P. v. McDaniel

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Filed 9/30/03 P. v. McDaniel CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or
ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Placer)
----
THE PEOPLE,
Plaintiff and Respondent,
v.
DAVID CHARLES MCDANIEL,
Defendant and Appellant.
C040513
(Super.Ct.No. 6220154)
Defendant was convicted by a jury of two counts of forcible
rape (Pen. Code, § 261, subd. (a)(2)), two counts of unlawful
sexual intercourse (Pen. Code, § 261.5, subd. (d)), five counts
of oral copulation of a minor (Pen. Code, § 288a, subd. (c)(1)),
two counts of lewd and lascivious conduct (Pen. Code, § 288,
subd. (a)), and two counts of forcible lewd and lascivious
conduct (Pen. Code, § 288, subd. (b)(1)). (Further undesignated
section references are to the Penal Code.) He was sentenced to
consecutive terms of six years on each forcible rape charge and
consecutive terms of two years (one-third the midterm) on one
lewd and lascivious act charge and all five oral copulation

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charges, for a total of 24 years. All other terms were stayed
pursuant to section 654.
Defendant appeals, contending that (1) there is
insufficient evidence of force to support the forcible sexual
offense counts; (2) the court erroneously failed to define
“force” for rape; (3) the prosecutor committed misconduct in
allowing a witness to testify that defendant was offered a lie
detector test; (4) third party culpability evidence was
erroneously excluded; (5) the court failed to instruct on lesser
included offenses; (6) an instruction on motive should not have
been given; and (7) a sexual offense fine must be stricken. We
find merit in defendant’s second and fifth contentions and
reverse the judgment, in part.
F ACTS AND P ROCEDURAL H ISTORY
In the fall of 1998, the victim, A. P., lived with her
great-grandmother, A. M., and A. M.’s husband, W. M., in a two-
bedroom house. Also residing on the property, but in a separate
mobilehome, was defendant, who was W. M.’s son. A. P. was 13
years old at the time; defendant was 34.
On September 11, 1998, A. M. and W. M. left home to spend
the night with a relative. That evening, A. P. attended a movie
with defendant and defendant’s sister, Susan. After the movie,
they returned to the property. A. P. and Susan went into the
house and defendant returned to his trailer. A. P. went to her
bedroom, and Susan watched television. Eventually Susan left to
return to her own home.

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After Susan left, A. P. went to the trailer. At some
point, she followed defendant into the second bedroom of the
trailer and they sat on the bed together. A. P. took off her
clothes and laid on the bed. Defendant orally copulated her
while putting his hands on her breasts. Although she felt
uncomfortable, A. P. did not tell defendant to stop. Later,
defendant got on top of her. A. P. got scared when she felt his
“genitalia” and told him no. She pushed defendant off of her,
got dressed and departed.
Defendant molested A. P. several more times over the
ensuing month. One time it occurred in defendant’s truck.
A. P. pulled her pants down and defendant orally copulated her.
On another occasion, defendant and A. P. walked to a concrete
slab “quite a ways away from the house.” Again, defendant
orally copulated her. Defendant also orally copulated A. P. two
or three more times in the second bedroom of the trailer.
On one occasion, in defendant’s bedroom, he orally
copulated A. P. and then got on top of her. He explained that
he was preparing her to make sexual intercourse easier. At this
time, he inserted his penis partially into her vagina. On
another occasion, defendant showed A. P. a pornographic movie in
which a student gave a teacher a “blow job” in order to get an
A. Later, A. P. orally copulated defendant.
On each of the occasions when defendant got on top of
A. P., he partially inserted his penis into her vagina. It hurt
her, and she told him no. A. P. pushed defendant off. At some
point, defendant told A. P. that if he went to jail for what he

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was doing, he would make it worth his while. She took this as a
threat.
On October 31, 1998, A. P. was diagnosed with appendicitis
and later had her appendix removed. During one visit to the
doctor’s office, A. P. told A. M. about the molestations. A. M.
later confronted defendant about it, but defendant denied it.
A. M. did not contact the police about the matter.
A. P. moved to Arkansas to live with other relatives.
However, she returned in May 2000. During a doctor visit on
February 14, 2001, A. P. revealed that she had been molested by
defendant when she was 13. This was reported to authorities and
defendant was arrested.
Defendant was charged with two counts of forcible rape
(§ 261, subd. (a)(2)), two counts of unlawful sexual intercourse
(§ 261.5, subd. (d)), five counts of oral copulation of a minor
(§ 288a, subd. (c)(1)), two counts of lewd and lascivious
conduct (§ 288, subd. (a)), and two counts of forcible lewd and
lascivious conduct (§ 288, subd. (b)(1)). He was found guilty
on all charges, and his motion for new trial was denied.
Defendant was sentenced as indicated previously.
D ISCUSSION
I
Sufficiency of the Evidence
Defendant contends there is insufficient evidence to
support the force element on the forcible rape and forcible lewd
act charges. He argues that the same conduct supporting the

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forcible rape charges was the basis for the forcible lewd act
charges and that there is no evidence of force in connection
with either incident, because “when [A. P.] said ‘no’ she also
successfully would shove the defendant off without any
resistance on his part.” The People agree the same conduct
supported the rape and forcible lewd act charges but argue there
is sufficient evidence of force in both instances. They further
argue that conviction on all four charges is supported by
evidence of duress.
“‘To determine sufficiency of the evidence, we must inquire
whether a rational trier of fact could find defendant guilty
beyond a reasonable doubt. In this process we must view the
evidence in the light most favorable to the judgment and presume
in favor of the judgment the existence of every fact the trier
of fact could reasonably deduce from the evidence. To be
sufficient, evidence of each of the essential elements of the
crime must be substantial and we must resolve the question of
sufficiency in light of the record as a whole.’” (People v.
Carpenter (1997) 15 Cal.4th 312, 387.)
Section 261, subdivision (a)(2) reads: “Rape is an act of
sexual intercourse accomplished with a person not the spouse of
the perpetrator, under any of the following circumstances: [¶]
. . . [¶] (2) Where it is accomplished against a person’s will
by means of force, violence, duress, menace, or fear of
immediate and unlawful bodily injury on the person or another.”
Section 288, subdivision (b)(1) prohibits any lewd or lascivious
act with a child under the age of 14 “by use of force, violence,

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duress, menace, or fear of immediate and unlawful bodily
injury . . . .”
In People v. Cicero (1984) 157 Cal.App.3d 465, this court
held that to establish “force” within the meaning of section
288, subdivision (b), the People must prove “defendant used
physical force substantially different from or substantially
greater than that necessary to accomplish the lewd act itself.”
(Id. at p. 474.) This is the same requirement for a charge of
forcible rape. (People v. Mom (2000) 80 Cal.App.4th 1217,
1224.) However, the burden on the People is not a heavy one.
(Ibid.) Under prior law, forcible rape required resistance by
the victim and force by the perpetrator sufficient to overcome
that resistance. (People v. Iniguez (1994) 7 Cal.4th 847, 854-
855.) With the elimination of the resistance requirement,
evidence of force is now linked to overbearing the victim’s
will, not overcoming her resistance. (Id. at p. 856.) As we
explained in Cicero: “[T]he law of rape primarily guards the
integrity of a woman’s will and the privacy of her sexuality
from an act of intercourse undertaken without her consent.
Because the fundamental wrong is the violation of a woman’s will
and sexuality, the law of rape does not require that ‘force’
cause physical harm. Rather, in this scenario, ‘force’ plays
merely a supporting evidentiary role, as necessary only to
insure an act of intercourse has been undertaken against a
victim’s will." (People v. Cicero, supra, 157 Cal.App.3d at p.
475.) Thus, in People v. Bergschneider (1989) 211 Cal.App.3d
144, sufficient force was found where the defendant did nothing

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more than push the victim’s hands aside when she put them in
front of her vagina. (Id. at pp. 150, 153.)
In this matter, A. P. provided the following testimony
regarding the first rape.
“Q Did he do anything else with any other parts of his
body?
“A Well, afterwards he proceeded to get on top of me.
“Q How did he get on top of you?
“A He just got on top. I was just laying there, and he
just got on top.
“Q Were you laying on your front or your back?
“A My back.
“Q So when he got on top of you what did he do next?
“A Well, I wasn’t sure, but I remember I was scared, and
that’s when I told him no, and started pushing and shoving him
off.
“Q Were you successful?
“A Took me a little while, but yeah. Then I just got up,
got dressed, and went home to my room.”
Later, A. P. explained she pushed defendant off after she
felt his penis against her vagina. She indicated this occurred
on at least two occasions and that it hurt each time. According
to A. P., defendant would first orally copulate her then get on
top of her and slowly ease his penis into her vagina. A. P.
testified that on each occasion she told defendant no and when
asked if he stopped, she said, “No. I pushed him off usually.”

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This testimony is sufficient to show that the penetration
occurred against A. P.’s will by the use of force. She told
defendant no and then began pushing and shoving him off.
Although she was successful in disengaging herself, this took “a
little while.” From such testimony, the jury could reasonably
infer that defendant used force to stay on top of A. P. and to
continue penetration for “a little while” as she attempted to
push him off. This is sufficient evidence to satisfy the force
element of both the rape and forcible lewd act charges.
Having so concluded, we need not decide whether there was
substantial evidence of duress to support the verdicts.
II
Force Instruction
Our conclusion that substantial evidence supports the
jury’s finding of force is only one side of the coin. The other
side requires that the jury be properly instructed on the issue.
Here, the jury was instructed on the elements of forcible rape
and forcible lewd acts. On the latter offenses, the jury was
also told “the term force means physical force that is
substantially different from or substantially greater than that
necessary to accomplish the lewd act itself.” However, the jury
was not instructed that the same definition applies to forcible
rape. Defendant contends this was error that requires reversal
of his two rape convictions. We agree.
A trial court has a duty to instruct sua sponte on the
general principles of law pertinent to the case. (People v.

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Daniels (1991) 52 Cal.3d 815, 885.) “The general principles of
law governing the case are those principles closely and openly
connected with the facts before the court, and which are
necessary for the jury’s understanding of the case.” (People v.
St. Martin (1970) 1 Cal.3d 524, 531.) Included is a duty to
give explanatory instructions when the terms used in an
instruction “‘have a “technical meaning peculiar to the law.”’”
(People v. Valenzuela (1985) 175 Cal.App.3d 381, 393, overruled
on other grounds in People v. Flood (1998) 18 Cal.4th 470, 484,
490, fn. 12.) However, absent a request, the court has no duty
to define terms which are commonly understood by those familiar
with the English language. (People v. Anderson (1966) 64 Cal.2d
633, 639.)
The People argue that defendant waived any error in the
absence of a force instruction by failing to request it.
However, this argument assumes that the term “force,” as used in
section 261, subdivision (a)(2), does not have a technical
meaning. In People v. Pitmon (1985) 170 Cal.App.3d 38, we held
that the term “force,” as used in section 288, subdivision (b),
“does have a specialized meaning not readily known to the
average lay juror--i.e., ‘physical force [that is] substantially
different from or substantially greater than that necessary to
accomplish the lewd act itself.’” (People v. Pitmon, supra, 170
Cal.App.3d at p. 52.) Consequently, the trial court had a duty
to instruct sua sponte on that definition. (Ibid.)
As explained previously, the meaning of force in section
261, subdivision (a)(2) is the same as that in section 288,

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subdivision (b). (People v. Mom, supra, 80 Cal.App.4th at p.
1224.) Thus, the trial court erred in failing to instruct the
jury on the meaning of the term in connection with the rape
charges.
The People disagree that the term “force” as used in
connection with rape has a technical or legal meaning. They
rely on People v. Elam (2001) 91 Cal.App.4th 298, in which the
court stated, “The force necessary in sexual offense cases is
‘“‘physical force substantially different from or substantially
in excess of that required’”’ for the commission of the sexual
act. [Citations.] One nonlegal meaning of force is ‘to press,
drive, attain to, or effect as indicated against resistance
. . . by some positive compelling force or action.’ (Webster’s
3d New Internat. Dict. (1993) p. 887, col. 2, italics added.)
Another is ‘to achieve or win by strength in struggle or
violence.’ (Ibid.) These definitions do not differ in any
significant degree from the legal definition. It thus is
doubtful whether the court ever has a sua sponte duty to define
‘force’ in a sexual offense case containing the element that it
be accomplished against the will of the victim.” (People v.
Elam, supra, 91 Cal.App.4th at p. 306.)
The People’s reliance on Elam is misplaced. The foregoing
discussion by the court was dictum. The defendant there was
charged with assault with intent to commit forcible oral
copulation. (§ 220.) The jury was not required to determine if
the defendant applied the requisite force. The court explained:
“It is settled that ‘“‘[t]o support a conviction for . . . [such

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an offense], the prosecution must prove the assault and an
intent on the part of the defendant to use whatever force is
required to complete the sexual act against the will of the
victim.’”’ [Citation.] The jury therefore was not charged with
determining whether defendant applied physical force
substantially different from or greater than that necessary to
obtain oral copulation, but only with determining whether his
acts demonstrated an intent to use that degree of force
necessary to complete the act against [the victim’s] will. For
this reason, too, no special instruction on force was
necessary.” (People v. Elam, supra, 91 Cal.App.4th at pp. 306-
307.)
The People further argue that any instructional error was
harmless because “there was more than sufficient evidence that
[defendant] committed the rapes of [A. P.] using force or
duress.” We disagree. It cannot be determined on this record
whether the jury concluded that defendant used force or duress
to complete the rapes. Although defendant was much older and
bigger than A. P. and, as a family member, was perhaps in a
position of some authority, there is no evidence to suggest
A. P. permitted the intercourse because of duress. Duress means
“a direct or implied threat of force, violence, danger, hardship
or retribution sufficient to coerce a reasonable person of
ordinary sensibilities to (1) perform an act which otherwise
would not have been performed or, (2) acquiesce in an act to
which one otherwise would not have submitted.” (People v.
Pitmon, supra, 170 Cal.App.3d at p. 50.) Here, the only

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suggestion of a direct or implied threat was defendant’s warning
that if A. P. reported the matter, he would make it worth his
while. This was not a threat used to obtain the victim’s
participation but to avoid detection.
Although we have concluded that there is sufficient
evidence to support a jury finding of force, that evidence is
far from overwhelming. A. P. testified she pushed and shoved
defendant off her and this took “a little while.” It was left
for the jury to decide how long this took and whether the delay
was caused by defendant’s use of force greater than, or
different from, that required to complete penetration or simply
the fact it took some minimal amount of time for A. P. to get
someone the size of defendant off of her. On the record before
us, we cannot say the jury would have found the requisite force
if it had been properly instructed on the meaning of that
requirement. Thus, defendant’s forcible rape convictions must
be reversed.
III
Lie Detector Evidence
Prior to trial, defendant moved in limine to “exclude any
testimony concerning a computerized voice stress analysis test
administered to Defendant.” The prosecution indicated it had no
intention of presenting such evidence, and the motion was
granted. During trial, Angela DeWolf, a detective with the
Placer County Sheriff’s Department, was called by the

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prosecution. During cross-examination, the following exchange
occurred.
“Q All right. What types of questions did you ask
[defendant] concerning just general background?
“A I asked him where he lived. I asked him about any
medical problems. I asked him who he lived with. And I am
doing this from memory.
“Q Sure.
“A I don’t have it in front of me. Asked him if he knew
why he was there to see me. Asked him if he had any objections
to talking to me.
“Q Okay.
“A When he told me why he was there to see me, and what he
told me was because he was accused of having sex with [A. P.], I
asked him how he felt about talking to me about that.
“And then when we were finished with that I asked him if,
in fact, he would be willing to take a polygraph or some sort of
lie detector test to verify the accuracy of any statement.”
At that point, defense counsel changed gears and asked
about the witness’s training in investigation and interviewing.
During a break in the proceedings, defense counsel moved
for a mistrial based on the testimony regarding the polygraph
test. The trial court denied the motion, commenting that the
evidence was elicited on defense counsel’s question and was not
subject to any in limine ruling. The court offered to admonish
the jury to disregard any testimony concerning polygraph tests.

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After the close of evidence, defense counsel indicated he
did not want a limiting instruction. However, the court
concluded that this would be invited error and gave the
instruction anyway. Defense counsel then requested the court to
inform the jury that defendant offered to take the polygraph
test. The court declined, explaining that the evidence was
closed. The court then read the following admonition.
“Folks, earlier in the testimony an answer was given
referring to a polygraph test or a lie detector test.
“Now, folks, there is no evidence in this case regarding a
polygraph test. Therefore, you are not to take into
consideration anything concerning any mention about a polygraph
test.
“Polygraph tests are not admissible in court. They are not
part of this case. You are not to talk about it in your
deliberations, and you are not to form any opinions one way or
the other about any kind of a polygraph test, and you are to
completely strike any, any mention of that question from your
mind.”
Defendant contends the testimony of Detective DeWolf
regarding the polygraph test was prosecutorial or witness
misconduct. The People concede that admission of the testimony
was error but contend it was harmless under the circumstances.
According to the People, any prejudice was overcome by the
court’s admonition and, in any event, the evidence against
defendant was “compelling.”

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Evidence Code section 351.1, subdivision (a) reads, in
relevant part: “Notwithstanding any other provision of law, the
results of a polygraph examination, the opinion of a polygraph
examiner, or any reference to an offer to take, failure to take,
or taking of a polygraph examination, shall not be admitted into
evidence in any criminal proceeding, including pretrial and
postconviction motions and hearings . . . , unless all parties
stipulate to the admission of such results.” This exclusion “is
justified by the unreliable nature of polygraph results, by the
concern that jurors will attach unjustified significance to the
fact of or the outcome of such examination and because the
introduction of polygraph evidence can negatively affect the
jury’s appreciation of its exclusive power to judge
credibility.” (People v. Basuta (2001) 94 Cal.App.4th 370,
390.)
There is no suggestion in this record of prosecutorial
misconduct. The prosecutor represented that she informed the
witness not to mention the voice stress analyzer test. Defense
counsel asked the witness an open-ended question about her
interrogation of defendant regarding “general background.”
Defense counsel allowed the witness to ramble beyond general
background to why defendant was being interviewed, if he
objected to being questioned and “how he felt about talking to
[her] about that.” It was only when the witness mentioned she
asked defendant if we would be willing to take a “polygraph or
some sort of lie detector test” that counsel moved on to other
matters.

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Nevertheless, the witness’s testimony violated Evidence
Code section 351.1. The issue is whether that violation was
prejudicial. We measure prejudice under the familiar standard
of People v. Watson (1956) 46 Cal.2d 818, 836. (See People v.
Basuta, supra, 94 Cal.App.4th at p. 391; People v. Schiers
(1971) 19 Cal.App.3d 102, 109.)
Defendant claims three categories of prejudice. First, he
argues “even relatively sophisticated jurors may accept the
polygraph as a very important tool to discover truth” and
preempt their factfinding role. Second, defendant argues that
the fact he was asked if he would be willing to take a polygraph
test demonstrated the officer’s belief that defendant was not
being truthful. Finally, defendant argues that he was
prejudiced by not being permitted to refute the inference that
he was not being truthful. We consider each of these categories
in turn.
In light of the fact that the jury was not told defendant
took a polygraph test or given the results of such test, the
danger of the jury placing too much weight on the truth-seeking
function of a polygraph test is minimal. The witness testified
she asked defendant if he would be willing to take a polygraph
test. The jury was not told defendant’s response. Hence, there
was nothing on which the jury could place too much weight.
Even if the jurors were inclined to speculate, there is no
reason to believe they would have concluded that defendant
declined to take the test or that he took the test and failed.
If indeed there were jurors not willing to follow the court’s

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limiting instruction directing them “not to form any opinions
one way or the other about any kind of a polygraph test,” the
reference defendant complains of would not necessarily have led
jurors still willing to speculate on the point to believe
defendant refused or failed the test. The jurors were, after
all, also told by the trial judge that “polygraph tests are not
admissible in court.” Thus a juror, if he or she were inclined
to wonder about the reference, could as easily have thought that
defendant agreed to take a test and passed it but could not say
so because, as the judge said, such tests are not admissible in
court. Thus, evidence that defendant was asked if he was
willing to take a polygraph test, without more, would not create
a risk of the jury abdicating its factfinding mission.
As to the officer’s opinion that defendant was lying, this
cannot reasonably be inferred from the testimony, considered as
a whole. The witness testified about the questions she asked
defendant. However, none of these questions concerned
defendant’s guilt or innocence. Defendant was asked if he knew
why he was being interviewed and how he felt about being
questioned. He was then asked about the polygraph. Because the
question of the polygraph came before defendant was asked what
happened, there can be no implication the officer believed
defendant was lying.
Finally, as to defendant’s inability to refute the
inference that he was not being believed, again there was no
such inference. Furthermore, defendant was not precluded from
refuting such imagined inference. Defendant sought to present

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evidence that he offered to take a polygraph. However, this
offer came after the close of evidence. Defendant does not
claim that the court abused its discretion in denying him an
opportunity to present such evidence. Had defendant desired to
refute any adverse inference, he could have moved for a mistrial
before the close of evidence in order to question the officer
about defendant’s response.
Defendant further claims prejudice from the fact this was a
close case, coming down to a credibility contest between A. P.
and his denials to A. M. and the police. This is not true. In
addition to A. P.’s testimony, there was evidence that
pornographic tapes were found in the trailer and one of them
matched the description of the tape A. P. said defendant showed
her. One of the tapes contained footage of A. P. in her
bedroom. Finally, A. P.’s cousin testified that on one
occasion, defendant wondered aloud what sex with A. P. would be
like, and defendant admitted to police that he fantasized about
having sex with A. P.
The trial court admonished the jury not to take into
consideration any mention of a polygraph test and not to form
any opinions “about any kind of a polygraph test.” Absent
contrary evidence, we presume the jury followed this admonition.
(People v. Morris (1991) 53 Cal.3d 152, 194.) The admonition
cured any possible prejudice resulting from the witness’s
improper testimony.

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IV
Third Party Culpability Evidence
The People moved in limine to prevent defendant from
presenting evidence on a theory of third party culpability.
Defendant filed a countermotion to permit introduction of such
evidence. Defendant theorized that it was A. P.’s great-
grandfather, W. M., who molested her and not defendant.
Defendant sought to present evidence that W. M. had molested his
own children, that W. M. made a statement to his daughter that
he was preparing her for marriage (which was similar to the
statement defendant purportedly made to A. P. about preparing
her for intercourse), the pornographic tapes found in the
trailer belonged to W. M. and came into defendant’s possession
only after W. M.’s death, and W. M. had access to a camcorder
(suggesting he took the video of A. P. in her bedroom). The
trial court excluded the evidence on the basis of Evidence Code
section 352.
Defendant’s third party culpability theory is far-fetched.
This is not a case where there is evidence of a crime and a
question of who did it. Except for some corroborating evidence,
the only evidence of a crime was the statements and testimony of
A. P. There is no basis for the jury to believe A. P. that she
was molested but disbelieve her identification of the molester.
Even evidence that A. P. had purportedly been molested by W. M.
would not undermine evidence that she had also been molested by
defendant.

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Defendant’s concern over evidence that the videotapes
belonged to W. M. is also not well-founded. The jury was
informed that the tapes belonged to W. M. and that A. P. knew
they were kept under W. M.’s bed. However, those facts do not
disprove evidence that the tapes were ultimately found in the
mobilehome. As to the tape containing footage of A. P., the
fact that W. M. had access to a camcorder owned by his wife is
hardly surprising. In other words, the jury was presented the
evidence defendant sought to introduce about the videotapes.
Evidence Code section 352 permits the exclusion of relevant
evidence where “its probative value is substantially outweighed
by the probability that its admission will (a) necessitate undue
consumption of time or (b) create substantial danger of undue
prejudice, of confusing the issues, or of misleading the jury.”
A determination under Evidence Code section 352 is within the
sound discretion of the trial court, the exercise of which will
not be disturbed on appeal absent a clear showing of abuse.
(People v. Barrow (1976) 60 Cal.App.3d 984, 995, disapproved on
other grounds in People v. Jiminez (1978) 21 Cal.3d 595, 608.)
However, “‘Evidence Code section 352 must bow to the due process
rights of a defendant to a fair trial and to his right to
present all relevant evidence of significant probative value to
his defense.’” (People v. Babbit (1988) 45 Cal.3d 660, 684.)
In this matter, the evidence defendant sought to present
did not have significant probative value. Furthermore, such
evidence had the potential of confusing the issues and
deflecting the jury from the matter at hand. The trial court

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did not abuse its discretion in excluding the proffered
evidence.
Defendant also contends that with the exclusion of third
party culpability evidence, introduction of evidence regarding
the tapes was improper because it amounted to “bad character”
evidence likely to confuse the issues. Defendant moved in
limine to exclude this evidence, but the motion was denied.
As the People correctly point out, regardless of who owned
the videotapes, including the one containing footage of A. P.,
the fact they were found in the mobilehome is probative of
defendant’s guilt. Even if defendant did not take the videotape
of A. P., his possession of the tape was probative of his
interest in her. Any suggestion that defendant was not aware of
what was on the tape was for the jury to decide. The evidence
was properly admitted.
V
Lesser Included Offense Instructions
Defendant contends the trial court erred in failing to
instruct on lesser included offenses. Defendant argues that the
court was required to instruct on nonforcible lewd conduct as a
lesser offense of forcible lewd conduct, on battery and unlawful
sexual intercourse as lesser offenses of forcible rape, and on
contributing to the delinquency of a minor as a lesser offense
of unlawful sexual intercourse. The People concede nonforcible
lewd conduct is a lesser offense of forcible lewd conduct and
battery is a lesser offense of forcible rape. However, they

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argue there is no evidence to support the lesser offense
instructions and, in any event, any failure to give the lesser
offense instructions was harmless.
“[A] trial court must . . . instruct the jury on lesser
included offenses ‘when the evidence raises a question as to
whether all of the elements of the charged offense were present
[citation], but not when there is no evidence that the offense
was less than that charged.’” (People v. Barton (1995) 12
Cal.4th 186, 194-195.) Before a duty to instruct arises, there
must be “some evidence, not merely minimal or insubstantial
evidence but evidence from which a jury could reasonably
conclude, that the offense was less than that charged.” (People
v. Jones (1992) 2 Cal.App.4th 867, 870.)
Inasmuch as we have concluded that defendant’s convictions
on the two forcible rape charges must be reversed, there is no
need to consider whether failure to instruct on battery or
unlawful sexual intercourse as lesser offenses was prejudicial
error.
The People argue that there was no requirement to instruct
on nonforcible lewd conduct as a lesser offense of forcible lewd
conduct because there was no evidence to support the lesser
offense. According to the People, there was no evidence the
offenses were committed without force. Instead, defendant
denied the acts altogether. Thus, so the argument goes,
defendant was guilty of either forcible lewd conduct or nothing.
The People’s argument proves too much. Typically, a
defendant will deny any involvement in the crimes alleged.

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However, that does not mean there is no evidence from which a
reasonable jury could find a lesser offense was committed.
Here, as indicated previously, the evidence of force was less
than overwhelming. Under these circumstances, the jury could
readily have concluded that the lewd act occurred, but defendant
did not use force substantially different from, or substantially
greater than, that necessary to commit the act. A lesser
included offense instruction was therefore warranted.
“When the trial court fails to instruct on lesser included
offenses, reversal is required unless the factual issue raised
by the omitted instructions was necessarily decided adversely to
the defendant under other properly given instructions.” (People
v. Ivans (1992) 2 Cal.App.4th 1654, 1665.) The fact the jury
returned a verdict finding defendant guilty of forcible lewd and
lascivious conduct does not mean it necessarily decided the
issue of force adversely to him. The jury was presented with an
all or nothing choice, either convict defendant of forcible lewd
and lascivious conduct or acquit him altogether. In People v.
Breverman (1998) 19 Cal.4th 142, the Supreme Court said,
“[I]nsofar as the duty to instruct applies regardless of the
parties’ requests or objections, it prevents the ‘strategy,
ignorance, or mistakes’ of either party from presenting the jury
with an ‘unwarranted all-or-nothing choice,’ encourages ‘a
verdict . . . no harsher or more lenient than the evidence
merits’ [citation], and thus protects the jury’s ‘truth-
ascertainment function’ [citation]. . . .” (Id. at p. 155,

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italics omitted.) The trial court was required to instruct the
jury on the full range of possible offenses.
The People contend any error in this regard was harmless
because “[i]t is not reasonably probable a more favorable
outcome would have [been] obtained had the instruction been
given.” However, the People provide no argument or authority
for this assertion. Where a point is raised in an appellate
brief without argument or legal support, “it is deemed to be
without foundation and requires no discussion by the reviewing
court.” (Atchley v. City of Fresno (1984) 151 Cal.App.3d 635,
647.) Defendant’s conviction on the two forcible lewd act
charges must be reversed.
“When a greater offense must be reversed, but a lesser
included offense could be affirmed, we give the prosecutor the
option of retrying the greater offense, or accepting a reduction
of the lesser offense.” (People v. Kelly (1992) 1 Cal.4th 495,
528.) The People shall thus have the option of accepting
reduction of the forcible lewd and lascivious convictions to
nonforcible lewd and lascivious convictions or retrying those
charges.
Defendant contends the court was also required to instruct
on contributing to the delinquency of a minor as a lesser
offense of unlawful sexual intercourse. “Unlawful sexual
intercourse is an act of sexual intercourse accomplished with a
person who is not the spouse of the perpetrator, if the person
is a minor. . . .” (§ 261.5, subd. (a).) Contributing to the
delinquency of a minor is defined as follows: “Every person who

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commits any act or omits the performance of any duty, which act
or omission causes or tends to cause or encourage any person
under the age of 18 years to come within the provisions of
Section 300, 601, or 602 of the Welfare and Institutions Code or
which act or omission contributes thereto, or any person who, by
any act or omission, or by threats, commands, or persuasion,
induces or endeavors to induce any person under the age of 18
years or any ward or dependent child of the juvenile court to
fail or refuse to conform to a lawful order of the juvenile
court, or to do or to perform any act or to follow any course of
conduct or to so live as would cause or manifestly tend to cause
that person to become or to remain a person within the
provisions of Section 300, 601, or 602 of the Welfare and
Institutions Code, is guilty of a misdemeanor . . . .” (§ 272,
subd. (a)(1).)
A lesser offense is necessarily included in another if the
other offense cannot be committed without also committing the
lesser offense. (People v. St. Martin, supra, 1 Cal.3d at p.
536.) In People v. Greer (1947) 30 Cal.2d 589, overruled on
other grounds in People v. Fields (1996) 13 Cal.4th 289, 308,
footnote 6, the state high court concluded that contributing to
the delinquency of a minor is necessarily included within the
crime of unlawful sexual intercourse. (People v. Greer, supra,
at pp. 597-598.) According to the court, “[i]t is inconceivable
that the acts described in [Penal Code] sections 261(1) and 288
would not contribute to the delinquency of a minor.” (People v.
Greer, supra, at p. 597.)

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However, in People v. Bobb (1989) 207 Cal.App.3d 88,
disapproved on other grounds in People v. Barton, supra, 12
Cal.4th at page 198, footnote 7, we concluded that subsequent
amendments to Welfare and Institutions Code section 601 rendered
Greer no longer good law. When Greer was decided, Welfare and
Institutions Code section 702, the predecessor to section 272,
made it a misdemeanor for any person “who commits any act or
omits the performance of any duty, which act or omission causes
or tends to cause or encourage any person under the age of
twenty-one years to come within the provisions of any of the
subdivisions of section 700 . . . .” (Stats. 1937, ch. 369, p.
1033.) Welfare and Institutions Code section 700, the
predecessor of Welfare and Institutions Code section 601,
extended juvenile court jurisdiction to, among others, any
person under the age of 21 “[w]ho is leading, or from any cause
is in danger of leading, an idle, dissolute, lewd or immoral
life.” (Wel. & Inst. Code, § 700, subd. (k), Stats. 1937, ch.
369, p. 1030.)
In 1975, the Legislature eliminated the foregoing language
from section 601. In Bobb, we indicated that “After the 1975
amendment to [Welfare and Institutions Code] section 601, none
of the acts remaining as bases for juvenile court jurisdiction
in that section is so closely related to the elements of
unlawful sexual intercourse that it is necessarily implicated in
the commission of the latter offense. The same may be said also
of [Welfare and Institutions Code] sections 300 and 602. Thus
having sexual intercourse with the minor does not bring her

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within section 602, which confers juvenile court jurisdiction
over minors who commit crimes, for the female minor is a victim
of unlawful sexual intercourse and has committed no crime.
[Citation.] Similarly, section 601 now confers juvenile court
jurisdiction over minors who ‘persistently or habitually
refuse[] to obey the reasonable and proper orders or directions’
of parents or who violate a curfew based on age (subd. (a)), or
who are habitually truant. (Subd. (b).) Even if we presume the
‘orders or directions’ of parents commonly enjoin or encourage
their children to refrain from engaging in sexual intercourse, a
single act of intercourse does not constitute ‘persistent[] or
habitual[]’ refusal to obey. Similarly, a single act of sexual
intercourse has no necessary relationship to curfew violation or
habitual truancy.” (People v. Bobb, supra, 207 Cal.App.3d at
pp. 93-94, fns. omitted.)
Defendant contends section 272 also includes “endeavor[ing]
to induce any person under the age of 18 years . . . to so live
as would cause or manifestly tend to cause that person to become
or to remain a person within” the jurisdiction of the juvenile
court. (§ 272, subd. (a)(1).) Defendant argues that this
language “is very like the omitted archaic language relating to
influences which would tend to cause [minors] to become involved
in ‘idle or immoral conduct.’”
We disagree. Section 272 prohibits conduct that tends to
cause a minor to come within Welfare and Institutions Code
sections 300, 601 or 602. For acts falling within section
261.5, the minor is the victim, not an accomplice. Hence, such

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acts could not tend to induce the minor “to so live as would
cause or manifestly tend to cause” (§ 272, subd. (a)(1)) her to
fall within the jurisdiction of the juvenile court. The court
was not required to instruct on contributing to the delinquency
of a minor.
VI
Motive Instruction
The jury was instructed on motive pursuant to CALJIC No.
2.51 as follows: “Motive is not an element of the crime charged
and need not be shown. However, you may consider motive or lack
of motive as a circumstance in this case. [¶] Presence of
motive may tend to establish the defendant is guilty. Absence
of motive may tend to show the defendant is not guilty.”
Defendant contends it was error to give this instruction
because “in a ‘sexual offense case’ there will always be a
‘sexual motive’ which can be found.” According to defendant,
“[b]y instructing on ‘motive’ as indicative of guilt where the
crime itself supplies the motive, the instruction argues for
guilt.” Defendant also contends “[t]elling [the jurors] that
motive may show ‘guilt’ when there are any number of conceivable
‘motives’ misleads them because it excludes the possibility that
‘motive’ (whatever they imagine it to be) might play no role at
all.”
Defendant further argues that “the instruction conflicted
with the notion that the specific intent was an element of the
crime, and thus caused a very high risk that the jurors, taking

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the instructions together, would find the sexual motivation by
some standard less than beyond a reasonable doubt.” Finally,
defendant argues “[t]he more serious problem in this case is not
that of mistaking the specific intent element but rather simply
using ‘motive’ as proof of guilt.”
Defendant’s fears are not well-founded. Defendant contends
the Supreme Court has observed that in some situations, giving
CALJIC No. 2.51 has been found to be reversible error. However,
the only situation mentioned in the case cited by defendant,
People v. Cash (2002) 28 Cal.4th 703, is where “motive” and
“intent” are used in the instructions interchangeably. (Id. at
pp. 738-739.)
The instructions given here did not create such confusion.
“‘“It is well established in California that the correctness of
jury instructions is to be determined from the entire charge of
the court, not from a consideration of parts of an instruction
or from a particular instruction.”’” (People v. Wilson (1992) 3
Cal.4th 926, 943.) CALJIC No. 2.51 told the jury that motive is
not an element of the crimes charged but may be considered as
tending to prove the defendant is guilty. The jury was not told
motive, in and of itself, sufficed to prove guilt. Defendant
cannot reasonably quarrel with the concept that motive is a
circumstance tending to establish guilt. (See People v. Estep
(1996) 42 Cal.App.4th 733, 738.)
The jury was further instructed on intent as an element of
the various offenses and on reasonable doubt and the presumption
of innocence. The jury was told to consider the instructions as

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a whole and that whether certain instructions apply will depend
on what the jury determines to be the facts. Absent a contrary
indication in the record, we assume the jury followed the
instructions given by the court. (People v. Adcox (1988) 47
Cal.3d 207, 253.) There was no error.
VII
Sex Offense Fine
The abstract of judgment indicates that defendant was
assessed a fine of $200 pursuant to section 1202.5. However,
section 1202.5 reads, in relevant part: “(a) In any case in
which a defendant is convicted of any of the offenses enumerated
in Section 211, 215, 459, 470, 484, 487, 488, or 594, the court
shall order the defendant to pay a fine of ten dollars ($10) in
addition to any other penalty or fine imposed. . . .” Defendant
contends the fine must be stricken, because he was not convicted
of any of the enumerated offenses.
The trial court did not mention section 1202.5 in its
pronouncement of judgment. Instead, the court said “defendant
shall pay a specified sex offense conviction fine of $200.” As
defendant readily acknowledges, section 294, subdivision (b)
authorizes a restitution fine of up to $5,000 for any person
convicted of violating sections 261, 264.1, 285, 286, 288a, or
289 “where the violation is with a minor under the age of 14
years . . . .” Defendant was convicted of five counts of
violating section 288a, and the victim was under the age of 14
years at the time of the offenses.

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“[W]hen . . . the record is in conflict it will be
harmonized if possible; but where this is not possible that part
of the record will prevail, which, because of its origin and
nature or otherwise, is entitled to greater credence.” (People
v. Smith (1983) 33 Cal.3d 596, 599.) The reference to section
1202.5 in the abstract was part of the preprinted form. It was
not entered by the person filling out the form. The transcript
of the sentencing hearing shows no mention of any code section,
only a reference to a “specified sex offense conviction fine.”
Section 294 authorizes imposition of a fine for certain
specified sex offenses. It is clear the court intended
imposition of the fine under this section.
However, section 294, subdivision (b) authorizes a
restitution fine “based on the defendant’s ability to
pay . . . .” Here, there was no determination of defendant’s
ability to pay. Inasmuch as this matter must be remanded for
resentencing, the trial court will have an opportunity to
correct this deficiency.
D ISPOSITION
Defendant’s convictions on counts three and ten, for
forcible rape, and counts four and eleven, for forcible lewd and
lascivious conduct, are vacated. Defendant’s remaining
convictions are affirmed. The matter is remanded to the trial
court so that the prosecution can decide within 60 days of our
remittitur (unless defendant waives that time limit) whether to
retry defendant on those counts or to accept the following: on

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counts three and ten, dismissal (inasmuch as defendant has been
convicted in counts twelve and thirteen of unlawful sexual
intercourse for the same acts); on counts four and eleven,
conviction of nonforcible lewd and lascivious conduct. If the
prosecution does not retry defendant on these counts, the
verdicts on counts three and ten are reversed and the verdicts
on counts four and eleven are modified to nonforcible lewd and
lascivious conduct, and the trial court is directed to
resentence defendant accordingly. On resentencing, the trial
court shall not impose a restitution fine pursuant to section
294, subdivision (b) unless it first determines defendant’s
ability to pay. The court shall prepare an amended abstract of
judgment and to forward a certified copy to the Department of
Corrections.
HULL , J.
We concur:
SCOTLAND , P.J.
MORRISON , J.

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