People v. Littleton CA3

Filed 7/22/16 P. v. Littleton CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Shasta) ----

THE PEOPLE,

Plaintiff and Respondent, C078903

v. (Super. Ct. No. 12F1497)

RAY ERNEST LITTLETON,

Defendant and Appellant.

A jury found defendant Ray Ernest Littleton guilty of one count of oral copulation with a child 10 years of age or younger (Pen. Code, § 288.7, subd. (b))1 and five counts of lewd or lascivious acts upon a child under the age of 14 (§ 288, subd. (a)). The trial court sentenced defendant to serve a total prison term of 31 years to life, consisting of an indeterminate term of 15 years to life for the oral copulation offense plus a determinate

1 Undesignated statutory references are to the Penal Code.

1

term of 16 years for the lewd or lascivious acts offenses. On appeal, defendant contends the trial court erred by failing to instruct the jury on the lesser included offense of attempted oral copulation with a child 10 years of age or younger. We conclude the trial court did not err because the offense of attempted oral copulation is not a lesser included offense of oral copulation. We affirm the judgment. DISCUSSION2 Defendant did not request, and the trial court did not give, a jury instruction on attempted oral copulation with a child 10 years of age or younger. However, defendant now contends the trial court had a sua sponte obligation to instruct the jury on this offense because it is a lesser included offense of oral copulation with a child 10 years of age or younger. We reject defendant’s contention. The elements of oral copulation with a child 10 years of age or younger (§ 288.7, subd. (b)) are: (1) The defendant engaged in an act of oral copulation with the victim; (2) when the defendant did so, the victim was 10 years of age or younger; and (3) at the time of the act, the defendant was at least 18 years old. (CALCRIM No. 1128.) Oral copulation is defined as any contact, no matter how slight, between the mouth of one person and the sexual organ or anus of another. Penetration of the mouth is not required. (People v. Dement (2011) 53 Cal.4th 1, 41-42.) Oral copulation is a general intent crime. (People v. Warner (2006) 39 Cal.4th 548, 557-558.) A trial court has a sua sponte duty to instruct on all lesser included offenses supported by substantial evidence. The duty applies whenever there is evidence in the record from which a reasonable jury could conclude the defendant is guilty of the lesser,