of an unconscious person, rape of an unconscious person, and sexual penetration of an
unconscious person. Given that battery requires only an offensive touching, it is
impossible to commit any of these crimes without also committing battery against that
person. We reject a Court of Appeal case that held otherwise.
Because of the evidence presented, we conclude that the trial court was required to
instruct the jury on battery as a lesser included offense as to one of Miranda’s crimes,
oral copulation of an unconscious person. We reverse that conviction and vacate his
sentence, as there was a reasonable probability that, absent the error, the jury would have
convicted him of only battery if instructed as to that option. As to Miranda’s other two
crimes, the notion that he committed battery but not the greater crimes lacked a
grounding in the evidence, so the trial court had no duty to instruct on battery as a lesser
included offense. In addition, we reject Miranda’s other challenges to his convictions, 1 including his equal protection challenge.
I. FACTUAL AND PROCEDURAL HISTORY
We must in this appeal determine whether the trial court had a duty to instruct on a
lesser included offense, which requires us to consider the evidence in the light most
favorable to the defendant. (People v. Millbrook (2014) 222 Cal.App.4th 1122, 1137.)
1 Undesignated statutory references are to the Penal Code.
2
We recount the facts below with this standard in mind. Additionally, we focus only on
the circumstances surrounding the testimony of S.C., who was the victim of the crimes at
issue in this appeal, though Miranda also was convicted of sex crimes against a second
victim, A.C. Moreover, we generally focus only on those crimes committed against S.C.
that are challenged in this appeal.
Born in 1998, Miranda moved into a family friend’s household in his senior year
of high school. Miranda’s mother was going through a “hard time,” and she asked her
friend if Miranda could stay with them. The friend agreed; took Miranda in to live with
her, her husband, and their five children; and “loved him like a son.” A.C., the second
victim not at issue here, was one of the friend’s children.
S.C. is a cousin of the household’s children and often spent weekends at their
house. S.C. was 16 years old when the crimes took place.
At trial, S.C. described a 2017 incident where Miranda touched her vagina while
she was “falling asleep”:
“Q. What happens?
“A. I was falling asleep, and then I just felt somebody—well, I felt him touch me.
“Q. Okay.
“A. On like my thigh and then go up more.
“Q. And how much more did he go up?
“A. To my private area.
3
“Q. Now, I know you called it a private area. Do you know the adult names for
the private area?
“A. My vagina.
“Q. Did he actually touch your vagina?
“A. Yes.
“Q. Did he touch you over the clothes or under the clothes?
“A. Both.
“Q. Okay. What were you doing as this is happening to you?
“A. Nothing.
“Q. Okay.
“A. I didn’t move. I was too scared to do anything.
“Q. Did you realize what was happening to you right when you opened your eyes,
or did it take you a little?
“A. Took me a while to realize.”
Miranda then forced S.C.’s mouth open with his hands and put his penis inside.
S.C. stated that she was “awake kind of when [Miranda] was touching me, but I wasn’t
fully alert, like, what was actually happening to me.” She was “fully awake,” however,
by the time Miranda placed his penis inside her mouth. The first portion of this incident,
as well as S.C.’s testimony that Miranda had touched her vagina on a few other
occasions, formed the basis for Miranda’s charge of sexual penetration of an unconscious
person.
4
On September 8, 2017, S.C. was sleeping when she “woke up” because Miranda 2 was licking her “butt.” S.C. stated that she first felt Miranda pull down her pants and
underwear while she was “half asleep” and that she “didn’t know what was going on until
[she] actually felt something lick” her. She stated: “[I felt a] tug like somebody tugging
at my bottoms, but I didn’t really take much notice because I was too tired, but then when
he actually licked me, that’s what actually woke me up completely.” S.C. stated that
Miranda had licked her “butt area—on top of it” and that it was “not [her] anus, but [her]
butt.”
In a forensic interview that was played at trial and admitted into evidence, S.C.
had stated that Miranda did more to her on that occasion. In that interview, she had 3 stated that Miranda proceeded to lick her vagina. When asked what part of the vagina
Miranda licked, S.C. had said, “I’m not sure, because I was, like, half asleep when I felt
something down there.” But at trial, when asked, “Do you remember if [Miranda] only
licked your butt, or did he lick somewhere else as well,” she replied, “He just licked my
butt.” Later she was asked again, “Was it just the butt, or did it go on,” and she replied,
“Just my butt.” Eventually Miranda stopped, pulled S.C.’s underwear back up, left, and
2 The date was variously cited at trial as September 8 and September 9. 3 As we understand it, S.C. used the word “vagina” colloquially to refer to the vulva, the external female sexual organs. (See People v. Thomas (2017) 15 Cal.App.5th 1063, 1067, fn. 3.)
5
S.C. “fell back asleep.” This incident formed the basis for the oral copulation of an 4 unconscious person charge.
Shortly thereafter on that same night, S.C. woke up again and realized Miranda
was on top of her and inserting his penis into her vagina. As she said during her forensic
interview:
“[S.C.]: And then, um, like I said, I fell back asleep and then when I woke up
again, he was, like, feeling inside of me.
“[Interviewer]: What was he go—what was going inside you?
“[S.C.]: His pe— his penis. I’m sorry [. . . .]
“[Interviewer]: Okay. That’s okay. So his penis was going where inside you?
“[S.C.]: Um, in my vagina.
“[Interviewer]: In your vagina?
“[S.C.]: Yeah.”
In describing this incident at trial, S.C. was asked, “Now, that’s when you woke
up, when you felt his weight and his penis into your vagina; is that correct,” to which she
replied, “Yes.” Eventually, Miranda stopped and left the room. This incident formed the 5 basis for Miranda’s charge of rape of an unconscious person.
4 At trial, a criminalist testified that she found traces of what was very likely Miranda’s saliva on the underwear S.C. wore on September 8. 5 S.C. testified that, in a third incident on the same night, Miranda forced her mouth open and inserted his penis into her mouth. This incident formed the basis for Miranda’s charge of forcible oral copulation of a minor 14 years old or older.
6
A few nights later, A.C.’s older sister woke up to Miranda attempting to open her
legs. Miranda said he was looking for a laptop charger. Miranda left, but A.C.’s sister
could not go back to sleep. She woke up S.C. and told her she believed Miranda had
“tried to do something.” S.C. started crying and said that Miranda had done things to her.
A.C.’s sister woke up her parents, who confronted Miranda. Miranda denied
wrongdoing. The parents then woke up A.C., who said that Miranda had been touching
her as well.
Miranda was charged with one count of oral copulation of an unconscious person
(former § 288a, subd. (f); count 1); one count of rape of an unconscious person (§ 261,
subd. (a)(4); count 2); one count of sexual penetration of an unconscious person (§ 289,
subd. (d); count 3); one count of forcible oral copulation of a minor 14 years old or older
(former § 288a, subd. (c)(2)(C); count 4); and nine counts of lewd and lascivious acts on
a child under 14 (§ 288, subd. (a); counts 5 through 13). Counts 1 through 4 related to
S.C., while counts 5 through 13 related to A.C.; only counts 1 through 3 are at issue in
this appeal. Miranda was also alleged to have committed a qualifying sex offense against
more than one victim pursuant to section 667.61, subdivision (e)(4), part of the One
Strike law.
The jury found Miranda guilty on all counts and found the One Strike allegation
true. The trial court sentenced Miranda to a determinate term of 38 years plus a
consecutive indeterminate term of 15 years to life. The trial court also ordered Miranda
to pay a $300 restitution fine (§ 1202.4, subd. (b)), a $390 criminal conviction assessment
7
fee (Gov. Code, § 70373), and a $520 court operations assessment fee (§ 1465.8), in
addition to a $300 parole revocation restitution fine (§ 1202.45) that the trial court
ordered stayed.
II. ANALYSIS
A. Lesser Included Offense
Miranda contends that the jury should have been instructed on battery as a lesser
included offense of counts 1 through 3, i.e., oral copulation of an unconscious person,
rape of an unconscious person, and sexual penetration of an unconscious person. He
additionally contends that the error was prejudicial because there was a reasonable
probability he would have been convicted of only battery absent the error.
The People disagree. Relying on People v. Hernandez (2011) 200 Cal.App.4th
1000 (Hernandez), the People contend that battery is not a lesser included offense of
these offenses. Hernandez held that “battery is not a lesser included offense of rape of an
unconscious person” because battery requires use of force or violence, while “[t]here is
no requirement that [a] defendant use force or violence to accomplish the act of sexual
intercourse.” (Id. at p. 1006.) The People additionally contend that any supposed error is
harmless.
For reasons we explain, we agree with Miranda that battery is a lesser included
offense of oral copulation of an unconscious person, rape of an unconscious person, and
sexual penetration of an unconscious person. We therefore disagree with Hernandez.
8
This by itself does not mean the trial court committed error. “A trial court must
instruct on a lesser included offense ‘only if there is substantial evidence to support a
jury’s determination that the defendant was in fact only guilty of the lesser offense.’”
(People v. Williams (1997) 16 Cal.4th 153, 227.) As to only count 1, oral copulation of
an unconscious person, we agree with Miranda that there was substantial evidence to
support a finding that he committed only battery. We find no substantial evidence to
support a battery instruction as to the other two charges at issue here. The trial court
therefore erred in not instructing the jury on battery only for count 1.
Finally, we find that the error on count 1 was prejudicial because Miranda had a
reasonable probability of obtaining a battery verdict instead of his conviction on that
count.
1. Applicable Law
“‘California law has long provided that even absent a request, and over any party’s
objection, a trial court must instruct a criminal jury on any lesser offense “necessarily
included” in the charged offense, if there is substantial evidence that only the lesser crime
was committed.’” (People v. Smith (2013) 57 Cal.4th 232, 239 (Smith).)
“‘This venerable instructional rule ensures that the jury may consider all
supportable crimes necessarily included within the charge itself, thus encouraging the
most accurate verdict permitted by the pleadings and the evidence.’ [Citation.] ‘[T]he
rule prevents either party, whether by design or inadvertence, from forcing an all-or-
nothing choice between conviction of the stated offense on the one hand, or complete
9
acquittal on the other. Hence, the rule encourages a verdict, within the charge chosen by
the prosecution, that is neither “harsher [n]or more lenient than the evidence merits.”
[Citations.]’ [Citation.] Thus, ‘a trial court errs if it fails to instruct, sua sponte, on all
theories of a lesser included offense which find substantial support in the evidence. On
the other hand, the court is not obliged to instruct on theories that have no such
evidentiary support.’ [Citation.]” (Smith, supra, 57 Cal.4th at pp. 239-240.)
“For purposes of determining a trial court’s instructional duties, . . . ‘a lesser
offense is necessarily included in a greater offense if either the statutory elements of the
greater offense, or the facts actually alleged in the accusatory pleading, include all the
elements of the lesser offense, such that the greater cannot be committed without also
committing the lesser.’” (Smith, supra, 57 Cal.4th at p. 240.) We rely on the statutory
elements test here.
2. Statutory Elements
“A battery is any willful and unlawful use of force or violence upon the person of
another.” (§ 242.) It thus has two stated elements: (1) a use of “force or violence” that is
(2) “willful and unlawful.” (See, e.g., People v. Shockley (2013) 58 Cal.4th 400, 408
(Shockley) (conc. & dis. opn. of Kennard, J.).) As to the first element, “‘[i]t 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.” (Id. at pp. 404-405.) As to the second
10
element, a touching is unlawful if it is “‘harmful or offensive.’” (Shockley, supra, at p.
404.)
The sexual crimes at issue here each involve an act of touching when the victim
was unconscious. Former section 288a, subdivision (f) criminalizes oral copulation when
a “victim is at the time unconscious of the nature of the act” and the perpetrator is aware 6 of the unconsciousness. Section 261, subdivision (a)(4) defines rape to mean sexual
intercourse under the same circumstances, and section 289, subdivision (d) criminalizes
sexual penetration under these circumstances as well.
Each of the above provisions defines the phrase “unconscious of the nature of the
act” to mean that the victim is “incapable of resisting” because the victim meets one of
four conditions, including that the victim “[w]as unconscious or asleep” or “[w]as not
aware, knowing, perceiving, or cognizant that the act occurred.” (Former § 288a, subd.
Any of these sexual crimes also is a battery. Physically, a perpetrator cannot
orally copulate, rape, or sexually penetrate an unconscious person by using something
less severe than “‘“the least touching”’” (Shockley, supra, 58 Cal.4th at p. 404).
Additionally, oral copulation, rape, and sexual penetration of an unconscious person are
all offensive touchings. (Shockley, supra, 58 Cal.4th at p. 404; see also People v.
Pinholster (1992) 1 Cal.4th 865, 961 [“throwing a cup of urine in a person’s face is a
6 Former section 288a was renumbered as section 287 beginning January 1, 2019. (Stats. 2018, ch. 423, § 49.)
11
battery, since ‘[a]ny harmful or offensive touching constitutes an unlawful use of force or
violence’ and thus a battery”], disapproved on other grounds in People v. Williams (2010)
49 Cal.4th 405, 459.)7 Accordingly, battery is a lesser included offense of these crimes
because the greater cannot be committed without also committing the lesser.
Hernandez held otherwise. In comparing battery to rape of an unconscious
person, it stated:
“There is no requirement that the defendant use force or violence to accomplish
the act of sexual intercourse. [Citation.] The act of sexual intercourse with an
unconscious person is itself illegal, regardless of ‘the victim’s “advance consent” or the
perpetrator’s belief that the victim has consented in advance to the prohibited act.’
[Citation.] Thus, an unconscious person could be raped within the meaning of section
261, subdivision (a)(4) without having been subjected to force or violence, or even to a
harmful or offensive touching. As a result, battery is not a lesser included offense of rape
of an unconscious person.” (Hernandez, supra, 200 Cal.App.4th at p. 1006.)
At bottom, Hernandez held that one “could be raped . . . without having been
subjected . . . to a harmful or offensive touching.” (Hernandez, supra, 200 Cal.App.4th
7 Additionally, by virtue of being “incapable of resisting,” consent to the touching must necessarily be absent. (People v. Morales (2013) 212 Cal.App.4th 583, 591 [“Under section 261.6, consent requires that the consenting party ‘act freely and voluntarily and have knowledge of the nature of the act or transaction involved.’ One who is unconscious as defined in section 261, subdivision (a)(4), necessarily does not act freely and voluntarily with knowledge of the nature of the act.”]; People v. Dancy (2002) 102 Cal.App.4th 21, 36 (Dancy) [“a man who intentionally engages in sexual intercourse with a woman he knows to be unconscious is clearly aware that he is wrongfully depriving the woman of her right to withhold her consent to the act at the time of penetration”].)
12
at p. 1006.) Analyzed closely, Hernandez alludes to two possible reasons why a rape of
an unconscious person might not be a battery. First, it claims that the rape of an
unconscious person might involve no force or violence, an element of a battery. Second,
it raises an “advance consent” scenario wherein a person, unconscious during the rape,
has consented to it earlier. Neither of these provides a situation where the rape of an
unconscious person is not also a battery.
Hernandez is literally correct in stating that “[t]here is no requirement that [a]
defendant use force or violence to accomplish the act of sexual intercourse.”
(Hernandez, supra, 200 Cal.App.4th at p. 1006.) That is true when the term “force” is
defined as requiring something greater than, or different from, what is needed to
accomplish the sexual act itself. (E.g., People v. McCann (2019) 41 Cal.App.5th 149,
157.) But in the context of battery, in contrast, the term “force” means only the “slightest
degree of touching.” (In re B.L. (2015) 239 Cal.App.4th 1491, 1495.) “‘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.’” (Shockley, supra, 58 Cal.4th at p. 404.) With
that definition of force, it is not possible to rape a person, whether the victim is conscious
or unconscious, without at least the force (the slight degree of touching) required for a
battery.
Hernandez’s “advance consent” scenario implicates a situation, likely quite rare,
where a person consents in advance to being sexually violated while unconscious. This
13
situation still would be a battery. Whether the consent of the victim can render a
touching not “harmful or offensive” for purposes of battery depends on the nature of the
touching and is defined by law. “[C]onsent of the victim is not generally a defense to
assault or battery, except in a situation involving ordinary physical contact or blows
incident to sports such as football, boxing or wrestling. [Citation.] It is also the rule that
the apparent consent of a person without legal capacity to give consent, such a child or
insane person, is ineffective.” (People v. Samuels (1967) 250 Cal.App.2d 501, 513.)
Advance consent can render medical treatment not a battery, but this is only as
defined by law. (See Cobbs v. Grant (1972) 8 Cal.3d 229, 239-240.) Battery occurs
when a patient has given informed consent to a medical procedure that occurs while the
patient is under anesthetic. In contrast, however, under California law, advance consent
to rape does not constitute valid legal consent, because such an advance decision
eliminates the victim’s ability to withdraw from the sexual activity while it occurs.
(Dancy, supra, 102 Cal.App.4th at pp. 36-37; see People v. Smith (2010) 191
Cal.App.4th 199, 208 [holding sexual battery is committed when victim “is unable to
resist because of unconsciousness or intoxication”].)
Because the law does not recognize an unconscious person’s advance consent to a
rape, making the sexual act a crime, it is a battery to intentionally commit that act even if
there was advance consent. Battery is a general intent crime (People v. Lara (1996) 44
Cal.App.4th 102, 107), which means it requires the intent to do the act involved, not an
intent to cause a resulting harm (e.g., People v. Fontenot (2019) 8 Cal.5th 57, 66). As a
14
general intent crime, a battery does not occur when a person commits the act “based on a
reasonable and honest belief that certain facts and circumstances exist which, if true,
would render the act lawful.” (People v Reed (1996) 53 Cal.App.4th 389, 396; People v.
Rivera (1984) 157 Cal.App.3d 736, 742-743.) Where sex with an unconscious person is
a rape and thus unlawful regardless of consent, it is not reasonable to believe that it is
lawful, so the touching is a battery, just as it is a rape. As well, a minor cannot consent to
a sex act in California, so it is not reasonable to believe that consent renders the sex act
lawful; the act remains both a rape and a battery even if the minor consented.
The law in the medical context likewise defines the circumstances when a
patient’s advance consent to a procedure while unconscious means that a doctor has a
reasonable belief that the procedure is lawful and thus does not commit a battery by
performing it. A doctor commits a battery when deviating from the consent given to
perform a substantially different procedure than the one for which consent was given
(e.g., Burchell v. Faculty Physicians & Surgeons of Loma Linda University School of
Medicine (2020) 54 Cal.App.5th 515, 524), but does not commit a battery if acting
beyond consent due to an emergency, where consent is implied by law (Cobbs v. Grant,
supra, 8 Cal.3d at pp. 243-244). Likewise, the law does not recognize a minor’s consent
to a medical procedure; for a minor, “the authority to consent is transferred to the
patient’s legal guardian or closest available relative.” (Id. at p. 244.)
For these reasons, we conclude that conduct legally defined as rape is inherently
harmful and offensive touching for purposes of battery. Any sexual act upon an
15
unconscious victim is also a battery. We thus hold that battery is a lesser included
offense of the crimes involving sexually touching an unconscious victim. The practical
consequence of this is that a battery jury instruction should be given in a case where a
defendant is charged with committing a sex act upon an unconscious victim when
substantial evidence supports a finding that the defendant touched the victim in a way
other than charged (e.g., in a different body area than that required for the sex crime, or
when the victim is conscious).
3. Substantial Evidence
“A trial court must instruct on a lesser included offense ‘only if there is substantial
evidence to support a jury’s determination that the defendant was in fact only guilty of
the lesser offense.’” (People v. Williams, supra, 16 Cal.4th at p. 227; see also People v.
Breverman (1998) 19 Cal.4th 142, 177 (Breverman).) “This standard requires
instructions on a lesser included offense whenever ‘“a jury composed of reasonable
[persons] could . . . conclude[]”’ that the lesser, but not the greater, offense was
committed. [Citation.] In deciding whether evidence is ‘substantial’ in this context, a
court determines only its bare legal sufficiency, not its weight.” (Breverman, supra, at p.
177.) In doing so, we consider the evidence in the light most favorable to the defendant.
(People v. Millbrook, supra, 222 Cal.App.4th at p. 1137.) Here, we find that such
substantial evidence exists with regard to count 1, oral copulation of an unconscious
person.
16
As noted above, oral copulation of an unconscious person requires that the victim
be “unconscious of the nature of the act.” This means that the victim must be “incapable
of resisting” because he or she “[w]as unconscious or asleep” or “[w]as not aware,
knowing, perceiving, or cognizant that the act occurred,” among others. (Former § 288a,
subd. (f)(1)-(2).) As cases interpreting this language have stated, “[i]t is settled that a
victim need not be totally and physically unconscious.” (People v. Ogunmola (1987) 193
Cal.App.3d 274, 279; see also People v. Pham (2009) 180 Cal.App.4th 919, 928 [“The
unconsciousness requirement does not require proof the victim was totally and physically
unconscious during the acts in question.”]; People v. Howard (1981) 117 Cal.App.3d 53,
55.) “In this context, unconsciousness is related to the issue of consent . . . .” (People v.
Ogunmola, supra, at p. 279.)
S.C.’s testimony regarding her state of consciousness could have led a reasonable
jury to conclude that she was neither asleep, unconscious, nor unaware of what was
happening when Miranda orally copulated her. S.C. stated that, on September 8, Miranda
first pulled down her pants and underwear while she was “half asleep.” Once Miranda
“actually licked” her, however, she was woken up “completely.” As she also stated, she
“didn’t know what was going on until [she] actually felt something lick” her. S.C. did
not tell the forensic interviewer, however, that Miranda had only licked her vagina.
Rather, she stated that Miranda had first licked the “top” of her “butt area” before then
licking her vagina, and the record does not reveal how many moments may have passed
in between. Thus, whether or not she was unconscious or unaware pursuant to former
17
section 288a, subdivision (f)(1) and (f)(2) when Miranda first started licking S.C., the
jury could have found that she was fully awake and aware of what Miranda was doing
once he orally copulated her by licking her vagina. Accordingly, portions of S.C.’s
testimony, when viewed in the light most favorable to Miranda, would support a jury
finding that S.C. was not “unconscious of the nature of the act” of oral copulation.
As to the counts charging rape or sexual penetration of an unconscious person, the
lesser included instruction was not required. There was no ambiguity in the evidence
regarding the incidents giving rise to those charges that would allow a reasonable jury to
find that Miranda committed only battery. This is true even when we consider the
evidence in the light most favorable to Miranda, as we have done in recounting the
factual history.
Accordingly, we conclude the trial court had a sua sponte duty to instruct the jury
on battery as a lesser included offense of oral copulation of an unconscious person, but 8 not of the other charges. It did not give such an instruction. We therefore consider
whether the trial court’s failure to do so was prejudicial.
4. Prejudicial Error
“In a noncapital case, error in failing sua sponte to instruct, or to instruct fully, on
all lesser included offenses and theories thereof which are supported by the evidence
must be reviewed for prejudice exclusively under [People v.] Watson [(1956) 46 Cal.2d
8 The jury was instructed on attempted oral copulation of an unconscious person for count 1, but was not instructed as to battery.
18
818].” (Breverman, supra, 19 Cal.4th at p. 178.) This means that a “conviction of the
charged offense may be reversed . . . only if, ‘after an examination of the entire cause,
including the evidence’ [citation], it appears ‘reasonably probable’ the defendant would
have obtained a more favorable outcome had the error not occurred [citation].” (Ibid.)
Our Supreme Court has “‘“‘“made clear that a ‘probability’ in this context does not mean
more likely than not, but merely a reasonable chance, more than an abstract 9 possibility.”’”’” (People v. Sandoval (2015) 62 Cal.4th 394, 422.)
Although a court views the evidence in the light most favorable to a defendant to
search for substantial evidence in deciding whether a court has a sua sponte duty to
instruct, “[a]ppellate review under Watson . . . takes an entirely different view of the
evidence.” (Breverman, supra, 19 Cal.4th at p. 177.) “Such posttrial review focuses not
on what a reasonable jury could do, but what such a jury is likely to have done in the
absence of the error under consideration. In making that evaluation, an appellate court
may consider, among other things, whether the evidence supporting the existing
judgment is so relatively strong, and the evidence supporting a different outcome is so
comparatively weak, that there is no reasonable probability the error of which the
defendant complains affected the result. Accordingly, a determination that a duty arose
9 We do not address Miranda’s contention that our Supreme Court erred in Breverman by applying the Watson standard to errors regarding lesser included offenses. “Courts exercising inferior jurisdiction must accept the law declared by courts of superior jurisdiction. It is not their function to attempt to overrule decisions of a higher court.” (Auto Equity Sales, Inc. v. Superior Court of Santa Clara County (1962) 57 Cal.2d 450, 455.)
19
to give instructions on a lesser included offense, and that the omission of such
instructions in whole or in part was error, does not resolve the question whether the error
was prejudicial. Application of the Watson standard of appellate review may disclose
that, though error occurred, it was harmless.” (Id. at pp. 177-178, fn. omitted.)
In viewing the evidence in this light, we conclude that there was a reasonable
probability Miranda would have been convicted of only battery on count 1 had the
instruction been given. The evidence supporting the “unconsciousness” element
consisted only of S.C.’s testimony, and the testimony does not clearly establish that S.C.
was “unconscious” (as the term has been construed) when Miranda orally copulated her.
The incident came up several times during her forensic interview and trial testimony, and
her statements in recounting these moments could support either a conclusion that she
was already fully awake when orally copulated or that she was not. On the one hand,
when asked during the forensic interview what part of the vagina Miranda licked, S.C.
stated that she was not sure because she was “half asleep when [she] felt something down
there.” This statement suggests that she was unconscious at the time. On the other hand,
S.C. also testified that, although she was “half asleep” when she felt Miranda pull down
her pants and underwear, Miranda licking her is “what actually woke [her] up
completely,” and that she “didn’t know what was going on until [she] actually felt
something lick” her. Depending on how much time passed between when Miranda
pulled down S.C.’s pants and underwear, licked her rear, and then licked her genitals,
these latter statements could either suggest that she became fully awake the moment
20
Miranda licked her rear—in which case she was not “unconscious” when Miranda orally
copulated her—or that she only became fully awake at some later moment. Accordingly,
there exists a reasonable chance the jury would have found Miranda guilty of only battery
on this count.
Miranda’s defense was that he never inappropriately touched S.C. or A.C. at all. It
is apparent from the jury’s verdict—guilty on all 13 crimes charged—that the jury
rejected this defense. But this does not mean that the jury accepted all the details of the
sexual contact precisely as charged, where there were ambiguities in the trial evidence.
We cannot rule out the reasonable possibility that, had the jury been properly instructed
on lesser included offenses, it would have returned a verdict consistent with a view that
Miranda had committed some lesser crime against S.C. (See, e.g., People v. Campbell
(2015) 233 Cal.App.4th 148, 174 [reversing convictions where they “may have resulted
from the ‘all-or-nothing’ choice the instructions gave the jury”].)
A jury should have the unimpeded ability to reach a verdict “‘that is neither
“harsher [n]or more lenient than the evidence merits”’” “‘within the charge chosen by the
prosecution,’” which is why trial courts have a duty to instruct on lesser included
offenses even when requested by no party. (Smith, supra, 57 Cal.4th at pp. 239-240.) 10 Because the failure to do so here is prejudicial, the conviction on count 1 is reversed.
10 We have found a sentencing issue on count 1, raised by neither party, that, while made moot by the reversal, may nevertheless appear again on remand if left unaddressed. At sentencing, the trial court imposed a One Strike sentence of 15 years to life on count 1, but oral copulation of an unconscious person is not a crime that a One Strike
21
B. Sufficiency of the Evidence Regarding Victim Unconsciousness on Counts 2 and 3
Miranda challenges the sufficiency of the evidence on counts 1 through 3, but we
need only address counts 2 and 3 in light of our reversal on count 1. Miranda contends
that there was no substantial evidence to show that S.C. was unconscious when the acts
occurred. We disagree.
“The test for evaluating a sufficiency of evidence claim is deferential: ‘whether,
on the entire record, a rational trier of fact could find the defendant guilty beyond a
reasonable doubt.’ [Citation.] We must ‘view the evidence in the light most favorable to
the People’ and ‘presume in support of the judgment the existence of every fact the trier
could reasonably deduce from the evidence.’ [Citation.] We must also ‘accept logical
inferences that the jury might have drawn from the circumstantial evidence.’ [Citation.]”
(People v. Flores (2020) 9 Cal.5th 371, 411.) A sense that “‘the circumstances also
sentence can attach to. Section 667.61, subdivision (c), which lists the applicable predicate crimes, includes certain forms of oral copulation, but it does not include oral copulation of an unconscious person. (See § 667.61, subd. (c)(7).) Rather, the trial court should have imposed a One Strike sentence on count 4, forcible oral copulation of a minor 14 years old or older. That crime is listed in section 667.61, subdivision (c)(7), and it also was the predicate charge relating to S.C. the jury was told to consider in determining whether the multiple-victim allegation was true. (See § 667.61, subd. (c)(7) [listing former § 288a, subd. (c)(2)(C), forcible oral copulation of a minor 14 or older].) Moreover, the oversight may have added two years to Miranda’s total sentence, assuming the trial court would have imposed the midterm on count 1 (as it did on count 4) had the error not occurred. Although the midterm sentence for count 4 is eight years, the midterm sentence for count 1 is only six years. (See former § 288a, subds. (c)(2)(A) [providing midterm sentence of eight years for forcible oral copulation of a minor 14 years old or older], (f) [providing midterm sentence of six years for oral copulation of an unconscious person].) As the trial court stated at sentencing, Miranda was being sentenced to the midterm sentence on count 4 “due to the mitigating circumstances on his part,” and it is at least plausible to believe the trial court would have similarly imposed the midterm sentence on count 1 if it imposed the One Strike sentence on count 4 instead.
22
might reasonably be reconciled with a contrary finding would not warrant reversal of the
judgment.’” (People v. Lewis (2009) 46 Cal.4th 1255, 1290.)
The evidence was sufficient to show that S.C. was unconscious of the nature of
Miranda’s acts when he raped her and when he sexually penetrated her. As discussed in
the previous section, complete unconsciousness is not required. (See People v.
Ogunmola, supra, 193 Cal.App.3d at p. 279 [“In this context, unconscious is related to
the issue of consent . . . .”]; Dancy, supra, 102 Cal.App.4th at p. 36 [“a man who
intentionally engages in sexual intercourse with a woman he knows to be unconscious is
clearly aware that he is wrongfully depriving the woman of her right to withhold her
consent to the act at the time of penetration”].)
We have already found that, when viewed in the light most favorable to Miranda,
there was no substantial evidence that Miranda committed only battery because, for
instance, the unconsciousness element of counts 2 or 3 were not satisfied. It should come
as no surprise, then, that when we view the evidence in the light most favorable to the
People, we find sufficient evidence that S.C. was unconscious of the nature of Miranda’s
acts during the other incidents. As to count 2, rape of an unconscious person, S.C. stated
that later on September 8, S.C. “woke up” to realize that Miranda’s penis was inside her.
As to count 3, sexual penetration of an unconscious person, S.C. testified that on one
occasion S.C. felt Miranda touch her genitals underneath her clothes. This occurred as
she “was falling asleep” and that it “[t]ook [her] a while to realize” what was happening.
23
Accordingly, on this record, there was sufficient evidence for the jury to conclude that the
“unconscious” element of counts 2 and 3 were satisfied.
C. Eligibility for Youth Offender Parole Hearings Under One Strike Law
Section 3051 gives “youth offenders” committed to long prison sentences parole
suitability hearings beginning in their 15th, 20th, or 25th year of incarceration, depending
on the circumstances. (§ 3051, subds. (a)-(b).) In enacting section 3051, the Legislature
found that “youthfulness both lessens a juvenile’s moral culpability and enhances the
prospect that, as a youth matures into an adult and neurological development occurs,
these individuals can become contributing members of society.” (Stats. 2013, ch. 312,
§ 1.) It thus sought to “create a process by which growth and maturity of youthful
offenders can be assessed and a meaningful opportunity for release established.” (Ibid.)
Originally, section 3051 applied only to those who were juveniles (i.e., under 18)
at the time they committed a “controlling offense,” the “offense or enhancement for
which any sentencing court imposed the longest term of imprisonment” (§ 3051, subd.
(a)(2)(B)). (See People v. Williams (2020) 47 Cal.App.5th 475, 488, review granted July
22, 2020, S262229 (Williams).) Section 3051 was then expanded over time to make
those who were younger than 23, and then those who were 25 or younger, at the time of
the controlling offense to be eligible for parole hearings as well. (People v. Williams,
24
supra, at p. 488.) Those sentenced under the One Strike law, however, are excluded from 11 eligibility. (§ 3051, subd. (h).)
Miranda, who was 18 years old when first charged with the crimes, was sentenced
under the One Strike law and is therefore ineligible for youth offender parole hearings.
He contends that his exclusion violates his right to equal protection under the United
States and California Constitutions because others, such as certain youth offenders
convicted of first degree murder, are not so excluded. Our Supreme Court has granted
review on this issue. (See Williams, supra, 47 Cal.App.5th 475, review granted July 22,
2020, S262229.)
Our reversal on count 1 means that his sentence is vacated, but the trial court is
sure to impose a One Strike sentence on resentencing, both because section 667.61,
subdivision (b) uses the term “shall” and because the validity of his One Strike sentence 12 has not been challenged on appeal. We therefore consider his claim and find that
section 3051, subdivision (h) does not violate equal protection.
11 Also excluded from section 3051 are those sentenced under the Three Strikes law, those who receive a life sentence without the possibility of parole (LWOP) for a controlling offense committed when 18 or older, and those who commit an additional crime once 26 or older that requires malice aforethought or results in a life sentence. (§ 3051, subd. (h).) 12 Although we have independently discovered that the One Strike sentence was imposed on the wrong count (see ante, fn. 10), we do not find, and Miranda has not contended, that imposing a One Strike sentence on the correct count would be improper.
25
1. Similarly Situated
“‘“The first prerequisite to a meritorious claim under the equal protection clause is
a showing that the state has adopted a classification that affects two or more similarly
situated groups in an unequal manner.”’” (People v. McKee (2010) 47 Cal.4th 1172,
1202.) The People contend that persons convicted of different crimes are not similarly
situated for equal protection purposes. Although this may be true as a general matter, in
People v. Hofsheier (2006) 37 Cal.4th 1185 (Hofsheier), overruled on another ground in
Johnson v. Department of Justice (2015) 60 Cal.4th 871, 875, our Supreme Court
rejected the claim that individuals convicted of different crimes are never similarly
situated.
Hofsheier stated that “[i]t may well be that in most cases . . . persons who commit
different crimes are not similarly situated, but there is not and cannot be an absolute rule
to this effect, because the decision of the Legislature to distinguish between similar
criminal acts is itself a decision subject to equal protection scrutiny.” (Hofsheier, supra,
60 Cal.4th at p. 1199, fn. omitted.) “‘The Equal Protection Clause requires more of a
state law than nondiscriminatory application within the class it establishes. [Citation.] It
also imposes a requirement of some rationality in the nature of the class singled out.’
(Rinaldi v. Yeager (1966) 384 U.S. 305, 308-309, [16 L.Ed.2d 577, 86 S.Ct. 1497]; see
People v. Nguyen (1997) 54 Cal.App.4th 705, 714, [63 Cal.Rptr.2d 173].) Otherwise, the
state could arbitrarily discriminate between similarly situated persons simply by
classifying their conduct under different criminal statutes.” (Hofsheier, supra, at p.
26
1199.) “[T]he equal protection clause,” Hofsheier noted, was indeed “created in part to
nullify penal codes in former slave states that classified offenses against Blacks as
different crimes, with lesser penalties, than offenses against Whites.” (Id. at p. 1199, fn.
4.)
The question then, appropriately framed, is not “‘whether persons are similarly
situated for all purposes, but “whether they are similarly situated for purposes of the law
challenged.”’” (Hofsheier, supra, 37 Cal.4th at pp. 1199-1200.) Here, both someone 25
or younger who commits a One Strike crime and someone 25 or younger who commits
first degree murder are youth offenders who have committed serious crimes. Because
section 3051 “establish[es] a parole eligibility mechanism that provides a [youth
offender] . . . the opportunity to obtain release when he or she has shown that he or she
has rehabilitated and gained maturity” (Stats. 2013, ch. 312, § 1), individuals such as
Miranda are similarly situated with those who, through the commission of other crimes, 13 are eligible for youth offender parole hearings.
13 In re Williams (2020) 57 Cal.App.5th 427, which also rejected an equal protection challenge to section 3051, suggested—but seemingly stopped short of holding—that someone under 25 sentenced to LWOP is not similarly situated to someone under 25 sentenced to a parole-eligible life sentence. (See id. at p. 435 [“We disagree . . . that youth offenders sentenced to LWOP and those youth offenders sentenced to parole-eligible life terms are similarly situated with respect to the Legislature’s . . . goal[ of] calibrat[ing] sentences in accordance with youthful offenders’ diminished culpability.”], italics added; see also ibid. [“Petitioner argues, and we are inclined to agree, that youth offenders sentenced to LWOP and those sentenced to . . . parole-eligible life terms are similarly situated with respect to the Legislature’s . . . goal[ of] account[ing] for youthful offenders’ potential for growth and rehabilitation.”].) In doing so, In re Williams relied on the same partially inaccurate proposition the People rely on here—that persons convicted of different crimes are not
27
2. Rational Basis
“Where, as here, a statute involves neither a suspect class nor a fundamental right,
it need only meet minimum equal protection standards, and survive ‘rational basis
review.’” (People v. Turnage (2012) 55 Cal.4th 62, 74.) Under rational basis review,
“equal protection of the law is denied only where there is no ‘rational relationship
between the disparity of treatment and some legitimate governmental purpose.’
[Citation.] In other words, the legislation survives constitutional scrutiny as long as there
is ‘“any reasonably conceivable state of facts that could provide a rational basis for the
classification.”’” (Ibid.)
Importantly, rational basis review “does not depend upon whether lawmakers ever
actually articulated the purpose they sought to achieve. Nor must the underlying
rationale be empirically substantiated. [Citation.] While the realities of the subject
matter cannot be completely ignored [citation], a court may engage in ‘“rational
speculation”’ as to the justifications for the legislative choice. [Citation.] It is immaterial
for rational basis review ‘whether or not’ any such speculation has ‘a foundation in the
record.’” (People v. Turnage, supra, 55 Cal.4th at pp. 74-75.)
similarly situated. (See ibid.) So too did People v. Moseley (2021) 59 Cal.App.5th 1160 (Moseley)), another case that rejected an equal protection challenge to section 3051. In Moseley, however, the court expressly stated that youthful sex offenders are not similarly situated to youthful murderers. (See id. at p. 1169 [“Moseley, a youthful sex offender, is not similarly situated to a youthful murderer as they are different crimes.”].) To the extent In re Williams and Moseley stand for the proposition that an equal protection challenge to section 3051 for individuals such as Miranda fails on the “similarly situated” prong, we disagree for the reasons stated above.
28
Here, although the Legislature declared its intent in enacting section 3051, nothing
in the legislative history similarly explains why it chose to exclude One Strike offenders
such as Miranda. What is clear is that section 3051 was meant to reform the practice of
imprisoning youth offenders for lengthy sentences without any meaningful possibility of
parole. In People v. Caballero (2012) 55 Cal.4th 262, our Supreme Court urged the
Legislature “to enact legislation establishing a parole eligibility mechanism that provides
a defendant serving a de facto life sentence without possibility of parole for nonhomicide
crimes that he or she committed as a juvenile with the opportunity to obtain release on a
showing of rehabilitation and maturity.” (Id. at p. 269, fn. 5.) “The Legislature complied
and then went a step further, creating a parole eligibility mechanism that includes
see also Stats. 2013, ch. 312, § 1 [“The purpose of this act is to establish a parole
eligibility mechanism . . . in accordance with the decision of the California Supreme
Court in [People v. Caballero (2012),] 55 Cal.4th 262 and the decisions of the United
States Supreme Court in Graham[ v. Florida] (2010) 560 U.S. 48, and Miller [v.
Alabama (2012)] 183 L.Ed.2d 407.”].) While creating a mechanism for youth offenders
generally to be considered for early release, however, it also opted to not extend that
reform to certain individuals such as Miranda.
We see two reasons why the Legislature’s decision to make One Strikers ineligible
for youth offender parole hearings is rational. The first is that, as one of a series of
reform measures where the Legislature has incrementally taken steps to expand the
29
situations in which youth offenders are treated differently from adult offenders, the
Legislature could have thought that extending section 3051 to One Strikers was too large
an additional reform for the current moment. As the United States Supreme Court has
repeatedly emphasized, “[e]vils in the same field may be of different dimensions and
proportions, requiring different remedies,” and reform may validly “take one step at a
time,” “select[ing] one phase of one field and apply[ing] a remedy there, neglecting the
others.” (Williamson v. Lee Optical of Oklahoma, Inc. (1955) 348 U.S. 483, 489; see also
Roschen v. Ward (1929) 279 U.S. 337, 339 [“[a] statute is not invalid under the
Constitution because it might have gone farther than it did”]; Semler v. Oregon State Bd.
of Dental Examiners (1935) 294 U.S. 608, 610 [a legislature is not “bound . . . to strike at
all evils at the same time”]; Railway Exp. Agency v. People of State of New York (1949)
336 U.S. 106, 110 [“It is no requirement of equal protection that all evils of the same
genus be eradicated or none at all.”]; F.C.C. v. Beach Communications, Inc. (1993) 508
U.S. 307, 316 [“the legislature must be allowed leeway to approach a perceived problem
incrementally”].) Accordingly, an incremental approach may be constitutionally
sufficient, at least where there is a rational basis for the manner in which the Legislature
has proceeded to address different dimensions or proportions of a problem. The
Legislature’s gradual expansion of section 3051 to include those 25 and younger shows
that this reform has indeed progressed in such an incremental manner.
The second reason, closely related to the first, is that the Legislature may have
selectively extended section 3051’s benefits to some but not all as a means of testing
30
whether youth offender parole hearings will benefit or harm society as a whole. (See
People v. Acosta (2015) 242 Cal.App.4th 521, 527-528 [“We have no difficulty
concluding that the electorate could rationally extend misdemeanor punishment to some
nonviolent offenses but not to others, as a means of testing whether Proposition 47 has a
positive or negative impact on the criminal justice system.”].) As with the first, this
second rationale is based on the rule that reforms need not be all-or-nothing.
Importantly, this is not a situation where there can be no rational basis for the
classification itself, for instance, if eligibility for youth offender parole hearings turns on
a prisoner’s height or hair color. (See Armour v. City of Indianapolis, Ind. (2012) 566
U.S. 673, 681 [the “‘relationship of the classification to’” a legislative goal may not be
“‘so attenuated as to render the distinction arbitrary or irrational’”]; Hofsheier, supra, 60
Cal.4th at p. 1199 [equal protection “imposes a requirement of some rationality in the
nature of the class singled out”].) Rather, the Legislature appears to have excluded from
early parole eligibility those whom it saw as exceptionally likely to reoffend. The One
Strike law, for instance, reaches only serious sex crimes, and the electorate, in passing an
initiative amending the One Strike law, has found that sex offenders “have very high
recidivism rates,” “are the least likely to be cured[,] and [are] the most likely to
reoffend.” (Voter Information Guide, Gen. Elec. (Nov. 7, 2006) text of Prop. 83, § 2(b),
p. 127.) Similarly, the Three Strikes law has an “unambiguous purpose” of “provid[ing]
greater punishment for recidivists.” (People v. Davis (1997) 15 Cal.4th 1096, 1099; see
§ 667, subd. (b).) By excluding youth offenders convicted under either of these laws, the
31
Legislature appears to have drawn a line at recidivism risk. We cannot say that line was
arbitrary or irrational. (See also Moseley, supra, 59 Cal.App.5th at p. 1170 [rejecting
equal protection challenge to section 3051, subdivision (h) because “the risk of
recidivism provides a rational basis”]; Williams, supra, 47 Cal.App.5th at p. 493.)
In contending otherwise, Miranda relies on Edwards, which held that the
exclusion of One Strikers in section 3051, subdivision (h) violated equal protection.
(Edwards, supra, 34 Cal.App.5th at p. 197.) But there the court relied on the fact that the
People had “cite[d] no evidence that violent rapists recidivate more than other felons.”
(Id. at p. 199.) However, the electoral findings cited above reflect a contrary
understanding, and their adoption may have additionally given the Legislature pause 14 when considering whether to extend a benefit to One Striker sex offenders.
Additionally, Edwards did not cite or rely on the United States Supreme Court’s repeated
admonition that “the legislature must be allowed leeway to approach a perceived problem
incrementally” (F.C.C. v. Beach Communications, Inc., supra, 508 U.S. at p. 316). For
these reasons, as well as those stated in Williams, supra, 47 Cal.App.5th at pp. 492-493,
we decline to follow Edwards.
14 Edwards also cited an opinion, since vacated, that in turn cited a report concluding juvenile violent sex offenders had a lower recidivism rate than most other types of offenders. (Edwards, supra, 34 Cal.App.5th at p. 199, citing People v. Bell (2016) 3 Cal.App.5th 865, ordered vacated (June 13, 2018, S238339).) But as that vacated opinion then went on to note, “one report that reaches contrary conclusions does not mean that the Legislature’s classification of crimes is unreasonable.” (People v. Bell, supra, 3 Cal.App.5th at p. 880.)
32
Accordingly, we find that section 3051, subdivision (h) does not violate equal
protection. (Accord, Moseley, supra, 59 Cal.App.5th at p. 1170; In re Williams, supra,
57 Cal.App.5th at p. 436; Williams, supra, 47 Cal.App.5th at p. 493.)
D. Dueñas Error
Relying on Dueñas, Miranda contends that the trial court violated his due process
rights when it imposed $1,510 in court operations assessments, conviction assessments,
and restitution fines on him without finding that he had a present ability to pay.
Because we reverse his conviction in part, we need not reach the merits of his
arguments here. Miranda will have an opportunity to raise such challenges before the
trial court on remand.
III. DISPOSITION
The conviction on count 1 is reversed, Miranda’s sentence is vacated in its
entirety, and the matter is remanded for further proceedings consistent with this opinion.