1 Filed 11/27/13 P. v. Moore CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,
Plaintiff and Respondent,

v.
CHARLES ELLIE MOORE,
Defendant and Appellant. 2d Crim. No. B247649 (Super. Ct. No. MA054317-01) (Los Angeles County)

Charles Ellie Moore appeals his conv iction, by jury, of five counts of committing a lewd act upon a ch ild under 14 years of age. (Pen. Code, § 288, subd. (a).) 1 The trial court sentenced appellant to a term of 75 years to life in state prison. Appellant
contends the trial court erred when it refused to instruct th e jury on battery as a lesser included offense of lewd acts. The questio n of whether battery qualifies as a lesser
included offense of lewd acts is curren tly pending before our Supreme Court in People v. Shockley , review granted March 16, 2011, S1894 62. This appeal does not, however, depend on the resolution of that issue. Because there was no substantial evidence appellant committed batteries rather than lewd acts, the trial court had no obligation to instruct on battery, regardless of whether it qua lifies as a lesser included offense of lewd

acts.

1 All statutory references are to the Penal Code unless otherwise stated.2 Facts The victims here are S. M., A. S., Me gan B. and Cara S. S. and A. are appellant's granddaughters. Megan and Cara were students at a private school where appellant worked as a math and computer sc ience teacher. Appellant molested S. in 2011, when she was six years old. He molest ed A. in about 2002, when she was 11 or 12 years old. The crimes against Megan and Cara occurred between 2001 and 2002, when they were in the sixth, seventh and eighth grades.
S. testified that she was watchi ng television and reading books with appellant early one morning wh en he put his hand under her nightgown and underwear and touched her "private." When she told him to stop, appellant said, "Okay," but he touched her again. Appe llant kept touching S. until she to ld him to stop a third time. He said that what happened had be en an accident. As soon as S.'s father, Vincent, got home, S. told him that appellant had touched her "pee-pee." Vincent called S.'s mother, Jennifer, who was at work. Jennifer came home and made a video recording of S. describing the incident. 2 Appellant and his wife, Jennifer's moth er, had been staying in their mobile
home at Vincent and Jennifer's house. Vincent and Jennifer asked them to leave and they did. S.'s parents reported the incident to police about five days later, after discussing their options with their past or, a counselor and some friends who are police officers. While investigating the incident, Los Angeles Police Detective Susan Velasquez discovered that a ppellant had committed unreporte d lewd acts on the other three girls. A., who was 21 at the time of appe llant's trial, testified that appellant touched her vagina one time, while they were having a "tickle fight." They were alone in the house at the time. A. told her mother, appe llant's daughter Margo, about the incident as soon as Margo got home. Appellant told Ma rgo that A. was blowing everything out of proportion and that any touc hing had been an accident.

2 Jennifer testified that she made the video so th at S. would not have to keep talking about the incident while it was being investigated.3 Megan B. was 23 years old when she tes tified at appellant's trial. She was his student for math and computers from sixt h through eighth grade. Appellant bought her candy from the school store and loaned her money to buy candy. One day when she was in the sixth grade, she was alone with appellant after school. Appellant called Megan over to his desk, unbuttoned his shirt a nd put her hand on his chest, showing her a scar from an earlier surgery. Appellant th en put his hands on Megan's stomach and breasts, touching her under her bra. Megan told no one about the incident. One or two years later, Megan appr oached appellant for help with an assignment. He touched her knee under he r dress and then moved his hand up her leg and rubbed her vagina under he r underwear. That evening, Megan told her mother what had happened. They reported the incident to school administrators but not to police. Appellant was fired shortly thereafter. Cara S., also 23 at the time of trial, was another of appellant's students at the private school. She testified that one day after class, appellant put his hands under her
shirt and touched her breasts. She did not report the incident to police. Appellant testified that he never delib erately touched the girls' breasts or vagina. Megan asked to touch the scar from his heart transpla nt operation, so he let her. He also occasionally hugged Megan and may have accidentally t ouched her breasts at that time. Appellant testifie d he never touched Me gan's vagina. Appe llant admitted that he hugged Cara one day b ecause she was upset. He did not touch her breasts intentionally, although he may have touc hed them accidentally during the hug. Appellant testified that the incidents with A. and S. were also accidents. He may have touched A.'s vagina accidentally during their tickle fight, because she was squirming around a lot. S. had been sitting on his lap. He picked her up to move her, and his hand may have accidenta lly touched her vagina.
Discussion Appellant contends the trial court erre d when it refused to instruct the jury on battery (§ 242) as a lesser in cluded offense of the charged offense, lewd acts on a child under 14 years of age. (§ 288.) There was no error because no substantial evidence4 supported a battery instruction, even if battery qualifies as a lesser included offense of the charged crime. A trial court has a duty to instruct the jury on all theo ries of a lesser included offense which find substantial support in the evidence. ( People v. Smith (2013) 57 Cal.4th 232, 239.) " 'To ju stify a lesser included offens e instruction, the evidence supporting the instruction must be substantial -- that is, it must be evidence from which a jury composed of reasonable persons could conclude that the facts underlying the particular instruction exist.' " ( People v. Souza (2012) 54 Cal.4th 90, 116, quoting People
v. Blair (2005) 36 Cal.4th 686, 745.) The evidence must be suffi cient to permit a jury of reasonable people to conclude that the lesse r offense was committed, but not the greater. ( People v. Wyatt (2012) 55 Cal.4th 694, 704; see also People v. Avila (2009) 46 Cal.4th 680, 705.) "[T]he court is not obliged to instruct on theories that have no such evidentiary support." ( People v. Breverman (1998) 19 Cal.4th 142, 162.) Appellant was charged with having co mmitted lewd acts on children under 14 years of age, in violation of section 288. " ' "[A]ny touching" of an underage child
committed with the intent to sexually arouse either the de fendant or the child' establishes a section 288 violation." ( People v. Murphy (2001) 25 Cal.4th 136, 145-146, quoting People v. Martinez (1995) 11 Cal.4th 434.) Battery is a general intent crime which "requires that the defendant actually intend to commit a 'willful and unlawful use of force or violence upon the person of another.' [Citations.] In th is context, the term 'willful' means 'simply a purpose or willingness to commit the act . . . .' (§ 7, subd. 1.)" ( People
v. Lara (1996) 44 Cal.App. 4th 102, 107.) Even if battery qualifie s as a lesser included o ffense of lewd acts, the evidence here would not have supported an instruction on it. The victims described intentional, lewd touching by a ppellant. Appellant testified th at he intended to lawfully touch the victims -- by hugging Megan and Ca ra, picking up S., and tickling A. -- but then accidentally also touched their vaginas or breasts. He de nied touching Megan's vagina at all. This evidence provides no suppo rt for a battery instruction. The intentional touching described by appellant did not involve the use of force or violence and was not,5 therefore, battery. Accidental touching is not "willful" and thus cannot constitute battery. Appellant's testimony provided no evidentiary basis upon which a re asonable juror could find that he committed battery but did not commit a lewd act. ( People v. Breverman,

supra, 19 Cal.4th at p. 162.) As a consequence, the tria l court did not err when it
declined to instru ct the jury on battery as a lesser included offense.
Conclusion The judgment is affirmed.
NOT TO BE PUBLISHED.

YEGAN, J.

We concur:

GILBERT, P.J.

PERREN, J.6 Kathleen Blanchard, Judge
Superior Court County of Los Angeles

________________ ______________

Vanessa Place, under appointment by the Court of Appel, for Appellant.

Kamala D. Harris, Attorney Genera l, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Victoria B. Wilson, Supervising Deputy Attorney Genera l, Jonathan J. Klin e, Deputy Attorney General, for Plain tiff and Respondent.