1 Filed 12/19/13 P. v. Ocampo CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELL ATE DISTRICT DIVISION TWO

THE PEOPLE, Plaintiff and Respondent,

v. LUIS ALBERTO OCAMPO, Defendant and Appellant. E056700 (Super.Ct.No. RIF1101931) OPINION

APPEAL from the Superior Court of Ri verside County. Jeffre y Prevost, Judge. Affirmed. Tracy A. Rogers, under appointment by the Court of Appeal , for Defendant and Appellant. Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Julie L. Garland, A ssistant Attorney General, and A. Natasha Cortina, Christine Levingston Bergman, and Paige Hazard, Deput y Attorneys General, for Plaintiff and Respondent.2 On May 23, 2012, a jury convicted defe ndant and appellant Luis Alberto Ocampo of aggravated sexual assault on a child under the age 14 by means of sexual penetration with force, fear or duress (Pen. Code, 1 §§ 269, subd. (a)(5), 28 9, subd. (a); count 1), sexual penetration on a child 10 years of ag e or younger (§§ 288.7, subd. (b), 289; count 2), and lewd and lascivious ac t upon a child under the age 14 with force, fear or duress (§ 288, subd. (b)(1); count 3). Defendant was sentenced to 15 years to life in state prison. He appeals, contending the trial court e rred in admitting evidence of the victim’s statement to a child forensic interviewer; there was insufficient ev idence of force or duress to support his convictions for aggravated sexual assault and forcible lewd acts; the jury was not properly instruct ed; and forcible lewd acts is a lesser included offense of aggravated sexual assault. I. STATEMENT OF FACTS Defendant lived in a small apartment in Corona with his wife, Erin, and six children. He was not the biological father of Jane Doe 1. On Fe bruary 23, 2011, Doe 1 (age 10) and her five-year-old sister, Jane Do e 2 (defendant’s biological daughter), were taking a shower when Doe 1 called for defendan t to come and help her wash her hair. Erin had gone to the store. Defendant washed Doe 1’s hair and then put his finger in her vagina. She loudly told him to stop and he did. 2

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

2 Doe 1 testified that she told defendan t to stop once; however, Doe 2 said it was more than once. Also, Doe 1’s interview with a child forensic interviewer indicated that defendant put his finger inside her vagina mo re than one time becau se she told him to stop four times.3 Later, after defendant left for work, Doe 1 told Erin about the molestation. On March 1, 2011, Doe 1 was exam ined by Dr. Susan Horowitz, M.D., a forensic physician in the Child Abuse Unit at Riverside County Regional Me dical Center. Dr. Horowitz observed a small bruise on Doe 1’s hymen, and next to it was tissue that looked like healing tissue. She concluded these findings were most likely caused by penetrating trauma. Dr. Horowitz opined that the findi ngs were abnormal, sexual abuse was highly suspected, and the findings were cons istent with the history provided. On March 3, 2011, child forensic in terviewer Kathleen Hiebert conducted a recorded Riverside Child Asse ssment Team (RCAT) interview with Doe 1. Doe 1 told Hiebert that she was taking a shower with her five-year-old sister, and when she got out, defendant touched her hair, said she did not wash it correctly, and told her to get back in the shower. Doe 1’s mother was at the store when this occurred. Defendant went in the bathroom, knelt down by the bathtub, and starte d washing Doe 2’s hair. Defendant then started washing Doe 1’s hair and body, and then he touched her inappropriately. Defendant put his finger in her “private.” Doe 1 said, “I yelle d, stop it, and he said, be quiet.” She kept telling him to stop and he finally stopped. Doe 1 explained that after he stopped he pulled her out of th e shower and squeezed her arm. She recalled an incident before the shower incident where one nigh t defendant was pulling the blanket up, saw Doe 1’s hand in her pants, and asked her if it felt good. De fendant told Doe 1 not to tell her mother that they “discussed this.” Defendant had put one finger in Doe 1’s “private,” and she said she did not like it and it was “embarrassing.” She said defendant put his finger in her “private” more than4 one time, and she remembered this because she asked him to stop four times. When defendant was doing this to her, she was in a co rner in the shower, and he tried to grab her and she kept saying “no.” Defendant went to work, and the next morning, Doe 1 told her mother what happened. She initially told he r mom about having her hands in her pants, and after that, her mom asked her if defendant had touched her. Doe 1 said “yes.” The night defendant molested Doe 1, she thought he was her dad, but later she found out that he was her stepdad. She felt sad and unhappy af ter telling her mom what happened. Hiebert interviewed Doe 2, who said that Doe 1 got out of the bathtub first with defendant and they were “taki ng forever.” This was after de fendant washed their hair. Doe 2 saw defendant whisper so mething in Doe 1’s ear, but sh e could not hear what he said. Doe 2 heard Doe 1 sa y “‘Stop’ a lot of times.” Defendant testified that he did not molest Doe 1, and he did not know why she and Doe 2 would say that he did. II. ADMISSION OF DOE 1’S RCAT INTERVIEW At trial, following the testimony of Doe 1, the recorded RCAT interview of Doe 1 was admitted into evid ence pursuant to Evidence Code se ction 1360, and a transcript of the interview was provided to th e jury. Prior to trial, defe ndant objected to the admission of the interview on ground that the recording constituted hearsay. The trial court overruled the objection. On appeal, defe ndant challenges the trial court’s ruling.5 A. Procedural Background Prior to trial, the prosecution sought to admit the RCAT interview. Defense counsel objected on hearsay grounds and b ecause Doe 1 would be testifying. In response, the prosecutor argued its admissib ility under Evidence Code section 1360. Overruling the objection, the tria l court allowed the recording to be played for the jury and the transcript to be admitted into evidence. During trial, prior to Hiebert’s testimony, defense counsel raised an objection to certain portions of the RCAT interview. C ounsel objected to Doe 1’s reference to her putting her hands in her pants when she wa s sleeping. The prosecutor argued it was relevant and admissible under Evidence Co de section 1360. Agreeing with the prosecution, the trial court ove rruled the objection, finding that the evidence was close enough in time to the alleged incident, relevant to the charges, and tended to explain the conduct. Next, defense counsel objected to Do e 1’s statements alluding to abuse by defendant as to all of the children, including spanking them with a belt with their pants down. The prosecution argued th e evidence was relevant as to Doe 1’s state of mind and to show there was force, fear, duress or th reat of injury. Defense counsel argued prejudice and that it was not necessary to prove duress, given Doe 1’s repeated statements to defendant to stop. The tria l court was concerned this evidence was not directly tied to the incident. After weighi ng the probative value versus the prejudicial effect, the trial court excluded the evidence and ordered the tape and transcript redacted.6 B. Analysis Under Evid ence Code Section 1360 Evidence Code section 1360 creates an exception to the hearsay rule in criminal prosecutions for a child’s statements describing acts of child abuse or neglect, including statements describing sexual ab use. (Evid. Code § 1360; People v. Brodit (1998) 61 Cal.App.4th 1312, 1327-1328.) Th e statute provides, in pertinen t part: “(a) In a criminal prosecution where the victim is a minor, a statement made by the victim when under the age of 12 describing any act of child abuse or neglect performed with or on the child by another, or describing any attempted act of ch ild abuse or neglect with or on the child by another, is not made inadmissible by the hearsay rule if all of th e following appl y: [¶] (1) The statement is not otherwise admissible by statute or court rule . [¶] (2) The court finds, in a hearing conducted ou tside the presence of the jury, that the time, content, and circumstances of the statement provid e sufficient indicia of reliability. [¶] (3) The child either: [¶] (A) Testif ies at the proceedings. [¶] (B) Is unavailable as a witness, in which case the statement may be admitted only if ther e is evidence of the child abuse or neglect that corroborates the statement ma de by the child.” (Evid. Co de, § 1360, subd. (a), italics added.) Defendant makes two contentions as to the admission of the RCAT interview under Evidence Code section 1360. He submits the court (1) failed to conduct a hearing outside the presence of the jury, and (2) failed to make findings as to whether there were sufficient indicia of reliability for purposes of admitting the RCAT interview into evidence.7 “We review a trial court’s admission of evidence under [Evi dence Code] section 1360 for abuse of discretion.” ( People v. Roberto V . (2001) 93 Cal.App. 4th 1350, 1367.) However, “[i]f evidence is admissible under a ny theory, the grounds stated in the ruling admitting the evidence are i mmaterial. [Citations.]” ( Thorp v. Dept. of Alcoholic Bev. Control (1959) 175 Cal.App.2d 489, 491.) Thus, even if the evidence was not admissible under Evidence Code section 1360 , we will not reverse the judg ment if the evidence was admissible on other grounds. (Cf. People v. Brown (2004) 33 Cal.4th 892, 901.) First, although the trial court must hol d “a hearing conducted outside the presence of the jury” (Evid. Code, § 1360, subd. (a)(2)), Evidence Code se ction 1360 does not require the trial court to conduct a formal Evidence Code section 402 hearing with detailed testimony about the nature of a nd circumstances surrounding the interview process. Here, the court and counsel discu ssed the admissibility of the RCAT interview at great length, outside the presence of the ju ry. During the course of the discussion, the court was made aware of its responsibilitie s under Evidence Code section 1360 to consider the time, content, a nd circumstances of the interview to establish whether it met the indicia of reliability und er Evidence Code section 13 60. The requirement of a hearing outside the presence of the jury is easily met in this case. Second, while the court must find that the “time, content, and circumstances of the statement provide sufficient indicia of reliabi lity” (Evid. Code, § 13 60, subd. (a)(2); see also People v. Brodit, supra, 61 Cal.App.4th at pp. 1329- 1330), there is no requirement that the court explicitly st ate such findings on the reco rd. Generally, unless the Legislature has mandated that a trial court express its findings on the record, we must8 infer the trial court made all findings necessary to support its ruling. (Evid. Code, § 402, subd. (c); People v. Manning (1973) 33 Cal.App.3d 586, 601-602.) Defendant provides no reason to depart from this rule of implied findings he re. We reject defendant’s argument that there is no evid ence to support the court’s reliability finding. Doe 2’s statements in her interview co rroborated Doe 1’s statements to the RCAT interviewer that she repeatedly told defendant to stop, and th at defendant said some thing to Doe 1 that Doe 2 could not hear. Both RCAT interviews of Doe 1 a nd Doe 2 occurred shortly after the respective incidents while the facts were fresh in their minds. Further, the record reflects no motive for either Do e 1 or Doe 2 to make up the facts they described to the interviewers. Finally, both Doe 1 and Doe 2 testified at trial and were available to test the accuracy of the information imparted during their interviews. Doe 1’s RCAT interview was played while Hieb ert, the interviewer, was on the stand. There is therefore substantial evidence to support the court’s reliability finding for pu rposes of Evidence Code section 1360. III. SUFFICIENCY OF EVIDENCE Defendant claims the evid ence of force or duress was insufficient to support his convictions for aggravated sexual assault (count 1) and forcible lewd acts (count 3). A. Standard of Review Our review of any claim of insufficien cy of the evidence is limited. ( People v. Lewis (2001) 25 Cal.4th 610, 643.) “In assess ing a claim of insuffi ciency of evidence, the reviewing court’s task is to review the w hole record in the light most favorable to the judgment to determine whether it discloses s ubstantial evidence—that is, evidence that is9 reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasona ble doubt. [Citation.]” ( People v. Rodriguez (1999) 20 Cal.4th 1, 11.) The reviewing court must as sume that the trier of fact resolved all conflicting inferences in favor of the prosecution. ( Jackson v. Virginia (1979) 443 U.S. 307, 326.) B. Aggravated Sexual Assault The offense of aggravated sexual assau lt on a child under the age of 14 years by means of penetration requires proof of sexu al penetration “against the victim’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or anot her person.” (§§ 269, subd. (a)(5), 289, subd. (a)(1).) The definition of the word “force” in sexual offense statutes depends on th e offense involved. ( In re Asencio (2008) 166 Cal.App.4th 1195, 1200 ( Asencio ).) Within the meaning of section 289, subdivision (a)(1), forcible sexua l penetration, like forcible oral copulation and rape, requires evidence that the defendant “accomplished an act of sexual penetration by the use of force sufficient to overcom e the victim’s will. [Citations.]” ( Asencio , supra , at p. 1205.) We find substantial eviden ce of force to overcome the will of the victim in this case. Doe 1 testified that she wa s in the shower when defe ndant put his finger in her vagina and she loudly told him to stop. In her recorded interview, she recalled him doing it four times because she had told him to stop four times, and she was in the corner of the shower when he grabbed her. Doe 2 confirme d hearing Doe 1 tell defe ndant to stop. An10 examination of Doe 1’s hymen indicated a br uise and healing tissue which shows that defendant forcibly put his finger in her vagina. Furthermore, the evidence demonstr ates that the sexual penetration was accomplished by means of duress. Duress in this context is “‘a direct or implied threat of force, violence, danger, hardship or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to (1 ) perform an act wh ich otherwise woul d not have been performed or, (2) acquies ce in an act to which one otherw ise would not have submitted.’ [Citation.]” ( People v. Leal (2004) 33 Cal.4th 999, 1004.) All of the circumstances should be considered in determining the ex istence of duress, including the age of the victim, the victim’s relations hip to defendant, threats to harm the victim, physically controlling a resisting victim , and warnings that revea ling the molestation could jeopardize the family. ( People v. Veale (2008) 160 Cal.App.4th 40, 46-47 [Fourth Dist., Div. Two] ( Veale ).) Even when a victim testifies that no force or threats were involved, it has been held that suffici ent evidence of duress existed where the victim was eight years old at the time of the offenses; at that age “‘adults are commonly viewed as authority figures,’” and “‘[t]he disparity in physical size between an eight-year-old and an adult also contributes to a youngster’s sense of his [or her] relative physical vulnerability.’ [Citation.]” ( People v. Wilkerson (1992) 6 Cal.App.4th 1571, 1579.) In addition, “when the victim is as young as [six years old] and is molested by her father [or stepfather] in the fami ly home, in all but the rarest cases duress will be present.” ( People11 v. Cochran (2002) 103 Cal.App. 4th 8, 16, fn. 6 ( Cochran ), overruled on other grounds as stated in People v. Soto (2011) 51 Cal.4th 2 29, 248, fn. 12 ( Soto ). 3 ) Doe 1 was 10 years old when defendant se xually assaulted her. Although he was her stepfather, she believed that he was her father, called him “dad,” and he was in a parental role. At the time of the assault, he r mother was at the stor e. When Doe 1 loudly told defendant to stop, he told her to be quiet. 4 He then pulled he r out and squeezed her arm. Given the relationship between defe ndant and Doe 1 and their age and size differences, a rational juror could conclude that defendant accomplished the sexual penetration by duress. C. Forcible Lewd Acts This same evidence applie s to defendant’s conviction of forcible lewd acts. “Subdivisions (b) and (a) of section 288 on their face draw a distinction between those lewd acts that are committed by force and those that are not.” ( People v. Cicero (1984) 157 Cal.App.3d 465, 473 ( Cicero ), overruled on other gro unds as stated in Soto , supra ,

3 We address whether Soto applies to this case in the next section.

4 Defendant argues “the record contains ab solutely no evidence ” of the “use of a direct or implied threat of force, violence, danger, hardship, or retribution.” However, we note that when defendant was unable to exclud e Doe 1’s RCAT interview, he asked that it be redacted. Specifically, he wanted the trial court to redact Doe 1’s reference to defendant doing “‘child abuse on all of us’” b ecause he “‘spanks us with a belt with our pants down,’” which leaves marks. In res ponse, the prosecution argued this evidence showed Doe 1’s “knowledge of the defendant inflicting inju ry upon her,” which “could demonstrate a level of duress or threat of impending injury if she doesn’t submit to the molestation in the bathtub.” Defense coun sel countered: “I don’t think it would be relevant to prove up the duress element, but I think the duress element can be proven simply by the witness’s testimony that she said ‘no’ several ti mes at the event.” The trial court agreed with defense counsel and redact ed from the interview th e evidence of child abuse by spanking with a belt.12 51 Cal.4th at p. 248, fn. 12.) Section 288, subdivision (a), makes it a felony to “willfully and lewdly” commit “any lewd or lascivious act . . . upon or wi th 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 . . . .” Section 288, subdivision (b)(1), proscribes any such conduct committed “by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury . . . .” “Where no physical harm to the child has occurred, the prosecution has the burden of proving (1) that the defendant used physical force substantially different from or substantially in excess of that required fo r the lewd act and (2) that the lewd act was accomplished against the will of the victim. The prosecution may satisfy its burden on the latter issue by proving the p hysical force was such as would reasonably demonstrate that the lewd act was undertaken against the will of the victim under all circumstances, including the ages and sizes of the defendant and the victim. The prosecution need not prove that the victim resisted the lewd act.” ( Cicero , supra , at pp. 484-485.) Here, there was no evidence the victim sustained physical harm. Under section 288, subdivision (b)(1), “‘duress’ means ‘“a direct or implied threat of force . . . sufficient to coerce a reasonabl e person of ordinary susceptibilities”’” to do or submit to something that person would not otherwise ha ve done or submitted to. ( Veale , supra , 160 Cal.App.4th at p. 46, quoting Cochran , supra , 103 Cal.App.4th at p. 13.) Force is “a method of obtaining a child’s pa rticipation in a lewd act in violation of a child’s will . . . .” ( Cicero , supra , 157 Cal.App.3d at p. 476.) “[T]hreats need not be express, but may be inferred from conduct. [Cita tion.] Silent threats, of course, generate13 fear.” ( People v. Reyes (1984) 153 Cal.App.3d 803, 811.) The vic tim’s age and size are relevant to a determination of whether the victim’s participation has been obtained by duress. “‘“Where the defendant is a family member and the victim is young, . . . the position of dominance and authority of the defendant” . . . [are ] relevant to the existence of duress.’” ( Veale , supra , at p. 49, quoting People v. Schulz (1992) 2 Cal.App.4th 999, 1005.) In Cochran , the court stated, “as a factual matte r, when the victim is as young as this victim and is molested by her father in the family home , in all but the rarest cases duress will be present.” ( Cochran , supra , 103 Cal.App.4th at p. 16, fn. 6.) In Cochran , the defendant was a foot and a half taller th an the nine-year-old victim and outweighed her by about 100 pounds. ( Id . at p. 15; see also People v. Pitmon (1985) 170 Cal.App.3d 38, 51, overruled on other grounds as stated in Soto , supra , 51 Cal.4th at p. 248, fn. 12 [finding the evidence sufficient to establish duress, even thou gh the victim testified the defendant did not use force, violence, or threat s when the victim “was eight years old, an age at which adults are commonly viewed as au thority figures. The disparity in physical size between an eight-year-old and an adult also contributes to a youngster’s sense of [her] relative physical vulnerability.”].) Defendant argues there was insufficient evidence of duress, because there was no evidence of “‘the use of direct or implied threat of force, violence, danger, hardship, or retribution.’” But, as in Cochran , the molestation took place in the family home when mother was not home. Although he was Do e 1’s stepfather, defendant occupied a position of authority in the family and Doe 1 loved him and believed he was her14 biological father. He was older, taller and bi gger than Doe 1, who was only 10 years old when defendant committed a lewd act upon her. When she loudly to ld him to stop, he told her to be quiet and then whispered something to her that Doe 2 could not hear. Further, Doe 1 explained that after he stopped, he pulled her out and squeezed her arm. It is reasonable to infer that these circumstan ces along with the consid erable disparity in size and age between her and defendant contributed to Do e 1’s sense of duress. Moreover, Doe 1 testified that sh e was uncomfortable and scared. In sum, substantial evidence suppor ts a finding that defendant committed the charged offenses by means of force, fear, and/or duress. IV. DEFINITIONS OF “FORCE” AND “DURESS” AS TO COUNT 1 The jury was instructed that forcible sexual penetration (§ 289, subd. (a)) required proof the defendant committed a nonconsensual sexual penetration via a foreign object, by force, violence, duress, menace, or fear of immediate and unlawful bodily injury. (CALCRIM No. 1045.) The jury was further instructed: “An act is accomplished by force if a person uses enough physical force to overcome the other person’s will. [¶] Duress means a direct or implied threat of fo rce, violence or danger that is enough to cause a reasonable person of ordinary sensitivity to do or submit to something that he or she would not otherwise do or submit to. When deciding whether the act was accomplished by duress, consider all the circ umstances, including the age of the other person and her relationshi p to the defendant.” Defendant, for the first time on appeal, objec ts to the instructions defining “force” and “duress,” claiming they lowered the prosecuti on’s burden of proof as to the charge of15 aggravated sexual assault of a child by means of penetration (§§ 269, subd. (a)(5), 289, subd. (a)). Relying on Soto , supra , 51 Cal.4th at p. 238, defe ndant challenges CALCRIM No. 1045’s definition of “force” as outdated. In that case, our high court addressed the issue of consent in the context of a violation of section 288. It held that given the “clear legislative intent expressed in the plain langua ge of section 288(b)(1), . . . consent of the victim is not a defense to the crime of aggrav ated lewd conduct on a child under age 14. The prosecution need not prov e that a lewd act committed by use of force, violence, duress, menace, or fear was also against the victim’s will.” ( Soto , supra , at p. 248.) Specifically, the court noted th at in 1981, the Legislature deleted the requirement that the acts proscribed in section 288, when accompan ied by force, violence, duress, menace, or threat of great bodily harm, be against the will of the victim . ( Soto , supra , at p. 240.) Rather, a conviction under section 288, subdivi sion (b), only required a showing that the force used be “‘substantially different from or substantially greater th an that necessary to accomplish the lewd act itself.’” ( Soto , supra , at p. 242.) Relyi ng on this language in Soto , defendant argues “these principles appl y to a prosecution for aggravated sexual assault of a child committed by sexual penetra tion by a foreign object, sections 269, subdivision (a)(5) and 289, subdivisi on (a), count one.” We disagree. Unlike the language in section 288, 5 section 289, subdivision (a), proscribes “an act of sexual penetration upon a child who is under 14 years of age, when the act is

5 “(a) Except as provided in subdivisi on (i), any person who willfully and lewdly commits any lewd or lascivious act, including any of the acts cons tituting other crimes [footnote continued on next page]16 accomplished against the victim’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim . . . .” (§ 289, subd. (a)(1)(B), italics added.) The inclusion of the words “a gainst the victim’s w ill” means the element of force in section 289 offenses is less like the lewd acts laws ( Cicero , supra , 157 Cal.App.3d at p. 474 [convicti on of forcible lewd act requir es physical force that is substantially different from or substantially greater than that necessary to accomplish the lewd act itself]) and more like the rape statute at issue in People v. Griffin (2004) 33 Cal.4th 1015, 1027 [conviction for forcible rape requires the jury to determine “whether the use of force served to overcome the will of the victim to thwart or resist the attack . . . .”]). ( Asencio , supra , 166 Cal.App.4th at pp. 1204-1205.) “Because . . . the forcible sexual penetration statute is conceptua lly akin to the rape statute, we discern no reasoned basis to apply a different concept of the term ‘force’ to forcible rape and forcible oral copulation on the one hand (per Griffin and [ People v. Guido (2005) 125 Cal.App.4th 566]), and to forcible sexual pene tration on the other. We conclude that forcible sexual penetration within the mean ing of section 289, subdivision (a)(1) is proven when a jury finds beyond a reasonable doubt that the defendant accomplished an act of sexual penetration by the use of for ce sufficient to overcome the victim’s will. [Citations.]” ( Asencio , supra , at pp. 1205.)
[footnote continued from previous page] provided for in Part 1, upon or with the body, or any part or member thereof, of a child who is under the age of 14 year s, with the intent of arousi ng, appealing to, or gratifying the lust, passions, or sexual desires of that pe rson or the child, is guilty of a felony and shall be punished . . . . [¶] (b) [¶] (1) Any person w ho commits an act described in subdivision (a) by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim of another person, is guilty of a felony . . . .” (§ 288, subds. (a), (b)(1).)17 For the above reasons, the trial court corr ectly instructed the jury with CALCRIM No. 1045 and the instruction correctly defines force. Because defend ant offers the same argument in support of his claim that the de finition of the “duress” was incorrect, we apply the same analysis and reject his cont ention. CALCRIM No. 1 045, in its entirety, instructed the jury on the ap plicable law. V. CALCRIM NO. 1128 Defendant faults the trial court for faili ng to instruct the ju ry with the required mens rea to find him guilty of sexual penetra tion with a child 10 ye ars of age or younger, as alleged in count 2. (§§ 288.7, subd. (b), 289.) Defendant was charged with violating section 288.7, su bdivision (b), by “willfully and unlawfully participat[ing] in an act of oral copulation or sexual penetration, as defined in Penal Code section 289, with JA NE DOE, a person who is 10 years of age or younger.” As previously noted, the jury received “CAL CRIM 1045. SEXUAL PENETRATION BY FORCE, FEAR OR THRE ATS (Pen. Code, § 289(a)(1), (2), (g).” It also received “CAL CRIM 1128. ENGAGING IN SE XUAL PENETRATION WITH CHILD 10 YEARS OF AGE OR YOUNGER (Pen. Code, § 288.7(b).” While CALCRIM No. 1045 stated that “Sexual penetr ation means penetration, however slight, of the genital or anal opening of the other person for the purpose of sexual abuse, arousal, or gratification,” CALCRIM No. 1128 pr ovided only that “Sexual penetration means penetration, however slight, of the genital opening of the other person.” Defendant contends the omission of the words “for the purpose of sexual abuse, arousal, or18 gratification” from CALCRIM No. 1128 amounts to a failure to inst ruct the jury on the required mens rea, and thus, re quires reversal of his convic tion on count 2. We disagree. A. Standard of Review A defendant has a right to have the jury determine every element of the charged offenses. ( People v. Flood (1998) 18 Cal.4th 470, 480-4 81.) “We determine whether a jury instruction correctly states the law unde r the independent or de novo standard of review. [Citation.] Review of the adequacy of instructions is based on whether the trial court ‘fully and fairly instructed on the app licable law.’ [Citation.] ‘“In determining whether error has been committe d in giving or not giving ju ry instructions, we must consider the instructions as a whole . . . [and] assume that the jurors are intelligent persons and capable of unders tanding and correlating all jury instructions which are given.” [Citation.]’ [Citation.] ‘Instructions should be interpreted, if possible, so as to support the judgment rather th an defeat it if they are r easonably susceptible to such interpretation.’ [Citation.]” ( People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.) B. Analysis Here, when we consider the instructi ons as a whole, we cannot conclude the omission of the words “for the purpose of sexu al abuse, arousal, or gratification” (or the mens rea element) from CALC RIM No. 1128 requires re versal. These words are essentially indistinguishable from the wo rds used in CALCRI M No. 1045, which instructed the jury that “[s] exual penetration means penetra tion, however slight, of the genital or anal opening of the other person fo r the purpose of sexual abuse, arousal, or gratification.” Further, the jury re ceived “CALCRIM 251. UNION OF ACT AND19 INTENT: SPECIFIC IN TENT OR MENTAL STATE,” which instructed: “The crimes charged in this case require proof of the uni on, or joint operation, of act and wrongful intent. [¶] For you to find a person guilty of the crimes in this case, that person must not only intentionally commit the prohibited act, but must do so with a specific intent or mental state. The act and the specific intent or mental state required are explained in the instruction for that crime. [¶ ] The specific intent or mental state required for the crimes is one of sexual intent to appeal to the lu st, passions or sexual desires of defendant or victim.” Thus, the instructions, as a whole, defined the charged crime of forcible sexual penetration, including the requi rement that the charged act be committed “for the purpose of sexual abuse, arousal or gratification.” Notwithstanding the above, and as the Pe ople point out, the jury’s verdicts on the parallel counts of aggravated sexual assault (c ount 1) and forcible lewd acts (count 3) demonstrate that the jurors did indeed consid er whether defendant acted with the requisite mens rea to convict of sexual penetration. As to both counts 1 and 3, the jury was instructed on the requisite mens rea that defendant’s purpose was for “sexual abuse, arousal, or gratification” and “arousing, appealing to, or gr atifying the lust, passions, or sexual desires of himself or the child.” Be cause the jury convicted defendant of both counts 1 and 3, it is clear that the issue of defendant’s sexual intent was necessarily and repeatedly resolved against him by other prop er instructions. Therefore, any error in instructing the jury as to count 2 was harmless beyond a reasonable doubt. ( Stark v. Superior Court (2011) 52 Cal.4th 368, 407 [failure to instru ct with guilty knowledge requirement is harmless where the conduct in the challenged count is the basis of parallel20 counts]; People v. Bolden (2002) 29 Cal.4th 515, 560, [failure to instruct on an essential element of a special circumstance is subj ect to a harmless error analysis under Chapman v. California (1967) 386 U.S. 18, 24].) VI. FAILURE TO INSTRUCT ON LESSER INCLUDED OFFENSE Defendant contends the trial court had a sua sponte duty to instruct the jury that nonforcible lewd act with a child under 14 years of age (§ 288, subd. (a)) is a lesser included offense of each of th e charged counts. Defendant further contends the trial court’s failure to do so requires reversal. A. Applicable Legal Principles “A court must instruct sua sponte on gene ral principles of law that are closely and openly connected with the facts presented at tria l. [Citations.] This sua sponte obligation extends to lesser included offens es if the evidence ‘raises a question as to whether all of the elements of the charged offense are presen t and there is evidence that would justify a conviction of such a lesser offens e. [Citations.]’ [Citations.] . . . ‘A criminal defendant is entitled to an instruction on a lesser included offense only if [citation] “there is evidence which, if accepted by the trier of fact, w ould absolve [the] defendant from guilt of the greater offense” [citation] but not the lesser . [Citations].’ [C itation.] [¶] The requirement that courts give sua sponte instru ctions on lesser included offenses ‘is based in the defendant’s constitutional right to have the jury determine every material issue presented by the evidence. [C itations].’ [Citation.]” . . . [¶] . . . .[¶] To determine whether a lesser offense is necessarily included in the charged offense, one of two tests (called the ‘elements’ test and the ‘accusatory pleading’ test) must be met. The elements21 test is satisfied when ‘“all the legal ingredie nts of the corpus delicti of the lesser offense [are] included in the el ements of the greater offense.” [Citation.]’ [Citations.] Stated differently, if a crime cannot be committed without also necessa rily committing a lesser offense, the latter is a lesser included offense within the former. [C itations.] [¶] Under the accusatory pleading test, a lesser offense is included within the greater charged offense ‘“if the charging allegations of the accusatory pleadin g include language describing the offense in such a way that if committed as specified the lesser offense is necessarily committed.” [Cita tion.]’ [Citations.]” ( People v. Lopez (1998) 19 Cal.4th 282, 287-289 ( Lopez ).) B. Analysis Applying the elements test, we compare th e elements of the offense of lewd act on a child (§ 288, subd. (a)), with those in offense of aggravat ed sexual assault on a child by sexual penetration (§§ 26 9, subd. (a)(5), 289, subd. (a); co unt 1); sexual penetration of a child 10 years of age or younger (§ 288.7, su bd. (b), 289; count 2); and forcible lewd act on a child (§ 288, subdivision (b)(1); count 3) Section 288, subdivision (a), states a fe lony offense for any person who “willfully and lewdly commits any lewd or lascivious act” upon the body of a child under the age of 14, “with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child . . . .” “ 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. [Citation.]” ( Lopez , supra , 19 Cal.4th at p. 289.) Nonaggravated lewd22 conduct (§ 288, subd. (a)) is not a lesser in cluded offense to aggravated sexual assault on a child by sexual penetration (§§ 269, subd. (a)(5), 289, subd. (a); count 1) or sexual penetration of a child 10 years of age or you nger (§ 288.7, subd. (b ), 289; count 2). Nonaggravated lewd conduct on a child under the age of 14 in violation of section 288, subdivision (a) is a spec ific intent crime. ( People v. Warner (2006) 39 Cal.4th 548, 556.) It requires the specific intent of arousing, app ealing to, or gratifying the lust, passions, or sexual desires of the perpetrator or the child. ( People v. Raley (1992) 2 Cal.4th 870, 907.) However, neither aggravated sexual pe netration in violation of section 289, subdivision (a)(5), nor sexual penetration of a child 10 years of age or younger in violation of section 288.7, s ubdivision (b), require any spec ific intent or purpose. ( People v. Dillon (2009) 174 Cal.App.4th 1367, 1380 [“forcible sexual penetration is a general intent crime”].) Rather, they are committed “against the vi ctim’s will by means of force, violence, duress, menace, or fear of immediate and unlawfu l bodily injury on the victim or another person . . . .” (§ 289, subd. (a)(1).) No specific intent to arouse the passions of the perpetrator or victim is require d. Thus, under the statutory elements test, nonaggravated lewd conduct is not a necessari ly included lesser o ffense to aggravated sexual penetration or sexual penetration of ch ild 10 years of age or younger, because the greater offenses can be committed without the sp ecific intent of arousing the passions of the perpetrator or the victim , a necessary element of a violation of section 288, subdivision (a). The trial court did not have a duty to instruct sua sponte on nonaggravated lewd conduct as lesser included offenses in counts 1 and 2.23 The People concede that a lewd act on a child (§ 288, subdivision (a)) is a lesser included offense of forcible lewd act on a child (§ 288, subd. (b)(1)). ( People v. Ward (1986) 188 Cal.App.3d 459, 470-473; People v. Espinoza (2002) 95 Cal. App.4th 1287, 1318-1319.) However, they argu e that “the trial court in this case was not required to instruct the jury on th e lesser included offense because th ere was no substantial evidence that [defendant] only violated subdivision (a) when he comm itted count 3.” We agree. As previously noted in section III.C., ante , subdivisions (b) and (a) of section 288 on their face distinguish “between those lewd ac ts that are committed by force and those that are not.” ( Cicero , supra , 157 Cal.App.3d at p. 473.) Substantial evidence supports the jury’s finding that defendant committed the act against the vi ctim with force and duress. Notwithstanding the above, the People note the trial court did instruct on the lesser included offenses of attempted lewd acts on a child under 14 with force, fear or duress (CALCRIM No. 460); simple battery (C ALCRIM No. 960); and simple assault (CALCRIM No. 915). If the jury had believed that defe ndant touched Doe 1 without force or duress, it would ha ve found defendant guilty of one of the lesser offenses. VII. IS FORCIBLE LEWD ACT A LESSER INCLUDED OFFENSE OF AGGRAVATED SEXU AL ASSAULT? Defendant contends that his conviction (count 3) pursuant to section 288, subdivision (b)(1) for forcible lewd act on a child shoul d be reversed because it is a necessarily lesser included offens e of his conviction (count 1) pursuant to sections 269, subdivision (a)(5) and 289, su bdivision (a), for aggravated se xual assault. We disagree.24 A. Applicable Legal Standard In California, it has long been held that multiple convictions may not be based on necessarily included offenses. ( People v. Pearson (1986) 42 Cal.3d 351, 355.) This is a judicially created exception to section 954, which expressly allows a defendant to be convicted of “‘any number of the offenses charged.’” (§ 954; People v. Ramirez (2009) 45 Cal.4th 980, 984 ( Ramirez ); see also People v. Ortega (1998) 19 Cal.4th 686, 692.) When multiple convictions are based on nece ssarily included offenses, the conviction for the greater offense is controlling, and the conviction for the lesser offense must be reversed. ( People v. Pearson , supra , at p. 355.) There are two tests for determining whethe r an offense is necessarily included in another: the “‘elements’ test” and th e “‘accusatory pleading’ test.” ( Ramirez , supra , 45 Cal.4th at pp. 984-985.) Both tests are used in determining whether a defendant received adequate notice of the charges against hi m and may therefore be convicted of an uncharged crime, but only the elements test is used in determining whether a defendant may be convicted of multiple charged crimes. ( People v. Reed (2006) 38 Cal.4th 1224, 1229-1230; see also People v. Scheidt (1991) 231 Cal.App.3d 162, 165-166 [observing that “only a statutorily lesser included offe nse is subject to the bar against multiple convictions in the same proceeding”], 168-17 1 [explaining the origins of and reasons underlying the judicially crea ted bar against multiple convi ctions based on necessarily included offenses].) Under the elements test, we look strictly to the statutory elements of the offenses, not to the facts of the case. ( Ramirez , supra , 45 Cal.4th at p. 98 5.) We ask whether25 “‘“all the legal ingredients of the corpus delic ti of the lesser offense [are] included in the elements of the greater offense.” [Citation.]’” ( Lopez , supra , 19 Cal.4th at p. 288.) In other words, “if a crime cannot be comm itted without also n ecessarily committing a lesser offense, the latter is a lesser included offense within the former. [Citations.]” ( Ibid .; see also People v. Montoya (2004) 33 Cal.4th 1031, 1034.) B. Analysis Section 289, subdivision (a)(1)(A), proscr ibes the offense of “sexual penetration when the act is accomplished against the victim’s will by means of force, violence, duress, menace, or fear of immediate and unla wful bodily injury on the victim or another person . . . .” The elements include: (1) se xual penetration, (2) a child under 14 years of age and who is seven or more years youn ger than the perpetra tor, (3) accomplished against the victim’s will, and (4) by means of force, violence, duress, menace, fear or threat to retaliate. (CALCRIM Nos. 1045, 1123.) Section 288, subdivision (b)(1), proscribes lewd or lascivious acts upon the body of a child under the age of 14, “with the intent of arousing, appeali ng to, or gratifying the lust, passions, or sexual desires of that pe rson or the child” when committed by “use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person.” (§ 288, subds. (a) & (b)(1 ).) The elements include: (1) willfully touching any part of a child’s body either on the bare skin or through clothing, (2) by using force, violence duress, menace, or fe ar of immediate and unlawful bodily injury to the ch ild or someone else, (3) with the intent of arousing, appealing to, or26 gratifying the lust, passions, or sexual desires of defendant or the child, and (4) the child is under the age of 14 y ears. (CALCRIM No. 1111.) Considering the above, forc ible lewd conduct with a child requires the specific intent “of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child . . . .” (§ 288, subd. (a).) However, aggravated sexual penetration, which formed the basis for the aggravated sexual a ssault charge, is a general intent crime containing no “sexual gr atification” specific intent element. ( People v. Dillon , supra , 174 Cal.App.4th at p. 1380.) Mo reover, as we previously noted in section IV above, aggravated sexual penetration only requires the force be enough to overcome the child victim’s will. ( Asencio , supra , 166 Cal.App.4th at p. 1205.) However, the force required for forcible lewd conduct is the physical for ce that is “‘substantially different from or substantially greater than that necessary to accomplish the lewd act itself.” ( Cochran , supra , 103 Cal.App.4th at p. 13.) For the above reasons, a section 288, subdivision (b), offense is not a lesser included offense to sexual assault base d on forcible sexual penetration.27 VIII. DISPOSITION The judgment is affirmed. NOT TO BE PUBLISHED IN OFFICIAL REPORTS

HOLLENHORST J. We concur:

RAMIREZ P.J. KING J.