Filed 12/4/13 P. v. McGuire CA2/6

               NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified
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publication or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                  SECOND APPELLATE DISTRICT

                                                DIVISION SIX


THE PEOPLE,                                                                     2d Crim. No. B237840
                                                                              (Super. Ct. No. F435569)
     Plaintiff and Respondent,                                                (San Luis Obispo County)

v.

JACKSON SULLIVAN MCGUIRE,

     Defendant and Appellant.




                   Jackson Sullivan McGuire was charged with three counts of lewd acts
upon Savannah Doe, a child, in violation of Penal Code section 288 subdivision (a).
Two of those counts specially allege that McGuire had substantial sexual contact
with a child under the age of 14 years. A jury returned verdicts of guilty on all
counts and found true the special allegation.
                   We conclude that the trial court did not abuse its discretion by
denying McGuire's motion to admit evidence that Savannah had been previously
molested, at the age of seven, by another man. Nor do we find instructional error or
prosecutorial misconduct. We affirm.
                                         FACTS
              At the times of the alleged misconduct, McGuire was married to
Renee, the sister of Savannah's stepfather. Savannah often visited McGuire and
Renee at their home in Oceanside and at McGuire's grandmother's house in
Cambria. When Savannah was nine or ten years old, she stayed the night with
McGuire and Renee at their Oceanside condo. After Renee had gone to bed,
McGuire pulled Savannah to him, kissed her on the lips, pulled up the slip she was
wearing as a nightgown and touched her breasts. McGuire then laid Savannah
down, took off her underwear, and put his tongue in her vagina.
              When Savannah was 12 or 13 years old, McGuire and Renee visited
McGuire's grandmother and other family, including Savannah, in Cambria.
Savannah spent the night in the same room with McGuire and Renee, sleeping on
the floor next to McGuire's side of the bed. After Renee had fallen asleep, McGuire
put his hand down Savannah's pajama bottoms and inserted his finger into her
vagina.
              McGuire moved, pursuant to Evidence Code section 782,1 to
introduce evidence that Savannah had reported to a forensic examiner, Tracy Nix,
that someone had touched her inappropriately when she was seven years old. The
trial court denied the motion.
                                      Events at trial
              1. One of the prosecutor's questions to the jury venire suggested that
the trial might reveal only one side of the story. McGuire's counsel objected that
the question was a "comment on [his] client's right to plead not guilty [and to] deny
every single fact that's alleged against him." The trial court overruled the objection.
The next day, however, the court proposed a curative instruction: "Yesterday the
prosecutor said that this case may only have one side. It is improper for an attorney
to give a personal opinion about a case. You are informed that there will be a

              1
                  All statutory references are to the Evidence Code unless stated
otherwise.
                                            2
defense case presented to you during this trial." McGuire's counsel responded: "I'm
okay with that, your Honor. In that context, yes, I think that's an appropriate
admonition." The court gave the instruction the court and counsel had agreed upon.
              2. In closing argument, the prosecutor made the following comment:
"When you go back in [] the jury room, I can easily guarantee there is one thing
you're not going to talk about, and that's your first sexual experience." McGuire's
counsel objected to the insinuation that Savannah's first encounter with McGuire
was her first sexual experience when the prosecutor knew there was contrary
evidence that had not been admitted. McGuire's counsel recommended that the trial
court "remind the jury that argument is precisely that, it's argument" and that
"evidence [is] not what the attorneys [say]. Evidence is what you ultimately decide
[it is]." The trial court "by agreement of counsel" read substantially the same
instruction to the jury.
              3. During the trial, McGuire attempted to place in evidence several
posts from Savannah's Facebook page. The trial court sustained the prosecutor's
hearsay objections and none of the posts were admitted, although a witness was
allowed to testify about one of them. In closing argument, McGuire referred to that
testimony. In response, the prosecutor observed that there were probably other
posts that had not been presented to the jury. McGuire's counsel objected. The trial
court sustained the objection and McGuire's counsel asked for a curative instruction.
The trial court read to counsel its proposed admonition. When asked if he had any
objection, McGuire's counsel responded: "I think that's an appropriate curative
admonition . . . . I do believe that kind of curative admonition heals the wound, so
to speak." The trial court gave the instruction.
                                    DISCUSSION
                            Denial of section 782 motion
              McGuire contends that the trial court abused its discretion and denied
McGuire his right to due process and a fair trial when it denied his section 782
motion to introduce evidence of Savannah's prior sexual conduct. McGuire's

                                           3
section 782 motion was based solely on People v. Daggett (1990) 225 Cal.App.3d
751 (Daggett), in which we held that a child witness's earlier experience of
molestation may be relevant to the child's ability to describe sexual acts with
which a child would not normally be familiar. (Id. at p. 757.) The trial court
denied the motion because Savannah was not a child when she testified at trial, but
an 18-year-old adult.
              Although section 1103, subdivision (c) generally precludes admission
of a complaining witness's past sexual conduct, such evidence may be admissible
when offered to attack the credibility of the complaining witness and when
presented as required by section 782: "A written motion must be made which
includes an offer of proof of the relevancy of the evidence of sexual conduct and its
relevancy in attacking the credibility of the complaining witness." (Daggett, supra,
225 Cal.App.3d at p. 757, citing § 782, subd. (a)(1), (2).) If the court finds that the
offer of proof is sufficient, the court shall order a hearing out of the presence of the
jury and at the hearing allow the questioning of the complaining witness regarding
the defendant's offer of proof. (§ 782, subd. (a)(3).) If the court finds that the
evidence is relevant under section 780 and is not inadmissible under section 352,
then it may permit the evidence to be introduced. (§ 782 subd. (a)(4).) "Great care
must be taken to insure that this exception to the general rule barring evidence of a
complaining witness' prior sexual conduct . . . does not impermissibly encroach
upon the rule itself and become a 'back door' for admitting otherwise inadmissible
evidence." (People v. Rioz (1984) 161 Cal.App.3d 905, 918-919.)
              Like McGuire, Daggett was charged with committing lewd acts upon
a minor, specifically, oral copulation and sodomy. Daggett moved under section
782 to introduce evidence of the complaining witness's past sexual conduct,
specifically, that he had been molested at age five by two older children. The trial
court denied the motion and the Court of Appeal reversed, holding that a child
victim's testimony in a molestation case can be given an "aura of veracity" by his
accurate description of sex acts: "This is because knowledge of such acts may be

                                            4
unexpected in a child who had not been subjected to them. In such a case it is
relevant for the defendant to show that the complaining witness had been subjected
to similar acts by others in order to cast doubt upon the conclusion that the child
must have learned of these acts through the defendant." (Daggett, supra, 225
Cal.App.3d at p. 757.)2
              Daggett created a narrow exception to the rape shield law. It is
applicable only in child abuse cases when the complaining witness is still a child at
the time of trial and when the prosecution is using the complaining witness's tender
age and presumed innocence to show that the child could only have known about
the sexual acts complained of because of the defendant's abuse. Neither
circumstance is shown here. The "aura of veracity" that attached to the child
witness in Daggett does not encompass 18-year-old Savannah, whose awareness of
digital penetration would not be "unexpected." Moreover, the prosecution did not
theorize that Savannah could only have learned about digital penetration through
her experience with McGuire. Evidence of Savannah's exposure to such acts as a
seven-year-old thus would not be relevant to cast doubt on such a theory.
Accordingly, the trial court did not abuse its discretion by denying McGuire's
section 782 motion.
              McGuire also contends that the evidence of Savannah's prior sexual
experience was relevant to prove that Savannah "was confusing the two incidents
and to impeach her memory with the prior allegation of molestation." McGuire
apparently contends that this "confusion" theory was encompassed by his Daggett
motion. It was not. McGuire's confusion theory is different from the "knowledge"
theory recognized in Daggett. Because the confusion theory was not presented to
the trial court in a section 782 motion, the trial court had no opportunity to evaluate
McGuire's offer of proof and to determine whether the evidence was admissible

              2
                Although Daggett does not specify the age of the complaining
witness at the time of trial, the description and timing of the events described
permits a reasonable inference that he was 12 or 13. (Id. at p. 754.)
                                           5
under section 352. "Given the significant and otherwise prohibited intrusion into
the prior sexual history of the complaining witness in a sexual assault case
countenanced by . . . section 782, the trial court should insist upon strict compliance
with the statutory requirements." (People v. Rioz, supra, 161 Cal.App.3d at p. 918,
fn. 5.) The trial court did not abuse its discretion by not reading into McGuire's
Daggett motion a theory of relevancy not advanced in that motion.
               McGuire's contention that excluding evidence of Savannah's prior
sexual conduct violated his federal constitutional rights to a fair trial is meritless.
As we have explained, there was no error in the trial court's denial of McGuire's
section 782 motion and accordingly no violation of any right. In any event,
exclusion of evidence of a victim's sexual history does not deny the defendant a fair
trial: "There is no fair trial problem with exclusion of all such evidence under . . .
section 1103. 'That limited exclusion no more deprives a defendant of a fair trial
than do the rules of evidence barring hearsay, opinion evidence, and privileged
communications.' [Citation.] Therefore, because the trial court may properly
exclude all such evidence without violating a defendant's fair trial rights, there is no
merit in the argument that not admitting some of the evidence under . . . section 782
deprives the defendant of a fair trial." (People v. Mestas (2013) 217 Cal.App.4th
1509, 1517.)
               The trial court's denial of McGuire's section 782 motion did not
violate his rights under either California or federal law.
                           Lesser included offense – battery
               McGuire contends that the trial court erred in failing to instruct the
jury on battery as a lesser included offense on count 1 and thus violated his federal
constitutional rights.3 "Under California law, a lesser offense is necessarily

               3
                Whether battery is a lesser included offense of lewd acts on a child
is an issue currently pending before the California Supreme Court in People v. Gray
(2011) 199 Cal.App.4th 167, review granted Dec. 14, 2011, S197749 and People v.
Shockley (2011) 190 Cal.App.4th 896, review granted March 16, 2011, S189462.

                                            6
included in a greater offense if either the statutory elements of the greater offense,
or the facts actually alleged in the accusatory pleading, include all the elements of
the lesser offense, such that the greater cannot be committed without also
committing the lesser. [Citation.]" (People v. Breverman (1998) 19 Cal.4th
142,154, fn. 5.) Battery is not a lesser included offense to a violation of Penal Code
section 288 because a defendant may violate that section without committing a
battery.
              Penal Code section 288, subdivision (a) provides that "any person
who willfully and lewdly commits any lewd or lascivious act . . . upon or with the
body, or any part or member thereof, of a child who is under the age of 14 years,
with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual
desires of that person or the child, is guilty of a felony . . . ." Penal Code Section
242 defines a battery as, "any willful and unlawful use of force or violence upon the
person of another." The slightest touching can constitute a violation of Penal Code
section 242 as long as the victim incurs unreasonable harm or offense. (People v.
Myers (1998) 61 Cal.App.4th 328, 335.)
              Battery is not a lesser included offense of lewd acts upon a child
because the greater offense focuses on the perpetrator's lewd intent; use of force is
not an element of the crime. In addition, consent may be a defense to a battery
(People v. Samuels (1967) 250 Cal.App.2d 501, 513), but is never a defense to
Penal Code section 288, subdivision (a). (People v. Soto (2011) 51 Cal.4th 229,
247.) Accordingly, the trial court did not have a sua sponte obligation to instruct
the jury that battery was a lesser included offense to lewd acts upon a child.
              A trial court is not required to instruct the jury on a lesser included
offense unless there is substantial evidence from which the jury could conclude that
the defendant was guilty of the lesser included offense, but not the charged offense.
(People v. Barton (1995) 12 Cal.4th 186, 201.) There was no substantial evidence
to support a finding that McGuire simply battered Savannah, with no sexual intent.
Given the evidence of unmistakably sexual touching, the jury could not reasonably

                                            7
have concluded that McGuire merely battered Savannah without lewd intent.
Accordingly, even if battery were a lesser included offense of lewd acts upon a
child in the abstract, there was no basis for instructing the jury on it.
              McGuire's federal constitutional claim is also unavailing. The failure
to instruct sua sponte on a lesser included offense in a noncapital case is, at most,
only an error of California law, and is thus subject only to state standards of
reversibility. (People v. Breverman, supra, 19 Cal.4th at p. 178.)
                               Prosecutorial misconduct
              McGuire cites three instances of prosecutorial misconduct during the
trial: (1) the suggestion during voir dire that there would be only one side to the
case; (2) the insinuation that McGuire's sexual acts with Savannah were her first
sexual experience; and (3) the reference to posts on Savannah's Facebook site that
were not in evidence.
              All three statements by the prosecutor were improper. The prosecutor
plainly knew that McGuire intended to put on a defense as he had pled not guilty
and subpoenaed witnesses. The other two statements were intended to capitalize
unfairly on the trial court's rulings: its denial of McGuire's section 782 motion and
its refusal to admit, over McGuire's objections, other posts from Savannah's
Facebook page. All three statements were thus attempts to persuade the jury by
deceptive methods and constituted prosecutorial misconduct. (People v. Espinoza
(1992) 3 Cal.4th 806, 820.) However, the misconduct does not require reversal. In
each case McGuire either requested or agreed to a curative admonition and in each
case the court granted his request. "[A] timely admonition from the court generally
cures any harm. [Citation.]" (People v. Pigage (2003) 112 Cal.App.4th 1359,
1375.) Because McGuire agreed to the admonitions, and in two instances requested
them, any error committed by the trial court was invited. "A court [cannot] be
asked by counsel to take a step in a case and later be convicted of error, because it
has complied with such request . . . ." (Shields v. United States (1927) 273 U.S.
583, 586.)

                                            8
                                 DISPOSITION
             The judgment is affirmed.
             NOT TO BE PUBLISHED.




                                         O'DONNELL, J.*


We concur:



             GILBERT, P. J.



             PERREN, J.




             *
               (Judge of the Superior Court of Los Angeles County, assigned by the
Chief Justice pursuant to art. 6, § 6 of the Cal. Const.)

                                         9
                                Barry T. LaBarbera, Judge
                             Teresa Estrada-Mullaney, Judge*
                                   John A. Trice, Judge

                         Superior Court County of San Luis Obispo
                           ______________________________


             Jennifer A. Mannix, under appointment by the Court of Appeal, for
Defendant and Appellant.
             Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Steven D.
Matthews, Supervising Deputy Attorney General, J. Michael Lehmann, Deputy Attorney
General, for Plaintiff and Respondent.




             *
                 Retired judge of the Superior Court County of San Luis Obispo.
