People v. OrtegaAnnotate this Case
Ortega was charged with sexual penetration by force. A jury found him not guilty of the charged offense but guilty of the lesser included offense of assault with intent to commit sexual penetration by force. The court of appeal reversed, holding that Ortega was prejudiced by the failure to instruct the jury on sexual battery as a lesser included offense. On the record it is reasonably probable that the jury would have convicted defendant of sexual battery-a genital touching short of penetration without the intent to commit a forcible sexual penetration-rather than an assault that required the specific intent to commit forcible sexual penetration but did not require an actual touching. It is also reasonably probable that a sexual battery conviction would have been a more favorable result than defendant’s assault conviction. Defendant would have had a greater likelihood of receiving probation for a sexual battery conviction because, unlike assault with intent to commit forcible sexual penetration, sexual battery is not subject to limitations on probation eligibility for enumerated sex offenses.