Filed 7/15/14 P. v. Sandoval CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D063815

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCS246570)

JOE SANDOVAL,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Ana L.

Espana, Judge. Affirmed.



         Kessler & Seecof and Daniel J. Kessler, under appointment by the Court of

Appeal, for Defendant and Appellant.

         Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

Quisteen Shum and Peter Quon, Jr., Deputy Attorneys General, for Plaintiff and

Respondent.
                                    INTRODUCTION

       A jury found Joe Sandoval guilty of 12 counts of committing lewd or lascivious

acts upon two children under 14 years of age (counts 1-3 as to victim C.R. and counts 4-

12 as to victim L.G.)1 under Penal Code section 288, subdivision (a).2 The jury found

true special allegations Sandoval was convicted in this case of committing lewd or

lascivious acts against more than one victim. (§ 667.61, subds. (b), (c) & (e).) It also

found true special allegations of substantial sexual conduct with a child under 14 years of

age. (§ 1203.066, subd. (a)(8).) He was sentenced to an aggregate term of 30 years to

life based on two consecutive 15-years-to-life terms for two counts and concurrent 15-

years-to-life terms for the remaining counts.

       Sandoval contends on appeal the court erred by (1) by failing to instruct on battery

as a lesser included offense of a lewd act upon a child and (2) declining to strike the

testimony of Brenda G. (the mother) about the victims contracting urinary tract infections

during the time Sandoval lived with them. Finding no merit in either contention, we

affirm the judgment.




1      To protect the identities of the minors, we use initials. We intend no disrespect.

2      All further statutory references are to the Penal Code.

                                                2
                  FACTUAL AND PROCEDURAL BACKGROUND

A.     Prosecution Evidence

       Sandoval began a relationship with the mother of C.R. and L.G. in approximately

2003 or 2004. About a year into their relationship, the mother and Sandoval became

engaged and began living together. Their relationship ended in approximately 2006.

       When they were living together in a Chula Vista apartment, the mother worked a

shift from 3:00 p.m. to 11:30 p.m. Sandoval watched C.R. (then age six) and L.G. (then

age four or five) in the evenings while their mother worked. The mother thought

Sandoval's relationship with her girls was good. They called him "Dad."

       C.R. testified Sandoval molested her when she was six or seven. He touched her

vagina and her buttocks with his hands. He would do this in the room she shared with

her sister or in her mother's room while her mother was working. He would touch her

vagina under her clothes. She felt angry and sad because she knew he should not touch

her this way.

       Sandoval would also smack C.R.'s buttocks when she would walk by him. C.R.

felt sad when he would smack her buttocks because she did not think she did anything

wrong.

       Sandoval kissed C.R. on the lips in a way that made her feel weird because most

of her family members kissed her on the cheek. He would do this behind closed doors

when they were alone. She did not know exactly how many times these things happened,

but it was more than once.



                                           3
       C.R. did not tell anyone because she was embarrassed and she was scared

Sandoval would hurt her family. She did not want to tell her mother because she was

afraid her mother would not like her anymore.

       L.G. testified Sandoval would take C.R. behind the door when their mother was at

work, but she did not know what happened. Then Sandoval would take L.G., then age

four or five, in the room and lock the door. He touched L.G.'s vagina with his hand.

Although she denied his fingers would go inside, she testified it hurt. Sandoval would

kiss L.G. on the lips like an adult kiss, which made her feel horrible because she knew it

was wrong. He also touched her anus with his finger. It would hurt because he had a

ring on his finger.

       During a forensic interview conducted with a social worker at Children's Hospital

after the initial disclosure in 2011, L.G. described what Sandoval would do to her and

C.R. using the Spanish word "sexo." She said Sandoval would have "sexo" with her and

"touch parts that were not supposed to be touched." L.G. reported her underwear would

become wet when Sandoval got in the bed. She believed the same thing happened to her

sister because she saw C.R.'s wet underwear in the laundry.

       L.G. told a social worker the underwear would get wet because Sandoval put his

"lower" or his "pee-pee" part into her "pee-pee" part. She did not recall seeing his

"lower" or "pee-pee" part, but said it was hairy. At trial, L.G. recalled saying this to the

social worker, but then said she did not know if he touched her body with his penis.




                                              4
       Sandoval told L.G. to lick his finger like a lollipop. Sandoval also touched her

shoulder and her chest under her clothes. L.G. did not tell anyone because she was

scared of Sandoval.

       L.G. first told her mother about the incidents in 2011, when her mother was

preparing to marry her current husband. L.G. (then nine years old) said Sandoval used to

give her and C.R. kisses. When the mother asked if they were father-daughter type of

kisses, L.G. acted nervous and called C.R. to the room. L.G. said they were like

mommy-daddy kisses and indicated by opening her mouth. C.R. (then 11 years old)

initially denied knowing what L.G. was talking about, but turned flush red as though she

was embarrassed. When the mother asked if anything else happened, L.G. said he

touched them. C.R. started to cry. Both girls reported Sandoval touched them in parts he

was not supposed to touch them. They then went to the Chula Vista police department to

report the incidents.

       The girls did not tell their mother earlier because they were scared. C.R. testified

she and L.G. did not talk about it before L.G. disclosed to their mother. C.R. denied

knowing what happened to L.G. C.R. never told L.G. specifically what happened to her.

When they told their mother, C.R. felt ashamed, embarrassed and scared for the safety of

her family.

       Looking back, the mother recalled L.G. had night sweats while they were living

with Sandoval in Chula Vista. Many times, the girls would not want their mother to go to

work or would ask her to come home early. After the mother and Sandoval broke up, the

girls seemed concerned they would get back together.

                                             5
       They also had urinary tract infections and difficulty urinating at night. The mother

thought they were not cleaning themselves correctly. The mother took L.G. to a mobile

clinic, but she was not examined. The nurse thought it was from not wiping correctly or

from bubble baths. The mother did not report the urinary tract infections to the police

when they initially reported the incidents because she did not think anything of it, but she

has since learned more about sexual abuse by reading articles on the Internet. No doctor

documented damage to the girls' private areas during annual physical exams.

       A Chula Vista police officer took the initial report on January 30, 2011. C.R.

reported Sandoval touched her on a few occasions. She was timid and not forthcoming

with her answers. She was quiet, gave one-word answers and did not want to look the

officer in the eye. She said Sandoval touched her vaginal and anal areas with his hands

or fingers under her clothing on two or three occasions. He also kissed her hard a few

times. C.R. reported she never told anyone because she was afraid and because Sandoval

told her not to tell anyone.

       L.G. was more talkative with the police officer. She answered questions

thoroughly and intelligently. She reported when Sandoval would watch them at night he

would separate them into different rooms. He would come into the room and rub L.G.'s

vaginal area under her clothing. He also would stick his fingers in her anus. She did not

tell anyone earlier because she was afraid.

B.     Defense Evidence

       Two women, Sandoval's current wife and a former girlfriend, testified they

observed Sandoval around children on many occasions and did not see unusual or

                                              6
inappropriate behavior. Sandoval's teenage cousin testified Sandoval lived with her

family when she was a year old. He never tried to touch her or made her feel

uncomfortable. Another family friend testified she observed Sandoval around her own

children and never felt he was inappropriate. She also testified she saw him with C.R.

and L.G. They seemed happy, not scared or as though he was treating them

inappropriately.

      A neuropsychologist, Dr. Francisco Gomez, testified he conducted a forensic

evaluation at the request of defense counsel to assess whether Sandoval meets the clinical

diagnosis of pedophilia. A pedophilia diagnosis requires a finding of an uncontrollable

urge to have sexual activity with a child under 13 years of age. The urge becomes the

main focus of interest in a person's life. Dr. Gomez interviewed Sandoval, administered a

battery of tests and reviewed criminal reports and the preliminary hearing transcript. He

concluded Sandoval does not meet the clinical criteria for a pedophilia diagnosis. He

also testified, however, this opinion does not mean Sandoval did not commit the charged

offenses.




                                            7
C.     Jury Verdicts and Sentence

       The jury found Sandoval guilty on all 12 counts of lewd acts upon a child (§ 288,

subd. (a)).3 It found true special allegations in all counts of a conviction in this case of

committing an offense against more than one victim (§ 667.61, subds. (b), (c), & (e)).

The jury also found true allegations in counts 3 and counts 8 through 12 of substantial

sexual contact with a child under 14 years of age (§ 1203.066, subd. (a)(8)).

       The court sentenced Sandoval to be committed to an aggregate term of 30 years to

life with credit for time served of 180 days. The court imposed the mandatory term of 15

years to life for count 1 with the special allegations. The court imposed terms of 15 years

to life for counts 2 and 3 to be concurrent with count 1. The court imposed a term of 15

years to life for count 4 with special allegations, to be consecutive to count 1. The court

imposed terms of 15 years to life for the remaining counts to be served concurrently with

count 4.




3      Counts 1 and 2 allege lewd act upon a child for the first and last times between
January 1, 2003, and December 31, 2006, the defendant kissed C.R. on the mouth. Count
3 alleges lewd act upon a child for the first time the defendant touched C.R.'s vagina.

        Counts 4 and 5 allege lewd act upon a child for the first and last times the
defendant kissed L.G. on the mouth. Counts 6 and 7 allege lewd act upon a child for the
first and last times the defendant caused L.G. to put her tongue on his finger. Count 8
alleges lewd act upon a child for the touching of defendant's penis on L.G.'s vagina.
Counts 9 and 10 allege lewd act upon a child for the first and last times the defendant
touched his finger to L.G.'s anal opening. Counts 11 and 12 allege lewd act upon a child
for the first and last times the defendant touched L.G.'s vagina.

                                               8
                                        DISCUSSION

                                                I

                       The Court Had No Duty to Instruct on Battery

       Sandoval's primary contention on appeal is the court failed to sua sponte instruct

the jury on a lesser included offense of battery. We conclude the court had no such duty.

       The trial court has a sua sponte duty to instruct on a lesser offense "necessarily

included" in the charged offense where there is substantial evidence from which a jury

could reasonably find the defendant guilty of only the lesser offense. (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. [Citation.] 'The rule's purpose is . . . to assure, in the interest of

justice, the most accurate possible verdict encompassed by the charge and supported by

the evidence.' [Citation.] 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. Shockley (2013) 58 Cal.4th 400, 403-404 (Shockley).)

       A lesser offense is included in a greater offense "if either (1) the greater offense,

as defined by statute, cannot be committed without also committing the lesser (the

elements test), or (2) the language of the accusatory pleading encompasses all the

elements of the lesser offense (the accusatory pleading test)." (People v. Parson (2008)

44 Cal.4th 332, 349.) Where the charging allegations echo the statutory language, the



                                                9
test is the same whether commission of the greater offense necessarily requires

commission of the lesser offense. (People v. Wolcott (1983) 34 Cal.3d 92, 99.)

       While this appeal was pending, the Supreme Court held "battery is not a lesser

included offense of lewd conduct." (Shockley, supra, 58 Cal.4th at p. 406.) The Supreme

Court explained 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." (Id. at p. 405.) In other words,

such a battery "is not a lesser and included offense of lewd conduct but is essentially the

identical offense." (Ibid.) Therefore, "if only lewd conduct is charged, the trial court has

no duty to instruct on battery as a lesser included offense." (Shockley, at p. 406.)

       Sandoval recognizes we are bound to follow the decision of the Supreme Court.

(Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Nevertheless,

Sandoval argues we should analyze the issue under the accusatory pleading standard

rather than under the elements standard, which was the focus of the Supreme Court in

Shockley because the information in that case tracked the language of section 288,

subdivision (a) without additional factual allegations. (Shockley, supra, 58 Cal.4th at

p. 404.)

       "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.) Sandoval argues

the accusatory pleading standard is appropriate here because the information not only



                                             10
tracks the language of section 288, subdivision (a), but also includes specific allegations

of the alleged wrongful acts for each count.

       Sandoval specifically draws our attention to counts 9 and 10, which identify the

lewd conduct as "finger to anal opening."4 He argues "[g]uilt of battery for committing

these specifically alleged acts would not necessarily have been predicated on whether the

acts were done with lewd intent" because the "alleged act of inserting his finger into the

victim's anus was a harmful or offensive act in and of itself, and did not simply become

harmful or offensive because appellant allegedly did so with lewd intent." On this basis,

Sandoval argues the trial court erred when it did not provide the jury with instructions to

allow the jury to find him guilty of only simple battery. We are not persuaded.

       The information in this case does not allege specific facts or actions beyond the

elements of the charged offense of lewd act upon a child. After reciting the statutory

language, the information merely identifies where or how the offensive touching occurred

for each child as charged for each count.

       Counts 9 and 10 merely specify the lewd conduct occurred by "finger to anal

opening." Contrary to Sandoval's assertion, the information does not allege the conduct

included insertion of a finger into the anal opening. The words "finger to anal opening"


4      Count 9 alleges in pertinent part: "On or about and between January 1, 2003 and
December 31, 2006, [Sandoval] did willfully and lewdly commit a lewd and lascivious
act upon and with the body and any part and member thereof of [L.G.] a child under the
age of fourteen years, with the intent of arousing, appealing to and gratifying the lust,
passions and sexual desires of the said defendant and the said child (to wit: First time:
finger to anal opening), in violation of [section 288, subdivision (a)]." Count 10 is
identical with the exception of alleging the last time the touching occurred in this time
period.
                                               11
could identify an innocent non-harmful touching, such as what could occur in the act of

bathing a child or changing a diaper. Therefore, other than the allegations the touching

occurred with lewd intent, the factual descriptions in the accusatory pleading do not

actually allege the elements necessary to support a charge of battery based upon "willful

and unlawful use of force or violence upon the person of another." (§ 242) In other

words, as pled, the only way the accusatory pleading here could constitute battery is if the

allegation of lewd intent supplies the element of unlawful force.

       As in Shockley, the "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." (Shockley, supra, 58 Cal.4th

at p. 405.) The Supreme Court observed a battery can be committed without committing

a lewd act if a child is touched "nonconsensually and harmfully but without lewd intent."

(Ibid.) However, the court explained, "[i]n 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." (Ibid.)

       As the Supreme Court stated, the prosecution may choose to charge both lewd

conduct and battery if the evidence supports both charges. (Shockley, supra, 58 Cal.4th

at pp. 405-406.) But if only lewd conduct is charged, a defendant may assert a complete

defense to this charge by convincing the jury there was no lewd intent. "Charging only

lewd conduct would not provide the defendant with notice of the need to defend

additionally against a battery charged based on an offensive touching not included within

the elements of lewd conduct." (Id. at p. 406.)

                                             12
       Accordingly, the Supreme Court decision in Shockley, supra, 58 Cal.4th 400

compels the conclusion the trial court had no duty to give a lesser included offense

instruction. Under the accusatory pleading standard, the pleading does not encompass the

elements of battery alone.

                                              II

            The Court Did Not Abuse Its Discretion in Denying the Request to
                 Strike Testimony Regarding Urinary Tract Infections

       Sandoval's second contention is the court erred in denying the motion to strike the

mother's testimony about the minors contracting urinary tract infections. Sandoval

argues this testimony was irrelevant and prejudicial. We disagree and conclude the trial

court did not abuse its discretion.

       Trial court rulings on the admission and exclusion of evidence, including motions

to strike testimony, are reviewed for abuse of discretion. (People v. Thompson (2010) 49

Cal.4th 79, 128, 130.) We will not disturb such rulings on appeal unless the appellant

shows the trial court exercised its discretion in an arbitrary, capricious, or patently absurd

manner resulting in a manifest miscarriage of justice. (People v. Rodriguez (1999) 20

Cal.4th 1, 9-10.)

       In this case, the mother testified she now recognizes some things were not right or

were "off" with her daughters during the period of time they lived with Sandoval, even

though she did not recognize it at the time. When asked to explain, the mother identified

a number of issues, one of which was both girls had urinary tract infections and difficulty

urinating at night. The mother testified she took the girls to a clinic where a nurse said


                                             13
the infections could be caused by improper cleaning or bubble baths. The mother did not

follow-up. No doctor discovered damage to the minors' private areas during annual

physical examinations. The mother admitted she did not report the infections to the

police because she did not think anything of it at first. Subsequently, the mother has done

Internet research about victims of sexual abuse.

       When defense counsel objected and moved to strike the testimony, the court

allowed the testimony to stand and observed the infections apparently became relevant to

the mother after doing some research. In a later discussion about proposed rebuttal

evidence, the court clarified the testimony about urinary tract infections was in response

to a question about whether the mother observed anything different, in hindsight, about

the girls during the relevant time period. The court stated, "[the mother] talked about

some behavior changes, acting out, and then she talked about the urinary tract infections.

So she, in her own mind is connected to what happened. [¶] And she also testified, I

believe, that she knows there are other causes she talked about. She thought maybe she

wasn't keeping them clean enough. And it all goes to weight, in her mind, in response to

a question. [¶] I felt that was fine. It was relevant. It was, again, her perspective of

what was going on with her own children now she has heard what the kids have to say."

       Relevant evidence has some "tendency in reason to prove or disprove any disputed

fact that is of consequence to the determination of the action." (Evid. Code, § 210.) The

trial court did not abuse its discretion in admitting this as relevant evidence. The mother

identified these infections, among other things, as something unusual about the minors



                                             14
during the relevant time period. It is not unreasonable for the superior court to have

concluded the testimony had some tendency in reason to prove the disputed material fact.

       We cannot conclude the admission of the mother's brief comment about urinary

tract infections was prejudicial to such an extent a different verdict was reasonably

probable without the evidence. (People v. Watson (1956) 46 Cal.2d 818, 836.) The

defense cross-examined the mother about her testimony. Defense counsel pointed out

she did not initially report these infections to the police and there are no medical records

corroborating the infections or damage to the genitals of the minors. The mother

acknowledged the possible relevance of these infections only occurred to her after she

read Internet materials about sexual abuse. She also acknowledged factors other than

sexual contact can cause urinary tract infections. As the trial court correctly noted, this

goes to the weight of the evidence.

       In addition, the court permitted the defense to submit "rebuttal" testimony about

the size of Sandoval's penis. The defense argued this evidence was necessary to counter

the testimony about urinary tract infections and because one would expect damage if a

five-year-old girl is penetrated with an average adult male penis, but there are no medical

records in this case even though the mother testified they went to the doctor. Both

Sandoval's current wife and his ex-girlfriend were allowed to testify they were intimate

with Sandoval and considered him to have an average-sized penis. The defense argued to

the jury about the absence of medical records and the damage one would expect if an

average adult male penis penetrated a five-year-old's vagina.



                                             15
       Sandoval argues the evidence was prejudicial because it bolstered the testimony of

both girls, which he characterizes as "not definitive." We cannot agree. The record

shows the girls were reluctant to testify at trial. L.G., in particular, was uncomfortable

testifying in front of the jury, Sandoval, and his family. However, although there were

some minor inconsistencies, the descriptions both girls gave of the lewd acts were

generally consistent from the time they first reported the incidents in January 2011

through trial more than a year later. Under these circumstances, we conclude there was

no prejudicial abuse of discretion.

                                      DISPOSITION

       The judgment is affirmed.



                                                                        MCCONNELL, P. J.

WE CONCUR:


NARES, J.


O'ROURKE, J.




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