People v. Cantor CA4/1

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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication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.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D078400

Plaintiff and Respondent,

v. (Super. Ct. No. INF1900055)

CARMELO CANTOR,

Defendant and Appellant.

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.
 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.

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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.

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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.

4
 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.

5
 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.

6
 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.

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 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

8
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

9
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.)

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 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.

11
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

12
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.)

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 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.)

14
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

15
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.)

16
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

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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.)

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 DISPOSITION
The judgment is affirmed.

GUERRERO, J.

WE CONCUR:

HUFFMAN, Acting P. J.

IRION, J.

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