ALDRICH, J.
A jury convicted defendant and appellant Guillermo Villasenor of two counts of lewd conduct with a minor and of sexual penetration of a child under 10 years old. He contends on appeal that there was prejudicial instructional error, that there was insufficient evidence to support his conviction for forcible sexual penetration, that the prosecutor committed prejudicial misconduct, and that the trial judge was biased. We reject these contentions and affirm the judgment.
Julie G. was eight years old in November 2008. She lived near Denise V., and they played together. On November 28, 2008, Julie and her younger brother went to Denise's house. While Denise's and Julie's brothers played video games in the living room, the two girls went into the boys' bedroom to watch TV. Denise's father, defendant, lay on the bed with Julie and Denise to watch TV.
Denise left the room to get something to eat, leaving Julie alone with defendant. Defendant kissed Julie on the side of her face. He slid his hand down the back of her pants and beneath her underwear, putting a finger inside her vagina. Defendant next pulled his erect penis from his pants and put Julie's hand on it. Grabbing Julie by the neck, he forced her head down to his penis until it touched her face. Something, which Julie described as "like a little saliva mark" and "white," came out of defendant's penis. At some point, defendant tried to put his penis inside Julie's bottom. Julie went to the bathroom and put a bar of soap in her mouth to wash it out.
She and her brother went home, to their mother, Jennifer. Putting her head on her mother's leg, and looking as if the "life had [gone] out of her," Julie said she didn't want to go outside any more, that something was wrong. Pointing to her vagina, Julie said that defendant touched her in her pants. Jennifer asked if that was true, because she would have to call the police and somebody would get in trouble. When Julie said she was telling the truth, Jennifer called the police.
Arcadia Police Officer Brad Jackson responded to the call. Speaking to Julie while they were alone, Julie said that defendant reached inside her pants, beneath her underwear, and it felt like he put a finger in her "`private.'" Defendant then pulled her head toward his exposed penis, and when his penis touched her cheek a clear, watery substance came out. It ran down her cheek and possibly went into her mouth. Julie identified defendant, who had been detained outside his residence.
After Julie spoke to the police, she was taken to the Children's Center, a facility specializing in sexual assault incidents. Sandra Wilkinson, a certified sexual assault nurse examiner, interviewed and examined Julie outside her mother's presence. From a monitor outside the room, Officer Jackson watched the examination. Julie told Nurse Wilkerson that defendant kissed her, putting his tongue inside her mouth.
After interviewing Julie, Nurse Wilkinson examined her. The nurse took swabs from Julie's mouth, chin, hand, arm, and buttocks. An ultraviolet light that causes fluorescence of some substances like semen, showed florescence on Julie's buttocks and on an arm. Using a colposcope, the nurse saw a laceration and redness on Julie's labia minora, but her hymen was intact without lacerations. Her perineum and anus were normal, without bleeding. The physical examination was consistent with Julie's story, and Nurse Wilkinson noted that sexual abuse was highly suspected.
Of Julie's clothing, only one stain on her underwear tested positive for the possible presence of semen. The criminalist, however, was unable to visualize any sperm; therefore, sperm was not "detected," it was only "indicated." A swab from Julie's face and her underwear were also subjected to DNA testing. There was insufficient material on the face swab to do testing, although it was determined that male material was on the swab. After subjecting the DNA from Julie's underwear to a process to separate sperm cells from epithelial skin cells, the criminalist was able to exclude Julie as a possible contributor to those samples. The criminalist then processed a DNA sample from defendant to obtain his DNA profile. Defendant was a possible contributor to the epithelial and sperm fractions. One in 12.9 quintillion Hispanics possess the DNA markers in Julie's underwear, and defendant was included as such a person.
On October 9, 2009, a jury found defendant guilty of: counts 1 and 3, lewd act upon a child (Pen. Code, § 288, subd. (a)),
After denying defendant's motion for a new trial on February 25, 2010, the trial court sentenced defendant to a 15-years-to-life term on count 2, to a consecutive six-year term on count 1, and to a consecutive two-year term on count 3.
The jury found defendant guilty of counts 1 and 3 for committing a lewd act on a child (§ 288, subd. (a)). Defendant contends that the trial court had a sua sponte duty to instruct on battery as a lesser included offense to these counts. Battery, however, is not a necessarily lesser included offense of committing a lewd act on a child, and therefore there was no such duty.
"An offense is necessarily included . . . if the charged offense, either by statutory definition or as described in the accusatory pleading, cannot be committed without also committing the lesser offense." (People v. Santos (1990) 222 Cal.App.3d 723, 738.) Section 288, subdivision (a), states that "any person who willfully and lewdly commits any lewd or lascivious act . . . upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony . . . ." Battery, however, is "any willful and unlawful use of force or violence upon the person of another." (§ 242.) Any harmful or offensive touching satisfies the element of unlawful use of force or violence. (People v. Pinholster (1992) 1 Cal.4th 865, 961, overruled on other grounds by People v. Williams (2010) 49 Cal.4th 405, 459.)
Santos found, albeit without analysis, that battery is not a lesser included offense of battery. (People v. Santos, supra, 222 Cal.App.3d at p. 739.) Thereafter, People v. Thomas (2007) 146 Cal.App.4th 1278 (Thomas), disagreed and found that battery is a lesser included offense of committing a lewd act against a child. (Accord, People v. Gray (Sept. 14, 2011, B224430) ___ Cal.App.4th ___ [2011 WL 4060299].) Thomas focused on the element of touching, finding that "[l]ike battery, lewd acts requires `a "touching" of the victim.'" (Id. at p. 1293.) To support that proposition, Thomas relied on People v. Martinez (1995) 11 Cal.4th 434, 444 (Martinez). Martinez, however, merely rejected the suggestion that section 288 requires the victim to be touched in an inherently lewd manner. (Martinez, at p. 442.) Instead, the section is violated "by `any touching' of an underage child committed with the intent to sexually arouse either the defendant or the child." (Ibid.) The court thus focused on the intent to sexually exploit the child. (Id. at pp. 444, 450.)
We therefore can conceive of situations where a sexually motivated touching occurs that violates section 288 but is not a battery, that is, a harmful or offensive touching; for example, an uncle, to sexually gratify himself, hugs or tickles his niece, who thinks they are merely playing an innocent game. (See Martinez, supra, 11 Cal.4th at p. 450 ["It is common knowledge that children are routinely cuddled, disrobed, stroked, examined, and groomed as part of a normal and healthy upbringing. On the other hand, any of these intimate acts may also be undertaken for the purpose of sexual arousal. Thus, depending upon the actor's motivation, innocent or sexual, such behavior may fall within or without the protective purposes of section 288"].) Although, per Martinez, any touching could form the basis for a violation of section 288, Martinez did not hold or necessarily support the conclusion that all sexually motivated touchings are also batteries.
Even if battery is a lesser included offense of committing a lewd act, the trial court here still did not have a sua sponte duty to instruct on it. A trial court must instruct the jury, sua sponte, on the general principles of law that are closely and openly connected to the facts and that are necessary for the jury's understanding of the case. (People v. Moye (2009) 47 Cal.4th 537, 548; People v. Breverman (1998) 19 Cal.4th 142, 154.) Instructions on a lesser included offense must be given when there is substantial evidence from which the jury could conclude the defendant is guilty of the lesser offense, but not the charged offense. (People v. Manriquez (2005) 37 Cal.4th 547, 584; People v. Cook (2006) 39 Cal.4th 566, 596.) Substantial evidence is evidence that a reasonable jury could find persuasive. (Manriquez, at p. 584.)
Here, if defendant was guilty of counts 1 and 3 at all, he was guilty of committing a lewd act and not merely of battery. The only evidence was that defendant kissed Julie and put his hand down her pants. Then, after digitally penetrating her vagina, defendant made Julie grab his penis. If the jury believed that these acts occurred, then defendant necessarily committed them with the intent of arousing, appealing to, or gratifying his or the child's lust, passions, or sexual desires. There was no evidence that these acts occurred for a nonsexually-motivated purpose.
Defendant contends that the trial court erred by failing to give sua sponte a unanimity instruction as to counts 1 and 3, both of which alleged that defendant committed lewd and lascivious acts against Julie. We disagree that a unanimity instruction was required.
A jury verdict must be unanimous in a criminal case. (People v. Russo (2001) 25 Cal.4th 1124, 1132.) The unanimity requirement is intended to eliminate the danger that the defendant will be convicted even though there is no single offense that all jurors agree he or she committed. (Ibid.) "In deciding whether to give the instruction, the trial court must ask whether (1) there is a risk the jury may divide on two discrete crimes and not agree on any particular crime, or (2) the evidence merely presents the possibility the jury may divide, or be uncertain, as to the exact way the defendant is guilty of a single discrete crime. In the first situation, but not the second, it should give the unanimity instruction." (Id. at p. 1135.) A unanimity instruction is thus appropriate when conviction on a single count could be based on two or more discrete criminal events but not where multiple theories or acts may form the basis of a guilty verdict on one discrete criminal event. (Ibid.) Where required, a unanimity instruction must be given sua sponte. (People v. Dieguez (2001) 89 Cal.App.4th 266, 274-275.)
Defendant here argues that the unanimity instruction was required because no less than eight acts could have formed the basis for a guilty finding on counts 1 and 3. This is not so. Count 3 quite clearly concerned one specific act: defendant taking Julie's hand and placing it around his penis. The prosecutor in closing argument specified that count 3 referred to defendant forcing Julie to grab his penis. The jury was also specifically instructed that for count 3 the People had to prove that "[t]he defendant willfully caused a child to touch his own body, the defendant's body, or the body of someone else, either on the bare skin or through the clothing; . . ." (Italics added.) It was very clear that count 3 specifically concerned defendant's act of grabbing Julie's hand and placing it around his penis, and the jury asked no questions about that count. No unanimity instruction was therefore required to direct the jury what act comprised the crime as between counts 1 and 3.
What act or acts comprised the lewd act alleged in count 1, however, was less clear. The prosecutor in closing argument said count 1 referred to "the vaginal touching when [defendant] placed his hands down her pants." The jury was broadly instructed that to prove that defendant violated section 288, subdivision (a), the People had to prove, among other elements, "1. The defendant willfully touched any part of a child's body either on the bare skin or through the clothing; . . ." The jury asked: "Re: count #1—Does the touching refer[r]ed to only include vaginal touching or touching by the defendant with any part of his body to any part of Julie G.'s body[?]" The court answered, "The touching can be any part of defendant's body to any part of Julie G.'s body."
Defendant points out that there were conceivably multiple, sexually motivated touchings; for example, the kiss, defendant sliding his hand down Julie's pants, and defendant putting his penis on Julie's cheek. This conduct, however, all occurred on a single day during a very discrete and unbroken time period, lasting minutes. Under such circumstances, where the evidence shows one criminal act or multiple acts in a continuous course of conduct, that is, where the acts alleged are so closely connected as to form part of one continuing transaction or course of conduct a unanimity instruction is not required. (People v. Stankewitz (1990) 51 Cal.3d 72, 100; People v. Benavides (2005) 35 Cal.4th 69, 98; People v. Avina (1993) 14 Cal.App.4th 1303, 1309.) The continuous conduct rule also applies when a defendant offers essentially the same defense to each of the acts, and there is no reasonable basis for jurors to distinguish between them. (Stankewitz, at p. 100.) The defense here was the lewd acts did not occur and Julie lied.
The jury found defendant guilty of count 2, forcible digital penetration. Defendant now challenges that verdict on three grounds: (A) There was insufficient evidence to support it; (B) The trial court failed to sua sponte instruct on the lesser included offenses of attempted penetration and of assault with intent to commit penetration; and (C) The trial court failed to instruct the jury on an element of the offense.
Pointing to questions the jury raised during deliberation, requests for readback, and defense theories about Julie's injuries, defendant argues that there was a reasonable doubt whether the penetration occurred; hence, there was insufficient evidence to support the verdict on count 2 for forcible digital penetration. The standard of review, however, requires us to "review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] . . . `"Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court[,] which must be convinced of the defendant's guilt beyond a reasonable doubt. `"If the circumstances reasonably justify the trier of fact's findings, . . . that . . . does not warrant a reversal of the judgment."' [Citations.]"' [Citation.]" (People v. Rodriguez (1999) 20 Cal.4th 1, 11.)
By recycling defense theories raised at trial that Julie was not credible and that the injuries were self-inflicted, defendant asks us to reweigh the evidence. That, the standard of review forbids. The standard of review requires us to view the evidence in the light most favorable to the outcome. Here, Julie testified that defendant put his finger in her vagina. Her testimony, being not physically impossible or inherently improbable, was sufficient to prove a disputed fact and support the conviction. (Evid. Code, § 411; People v. Young (2005) 34 Cal.4th 1149, 1181.) But other evidence supported the conviction, namely, the injuries to Julie's labia minora and the DNA evidence. This evidence was more than sufficient to support the judgment on count 2.
Defendant's next contention concerning count 2, forcible digital penetration, is the trial court should have sua sponte instructed the jury on attempted penetration and on assault with intent to commit penetration. As we have said above, a trial court must instruct the jury, sua sponte, on a lesser included offense when there is substantial evidence from which the jury could conclude the defendant is guilty of the lesser offense, but not the charged offense. (People v. Manriquez, supra, 37 Cal.4th at p. 584; People v. Cook, supra, 39 Cal.4th at p. 596.) We disagree that the court had any such duty.
Here, defendant's argument that the jury should have been instructed on the lesser included offenses is premised on the alleged lack of evidence to support the "penetration" element of a section 288.7 offense. Section 288.7 provides: "(b) Any person 18 years of age or older who engages in oral copulation or sexual penetration, as defined in Section 289, with a child who is 10 years of age or younger is guilty of a felony . . . ." "`Sexual penetration'" is defined as "the act of causing the penetration, however slight, of the genital or anal opening of any person . . . for the purpose of sexual arousal, gratification, or abuse by any foreign object, substance, instrument, or device, or by any unknown object." (§ 289, subd. (k)(1).) There was no evidence that defendant merely attempted to penetrate Julie. Rather, Julie testified that defendant put his finger inside her vagina. When she later urinated, it hurt. Julie also told Officer Jackson and Nurse Wilkinson that it felt like defendant put a finger in her private. An examination of Julie revealed a laceration on her labia minora, and Nurse Wilkinson concluded that sexual abuse was highly suspected.
Instead of discussing this evidence or what other evidence allegedly supported giving the lesser included instructions, defendant focuses on what happened during jury deliberations: the jury asked for readback of "the laceration part" of Nurse Wilkinson's testimony, of Julie's entire testimony, and of the defense's expert nurse witness. The jury also later asked for clarification "as to where the (genital) vaginal opening begins[,] [a]s specified in Count 2." The court answered this second question with this additional instruction: "The external female genitalia are referred to as the `vulva' and include the labia majora, labia minora, clitoris and vestibule of the vagina." These requests for readback and questions do not demonstrate that the jury was considering whether defendant "stopped short of achieving penetration," as defendant argues. The jury could have been considering whether penetration happened at all and what caused the laceration; hence, the request for readback of both nurse expert witnesses. In any event, there was insufficient evidence to support instruction on the lesser included offenses.
The trial court here failed to instruct the jury on an element of the offense. To be guilty of the crime of sexual penetration under section 288.7, subdivision (b), the People must prove that penetration occurred for the purpose of sexual arousal, gratification, or abuse by any foreign object, substance, instrument, or device, or by any unknown object. (§ 289, subd. (k)(1); CALCRIM No. 1100.) The trial court, however, omitted the emphasized element when it instructed the jury that the People merely had to prove (1) that the defendant participated in an act of sexual penetration with Julie, (2) that the penetration was accomplished by using a foreign or unknown object, and (3) at the time of the act, Julie was under the age of 10. This failure to instruct the jury on all elements of an offense is a constitutional error subject to harmless error. "Under state law, instructional error that withdraws an element of a crime from the jury's consideration is harmless if there is `no reasonable probability that the outcome of defendant's trial would have been different had the trial court properly instructed the jury.' [Citations.] Under federal law, the `Fifth Amendment right to due process and Sixth Amendment right to jury trial . . . require the prosecution to prove to a jury beyond a reasonable doubt every element of a crime.' [Citations.] Accordingly, a trial court's failure to instruct on an element of a crime is federal constitutional error that requires reversal of the conviction unless it can be shown beyond a reasonable doubt that the error did not contribute to the jury's verdict. [Citations.]" (People v. Cole (2004) 33 Cal.4th 1158, 1208-1209.)
The error was harmless under both state and federal law. As defendant lay beside Julie, he kissed her face, slid his hand down the back of her pants and beneath her underwear, put a finger inside her vagina, and made Julie grab his erect penis. He then forced her head down to his penis and, inferentially, ejaculated. In the context of all this and in the absence of any defense theory offering some innocent explanation, defendant could have only penetrated Julie for the purposes of sexual gratification or abuse. No reasonable jury, having concluded that the penetration occurred, could have found otherwise on the missing element. In fact, the jury found that defendant committed the two acts of lewd conduct (counts 1 and 3) for the purpose of sexual arousal, gratification or abuse. The jury would not have found differently on count 2.
Defendant contends that the prosecutor engaged in multiple acts of prejudicial misconduct. We find that any misconduct was not prejudicial.
"The applicable federal and state standards regarding prosecutorial misconduct are well established. `"A prosecutor's . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct `so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.'"' [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves `"`the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.'"' [Citation.]" (People v. Samayoa (1997) 15 Cal.4th 795, 841.) "As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion—and on the same ground—the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety. [Citation.]" (Ibid.; see also People v. Thompson (2010) 49 Cal.4th 79, 126.) When a claim of prosecutorial misconduct focuses on comments made by the prosecutor to the jury, we inquire whether there is a reasonable likelihood that the jury construed or applied any of the challenged remarks in an objectionable fashion. (Thompson, at p. 127; Samayoa, at p. 841.) Misconduct that infringes upon a defendant's constitutional rights mandates reversal of the conviction unless the reviewing court determines beyond a reasonable doubt that it did not affect the jury's verdict. (Chapman v. California (1967) 386 U.S. 18; People v. Harris (1989) 47 Cal.3d 1047, 1083.) A violation of state law only is cause for reversal when it is reasonably probable that a result more favorable to the defendant would have occurred had the district attorney refrained from the untoward comment. (People v. Watson (1956) 46 Cal.2d 818.) In either case, only misconduct that prejudices a defendant requires reversal (People v. Fields (1983) 35 Cal.3d 329, 363), and a timely admonition from the court generally cures any harm (People v. Pigage (2003) 112 Cal.App.4th 1359, 1375).
Defendant points to repeated instances of alleged prosecutorial misconduct. The first concerned photographs taken of Julie at the examination immediately after the event and at a follow-up examination. Defense counsel used those photographs during her cross-examination of Nurse Wilkinson. Although the People gave those photographs to the defense, the prosecutor, on redirect examination of the nurse, insinuated that the defense had distorted the photographs. At sidebar, the trial court admonished the prosecutor to clear it up because it was "highly prejudicial to the defense." The prosecutor, albeit with a distinct lack of civility, agreed to stipulate that the People provided the photographs to the defense. Given this stipulation and given the isolated nature of the prosecutor's insinuation that the defense distorted evidence, we conclude it is unlikely that the jury accepted the prosecutor's improper implication. The misconduct was therefore not prejudicial.
The next alleged instances of misconduct concern the prosecutor impugning defense counsel. (See generally, People v. Redd (2010) 48 Cal.4th 691, 734 ["`A prosecutor commits misconduct if he or she attacks the integrity of defense counsel, or casts aspersions on defense counsel'"].) While defense counsel was cross-examining Gregory Hadinoto, a criminalist who testified for the People, about an instruction manual, the prosecutor interjected, "I'm seeing this for the first time." Out of the jury's presence, defense counsel objected to the prosecutor's comment. The trial court told the prosecutor that the defense wasn't required to produce impeachment evidence and that the proper way to raise an issue was at sidebar, so as "to avoid an unreasonable inference to the jurors." Soon thereafter, however, defense counsel was preparing to approach another witness with a book when the prosecutor again indicated that defense counsel shouldn't approach the witness because she, the prosecutor, hadn't seen the book. The trial court told defense counsel to show the book to the prosecutor before approaching and said that any other issue could be addressed at sidebar.
Although improper, we cannot say that this rose to the level of misconduct. The prosecutor's first comment that she hadn't seen the impeachment material was not necessarily a comment on defense counsel's integrity, and it is not clear that the jury would have interpreted the statements as implying that defense counsel had withheld materials from the prosecutor. The prosecutor's second comment—telling defense counsel not to approach the witness until the prosecutor had seen the book—was a thoughtless violation of the court's prior admonition to make such requests at sidebar. Nonetheless, this isolated and minor incident is a far cry from the prosecutor in People v. Pigage, supra, 112 Cal.App.4th 1359, who flatly told the trial court he would violate the court's order.
Finally, to demonstrate the widespread nature of the misconduct, defendant cites other comments the prosecutor made. In front of the jury, the prosecutor allegedly usurped the trial court's function
Based on a single incident occurring during jury deliberations and outside the jury's presence, defendant contends that the trial was conducted by a biased decisionmaker. The contention is meritless.
During the second day of jury deliberations, the trial court raised an issue. Concerned about germs, the trial judge had been spraying the back of the courtroom when he found on a bench where the defendant's daughter had been sitting these inscriptions: "`fuck this court,'" "`fuck D.A.,'" and, underneath that, "judg" [sic].
Defendant, however, contends that the trial judge should have recused himself. Instead, he proceeded to preside over jury deliberations, responding to the jury's questions, and over sentencing. But mere expressions of opinion by a trial judge based on actual observation of the witnesses and evidence in the courtroom do not demonstrate a bias. (Moulton Niguel Water Dist. v. Colombo (2003) 111 Cal.App.4th 1210, 1219-1222.) On appeal, we assess whether any judicial misconduct or bias was so prejudicial that it deprived defendant of "`a fair, as opposed to a perfect, trial.'" (People v. Snow (2003) 30 Cal.4th 43, 78.) No objection was made either to the trial judge continuing to preside over the case or to the responses to the jury's questions on the ground that the judge was somehow biased. Moreover, defendant has no direct complaints about the trial judge's responses to the jury's questions or his sentence. And we do not see how this single incident occurring at the conclusion of trial could have denied defendant due process and an impartial judge.
Defendant contends that the cumulative effect of any purported errors undermined the fundamental fairness of the trial. As we have "`either rejected on the merits defendant's claims of error or have found any assumed errors to be nonprejudicial,' "we reach the same conclusion with respect to the cumulative effect of any purported errors. (People v. Cole, supra, 33 Cal.4th at pp. 1235-1236.)
The judgment is affirmed.
KLEIN, P. J. and CROSKEY, J., concurs.
