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Name: People v. Gray
Case #: B224430
Court: CA Court of Appeal
District 2 DCA
Division: 1
Opinion Date: 09/14/2011
Subsequent History: 12/14/11 rev. granted (S197749)

Every lewd act is also a battery, therefore the court has a sua sponte duty to instruct on battery (Pen. Code, sec. 242), as a lesser included offense of a lewd and lascivious act (Pen. Code, sec. 288, subd. (a)). Battery encompasses the slightest touching, with a general intent, so long as it is harmful or offensive. Any touching of a child for the purpose of sexual arousal would also be a touching that is harmful or offensive and constitute a battery. In this case, the defendant’s touching of the victim met both definitions and was such that no reasonable jury would conclude the touching was merely offensive. The instructional error was not prejudicial in this case and therefore it was harmless error.

The imprecise testimony from the five-year-old witness as to the date of the offense rendered a sentence under the One Strike law a violation of ex post facto prohibition. Penal Code section 667.61, the One Strike law, went into effect on November 30, 1994. The information alleged certain counts occurred between January 1, 1994 and May 1, 1996. The increased punishment could not be applied to those offenses because the evidence at trial did not prove the offenses were committed after the effective date. The child gave inconsistent testimony and admitted she wasn’t really sure about dates. The jury was not asked to render verdicts which would establish the date of the offenses. Four counts were remanded for resentencing without the application of section 667.61.

Continuous sexual abuse, a violation of Penal Code section 288.5, could not be sentenced under the One Strike law when the offenses occurred long before section 288.5 was added to the list of offenses subject to the greater punishment. Section 288.5 was added to section 667.61 and qualified for the greater sentence effective September 20, 2006. Sentences for continuous abuse which ended in 1995, as to one count, and 1998 as to another count, had to be reversed and remanded for resentencing without application of section 667.61.

The defendant’s testimony about DNA evidence was properly excluded under Evidence Code section 352. The defendant’s proffered testimony was not hearsay but was offered to demonstrate the defendant’s consciousness of innocence in agreeing to cooperate and to provide DNA to the investigator. The trial court had discretion to find the slight probative value was outweighed by the risk of confusing issues. The defense was not precluded from presenting a consciousness of innocence defense through other admissible testimony.