People v. Ortega (2015) 240 Cal.App.4th 956, 967 held that: “Due process principles of fairness, and defendant’s right to be prosecuted only on the noticed charges consistent with the probable cause showing supporting the accusatory pleading, compel us to agree that sexual battery is a lesser included offense of forcible sexual penetration where, as here, the preliminary hearing testimony identified defendant’s fingers as the only object supporting the forcible sexual penetration charge.”
In so doing the reviewing court rejected the Attorney General’s claim that the probable cause showing is not relevant under the accusatory pleading test:“The 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, citing People Marshall, supra, 48 Cal.2d at p. 405.)
“The salient point in Marshall—that the specific language in the information could inform the lesser included offense question because the information provided defendant with notice of the lesser included offense—supports our conclusion that the accusatory pleading cannot be examined in isolation. The due process principle that informed Marshall requires that the facts derived from the preliminary hearing be factored into the accusatory pleading analysis.” [emphasis added] (Ortega, supra at 968.)
The Ortega court also relied on mutual fairness concerns expressed in People v. Birks, supra, 19 Cal.4th 108, 128:
[W]hether sexual battery is a lesser included offense of forcible sexual penetration in a case involving digital penetration should not hinge on whether the prosecutor chooses to mention fingers in the charging document. Here, the prosecutor was bound by the preliminary hearing testimony to prove that defendant digitally penetrated Doe’s vagina. Given that constraint on proof, felony sexual battery was necessarily a lesser included offense of forcible sexual penetration, and it would be unjust to allow the prosecutor, by controlling the language in the charging document, to also control whether the jury considers that lesser offense. [Citation to Birks.]
The Ortega court found prejudicial error under People v. Watson (1956) 46 Cal.2d 818, 836 and reversed the judgement.
CC Revision Note: A cite to Ortega was added to the CC 1045 Bench Notes in August 2016.