Filed 7/30/15 P. v. Hernandez CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

JUAN HERNANDEZ,

Defendant and Appellant.

B257952

(Los Angeles County

Super. Ct. No. KA103289)

APPEAL from a judgment of the Superior Court of Los Angeles County,

Robert M. Martinez, Judge. Affirmed.

David M. Thompson, under appointment by the Court of Appeal, for Defendant 

and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney 

General, Lance E. Winters, Assistant Attorney General, Paul M. Roadarmel, Jr. and 

Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________
2

Defendant and appellant, Juan Hernandez, raises contentions of instructional error 

following his conviction of continuous sexual abuse of a child and four counts of 

committing a lewd act on a child. For the reasons discussed below, the judgment is 

affirmed.

BACKGROUND

Viewed in accordance with the usual rules of appellate review (People v. Ochoa

(1993) 6 Cal.4th 1199, 1206), the evidence established the following. 

1. Prosecution evidence. 

The prosecution witnesses, all of whom were Hernandez’s nieces, described a 

series of sexual assaults he perpetrated against them years earlier when they were 

children.

a. Stephanie: continuous sexual abuse (count 2). 

Stephanie, who was 18 years old at the time of trial, testified that, as a child, she 

often visited defendant Hernandez’s home. Hernandez was married to her mother’s 

sister. Stephanie often played with Hernandez’s daughter, who was a year older than 

Stephanie.

The first time that something happened was when Stephanie was in the first grade 

and she spent the night in Hernandez’s living room. Stephanie woke up to find 

Hernandez touching her chest, her sides and her thighs. She could feel his hands rubbing 

her body up and down on the outside of her clothing. Hernandez told her “not to say 

anything or something will happen.”

When Stephanie was about the same age, there was another incident in the living 

room of Hernandez’s house. This time Hernandez rubbed Stephanie’s chest, her side and 

her legs on the inside of her clothing: “The second time it happened it was about the 

same thing. He was just rubbing up my body, but I remember this time he went in my 

clothes.” Hernandez also rubbed Stephanie’s vagina from the outside of her clothes. 

Stephanie described other incidents in which Hernandez inserted his fingers or his 

tongue into her vagina. She characterized the last incident that occurred as the worst one. 

On that occasion, she was sleeping in the daughter’s room when Hernandez picked her up 
3

and took her to his room. There, he laid her face-down on the bed, with her legs hanging 

over the side, and took off her clothes and his own clothes. Hernandez then pushed his 

naked “pelvis area” against Stephanie’s bare buttocks. She could feel his penis, but she 

didn’t know if it was hard, and she could not recall if she felt any pain or if he penetrated 

her. 

At the time of these events, Stephanie did not tell anyone about it because she was 

afraid something bad would happen. When she was 12 years old, she told her sister A.

that “sexual stuff” had happened with Hernandez.

b. K.: lewd act on a child (count 3).

K. was also 18 years old at the time of trial. Hernandez was married to her 

father’s sister.

When K. was ten years old and in the fifth grade, she was playing in Hernandez’s 

house with his daughter and some other children. When the others decided to go to the 

store, Hernandez asked K. to stay behind. After the others left, Hernandez indicated he 

wanted K. to sit on his lap. When she did, Hernandez slipped his hand under her skirt 

and into her underwear, touching her buttocks. He also tried to kiss her. K. told 

Hernandez he wasn’t supposed to be doing this and tried to shove him away. She fell off

his lap and ran down the hall. When Hernandez called after her, “No one’s going to 

believe you,” K. felt “useless.” She did not tell anyone about what happened because she 

thought no one would believe her.

While K. was still in the fifth grade, her sister Rosa told her that something similar 

had happened to her. K. told their mother, who left phone messages for Hernandez and 

his wife, but they never returned the calls. K.’s mother testified she never went to the 

police “[b]ecause of fear, because I’m alone in this country, because of ignorance.”

c. Rosa: lewd act on a child (count 4).

K.’s sister Rosa was 15 years old at the time of trial. She testified that on one 

occasion, when she was seven or eight, she was spending the night at Hernandez’s house. 

She and his daughter were sleeping on a couch when Hernandez came in and picked Rosa 

up. The daughter awoke, asked Hernandez what he was doing, and Hernandez said he 
4

was taking Rosa to another room because the couch was too small. Hernandez went into 

a bedroom and laid Rosa on a bed. He pulled her pants and underwear down to her 

thighs and rubbed her buttocks. Rosa kept pulling her pants back up and Hernandez kept 

pulling them back down. Hernandez heard someone coming and told Rosa to go back to

his daughter’s room.

The next day, Hernandez told Rosa he wanted to teach her how to ride a bike. As 

she sat on the bike with her feet on the ground, Hernandez slipped his hand in between 

the bicycle seat and Rosa’s buttocks. Rosa was standing still astride the bike and 

Hernandez touched her buttocks over her clothes. Hernandez did not say anything; he 

just touched her and then removed his hand, after which Rosa rode off. 

Soon afterward, Rosa told K. what happened and K. told their mother.

d. A.: lewd acts on a child (counts 5 & 6).

A., who was 25 years old at the time of trial, was Stephanie’s sister. One time, 

when A. was 12 years old, she was sleeping at Hernandez’s house when he came into the 

room and told her to scoot over. He then laid down next to her. He rubbed her breasts 

and her vagina from inside her clothing. A. did not move because she was too scared.

Another time, also when she was 12, A. was lying on the floor in her cousin’s 

bedroom when she felt her shorts and underwear in her crotch area being moved to the 

side. A. felt someone licking her “down there” and then she felt a wet and “slimy 

substance on [her] vagina area.” When she opened her eyes, she saw Hernandez’s face 

between her legs. Hernandez scooted backwards and left the room.

e. The police investigation.

Los Angeles County Deputy Sheriff Alfonso Lopez interviewed Hernandez, who 

admitted having made “some mistakes” with a couple of his nieces.

Hernandez said the mistakes he made with A. included three incidents. Once he 

touched her on the “upper butt.” Another time, he went into the bedroom, laid down next 

to her and became sexually aroused. However, he did not touch her because he was 

“afraid of crossing the line.” On the third occasion, he pulled aside A.’s panties and 

looked at her vagina, but he did not touch her.
5

Hernandez said he also made mistakes with Stephanie. One time he picked her up 

and moved her into another room, where Stephanie took off her own panties and “wanted 

him to touch her, but [Hernandez] was too afraid to touch her.” Because he was sexually 

aroused, he went into his own bedroom and masturbated. Another time, when Stephanie 

was asleep on the couch, Hernandez “asked her if he could touch her, and she said no. 

And he tried to touch her . . . but she moved her arms so he only touched her on her 

arms.” On another occasion, Hernandez walked into a room and saw Stephanie kneeling 

on a couch. “She was not wearing any underwear or any pants, and he said that he 

approached her and she asked him to touch her, but he didn’t touch her because he was 

too afraid.”

Regarding K., Deputy Lopez testified that Hernandez described “an incident 

where he had placed [K.] on his lap . . . but he denied touching her on her private area. 

He continued touching her on her butt.”

Asked if Hernandez had talked about having expressed sexual desires to Rosa, 

Lopez said yes: “[Hernandez] told me that he . . . told Rosie that he wanted to see her 

vagina, that he wanted to look at her vagina, and . . . he told me about an incident where 

he had picked up Rosie and taken her into the room, and he was asking her if he could see 

her vagina, and she got angry with him and told him ‘no.’ ”

Lopez acknowledged that, during the interview, Hernandez also said: “This hand 

never touched a vagina, never touched a breast, nor my tongue touched anybody.”

2. Defense evidence.

Hernandez’s son testified that, when A. was in her early 20’s, she lived with 

Hernandez and his family for about six months.

3. Trial outcome.

Hernandez was convicted of one count of continuous sexual abuse of a child for 

his conduct with Stephanie, and four counts of lewd act on a child (also referred to herein 

as “child molesting”) for his conduct with Rosa, A. and K., with an enhancement for 

having committed a sexual offense against more than one victim (Pen. Code, §§ 288.5, 
6

288, 667.61).1 He was sentenced to state prison for a term of 72 years to life. This 

appeal followed. 

CONTENTIONS

Hernandez contends: (1) the trial court erred by refusing to instruct the jury on 

attempted child molesting as a lesser included offense of the child molesting charges, and 

(2) the trial court erred by failing to instruct the jury on attempted child molesting in 

connection with the charge of continuous sexual abuse of a child.

DISCUSSION

1. Trial court did not err by failing to instruct on attempted child molesting as a 

lesser included offense for the crimes charged in counts 3 through 6.

Hernandez contends his four child molesting convictions (§ 288, subd. (a)) 

(counts 3 through 6) must be reversed because the trial court should have instructed the 

jury on attempted child molesting as a lesser included offense. There is no merit to this 

claim. 

a. Legal principles.

“An offense is necessarily included within a charged offense ‘if under the statutory 

definition of the charged offense it cannot be committed without committing the lesser 

offense, or if the charging allegations of the accusatory pleading include language 

describing the offense in such a way that if committed as specified the lesser offense is 

necessarily committed.’ [Citation.]” (People v. Toro (1989) 47 Cal.3d 966, 972, 

disapproved on other grounds by People v. Guiuan (1998) 18 Cal.4th 558, 568, fn. 3.) 

“[A] trial court errs if it fails to instruct, sua sponte, on all theories of a lesser included 

offense which find substantial support in the evidence. On the other hand, the court is not 

obliged to instruct on theories that have no such evidentiary support.” (People v. 

Breverman (1998) 19 Cal.4th 142, 162.) “ ‘Substantial evidence’ in this context is 

‘ “evidence from which a jury composed of reasonable [persons] could . . . conclude[ ]” ’

that the lesser offense, but not the greater, was committed. [Citations.] [¶] In deciding 

 

1 All further statutory references are to the Penal Code unless otherwise specified. 
7

whether there is substantial evidence of a lesser offense, courts should not evaluate the 

credibility of witnesses, a task for the jury.” (Ibid.)

“[O]n appeal we employ a de novo standard of review and independently 

determine whether an instruction on the lesser included offense . . . should have been 

given.” (People v. Manriquez (2005) 37 Cal.4th 547, 584.) 

“[S]ection 288 prohibits all forms of sexually motivated contact with an underage 

child. Indeed, the ‘gist’ of the offense has always been the defendant’s intent to sexually 

exploit a child, not the nature of the offending act. [Citation.] ‘[T]he purpose of the 

perpetrator in touching the child is the controlling factor and each case is to be examined 

in the light of the intent with which the act was done. . . . If [the] intent of the act . . . is 

to arouse . . . the lust, the passion or the sexual desire of the perpetrator [or the child,] it 

stands condemned by the statute . . . .’ [Citation.] [¶] Thus, throughout the statute’s 

history, the cases have made clear that a ‘touching’ of the victim is required, and that 

sexual gratification must be presently intended at the time such ‘touching’ occurs. 

[Citations.] However, the form, manner, or nature of the offending act is not otherwise 

restricted. Conviction under the statute has never depended upon contact with the bare 

skin or ‘private parts’ of the defendant or the victim. [Citations.] Stated differently, a 

lewd or lascivious act can occur through the victim’s clothing and can involve ‘any part’

of the victim’s body. [Citations.] [¶] . . . [M]odern courts state or imply that any

touching of an underage child is ‘lewd or lascivious’ within the meaning of section 288 

where it is committed for the purpose of sexual arousal. [Citations.]” (People v. 

Martinez (1995) 11 Cal.4th 434, 444-445 (Martinez).)

Attempted lewd act on a child is recognized as a lesser included offense of the 

completed crime. (People v. Herman (2002) 97 Cal.App.4th 1369, 1386 [defendant 

properly convicted of attempted child molesting where he offered teenage girls money to 

engage in sex and suggested they come with him to the park, but they declined]; People 

v. Imler (1992) 9 Cal.App.4th 1178, 1181 [defendant committed attempted child 

molesting when he pretended to be holding a 12-year-old’s father hostage and, over the 

telephone, ordered the child to disrobe and touch his own penis, which the child did not 
8

do].) “To sustain a conviction of attempted violation of section 288(a), the prosecution 

has the burden of demonstrating (1) the defendant intended to commit a lewd and 

lascivious act with a child under 14 years of age, and (2) the defendant took a direct but 

ineffectual step toward committing a lewd and lascivious act with a child under 14 years 

of age. [Citation.]” (People v. Singh (2011) 198 Cal.App.4th 364, 368.)

b. Discussion.

(1) Conviction for molesting K. (count 3).

Hernandez argues the jury should have been instructed on attempted child 

molesting as to K. because he told Deputy Lopez that “he had placed [K.] on his lap but 

denied touching her private area. Lopez testified that appellant said he ‘continued 

touching her on her butt.’ Therefore, it is not entirely clear what appellant was claiming, 

i.e., that he simply had his hand on her butt over her clothing, which would be a natural 

location in such a scenario even if innocently done, or that he was touching [K.] in an 

attempt to arouse either her, him, or both.” However, Hernandez further argues, “in any 

event, it is reasonably possible that the jury could have found appellant’s attempt to kiss 

[K.] as the lewd act. It could have found that his touching of her, even only if his lap to 

her butt, was preparatory to his plan to kiss her, which failed as his attempt was thwarted 

when [K.] moved from appellant’s lap.”

But if Hernandez touched K.’s buttocks “preparatory to his plan to kiss” her, then 

he was guilty of the completed crime of child molesting at that point. A similar situation 

arose in People v. Lopez (2010) 185 Cal.App.4th 1220, where the defendant sought

sexual gratification by having his step-daughters dress in lingerie and then search 

blindfolded for coins in the clothing while he watched and photographed them. As the 

Court of Appeal framed the issue: “The question here is whether there was sufficient 

evidence of a touching concurrent with lewd intent, where the girls dressed themselves 

out of defendant’s presence, but under defendant’s direction, for the sexually motivated 

purpose of playing the money game.” (Id. at p. 1233, italics added.) Citing Martinez’s 

statement that “the only way to determine whether a particular touching is permitted or 

prohibited is by reference to the actor’s intent as inferred from all the circumstances” 
9

(People v. Martinez, supra, 11 Cal.4th at p. 450), the Court of Appeal concluded that 

“section 288 encompasses the defendant’s act . . . of directing the victims to change into 

provocative clothing for the sexually motivated purpose of watching the girls search for 

money in the provocative clothing. Defendant committed the touching acts 

constructively, through the victims as conduits for the purpose of sexual arousal. Even 

though defendant may not have experienced sexual arousal at the moment the victims 

touched themselves when putting on the provocative clothing, defendant’s intent when 

instigating or causing the touchings was lewd and lascivious within the meaning of 

section 288, since the touchings were sexually motivated and committed for the purpose 

of defendant’s sexual gratification.” (People v. Lopez, supra, 185 Cal.App.4th at 

p. 1233.)

Hence, even if the jury believed that Hernandez’s touching of K.’s buttocks had 

been merely preparatory to his intention of committing a lewd act by kissing her, this 

violated section 288 because the touching “was sexually motivated by defendant’s 

lascivious desire.” (People v. Lopez, supra, 185 Cal.App.4th at p. 1230.) Hence, the trial 

court did not err by failing to instruct the jury on attempted child molesting as a lesser 

included offense of the crime charged in count 3.

(2) Conviction for molesting Rosa (count 4).

Hernandez argues the jury should have been instructed on attempted child 

molesting with regard to both of the alleged child molesting incidents Rosa described. 

Regarding the incident in which Hernandez picked Rosa up and took her into another 

room, he told Deputy Lopez that he asked Rosa if he could see her vagina, but she 

refused; he denied touching Rosa or removing her clothes. Hernandez argues, “Under 

appellant’s version, his asking Rosa to show him her vagina could certainly qualify only 

as an attempted lewd act, that is, he wanted Rosa to touch her clothing, expose her 

vagina, which in turn would cause appellant to be aroused.” But, under the reasoning of 

People v. Lopez, supra, 185 Cal.App.4th at p. 1233, Hernandez was already guilty of the 

completed crime of child molesting when he picked Rosa up and took her to another 
10

room because he wanted to be sexually aroused by looking at her vagina. Hence, there 

was no reason to instruct on attempted child molesting as a lesser included offense.

The same is true for the second incident. Hernandez argues: “Rosa also testified 

that the next day, while teaching her how to ride a bike, appellant put his hand between 

Rosa’s butt and the bicycle seat. Neither said anything and appellant removed his hand 

and Rosa paddled [sic] off. Such conduct could have been interpreted as an attempted 

lewd act. The jury could have reasonably found that appellant put his hand in that 

position planning to then touch Rosa in a more provocative manner, leading to his 

arousal. Appellant’s voluntary removal of his hand resulted in an ineffectual step toward 

such goal.” (Italics added.) But again, Hernandez had already committed child 

molesting when he touched Rosa’s buttocks while planning to touch her in a more 

provocative way so he would be sexually aroused.

The trial court did not err by failing to instruct the jury on attempted child 

molesting as a lesser included offense of the crime charged in count 4.

(3) Conviction for molesting A. (counts 5 and 6).

(a) Count 6

A. testified that on one occasion, Hernandez pushed her shorts to the side and 

licked her vagina. As to that incident, Hernandez told Deputy Lopez that he pulled aside 

her panties and looked at her vagina, but he didn’t touch her. Hernandez argues that his 

conduct, as he described it, would support an attempt to commit a lewd act, but not the 

completed act. We disagree: Moving A.’s panties in order to look at her vagina 

constituted child molesting under section 288 because Hernandez would have touched A.

through her clothing with a concurrent lewd intent. (See People v. Martinez, supra, 11 

Cal.4th at p. 444 [“Conviction under [section 288] has never depended upon contact with 

the bare skin or ‘private parts’ of the defendant or the victim. [Citations.] Stated 

differently, a lewd or lascivious act can occur through the victim’s clothing and can 

involve ‘any part’ of the victim’s body.”].) Thus, none of the evidence concerning this 

incident would have supported an instruction for attempted child molestation. 

Accordingly, this incident did not require an attempted section 288 instruction.
11

(b) Count 5

A. also testified that on a separate occasion, Hernandez laid down next to her and 

touched her breast and vaginal area under her clothing. Hernandez described the same 

incident, but told Deputy Lopez that he simply went into the bedroom, laid down next to 

A. and became sexually aroused, but he was too afraid to do anything. As to that 

incident, Hernandez argues that had the jury believed his testimony it might have 

convicted him of attempted child molestation because he “planned to commit a lewd act 

and took the step of laying down next to her ‘as a direct [but] ineffectual step toward that 

goal.’ ” (Italics added.) Based on this theory, he claims the jury should have been 

instructed on attempted child molesting as a lesser included offense.

“An attempt to commit a lewd act upon a child requires both an intent to arouse, 

appeal to, or gratify ‘the lust, passions, or sexual desires of [the defendant] or the child’ 

(§§ 288, subd. (a), 664) ‘and . . . a direct if possibly ineffectual step toward that goal 

. . . .’ [Citation.] ‘ “Although mere preparation such as planning or mere intention to 

commit a crime is insufficient to constitute an attempt, acts which indicate a certain, 

unambiguous intent to commit that specific crime, and, in themselves, are an immediate 

step in the present execution of the criminal design will be sufficient. [Citations.]” 

[Citation.]’ [Citation.] No clear marker divides acts that are merely preparatory from 

those initiating the criminal act. Nonetheless, ‘the more clearly the intent to commit the 

offense is shown . . . “the more likely that steps in the early stages of the commission of 

the crime will satisfy the overt act requirement” ’ of an attempt. [Citation.]” (People v. 

Crabtree (2009) 169 Cal.App.4th 1295, 1322.) “ ‘Applying criminal culpability to acts 

directly moving toward commission of crime . . . is an obvious safeguard to society 

because it makes it unnecessary for police to wait before intervening until the actor has 

done the substantive evil sought to be prevented. It allows such criminal conduct to be 

stopped or intercepted when it becomes clear what the actor’s intention is and when the 

acts done show that the perpetrator is actually putting his plan into action.’ [Citations.]” 

(People v. Dillon (1983) 34 Cal.3d 441, 453, italics added.)
12

The cases on which Hernandez relies to establish that his admitted conduct 

supported an instruction for attempted child molestation are inapposite. In People v.

Imler, supra, 9 Cal.App.4th 1178, the defendant spoke on the telephone to a 12-year-old 

boy. “In response to Imler’s questions, Jason J. replied that his mother was away and his 

father was not home. Imler replied that ‘that’s because I have him hostage.’ Imler 

demanded $5,000 by the next day, if Jason J. wanted to see his father again. Imler asked 

Jason what he was wearing, then ordered him to disrobe and touch his penis. Jason J. did 

not do so, although Imler repeatedly told him to touch himself. Jason J. told Imler he had 

complied then Imler hung up.” (Id. at p. 1180.) The Court of Appeal held that “Imler’s 

acts went beyond mere preparation” because he “called the victim, spoke to him, and 

ordered him to commit lewd acts [citation]” (id. at p. 1181), and affirmed the conviction 

of attempted child molestation. 

People v. Singh, supra, 198 Cal.App.4th 364, found sufficient evidence to sustain 

a conviction of attempted child molesting where Singh, the subject of a sting operation, 

believed he was communicating on the internet with 12-year-old girl. Singh “engaged in 

a sexually explicit discussion with her, asked her detailed sexual questions, told her that 

he could fulfill her sexual needs,” (id. at p. 369) and made a date to visit her. The next 

day, Singh went to her house, where he was confronted by a television reporter and then 

arrested. The Court of Appeal held the evidence demonstrated Singh had taken “a direct 

but ineffectual step toward” violating section 288. (Id. at p. 368.)

People v. Crabtree, supra, 169 Cal.App.4th 1293, also involved an internet sting 

operation. Crabtree had multiple online contacts with a California Department of Justice 

agent who was posing as “Hope,” a 13-year-old runaway. In addition to having sexually 

explicit conversations, Crabtree sent Hope pictures of people engaging in sex and a 

picture of his penis. He was arrested after having sent Hope a bus ticket and arranged a 

meeting at the Los Angeles Greyhound station. Inside his car, police found Viagra, 

condoms, a bikini, and bubble bath. The Court of Appeal reasoned, “The presence of 

these items, which are consistent with appellant’s sexually-charged online chats with 

‘Hope,’ and the fact he had bought the bikini shortly before his anticipated meeting with 
13

‘Hope,’ strongly show appellant’s intent to carry out his intended lewd act upon ‘Hope.’

Nothing more was necessary.” (Id. at p. 1322.)

The defendants in the cases cited by Hernandez went beyond mere preparation 

because each one put his plan into action. Each defendant engaged in sexually explicit 

conversations with the intended victim. In addition, Imler ordered the victim over the 

phone to touch himself, while Singh and Crabtree arranged and tried to carry out face-toface meetings. In this case, with respect to the second incident with A. (count 5), the 

only thing Hernandez told Deputy Lopez was that he had contemplated molesting A., but 

then changed his mind without having touched her or even said a single word to her. In 

this instance, Hernandez’s acts did not “ ‘ “indicate a certain, unambiguous intent to 

commit” ’ ” child molesting, nor constitute “ ‘ “an immediate step in the present 

execution of” ’ ” that offense. (People v. Crabtree, supra, 169 Cal.App.4th at p. 1322.) 

According to Hernandez’s version of events, Hernandez’s intention did not become clear 

because he never moved to put any plan into action. (See People v. Dillon (1983) 

34 Cal.3d 441, 453.)

In sum, we conclude the trial court did not err by failing to instruct the jury on 

attempted child molesting as a lesser included offense of the child molesting charges 

alleged with respect to A., Rosa and K.

2. Trial court did not err by failing to instruct on attempted child molesting with 

respect to the continuous abuse charge related to Stephanie.

Hernandez contends his conviction of continuous sexual abuse of a child (§ 288.5) 

against Stephanie must be reversed because the trial court failed to instruct the jury on 

attempted child molesting. We disagree. 

Section 288.5, subdivision (a), provides: “Any person who either resides in the 

same home with the minor child or has recurring access to the child, who over a period of 

time, not less than three months in duration, engages in three or more acts of substantial 

sexual conduct with a child under the age of 14 years at the time of the commission of the 

offense, as defined in subdivision (b) of Section 1203.066, or three or more acts of lewd 

or lascivious conduct, as defined in Section 288, with a child under the age of 14 years at 
14

the time of the commission of the offense is guilty of the offense of continuous sexual 

abuse of a child and shall be punished by imprisonment in the state prison for a term of 6, 

12, or 16 years.” Subdivision (b) of section 1203.066, provides: “ ‘Substantial sexual 

conduct’ means penetration of the vagina or rectum of either the victim or the offender by 

the penis of the other or by any foreign object, oral copulation, or masturbation of either 

the victim or the offender.”

Hernandez argues that, because some of the acts he admitted to Deputy Lopez 

arguably constitute only attempted child molesting, rather than completed child 

molesting, the trial court should have instructed the jury on attempted child molesting 

since “Stephanie’s testimony fails to establish that appellant committed sufficient acts of 

substantial sexual contact alone to find guilt without also finding guilt on some acts of 

lewd and lascivious conduct.”

The trial court did not err, however, because Hernandez’s admissions to Deputy 

Lopez did not constitute substantial evidence that he committed attempted child 

molesting. One incident – in which Hernandez allegedly saw Stephanie kneeling on a 

couch and she asked him to touch her, but he didn’t because he was too afraid – fell short 

of constituting an attempted child molesting. Hernandez’s acts on this occasion did not 

“ ‘ “indicate a certain, unambiguous intent to commit” ’ ” child molesting, nor constitute 

“ ‘ “an immediate step in the present execution of” ’ ” that offense. (People v. Crabtree, 

supra, 169 Cal.App.4th at p. 1322.) Hence, no attempted child molesting instruction was 

warranted as to that incident. In both of the other incidents, Hernandez admitted having 

touched Stephanie in situations where it was clear that he “was sexually motivated by . . . 

lascivious desire”2(People v. Lopez, supra, 185 Cal.App.4th at p. 1230) and, therefore, 

he was guilty of the completed crime of child molesting. Again, no attempted child 

molesting instruction was warranted.

 

2

In one of those incidents, Hernandez said he picked Stephanie up and moved her 

into another room where she undressed and invited him to touch her, but he was too 

afraid so he left, went into his own bedroom and masturbated. In the other incident, 

Hernandez asked if he could touch Stephanie; when she refused, he tried to touch her 

anyway and touched her arm.
15

Moreover, even assuming arguendo that the trial court erred by failing to instruct 

on attempted child molesting, the error was doubtlessly harmless. “The erroneous failure 

to instruct on a lesser included offense generally is subject to harmless error review under 

the standard of People v. Watson (1956) 46 Cal.2d 818, [836-837] . . . . Reversal is 

required only if it is reasonably probable the jury would have returned a different verdict 

absent the error or errors complained of. [Citations.]” (People v. Rogers (2006) 

39 Cal.4th 826, 867-868, fn. omitted.) “In determining whether a failure to instruct on a 

lesser included offense was prejudicial, an appellate court may consider ‘whether the 

evidence supporting the existing judgment is so relatively strong, and the evidence 

supporting a different outcome is so comparatively weak, that there is no reasonable 

probability the error of which the defendant complains affected the result.’ [Citations.]” 

(Id. at p. 870.) That is precisely the situation here. It is quite clear the jury thoroughly 

rejected the proposed defense that all Hernandez did to Stephanie was either resist her 

sexual provocations altogether or, at most, touch her once on the arm. 
16

DISPOSITION

The judgment is affirmed. 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EDMON, P. J.

We concur:

KITCHING, J.

EGERTON, J.*

 

*

 Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to 

article VI, section 6 of the California Constitution.