Filed 7/30/15 P. v. Hernandez CA2/3
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION THREE



THE PEOPLE,                                                              B257952

         Plaintiff and Respondent,                                       (Los Angeles County
                                                                         Super. Ct. No. KA103289)
         v.

JUAN HERNANDEZ,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County,
Robert M. Martinez, Judge. Affirmed.
         David M. Thompson, under appointment by the Court of Appeal, for Defendant
and Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Paul M. Roadarmel, Jr. and
Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.

                                        _________________________
       Defendant and appellant, Juan Hernandez, raises contentions of instructional error
following his conviction of continuous sexual abuse of a child and four counts of
committing a lewd act on a child. For the reasons discussed below, the judgment is
affirmed.
                                     BACKGROUND
       Viewed in accordance with the usual rules of appellate review (People v. Ochoa
(1993) 6 Cal.4th 1199, 1206), the evidence established the following.
       1. Prosecution evidence.
       The prosecution witnesses, all of whom were Hernandez’s nieces, described a
series of sexual assaults he perpetrated against them years earlier when they were
children.
              a. Stephanie: continuous sexual abuse (count 2).
       Stephanie, who was 18 years old at the time of trial, testified that, as a child, she
often visited defendant Hernandez’s home. Hernandez was married to her mother’s
sister. Stephanie often played with Hernandez’s daughter, who was a year older than
Stephanie.
       The first time that something happened was when Stephanie was in the first grade
and she spent the night in Hernandez’s living room. Stephanie woke up to find
Hernandez touching her chest, her sides and her thighs. She could feel his hands rubbing
her body up and down on the outside of her clothing. Hernandez told her “not to say
anything or something will happen.”
       When Stephanie was about the same age, there was another incident in the living
room of Hernandez’s house. This time Hernandez rubbed Stephanie’s chest, her side and
her legs on the inside of her clothing: “The second time it happened it was about the
same thing. He was just rubbing up my body, but I remember this time he went in my
clothes.” Hernandez also rubbed Stephanie’s vagina from the outside of her clothes.
       Stephanie described other incidents in which Hernandez inserted his fingers or his
tongue into her vagina. She characterized the last incident that occurred as the worst one.
On that occasion, she was sleeping in the daughter’s room when Hernandez picked her up

                                              2
and took her to his room. There, he laid her face-down on the bed, with her legs hanging
over the side, and took off her clothes and his own clothes. Hernandez then pushed his
naked “pelvis area” against Stephanie’s bare buttocks. She could feel his penis, but she
didn’t know if it was hard, and she could not recall if she felt any pain or if he penetrated
her.
       At the time of these events, Stephanie did not tell anyone about it because she was
afraid something bad would happen. When she was 12 years old, she told her sister A.
that “sexual stuff” had happened with Hernandez.
               b. K.: lewd act on a child (count 3).
       K. was also 18 years old at the time of trial. Hernandez was married to her
father’s sister.
       When K. was ten years old and in the fifth grade, she was playing in Hernandez’s
house with his daughter and some other children. When the others decided to go to the
store, Hernandez asked K. to stay behind. After the others left, Hernandez indicated he
wanted K. to sit on his lap. When she did, Hernandez slipped his hand under her skirt
and into her underwear, touching her buttocks. He also tried to kiss her. K. told
Hernandez he wasn’t supposed to be doing this and tried to shove him away. She fell off
his lap and ran down the hall. When Hernandez called after her, “No one’s going to
believe you,” K. felt “useless.” She did not tell anyone about what happened because she
thought no one would believe her.
       While K. was still in the fifth grade, her sister Rosa told her that something similar
had happened to her. K. told their mother, who left phone messages for Hernandez and
his wife, but they never returned the calls. K.’s mother testified she never went to the
police “[b]ecause of fear, because I’m alone in this country, because of ignorance.”
               c. Rosa: lewd act on a child (count 4).
       K.’s sister Rosa was 15 years old at the time of trial. She testified that on one
occasion, when she was seven or eight, she was spending the night at Hernandez’s house.
She and his daughter were sleeping on a couch when Hernandez came in and picked Rosa
up. The daughter awoke, asked Hernandez what he was doing, and Hernandez said he

                                              3
was taking Rosa to another room because the couch was too small. Hernandez went into
a bedroom and laid Rosa on a bed. He pulled her pants and underwear down to her
thighs and rubbed her buttocks. Rosa kept pulling her pants back up and Hernandez kept
pulling them back down. Hernandez heard someone coming and told Rosa to go back to
his daughter’s room.
       The next day, Hernandez told Rosa he wanted to teach her how to ride a bike. As
she sat on the bike with her feet on the ground, Hernandez slipped his hand in between
the bicycle seat and Rosa’s buttocks. Rosa was standing still astride the bike and
Hernandez touched her buttocks over her clothes. Hernandez did not say anything; he
just touched her and then removed his hand, after which Rosa rode off.
       Soon afterward, Rosa told K. what happened and K. told their mother.
              d. A.: lewd acts on a child (counts 5 & 6).
       A., who was 25 years old at the time of trial, was Stephanie’s sister. One time,
when A. was 12 years old, she was sleeping at Hernandez’s house when he came into the
room and told her to scoot over. He then laid down next to her. He rubbed her breasts
and her vagina from inside her clothing. A. did not move because she was too scared.
       Another time, also when she was 12, A. was lying on the floor in her cousin’s
bedroom when she felt her shorts and underwear in her crotch area being moved to the
side. A. felt someone licking her “down there” and then she felt a wet and “slimy
substance on [her] vagina area.” When she opened her eyes, she saw Hernandez’s face
between her legs. Hernandez scooted backwards and left the room.
              e. The police investigation.
       Los Angeles County Deputy Sheriff Alfonso Lopez interviewed Hernandez, who
admitted having made “some mistakes” with a couple of his nieces.
       Hernandez said the mistakes he made with A. included three incidents. Once he
touched her on the “upper butt.” Another time, he went into the bedroom, laid down next
to her and became sexually aroused. However, he did not touch her because he was
“afraid of crossing the line.” On the third occasion, he pulled aside A.’s panties and
looked at her vagina, but he did not touch her.

                                             4
       Hernandez said he also made mistakes with Stephanie. One time he picked her up
and moved her into another room, where Stephanie took off her own panties and “wanted
him to touch her, but [Hernandez] was too afraid to touch her.” Because he was sexually
aroused, he went into his own bedroom and masturbated. Another time, when Stephanie
was asleep on the couch, Hernandez “asked her if he could touch her, and she said no.
And he tried to touch her . . . but she moved her arms so he only touched her on her
arms.” On another occasion, Hernandez walked into a room and saw Stephanie kneeling
on a couch. “She was not wearing any underwear or any pants, and he said that he
approached her and she asked him to touch her, but he didn’t touch her because he was
too afraid.”
       Regarding K., Deputy Lopez testified that Hernandez described “an incident
where he had placed [K.] on his lap . . . but he denied touching her on her private area.
He continued touching her on her butt.”
       Asked if Hernandez had talked about having expressed sexual desires to Rosa,
Lopez said yes: “[Hernandez] told me that he . . . told Rosie that he wanted to see her
vagina, that he wanted to look at her vagina, and . . . he told me about an incident where
he had picked up Rosie and taken her into the room, and he was asking her if he could see
her vagina, and she got angry with him and told him ‘no.’ ”
       Lopez acknowledged that, during the interview, Hernandez also said: “This hand
never touched a vagina, never touched a breast, nor my tongue touched anybody.”
       2. Defense evidence.
       Hernandez’s son testified that, when A. was in her early 20’s, she lived with
Hernandez and his family for about six months.
       3. Trial outcome.
       Hernandez was convicted of one count of continuous sexual abuse of a child for
his conduct with Stephanie, and four counts of lewd act on a child (also referred to herein
as “child molesting”) for his conduct with Rosa, A. and K., with an enhancement for
having committed a sexual offense against more than one victim (Pen. Code, §§ 288.5,


                                             5
288, 667.61).1 He was sentenced to state prison for a term of 72 years to life. This
appeal followed.
                                       CONTENTIONS
         Hernandez contends: (1) the trial court erred by refusing to instruct the jury on
attempted child molesting as a lesser included offense of the child molesting charges, and
(2) the trial court erred by failing to instruct the jury on attempted child molesting in
connection with the charge of continuous sexual abuse of a child.
                                         DISCUSSION
         1. Trial court did not err by failing to instruct on attempted child molesting as a
lesser included offense for the crimes charged in counts 3 through 6.
         Hernandez contends his four child molesting convictions (§ 288, subd. (a))
(counts 3 through 6) must be reversed because the trial court should have instructed the
jury on attempted child molesting as a lesser included offense. There is no merit to this
claim.
                a. Legal principles.
         “An offense is necessarily included within a charged offense ‘if under the statutory
definition of the charged offense it cannot be committed without committing the lesser
offense, or if the charging allegations of the accusatory pleading include language
describing the offense in such a way that if committed as specified the lesser offense is
necessarily committed.’ [Citation.]” (People v. Toro (1989) 47 Cal.3d 966, 972,
disapproved on other grounds by People v. Guiuan (1998) 18 Cal.4th 558, 568, fn. 3.)
“[A] trial court errs if it fails to instruct, sua sponte, on all theories of a lesser included
offense which find substantial support in the evidence. On the other hand, the court is not
obliged to instruct on theories that have no such evidentiary support.” (People v.
Breverman (1998) 19 Cal.4th 142, 162.) “ ‘Substantial evidence’ in this context is
‘ “evidence from which a jury composed of reasonable [persons] could . . . conclude[ ]” ’
that the lesser offense, but not the greater, was committed. [Citations.] [¶] In deciding

1
         All further statutory references are to the Penal Code unless otherwise specified.

                                                6
whether there is substantial evidence of a lesser offense, courts should not evaluate the
credibility of witnesses, a task for the jury.” (Ibid.)
       “[O]n appeal we employ a de novo standard of review and independently
determine whether an instruction on the lesser included offense . . . should have been
given.” (People v. Manriquez (2005) 37 Cal.4th 547, 584.)
       “[S]ection 288 prohibits all forms of sexually motivated contact with an underage
child. Indeed, the ‘gist’ of the offense has always been the defendant’s intent to sexually
exploit a child, not the nature of the offending act. [Citation.] ‘[T]he purpose of the
perpetrator in touching the child is the controlling factor and each case is to be examined
in the light of the intent with which the act was done. . . . If [the] intent of the act . . . is
to arouse . . . the lust, the passion or the sexual desire of the perpetrator [or the child,] it
stands condemned by the statute . . . .’ [Citation.] [¶] Thus, throughout the statute’s
history, the cases have made clear that a ‘touching’ of the victim is required, and that
sexual gratification must be presently intended at the time such ‘touching’ occurs.
[Citations.] However, the form, manner, or nature of the offending act is not otherwise
restricted. Conviction under the statute has never depended upon contact with the bare
skin or ‘private parts’ of the defendant or the victim. [Citations.] Stated differently, a
lewd or lascivious act can occur through the victim’s clothing and can involve ‘any part’
of the victim’s body. [Citations.] [¶] . . . [M]odern courts state or imply that any
touching of an underage child is ‘lewd or lascivious’ within the meaning of section 288
where it is committed for the purpose of sexual arousal. [Citations.]” (People v.
Martinez (1995) 11 Cal.4th 434, 444-445 (Martinez).)
       Attempted lewd act on a child is recognized as a lesser included offense of the
completed crime. (People v. Herman (2002) 97 Cal.App.4th 1369, 1386 [defendant
properly convicted of attempted child molesting where he offered teenage girls money to
engage in sex and suggested they come with him to the park, but they declined]; People
v. Imler (1992) 9 Cal.App.4th 1178, 1181 [defendant committed attempted child
molesting when he pretended to be holding a 12-year-old’s father hostage and, over the
telephone, ordered the child to disrobe and touch his own penis, which the child did not

                                                 7
do].) “To sustain a conviction of attempted violation of section 288(a), the prosecution
has the burden of demonstrating (1) the defendant intended to commit a lewd and
lascivious act with a child under 14 years of age, and (2) the defendant took a direct but
ineffectual step toward committing a lewd and lascivious act with a child under 14 years
of age. [Citation.]” (People v. Singh (2011) 198 Cal.App.4th 364, 368.)
              b. Discussion.
                     (1) Conviction for molesting K. (count 3).
       Hernandez argues the jury should have been instructed on attempted child
molesting as to K. because he told Deputy Lopez that “he had placed [K.] on his lap but
denied touching her private area. Lopez testified that appellant said he ‘continued
touching her on her butt.’ Therefore, it is not entirely clear what appellant was claiming,
i.e., that he simply had his hand on her butt over her clothing, which would be a natural
location in such a scenario even if innocently done, or that he was touching [K.] in an
attempt to arouse either her, him, or both.” However, Hernandez further argues, “in any
event, it is reasonably possible that the jury could have found appellant’s attempt to kiss
[K.] as the lewd act. It could have found that his touching of her, even only if his lap to
her butt, was preparatory to his plan to kiss her, which failed as his attempt was thwarted
when [K.] moved from appellant’s lap.”
       But if Hernandez touched K.’s buttocks “preparatory to his plan to kiss” her, then
he was guilty of the completed crime of child molesting at that point. A similar situation
arose in People v. Lopez (2010) 185 Cal.App.4th 1220, where the defendant sought
sexual gratification by having his step-daughters dress in lingerie and then search
blindfolded for coins in the clothing while he watched and photographed them. As the
Court of Appeal framed the issue: “The question here is whether there was sufficient
evidence of a touching concurrent with lewd intent, where the girls dressed themselves
out of defendant’s presence, but under defendant’s direction, for the sexually motivated
purpose of playing the money game.” (Id. at p. 1233, italics added.) Citing Martinez’s
statement that “the only way to determine whether a particular touching is permitted or
prohibited is by reference to the actor’s intent as inferred from all the circumstances”

                                              8
(People v. Martinez, supra, 11 Cal.4th at p. 450), the Court of Appeal concluded that
“section 288 encompasses the defendant’s act . . . of directing the victims to change into
provocative clothing for the sexually motivated purpose of watching the girls search for
money in the provocative clothing. Defendant committed the touching acts
constructively, through the victims as conduits for the purpose of sexual arousal. Even
though defendant may not have experienced sexual arousal at the moment the victims
touched themselves when putting on the provocative clothing, defendant’s intent when
instigating or causing the touchings was lewd and lascivious within the meaning of
section 288, since the touchings were sexually motivated and committed for the purpose
of defendant’s sexual gratification.” (People v. Lopez, supra, 185 Cal.App.4th at
p. 1233.)
       Hence, even if the jury believed that Hernandez’s touching of K.’s buttocks had
been merely preparatory to his intention of committing a lewd act by kissing her, this
violated section 288 because the touching “was sexually motivated by defendant’s
lascivious desire.” (People v. Lopez, supra, 185 Cal.App.4th at p. 1230.) Hence, the trial
court did not err by failing to instruct the jury on attempted child molesting as a lesser
included offense of the crime charged in count 3.
                     (2) Conviction for molesting Rosa (count 4).
       Hernandez argues the jury should have been instructed on attempted child
molesting with regard to both of the alleged child molesting incidents Rosa described.
Regarding the incident in which Hernandez picked Rosa up and took her into another
room, he told Deputy Lopez that he asked Rosa if he could see her vagina, but she
refused; he denied touching Rosa or removing her clothes. Hernandez argues, “Under
appellant’s version, his asking Rosa to show him her vagina could certainly qualify only
as an attempted lewd act, that is, he wanted Rosa to touch her clothing, expose her
vagina, which in turn would cause appellant to be aroused.” But, under the reasoning of
People v. Lopez, supra, 185 Cal.App.4th at p. 1233, Hernandez was already guilty of the
completed crime of child molesting when he picked Rosa up and took her to another


                                              9
room because he wanted to be sexually aroused by looking at her vagina. Hence, there
was no reason to instruct on attempted child molesting as a lesser included offense.
       The same is true for the second incident. Hernandez argues: “Rosa also testified
that the next day, while teaching her how to ride a bike, appellant put his hand between
Rosa’s butt and the bicycle seat. Neither said anything and appellant removed his hand
and Rosa paddled [sic] off. Such conduct could have been interpreted as an attempted
lewd act. The jury could have reasonably found that appellant put his hand in that
position planning to then touch Rosa in a more provocative manner, leading to his
arousal. Appellant’s voluntary removal of his hand resulted in an ineffectual step toward
such goal.” (Italics added.) But again, Hernandez had already committed child
molesting when he touched Rosa’s buttocks while planning to touch her in a more
provocative way so he would be sexually aroused.
       The trial court did not err by failing to instruct the jury on attempted child
molesting as a lesser included offense of the crime charged in count 4.
                     (3) Conviction for molesting A. (counts 5 and 6).
                            (a)     Count 6
       A. testified that on one occasion, Hernandez pushed her shorts to the side and
licked her vagina. As to that incident, Hernandez told Deputy Lopez that he pulled aside
her panties and looked at her vagina, but he didn’t touch her. Hernandez argues that his
conduct, as he described it, would support an attempt to commit a lewd act, but not the
completed act. We disagree: Moving A.’s panties in order to look at her vagina
constituted child molesting under section 288 because Hernandez would have touched A.
through her clothing with a concurrent lewd intent. (See People v. Martinez, supra, 11
Cal.4th at p. 444 [“Conviction under [section 288] has never depended upon contact with
the bare skin or ‘private parts’ of the defendant or the victim. [Citations.] Stated
differently, a lewd or lascivious act can occur through the victim’s clothing and can
involve ‘any part’ of the victim’s body.”].) Thus, none of the evidence concerning this
incident would have supported an instruction for attempted child molestation.
Accordingly, this incident did not require an attempted section 288 instruction.

                                              10
                             (b)    Count 5
       A. also testified that on a separate occasion, Hernandez laid down next to her and
touched her breast and vaginal area under her clothing. Hernandez described the same
incident, but told Deputy Lopez that he simply went into the bedroom, laid down next to
A. and became sexually aroused, but he was too afraid to do anything. As to that
incident, Hernandez argues that had the jury believed his testimony it might have
convicted him of attempted child molestation because he “planned to commit a lewd act
and took the step of laying down next to her ‘as a direct [but] ineffectual step toward that
goal.’ ” (Italics added.) Based on this theory, he claims the jury should have been
instructed on attempted child molesting as a lesser included offense.
       “An attempt to commit a lewd act upon a child requires both an intent to arouse,
appeal to, or gratify ‘the lust, passions, or sexual desires of [the defendant] or the child’
(§§ 288, subd. (a), 664) ‘and . . . a direct if possibly ineffectual step toward that goal
. . . .’ [Citation.] ‘ “Although mere preparation such as planning or mere intention to
commit a crime is insufficient to constitute an attempt, acts which indicate a certain,
unambiguous intent to commit that specific crime, and, in themselves, are an immediate
step in the present execution of the criminal design will be sufficient. [Citations.]”
[Citation.]’ [Citation.] No clear marker divides acts that are merely preparatory from
those initiating the criminal act. Nonetheless, ‘the more clearly the intent to commit the
offense is shown . . . “the more likely that steps in the early stages of the commission of
the crime will satisfy the overt act requirement” ’ of an attempt. [Citation.]” (People v.
Crabtree (2009) 169 Cal.App.4th 1295, 1322.) “ ‘Applying criminal culpability to acts
directly moving toward commission of crime . . . is an obvious safeguard to society
because it makes it unnecessary for police to wait before intervening until the actor has
done the substantive evil sought to be prevented. It allows such criminal conduct to be
stopped or intercepted when it becomes clear what the actor’s intention is and when the
acts done show that the perpetrator is actually putting his plan into action.’ [Citations.]”
(People v. Dillon (1983) 34 Cal.3d 441, 453, italics added.)


                                              11
       The cases on which Hernandez relies to establish that his admitted conduct
supported an instruction for attempted child molestation are inapposite. In People v.
Imler, supra, 9 Cal.App.4th 1178, the defendant spoke on the telephone to a 12-year-old
boy. “In response to Imler’s questions, Jason J. replied that his mother was away and his
father was not home. Imler replied that ‘that’s because I have him hostage.’ Imler
demanded $5,000 by the next day, if Jason J. wanted to see his father again. Imler asked
Jason what he was wearing, then ordered him to disrobe and touch his penis. Jason J. did
not do so, although Imler repeatedly told him to touch himself. Jason J. told Imler he had
complied then Imler hung up.” (Id. at p. 1180.) The Court of Appeal held that “Imler’s
acts went beyond mere preparation” because he “called the victim, spoke to him, and
ordered him to commit lewd acts [citation]” (id. at p. 1181), and affirmed the conviction
of attempted child molestation.
       People v. Singh, supra, 198 Cal.App.4th 364, found sufficient evidence to sustain
a conviction of attempted child molesting where Singh, the subject of a sting operation,
believed he was communicating on the internet with 12-year-old girl. Singh “engaged in
a sexually explicit discussion with her, asked her detailed sexual questions, told her that
he could fulfill her sexual needs,” (id. at p. 369) and made a date to visit her. The next
day, Singh went to her house, where he was confronted by a television reporter and then
arrested. The Court of Appeal held the evidence demonstrated Singh had taken “a direct
but ineffectual step toward” violating section 288. (Id. at p. 368.)
       People v. Crabtree, supra, 169 Cal.App.4th 1293, also involved an internet sting
operation. Crabtree had multiple online contacts with a California Department of Justice
agent who was posing as “Hope,” a 13-year-old runaway. In addition to having sexually
explicit conversations, Crabtree sent Hope pictures of people engaging in sex and a
picture of his penis. He was arrested after having sent Hope a bus ticket and arranged a
meeting at the Los Angeles Greyhound station. Inside his car, police found Viagra,
condoms, a bikini, and bubble bath. The Court of Appeal reasoned, “The presence of
these items, which are consistent with appellant’s sexually-charged online chats with
‘Hope,’ and the fact he had bought the bikini shortly before his anticipated meeting with

                                             12
‘Hope,’ strongly show appellant’s intent to carry out his intended lewd act upon ‘Hope.’
Nothing more was necessary.” (Id. at p. 1322.)
       The defendants in the cases cited by Hernandez went beyond mere preparation
because each one put his plan into action. Each defendant engaged in sexually explicit
conversations with the intended victim. In addition, Imler ordered the victim over the
phone to touch himself, while Singh and Crabtree arranged and tried to carry out face-to-
face meetings. In this case, with respect to the second incident with A. (count 5), the
only thing Hernandez told Deputy Lopez was that he had contemplated molesting A., but
then changed his mind without having touched her or even said a single word to her. In
this instance, Hernandez’s acts did not “ ‘ “indicate a certain, unambiguous intent to
commit” ’ ” child molesting, nor constitute “ ‘ “an immediate step in the present
execution of” ’ ” that offense. (People v. Crabtree, supra, 169 Cal.App.4th at p. 1322.)
According to Hernandez’s version of events, Hernandez’s intention did not become clear
because he never moved to put any plan into action. (See People v. Dillon (1983)
34 Cal.3d 441, 453.)
       In sum, we conclude the trial court did not err by failing to instruct the jury on
attempted child molesting as a lesser included offense of the child molesting charges
alleged with respect to A., Rosa and K.
       2. Trial court did not err by failing to instruct on attempted child molesting with
respect to the continuous abuse charge related to Stephanie.
       Hernandez contends his conviction of continuous sexual abuse of a child (§ 288.5)
against Stephanie must be reversed because the trial court failed to instruct the jury on
attempted child molesting. We disagree.
       Section 288.5, subdivision (a), provides: “Any person who either resides in the
same home with the minor child or has recurring access to the child, who over a period of
time, not less than three months in duration, engages in three or more acts of substantial
sexual conduct with a child under the age of 14 years at the time of the commission of the
offense, as defined in subdivision (b) of Section 1203.066, or three or more acts of lewd
or lascivious conduct, as defined in Section 288, with a child under the age of 14 years at

                                             13
the time of the commission of the offense is guilty of the offense of continuous sexual
abuse of a child and shall be punished by imprisonment in the state prison for a term of 6,
12, or 16 years.” Subdivision (b) of section 1203.066, provides: “ ‘Substantial sexual
conduct’ means penetration of the vagina or rectum of either the victim or the offender by
the penis of the other or by any foreign object, oral copulation, or masturbation of either
the victim or the offender.”
       Hernandez argues that, because some of the acts he admitted to Deputy Lopez
arguably constitute only attempted child molesting, rather than completed child
molesting, the trial court should have instructed the jury on attempted child molesting
since “Stephanie’s testimony fails to establish that appellant committed sufficient acts of
substantial sexual contact alone to find guilt without also finding guilt on some acts of
lewd and lascivious conduct.”
       The trial court did not err, however, because Hernandez’s admissions to Deputy
Lopez did not constitute substantial evidence that he committed attempted child
molesting. One incident – in which Hernandez allegedly saw Stephanie kneeling on a
couch and she asked him to touch her, but he didn’t because he was too afraid – fell short
of constituting an attempted child molesting. Hernandez’s acts on this occasion did not
“ ‘ “indicate a certain, unambiguous intent to commit” ’ ” child molesting, nor constitute
“ ‘ “an immediate step in the present execution of” ’ ” that offense. (People v. Crabtree,
supra, 169 Cal.App.4th at p. 1322.) Hence, no attempted child molesting instruction was
warranted as to that incident. In both of the other incidents, Hernandez admitted having
touched Stephanie in situations where it was clear that he “was sexually motivated by . . .
lascivious desire”2 (People v. Lopez, supra, 185 Cal.App.4th at p. 1230) and, therefore,
he was guilty of the completed crime of child molesting. Again, no attempted child
molesting instruction was warranted.

2
       In one of those incidents, Hernandez said he picked Stephanie up and moved her
into another room where she undressed and invited him to touch her, but he was too
afraid so he left, went into his own bedroom and masturbated. In the other incident,
Hernandez asked if he could touch Stephanie; when she refused, he tried to touch her
anyway and touched her arm.
                                             14
       Moreover, even assuming arguendo that the trial court erred by failing to instruct
on attempted child molesting, the error was doubtlessly harmless. “The erroneous failure
to instruct on a lesser included offense generally is subject to harmless error review under
the standard of People v. Watson (1956) 46 Cal.2d 818, [836-837] . . . . Reversal is
required only if it is reasonably probable the jury would have returned a different verdict
absent the error or errors complained of. [Citations.]” (People v. Rogers (2006)
39 Cal.4th 826, 867-868, fn. omitted.) “In determining whether a failure to instruct on a
lesser included offense was prejudicial, an appellate court may consider ‘whether the
evidence supporting the existing judgment is so relatively strong, and the evidence
supporting a different outcome is so comparatively weak, that there is no reasonable
probability the error of which the defendant complains affected the result.’ [Citations.]”
(Id. at p. 870.) That is precisely the situation here. It is quite clear the jury thoroughly
rejected the proposed defense that all Hernandez did to Stephanie was either resist her
sexual provocations altogether or, at most, touch her once on the arm.




                                              15
                                    DISPOSITION
      The judgment is affirmed.


      NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                EDMON, P. J.


We concur:




                    KITCHING, J.




                    EGERTON, J.*




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

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