Filed 2/26/14 (Unmodified opinion attached)




      IN THE SUPREME COURT OF CALIFORNIA


THE PEOPLE,                          )
                                     )
           Plaintiff and Respondent, )
                                     )                              S189462
           v.                        )
                                     )
THOMAS RAYMOND SHOCKLEY,             )
                                     )                        Stanislaus County
           Defendant and Appellant.  )                      Super. Ct. No. 1238243
____________________________________)


                        ORDER MODIFYING OPINION AND
                      DENYING PETITION FOR REHEARING
THE COURT:

        The opinion in this matter filed on December 26, 2013, and appearing at 58
Cal.4th 400, is modified as follows and the petition for rehearing is denied:
        On page 405, the third sentence in the third full paragraph that now reads:
“If guilt of battery is predicated on guilt of lewd conduct — i.e., if a person guilty
of lewd conduct is automatically also guilty of battery — there would be no
elements of battery not also required of lewd conduct,” is modified to read as
follows: “If guilt of battery is predicated on guilt of lewd conduct — i.e., if a
person is guilty of battery because that person committed lewd conduct — neither
crime would have an element not also required of the other.”
        This modification does not change the judgment.
Filed 12/26/13 (Unmodified opinion)




      IN THE SUPREME COURT OF CALIFORNIA


THE PEOPLE,                          )
                                     )
           Plaintiff and Respondent, )
                                     )                            S189462
           v.                        )
                                     )                      Ct.App. 5 F058249
THOMAS RAYMOND SHOCKLEY,             )
                                     )                      Stanislaus County
           Defendant and Appellant.  )                    Super. Ct. No. 1238243
____________________________________)


        We must decide whether battery is a lesser and necessarily included offense
of lewd and lascivious conduct with a child under 14 years of age (hereafter
referred to as lewd conduct). We conclude it is not.
                    I. FACTUAL AND PROCEDURAL BACKGROUND
        On October 17, 2007, defendant Thomas Raymond Shockley attended a
family gathering in Modesto to celebrate victim Jane Doe’s 10th birthday. Jane,
the stepdaughter of defendant’s adult daughter, was not biologically related to
defendant, but Jane often called him “grandpa.” When Jane was alone at the
computer, defendant kissed her on the lips and stuck his tongue in her mouth.
        Two days later, as a birthday present to Jane, defendant took Jane and her
nine-year-old stepsister (defendant’s biological granddaughter) to the movies. On
the drive home, Jane sat between defendant and her stepsister in the front seat.
After Jane took off her sweatshirt, defendant began rubbing her bare stomach, near
her belly button, with his hand. When Jane asked defendant if she could steer the
car, defendant told her to put her leg over his leg. Defendant rubbed Jane’s genital
area with his hand through her clothes for about five minutes. After giving her
stepsister a worried look, Jane asked to switch seats with her.
       When they got home, Jane told her stepsister what had happened in the car.
She also told her father, who later called police. Modesto Police Officer Scott
Nelson interviewed defendant. Defendant admitted rubbing Jane’s stomach and
poking her belly button. He said “his girlfriend would do the same thing to him
just for fun.” He denied rubbing Jane’s genital area. Defendant said Jane could
have thought he kissed her with his mouth open because at the theater, he spilled
soda on his mouth and was licking the soda off with his tongue when Jane leaned
over and kissed him. Defendant also thought that Jane might have said those
things about him because she had had large coffee drinks after the movie, and the
caffeine might have affected her thinking.
       A jury found defendant guilty of lewd conduct under Penal Code section
288, subdivision (a) (section 288(a)). On appeal, he argued that the trial court had
a sua sponte duty to instruct the jury on battery under Penal Code section 242
(section 242) as a lesser and necessarily included offense of lewd conduct. The
Court of Appeal disagreed and affirmed the judgment. We granted defendant’s
petition for review.
                                  II. DISCUSSION
       A trial court has a sua sponte duty to “instruct on a lesser offense
necessarily included in the charged offense if there is substantial evidence the
defendant is guilty only of the lesser.” (People v. Birks (1998) 19 Cal.4th 108,
118) Substantial evidence in this context is evidence from which a reasonable jury
could conclude that the defendant committed the lesser, but not the greater,
offense. (People v. Ochoa (1998) 19 Cal.4th 353, 422.) “The rule’s purpose is . . .
to assure, in the interest of justice, the most accurate possible verdict encompassed

                                          2
by the charge and supported by the evidence.” (People v. Breverman (1998) 19
Cal.4th 142, 161.) In light of this purpose, the court need instruct the jury on a
lesser included offense only “[w]hen there is substantial evidence that an element
of the charged offense is missing, but that the accused is guilty of” the lesser
offense. (People v. Webster (1991) 54 Cal.3d 411, 443.)
       To determine if an offense is lesser and necessarily included in another
offense for this purpose, we apply either the elements test or the accusatory
pleading test. “Under the elements test, if the statutory elements of the greater
offense include all of the statutory elements of the lesser offense, the latter is
necessarily included in the former. Under the accusatory pleading test, if the facts
actually alleged in the accusatory pleading include all of the elements of the lesser
offense, the latter is necessarily included in the former.” (People v. Reed (2006)
38 Cal.4th 1224, 1227-1228.) In this case, because the information charging
defendant with lewd conduct simply tracked section 288(a)’s language without
providing additional factual allegations, we focus on the elements test. (People v.
Anderson (1975) 15 Cal.3d 806, 809.)
       Under section 288(a), “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.” “Any touching of a child under the age of 14 violates this
section, even if the touching is outwardly innocuous and inoffensive, if it is
accompanied by the intent to arouse or gratify the sexual desires of either the
perpetrator or the victim.” (People v. Lopez (1998) 19 Cal.4th 282, 289.) By
focusing on the defendant’s intent to sexually exploit a child rather than on the
nature of the defendant’s offending act, section 288 “assumes that young victims



                                           3
suffer profound harm whenever they are perceived and used as objects of sexual
desire.” (People v. Martinez (1995) 11 Cal.4th 434, 444.)
       “A battery is any willful and unlawful use of force or violence upon the
person of another.” (§ 242.) “Any harmful or offensive touching constitutes an
unlawful use of force or violence” under this statute. (People v. Martinez (1970) 3
Cal.App.3d 886, 889, quoted in People v. Pinholster (1992) 1 Cal.4th 865, 961.)
“It has long been established that ‘the least touching’ may constitute battery. In
other words, force against the person is enough; it need not be violent or severe, it
need not cause bodily harm or even pain, and it need not leave a mark.” (1 Witkin
& Epstein, Cal. Criminal Law (4th ed. 2012) Crimes Against the Person, § 13, p.
804; see People v. Rocha (1971) 3 Cal.3d 893, 899, fn. 12.)
       Without analysis, the court in People v. Santos (1990) 222 Cal.App.3d 723,
739, stated that battery is not a lesser included offense of lewd conduct. In People
v. Thomas (2007) 146 Cal.App.4th 1278, 1291-1293, the court disagreed with
Santos and held that battery is a lesser included offense of lewd conduct. It
rejected the People’s argument that lewd conduct does not require an actual
touching but battery does. It also noted that the “People do not dispute that any
lewd act within the meaning of section 288 is necessarily a harmful or offensive
touching.” (Thomas, supra, at p. 1292, fn. 8, citing People v. Martinez, supra, 11
Cal.4th at p. 444.) We must resolve the conflict between these cases.
       In this case, the People do dispute that a lewd act is necessarily a harmful or
offensive touching, as battery requires. They argue that “a lewd act with a child
does not always involve touching the victim in a harmful or offensive manner.”
Defendant argues to the contrary that touching a child with lewd intent is
inherently harmful and objectively offensive, and, accordingly, every touching that
satisfies the elements of section 288(a), because done with lewd intent, necessarily



                                          4
is harmful or offensive for purposes of the battery statute. (Citing J.C. Penney
Casualty Ins. Co. v. M.K. (1991) 52 Cal.3d 1009, 1026.)
       We need not resolve this point. If we were to agree with defendant, that
would mean this form of battery (where lewd conduct supplies the required
harmful or offensive touching) is not a lesser and included offense of lewd
conduct but is essentially the identical offense. If guilt of battery is predicated on
guilt of lewd conduct — i.e., if a person guilty of lewd conduct is automatically
also guilty of battery — there would be no elements of battery not also required of
lewd conduct. Substantial evidence could never exist that an element of the lewd
conduct offense is missing but that the defendant is guilty of battery as a lesser
included offense. (See People v. Webster, supra, 54 Cal.3d at p. 443.) A jury
could never find the defendant not guilty of lewd conduct (perhaps because of the
lack of lewd intent), but guilty of battery, without finding some other element of
battery not included within lewd conduct. Accordingly, even under defendant’s
argument, the court would never have to instruct on battery as a lesser included
offense of lewd conduct.
       One can easily commit battery without also committing lewd conduct, as
when a person touches a child nonconsensually and harmfully but without lewd
intent. In this situation, an element of the battery, the unwanted use of force,
would not be included within the elements of lewd conduct. It would be a distinct
requirement. For this reason, in a given case, the prosecutor might choose to
charge a defendant with both lewd conduct and battery. If the touching of a child
was nonconsensual and harmful, and thus a battery for reasons unrelated to any
lewd intent, and if the evidence of lewd intent, although sufficient to go to a jury,
was ambiguous enough that a jury might not find that intent, the prosecution might
want to charge both lewd conduct and battery. The prosecution would have
discretion to charge both crimes if it believed the facts warranted both charges.

                                           5
(See People v. Eubanks (1996) 14 Cal.4th 580, 589.) If both crimes are charged,
and depending on how it viewed the facts, the jury could find the defendant guilty
of both crimes if it found the elements of each had been proven, or of either one,
or of neither.
       In response to the concurring and dissenting opinion, we merely conclude
that when the elements of two offenses are essentially identical, as when guilt of
battery would be predicated on being guilty of lewd conduct, neither is a lesser
and included offense of the other. The concurring and dissenting opinion argues
that if only lewd conduct is charged, and the jury finds no lewd intent, it should be
permitted to convict the defendant of battery if it finds an offensive touching on
some basis other than lewd intent. However, “[a] criminal defendant must be
given fair notice of the charges against him in order that he may have a reasonable
opportunity properly to prepare a defense and avoid unfair surprise at trial.”
(People v. Anderson, supra, 15 Cal.3d at p. 809.) Convincing the jury there was
no lewd intent would be a complete defense to a lewd conduct charge. Charging
only lewd conduct would not provide the defendant with notice of the need to
defend additionally against a battery charge based on an offensive touching not
included within the elements of lewd conduct.
       For these reasons, battery is not a lesser included offense of lewd conduct.
Accordingly, if only lewd conduct is charged, the trial court has no duty to instruct
on battery as a lesser included offense. Of course, if both lewd conduct and
battery are charged, the court would have to instruct on battery, but that would be
as a separately charged offense, and not as a lesser included offense.




                                          6
                                III. CONCLUSION
       We affirm the judgment of the Court of Appeal. We also disapprove
People v. Thomas, supra, 146 Cal.App.4th 1278, to the extent it is inconsistent
with this opinion.

                                                              CHIN, J.

WE CONCUR:

CANTIL-SAKAUYE, C. J.
BAXTER, J.
CORRIGAN, J.
LIU, J.




                                         7
     CONCURRING AND DISSENTING OPINION BY KENNARD, J.



       The majority holds that battery (Pen. Code, § 242; all unspecified statutory
citations are to this code) is not a lesser offense necessarily included within the
crime of lewd conduct with a child younger than 14 years (§ 288, subd. (a)). I
disagree, as in my view a lewd act on a child is always a battery. Nevertheless, I
agree with the majority’s affirmance of the Court of Appeal’s judgment because,
on the facts presented, no reasonable jury could have concluded that defendant
committed only the lesser offense of battery, but not the greater offense of lewd
conduct with a child.
                                           I
       On October 17, 2007, defendant Thomas Raymond Shockley was at a
family party in Modesto, California, to celebrate the 10th birthday of Jane Doe, the
stepdaughter of defendant’s adult daughter, Hannah. On this occasion, defendant
kissed Jane on the lips, inserting his tongue into her mouth.
       Two days later, defendant took Jane and her nine-year-old stepsister
(Hannah’s daughter from a prior relationship) to a movie theater. On the drive
home, Jane sat between defendant and her stepsister. Defendant put his arm
around Jane’s shoulder and began rubbing her stomach. When Jane asked if she
could steer the car, defendant told her to put her leg over his leg. Then, for about
five minutes, while Jane’s hands were on the steering wheel, defendant rubbed her
vaginal area with his hand outside her clothes.


                                           1
         When they got home, Jane and her stepsister went into Jane’s bedroom.
Crying, Jane told her stepsister what had happened in the car. Jane then told her
father, who called the police. Officer Scott Nelson questioned defendant.
Defendant said that Jane could have thought that he kissed her with his mouth
open because, when they were at the theater, defendant spilled soda on his face
and, while he was licking off the soda with his tongue, Jane kissed him on the lips.
Thereafter, on the drive home from the theater, defendant put his arm around Jane,
poked her in the belly button, and rubbed her stomach. Defendant denied rubbing
Jane’s vaginal area. Jane’s different version of the events, defendant said, could
have been affected by the caffeine in the large coffee drink she had after the
movie.
         Defendant was charged with a single count of lewd conduct with a child
younger than 14 years. (§ 288, subd. (a).) The jury found him guilty of the
charge.
         On appeal, defendant faulted the trial court for not instructing the jury on
the court’s own initiative that battery (§ 242) is a lesser offense necessarily
included within the crime of lewd conduct with a child. The Court of Appeal
rejected that argument, as does this court’s majority, which disapproves a contrary
holding by the Court of Appeal in People v. Thomas (2007) 146 Cal.App.4th
1278, 1291-1293. I disagree with the majority, for the reasons given below.
                                           II
         If “ ‘a crime cannot be committed without also necessarily committing a
lesser offense, the latter is a lesser included offense within the former.’ ” (People
v. Milward (2011) 52 Cal.4th 580, 585; see also People v. Birks (1998) 19 Cal.4th
108, 117.) The question here is: Can a defendant engage in lewd conduct with a
child younger than 14 years without also perpetrating the lesser offense of battery?
My answer is “no.”

                                            2
       Battery is statutorily defined as “any willful and unlawful use of force or
violence upon the person of another.” (§ 242.) Thus, the crime of battery has two
elements: (1) a use of force or violence that is (2) willful and unlawful. The first
element is satisfied by any touching. (People v. Rocha (1971) 3 Cal.3d 893, 899,
fn. 12.) The second element of battery, willfulness and unlawfulness, is satisfied
by any touching that is harmful or offensive. (People v. Pinholster (1992) 1
Cal.4th 865, 961.)
       Lewd conduct on a child has three elements: (1) a touching (2) of a child
younger than 14 years (3) done with lewd intent. (§ 288, subd. (a).) Thus, the
crime of lewd conduct requires a touching (battery’s first element) done with lewd
intent. Lewd intent is the desire to “arous[e], appeal[] to, or gratify[] the lust,
passions, or sexual desires of [the molester] or the child . . . .” (Ibid.) Touching a
child with lewd intent is always harmful or offensive (battery’s second element).
“[Y]oung victims suffer profound harm whenever they are perceived and used as
objects of sexual desire.” (People v. Martinez (1995) 11 Cal.4th 434, 444; see also
J. C. Penney Casualty Ins. Co. v. M. K. (1991) 52 Cal.3d 1009, 1026 [“Some acts
are so inherently harmful that the intent to commit the act and the intent to harm
are one and the same. . . . Child molestation is not the kind of act that results in
emotional and psychological harm only occasionally.”].) Therefore, one who
commits lewd conduct on a child necessarily commits the lesser offense of battery.
       The majority has a contrary view, based on a novel theory. The opinion’s
cursory analysis lacks clarity, but it appears to say the following.
       Battery, according to the majority, can be divided into two categories:
(1) battery committed by a harmful or offensive touching with lewd intent, and
(2) battery committed by a harmful or offensive touching without lewd intent.
According to the majority, if a defendant is charged with lewd conduct and the
evidence shows battery with lewd intent (the first category), the trial court need

                                           3
not instruct on the lesser offense of battery because there is no possibility that the
defendant is guilty of battery but not lewd conduct. But, the majority says, if a
defendant is charged with nonlewd conduct and the facts show a touching without
lewd intent (the second category of battery), then the nonlewd harmful or
offensive touching is a “distinct requirement” that “would not be included within
the elements of lewd conduct.” (Maj. opn., ante, at p. 5.) Therefore, the majority
concludes, neither category of battery is a lesser offense necessarily included
within the crime of lewd conduct with a child. My criticism is twofold.
       First, as noted earlier, in deciding whether a crime is a lesser offense
necessarily included within another, the inquiry is whether the greater offense can
be committed without also committing the lesser crime. (People v. Sanders (2012)
55 Cal.4th 731, 737; People v. Birks, supra, 19 Cal.4th at p. 117; People
v. Pendleton (1979) 25 Cal.3d 371, 382; People v. Marshall (1957) 48 Cal.2d 394,
398; People v. Greer (1947) 30 Cal.2d 589, 596.) That test was articulated by this
court more than 65 years ago. Today, the majority devises a new test to reach its
result. As part of this two-category test, described in the preceding paragraph, the
majority concludes that in certain specified circumstances the trial court need not
instruct on battery as a lesser included offense of lewd conduct (maj. opn., ante, at
p. 5) and it holds, on that basis, that battery is not a lesser included offense of lewd
conduct (maj. opn., ante, at p. 6). Thus, the majority confuses the standard for
determining whether a trial court should instruct on a lesser included offense (see
People v. Medina (2007) 41 Cal.4th 685, 700) with the standard for determining
whether a crime is a lesser included offense. Does the new test replace the
traditional test? If so, why? The majority offers no answers.
       Second, the majority’s two-category test does not adequately address the
possibility of conflicting evidence on whether a defendant’s conduct falls within
one or the other category. For instance, what if the evidence at trial shows that a

                                           4
defendant committed an offensive touching of a child (a battery), but there is
conflicting evidence on whether the touching was done with lewd intent? In this
situation, the jury should not be deprived of its right to decide whether the
defendant is guilty only of battery or of lewd conduct with a child as well. But
under the majority’s test, the jury does not get to make this decision. If, as the
majority says, battery is not a lesser included offense of lewd conduct with a child,
the jury is given only two options: The jury can either convict the defendant of the
charged crime of lewd conduct with a child, or it can acquit the defendant. This
defeats the purpose for requiring instructions on lesser included offenses. As this
court has explained: “Truth may lie neither with the defendant’s protestations of
innocence nor with the prosecution’s assertion that the defendant is guilty of the
offense charged, but at a point between these two extremes . . . . A trial court’s
failure to inform the jury of its option to find the defendant guilty of the lesser
offense would impair the jury’s truth-ascertainment function.” (People v. Barton
(1995) 12 Cal.4th 186, 196.)
       The majority’s response: When the evidence is “ambiguous enough that a
jury might not find [lewd] intent, . . . [t]he prosecution would have discretion to
charge both” battery and lewd conduct. (Maj. opn., ante, at p. 5.) But that is not a
tactical decision for the prosecution to make. When, as here, a charged offense
cannot be committed without also committing another, less serious crime, and the
evidence is ambiguous as to which crime was committed, the jury should not be
denied the opportunity to decide whether the defendant committed the more
serious crime or only the lesser offense. As this court has observed, “[o]ur courts
are not gambling halls but forums for the discovery of truth.” (People v. St.
Martin (1970) 1 Cal.3d 524, 533.)
       Whether here the trial court, on its own initiative, was required to instruct
the jury on the lesser offense of battery is discussed below.

                                           5
                                           III
         A trial court must instruct on a lesser included offense only when
reasonable jurors could conclude that the defendant committed only the lesser but
not the greater offense. (People v. Medina, supra, 41 Cal.4th at p. 700.) Here, the
prosecution relied on three acts to prove the lewd conduct charge against
defendant: rubbing 10-year-old Jane Doe’s vaginal area, rubbing her stomach, and
kissing her on the lips while inserting his tongue into her mouth. As I explain,
those acts would not have provided a reasonable basis for the jury to conclude that
defendant committed only battery, and not the greater offense of lewd conduct
with a child.
         As to rubbing Jane’s vaginal area, the only issue at trial was whether (as
Jane testified) defendant did so, or whether (as defendant told the police) he did
not — if defendant did, he indisputably acted with lewd intent, because there was
no evidence that he had a nonsexual reason to touch Jane’s vaginal area. Thus, no
reasonable juror could have concluded that rubbing Jane’s vaginal area constituted
the lesser offense of battery and not the greater offense of lewd conduct with a
child.
         As to rubbing Jane’s stomach, if the jury determined that defendant did so
with the requisite lewd intent, he would be guilty of both the greater offense of
lewd conduct and the lesser offense of battery. But if the jury found that
defendant lacked such intent, he would be guilty of neither lewd conduct (because
he lacked lewd intent) nor of battery (because there was no evidence that rubbing
Jane’s stomach without lewd intent was either harmful or offensive).
         As to the kissing, if the jury concluded that, as Jane had testified, defendant
put his tongue in her mouth while kissing her, the jury would necessarily have
found that defendant acted with the requisite lewd intent when he did this act and
was thus guilty of the charged crime of lewd conduct with a child. This is because

                                            6
sticking one’s tongue in the mouth of the person being kissed is so inherently
sexual in nature that no reasonable jury would conclude that defendant lacked
lewd intent if he did that act. But if the jury concluded that, as defendant had told
the police, Jane kissed him while he was licking soda off his lips and he did not
put his tongue in Jane’s mouth, then no reasonable jury could have found that
defendant touched Jane in a harmful or offensive manner, which is required for
battery. Under that version of events, defendant was not guilty of either lewd
conduct or battery.
       Thus, as to each of the three alleged acts on which the prosecution relied,
the jury could have found defendant guilty of the charged crime of lewd conduct,
or it could have found defendant not guilty of either lewd conduct or battery, but it
could not have found that defendant committed only battery but not lewd conduct.
The trial court therefore was not required to instruct the jury, on the court’s own
initiative, on the lesser offense of battery.


                                                  KENNARD, J.
I CONCUR:
WERDEGAR, J.




                                            7
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Shockley
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 190 Cal.App.4th 896
Rehearing Granted

__________________________________________________________________________________

Opinion No. S189462
Date Filed: December 26, 2013
__________________________________________________________________________________

Court: Superior
County: Stanislaus
Judge: Thomas D. Zeff

__________________________________________________________________________________

Counsel:

Gregory W. Brown, under appointment by the Supreme Court, for Defendant and Appellant.

Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant
Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lloyd G. Carter,
Janet Neeley and Leanne LeMon, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Gregory W. Brown
2280 Grass Valley Highway #342
Auburn, CA 95603
(530) 401-5554

Leanne LeMon
Deputy Attorney General
2550 Mariposa Mall, Room 5090
Fresno, CA 93721
(559) 477-1674
