People v. Rodriguez CA4/2

I.

INTRODUCTION

A jury convicted defendant and appellant Juan Rodriguez of sexual penetration of

a child 10 years or younger by a person 18 years or older (Pen. Code, § 288.7, subd. (b)),

and the trial court sentenced him to 15 years to life in prison. Defendant contends the

trial court prejudicially erred by failing to instruct the jury on battery as a lesser included

offense. We affirm.

II.

FACTUAL AND PROCEDURAL BACKGROUND

Jane Doe, then five years old, went to stay with her grandparents when her parents

contracted COVID-19. Defendant rented a room in the house.

One morning, defendant had the day off work, so he began drinking around noon

and continued drinking into the afternoon. In the late afternoon, Jane Doe and her

siblings were playing in the front yard while their grandparents were supervising and

defendant was sitting at a table in the yard drinking. By that point, he was “really drunk,

super drunk.” At some point, Jane Doe’s siblings went inside, her grandmother went to

shower, and her grandfather went to put a trash can away, leaving Jane Doe alone with

defendant.

Jane Doe testified about what happened next as follows. Defendant told her to sit

on…