Convictions for forcible oral copulation of a minor (Pen. Code, § 288a, subd. (c)(2)(C)) and forcible oral copulation of a minor in concert (Pen. Code, § 288a, subd. (d)(3)) reversed because trial court failed to instruct on lesser included offense of nonforcible oral copulation of a minor (Pen. Code, § 288a, subd. (b)(1)). While living in North Carolina, Woods sexually abused his girlfriend’s 12-year-old daughter, C.C., every day for years, and he continued to do so after they moved to California, where he was ultimately arrested. At his trial for multiple sex offenses, including forcible oral copulation of a minor and forcible oral copulation of a minor in concert, the trial court refused Woods’s request to instruct the jury on unlawful but nonforcible oral copulation of a minor (Pen. Code, § 288a, subd. (b)(1)) as a lesser included offense. After his conviction, Woods appealed. Held: Reversed in part. A trial court must instruct on lesser included offenses whenever evidence that the defendant is guilty only of the lesser offense is substantial enough to merit consideration by the jury. Here, the People conceded that nonforcible oral copulation of a minor is a lesser included offense of forcible oral copulation of a minor and forcible oral copulation of a minor in concert, but argued that the evidence did not support the instruction. The Court of Appeal disagreed because the jury could have reasonably concluded that Woods committed nonforcible oral copulation of a minor but not forcible oral copulation based on the evidence. All the charges were alleged to have occurred after the three had moved to California, and there was evidence that, by that time, C.C. regarded Woods as her boyfriend and had started to initiate and enjoy their sexual interactions.

Allegation made pursuant to the One Strike sentencing scheme may not be considered together with the substantive charge to allege a single offense for purposes of the accusatory pleading test for lesser included offenses. Woods was also charged with multiple counts of forcible rape (Pen. Code, § 261, subd. (a)(2)). He requested a jury instruction on unlawful sexual intercourse with a minor (Pen. Code, § 261.5, subds. (a) & (c)) as a lesser included offense. The trial court denied the request and Woods was convicted of multiple counts of forcible rape. The Court of Appeal concluded that the trial court did not err in failing to instruct the jury on unlawful sexual intercourse with a minor. To prove that a defendant committed unlawful sexual intercourse with a minor, there must be evidence that the victim was a minor and evidence of the age difference between the victim and the defendant. To prove that a defendant committed forcible rape, there must be evidence of force, but the prosecution is not required to prove that the victim was a minor. Woods conceded that unlawful sexual intercourse with a minor is not a lesser included offense of forcible rape under the elements test. Instead, he argued that it is a lesser included offense under the pleading test because the forcible rape counts included a One Strike allegation alleging that C.C. was a minor at the time of the offense. The Court of Appeal rejected the argument, reasoning that a One Strike allegation is akin to an enhancement allegation, which cannot be considered when determining whether an offense is a lesser included of another under the pleading test. (See People v. Wolcott (1983) 34 Cal.3d 92, 96, 100-101.) Without the One Strike law allegations attached to each forcible rape count, the forcible rape counts do not include the lesser offense of unlawful sexual intercourse with a minor.

Evidence that the minor became pregnant and had an abortion after being raped was sufficient to uphold a great bodily injury enhancement (Pen. Code, § 12022.7, subd. (a)). A great bodily injury enhancement was imposed based on evidence that Woods impregnated C.C. and encouraged her to get an abortion, which she did. On appeal, Woods challenged the sufficiency of the evidence that a pregnancy or abortion could amount to sufficient proof of great bodily injury. The Court of Appeal rejected his argument. In People v. Cross (2008) 45 Cal.4th 58, 63, the California Supreme Court rejected a nearly identical argument and concluded that evidence that a 13-year-old girl had an abortion after carrying a fetus for 22 weeks was sufficient to support a great bodily injury enhancement. Here, C.C.’s minority, the fact that she had never been pregnant before, and the fact that she underwent a second-trimester abortion all support the jury’s determination that her pregnancy constituted great bodily injury.