P. v. Case CA2/7

Filed 3/12/13 P. v. Case CA2/7 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SEVEN

THE PEOPLE, B237666

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. GA082836) v.

AARON CASE,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County. Michael D. Carter, Judge. Affirmed. Daniel G. Koryn, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Scott A. Taryle and Stacy S. Schwartz, Deputy Attorneys General, for Plaintiff and Respondent.

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Aaron Case was convicted of attempted oral copulation with a person under the age of 18 (Pen. Code,1 § 664/288a, subd. (b)(1)). On appeal, he contends that this crime was not a lesser included offense of the offense with which he had been charged, and he claims the court violated his constitutional rights to due process and a fair trial by instructing the jury on the lesser offense. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

As the sole issue on appeal relates to whether the jury was properly instructed on lesser included offenses, a full recitation of the facts of this case is unnecessary. Case was charged with attempted forcible oral copulation with a minor over the age of 14 (§ 664/288a, subd. (c)(2)(C)) arising out of an incident in which he asked 16-year-old S.S. to orally copulate him, then put his hand on her shoulder and pushed her toward his exposed penis while instructing her to suck on it. The court instructed the jury on this offense and also on lesser included offenses. The jury convicted Case of the lesser offense of attempted oral copulation with a person under the age of 18. Case appeals.