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Is Battery a Lesser Included Offense of Oral Copulation?
In the context of sex offenses going to a jury trial, there are many guilty verdicts and sentences that involve long sentences, particularly because consecutive, rather than concurrent, sentences are generally mandatory in sex offenses.
With such long sentences, appeals are common on a variety of grounds.
Summary in 45 Words or Less: Battery is a lesser-included offense of oral copulation of an unconscious person and, in the following case, due to the facts, the judge’s failure to include such an instruction was error meriting reversal of the oral copulation of an unconscious person conviction.
In the following case, a Riverside County jury convicted Michael James Miranda of 13 counts involving two minor girls, including oral copulation of an unconscious person, rape of an unconscious person and sexual penetration of an unconscious person. The judge sentenced Miranda under the One Strike law (Penal Code § 667.61), which means there was a base sentence of twenty-five years to life. In Miranda’s case that meant a determinate sentence of 38 years plus a consecutive indeterminate term of 15 years to life.
The facts of the case are horrendous and shocking, but what this article covers is Miranda’s appeal to the Fourth Appellate District court, arguing that the judge made an error by not instructing the jury on simple battery, as a lesser-included offense of oral copulation of an unconscious person, rape of an unconscious person and sexual penetration of an unconscious person because had the jury had such an instruction, it would at least have had the option of convicting him of a lesser offense or offenses.
The court of appeal agreed with Miranda, but only as to his argument that the judge erred by not instructing the jury on battery under the oral copulation of an unconscious person charge. The court of appeals therefore reversed that conviction and vacated Miranda’s sentence on that charge, commenting that “absent that error, there is a reasonable probability the jury would have convicted him only of battery if instructed as to that option.”
As to the other two crimes Miranda sought a battery instruction, the appeals court declined to find error because the lesser crime “lacked a grounding in the evidence, so the trial court had no duty to instruct on battery as a lesser included offense.”
4th Appellate District Division 2 RiversideThis curious appellate court victory for Miranda is a good reminder that an attorney should keep instructions on lesser-included offenses foremost in one’s proposed jury instructions, even though a party legally is not obligated to make the request.
Indeed, “California law has long held 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.
“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. The 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 acquittal on the other. Hence, the rule encourages a verdict, within the charge chosen by the prosecution that is neither ‘harsher nor more lenient than the evidence merits.’ 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.” Smith, supra, 57 Cal.4th at pp. 239-240.
Here, the court of appeal reminded the reader that a battery “is any willful and unlawful use of force or violence upon the person of another.” Penal Code § 242. As to the first element, “willful and unlawful use of force,” “it has long been established that “the least touching” may constitute battery. In other words, forces 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.” People v. Shockley (2013) 58 Cal.4th 400, 404-405. As to the second element, a touching is unlawful if it is “harmful or offensive.” Shockley, p. 404.
The court acknowledged that any of the sex crimes at issue for Miranda are also a battery. They are all touching and all are offensive. However, battery is not necessarily a lesser-included offense of rape of an unconscious person because the victim need not be subject to “force of violence, or even to a harmful or offensive touching. People v. Hernandez (2011) 200 Cal.App.4th 1000. We find this rather remarkable law, but it is what the court of appeal relied upon.
This article is not meant to be a primer on various sex crimes upon unconscious victims. Instead, it is meant to exemplify the law on including jury instructions on lesser-included offenses.
The citation for the Fourth Appellate District Court ruling discussed above is People v. Michael James Miranda (4th App. Dist., 2021) 62 Cal. App. 5th 162, 276 Cal. Rptr. 3d 503.
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