People v. Moore CA2/6

Filed 11/27/13 P. v. Moore CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. B247649 (Super. Ct. No. MA054317-01) Plaintiff and Respondent, (Los Angeles County)

v.

CHARLES ELLIE MOORE,

Defendant and Appellant.

Charles Ellie Moore appeals his conviction, by jury, of five counts of committing a lewd act upon a child under 14 years of age. (Pen. Code, § 288, subd. (a).)1 The trial court sentenced appellant to a term of 75 years to life in state prison. Appellant contends the trial court erred when it refused to instruct the jury on battery as a lesser included offense of lewd acts. The question of whether battery qualifies as a lesser included offense of lewd acts is currently pending before our Supreme Court in People v. Shockley, review granted March 16, 2011, S189462. This appeal does not, however, depend on the resolution of that issue. Because there was no substantial evidence appellant committed batteries rather than lewd acts, the trial court had no obligation to instruct on battery, regardless of whether it qualifies as a lesser included offense of lewd acts.

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

Facts The victims here are S. M., A. S., Megan B. and Cara S. S. and A. are appellant's granddaughters. Megan and Cara were students at a private school where appellant worked as a math and computer science teacher. Appellant molested S. in 2011, when she was six years old. He molested A. in about 2002, when she was 11 or 12 years old. The crimes against Megan and Cara occurred between 2001 and 2002, when they were in the sixth, seventh and eighth grades. S. testified that she was watching television and reading books with appellant early one morning when he put his hand under her nightgown and underwear and touched her "private." When she told him to stop, appellant said, "Okay," but he touched her again. Appellant kept touching S. until she told him to stop a third time. He said that what happened had been an accident. As soon as S.'s father, Vincent, got home, S. told him that appellant had touched her "pee-pee." Vincent called S.'s mother, Jennifer, who was at work. Jennifer came home and made a video recording of S. describing the incident.2 Appellant and his wife, Jennifer's mother, had been staying in their mobile home at Vincent and Jennifer's house. Vincent and Jennifer asked them to leave and they did. S.'s parents reported the incident to police about five days later, after discussing their options with their pastor, a counselor and some friends who are police officers. While investigating the incident, Los Angeles Police Detective Susan Velasquez discovered that appellant had committed unreported lewd acts on the other three girls. A., who was 21 at the time of appellant's trial, testified that appellant touched her vagina one time, while they were having a "tickle fight." They were alone in the house at the time. A. told her mother, appellant's daughter Margo, about the incident as soon as Margo got home. Appellant told Margo that A. was blowing everything out of proportion and that any touching had been an accident.