 Cal.4th
1111, 1117.)
       Accordingly, “the commission of a crime is a prerequisite
for criminal liability.” (People v. Perez, supra, 35 Cal.4th at
p. 1225.) For a defendant to be guilty under an aiding and
abetting theory, it follows that someone other than the defendant
must have attempted or committed a crime. (Ibid.) “[A]iding and
abetting liability cannot attach unless the substantive elements
of a predicate offense are met.” (Id. at p. 1227.) Liability for a
crime under an aiding and abetting theory is thus “ ‘derivative.’ ”
(People v. Prettyman (1996) 14 Cal.4th 248, 259.) Here, Vital’s
liability derived from Vaughan’s. However, the trial court’s
instruction omitted this crucial point.
       The trial court instructed the jury with CALCRIM Nos. 400
and 401, which explain the theory of aiding and abetting and its




                                 6
elements. CALCRIM No. 401 correctly instructed that aiding
and abetting requires the “perpetrator” to have committed the
crime.
       However, the trial court did not account for the theory of
aiding and abetting in CALCRIM No. 1128, the instruction for
section 288.7, subdivision (b). Unlike CALCRIM No. 401,
CALCRIM No. 1128 used the word “defendant” rather than the
word “perpetrator.” Consequently, the instruction told the jury
that to find guilt, the prosecutor had to prove Vital engaged in an
act of oral copulation, and at the time, Vital was at least 18 years
old.
       This was error. The trial court should have instructed that
the direct perpetrator Vaughan (not the defendant Vital) must
satisfy the 18 year old age requirement. The trial court
incorrectly omitted this element from the jury’s consideration.
The instruction relieved the prosecution’s burden to prove Vital
was guilty of the offenses under an aiding and abetting theory of
liability because it omitted an element of the predicate offense.
             b.     Omission of the word “personally” from the
                    statute
       The Attorney General argues that the 18 year old age
requirement for a violation of section 288.7, subdivision (b),
applies to whomever is charged as the defendant, regardless of
whether he or she is acting as a direct perpetrator or as an aider
and abettor. The Attorney General first asserts that the
statutory language creates ambiguity as to whether a violation
requires actually engaging in oral copulation. Specifically, he
focuses on the omission of the word “personally” in the language:
“[a]ny person 18 years of age or older who engages in oral
copulation.” (§ 288.7, subd. (b).) He explains that if the




                                 7
Legislature intended for actually performing the act, it would
have included the word “personally” to modify the word
“engages.” The Legislature’s decision to not use the word
“personally” in section 288.7, subdivision (b), suggests that a
violator does not need to actually engage in the oral copulation.
The Attorney General concludes that because a personal act is
not required, then the statute provides for culpability of either a
direct perpetrator or an aider and abettor.
      This conclusion is sound. There is no dispute that
section 288.7, subdivision (b), allows for aiding and abetting.
However, the Attorney General takes this assertion one step too
far. He implies that if the statute does not limit liability to direct
perpetrators, any statutory requirement for a direct perpetrator
must apply to the aider and abettor. Specifically, he would
impose the minimum age requirement on anyone charged with
section 288.7, subdivision (b), whether a direct perpetrator or
aider and abettor.
      The Attorney General relies on People v. Gerber (2011) 196
Cal.App.4th 368, 377, which discussed the phrase “ ‘personally
engaging’ ” in the possession of child pornography statute (§
311.11, subd. (a)).3 Gerber determined that the Legislature used
the word “personally” to modify “engaging” in section 311.11,
subdivision (a), to express that a child must be the one who
actually commits or simulates sexual conduct. Thus, an image of

      3 Section 311.11, subdivision (a), provides: “Every person
who knowingly possesses or controls any matter, representation
of information, data, or image . . . the production of which
involves the use of a person under of 18 years of age, knowing
that the matter depicts a person under 18 years of age personally
engaging in or simulating sexual conduct . . . is guilty of a felony.”




                                  8
a child’s face superimposed onto an adult body is insufficient to
show a child personally engaged in sexual conduct.
      People v. Gerber, supra, 196 Cal.App.4th 368, does not
support the Attorney General’s argument. First, the phrase
“personally engaging” related to the victim, not a principal of the
crime. The phrase does not distinguish an act by a direct
perpetrator from an aider and abettor. Second, the court did not
suggest that omitting the word “personally” imposes any
statutory requirement for a direct perpetrator on an aider and
abettor. Nor did it suggest that such an omission would allow for
a conviction under an aiding and abetting theory without proof
that the perpetrator committed a crime.
             c.    The statutory language supports imposing the
                   minimum age requirement on only the direct
                   perpetrator
      The Attorney General cites no case that imposes a
minimum age requirement for a sexual offense on an aider and
abettor.4 However, in the context of forcible oral copulation of a


      4 The Attorney General relies on the offense of unlawful sex
with a minor. Subdivisions (b) and (c) of section 261.5 use the
word “perpetrator” to specify the age differential between the
direct perpetrator and the minor victim. The absence of similar
language in section 288.7, subdivision (b), suggests to the
Attorney General that the Legislature did not want to impose the
minimum age requirement only on the direct perpetrator. We
reject this argument. Section 288.7, subdivision (b), does not
require an age differential between two persons. There is no
need to reference those two persons to determine an age
differential. Moreover, the age differential in section 261.5,
subdivisions (b) and (c), still focuses on the direct perpetrator,
rather than an aider and abettor. In this sense, it is consistent



                                 9
person under 14 years of age under former section 288a,
subdivision (c), a conviction for the aider and abettor required
proof of only the direct perpetrator’s age relative to the victim’s
age, and not the age of the aider and abettor. (People v.
Culbertson (1985) 171 Cal.App.3d 508, 515 (Culbertson).)
       Former section 288a, subdivision (c), provided: “ ‘Any
person who participates in an act of oral copulation with another
person who is under 14 years of age and more than 10 years
younger than he, . . . shall be punished by imprisonment.’ ”
(Culbertson, supra, 171 Cal.App.3d at pp. 511–512.) Former
subdivision (a) defined oral copulation as “ ‘the act of copulating
the mouth of one person with the sexual organ or anus of another
person.’ ” (Culbertson, at p. 514.) Culbertson, at page 514,
determined that the Legislature’s use of the singular word
“person,” in each instance in subdivision (a), contemplated only
two persons involved in the act. The court concluded that the age
differential in subdivision (c) must relate to the two persons
directly involved in the act of oral copulation.5 (Culbertson, at
pp. 514–515.) The age of an additional person who aids and abets
is irrelevant. (Id. at p. 514; People v. Greenberg (1980) 111
Cal.App.3d 181,186.) Proof of the aider and abettor’s age, but not
the direct perpetrator’s age, was insufficient to support a


with imposing an age requirement on the direct perpetrator in
section 288.7, subdivision (b).
      5 Nothing in the language of an earlier version of the
statute, nor the legislative history for the version analyzed in
Culbertson, led the court to infer an intent to broaden the persons
involved to include an aider an abettor whose age must be
established. (Culbertson, supra, 171 Cal.App.3d at pp. 514–515.)




                                10
violation of former section 288a, subdivision (c).6 (Culbertson,
p. 515.)
       Culbertson, supra, 171 Cal.App.3d at page 515, additionally
commented that the statute’s omission of language which
required the age of an aider and abettor showed the Legislature’s
intent to not require it. Culbertson, at page 515, noted that
subdivision (d) of former section 288a did include language of
“aiding and abetting” (former § 288a, subd. (d)). Had the
Legislature intended a similar result in subdivision (c), it could
have inserted the language. (See Culbertson, at p. 515.) This
construction is consistent with section 288.7, subdivision (b),
which similarly does not include specific language imposing the
age requirement on an aider and abettor.7

      6 The Attorney General attempts to limit Culbertson to its
interpretation of former section 288a. He suggests that the word
“participates” in former section 288a, subdivision (c), was more
restrictive than the word “engages” in section 288.7,
subdivision (b). It is true that “[w]hen the Legislature uses
materially different language in statutory provisions addressing
the same subject or related subjects, the normal inference is that
the Legislature intended a difference in meaning.” (People v.
Trevino (2001) 26 Cal.4th 237, 242.) However, there is no
material difference in the meaning of the words “participate” and
“engage,” at least to the extent the Attorney General suggests.
      7 The Attorney General argues that the sexual penetration
proscription in section 288.7, subdivision (b), suggests the age
requirement would apply to both direct perpetrators and aiders
and abettors. One form of sexual penetration allows for aiding
and abetting because it can occur when the violator causes a
person to penetrate another person. (§ 289, subd. (k)(1).) The
Attorney General again invites us to impose the age requirement
simply because the statute allows for aiding and abetting. There



                                11
       Culbertson’s reasoning applies to our interpretation of
section 288.7, subdivision (b). The definition of oral copulation
for this offense is the same definition upon which Culbertson
relied. Accordingly, the two persons involved in the oral
copulation in section 288.7, subdivision (b), must be the two
persons directly involved in the act. (Culbertson, supra, 171
Cal.App.3d at p. 515.) Following Culbertson, we conclude that
the statutory language supports applying the minimum age
requirement to the person directly involved in the oral copulation
with the child for a violation of section 288.7, subdivision (b).
Here, that person was Vaughan, not Vital.
             d.     The legislative history of section 288.7
       The Attorney General directs us to the legislative history
for section 288.7 to support his argument that the age
requirement applies to both the direct perpetrator and aider and
abettor. Specifically, the Attorney General cites the original bill’s
purpose “ ‘to provide a comprehensive, proactive approach to
preventing the victimization of California by sex offenders.’ (Sen.
Com. on Public Safety, Rep. on Sen. Bill No. 1128 (2005-2006
Reg. Session), as amended March 7, 2006, p. 40.)”
       As part of the Sex Offender Punishment, Control, and
Containment Act of 2006, section 288.7 created a new crime for
sex offenses against very young children with an indeterminate
sentence as punishment. We agree that the Legislature intended
for section 288.7 to reach both aiders and abettors and direct


is no authority to do so. Culbertson, supra, 171 Cal.App.3d at
page 515, provided an example of language that would allow for
such an application. Short of such explicit language in the
statute, we decline to follow the Attorney General’s invitation.




                                 12
perpetrators. Nothing in the legislative history suggests the
contrary. However, nothing in the legislative history indicates an
intent to impose the age requirement on both aiders and abettors
and direct perpetrators.
              e.    Consideration of erroneous instruction in
                    conjunction with aiding and abetting
                    instruction
       “[T]he correctness of jury instructions is to be determined
from the entire charge of the court, not from a consideration of
parts of an instruction or from a particular instruction.” (People
v. Burgener (1986) 41 Cal.3d 505, 538.)
       It is conceivable that the phrase “[t]he defendant engaged,”
as used in the first element of CALCRIM No. 1128, allowed the
jury to consider that Vital engaged in oral copulation only as an
aider and abettor. As discussed earlier, the trial court did also
instruct the jury on the principles and elements of aiding and
abetting in CALCRIM Nos. 400 and 401.
       However, the phrase “the defendant was at least 18 years
old” in the third element of CALCRIM No. 1128 specifically
expressed to the jury that the minimum age requirement applied
only to Vital as the defendant. The jury was never instructed to
determine whether Vaughan, as the direct perpetrator, satisfied
the minimum age requirement. Accordingly, the aiding and
abetting instruction in CALCRIM No. 401 did not cure the
incorrect instruction for section 288.7, subdivision (b).
       2.     Prejudice
       When a jury instruction omits an element of a charged
offense, we review the prejudicial effect under the standard
established by Chapman v. California (1967) 386 U.S. 18. (Neder
v. United States (1999) 527 U.S. 1, 4; Chapman, at p. 24; People v.




                                13
Mil (2012) 53 Cal.4th 400, 409.) Under this test, an error is
harmless when it appears “ ‘beyond a reasonable doubt that the
error complained of did not contribute to the verdict obtained.’ ”
(Neder, at p. 15; Mil, at p. 417; Chapman, at p. 24.) We are to
determine “whether the record contains evidence that could
rationally lead to a contrary finding with respect to the omitted
element.” (Neder, at p. 19; Mil, at p. 417.)
      At trial, the prosecutor presented Vital’s statement to
Detective Amis that he was 23 years old. The prosecutor
commented on this during closing argument to satisfy the age
requirement for the violations of section 288.7, subdivision (b). It
would follow that the jury convicted Vital based on this evidence
in accordance with the incorrect jury instruction.
      The prosecutor also argued to the jury that it could infer
from evidence that Vaughan was over 18 years old. The Attorney
General highlights the same evidence here.
      First, the Attorney General contends that Vaughan’s text
messages support her age. Specifically, when asked by Vital to
orally copulate his 11-year-old friend, Vaughan declined, claiming
that she was too old to engage in sexual acts with an 11 year old.
When asked by Vital about sexual acts with a 15 year old,
Vaughan stated, “the youngest I will go is 18. I’m saying he’s not
even a teenager.”
      This evidence does not bear on Vaughan’s age. It merely
suggests Vaughan’s preference for sexual participants who are
18 years old or older. It is not sufficient evidence of her own age
as 18 years old or older.
      Second, the Attorney General relies on descriptions of
Vaughan as an “adult” or an “older woman,” by three witnesses




                                14
who viewed her in the videos. The jury was also presented with
these videos, as well as a photo of Vaughan.
      Physical appearance may be sufficient to determine
whether a person is a minor or an adult. (See People v. Montalvo
(1971) 4 Cal.3d 328, 335 [suggesting in dicta that a view of a
defendant may be sufficient to find he or she is an adult]; see also
People v. Castaneda (1994) 31 Cal.App.4th 197, 202; People v.
Kurey (2001) 88 Cal.App.4th 840, 847–848.) However, physical
appearance is more accurate to approximate the extremes of old
age and youth. (Montalvo, at p. 335.)
      We are not dealing with extremes. Vaughan was not an old
woman. Not much more can be said of her age based on the
photograph and video evidence. Quite often, there is no
appreciable difference in physical appearances between an 18-
year-old woman and 13 to 17-year-old girls. Each of the
witnesses provided only a generic characterization of age for
Vaughan, as well as for her child. For instance, Deputy Pine
described the child as five to eight years old. No witness even
suggested an age range for Vaughan.
      There is no evidence of Vaughan’s age. Even combined
with the text messages, the videos and photograph of Vaughan
could not rationally lead to a finding that she was 18 years old or
older. We cannot say that even if properly instructed, the jury
nonetheless would have convicted Vital of the violations of
section 288.7, subdivision (b), because Vaughan, beyond a
reasonable doubt, was 18 years old or older. The omission of the
instruction to establish the minimum age requirement for
Vaughan as the direct perpetrator was not harmless beyond a
reasonable doubt. The error was thus prejudicial.




                                15
      3.     Remedy
      If reversal is required for instructional error but
substantial evidence supports the verdict, double jeopardy
principles do not prevent retrial. (People v. Hallock (1989) 208
Cal.App.3d 595, 607; People v. Young (1987) 190 Cal.App.3d 248,
254; People v. Franco (2009) 180 Cal.App.4th 713, 726.) On the
other hand, a reversal based on the insufficiency of evidence
constitutes an acquittal and bars retrial. (People v. Seel (2004) 34
Cal.4th 535, 544; Burks v. United States (1978) 437 U.S. 1, 15–
18.)
      When the sufficiency of the evidence is challenged on
appeal, the court must “ ‘ “ ‘review the whole record in the light
most favorable to the judgment to determine whether it contains
substantial evidence—i.e., evidence that is credible and of solid
value—from which a rational trier of fact could have found the
defendant guilty beyond a reasonable doubt.’ ” ’ ” (People v.
Nguyen (2015) 61 Cal.4th 1015, 1054–1055; People v. Zamudio
(2008) 43 Cal.4th 327, 357; Jackson v. Virginia (1979) 443 U.S.
307, 318–319.)
      The Attorney General relies on the same evidence
discussed above to argue that there was substantial evidence
Vaughan was 18 years old or older. For the same reasons
discussed above, we reject his argument. The record does not
contain evidence from which the jury could find that she was 18
years old or older. The videos, the photo, and the text messages
do not amount to substantial evidence that Vaughan satisfied the
minimum age requirement.
      Accordingly, we conclude that the evidence was insufficient
to support counts 2, 5, 6, 7, and 8.




                                16
                          DISPOSITION
      We reverse Alonzo Lee Vital’s convictions on counts 2, 5, 6,
7, and 8, and order the trial court to enter a judgment of acquittal
on these counts. We vacate the sentence in its entirety, and
remand for resentencing. In all other respects, the judgment is
affirmed.
      CERTIFIED FOR PARTIAL PUBLICATION.



                                           HANASONO, J.*



I concur:



            LAVIN, Acting P. J.




      *Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.



                                17
DHANIDINA, J., Dissenting.
       Alonzo Lee Vital instructed a mother to sexually assault
her three-year-old son. She complied. Under an aiding and
abetting theory of liability, a jury found Vital guilty of oral
copulation with a child 10 years old or younger, in violation of a
statute requiring the person who engages in the act to be at least
18 years old. (Pen. Code, § 288.7, subd. (b) (hereafter 288.7(b)).)
Here, that person was the mother. The trial court, however,
instructed the jury that Vital, rather than the mother who
directly engaged in the acts, had to be at least 18 years old. (Maj.
opn. ante, at pp. 5–12.) I agree with the majority that this was
instructional error. I also agree that the error was not harmless.
(Maj. opn. ante, at pp. 13–15.)
       I disagree that the error requires a judgment of acquittal
on the affected counts. Instead, I would reverse and remand for
either a retrial or for a reduction to a lesser included offense on
counts 2, 5, 6, 7, and 8. Therefore, I respectfully dissent.
       Vital exchanged text messages with Zaria Vaughan,
reminding her of an earlier promise to give his “lil lil homie
head.” When Vaughan made that promise, lil lil homie was just
eight years old. Vital, who had always wanted “to see something
like that,” said this would mean “so much to him and me.”
Vaughan initially replied, “That was years ago.” When Vital told
her that his lil lil homie was now 11 years old, Vaughn replied,
“Fuck no he’s not even 15! Come on. I’m too old now. I can’t. I
have kids.” Vital asked if 15 was the youngest she would
consider, and she replied, “No the youngest I will go is 18. I’m
saying he’s not even a teenage[r].”
       Notwithstanding Vaughan’s professed reluctance to engage
in such acts, at Vital’s urging she sent video clips of herself
sexually assaulting her three-year-old son. Vital told Vaughan
what he wanted: “take out your ass and have him smack it like 5
times” and “[m]ake sure [it lasts] two min[utes].” Unsatisfied
with one video, Vital told Vaughan to do it again because he
couldn’t see her “sucking.” Vital directed, “Be into. Make
sound[s] and really suck.”
       The videos depict Vaughan doing as she was told—orally
copulating her son, rubbing her buttocks against her son’s penis,
and recording the naked child holding his penis. In one video,
the child begged his mother, “Don’t touch it, don’t touch it! Don’t!
Don’t touch it,” and told her “that’s enough. Mommy, that’s
enough.” He can be heard whimpering.
       Three people who watched these videos described Vaughan
as an adult. Joshua Anderson described Vaughan as an “adult
woman” doing “unspeakable” things to a “young boy.” Daythron
Lockley said Vaughan was an “older woman” orally copulating a
child. A sheriff’s deputy described Vaughan as a “female black
adult” performing oral sex on a five to eight-year-old male.
       Based on this evidence, a jury convicted Vital of five counts
of violating section 288.7(b). That section provides: any person
18 years of age or older who engages in oral copulation with a
child who is 10 years old or younger is guilty of a felony,
punishable by a term of 15 years to life. (Ibid.) On its face, the
statute plainly and expressly requires the person who actually
performs the oral copulation to be at least 18 years old. Common
sense and the legislative context compel this interpretation.
Section 288.7(b) was enacted as part of the Sex Offender
Punishment, Control, and Containment Act of 2006, which
sought to prevent sex offenders from victimizing the community.
(People v. Cornett (2012) 53 Cal.4th 1261, 1267.) To that end,




                                 2
section 288.7(b) created a harsher penalty (an indeterminate life
sentence) for an adult (a person who is at least 18 years old) who
orally copulates a young child. Requiring the person who
actually engages in the oral copulation to be at least 18 years old
furthers the section’s purpose of punishing adults who sexually
assault young children. Otherwise, under the People’s
interpretation of section 288.7(b), a 40-year-old adult who tells a
16-year-old child to orally copulate a 10-year-old child would be
in violation of that law, even though no adult orally copulated a
child. However, proscribing adults from engaging in that act
with a child is the ill the statute seeks to prevent and to punish.
A 40 year old who directs two children to engage in such an act
commits conduct that is no less horrifying than a 40 year old who
actually engages in the act, but the former does not violate
section 288.7(b).
       That being said, a person may aid and abet a crime under
section 288.7(b). (See People v. Greenberg (1980) 111 Cal.App.3d
181, 185 [nothing inherent in crime of oral copulating minor that
precludes aiding and abetting].) However, the aider and abettor’s
age is irrelevant. (People v. Culbertson (1985) 171 Cal.App.3d
508, 512.) The defendant in Culbertson aided and abetted a
violation of former section 288a, subdivision (c). That section
applied to any person who participated in an act of oral
copulation with another person under 14 years of age and more
than 10 years younger than he or she. Common sense dictated
that the statutory language could only be construed to refer to
the people “whose actual physical involvement is necessary to the
act of oral copulation.” (Culbertson, at p. 513.) But the
prosecution in Culbertson failed to prove the direct perpetrator’s
age, introducing evidence instead of the aider and abettor’s age.




                                 3
Culbertson therefore modified the judgment by reducing the
charge to a lesser included offense. (Id. at p. 516.)
       Where, as here, the prosecution pursues an aiding and
abetting theory of liability, the prosecution has the burden of
proving an actus reus, i.e., a crime committed by the direct
perpetrator. (People v. Perez (2005) 35 Cal.4th 1219, 1225.)
Aider and abettor liability also requires the aider and abettor’s
knowledge of the direct perpetrator’s unlawful intent and an
intent to assist in achieving those ends, and conduct by the aider
and abettor that assists in achieving the crime. (Ibid.) What is
missing here due to instructional error is the first element, the
actus reus. As to that element, the trial court misinstructed the
jury that section 288.7(b) requires “the defendant” Vital to be at
least 18 years old. (CALCRIM No. 1128.) The instruction thus
omitted an element of the crime, that Vaughan had to be at least
18 years old. (See People v. Flood (1998) 18 Cal.4th 470, 479–
480; Sullivan v. Louisiana (1993) 508 U.S. 275, 277–278.)
Consequently, the jury was allowed to find Vital guilty of
violating section 288.7(b) if it found he, rather than the direct
perpetrator Vaughan, was at least 18 years old. Absent a finding
that Vaughan was at least 18 years old when she sexually
assaulted her son, Vital could not have aided and abetted a
violation of section 288.7(b).
       This is not a case in which the instructional error was
harmless. When a jury instruction omits an element of a charged
offense, we review the prejudicial effect under the standard
established by Chapman v. California (1967) 386 U.S. 18, 24.
(Neder v. United States (1999) 527 U.S. 1, 4; People v. Mil (2012)
53 Cal.4th 400, 409 (Mil).) Under this test, we must reverse
unless it appears “beyond a reasonable doubt that the error did




                                4
not contribute to the jury’s verdict.” (Mil, at p. 417.) Where, for
example, the omitted element was uncontested and
overwhelming evidence supports it, the error will be harmless.
(Ibid.) Our task therefore is to determine “ ‘whether the record
contains evidence that could rationally lead to a contrary finding
with respect to the omitted element.’ ” (Ibid.) If there is a
reasonable possibility the error might have contributed to the
conviction, then we must reverse. (In re Loza (2018) 27
Cal.App.5th 797, 805.)
       Such a reasonable possibility exists here. The jury was
misinstructed that Vital, and not Vaughan, had to be at least 18
years old. (CALCRIM No. 1128.) The other aiding and abetting
instructions, CALCRIM Nos. 400 and 401, did not clarify that
Vaughan, as the direct perpetrator, had to be at least 18 years
old. Also, the People reinforced the notion that Vital had to be
over 18. (See In re Loza, supra, 27 Cal.App.5th at p. 805
[prosecutor’s statements can contribute to error].) Finally, while
there was significant evidence to establish that Vaughan was at
least 18 years old, the evidence was not so overwhelming that I
can say a rational jury would have found Vital guilty had it been
properly instructed it had to find Vaughan was at least 18 years
old. (See Mil, supra, 53 Cal.4th at pp. 418–419.) Thus, I agree
there was instructional error, and it was not harmless.
       But here is where I part ways with the majority. The
majority directs the trial court to enter a judgment of acquittal on
the section 288.7(b) counts 2, 5, 6, 7, and 8. (Maj. opn. ante, at
p. 17.) However, if reversal is required for instructional error but
substantial evidence nonetheless supports the verdict, double
jeopardy does not prevent retrial. (People v. Hallock (1989) 208
Cal.App.3d 595, 607; People v. Franco (2009) 180 Cal.App.4th




                                 5
713, 726.) Stated otherwise, where there is sufficient evidence to
sustain a finding on an omitted element, remand for resentencing
or retrial at the option of the prosecuting attorney is the proper
remedy. (Mil, supra, 53 Cal.4th at pp. 418–419.)
       Substantial evidence is evidence that is reasonable,
credible, and of solid value, from which a reasonable trier of fact
could find the defendant guilty beyond a reasonable doubt.
(People v. McCurdy (2014) 59 Cal.4th 1063, 1104.) We presume
in support of the judgment the existence of every fact the trier of
fact could reasonably deduce from the evidence. (People v.
Medina (2009) 46 Cal.4th 913, 919.) “ ‘The same standard of
review applies to cases in which the prosecution relies primarily
on circumstantial evidence.’ ” (People v. Brown (2014) 59 Cal.4th
86, 106.)
       I would find there is sufficient evidence of the omitted
element—that Vaughan was 18 years or older when she sexually
assaulted her son. Evidence of Vaughan’s age consisted of her
statements in text messages, witnesses’ observations of Vaughan,
and the photograph and video clips of her.
       First, Vaughan made statements suggesting she is over 18
years old. When Vital asked Vaughan to give “head” to his 11-
year-old lil lil homie, she declined, saying she was “too old” to
engage in sexual acts with an 11 year old. When Vital asked
Vaughan about doing sexual acts with a 15 year old, she
demurred, saying the youngest she would go was 18. This
evidence suggests several things. It suggests Vaughan’s
preference for sexual partners who are 18 years old or older. It
suggests an unwillingness to commit a crime. And it suggests
Vaughan is over 18 years old. That is, she is comparing the
victim’s age to her own. If Vaughan were 17 years old or




                                 6
younger, why say she is “too old” to have sex with someone under
18 years old and would only have sex with someone 18 years old
or older? A reasonable inference is she did not want to have sex
with anyone younger than 18 years old, i.e., younger than she.
      Next, three witnesses (Anderson, Lockley, and a deputy
sheriff) watched the videos or some portion of them. Each
described Vaughan as an “adult” or an “older” woman.1 Hence,
three people saw the videos and concluded that Vaughan was an
adult.
       Finally, the People introduced the video clips and a
photograph of Vaughan from the chest up wearing a tank top.
The majority acknowledges that such evidence of physical
appearance may be sufficient to determine whether a person is a
minor or adult. (Maj. opn. ante, at p. 15.) However, the majority
then asserts that a jury may make that determination only in
instances involving the extremes of youth and old age. But, the
law is not that only where someone is as old as Methuselah or as
young as a newborn can a jury make a determination of age.
       In fact, the law does not limit a trier of fact to making a
finding about a person’s age only when dealing in such extremes
that age could be almost a matter of judicial notice. Rather, a
jury’s view of a person “in an appropriate case may be sufficient
to support a finding that the defendant is an adult.” (People v.
Montalvo (1971) 4 Cal.3d 328, 335.) The defendant in Montalvo
was charged with furnishing narcotics to a minor by an adult, a
crime requiring the defendant to be over 21. (Id. at p. 330.)
However, the question of his age was not presented to the jury
and no evidence was introduced of it. Montalvo therefore

      1   There was no objection to this testimony.




                                  7
reversed the judgment. In so doing, the court cautioned that it
was not suggesting the prosecution must in every instance prove
the defendant’s actual age. “There will be occasions when his
physical appearance will be such that the jury could not entertain
a reasonable doubt that he was over the age of 21 years.
‘Experience teaches us that corporal appearances are
approximately an index of the age of their bearer, particularly for
the marked extremes of old age and youth. In every case such
evidence should be accepted and weighed for what it may be in
each case worth. In particular the outward physical appearance
of an alleged minor may be considered in judging his age; a
contrary rule would for such an inference be pedantically over-
cautious.’ ” (Id. at p. 335.)
       Courts have therefore rejected the notion that, unless the
appearance of minority is so obvious as to be beyond question,
evidence of age should be limited to that which can establish the
subject’s true chronological age. (See, e.g., People v. Kurey (2001)
88 Cal.App.4th 840, 846–847.) Kurey found that pediatric
experts can testify about the apparent age of child pornography
victims. Moreover, Kurey noted that there is no such thing as
“ ‘incompetent’ ” evidence of age, as evidence is either admissible
or inadmissible. (Id. at p. 847.) “Proof of age, like proof of any
other material fact, can be accomplished by the use of either
direct or circumstantial evidence, or both.” (Ibid.) Although I
certainly agree that a pediatric expert’s opinion about a child’s
apparent age is valuable, a lay opinion of the same is not
worthless or legally insufficient. That is, we credit jurors with
common sense and intelligence, informed by their life
experiences. (People v. McKinnon (2011) 52 Cal.4th 610, 670;
People v. San Nicolas (2004) 34 Cal.4th 614, 649.) Determining




                                 8
whether a person is over or under a certain age based on the
person’s physical appearance and other circumstantial evidence
is a quintessential fact finder function.
       People v. Castaneda (1994) 31 Cal.App.4th 197 is an
additional example of this principle. The crime at issue in
Castaneda required the defendant to be at least 10 years older
than his victim. (Id. at p. 202.) The evidence consisted of the
victim’s and the defendant’s testimony that the defendant was an
adult, that the defendant married the victim’s mother when the
victim was little more than a toddler, and the defendant’s
physical appearance before the jury. (Id. at p. 203.) Although
“such evidence may not amount to conclusive proof that [the
defendant] was 10 years her senior, it was assuredly enough to
permit the trier of fact to infer such, at least in the absolute
absence of any contradiction” by the defendant. (Ibid.)
       Here, Vaughan was not an old woman. Nor was she a
young child. The photographic evidence coupled with the other
evidence, especially her own statements, is enough for a rational
fact finder to conclude beyond a reasonable doubt she was over
18 years of age when she committed the crimes. To find
otherwise is an improper invasion into the province of the jury. I
would therefore conclude that a retrial is not barred.



                                          DHANIDINA, J.




                                9
