P v. Chenelle (1st Dist, Div. 1) Battery Is Not a Necessarily Included Lesser Offense of Lewd Acts on a Dependent Adult

Mr. Chenelle, who worked at an adult day care center, was accused of fondling the penis of a mentally and physically disabled client.  Chenelle was charged with violating Penal Code section 288(c)(2), committing a lewd act on a dependent adult while acting as a caretaker.  A jury convicted Chenelle and he appealed, arguing that the trial judge erred in not instructing the jury on the offense of misdemeanor battery, Penal Code section 242.

The First District affirms.

The threshold issue in this case is whether battery is a necessarily included lesser offense of 288(c)(2).  A trial judge must instruct on a necessarily included lesser offense if (a) there is substantial evidence the defendant is guilty on of the lesser.  The applicable test used to be whether the statutory elements of the greater offense include all the elements of the lesser offense.  The elements of 288(c)(2) being:

[1] the defendant was a caretaker of a dependent person;
[2] the defendant, while serving as caretaker, wilfully committed a lewd or lascivious act on that person; and,
[3] the defendant committed the act with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of himself or the dependent person.

And the elements of 242, battery, being:

[1] the defendant willfully and unlawfully touched a person; and,
[2] the touching was done in a harmful or offensive manner.

Under this test, I would find that 288(c)(2) does not necessarily include all the elements of 242 because 288(c)(2) does not require the act (touching) to be offensive or harmful to the victim.  As I read the statutes, even if a dependent person desired sexual contact with a caretaker and was happy and satisfied to have received it while a charge of the caretaker, the elements of 288(c)(2) would still be satisfied.  

But alas, the case is not that simple.  During a period when the California Supreme Court's capacity for scholarship and pragmatism was at a nadir, Justice Chin penned his absurd opinion in the case of P v. Shockley.  Shockley dealt with an analogous issue of whether battery was a necessarily included lesser offense of lewd conduct on a minor under 14. As he is wont to do, rather than apply a recognized legal rule honed by years of experience and examination, Justice Chin creates his own tautological legal standard, and in doing so injects some unneeded novelty into the mix. 

Justice Chin's new "test" involves examining whether the "same evidence is required to support all elements of both offenses".  If so, then neither offense is a lesser of the other.  This is really nothing more than an unnecessary restatement of the question of whether substantial evidence exists that the defendant is guilty of only the lesser (the secondary requirement for the duty to instruct on a lesser).  Admirably, the panel here tacitly points out this fact and after applying Justice Chin's Delphic rule, finds that even if 242 is a necessarily included lesser offense, here there was no substantial evidence Chenelle was guilty of only the lesser.