P. v. Barragan

Filed 9/11/07 P. v. Barragan CA5

Opinion following remand by U.S. Supreme Court

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Tulare County. Joseph A. Kalashian, Judge.

Carlo Andreani, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Brian Alvarez, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

Jose Luis Barragan was sentenced to three consecutive 15-year-to-life prison terms in counts one through three, and four consecutive eight-year prison terms in the remaining counts, after a jury found him guilty of three counts of aggravated sexual assault of P.C., a child (Pen. Code, 269, subd. (a)(1)^[1]; counts one through three), two counts of forcible oral copulation of P.C. ( 288a, subd. (c)(2); counts four and six), and two counts of forcible rape of P.C. ( 261, subd. (a)(2); counts five and seven). On appeal, he sought relief on the grounds that the trial court (1) failed to hold a Marsden^[2]hearing while criminal proceedings were suspended to determine his competency, (2) erred when it struck his once in jeopardy plea to counts one through four, (3) erred when it admitted his voluntary confession because he was not given a sufficient Miranda^[3]warning, (4) erred when it instructed the jury with CALJIC No. 2.70, which defines confession and admission, (5) erred when it failed to instruct the jury, sua sponte, on unlawful sexual intercourse with a minor ( 261.5, subd. (d)) and nonforcible oral copulation ( 288a, subd. (a)(1)) as lesser included offenses, and (6) erred in imposing aggravated terms on counts four through seven. We affirmed the judgment. (People v. Barragan (Feb. 10, 2006, F046353) [nonpub. opn.].)

On February 20, 2007, the United States Supreme Court granted Barragans petition for a writ of certiorari, vacated the judgment, and remanded his case for further consideration in light of Cunningham v. California (2007) 549 U.S. __ [166 L.Ed.2d 856; 127 S.Ct. 856] (Cunningham).) Having recalled the remittitur and read the supplemental briefing of both parties, we will conclude the record shows Cunningham error that is harmless beyond a reasonable doubt. Again, we will affirm the judgment.

The following pages set out, first, the facts and the discussion of all issues but the sentencing issue (verbatim from our original opinion) and, second, the discussion of the sentencing issue after remand from the United States Supreme Court.

FACTS

Barragan moved into Beda Z.s Porterville home shortly after Beda Z. started dating him in 1990. Beda Z. has two children, a girl named P.C., born in November 1982, and her older brother Javier.^[4] The family lived in both Oregon and California they went to Oregon in the summer to pick cherries and returned to California in the winter to pick oranges.

According to P.C., when she was six years old, Barragan began touching her vagina or breasts at least every other day. When P.C. was nine or ten years old, she started sleeping between Beda Z. and Barragan because Barragan forced her to sleep in their bed. She did not want to sleep in their bed because it wasnt right to sleep with him. In some instances, Barragan sexually assaulted P.C. while Beda Z. slept in the bed.^[5]

Javier testified Barragan sometimes treated P.C. well when he was in a good mood, but there [were] times when he was evil, meaning, [h]e would just be mean, hit her and stuff. Barragan also beat Beda Z. and Javier in P.C.s presence. At times, Barragan threatened to kidnap P.C. and take her to Mexico. On one occasion, Javier angrily confronted Barragan, who was dragging P.C. by her hair. Barragan became upset at Javier and pointed a gun at his stomach or chest. Javier knew P.C. slept in the same bed with Barragan and Beda Z. and thought it was weird.

Barragan first raped P.C. when she was 13 years old. The incident happened a few weeks before Christmas, while they were living in a trailer in Strathmore. After Beda Z. left for the store, Barragan told P.C. its time which P.C. took to mean [i]t was time for us to have sex. Barragan forced P.C. to remove her clothing. He removed his clothes and climbed on top of her. P.C. told him no, but he forced himself on her despite her protestations and attempts to push him off. He told her if she did not comply or if she told anyone about the incident, he would hurt her or her mother. P.C. was afraid of Barragan because he previously threatened and slapped both she and her mother, and he had a handgun, which he carried with him and had pointed at Beda Z., as well as a rifle. He stopped the assault when he heard Beda Z. return to the trailer. Barragan injured P.C.s vagina as a result of the rape.

A month or two later, Barragan again raped P.C. when they were alone in the Strathmore trailer. Barragan told P.C. he loved her and began rubbing her breasts. He removed her clothes while she told him, Dont. He raped her while they stood face to face against some boxes. She told him to stop and tried to push him away, but he was too strong for her.

A few weeks later, Barragan raped P.C. again. P.C. explained they had sex, like, on a regular basis thereafter. She was always afraid of him and did not want to have sex with him. The incidents occurred mostly in the living room of the Strathmore trailer. She always told him to stop, but he told her he loved her and not to tell anyone.

P.C. started menstruating when she was 14 years old. Barragan began forcing her to orally copulate him while she was on her period. These assaults occurred about once a month in both California and Oregon. He told her [s]ince youre on your period, then we cant have sex. Well have oral sex instead. P.C. always told him No, but he would become upset and coerce or force her to orally copulate him.

Between P.C.s 16th birthday in November 1998 and June 1999, Barragan routinely raped her in their Porterville home. He would typically start touching her breasts and then rape her while she cried. She sometimes asked him to stop, but he slapped her on the face or choked her. She felt terrible while he choked her because she couldnt breathe. She was afraid of him because he would hit [her] all the time. P.C. testified to a particular rape which occurred at their home in the Porterville Plano apartments. Barragan raped her on the apartment floor after he took her pants off and got on top of her. P.C. did not get up because she was scared.

Barragan also sexually assaulted P.C. in Oregon. When the family went to Oregon, they worked at a cherry orchard and lived at a family labor camp, both owned by Carolyn and Darren Molesworth.^[6] Carolyn Molesworth (Molesworth) testified she began noticing hickies on P.C.s neck and above her breast when P.C. was in the eighth grade. When she confronted P.C. about the marks, P.C.s face went white and she stopped breathing and her eyes got big and she just kind of froze. P.C. denied the marks were hickies. On one occasion, Molesworth saw Barragan and P.C. in bed together, while Beda Z. showered.

After learning P.C. slept in the same bed as Barragan and Beda Z., Molesworth dropped off a bed and mattress for P.C. to use. Barragan angrily tore up the mattress. According to P.C., Molesworths act caused problems in the home. Barragan argued with Beda Z.; he slapped her and pulled her hair. He said, [P.C.] was never gonna sleep in that bed. Barragan confronted the Molesworth family and refused to allow Molesworth to see P.C. afterward. Molesworth called the childrens services department about P.C. Molesworth told P.C. she reported Barragan to childrens services. P.C. did not reveal the assaults to Molesworth, but she stopped breathing, went white, and was real quiet.

According to P.C., Barragan did not allow her to have a boyfriend, date or use the telephone. P.C. was not allowed to attend her winter formal and was upset because she really wanted to go. P.C. explained she did not report the assaults immediately because she was afraid Barragan would retaliate. She believed he would follow through with his threats. After Barragan refused to let her attend the winter formal, P.C. revealed the assaults to Brandy West, her high school friend in Oregon. She told West, He makes me have sex with him and sleep in the bed with him[,] she couldnt tell anyone because she was scared for her mother, and the assaults had been happening for a long time.

Barragan was arrested on January 28, 2000, in Oregon. Roberto Robles, who was then an Oregon Police Trooper, conducted Barragans Spanish-language interview. When the interview began, Barragan was cooperative and readily told Robles that P.C. slept in the same bed with he and Beda Z.. At first, Barragan said Beda Z. slept between him and P.C., but he later admitted he slept next to P.C. Barragan told Robles he and Beda Z. frequently argued because Beda Z. thought he was trying to make [P.C.] his lady. Throughout the interview, Barragan said how much he loved and cared for P.C., and he wanted to be with her and support her. Barragan told Robles he drank a 12 pack of beer every day and also drank tequila, that he would become lost drunk after consuming that amount of liquor, and it was possible he had sexual contact with P.C. when he became lost drunk[.] He didnt think that would happen, however, because Beda Z. was in bed with them and would have pulled him off or stopped him.

Later in the interview, Barragans demeanor changed; he was crying and started becoming emotional. Barragan admitted having a sexual relationship with P.C., which as far as he could remember started about two years before by hugging, kissing and rubbing up against one another. Eventually they began having sexual intercourse. The last time they had sex was the night before, after Beda Z. had gone to bed; Barragan said he did not ejaculate on that occasion. Barragan said most of the time they had sex when Beda Z. was either out of the house or asleep in bed. Barragan also admitted he and P.C. engaged in reciprocal oral sex with each other. Barragan was adamant that he never ejaculated inside of her because he didnt want her becoming pregnant since he wanted her to study, succeed, obtain a good job, and take care of him when he was older. Barragan claimed their conduct was consensual or voluntary, although he knew what he had done was wrong. Barragan was convicted of the Oregon crimes committed against P.C.

DISCUSSION

A. Failure to Hold Marsden Hearing

Barragan contends his conviction must be reversed because the trial court failed to hold Marsden hearings when he requested them while criminal proceedings were suspended to determine his competency. While we conclude the court erred in failing to hold the hearings, the error was harmless.

Trial Proceedings

At a pretrial proceeding before the Honorable Darryl Ferguson held on March 19, 2004,^[7]defense counsel told the court that Barragan informed him through the interpreter that he wants a Marsden. He has the right to fire me. Defense counsel further stated he had strong doubts as to Barragans competency. The court responded that it was not going to do a Marsden hearing. Instead, the court suspended criminal proceedings, appointed two psychiatrists or psychologists to evaluate Barragans competency, and set a competency hearing for April 16.

On April 14, Barragan filed a letter with the trial court, in which he stated in pertinent part: Now the purpose of this letter is to call the attention concerning my case. I been noticing that there has been nothing done [] about my case, and due to my civil/human rights, I am requesting information and directions on how I can fire my judge and as well my lawyer, since I feel I been discriminated and my rights been violated. At the April 16 hearing, again before Judge Ferguson, the court stated it had received communication from Mr. Barragan indicating that he wants to fire me and you, but the fact is that hes being evaluated pursuant to 1368. Criminal proceedings are suspended. That motion is not going to be considered. Since the doctors reports were not yet available, the court continued the hearing to May 14. Defense counsel noted, I believe because he was against this process, two doctors were appointed.

At the May 14 competency hearing before Judge Ferguson, the court noted it had received one report that found Barragan competent to stand trial, but the other appointed psychiatrist requested more time to prepare his report. The court further noted it had appointed a second doctor only because Barragan objected to the competency proceedings. The court offered Barragan the opportunity to withdraw his objection and submit the matter on the one doctors report. Barragan responded that he agreed with the doctors assessment that he was competent. The following exchange between the court and defense counsel then occurred:

[DEFENSE COUNSEL]: I think what [Barragan]s going to get to is that hes still wanting to fire me and wrote a letter even to the court to that effect, I believe.

THE COURT: Well, Im not dealing with that.

[DEFENSE COUNSEL]: But I think thats his --

THE COURT: Okay. Im going to order that Dr. Bercksen not evaluate him.

[DEFENSE COUNSEL]: Thats fine.

THE COURT: His position is that hes competent. You want to submit it on the report?

[DEFENSE COUNSEL]: I will.

THE COURT: Court finds the defendant to be competent. Criminal proceedings are reinstated. Im going to send this to Department 7 for trial setting.

[DEFENSE COUNSEL]: I dont know at what point, but we -- he was asking the Marsden --

THE COURT: Im going to send it -- Im going to do that also. Im going to send it to Department 7 on the 19th for trial setting. And on the 17th Im going to send it to Department 4 for a Marsden hearing.

[BARRAGAN]: So I dont show you this paper right now?

THE COURT: No. Youre going to send that to another judge.

[BARRAGAN]: Okay.

A Marsden hearing was held on May 17 before the Honorable Gerald Sevier. The court invited Barragan to explain his complaints about his attorney. Barragan responded that his attorney had lied to him a lot about various matters, including: (1) he said a police officer had spoken to Barragan, when Barragan hadnt spoken to any police officer in California; (2) he said he would bring witnesses from Oregon for trial, but Barragan learned later there werent any funds to bring them down; (3) he said he would have Barragans files transferred from Oregon, but Barragan never received them; (4) he told Barragans cousin he would try to get Barragan a lesser sentence of seven to eight years and there were four charges pending in California, when he told Barragan he would try to get him 12 years; (5) he had not sent an investigator to interview people whose names Barragan had given him; and (6) he did not respond to Barragans letters.

Barragan presented the court with a letter, which stated that he dismissed his public defender and judge for prejudice under Penal Code section 1170, and would like a new judge and attorney. Defense counsel stated Barragan tried a couple of times in Judge Fergusons court to hand that document up. I think thats probably the Judge he was referring to. Barragan explained he told Judge Ferguson he didnt want his attorney to represent him any more, [t]hen the Judge sent me to a doctor claiming that I was crazy. [] When Im just sticking up for my rights.

Defense counsel responded to each of Barragans complaints. The court found no basis to terminate defense counsels representation and denied the Marsden motion.

Analysis

When a defendant seeks to discharge his appointed counsel and substitute another attorney, and asserts inadequate representation, the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of the attorneys inadequate performance. [Citation.] A defendant is entitled to relief if the record clearly shows that the first appointed attorney is not providing adequate representation [citation] or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result [citations]. [Citations.] [Citation.] (People v. Hart (1999) 20 Cal.4th 546, 603; Marsden, supra, 2 Cal.3d at pp. 123-124; see also People v. Jones (2003) 29 Cal.4th 1229, 1244-1245.)

A trial court has discretion in determining whether to appoint another attorney to assist a defendant; however, the trial court cannot thoughtfully exercise its discretion ... without listening to [the defendants] reasons for requesting a change of attorneys. A trial judge is unable to intelligently deal with a defendants request for substitution of attorneys unless he is cognizant of the grounds which prompted the request. The defendant may have knowledge of conduct and events relevant to the diligence and competence of his attorney which are not apparent to the trial judge from observations within the four corners of the courtroom. (Marsden, supra, 2 Cal.3d at p. 123.)

[N]o formal motion is necessary to trigger the trial courts obligation under Marsden, provided that there is at least some clear indication by defendant that he wants a substitute attorney. [Citation.] (People v. Mendoza (2000) 24 Cal.4th 130, 157.) Thus, when a defendant asserts directly, or by implication, that his trial counsels performance has been so inadequate as to deny the defendant his constitutional right to effective counsel, the court has a duty to inquire on the record into the reasons why the defendant seeks new counsel. (People v. Leonard (2000) 78 Cal.App.4th 776, 787; People v. Molina (1977) 74 Cal.App.3d 544, 548-549.)

The trial court must permit the defendant to enumerate specific instances of inadequate representation, in order to permit a proper exercise of discretion [citation], as well as to afford appellate review [citation]. (People v. Clark (1992) 3 Cal.4th 41, 104; People v. Hill (1983) 148 Cal.App.3d 744, 755 [failure to inquire adequately into a defendants complaints results in a silent record making intelligent review of defendants charges impossible].)

Here, on March 19, before Barragans appointed counsel expressed a doubt as to his competency, defense counsel informed the court that Barragan wanted to make a Marsden motion. Instead of hearing the motion, the court suspended criminal proceedings and ordered a competency hearing. Barragans April 14 letter again informed the court that Barragan wanted to fire his attorney. Although at the April 16 hearing the court acknowledged receiving the letter, it refused to hear the motion because criminal proceedings were suspended. At the May 14 competency hearing defense counsel again informed the court Barragan wished to make a Marsden motion; it was only after the court found Barragan competent and reinstated criminal proceedings that the court set a hearing on the motion.

Based on the record, it appears the trial court believed it was precluded from addressing the Marsden motion until criminal proceedings were resumed. Not so. [W]hile the trial court may not proceed with the case against the defendant before it determines his competence in a section 1368 hearing [citation], it may and indeed must promptly consider a motion for substitution of counsel when the right to effective assistance would be substantially impaired if his request were ignored. (People v. Stankewitz (1990) 51 Cal.3d 72, 88, italics in original; People v. Solorzano (2005) 126 Cal.App.4th 1063, 1069 (Solorzano); People v. Harrison (2001) 92 Cal.App.4th 780, 789.) Rather than promptly conduct an inquiry into Barragans Marsden motions, the trial court proceeded to address the issue of his competency, found he was competent to stand trial, and resumed the criminal proceedings. This was error. (See Solorzano, supra, 126 Cal.App.4th at pp. 1069-1070.)

This leaves the issue of prejudice. The People submit Barragans failure to raise any issue during the hearing that was ultimately held on his Marsden motion on May 16 rendered any error harmless. We agree. A trial courts error in failing to consider a criminal defendants Marsden motion becomes harmless when the defendant fails to reassert the reasons underlying the motion at a later hearing. (People v. Lloyd (1992) 4 Cal.App.4th 724, 731-732.) In other words, to the extent any earlier complaints were not heard, any error is cured by the defendants failure to raise them at subsequent hearings. (People v. Harrison, supra, 92 Cal.App.4th at p. 790.) Here, a hearing was ultimately held on May 16 on Barragans Marsden motion. The court heard Barragans complaints and his attorneys responses, and denied the motion. None of Barragans complaints pertained in any way to his attorneys conduct relating to the competency proceedings. Thus, Barragans failure to raise any complaints relating to the competency proceedings cured any error in failing to hold a Marsden hearing while criminal proceedings were suspended.

This courts recent decision in Solorzano, supra, upon which Barragan relies, does not compel a different result. In Solorzano, the defendant made a Marsden motion while criminal proceedings were suspended to determine his competency. In making the motion, the defendant asserted specific complaints regarding his attorneys failure to obtain medical and school records. The trial court refused to hear the motion because criminal proceedings were suspended. After the trial court found the defendant competent and reinstated criminal proceedings, a Marsden hearing was held, where the defendant explained he had a learning disability and his attorney did not bring his medical and school records to the competency hearing. The trial court denied the motion. (Solorzano, supra, 126 Cal.App.4th at pp. 1066-1068.)

On appeal, we concluded the trial court erred in failing to hold a hearing on the Marsden motion. We held reversal was compelled because the defendant raised the same complaints, which related to his attorneys handling of the competency proceedings, when he initially made the Marsden motion and when the Marsden hearing was ultimately held. (Solorzano, supra, 126 Cal.App.4th at pp. 1070-1071.) Since the complaints related specifically to the competency proceedings and the defendant was found competent, we could not speculate on how things might have been different had the hearing been held before the defendants competency was determined. (Id. at p. 1071.) In contrast here, Barragan did not raise any complaints, either while criminal proceedings were suspended or when the Marsden hearing was ultimately held, regarding his attorneys handling of the competency proceedings. Barragans failure to do so necessarily renders the failure to hold the Marsden hearing earlier harmless.

B. The Once in Jeopardy Plea

Barragan contends the trial court erred when it struck his once in jeopardy plea. We disagree.

Trial Proceedings

The information alleged in counts one through four Barragan committed the following crimes in Tulare County: (1) Count 1 -- between December 1, 1995 and December 31, 1995, aggravated sexual assault of a child, P.C., in violation of section 269, subdivision (a)(1), by committing rape, in violation of section 261, subdivision (a)(2), to wit: First Forced Sexual Intercourse[]; (2) Count 2 -- between January 1, 1996 and March 1, 1996, aggravated sexual assault of a child, P.C., in violation of section 269, subdivision (a)(1), by committing rape, in violation of section 261, subdivision (a)(2), to wit: Second Incident[]; (3) Count 3 -- between March 2, 1996 and June 30, 1996, aggravated sexual assault of a child, P.C., in violation of section 269, subdivision (a)(1), by committing rape, in violation of section 261, subdivision (a)(2), to wit: Sexual Assault on a Daily Basis[]; and (4) Count 4 -- between January 1, 1996 and June 30, 1996, aggravated sexual assault of a child, in violation of section 269, subdivision (a)(1), forcible oral copulation, in violation of section 261, subdivision (a)(2), to wit: Oral Copulation when P.C. Was On Her Period.^[8]

Barragan filed a section 995 motion to dismiss counts one through four, claiming his California prosecution on those counts was barred under both the federal Constitution and California statutes due to his prosecution for similar offenses in Oregon. Specifically, Barragan argued prosecution for sexual assaults that allegedly occurred in California between December 1, 1995 and June 30, 1996, was barred because he was convicted in Oregon of first degree sexual abuse under Oregon Penal Statute 163.427 based on acts that occurred between November 21, 1995 and November 21, 1996. Barragan reasoned that since frequent mention was made in the Oregon trial of sexual assaults that occurred in California without distinguishing precisely where the assaults occurred, it was impossible to tell whether he was convicted in Oregon of acts that occurred in California, therefore prosecution should be barred in California for acts that allegedly occurred during the same time period. The court took the motion under submission and reviewed the transcripts from the Oregon proceedings. The court then denied the motion.

Defense counsel made a motion to enter a belated plea of once in jeopardy over the prosecutors objection, which the court granted. During pretrial in limine motions, the court raised the issue of the once in jeopardy plea, stating it had read the prosecutors brief on the issue. In the brief, the prosecutor argued the court should set aside the plea because there was no material issue of fact relating to Barragans Oregon conviction, in that he was convicted of crimes against P.C. committed in Wasco County, Oregon. At the prosecutors request, the court took judicial notice of section 777, certain Oregon state statutes, certified copies of Barragans Oregon conviction, and specified pages of the Oregon trial transcript. At defense counsels request, the court took judicial notice of P.C.s prior Oregon trial testimony.

Defense counsel asserted the Oregon transcript showed P.C. testified about numerous incidents without specifying where they occurred, therefore the Oregon jury heard all the facts of everything that [Barragan]s done regarding this same girl charged in both places. Defense counsel argued Barrragan should be allowed to present the double jeopardy issue to the jury because the time frames are the same in the Oregon and California proceedings and there was no way for the jury to tell where the incidents occurred. The trial court noted, and defense counsel conceded, the Oregon court instructed the jury in that case they could only convict Barragan for crimes he committed in Oregon. Defense counsel argued, however, the jury in this case should make the determination whether the Oregon jury may have convicted him of incidents that occurred in Porterville. The prosecutor maintained there was no factual dispute for a California jury to consider because the Oregon jury was instructed they could only convict of what happened in Oregon, therefore Barragan must have been convicted only of crimes that occurred in Oregon.

After noting the dearth of authority on the issue, the court ruled there was no issue of fact for the jury to decide as there was no evidence presented that Barragan was prosecuted in Oregon for crimes that occurred in California, explaining: Theres been a prosecution of various charges, apparently ten charges for which Mr. Barragan was prosecuted in Oregon, and its been agreed by all parties that he could only be prosecuted and charges brought forth in Oregon for crimes committed in that state. And there was never a challenge to any of that. [] It went before a judge. [Barragan] had representation throughout the trial. His trial attorney, nor apparently I dont have any evidence before me that any appellate counsel of his has ever raised an issue that hes charged with crimes in Oregon, the commission of which occurred in California. So I dont even believe that theres a legal issue before the Court. The court then struck the once in jeopardy plea.

Analysis

California has barred serial convictions for the same acts in section 656, which provides, Whenever on the trial of an accused person it appears that upon a criminal prosecution under the laws of the United States, or of another state or territory of the United States based upon the act or omission in respect to which he or she is on trial, he or she has been acquitted or convicted, it is a sufficient defense.^[9] (See People v. Friedman (2003) 111 Cal.App.4th 824, 830.) With respect to serial prosecutions for the same acts, section 793 provides, When an act charged as a public offense is within the jurisdiction of the United States, or of another state or territory of the United States, as well as of this state, a conviction or acquittal thereof in that other jurisdiction is a bar to the prosecution or indictment in this state.^[10] (See People v. Friedman, supra, 111 Cal.App.4th at p. 830.)

The statutes each provide for the same result but differ in their application:  793 should be applied as a procedural defense to bar the institution of a criminal prosecution while 656 should be applied to bar conviction once the prosecution has already been brought. [Citation.] (People v. Comingore (1977) 20 Cal.3d 142, 148.) Because we are dealing with convictions at this point, section 656 is applicable.

In applying section 656, the test is whether a prior conviction or acquittal is based upon the same act or acts. (People v. Belcher (1974) 11 Cal.3d 91, 97 [Section 656 establishes a bar to a state criminal proceeding after a conviction or acquittal in another jurisdiction of a charge involving the same act or omission.]; see also People v. Comingore, supra, 20 Cal.3d at p. 146; People v. Gofman (2002) 97 Cal.App.4th 965, 973; People v. Candelaria (1957) 153 Cal.App.2d 879, 884, criticized on another point in In re Dowding (1961) 188 Cal.App.2d 418, 423-424.) Thus, a defendant may not be convicted after a prior acquittal or conviction in another jurisdiction if all the acts constituting the offense in this state were necessary to prove the offense in the prior prosecution [citation]. (People v. Belcher, supra, 11 Cal.3d at p. 99.)

Here, Barragan was convicted in the Oregon trial of sexual abusing P.C. in Oregon between November 21, 1995 and November 21, 1996. Barragan was then convicted in this case of sexual assaults that occurred in California from December 1995 to June 1996. It is clear the two convictions were based on different acts sexual assaults in Oregon versus sexual assaults in California. Since the convictions were not based on the same act or acts, Barragans sexual assault convictions in counts one through four are not barred.

Barragan attempts to avoid this result by arguing that California had concurrent jurisdiction over the Oregon offenses if appellant and [Beda Z.] entered into an ongoing conspiracy to permit P.C.s sexual offenses with him both in and out of California. Barragan reasons that his former convictions for Oregon offenses over which California had concurrent jurisdiction barred Californias prosecution for sexual offenses that were all within an ongoing conspiracy, especially when the California offenses were offered in his Oregon trial to prove disposition. In making this argument, Barragan apparently is relying on section 794, which provides, Where an offense is within the jurisdiction of two or more courts, a conviction or acquittal thereof in one court is a bar to a prosecution therefor in another. Even if Barragan is correct and California had jurisdiction over the Oregon offenses based on a conspiracy theory, Barragan was not tried in either state for conspiracy and was not tried in California for the offenses he was convicted of in Oregon, i.e. sexual abuse of P.C. that occurred in Oregon. Sections 656, 793 and 794 simply have no application here, where Barragan was tried in each state for different acts.

Barragan asserts the trial court should have submitted the issue of his once in jeopardy plea to the jury. The trial court, however, is not required to submit the issue to the jury where the previous prosecution could not constitute double jeopardy as a matter of law. (People v. Greer (1947) 30 Cal.2d 589, 595-596, overruled on other grounds in People v. Fields (1996) 13 Cal.4th 289, 308; People v. Yopp (1961) 195 Cal.App.2d 726, 729.) Here, the evidence before the trial court established as a matter of law Barragan could have been convicted in Oregon only of offenses that occurred there. It was Barragans burden to prove he had been placed in double jeopardy by his previous conviction, a burden he failed to meet. (People v. Lazarevich (2001) 95 Cal.App.4th 416, 421.) Therefore, the trial court did not err in striking his once in jeopardy plea.

C. The Miranda Warning

Barragan contends the trial court erred in admitting his police interview statement because Officer Robless Miranda warning was insufficient. The People contend this claim is waived because he failed to raise it below. We agree.

Trial Proceedings

The prosecutor made an in limine motion seeking to admit Barragans police interview statements. During trial, an Evidence Code section 402 hearing was held outside the jurys presence. Officer Robles, who was fluent in Spanish, had conducted numerous interviews in Spanish, and had testified in court to numerous interviews conducted in Spanish, interviewed Barragan in Spanish. The interview was tape recorded. Officer Robles read Barragan his Miranda rights verbatim from a Spanish Miranda card he obtained from the Oregon District Attorneys Association. The pertinent part of the card read in Spanish: 2. Cualquier cosa que usted diga se puede usar contra usted en una corte de ley. When Officer Robles was asked to translate the card into English at the hearing, he testified this sentence reads: Number two, whatever thing that you say will be used against you in a court of law. (Emphasis added.)^[11] Barragan told the officer he understood the rights; he also signed and dated the card to show he understood his rights.

On cross-examination, defense counsel asked Officer Robles about the following exchange, which occurred after Officer Robles read the Miranda rights:

[BARRAGAN]: (Inaudible), you know with an attorney, yes I know that I have the right.

[ROBLES]: Uh-huh.

[BARRAGAN]: An attorney.

[ROBLES]: Okay and

[BARRAGAN]: But I, like I never pay in that.

[ROBLES]: Uh-huh.

[BARRAGAN]: No.

[ROBLES]: But you do understand about what I explained?

[BARRAGAN]: Yes, yes.

Officer Robles testified he believed Barragan was asking him whether he would have to pay for the attorney, and that by responding Uh-huh he was agreeing with Barragan.

Defense counsels sole challenge to the admission of Barragans statement was as follows: I would argue that I think it is the Peoples burden, and I dont think that it is clear that an attorney would be provided without cost. Ill submit it. The court ruled the officer properly admonished and obtained a waiver from Barragan. Barragans statement was admitted against him at trial.

Analysis

Barragan contends the court erroneously admitted his statements to Officer Robles because the purported warning concerning whatever thing was not a sufficient, effective and express explanation that any statement he made could and would be used against him in a court of law. Apparently, Barragan does not believe the statement whatever thing that you say will be used against you in a court of law was sufficient to explain to Barragan that anything he said could be used against him in court. As the People point out, Barragan did not make this argument below. Accordingly, we reject the argument on procedural grounds as waived. As our Supreme Court has explained, When an argument was not presented to support a motion, it may not be urged to attack the subsequent ruling. [Citation.] (People v. Mickey (1991) 54 Cal.3d 612, 653 fn. 5.)

Barragan contends the issue is one of law that we may decide despite his failure to raise the argument below. We disagree. Barragans challenge is necessarily to the meaning of the Spanish words cualquier cosa which were read to him. While Officer Robles translated these words in English as whatever thing, since Barragan did not object to the Spanish Miranda card below or to the English translation, no evidence was presented regarding the accuracy of the translation from Spanish to English, or whether the Spanish on the card adequately conveyed the Miranda rights.^[12] Barragan having failed to raise the issue below, the People had no occasion to pursue the point and present evidence on the issue. Accordingly, Barragan may not raise the issue now. (People v. Privitera (1979) 23 Cal.3d 697, 710 [stating general rule that questions relating to admissibility of evidence will not be reviewed on appeal in the absence of a specific and timely objection in the trial court on the ground sought to be urged on appeal, otherwise the People would be deprived of the opportunity to cure the defect at trial].)

D. The Instruction on Confession

Barragan contends the trial court erred in instructing the jury pursuant to CALJIC No. 2.70, Confession and Admission--Defined. He acknowledges this instruction was properly given insofar as it related to admissions, but asserts that because there was no evidence of a confession, the court should have instructed the jury with CALJIC No. 2.71, which pertains solely to admissions. We agree the court erred, but conclude the error was harmless.

The trial court instructed the jury pursuant to CALJIC No. 2.70 as follows: A confession is a statement made by the defendant in which he has acknowledged his guilt of the crimes for which he is on trial. In order to constitute a confession, the state must -- the statement must acknowledge participation in the crimes, as well as the required criminal intent. An admission is a statement made by the defendant which does not by itself acknowledge his guilt of the crimes for which the defendant is on trial, but which statement tends to prove his guilt when considered with the rest of the evidence. [] You are the conclusive judges of the evidence as to whether the defendant made a confession or an admission, and if so, whether that statement is true in whole or in part. [] Evidence of an oral confession or admission of the defendant should be viewed with caution.

Barragan asserts there was no evidence of a confession to the crimes charged in this case which warranted instructing the jury on confessions. We agree. In his interview with the Oregon officer, Barragan admitted having sexual intercourse with P.C. and orally copulating her, but he insisted that all sexual contact was consensual. Under these circumstances, Barragans statement was not a confession of the criminal conduct charged in this case, all of which involved the use of force; if the acts were not committed against P.C.s will, he did not commit any of the crimes with which he was charged. While the People argue Barragans admission that he knew what he was did was wrong is evidence of a confession, we do not agree since Barragan never acknowledged participation in the crimes for which he was on trial.

Because there was no evidence of a confession, the court erred in instructing on this issue. Trial courts are duty-bound to avoid instructions which are not justified by the facts of the case, since they have a natural tendency to overburden and confuse the jury. (People v. Singleton (1987) 196 Cal.App.3d 488, 492.)

However, the error was harmless. In reviewing a challenge to jury instructions, we must consider the instructions as a whole. [Citations.] We assume that the jurors are capable of understanding and correlating all the instructions which are given to them. (People v. Fitzpatrick (1992) 2 Cal.App.4th 1285, 1294.) An erroneous instruction requires reversal only if it appears that the error was likely to have misled the jury. (People v. Malone (1988) 47 Cal.3d 1, 52.) That is not the case here.

CALJIC 2.70 specifically provides that it is for the jury to determine whether the defendant made a confession or an admission, and if so, whether that statement is true in whole or in part. The court also instructed pursuant to CALJIC No. 17.31 that [w]hether some instructions apply will depend upon what you find to be the facts. Disregard any instruction which applies to facts determined by you not to exist. Do not conclude that because an instruction has been given I am expressing an opinion as to the facts. Barragan acknowledges the evidence warranted an instruction on admissions. Given the state of the evidence and considering the instructions as a whole, there is no likelihood the jury was misled into believing that Barragan confessed to a crime. The error was therefore harmless.

E. Failing to Instruct on Lesser Included Offenses

Barragan next argues the trial court was obliged to instruct, sua sponte, that unlawful sexual intercourse ( 261.5) is a lesser included offense of the aggravated sexual assaults by rape on a child under the age of 14 and 10 or more years younger than the defendant alleged in counts 1 through 3 ( 269, subd. (a)(1); 261, subd. (a)(2)) and the forcible rapes alleged in counts 5 and 7 ( 261, subd. (a)(2)). He also argues that oral copulation of a person under 18 ( 288a (b)(1)) is a lesser included offense of the forcible oral copulations alleged in counts 4 and 6 ( 288a(c)(2)).

Generally, a lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser. (People v. Birks (1998) 19 Cal.4th 108, 117.) As to the forcible rapes alleged in counts 5 and 7, and the forcible oral copulation alleged in count 6, under the elements test, statutory rape is not a lesser included offense to forcible rape and non-forcible oral copulation with a minor is not a lesser included offense to forcible oral copulation. (People v. Scott (2000) 83 Cal.App.4th 784, 794 & fn. 4; People v. Gutierrez (1982) 137 Cal.App.3d 542, 548.) This is because the nonforcible sex crimes require the perpetrator and victim to be within certain age limits while the forcible sex crimes do not[.] (People v. Scott, supra, 83 Cal.App.4th at p. 794.) Barragans claim as to these counts also fails under the pleadings test because the information does not allege any age of the victim or perpetrator.

We need not decide, however, whether this rule is different when forcible rape is but a component of a section 269 violation, as alleged in counts 1 through 3. Nor need we decide whether non-forcible oral copulation of a minor is a necessarily included lesser offense of forcible copulation when the age of the minor is alleged in the information, as it is in count 4. In our view, there was no evidentiary basis for the jury to reasonably have concluded that on these counts the lesser offense, but not the greater, was committed. (People v. Barton (1995) 12 Cal.4th 186, 201; People v. Flannel (1979) 25 Cal.3d 668, 684, superseded by statute on another point as stated in In re Christian S. (1994) 7 Cal.4th 768, 777.) The court should instruct the jury on every theory of the case, but only to the extent each is supported by substantial evidence. (People v. Flannel, supra, 25 Cal.3d at p. 685.) Substantial evidence is evidence that a reasonable jury could find persuasive. (People v. Barton, supra, 12 Cal.4th at p. 201, fn. 8, citing People v. Flann

el, at p. 684.)

Having carefully reviewed P.C.s testimony and Officer Robless recounting of Barragans interview, we are of the opinion that the record does not contain substantial evidence to support the giving of the instruction on lesser offenses Barragan identifies on counts 1 through 4. With respect to counts 1 through 3, each of which alleged that forcible rape was committed against P.C. when she was under the age of 14, and count 4, which alleged forcible oral copulation when P.C. was 14, there is no persuasive evidence from which the jury reasonably could conclude P.C. and Barragan engaged in consensual sexual relations when P.C. was 14 or under. While Barragan told Officer Robles the whole thing was consensual or voluntary[,] Barragan also said their sexual relationship began two years earlier, when P.C. was 15. In fact, Barragans defense to these counts was that the relationship did not begin until P.C. was 16 or 17. In contrast, P.C. testified their sexual relationship began when she was 13, when Barragan forced her to have sexual intercourse with him, and Barragan began forcing her to oral copulate him when she was 14. Given the divergent evidence from Barragan and P.C. regarding their relationship, there was no middle ground on these counts between the greater offense and no offense at all either Barragan committed forcible rape when P.C. was under 14 and forcible oral copulation when P.C. was 14, or he did not. We find no error.
F. Cunningham

Barragan contends that the imposition of aggravated eight-year terms two each for forcible oral copulation ( 288a, subd. (c)(2); counts four and six) and forcible rape ( 261, subd. (a)(2), 264, subd. (a); counts five and seven) constitutes Cunningham error that is not harmless beyond a reasonable doubt. !(SAOB 1-7)! The Attorney General argues that there was no error and that error, if any, was harmless beyond a reasonable doubt. !(RSLB 1-9)!

At the probation and sentencing hearing, the court found true the circumstances in aggravation that Barragan took advantage of a position of trust or confidence, that P.C. was particularly vulnerable, and that the crime involved the threat of bodily harm or other acts disclosing a high degree of cruelty, viciousness, or callousness, found true the circumstance in mitigation that he had no prior record, and chose the aggravated eight-year terms for counts four through seven. (See Cal. Rules of Court, rules 4.421(a)(1), 4.421(a)(3), 4.421(a)(11).^[13]) !(7 RT 422-423)! Except for a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. (Cunningham, supra, 549 U.S. at p. __ [166 L.Ed.2d at p. 873; 127 S.Ct. at p. 868], quoting Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (italics added).) The imposition of the upper term does not infringe upon the defendants constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendants record of prior convictions. (People v. Black (July 19, 2007, S126182) __ Cal.4th __ [2007 Cal. LEXIS 7604 at p. 39].)

Seeking shelter in Cunningham, the Attorney General argues that by finding Barragan guilty of the forcible sex crimes in counts four, five, six, and seven the jury necessarily found that those crimes involved the threat of force or violence. !(RSLB 4)! As the language of the statutes and rule of court shows, however, his argument tacitly equates an act against [ones] will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury ( 261, subd. (a)(2), 288a, subd. (c)(2)) with a threat of great bodily harm or other acts disclosing a high degree of cruelty, viciousness, or callousness (Cal. Rules of Court, rule 4.421(a)(1)). That paints with too broad a brush. Dissimilarities between the language of the statutes and the language of the rule of court betray Cunningham error.

On the issue of whether the error was harmless beyond a reasonable doubt, the duty of the reviewing court is to determine whether, if the question of the existence of an aggravating circumstance or circumstances had been submitted to the jury, the jurys verdict would have authorized the upper term sentence. (People v. Sandoval (July 19, 2007, S148917) __ Cal.4th __ [2007 Cal. LEXIS 7606 at p. 18].) The sentencing rules that set forth aggravating circumstances were not drafted with a jury in mind. (Id. at pp. 21-22.) Nonetheless, the evidence of a threat of great bodily harm or other acts disclosing a high degree of cruelty, viciousness, or callousness (Cal. Rules of Court, rule 4.421(a)(1)) is as abundant here as if the parties had tried the case with the rule of court in mind. The Cunningham error was harmless beyond a reasonable doubt.

DISPOSITION

The judgment is affirmed.

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^* Before Vartabedian, Acting P.J., Cornell, J. and Gomes, J.

^[1]All further statutory references are to the Penal Code.

^[2]People v. Marsden (1970) 2 Cal.3d 118.

^[3]Mirandav.Arizona (1966) 384 U.S. 436.

^[4]P.C., who was born in November 1982, testified she was around five years old when Beda Z. started dating Barragan.

^[5]Beda Z. believed something was going on because of Barragans jealous conduct towards P.C. Although Beda Z. wanted to leave Barragan, she didnt because he wouldnt let her take P.C. He told Beda Z. he wanted to marry P.C.

^[6]Carolyn Molesworth had changed her last name to Ford by the time of trial.

^[7]All subsequent dates are in 2004 unless otherwise noted.

^[8]Count 4 was amended at trial to conform to proof to allege a violation of section 288a, subdivision (c)(2), forcible oral copulation, between November 21, 1996 to November 21, 1997.

^[9]Section 656 was amended in 2004. (Stats. 2004, c. 511, 1.) Former section 656 provided: Whenever on the trial of an accused person it appears that upon a criminal prosecution under the laws of another State, Government or country, founded upon the act or omission in respect to which he is on trial, he has been acquitted or convicted, it is a sufficient defense.

^[10]Section 793 was amended in 2004. (Stats. 2004, c. 511, 4.) Former section 793 provided: When an act charged as a public offense is within the jurisdiction of another State or country, as well as of this State, a conviction or acquittal thereof in the former is a bar to the prosecution or indictment therefor in this State.

^[11]Officer Robles translated the entire card as follows: On the top portion it says the advisement of Miranda, and then it has number one, you have the right to remain silent. Number two, whatever thing that you say will be used against you in a court of law. Number three is you have the right to speak with an attorney or have them present during your interrogation. If you want an attorney and dont have the money to pay for one, an attorney will be named to represent you before any interrogation. [] And on the back side is the waiver, which it just has number one after the English section, which says, Do you understand each and every one of these rights that I have read?