P. v. Gurwell
Filed 10/27/06 P. v. Gurwell CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, Plaintiff and Respondent, v. DAVID BRIAN GURWELL, Defendant and Appellant. | E037822 (Super.Ct.No. RIF113575) OPINION |
APPEAL from the Superior Court of Riverside County. Bernard Schwartz, Judge. Affirmed in part, reversed in part and remanded.
Corinne S. Shulman, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Pamela Ratner Sobeck, Supervising Deputy Attorney General, and David Delgado-Rucci, Deputy Attorney General, for Plaintiff and Respondent.
A jury found David Brian Gurwell, defendant and appellant (hereafter defendant), guilty as charged of nine counts of aggravated sexual assault on a child under the age of 14 and 10 or more years younger than defendant in violation of Penal Code section 269, subdivision (a). Based on the jury’s verdicts, the trial court sentenced defendant to serve a term of 15 years to life on each count, all to run consecutively to each other, for a purported total term of 135 years to life in state prison.
Defendant contends that the trial court committed prejudicial error by refusing defendant’s request to instruct the jury on lesser included offenses. Defendant also contends that the trial court abused its discretion by overruling defendant’s objection to the admissibility of evidence that he had committed a prior sex crime and that Evidence Code section 1108, pursuant to which that evidence was admitted, is unconstitutional.
We agree with defendant’s first contention, but only with respect to counts 3 through 9, and will reverse on those counts. Defendant’s remaining claims are meritless.
FACTS
The victim in this case was 10 years old at the time of trial[1] and testified, in pertinent part, that defendant had committed various acts of sexual molestation, beginning when she was five years old and continuing until she was eight or nine years old. Those acts included defendant inserting his finger in the victim’s vagina on two separate occasions, inserting his penis in the victim’s rectum on two separate occasions, touching his penis to the victim’s mouth and touching his mouth to the victim’s vagina. In an interview with a social worker, the victim said that she had her put her mouth on defendant’s penis and twice defendant had inserted his penis in her vagina.[2] In addition to the acts of molestation, the victim and her older sister both testified that defendant routinely hit or beat them with his fist, his open hand, a belt, and his boot. The victim testified that defendant had also kicked her and once had slapped her in the face causing her nose to bleed.
Defendant admitted in his statement to the police that he had touched his penis to the victim’s vagina two or three times during the past year. Initially defendant acknowledged that he had penetrated the victim, but only very little. When the interviewing detective gave defendant a ruler on which to indicate the depth of penetration, defendant pointed to one-sixteenth of an inch. Ultimately, defendant stated that there had been little if any penetration. Defendant also admitted that on one occasion he had rubbed his penis on the victim’s buttocks. In addition, defendant stated that he may have put the victim’s hand on his penis and could have orally copulated the victim, although he did not recall having done so.
Defendant’s half sister testified at trial that defendant molested her beginning when she was about seven years old and he was about 14 years old. Defendant started out by rubbing her over her clothing and progressed to digital penetration when she was nine or 10 years old. When she was 13 or 14 years old defendant raped her.[3]
Additional facts will be discussed below as pertinent to the issues defendant raises on appeal.
DISCUSSION
We first address defendant’s claim that the trial court committed reversible error by refusing to instruct the jury on lesser included offenses to the charged crimes.
1.
LESSER INCLUDED OFFENSE INSTRUCTIONS
Penal Code section 269, subdivision (a)[4] makes it a crime to commit specified sex acts by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on a victim under the age of 14 and more than 10 years younger than the perpetrator. The specified sex acts, as pertinent here, are forcible rape in violation of section 261, subdivision (a)(2) (§ 269, subd. (a)(1)); sodomy, in violation of section 286 (§ 269, subd. (a)(3)); oral copulation in violation of section 288a (§ 269, subd. (a)(4)); and sexual penetration in violation of section 289, subdivision (a) (§ 269, subd. (a)(5)).
The amended information in this case charged defendant with two violations of section 269, subdivision (a)(1), which as noted is based on a violation of section 261, subdivision (a)(2), forcible rape (counts 1 and 2); two violations of section 269, subdivision (a)(5), based on sexual penetration in violation of section 289, subdivision (a) (counts 3 and 4); two violations of section 269, subdivision (a)(3), based on sodomy in violation of section 286 (counts 5 and 6); and three violations of section 269, subdivision (a)(4) based on oral copulation in violation of section 288a (counts 7, 8, and 9).
Defendant requested that the trial court instruct the jury on the underlying sex crimes, namely sexual penetration, sodomy, and oral copulation, as lesser included offenses to the crimes charged in counts 3 through 9, violations of section 269, subdivision (a)(1), (3), (4), and (5), respectively.[5] The trial court was of the view that the sex crimes specified in section 269 were not lesser included offenses to the charged crimes but, rather, were lesser related crimes. In the trial court’s view, if the evidence did not show that defendant committed the specified crimes by force, violence, duress, menace, or fear of immediate and unlawful bodily injury, then defendant had not committed any crime and the jury would have to find defendant not guilty. Consequently, the trial court refused defendant’s request to instruct on lesser included offenses. Defendant challenges that ruling in this appeal.
Defendant’s claim that the trial court erred in refusing to instruct on the underlying sex crimes as lesser necessarily included offenses to the charged violations of section 269 has two aspects. One aspect requires us to decide whether the underlying sex crimes are lesser included offenses to the crimes set out in section 269. The second aspect is whether the evidence presented at trial warrants giving the lesser included offense instructions.
A. Are the Sex Crimes Lesser Included Offenses?
We first address the question of whether the underlying sex crimes are lesser included offenses to the charged violations of section 269. “There are two tests to determine whether a lesser offense is necessarily included in the charged offense: the ‘elements’ test and the ‘accusatory pleading’ test.” (People v. Overman (2005) 126 Cal.App.4th 1344, 1360.) “The elements test is satisfied when ‘”all the legal ingredients of the corpus delicti of the lesser offense [are] included in the elements of the greater offense.” [Citation.]’ [Citations.] Stated differently, if a crime cannot be committed without also necessarily committing a lesser offense, the latter is a lesser included offense within the former. [Citations.]” (People v. Lopez (1998) 19 Cal.4th 282, 288 (Lopez).) “Under the accusatory pleading test, a lesser offense is included within the greater charged offense ‘”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.]’ [Citations.]” (Lopez, at pp. 288-289.)
Defendant contends that the crime of sexual penetration without force or violence as set out in section 289, subdivision (j), is a lesser included offense to the crime of sexual penetration with force alleged in counts 3 and 4. We agree.
Counts 3 and 4 allege that defendant violated section 269, subdivision (a)(5) by committing acts of sexual penetration on a child under 14 and 10 or more years younger than defendant in violation of section 289, subdivision (a). Section 289, subdivision (a), in turn, makes it a crime to commit “an act 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 unlawful bodily injury.” Section 289, subdivision (j) makes it a crime for any person to participate “in an act of sexual penetration with another person who is under 14 years of age and who is more than 10 years younger than [the perpetrator].”
As alleged in the amended information, all of the elements of the crime set out in section 289, subdivision (j) are included in the charged crime of sexual penetration by force or violence, set out in subdivision (a) of section 289. Therefore, defendant could not commit the charged crime of sexual penetration by force or violence in violation of section 289, subdivision (a) without also committing the nonforcible version of that crime set out in subdivision (j) of section 289. Accordingly, as alleged in the amended information, section 289, subdivision (j) is a lesser necessarily included offense to the crimes charged in counts 3 and 4.[6]
Counts 5 and 6 alleged defendant violated section 269, subdivision (a)(3) by committing sodomy on a child under the age of 14 and more than 10 years younger than defendant in violation of section 286, by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or on another person. Defendant contends, and we agree that the crime set out in section 286, subdivision (c)(1) is a lesser included offense to the crimes charged in counts 5 and 6.
Section 286, subdivision (c)(1) makes it a crime for any person to commit “an act of sodomy with another person who is under 14 years of age and more than 10 years younger than [the perpetrator].” (§ 286, subd. (c)(1).) The only difference between the crime alleged in counts 5 and 6 and the crime set out in subdivision (c)(1) of section 286, is that the former includes the additional requirement, or element, that the act of sodomy be committed by force, violence, duress, et cetera. The charged crime of sodomy with force or violence cannot be committed without also committing the crime of sodomy as set out in section 286, subdivision (c)(1). Therefore, that crime is a necessarily lesser included offense to the crimes charged in counts 5 and 6.
Counts 7, 8, and 9 alleged that defendant violated section 269, subdivision (a)(4) by committing an act of oral copulation in violation of section 288a on a child under 14 years of age and more than 10 years younger than defendant and with force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the child. Defendant asked the trial court to instruct the jury on the crime of oral copulation as set out in section 288a, subdivision (c)(1) as a lesser included offense to the charged crimes. Section 288a, subdivision (c)(1) makes it a crime for a person to commit “an act of oral copulation with another person who is under 14 years of age and more than 10 years younger than [the perpetrator].” The only difference between the crimes alleged in counts 7, 8, and 9, and the crime set out subdivision (c)(1) of section 288a is that the former require that the act of oral copulation be committed through force, violence, duress, et cetera. As with the previously discussed crimes, defendant could not commit the charged crimes without also committing the crime set out in section 288a, subdivision (c)(1). Therefore, that crime is necessarily included within the charged crimes alleged in counts 7, 8, and 9.
Defendant also contends that lewd and lascivious conduct in violation of section 288, subdivision (a)[7] is a lesser necessarily included offense to all the charged sex crimes. Defendant is wrong. Although section 288, subdivision (a) includes as lewd and lascivious acts each of the sex acts alleged in the charged crimes, in that it includes “any of the acts constituting other crimes provided for in Part 1,” it requires the specific intent of “arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child . . . .” The underlying sex crimes at issue here, namely rape in violation of section 261, subdivision (a)(2), penetration with force in violation of section 289, subdivision (a), sodomy in violation of section 286, and oral copulation in violation of section 288a, do not require specific intent. Instead, those crimes are general intent crimes and require only the intent to commit the prohibited act. Although the acts are the same, the intent is different and therefore the crime of lewd and lascivious conduct in violation of section 288, subdivision (a) is not a lesser included offense to the charged crimes.
B. Does the Evidence Support Instructions on the Lessers?
Our conclusion that the sex crimes enumerated in section 269, subdivision (a), noted above, are lesser necessarily included offenses to the charged crimes of aggravated sexual assault at issue here does not end our inquiry. We next must determine whether the trial court was required in this case to instruct the jury on those necessarily included crimes. The pertinent legal principles are well known.
“‘”It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury’s understanding of the case.” [Citation.] That obligation has been held to include giving instructions on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present [citation], but not when there is no evidence that the offense was less than that charged. [Citations.] The obligation to instruct on lesser included offenses exists even when as a matter of trial tactics a defendant not only fails to request the instruction but expressly objects to its being given. [Citations.] Just as the People have no legitimate interest in obtaining a conviction of a greater offense than that established by the evidence, a defendant has no right to an acquittal when that evidence is sufficient to establish a lesser included offense. [Citation.]’ [Citations.]” (People v. Breverman (1998) 19 Cal.4th 142, 154-155.)
Applying the foregoing legal principles to the evidence presented in this case requires us to conclude that the trial court committed prejudicial error in failing to instruct the jury on the lesser necessarily included offenses to the crimes charged in counts 3 through 9. According to the evidence presented at trial, recounted above, defendant effectively admitted when interviewed by the police that he had committed the various sex acts. The only issue at trial was how many crimes defendant had committed and whether defendant acted with the requisite force, violence, duress, menace, or fear of immediate and unlawful bodily injury.
The theory the prosecutor relied on to show defendant committed the charged crimes and thus to prove defendant violated section 261, subdivision (a), was that of duress and fear of immediate bodily injury. The victim and her older sister both testified at some length regarding defendant’s proclivity for beating them with his fist, his open hand, his boot, and a belt. The victim testified that she was “scared” of defendant but did not know why but maybe because he has hit her. The prosecutor argued in closing that defendant capitalized on his size (defendant is six feet five inches tall and weighs 240 pounds), his relationship to the victim, and his pattern of physically abusing the victim to intimidate her and in turn make her fear that she would be hurt if she did not capitulate. That, according to the prosecutor, was sufficient to establish duress, or a fear of immediate and unlawful bodily injury.
That evidence raises a question of whether all of the elements of the charged crime had been proved and thus warrants instructing the jury on the lesser necessarily included sex offenses. (People v. Breverman, supra, 19 Cal.4th at pp. 154-155.) Although arguably sufficient to support the jury’s verdict, the evidence on the element of force, violence, duress, menace, or fear of immediate bodily injury, charitably described, was minimal. A jury properly instructed on the pertinent lesser included sex crimes might well have acquitted defendant on the charged crimes but found him guilty of the lesser offenses. This jury was not afforded that alternative. Instead they were given the option of finding defendant guilty of the charged crimes or finding him not guilty of any crime. Because defendant admitted that he had committed the sex acts, the jury effectively had no alternative but to convict him of the charged crimes even if they might not have been convinced beyond a reasonable doubt that defendant had committed those crimes with the requisite force, duress or fear of immediate bodily injury. For this reason, we must conclude that the trial court’s failure to instruct on the necessarily included lesser offenses was prejudicial. Rather than reverse the jury’s verdicts on counts 3 through 9, we will allow the People the option of retrying defendant on those counts or accepting a modification of the judgment by reducing the convictions to the pertinent lesser included offenses, with the appropriate sentences. (See, e.g., People v. Edwards (1985) 39 Cal.3d 107, 118; People v. Jones (1997) 58 Cal.App.4th 693, 720; People v. Woods (1992) 8 Cal.App.4th 1570, 1596.)
We reach a different conclusion with respect to counts 1 and 2. Those counts, as previously noted, alleged that defendant violated section 269, subdivision (a)(1) by committing the underlying crime of rape by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or the person of another in violation of section 261, subdivision (a)(2). The lesser included offenses to the crime of rape by force or violence are attempted rape, assault with intent to commit rape, simple assault, and battery. (In re Jose M. (1994) 21 Cal.App.4th 1470, 1477.) The evidence did not warrant instructing the jury on any of those crimes as lesser included offenses to the charged crime of rape. The victim, as previously noted, testified that defendant penetrated her vagina with his penis. Defendant admitted that penetration had occurred. Thus, with respect to count 1 and count 2, which are based on rape by force in violation of section 261, subdivision (a)(2) as the underlying sex offense, the jury was correctly presented with the all-or-nothing choice of finding defendant guilty of the charged crime or finding him not guilty. Because instruction on lesser included offenses was not warranted with respect to counts 1 and 2, we will affirm on those counts.
2.
PRIOR SEX CRIME EVIDENCE
Defendant contends the trial court abused its discretion by admitting evidence of defendant’s prior sexual abuse of his half sister. Defendant is wrong.
Evidence that defendant committed prior sex crimes is admissible under Evidence Code 1108 to prove defendant’s propensity to commit such crimes, subject to the limitations set out in Evidence Code section 352. (People v. Falsetta (1999) 21 Cal.4th 903, 917.)[8] Defendant contends that the trial court’s inquiry under Evidence Code section 352 was inadequate and, in any event, reached the wrong result. Again, defendant is wrong.
Under Evidence Code section 352, the trial court was required to consider whether the probative value of the prior sex crimes evidence was “substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” (Evid. Code, § 352.)
Defendant contends that the trial court’s inquiry under Evidence Code section 352 was inadequate because that inquiry focused on the relevance of the evidence rather than its prejudicial effect. Relevance is conceded under Evidence Code section 352 as defendant correctly argues. The trial court did discuss relevance in the context of addressing whether the prior offenses were too remote in time to be probative. However, the trial court also assessed whether presentation of the evidence would involve an undue consumption of time. The trial court also addressed the probative value of the evidence, and found that it was “highly probative, given the fact that [defendant] apparently did deny some of the conduct [in this case]. And moreover, I think it’s probative of the entirety as to the issue of whether or not the victim in this case is truth telling.” The trial court was particularly impressed by the fact that the victim and defendant’s half sister did not know each and therefore could not have compared statements or exchanged information. The trial court expressly found that the “probative value [of the evidence] does supersede any prejudice. Clearly, there is prejudice, but I believe that it [presumably referring to probative value] is greater than any prejudice that did occur.”
Defendant’s contrary claim notwithstanding, the trial court properly and adequately conducted the inquiry required under Evidence Code section 352. Accordingly, we reject defendant’s contrary claim.
DISPOSITION
The judgment of conviction is affirmed as to counts 1 and 2. The judgment of conviction is reversed as to counts 3, 4, 5, 6, 7, 8, and 9, on condition that the People bring defendant to trial on those reversed counts within 60 days after the filing of the remittitur (or if defendant waives time, within the resulting longer time limit (see § 1382)). If the People do not do so, or if the People elect in a writing filed with the trial court not to retry defendant, then our remittitur shall be deemed a modification of the judgment on counts 3 and 4 to reflect convictions of sexual penetration without force or violence in violation of section 289, subdivision (j), on counts 5 and 6 to reflect convictions of sodomy in violation of section 286, subdivision (c)(1), and on counts 7, 8, and 9, to reflect convictions of oral copulation in violation of section 288a, subdivision (c)(1), and the trial court shall resentence defendant on each of those counts accordingly. After conclusion of the proceedings, the court shall cause the abstract of judgment to be amended in a manner consistent with this disposition and send copies of the amended abstract to the appropriate law enforcement and custodial officials. NOT TO BE PUBLISHED IN OFFICIAL REPORTS
/s/ McKinster
J.
We concur:
/s/ Hollenhorst
Acting P.J.
/s/ Richli
J.
RICHLI, J.
I concur in the majority opinion. I am writing separately, however, to make it clear that the majority is applying the “accusatory pleading test,” and not the “elements test,” of a lesser included offense. (See maj. opn., ante, at p. 6.) Thus, the requirement that the trial court must instruct on certain lesser, nonforcible sexual offenses follows from a quirk of the pleadings in this particular case; such offenses are not always included in the greater offense of aggravated sexual assault on a child. (Pen. Code, § 269.)
Aggravated sexual assault on a child, as relevant here, is defined as the commission of “any of the following acts upon a child who is under 14 years of age and 10 or more years younger than the [perpetrator] . . . :
“(1) A violation of paragraph (2) of subdivision (a) of Section 261 [i.e., rape by force or fear]. . . .
“(3) Sodomy, in violation of Section 286, when committed by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person.
“(4) Oral copulation, in violation of Section 288a, when committed by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person.
“(5) A violation of subdivision (a) of Section 289 [i.e., sexual penetration by foreign object by force, fear or threat].” (Pen. Code, § 269, subd. (a).)
It is possible to commit aggravated sexual assault on a child without committing unlawful sodomy of any kind -- e.g., by committing forcible oral copulation or forcible sexual penetration on a child. Conversely, it is possible to commit aggravated sexual assault on a child without committing either unlawful oral copulation or unlawful sexual penetration of any kind -- e.g., by committing forcible sodomy on a child.
It follows that, under the elements test, sodomy on a child is not a lesser included offense of aggravated sexual assault on a child. Rather, it is a “specifically included offense” -- one of several alternative lesser offenses by which the greater may be committed. (See People v. Pearson (1986) 42 Cal.3d 351, 356-358 [under elements test, unlawful sodomy on a child is a specifically included offense, but not a lesser included offense, of lewd conduct with a child]; People v. Greer (1947) 30 Cal.2d 589, 601-604 [under elements test, unlawful sexual intercourse with a child is a specifically included offense, but not a lesser included offense, of lewd conduct with a child].)
Here, however, in the operative accusatory pleading, counts 3 and 4 specifically alleged that defendant committed the charged offense on a child by means of the lesser offense of forcible sexual penetration by a foreign object. (Pen. Code, §§ 269, subd. (a)(5), 289, subd. (a).) These counts therefore alleged all of the elements of nonforcible sexual penetration of a child by a foreign object. (Pen. Code, § 289, subd. (j).)
Likewise, counts 5 and 6 alleged that defendant committed the charged offense on a child by means of the lesser offense of forcible sodomy. (Pen. Code, §§ 269, subd. (a)(3), 286, subd. (c)(2).) These counts therefore alleged all of the elements of nonforcible sodomy on a child. (Pen. Code, § 286, subd. (c)(1).) Finally, counts 7, 8, and 9 alleged that defendant committed the charged offense on a child by means of the lesser offense of forcible oral copulation. (Pen. Code, §§ 269, subd. (a)(4), 288a, subd. (c)(2).) This count therefore alleged all of the elements of nonforcible oral copulation on a child. (Pen. Code, § 288a, subd. (c)(1).)[9]
Finally, I agree with the majority that there was sufficient evidence that defendant committed the alleged sexual acts on a child, but without force or fear. I therefore agree with the majority that, in this case, under the accusatory pleading test -- though not under the elements test -- the trial court erred by failing to instruct on lesser included offenses.
RICHLI
J.
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[1] To protect her identity the victim was referred to during trial only as Jane Doe 1. To ensure the victim’s identity is protected we disclose no details about her other than her age at times pertinent to the case.
[2] In her trial testimony, the victim denied that defendant had touched her vagina with his penis and stated that he had only touched her “butt” with his penis.
[3] Defendant’s half sister was 28 years old at the time of trial.
[4] All further statutory references are to the Penal Code unless indicated otherwise.
[5] Defendant acknowledged during the discussion of jury instructions that unlike the other charged crimes, rape does not have a nonviolent version as a necessarily included lesser offense. The lesser necessarily included offense to the charged crime of rape by force, violence, duress, menace or fear of immediate and unlawful bodily injury as alleged in counts 1 and 2 is assault. Defendant did not ask the trial court to instruct the jury on the crime of assault as a necessarily included offense to the crimes charged in counts 1 and 2, nor does he claim in this appeal that the trial court should have done so.
[6] The amended information identified the pertinent crime as a violation of section 289, subdivision (a). However, that subdivision has two subsections, one based on force, violence, menace and duress (§ 289, subd. (a)(1)) and a second based on threatened retaliation in the future against the victim or any other person (§ 289, subd. (a)(2)). Although the information only identified subdivision (a) and did not specify the pertinent subdivision of section 289, the information also included the allegation that the crime was committed by force, violence, duress, menace, fear, and threat and thus identified the crime set out in subdivision (a)(1) of section 289. Under the accusatory pleading test, the nonviolent version of sexual penetration set out in section 289, subdivision (j) is a lesser included offense to the crime alleged in the information.
[7] Section 288, subdivision (a) proscribes the commission by any person of “any lewd or lascivious act, including any of the acts constituting other crimes 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 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child . . . .”
[8] Defendant also challenges the constitutionality of Evidence Code section 1108. In doing so, defendant concedes that in People v. Falsetta, supra, 21 Cal.4th 903, the Supreme Court rejected the precise challenges he raises in this appeal. Because we are bound by the Supreme Court’s decisions (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455) we must follow People v. Falsetta and, therefore, we reject defendant’s challenge in this appeal.
[9] In fact, it seems to me that the majority’s reasoning should also extend to counts 1 and 2. These counts alleged that defendant committed aggravated sexual assault on a child by means of the lesser offense of forcible rape. (Pen. Code, §§ 269, subd. (a)(1), 261, subd. (a)(2).) Thus, they alleged all of the elements of nonforcible unlawful sexual intercourse with a child. (Pen. Code, § 261.5, subds. (a) or (c).)