Defendant’s Penal Code section 288 conviction was reversed because the unanimity instruction incorrectly defined the time period for the charged offense and the error was not harmless. Appellant was convicted of sexual penetration with a child aged 10 or younger (Pen. Code, § 288.7, subd. (b), count 1), lewd or lascivious acts on a child by force (Pen. Code, § 288, subd. (b)(1), counts 2 and 4), and simple battery (Pen. Code, §§ 242, 243, subd. (a), count 3) based on two separate incidents. The information alleged that counts one and two occurred in 2010 and that counts three and four occurred “[o]n or about and between January 1, 2009, and December 31, 2009.” At trial, the unanimity instruction for count four erroneously stated the time period to be sometime during the period of January 1, 2009, and December 31, 2010. On appeal, appellant contended that the trial court erroneously expanded the time period in which the jury could consider conduct forming the basis for count four in violation of his federal constitutional rights to due process and trial by jury. Held: Conviction on count four reversed. The erroneous unanimity instruction allowed the jury to convict appellant on count four based on the 2010 incident, meaning that he may not have been found guilty of the 2009 incident beyond a reasonable doubt. Because the verdict could have rested on an unconstitutional ground and because the instruction was erroneous on its face, the federal harmless error standard applied. (Chapman v. California (1967) 386 U.S. 18, 23-24.) The state did not show beyond a reasonable doubt that the error in the instruction did not contribute to the verdict and the conviction was reversed. Although appellant did not object to the unanimity instruction at trial, the issue was not forfeited because the substantial rights of appellant were affected.
Because there was evidence that would absolve appellant from guilt of sexual penetration with a child aged 10 or younger, but would support a finding of guilt of attempted sexual penetration, the trial court had a sua sponte duty to instruct on the attempted offense. Appellant also contended that the trial court erred by failing to instruct the jury on attempted sexual penetration as a lesser included offense to count one. Held: Conviction on count one reversed. The trial court had a duty to instruct the jury sua sponte on a lesser included offense if there was substantial evidence to support the offense. When an attempt to commit a crime and the completed crime share the same specific intent and the only difference is the failure to complete the actus reus, the attempted offense is a lesser included offense. Sexual penetration under section 288.7, subdivision (b) is a specific intent crime and an attempted violation of the statute requires the same specific intent. Thus, attempted sexual penetration is a lesser included offense. Here, the court found that there was sufficient evidence to support the crime of attempted sexual penetration. While the child consistently stated that appellant touched her during the 2010 incident, the mother and the child provided equivocal statements as to whether there was penetration. A reasonable jury could find this evidence persuasive as to the charge of attempted penetration. Accordingly, the court had a sua sponte duty to instruct the jury on attempt. Applying the People v. Watson (1956) 46 Cal.2d 818 harmless error standard, the court concluded appellant suffered prejudice necessitating reversal because it was reasonably likely a more favorable verdict would have resulted absent the error of failure to instruct on attempt. The conviction was reversed with the state having the option of retrying the case or accepting a reduction of the offense to attempted sexual penetration.
The trial court erred by instructing the jury with a general intent instruction (CALCRIM No. 250) as to sexual penetration of a child under 10 (Pen. Code, § 288.7, subd. (b)) because it is a specific intent crime, but the error was harmless. Lastly, the court found that although the trial court provided an instruction on the specific intent required for sexual penetration under section 288.7, subdivision (b), it also erroneously instructed the jury using CALCRIM No. 250, a general intent instruction. Nevertheless, the court found no prejudice because the record did not support a possibility of a more favorable outcome.