People v. Miranda

62 Cal.App.5th 162

276 Cal.Rptr.3d 503

The PEOPLE, Plaintiff and Respondent,

v.Michael James MIRANDA, Defendant and Appellant.

E071542

Court of Appeal, Fourth District, Division 2, California.

Filed March 18, 2021

Valerie G. Wass, under appointment by the Court of Appeal, for Defendant and Appellant Michael James Miranda.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Seth M. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

RAPHAEL, J.

Defendant and appellant Michael James Miranda was convicted on 13 counts charging sex crimes against two minor girls, including oral copulation of an unconscious person, rape of an unconscious person, and sexual penetration of an unconscious person. He was sentenced under the One Strike law. On appeal, he contends in part that the jury should have been instructed on lesser included offenses, and that his ineligibility for youth offender parole hearings violates equal protection.

We agree with Miranda that battery is a lesser included offense of oral copulation of an unconscious person, rape of an unconscious person, and sexual penetration of an unconscious person. Given that battery requires only an offensive touching, it is impossible to commit any of these crimes without also committing battery against that person. We reject a Court of Appeal case that held otherwise.

Because of the evidence presented, we conclude that the trial court was required to instruct the jury on battery as a lesser included offense as to one of Miranda's crimes, oral copulation of an unconscious person. We reverse that conviction and vacate his sentence, as there was a reasonable probability that, absent the error, the jury would have convicted him of only battery if instructed as to that option. As to Miranda's other two crimes, the notion that he committed battery but not the greater crimes lacked a grounding in the evidence, so the trial court had no duty to instruct on battery as a lesser included offense. In addition, we reject Miranda's other challenges to his convictions, including his equal protection challenge.¹

I. FACTUAL AND PROCEDURAL HISTORY

We must in this appeal determine whether the trial court had a duty to instruct on a lesser included offense, which requires us to consider the evidence in the light most favorable to the defendant. ( People v. Millbrook (2014) 222 Cal.App.4th 1122, 1137, 166 Cal.Rptr.3d 217.) We recount the facts below with this standard in mind. Additionally, we focus only on the circumstances surrounding the testimony of S.C., who was the victim of the crimes at issue in this appeal, though Miranda also was convicted of sex crimes against a second victim, A.C. Moreover, we generally focus only on those crimes committed against S.C. that are challenged in this appeal.

Born in 1998, Miranda moved into a family friend's household in his senior year of high school. Miranda's mother was going through a "hard time," and she asked her friend if Miranda could stay with them. The friend agreed; took Miranda in to live with her, her husband, and their five children; and "loved him like a son." A.C., the second victim not at issue here, was one of the friend's children.

S.C. is a cousin of the household's children and often spent weekends at their house. S.C. was 16 years old when the crimes took place.

At trial, S.C. described a 2017 incident where Miranda touched her vagina while she was "falling asleep":

"Q. What happens?

"A. I was falling asleep, and then I just felt somebody—well, I felt him touch me.

"Q. Okay.

"A. On like my thigh and then go up more.

"Q. And how much more did he go up?

"A. To my private area.

"Q. Now, I know you called it a private area. Do you know the adult names for the private area?

"A. My vagina.

"Q. Did he actually touch your vagina?

"A. Yes.

"Q. Did he touch you over the clothes or under the clothes?

"A. Both.

"Q. Okay. What were you doing as this is happening to you?

"A. Nothing.

"Q. Okay.

"A. I didn't move. I was too scared to do anything.

"Q. Did you realize what was happening to you right when you opened your eyes, or did it take you a little?

"A. Took me a while to realize."

Miranda then forced S.C.'s mouth open with his hands and put his penis inside. S.C. stated that she was "awake kind of when [Miranda] was touching me, but I wasn't fully alert, like, what was actually happening to me." She was "fully awake," however, by the time Miranda placed his penis inside her mouth. The first portion of this incident, as well as S.C.'s testimony that Miranda had touched her vagina on a few other occasions, formed the basis for Miranda's charge of sexual penetration of an unconscious person.

On September 8, 2017, S.C. was sleeping when she "woke up" because Miranda was licking her "butt."² S.C. stated that she first felt Miranda pull down her pants and underwear while she was "half asleep" and that she "didn't know what was going on until [she] actually felt something lick" her. She stated: "[I felt a] tug like somebody tugging at my bottoms, but I didn't really take much notice because I was too tired, but then when he actually licked me, that's what actually woke me up completely." S.C. stated that Miranda had licked her "butt area—on top of it" and that it was "not [her] anus, but [her] butt."

In a forensic interview that was played at trial and admitted into evidence, S.C. had stated that Miranda did more to her on that occasion. In that interview, she had stated that Miranda proceeded to lick her vagina.³ When asked what part of the vagina Miranda licked, S.C. had said, "I'm not sure, because I was, like, half asleep when I felt something down there." But at trial, when asked, "Do you remember if [Miranda] only licked your butt, or did he lick somewhere else as well," she replied, "He just licked my butt." Later she was asked again, "Was it just the butt, or did it go on," and she replied, "Just my butt." Eventually Miranda stopped, pulled S.C.'s underwear back up, left, and S.C. "fell back asleep." This incident formed the basis for the oral copulation of an unconscious person charge.⁴

Shortly thereafter on that same night, S.C. woke up again and realized Miranda was on top of her and inserting his penis into her vagina. As she said during her forensic interview:

"[S.C.]: And then, um, like I said, I fell back asleep and then when I woke up again, he was, like, feeling inside of me.

"[Interviewer]: What was he go—what was going inside you?

"[S.C.]: His pe—his penis. I'm sorry [....]

"[Interviewer]: Okay. That's okay. So his penis was going where inside you?

"[S.C.]: Um, in my vagina.

"[Interviewer]: In your vagina?

"[S.C.]: Yeah."

In describing this incident at trial, S.C. was asked, "Now, that's when you woke up, when you felt his weight and his penis into your vagina; is that correct," to which she replied, "Yes." Eventually, Miranda stopped and left the room. This incident formed the basis for Miranda's charge of rape of an unconscious person.⁵

A few nights later, A.C.'s older sister woke up to Miranda attempting to open her legs. Miranda said he was looking for a laptop charger. Miranda left, but A.C.'s sister could not go back to sleep. She woke up S.C. and told her she believed Miranda had "tried to do something." S.C. started crying and said that Miranda had done things to her. A.C.'s sister woke up her parents, who confronted Miranda. Miranda denied wrongdoing. The parents then woke up A.C., who said that Miranda had been touching her as well.

Miranda was charged with one count of oral copulation of an unconscious person (former § 288a, subd. (f) ; count 1); one count of rape of an unconscious person ( § 261, subd. (a)(4) ; count 2); one count of sexual penetration of an unconscious person ( § 289, subd. (d) ; count 3); one count of forcible oral copulation of a minor 14 years old or older (former § 288a, subd. (c)(2)(C) ; count 4); and nine counts of lewd and lascivious acts on a child under 14 ( § 288, subd. (a) ; counts 5 through 13). Counts 1 through 4 related to S.C., while counts 5 through 13 related to A.C.; only counts 1 through 3 are at issue in this appeal. Miranda was also alleged to have committed a qualifying sex offense against more than one victim pursuant to section 667.61, subdivision (e)(4), part of the One Strike law.

The jury found Miranda guilty on all counts and found the One Strike allegation true. The trial court sentenced Miranda to a determinate term of 38 years plus a consecutive indeterminate term of 15 years to life. The trial court also ordered Miranda to pay a $300 restitution fine ( § 1202.4, subd. (b) ), a $390 criminal conviction assessment fee ( Gov. Code, § 70373 ), and a $520 court operations assessment fee ( § 1465.8 ), in addition to a $300 parole revocation restitution fine ( § 1202.45 ) that the trial court ordered stayed.

II. ANALYSIS

A. Lesser Included Offense

Miranda contends that the jury should have been instructed on battery as a lesser included offense of counts 1 through 3, i.e., oral copulation of an unconscious person, rape of an unconscious person, and sexual penetration of an unconscious person. He additionally contends that the error was prejudicial because there was a reasonable probability he would have been convicted of only battery absent the error.

The People disagree. Relying on People v. Hernandez (2011) 200 Cal.App.4th 1000, 133 Cal.Rptr.3d 229 ( Hernandez ), the People contend that battery is not a lesser included offense of these offenses. Hernandez held that "battery is not a lesser included offense of rape of an unconscious person" because battery requires use of force or violence, while "[t]here is no requirement that [a] defendant use force or violence to accomplish the act of sexual intercourse." ( Id. at p. 1006, 133 Cal.Rptr.3d 229.) The People additionally contend that any supposed error is harmless.

For reasons we explain, we agree with Miranda that battery is a lesser...