In People v. Gray (2011) 199 Cal.App.4th 167 [131
Cal.Rptr.3d 674] it was decided every lewd act is also a battery, therefore the
court has a sua sponte duty to instruct on battery (Pen. Code, sec. 242), as a
lesser included offense of a lewd and lascivious act (Pen. Code, sec. 288,
subd. (a)). This form of battery would likely not be able to be expunged. Battery
encompasses the slightest touching, with a general intent, so long as it is
harmful or offensive. Any touching of a child for the purpose of sexual arousal
would also be a touching that is harmful or offensive and constitute a battery.
In this case, the defendant's touching of the victim met both definitions and
was such that no reasonable jury would conclude the touching was merely
offensive. The instructional error was not prejudicial in this case and therefore
it was harmless error.
The imprecise testimony from the five-year-old witness as to
the date of the offense rendered a sentence under the One Strike law a
violation of ex post facto prohibition. Penal Code section 667.61, the One
Strike law, went into effect on November 30, 1994. The information alleged
certain counts occurred between January 1, 1994 and May 1, 1996. The increased
punishment could not be applied to those offenses because the evidence at trial
did not prove the offenses were committed after the effective date. The child
gave inconsistent testimony and admitted she wasn't really sure about dates.
The jury was not asked to render verdicts which would establish the date of the
offenses. Four counts were remanded for resentencing without the application of
section 667.61.
Continuous sexual abuse, a violation of Penal Code section
288.5, could not be sentenced under the One Strike law when the offenses occurred
long before section 288.5 was added to the list of offenses subject to the
greater punishment. Section 288.5 was added to section 667.61 and qualified for
the greater sentence effective September 20, 2006. Sentences for continuous
abuse which ended in 1995, as to one count, and 1998 as to another count, had
to be reversed and remanded for resentencing without application of section
667.61.
The defendant's testimony about DNA evidence was properly
excluded under Evidence Code section 352. The defendant's proffered testimony
was not hearsay but was offered to demonstrate the defendant's consciousness of
innocence in agreeing to cooperate and to provide DNA to the investigator. The
trial court had discretion to find the slight probative value was outweighed by
the risk of confusing issues. The defense was not precluded from presenting a
consciousness of innocence defense through other admissible testimony.
© 2011 Darren Chaker. All Rights Reserved.
