Filed 11/18/21 P. v. Cantor CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 

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or ordered published for purposes of rule 8.1115. 

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

CARMELO CANTOR,

Defendant and Appellant.

 D078400

 (Super. Ct. No. INF1900055)

APPEAL from a judgment of the Superior Court of Riverside County, 

Harold W. Hopp, Judge, and James S. Hawkins (Retired Judge of the 

Riverside Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of 

the Cal. Const.). Affirmed.

Robert L.S. Angres, under appointment by the Court of Appeal, for 

Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant 

Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. 

Swenson and Charles C. Ragland, Deputy Attorneys General, for Plaintiff 

and Respondent.
2

A jury convicted Carmelo Cantor of three counts of aggravated rape of a 

child under age 14 (Pen. Code, §§ 269, subd. (a)(1), 261, subd. (a)(2); counts 1, 

2, and 4), one misdemeanor count of battery as a lesser included offense of 

aggravated sexual penetration of a child under age 14 (id., §§ 242, 269, 

subd. (a)(5); count 3), and one misdemeanor count of violating a court order 

(id., § 166, subd. (a)(4); count 5).1 The trial court sentenced him to prison for 

an indeterminate term of 45 years to life. 

The victim was Cantor’s daughter, Doe, who was 15 years old when she 

testified at trial. Doe testified that, from a young age, she was physically 

abused by her father if she failed to obey him. She described how, beginning 

when she was 12 or 13, Cantor would demand intercourse by telling her he 

wanted to have “a little fun,” and she testified that, when she told him no, he 

became angry or threatened her if she failed to comply with his demands.

Cantor’s only contention on appeal is that the trial court erred by 

failing to instruct on unlawful sexual intercourse with a minor (§ 261.5, 

subd. (d)), which he claims is a lesser included offense of aggravated rape of a 

child. We conclude the trial court did not err in failing to instruct on 

unlawful sexual intercourse with a minor, and assuming any error occurred, 

it was harmless. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Doe was 15 years old at the time of trial. She testified that the rule in 

her house was to obey her father “in everything,” and that if she failed to 

obey him, he would hit her.2 He began hitting her as a consequence for 

disobedience when she was nine years old. He would hit her with “whatever 

1 Unspecified statutory citations are to the Penal Code.

2 Evidence at trial established that Cantor was about 21 years older than 

Doe. 
3

he found”: a belt, a flyswatter, or his hand. He would also “scold” her when 

she failed to obey by taking her phone away, and by forbidding her from 

going out, talking to friends, or being by herself. Doe testified that she was 

not strong enough to push her father off of her or to prevent him from 

touching her.3

Doe testified that, before she disclosed the abuse, she had contact with 

Child Protective Services (CPS) regarding the physical abuse inflicted by 

Cantor. She began cutting herself and was seeing a therapist, but she did not 

disclose the sexual abuse to her therapist or to CPS. Doe eventually disclosed 

the abuse to her mother, who instructed Doe to call the police. Doe recalled 

speaking with a police investigator regarding her allegations of abuse about 

one year before the trial. The interview, which had been recorded, was 

played for the jury at trial. We summarize the evidence from the trial as well 

as Doe’s interview below.

Count 1

Doe testified that Cantor began sexually abusing her when she was 

12 or 13 years old. She described the first incident, which occurred on a 

school holiday—either Independence Day or Labor Day—when she was 12 or 

13 years old. As she was lying in her mother’s bed early in the morning, she 

saw Cantor looking out the window as her mother left for work. Cantor laid

on the bed next to Doe and began touching her by reaching into her shorts 

and touching her vaginal area over her underwear. Then he touched his own 

penis. He asked if he could insert his penis inside her “and play a little,” as 

he started to remove his pants. He told her that if she did not do it “he would 

scold [her], he would hit [her].” He told her not to tell her mother or anyone 

3 At the time of trial, Doe was under five feet tall. Cantor is five feet, 

seven inches tall and weighs 200 pounds. 
4

else, because “that would destroy him.” Doe could not see him but could hear 

him undress. He laid behind her as she lay on her side and put his penis in 

her vagina and “started playing,” that is, “moving a lot.” This hurt a lot, and 

when he stopped moving, he asked if it hurt, and she told him it did. He told 

her to go to the bathroom and clean herself, and that “this would be a secret 

[they] would keep.” 

In her interview the prior year, Doe told the investigator that the first 

time Cantor sexually abused her was on Labor Day when she was 12 years 

old and in seventh grade. Cantor had the day off, and she saw him “checking 

out the window” to see “when [her] mom left.” He grabbed her leg and then 

her hips or stomach and said, “ ‘[L]et’s have a little fun.’ ” She told him no. 

He pulled down Doe’s shorts and underwear and removed his own pants and 

underwear “and then he started doing what he wanted to do.” She told the 

investigator Cantor put his “dick” inside her vagina and then, when “the 

sperm [came] out,” he “told [her] to go to the restroom” and clean up. She 

said it hurt “a lot.” She told the investigator that she “never opened [her] 

eyes” and she “was, like, having a dream.”4 She told her father she did not 

want to “have a relationship with [him]” but “he still [kept] doing it” and she 

“got all nervous.” Cantor told her, “ ‘Don’t tell your mother we did this.’ ” 

Cantor continued to sexually abuse her after this. 

4 The sexual assault child abuse investigator testified that, in his 

experience, survivors of sexual assault often tried to distance themselves 

from traumatic moments as they experienced them and would sometimes 

talk about being asleep during the abuse. He observed that, even though Doe 

described herself as having a dream or being asleep, she was still able to 

describe the details of the assaults. 
5

Count 2

Doe testified regarding another incident of abuse that occurred when 

she was 13 years old and her mother was out of the house taking her sibling 

to an appointment. Cantor hugged her from behind and “started to move 

himself.” He asked if he could put his penis inside of her again, and he 

became angry when she said no. He lowered her shorts and underwear and 

“put it inside of [her].” It hurt her “a lot. It was very painful in [her] vagina.” 

Afterward he told her to go to the bathroom and clean herself. He told her 

not to say anything to her mother “[b]ecause it would ruin his life and he 

would go to jail.” 

In her interview, Doe told the investigator that Cantor sexually abused 

her in her home when she was 13 years old, when her mother was out of the 

house taking her sibling to a therapy appointment. Doe said she was 

watching television when she saw Cantor closing the curtains. He said, “Oh, 

we’re going to have a little fun.” She said she did not want to, but “he just 

started doing it again.” He pulled her shorts and underwear down to her 

ankles. He took off his own clothes, put his penis in her vagina, and told her 

to close her eyes. She “got almost sleepy” and “fell asleep,” but then “[her] 

vagina started hurting.” She “told him to stop because it was hurting,” and 

he went to the restroom “to clean everything off.”5 He told her he would not 

do it again, but he did.

5 On cross-examination, defense counsel asked Doe, “How did you know 

that your father put his penis in your vagina if you were asleep?” Doe 

responded, “Because I felt it.” Defense counsel asked, “And did you feel it 

when you woke up, or how did you feel it?” Doe responded, “I heard his 

voice.” Doe later testified, “I heard his voice. When I was asleep, I heard his 

voice. He said, ‘Okay. Get up and clean yourself,’ ” and her body felt sore. 
6

Count 3

While Doe was still 13 years old, Cantor took her for a driving lesson. 

Doe was driving and Cantor was in the front passenger seat. He directed her 

to a lemon field. During her interview and her direct testimony, Doe said he 

touched her skin under her underwear and put his finger in her vagina. 

However, on cross-examination, Doe stated that Cantor touched her vaginal 

area over her clothing while she was driving. She told him to stop because 

she “was feeling uncomfortable.” He moved his hand away, but he became 

angry. They arrived at the lemon field and there was no one around. 

Doe told the investigator that Cantor “put his arm underneath [her] 

vagina” as she was driving “and [her] skin got spooked. [She] got nervous. 

[Her] arms were sweating. [She] was sweating and he [said], ‘Let’s have a 

little fun again. Let’s have fun more [sic] every day.’ ” She told him she did 

not want “to do anything with [him].” Then “he forced [her] to park[] and go 

to the . . . lemon bushes.” 

Count 4

At the lemon field, Cantor was angered by Doe’s disobedience and

directed her to stop the car, to get out, and to lower her shorts and 

underwear. He asked if he could put his penis in her vagina and asked her to 

bend down. She followed his instructions because “if [she] didn’t obey, he 

would scold [her].” She described how, as she was bent in “a doggie pose,” 

with her feet and hands on the ground and her “behind” in the air, he lowered 

his shorts and underwear and put his penis in her vagina, as he held her 

waist with his hands. He moved his body with his penis in her vagina. She 

felt nervous and fearful and felt pain in her vagina. When he was done, he 

moved away, pulled up his shorts and underwear, and told her to do the 

same. He drove them home from the lemon field. 
7

In her interview, Doe told the investigator that Cantor told her he had 

to “give [her] a punishment,” and he “forced [her] to get out of the car and go 

to the lemons.” She “got forced to” pull down her pants and underwear, and 

Cantor “put his dick on [her] vagina again.” She then clarified that she 

meant he put it “inside.” She “was standing,” and “[he], like, forced [her] to 

do it,” and when he finished he asked her if she liked it, and “he forced [her] 

to say yes, but obviously no, [she] didn’t like it.” Doe told the investigator 

that Cantor threatened to take away her phone if she did not say that she 

liked it. When they were driving home, Cantor saw Doe crying and told her, 

“ ‘Don’t cry. That didn’t hurt.’ ” 

Count 5

On January 10, 2019, a judge issued a criminal protective order 

prohibiting Cantor from having any contact with Doe or her mother. 

Between January 18, 2019 and January 28, 2020, Cantor called Doe’s mother

from jail 92 times. 

As previously noted, the jury convicted Cantor on three felony counts of 

aggravated rape of a child under age 14 (counts 1, 2, and 4), one 

misdemeanor count of battery as a lesser included offense of aggravated 

sexual penetration of a child under age 14 (count 3), and one misdemeanor 

count of violating a court order (count 5). Cantor appeals, challenging the 

court’s failure to instruct on a lesser included offense relating to counts 1, 2, 

and 4.
8

DISCUSSION

I.

The Trial Court Did Not Err in Failing to Instruct

on Unlawful Sexual Intercourse

Cantor contends the trial court committed reversible error by failing to 

instruct the jury that unlawful sexual intercourse with a minor (§ 261.5, 

subd. (d)) is a lesser included offense of the charged crime of aggravated rape 

of a child under age 14 (§ 269, subds. (a)(1) & (a)(2)). We disagree. 

“ ‘An instruction on a lesser included offense must be given only if there 

is substantial evidence from which a jury could reasonably conclude that the 

defendant committed the lesser, uncharged offense, but not the greater, 

charged offense.’ [Citation.] The ‘substantial evidence requirement is not 

satisfied by “ ‘any evidence . . . no matter how weak,’ ” but rather by evidence 

from which a jury . . . could conclude “that the lesser offense, but not the 

greater, was committed.” ’ [Citation.] ‘On appeal, we review independently 

the question whether the trial court improperly failed to instruct on a lesser 

included offense.’ ” (People v. Nelson (2016) 1 Cal.5th 513, 538.) 

There are two tests for determining whether an uncharged crime is a 

lesser included offense. “ ‘ “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. Lopez (2020) 9 Cal.5th 254, 

269-270 (Lopez).) 

Unlawful sexual intercourse is “an act of sexual intercourse 

accomplished with a person who is not the spouse of the perpetrator, if the 
9

person is a minor.” (§ 261.5, subd. (a).) “Any person 21 years of age or older 

who engages in an act of unlawful sexual intercourse with a minor who is 

under 16 years of age is guilty of either a misdemeanor or a felony.” (Id., 

subd. (d).) Thus, the required elements to prove an offense of unlawful sexual 

intercourse with a minor under age 16 are: (1) the defendant had sexual 

intercourse with another person, (2) the defendant and the other person were 

not married to each other at the time of the intercourse, (3) the defendant 

was at least 21 years old at the time of the intercourse, and (4) the other 

person was under the age of 16 at the time of the intercourse. (CALCRIM 

No. 1070; § 261.5, subds. (a), (d); see People v. Woods (2015) 241 Cal.App.4th 

461, 478.) 

Aggravated rape of a child is defined as the forcible rape of a child who 

is under 14 years of age and seven or more years younger than the defendant. 

(§ 269, subd. (a)(1).) Rape, in turn, is “an act of sexual intercourse 

accomplished with a person not the spouse of the perpetrator . . . [¶] . . . [¶]

[w]here it is accomplished against a person’s will by means of force, violence, 

duress, menace, or fear of immediate and unlawful bodily injury on the 

person or another.” (§ 261, subd. (a)(2); accord People v. Scott (2000) 

83 Cal.App.4th 784, 794, fn. 4 (Scott) [specifying the elements of forcible 

rape].) For counts 1, 2, and 4 (aggravated rape of a child under the age of 14), 

the jury was instructed that the People had to prove (1) defendant committed 

rape by force on Doe, and (2) when defendant acted, Doe was under the age of 

14 years and was at least seven years younger than defendant. (CALCRIM 

No. 1123; § 269, subd. (a)(1).) The jury was further instructed that, to find 

defendant committed forcible rape, the People had to prove: (1) defendant 

had sexual intercourse with Doe, (2) he and Doe were not married to each 

other at the time of the intercourse, (3) Doe did not consent to the 
10

intercourse, and (4) defendant accomplished the intercourse by force, duress 

or menace to Doe. (CALCRIM No. 1000; § 261, subd. (a)(2).)6 

Cantor does not contend that, under the elements test, unlawful sexual 

intercourse with a minor is a lesser included offense of aggravated rape of a 

child under age 14. Any such argument would fail because unlawful sexual 

intercourse under section 261.5, subdivision (d) includes an element—that 

Cantor was at least 21 years old at the time of the act—that is not contained 

in the charged offenses of aggravated rape of a child. Cantor also does not 

contend unlawful sexual intercourse with a minor is a lesser included offense 

under the conventional accusatory pleading test. Again, any such argument 

would fail because the information contains no allegations regarding Cantor’s 

age. (See Lopez, supra, 9 Cal.5th at pp. 269-270 [accusatory pleading test is 

met where the facts actually alleged in the accusatory pleading include all 

the elements of the lesser offense].)

6 The jury was further instructed: “Intercourse is accomplished by force 

if a person used enough physical force to overcome [Doe’s] will. [¶] Duress 

means a direct or implied threat of force, violence, danger, or retribution that 

would cause a reasonable person to do or submit to something that she would 

not do or submit to otherwise. Some circumstances that you may consider in 

determining whether duress existed is whether the acts occurred in an 

isolated location, the disparity in physical size, whether there was frequent 

interaction between the defendant and [Doe], whether the abuse was 

continuous or involve[d] a single incident, whether statements were made 

indicating negative occurrences would result from disclosure, [and] the 

presence or absence of psychological dominance. When deciding whether the 

act was accomplished by duress, consider all the circumstances, including 

[Doe’s] age and her relationship to the defendant. [¶] Menace means a 

threat, statement, or act showing an intent to injure someone. [¶] 

Intercourse is accomplished by fear if [Doe] was actually and reasonably 

afraid or she is actually but unreasonably afraid and the defendant knows of 

her fear and takes advantage of it.” (CALCRIM No. 1000.)
11

Nevertheless, Cantor contends that unlawful sexual intercourse with a 

minor is a lesser included offense in this case under the “expanded accusatory 

pleading test” that the court applied in People v. Ortega (2015) 

240 Cal.App.4th 956, 967 (Ortega). (Italics added.) Under this approach, 

“[t]he evidence adduced at the preliminary hearing must be considered in 

applying the accusatory pleading test when the specific conduct supporting a 

holding order establishes that the charged offense necessarily encompasses a 

lesser offense.” (Ibid., italics added.) Applying this expanded test, Cantor 

contends unlawful sexual intercourse with a minor qualifies as a lesser 

included offense of the charged aggravated rape offenses because the 

preliminary hearing transcript “put the parties on notice that [Cantor] was 

born on October 28, 1984” and thus was at least 21 years old.7

We considered and rejected the expanded accusatory pleading test in 

People v. Alvarez (2019) 32 Cal.App.5th 781 (Alvarez), and we decline 

Cantor’s invitation to reach a contrary conclusion here. As we explained in 

Alvarez, the expanded accusatory pleading test is inconsistent with the 

Supreme Court’s decision in People v. Montoya (2004) 33 Cal.4th 1031

(Montoya). (Alvarez, at p. 787.) Montoya instructs: “Consistent with the 

primary function of the accusatory pleading test—to determine whether a 

defendant is entitled to instruction on a lesser uncharged offense—we 

consider only the pleading for the greater offense.” (Montoya, at p. 1036, fn. 

omitted.) 

The Ortega court’s admonition to consider “[t]he evidence adduced at 

the preliminary hearing” (Ortega, supra, 240 Cal.App.4th at p. 967) conflicts 

7 Relying on notes, an investigator testified at the preliminary hearing 

that Cantor’s birthday was in October 1984. However, at trial, Doe’s mother 

testified that Cantor’s birthday is in July 1982. The criminal protective order 

likewise indicates that Cantor’s birthday is July 1982. 
12

with the Supreme Court’s statement in Montoya to “consider only the 

pleading” when “determin[ing] whether a defendant is entitled to instruction 

on a lesser uncharged offense.” (Montoya, supra, 33 Cal.4th at p. 1036.) As 

we explained in Alvarez, “Montoya disapproved of People v. Rush (1993) 

16 Cal.App.4th 20, which”—like Ortega—“considered evidence from the 

preliminary hearing in applying the accusatory pleading test.” (Alvarez, 

supra, 32 Cal.App.5th at p. 788.) But “Ortega did not cite Montoya or 

attempt to reconcile its analysis.” (Ibid.) We therefore declined to follow 

Ortega in Alvarez. (Id. at pp. 787-788.) 

Other courts have similarly rejected application of an expanded 

accusatory pleading test as contrary to Supreme Court precedent. (See 

People v. Macias (2018) 26 Cal.App.5th 957, 964; People v. Munoz (2019) 

31 Cal.App.5th 143, 158 (Munoz).) While no published decision has followed 

Ortega, courts since Montoya have continued to apply the rule excluding 

evidence beyond that in the accusatory pleading. (See People v. Smith (2013) 

57 Cal.4th 232, 244 (Smith) [“The trial court need only examine the 

accusatory pleading.”]; People v. Chaney (2005) 131 Cal.App.4th 253, 257

[“ ‘to determine whether a defendant is entitled to instruction on a lesser 

uncharged offense—we consider only the pleading for the greater offense’ ”]; 

see also People v. Banks (2014) 59 Cal.4th 1113, 1160 [“When applying the 

accusatory pleading test, ‘[t]he trial court need only examine the accusatory 

pleading.’ ”], disapproved on another ground in People v. Scott (2015) 

61 Cal.4th 363, 391, fn. 3.) 

We continue to follow Alvarez, consistent with the above line of cases, 

and reject Cantor’s request to instead adopt Ortega’s expanded accusatory 

pleading test. Cantor suggests Alvarez and other cases declining to follow 

Ortega are wrongly decided. In his reply brief, he contends Montoya is 
13

distinguishable because it dealt with a case involving “multiple convictions” 

(i.e., a situation where a defendant is charged with and convicted of both the 

greater and lesser offenses). But as we previously explained, “We do not read 

Montoya so narrowly. The court articulated the general standard for the 

accusatory pleading test before considering its application in a multiple 

conviction case. [Citation.] ‘Thus, Montoya intended its rule not only to 

apply in the context of multiple convictions, but also in the context of 

determining whether instructions on a lesser offense were warranted.’ ” 

(Alvarez, supra, 32 Cal.App.5th at pp. 788-789, fn. omitted, quoting Munoz, 

supra, 31 Cal.App.5th at p. 158.) We similarly reject Cantor’s argument that 

the language in Montoya, limiting application of the accusatory pleading test 

to the actual pleadings, is dicta. It is clear that the expanded accusatory 

pleading test proposed by Cantor cannot be reconciled with Montoya’s 

analysis. As we concluded in Alvarez, “[a]s an intermediate appellate court, 

we are required to follow Supreme Court precedent” and thus “ ‘we are not to 

look beyond the language of the accusatory pleading itself in assessing lesser 

included offenses.’ ” (Alvarez, at p. 788.)8 Because Cantor acknowledges that 

the element concerning his age is established only in the preliminary hearing 

transcript and not in the pleadings, he has not established unlawful sexual 

intercourse with a minor is a lesser included offense under the accusatory 

pleading test. The trial court therefore did not err in failing to instruct on 

this offense.

8 Cantor additionally argues it “makes no sense” to allow the prosecution 

to dictate whether a lesser included offense exists by controlling how the 

offense is charged in an accusatory pleading. We rejected this line of 

argument in Alvarez, noting in part that “[i]t is the prosecutor’s role to decide 

what charges (and thereby what lesser included offenses) are presented to the 

jury.” (Alvarez, supra, 32 Cal.App.5th at pp. 789-790.) 
14

Even if we were to find that unlawful sexual intercourse is a lesser 

included offense of aggravated rape of a child, we would still conclude the 

trial court did not err because there is no substantial evidence to support 

such an instruction on this record. As previously noted, “instructions on 

lesser included offenses ‘are required whenever evidence that the defendant

is guilty only of the lesser offense is “substantial enough to merit 

consideration” by the jury.’ ” (People v. Campbell (2015) 233 Cal.App.4th 148, 

162; accord People v. Sullivan (2007) 151 Cal.App.4th 524, 562 [court has sua 

sponte duty to instruct only “ ‘ “ ‘when the evidence raises a question as to 

whether all of the elements of the charge offense were present’ ” ’ ”]; Smith, 

supra, 57 Cal.4th at p. 245 [“a trial court is not required to instruct the jury 

on a necessarily included lesser offense ‘ “when there is no evidence that the 

offense was less than that charged” ’ ”].) Cantor contends “a jury could have 

rationally found that [he] committed the lesser offense of unlawful sex with a 

minor” because, with respect to counts 1 and 2, Doe testified she was 

“dream[ing]” or “sleepy” when the intercourse occurred and, as to count 4, 

“the jury could have been troubled by the fact that [Doe] would willfully 

choose to place herself in a situation where she would be forcibly raped and 

thus . . . the prosecution had failed to prove [the intercourse] was by the use 

of force or duress.”9 We disagree. Doe testified that, from a young age, her 

father hit and “scold[ed]” her if she disobeyed him. He was bigger and 

stronger than she was, and she was unable to fight him off. With respect to 

count 1, the incident on the school holiday, Doe testified she was nervous and 

9 To the extent Cantor is suggesting that Doe implicitly consented to 

intercourse, we reject his argument. Doe was 12 and 13 years old at the time 

of the crimes. In California, there is a “long-standing presumption that 

children under age 14 cannot give legal consent to sexual activity.” (People v. 

Soto (2011) 51 Cal.4th 229, 248, fn. 11.)
15

fearful her father would sexually abuse her, she told him “no,” and he 

threatened her that if she did not do what he told her to do, he would “scold”

or hit her. With respect to count 2, the subsequent rape when her mother 

was not home, Doe testified that when she told her father “no,” he became 

angry and removed her clothes. Similarly, with respect to count 4 (at the 

lemon grove), Doe testified that Cantor became angry when she told him to 

stop touching her vagina as she drove. She became nervous and fearful, and 

she followed his instructions to undress and bend over because she feared he 

would “scold” her. With respect to each count, she testified regarding the 

pain she experienced. Doe’s testimony established that Cantor accomplished 

each rape through force, duress, menace, or fear. (§ 261, subd. (a)(2); Scott, 

supra, 83 Cal.App.4th at p. 794, fn. 4.) Cantor did not testify, so there was no 

contrary evidence, and the jury clearly believed Doe’s accounts on these 

points. 

Doe’s testimony that she was asleep or dreaming when Cantor 

assaulted her does not undermine her testimony. As the sexual assault child 

abuse investigator testified, sexual assault victims try to distance themselves 

from traumatic moments as they experience them and may describe 

themselves as sleeping at the time of the assault. Even though Doe described 

herself as being asleep or dreaming, she was still able to describe the details 

of the assaults. “[T]he ‘substantial’ evidence required to trigger the duty to 

instruct on such lesser offenses is not merely ‘any evidence . . . no matter how 

weak’ [citation], but rather ‘ “evidence from which a jury composed of 

reasonable [persons] could . . . conclude[ ]” ’ that the lesser offense, but not 

the greater, was committed.” (People v. Cruz (2008) 44 Cal.4th 636, 664.) No 

reasonable juror would believe that Doe’s testimony that she was “having a 

dream” or “sleepy” when Cantor sexually abused her discredited her further
16

testimony establishing that the rapes were accomplished through force, 

duress, or fear. Similarly, even if Doe did ask Cantor to teach her how to 

drive, no reasonable juror would agree that such a request negated Doe’s 

testimony that the rapes were accomplished by force, duress, or fear. Nor 

would a reasonable juror credit Cantor’s argument that, if Doe asked her 

father for driving lessons, she “willfully [chose] to place herself in a situation 

where she would be forcibly raped.” On this record, there is no substantial 

evidence justifying instruction on the offense of unlawful sexual intercourse 

with a minor. The trial court therefore did not err in failing to instruct on 

this offense. 

II.

Any Assumed Error Was Harmless

Even if the court erred in failing to instruct on unlawful sexual 

intercourse with a minor, any assumed error was harmless. We will reverse 

a judgment based on failure to instruct on a lesser included offense “only if, 

‘after an examination of the entire cause, including the evidence’ [citation], it 

appears ‘reasonably probable’ the defendant would have obtained a more 

favorable outcome had the error not occurred [citation].” (People v. 

Breverman (1998) 19 Cal.4th 142, 178 (Breverman), citing People v. Watson

(1956) 46 Cal.2d 818, 836.)10 “ ‘The question is not what a jury could have 

done, but what a jury would likely have done if properly instructed.’ ” (People 

v. Larsen (2012) 205 Cal.App.4th 810, 831.) In evaluating whether the 

failure to give a lesser included offense instruction is prejudicial error, “an 

appellate court may consider, among other things, whether the evidence 

10 We reject Cantor’s argument that the purported error amounted to a 

constitutional violation. “The sua sponte duty to instruct fully on all lesser 

included offenses suggested by the evidence arises from California law alone.” 

(Breverman, supra, 19 Cal.4th at p. 149.) 
17

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.” (Breverman, at p. 177.) “We also consider the instructions as a 

whole, the jury’s findings, and the closing arguments of counsel.” (Larsen, at 

p. 831.) 

In this case, it is not reasonably probable that Cantor would have 

obtained a more favorable outcome had the jury been instructed on the 

offense of unlawful sexual intercourse with a minor. The primary difference 

between the lesser offense of unlawful sex with a minor and the greater 

offense of aggravated child rape is that aggravated rape requires proof that 

the intercourse was accomplished without consent, by force, violence, duress, 

menace, or fear of immediate and unlawful bodily injury. (See § 261, 

subd. (a)(2); Scott, supra, 83 Cal.App.4th at p. 794, fn. 4; CALCRIM 

No. 1000.) As previously noted, the jury was instructed that “[d]uress means 

a direct or implied threat of force, violence, danger, or retribution that would 

cause a reasonable person to do or submit to something that she would not do 

or submit to otherwise.” The jury was instructed to consider the following 

circumstances to determine whether duress existed: “whether the acts 

occurred in an isolated location, the disparity in physical size, whether there 

was frequent interaction between the defendant and [Doe], whether the 

abuse was continuous or involve[d] a single incident, whether statements 

were made indicating negative occurrences would result from disclosure, the 

presence or absence of psychological dominance[, . . . and Doe’s] age and her 

relationship to the defendant.” (CALCRIM No. 1000.) The jury was further 

instructed that “[i]ntercourse is accomplished by fear if [Doe] was actually 

and reasonably afraid or she is actually but unreasonably afraid and the 
18

defendant knows of her fear and takes advantage of it.” (Ibid.) As previously 

discussed, Doe testified that from a young age, her father would hit and scold 

her if she disobeyed him. The offenses occurred when Doe’s mother was not 

around. Cantor was significantly bigger and stronger than Doe, and she was 

unable to fight him off. Doe repeatedly testified that Cantor threatened to hit 

or scold her if she did not comply with his demands for intercourse. She 

testified that she told him no, but he did “what he wanted to do.” In addition, 

Cantor forced her to say she liked the sexual abuse, when “obviously no, [she] 

didn’t like it.” Doe testified regarding the nervousness and fear she felt. On 

this record, there was no evidence that the rapes were accomplished under 

circumstances devoid of force, duress, or fear. 

Cantor’s reliance on People v. Rodriguez (2018) 26 Cal.App.5th 890 is 

unavailing. In that case, an inmate convicted of assault with a deadly 

weapon (a chain) contended the jury should have been instructed with simple 

assault. (Id. at pp. 895-898.) The appellate court reversed his conviction 

because there was evidence—including video and photographic evidence as 

well as eyewitness testimony—from which the jury could reasonably find the 

inmate assaulted the officers but did not use the chain as a deadly weapon. 

(Id. at pp. 900-902.) By contrast here, given Doe’s uncontroverted testimony 

describing the circumstances of the rapes, it is not reasonably probable that a 

jury would have concluded the intercourse was accomplished without force,

duress, or fear, even if the trial court had instructed on the offense of 

unlawful sexual intercourse with a minor. We therefore conclude that any 

assumed error was harmless because it is not reasonably probable Cantor 

would have obtained a more favorable outcome. (Breverman, supra, 

19 Cal.4th at p. 178.)
19

DISPOSITION

The judgment is affirmed. 

GUERRERO, J.

WE CONCUR:

HUFFMAN, Acting P. J.

IRION, J.