Filed 12/26/13

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, )

)

Plaintiff and Respondent, )

) S189462

v. )

) Ct.App. 5 F058249

THOMAS RAYMOND SHOCKLEY, )

) Stanislaus County

Defendant and Appellant. ) Super. Ct. No. 1238243

____________________________________)

We must decide whether battery is a lesser and necessarily included offense 

of lewd and lascivious conduct with a child under 14 years of age (hereafter 

referred to as lewd conduct). We conclude it is not.

I. FACTUAL AND PROCEDURAL BACKGROUND

On October 17, 2007, defendant Thomas Raymond Shockley attended a 

family gathering in Modesto to celebrate victim Jane Doe’s 10th birthday. Jane, 

the stepdaughter of defendant’s adult daughter, was not biologically related to 

defendant, but Jane often called him “grandpa.” When Jane was alone at the 

computer, defendant kissed her on the lips and stuck his tongue in her mouth.

Two days later, as a birthday present to Jane, defendant took Jane and her 

nine-year-old stepsister (defendant’s biological granddaughter) to the movies. On 

the drive home, Jane sat between defendant and her stepsister in the front seat. 

After Jane took off her sweatshirt, defendant began rubbing her bare stomach, near 

her belly button, with his hand. When Jane asked defendant if she could steer the 
2

car, defendant told her to put her leg over his leg. Defendant rubbed Jane’s genital 

area with his hand through her clothes for about five minutes. After giving her 

stepsister a worried look, Jane asked to switch seats with her.

When they got home, Jane told her stepsister what had happened in the car. 

She also told her father, who later called police. Modesto Police Officer Scott 

Nelson interviewed defendant. Defendant admitted rubbing Jane’s stomach and 

poking her belly button. He said “his girlfriend would do the same thing to him

just for fun.” He denied rubbing Jane’s genital area. Defendant said Jane could 

have thought he kissed her with his mouth open because at the theater, he spilled 

soda on his mouth and was licking the soda off with his tongue when Jane leaned 

over and kissed him. Defendant also thought that Jane might have said those 

things about him because she had had large coffee drinks after the movie, and the 

caffeine might have affected her thinking.

A jury found defendant guilty of lewd conduct under Penal Code section 

288, subdivision (a) (section 288(a)). 

 On appeal, he argued that the trial court had 

a sua sponte duty to instruct the jury on battery under Penal Code section 242 

(section 242) as a lesser and necessarily included offense of lewd conduct. The 

Court of Appeal disagreed and affirmed the judgment. We granted defendant’s 

petition for review.

II. DISCUSSION

A trial court has a sua sponte duty to “instruct on a lesser offense 

necessarily included in the charged offense if there is substantial evidence the 

defendant is guilty only of the lesser.” (People v. Birks (1998) 19 Cal.4th 108, 

118) Substantial evidence in this context is evidence from which a reasonable jury 

could conclude that the defendant committed the lesser, but not the greater, 

offense. (People v. Ochoa (1998) 19 Cal.4th 353, 422.) “The rule’s purpose is . . . 

to assure, in the interest of justice, the most accurate possible verdict encompassed 
3

by the charge and supported by the evidence.” (People v. Breverman (1998) 19 

Cal.4th 142, 161.) In light of this purpose, the court need instruct the jury on a 

lesser included offense only “[w]hen there is substantial evidence that an element 

of the charged offense is missing, but that the accused is guilty of” the lesser 

offense. (People v. Webster (1991) 54 Cal.3d 411, 443.)

To determine if an offense is lesser and necessarily included in another 

offense for this purpose, we apply either the elements test or the accusatory 

pleading test. “Under the elements test, if the statutory elements of the greater 

offense include all of the statutory elements of the lesser offense, the latter is 

necessarily included in the former. Under the accusatory pleading test, if the facts 

actually alleged in the accusatory pleading include all of the elements of the lesser 

offense, the latter is necessarily included in the former.” (People v. Reed (2006) 

38 Cal.4th 1224, 1227-1228.) In this case, because the information charging 

defendant with lewd conduct simply tracked section 288(a)’s language without 

providing additional factual allegations, we focus on the elements test. (People v. 

Anderson (1975) 15 Cal.3d 806, 809.)

Under section 288(a), “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.” “Any touching of a child under the age of 14 violates this 

section, even if the touching is outwardly innocuous and inoffensive, if it is 

accompanied by the intent to arouse or gratify the sexual desires of either the 

perpetrator or the victim.” (People v. Lopez (1998) 19 Cal.4th 282, 289.) By 

focusing on the defendant’s intent to sexually exploit a child rather than on the 

nature of the defendant’s offending act, section 288 “assumes that young victims 
4

suffer profound harm whenever they are perceived and used as objects of sexual 

desire.” (People v. Martinez (1995) 11 Cal.4th 434, 444.)

“A battery is any willful and unlawful use of force or violence upon the 

person of another.” (§ 242.) “Any harmful or offensive touching constitutes an 

unlawful use of force or violence” under this statute. (People v. Martinez (1970) 3 

Cal.App.3d 886, 889, quoted in People v. Pinholster (1992) 1 Cal.4th 865, 961.) 

“It has long been established that ‘the least touching’ may constitute battery. In 

other words, force against the person is enough; it need not be violent or severe, it 

need not cause bodily harm or even pain, and it need not leave a mark.” (1 Witkin 

& Epstein, Cal. Criminal Law (4th ed. 2012) Crimes Against the Person, § 13, p. 

804; see People v. Rocha (1971) 3 Cal.3d 893, 899, fn. 12.)

Without analysis, the court in People v. Santos (1990) 222 Cal.App.3d 723, 

739, stated that battery is not a lesser included offense of lewd conduct. In People 

v. Thomas (2007) 146 Cal.App.4th 1278, 1291-1293, the court disagreed with 

Santos and held that battery is a lesser included offense of lewd conduct. It 

rejected the People’s argument that lewd conduct does not require an actual 

touching but battery does. It also noted that the “People do not dispute that any 

lewd act within the meaning of section 288 is necessarily a harmful or offensive 

touching.” (Thomas, supra, at p. 1292, fn. 8, citing People v. Martinez, supra, 11 

Cal.4th at p. 444.) We must resolve the conflict between these cases.

In this case, the People do dispute that a lewd act is necessarily a harmful or 

offensive touching, as battery requires. They argue that “a lewd act with a child 

does not always involve touching the victim in a harmful or offensive manner.” 

Defendant argues to the contrary that touching a child with lewd intent is 

inherently harmful and objectively offensive, and, accordingly, every touching that 

satisfies the elements of section 288(a), because done with lewd intent, necessarily 
5

is harmful or offensive for purposes of the battery statute. (Citing J.C. Penney 

Casualty Ins. Co. v. M.K. (1991) 52 Cal.3d 1009, 1026.)

We need not resolve this point. If we were to agree with defendant, that 

would mean this form of battery (where lewd conduct supplies the required 

harmful or offensive touching) is not a lesser and included offense of lewd 

conduct but is essentially the identical offense. If guilt of battery is predicated on 

guilt of lewd conduct — i.e., if a person guilty of lewd conduct is automatically

also guilty of battery — there would be no elements of battery not also required of 

lewd conduct. Substantial evidence could never exist that an element of the lewd 

conduct offense is missing but that the defendant is guilty of battery as a lesser 

included offense. (See People v. Webster, supra, 54 Cal.3d at p. 443.) A jury 

could never find the defendant not guilty of lewd conduct (perhaps because of the 

lack of lewd intent), but guilty of battery, without finding some other element of 

battery not included within lewd conduct. Accordingly, even under defendant’s 

argument, the court would never have to instruct on battery as a lesser included 

offense of lewd conduct.

One can easily commit battery without also committing lewd conduct, as 

when a person touches a child nonconsensually and harmfully but without lewd 

intent. In this situation, an element of the battery, the unwanted use of force, 

would not be included within the elements of lewd conduct. It would be a distinct 

requirement. For this reason, in a given case, the prosecutor might choose to 

charge a defendant with both lewd conduct and battery. If the touching of a child 

was nonconsensual and harmful, and thus a battery for reasons unrelated to any 

lewd intent, and if the evidence of lewd intent, although sufficient to go to a jury, 

was ambiguous enough that a jury might not find that intent, the prosecution might 

want to charge both lewd conduct and battery. The prosecution would have 

discretion to charge both crimes if it believed the facts warranted both charges. 
6

(See People v. Eubanks (1996) 14 Cal.4th 580, 589.) If both crimes are charged, 

and depending on how it viewed the facts, the jury could find the defendant guilty 

of both crimes if it found the elements of each had been proven, or of either one, 

or of neither.

In response to the concurring and dissenting opinion, we merely conclude 

that when the elements of two offenses are essentially identical, as when guilt of 

battery would be predicated on being guilty of lewd conduct, neither is a lesser 

and included offense of the other. The concurring and dissenting opinion argues 

that if only lewd conduct is charged, and the jury finds no lewd intent, it should be 

permitted to convict the defendant of battery if it finds an offensive touching on 

some basis other than lewd intent. However, “[a] criminal defendant must be 

given fair notice of the charges against him in order that he may have a reasonable 

opportunity properly to prepare a defense and avoid unfair surprise at trial.” 

(People v. Anderson, supra, 15 Cal.3d at p. 809.) Convincing the jury there was 

no lewd intent would be a complete defense to a lewd conduct charge. Charging 

only lewd conduct would not provide the defendant with notice of the need to 

defend additionally against a battery charge based on an offensive touching not 

included within the elements of lewd conduct.

For these reasons, battery is not a lesser included offense of lewd conduct. 

Accordingly, if only lewd conduct is charged, the trial court has no duty to instruct 

on battery as a lesser included offense. Of course, if both lewd conduct and 

battery are charged, the court would have to instruct on battery, but that would be 

as a separately charged offense, and not as a lesser included offense.
7

III. CONCLUSION

We affirm the judgment of the Court of Appeal. We also disapprove 

People v. Thomas, supra, 146 Cal.App.4th 1278, to the extent it is inconsistent 

with this opinion.

CHIN, J.

WE CONCUR:

CANTIL-SAKAUYE, C. J.

BAXTER, J.

CORRIGAN, J.

LIU, J.
1

CONCURRING AND DISSENTING OPINION BY KENNARD, J.

The majority holds that battery (Pen. Code, § 242; all unspecified statutory 

citations are to this code) is not a lesser offense necessarily included within the 

crime of lewd conduct with a child younger than 14 years (§ 288, subd. (a)). I 

disagree, as in my view a lewd act on a child is always a battery. Nevertheless, I

agree with the majority’s affirmance of the Court of Appeal’s judgment because, 

on the facts presented, no reasonable jury could have concluded that defendant 

committed only the lesser offense of battery, but not the greater offense of lewd 

conduct with a child.

I

On October 17, 2007, defendant Thomas Raymond Shockley was at a 

family party in Modesto, California, to celebrate the 10th birthday of Jane Doe, the 

stepdaughter of defendant’s adult daughter, Hannah. On this occasion, defendant 

kissed Jane on the lips, inserting his tongue into her mouth.

Two days later, defendant took Jane and her nine-year-old stepsister 

(Hannah’s daughter from a prior relationship) to a movie theater. On the drive 

home, Jane sat between defendant and her stepsister. Defendant put his arm 

around Jane’s shoulder and began rubbing her stomach. When Jane asked if she 

could steer the car, defendant told her to put her leg over his leg. Then, for about 

five minutes, while Jane’s hands were on the steering wheel, defendant rubbed her

vaginal area with his hand outside her clothes.
2

When they got home, Jane and her stepsister went into Jane’s bedroom. 

Crying, Jane told her stepsister what had happened in the car. Jane then told her 

father, who called the police. Officer Scott Nelson questioned defendant. 

Defendant said that Jane could have thought that he kissed her with his mouth 

open because, when they were at the theater, defendant spilled soda on his face 

and, while he was licking off the soda with his tongue, Jane kissed him on the lips. 

Thereafter, on the drive home from the theater, defendant put his arm around Jane, 

poked her in the belly button, and rubbed her stomach. Defendant denied rubbing 

Jane’s vaginal area. Jane’s different version of the events, defendant said, could 

have been affected by the caffeine in the large coffee drink she had after the 

movie.

Defendant was charged with a single count of lewd conduct with a child 

younger than 14 years. (§ 288, subd. (a).) The jury found him guilty of the 

charge.

On appeal, defendant faulted the trial court for not instructing the jury on 

the court’s own initiative that battery (§ 242) is a lesser offense necessarily 

included within the crime of lewd conduct with a child. The Court of Appeal 

rejected that argument, as does this court’s majority, which disapproves a contrary 

holding by the Court of Appeal in People v. Thomas (2007) 146 Cal.App.4th 

1278, 1291-1293. I disagree with the majority, for the reasons given below.

II

If “ ‘a crime cannot be committed without also necessarily committing a 

lesser offense, the latter is a lesser included offense within the former.’ ” (People 

v. Milward (2011) 52 Cal.4th 580, 585; see also People v. Birks (1998) 19 Cal.4th 

108, 117.) The question here is: Can a defendant engage in lewd conduct with a 

child younger than 14 years without also perpetrating the lesser offense of battery? 

My answer is “no.”
3

Battery is statutorily defined as “any willful and unlawful use of force or 

violence upon the person of another.” (§ 242.) Thus, the crime of battery has two 

elements: (1) a use of force or violence that is (2) willful and unlawful. The first 

element is satisfied by any touching. (People v. Rocha (1971) 3 Cal.3d 893, 899, 

fn. 12.) The second element of battery, willfulness and unlawfulness, is satisfied 

by any touching that is harmful or offensive. (People v. Pinholster (1992) 1 

Cal.4th 865, 961.)

Lewd conduct on a child has three elements: (1) a touching (2) of a child 

younger than 14 years (3) done with lewd intent. (§ 288, subd. (a).) Thus, the 

crime of lewd conduct requires a touching (battery’s first element) done with lewd 

intent. Lewd intent is the desire to “arous[e], appeal[] to, or gratify[] the lust, 

passions, or sexual desires of [the molester] or the child . . . .” (Ibid.) Touching a 

child with lewd intent is always harmful or offensive (battery’s second element). 

“[Y]oung victims suffer profound harm whenever they are perceived and used as 

objects of sexual desire.” (People v. Martinez (1995) 11 Cal.4th 434, 444; see also

J. C. Penney Casualty Ins. Co. v. M. K. (1991) 52 Cal.3d 1009, 1026 [“Some acts 

are so inherently harmful that the intent to commit the act and the intent to harm 

are one and the same. . . . Child molestation is not the kind of act that results in 

emotional and psychological harm only occasionally.”].) Therefore, one who 

commits lewd conduct on a child necessarily commits the lesser offense of battery.

The majority has a contrary view, based on a novel theory. The opinion’s

cursory analysis lacks clarity, but it appears to say the following.

Battery, according to the majority, can be divided into two categories: 

(1) battery committed by a harmful or offensive touching with lewd intent, and 

(2) battery committed by a harmful or offensive touching without lewd intent. 

According to the majority, if a defendant is charged with lewd conduct and the 

evidence shows battery with lewd intent (the first category), the trial court need 
4

not instruct on the lesser offense of battery because there is no possibility that the 

defendant is guilty of battery but not lewd conduct. But, the majority says, if a 

defendant is charged with nonlewd conduct and the facts show a touching without 

lewd intent (the second category of battery), then the nonlewd harmful or 

offensive touching is a “distinct requirement” that “would not be included within 

the elements of lewd conduct.” (Maj. opn., ante, at p. 5.) Therefore, the majority 

concludes, neither category of battery is a lesser offense necessarily included 

within the crime of lewd conduct with a child. My criticism is twofold.

First, as noted earlier, in deciding whether a crime is a lesser offense 

necessarily included within another, the inquiry is whether the greater offense can 

be committed without also committing the lesser crime. (People v. Sanders (2012) 

55 Cal.4th 731, 737; People v. Birks, supra, 19 Cal.4th at p. 117; People 

v. Pendleton (1979) 25 Cal.3d 371, 382; People v. Marshall (1957) 48 Cal.2d 394, 

398; People v. Greer (1947) 30 Cal.2d 589, 596.) That test was articulated by this 

court more than 65 years ago. Today, the majority devises a new test to reach its

result. As part of this two-category test, described in the preceding paragraph, the 

majority concludes that in certain specified circumstances the trial court need not

instruct on battery as a lesser included offense of lewd conduct (maj. opn., ante, at 

p. 5) and it holds, on that basis, that battery is not a lesser included offense of lewd 

conduct (maj. opn., ante, at p. 6). Thus, the majority confuses the standard for 

determining whether a trial court should instruct on a lesser included offense (see 

People v. Medina (2007) 41 Cal.4th 685, 700) with the standard for determining 

whether a crime is a lesser included offense. Does the new test replace the 

traditional test? If so, why? The majority offers no answers.

Second, the majority’s two-category test does not adequately address the 

possibility of conflicting evidence on whether a defendant’s conduct falls within 

one or the other category. For instance, what if the evidence at trial shows that a 
5

defendant committed an offensive touching of a child (a battery), but there is 

conflicting evidence on whether the touching was done with lewd intent? In this 

situation, the jury should not be deprived of its right to decide whether the 

defendant is guilty only of battery or of lewd conduct with a child as well. But 

under the majority’s test, the jury does not get to make this decision. If, as the 

majority says, battery is not a lesser included offense of lewd conduct with a child, 

the jury is given only two options: The jury can either convict the defendant of the 

charged crime of lewd conduct with a child, or it can acquit the defendant. This 

defeats the purpose for requiring instructions on lesser included offenses. As this 

court has explained: “Truth may lie neither with the defendant’s protestations of 

innocence nor with the prosecution’s assertion that the defendant is guilty of the 

offense charged, but at a point between these two extremes . . . . A trial court’s 

failure to inform the jury of its option to find the defendant guilty of the lesser 

offense would impair the jury’s truth-ascertainment function.” (People v. Barton

(1995) 12 Cal.4th 186, 196.)

The majority’s response: When the evidence is “ambiguous enough that a 

jury might not find [lewd] intent, . . . [t]he prosecution would have discretion to 

charge both” battery and lewd conduct. (Maj. opn., ante, at p. 5.) But that is not a 

tactical decision for the prosecution to make. When, as here, a charged offense

cannot be committed without also committing another, less serious crime, and the 

evidence is ambiguous as to which crime was committed, the jury should not be 

denied the opportunity to decide whether the defendant committed the more 

serious crime or only the lesser offense. As this court has observed, “[o]ur courts 

are not gambling halls but forums for the discovery of truth.” (People v. St. 

Martin (1970) 1 Cal.3d 524, 533.) 

Whether here the trial court, on its own initiative, was required to instruct 

the jury on the lesser offense of battery is discussed below.
6

III

A trial court must instruct on a lesser included offense only when 

reasonable jurors could conclude that the defendant committed only the lesser but

not the greater offense. (People v. Medina, supra, 41 Cal.4th at p. 700.) Here, the 

prosecution relied on three acts to prove the lewd conduct charge against 

defendant: rubbing 10-year-old Jane Doe’s vaginal area, rubbing her stomach, and 

kissing her on the lips while inserting his tongue into her mouth. As I explain, 

those acts would not have provided a reasonable basis for the jury to conclude that 

defendant committed only battery, and not the greater offense of lewd conduct 

with a child.

As to rubbing Jane’s vaginal area, the only issue at trial was whether (as 

Jane testified) defendant did so, or whether (as defendant told the police) he did 

not — if defendant did, he indisputably acted with lewd intent, because there was 

no evidence that he had a nonsexual reason to touch Jane’s vaginal area. Thus, no 

reasonable juror could have concluded that rubbing Jane’s vaginal area constituted 

the lesser offense of battery and not the greater offense of lewd conduct with a 

child.

As to rubbing Jane’s stomach, if the jury determined that defendant did so 

with the requisite lewd intent, he would be guilty of both the greater offense of 

lewd conduct and the lesser offense of battery. But if the jury found that 

defendant lacked such intent, he would be guilty of neither lewd conduct (because 

he lacked lewd intent) nor of battery (because there was no evidence that rubbing 

Jane’s stomach without lewd intent was either harmful or offensive). 

As to the kissing, if the jury concluded that, as Jane had testified, defendant 

put his tongue in her mouth while kissing her, the jury would necessarily have 

found that defendant acted with the requisite lewd intent when he did this act and 

was thus guilty of the charged crime of lewd conduct with a child. This is because 
7

sticking one’s tongue in the mouth of the person being kissed is so inherently 

sexual in nature that no reasonable jury would conclude that defendant lacked 

lewd intent if he did that act. But if the jury concluded that, as defendant had told 

the police, Jane kissed him while he was licking soda off his lips and he did not 

put his tongue in Jane’s mouth, then no reasonable jury could have found that 

defendant touched Jane in a harmful or offensive manner, which is required for 

battery. Under that version of events, defendant was not guilty of either lewd 

conduct or battery.

Thus, as to each of the three alleged acts on which the prosecution relied, 

the jury could have found defendant guilty of the charged crime of lewd conduct, 

or it could have found defendant not guilty of either lewd conduct or battery, but it 

could not have found that defendant committed only battery but not lewd conduct. 

The trial court therefore was not required to instruct the jury, on the court’s own 

initiative, on the lesser offense of battery. 

KENNARD, J.

I CONCUR:

WERDEGAR, J.
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Shockley

__________________________________________________________________________________

Unpublished Opinion

Original Appeal

Original Proceeding

Review Granted XXX 190 Cal.App.4th 896

Rehearing Granted

__________________________________________________________________________________

Opinion No. S189462

Date Filed: December 26, 2013

__________________________________________________________________________________

Court: Superior

County: Stanislaus

Judge: Thomas D. Zeff

__________________________________________________________________________________

Counsel:

Gregory W. Brown, under appointment by the Supreme Court, for Defendant and Appellant.

Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant 

Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lloyd G. Carter, 

Janet Neeley and Leanne LeMon, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Gregory W. Brown

2280 Grass Valley Highway #342

Auburn, CA 95603

(530) 401-5554

Leanne LeMon

Deputy Attorney General

2550 Mariposa Mall, Room 5090

Fresno, CA 93721

(559) 477-1674