P. v. Hernandez

Filed 2/22/08 P. v. Hernandez CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. J. Thompson Hanks, Judge. Affirmed.

Barbara A. Smith, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, James D. Dutton,

Supervising Deputy Attorney General, and Melissa Mandel and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.

I. INTRODUCTION

Defendant was charged and convicted after a jury trial of two counts of aggravated sexual assault of a child, one count by forcible rape (Pen. Code,  269, subd. (a)(1), 261, subd. (a)(2),^[1]count 1) and the other count by forcible oral copulation ( 269, subd. (a)(4), 288a, subd. (c)(3), count 2); and 16 counts of committing a lewd act on a child ( 288, subd. (a); counts 3-18). All of the crimes involved defendants niece, Jane Doe, who was between the ages of 9 and 13 when the crimes occurred. Defendant was in his 30s. Defendant was sentenced to 40 years to life, consisting of two consecutive terms of 15 years to life on the two aggravated sexual assault convictions, plus 10 years for the nonforcible lewd act convictions.^[2]

Defendant contends the trial court erroneously instructed the jury regarding the elements of force and consent in counts 1 and 2, in response to questions the jurors raised during their deliberations. Specifically, he claims the trial court gave an erroneous supplemental instruction on force in response to the jurys initial inquiry concerning the definition of force. In addition, he claims the trial court violated section 1138 by failing to adequately and correctly address the jurors further questions regarding whether Does young age, the nature of her relationship with defendant, and her perception of whether force was used were relevant to determining whether she consented to the intercourse and oral copulation. He also claims the trial court erroneously concluded that consecutive terms were mandatory on counts 1 and 2, when in fact the court had discretion to impose concurrent terms. For the reasons that follow, we affirm the judgment in all respects.

II. STATEMENT OF FACTS

A. Does Testimony

Doe was born in May 1987 and was 19 years old when she testified at defendants trial in July 2006. Defendant was her uncle and was in his 40s at the time of trial. Does parents divorced when she was around seven years old. Thereafter, Doe lived with her mother but spent alternating weekends at her fathers house in Perris. When Doe was nine, defendant moved into a house near Does fathers house. Doe would see defendant when she was visiting her father. Doe was not close to her father, but defendant treated Doe like a daughter, taking her on bike rides and buying her gifts. Doe had a sense that defendant treated her differently than other children in the family. He paid a lot of attention to her, and told her she was his favorite niece. She told him he was her favorite uncle.

Defendant began to sexually touch Doe when she was around nine years old. The first time, he put his hand inside her shirt and touched her developing breast, as he was walking her home. The incident made Doe feel uncomfortable, because her mother had told her it was wrong for people to touch her private areas. Still, Doe did not say anything about the incident. Also when Doe was nine years old, she, her mother, defendant, and other family members would travel to Tijuana every few weeks. Defendant and Doe would sit in the backseat, covered with blankets. Defendant would fondle Does vagina under her clothes and encourage her to fondle his penis under his clothes. Does mother noticed that Doe was sitting too close to defendant during the car trips and told her not to sit so close to him. Both of Does parents noticed she was spending a lot of time with defendant and told her she should not spend so much time with him because he was an adult man. Despite her parents admonitions, Doe developed romantic feelings for defendant by the time she was 10 years old.

Doe recalled that she and defendant had sexual intercourse for the first time when she was 10 years old and approaching her 11th birthday. She and defendant were alone in defendants house, watching television. While lying on his couch, defendant unfastened his belt and pants. He then pulled Does pants down, pulled her on top of him, and put his penis in her vagina. It was very painful for Doe, and she told him it hurt. Several times, Doe pushed at defendants waist, trying to get off of him, but defendant kept pulling her back. Previously, defendant had talked to Doe about having sexual intercourse. He told her it would only hurt once, and after that it would not hurt anymore. Doe was frightened, and testified she did not want to have sexual intercourse with defendant even before he put his penis inside her. Finally, defendant convinced Doe that the intercourse would hurt only a little bit, so she stopped resisting and it hurt less. Still, he held her down on top of him as she was in pain and trying to get away. Doe was depressed about losing her virginity before marriage, and she feared her mother would find out.

Doe also recalled the first time she and defendant engaged in oral copulation. Again, she and defendant were alone in defendants house. In his living room, he unfastened his pants, took out his penis, pushed Does head down toward him, and put her mouth on his penis. Doe could not breathe and tried to pull away several times, but defendant held her, pushed his penis into her mouth, and ejaculated. Doe said she did not want to do this but defendant made her do it. She was not able to get away from defendant because he was holding her. Defendant had never talked to Doe about having oral sex, and the incident was a surprise to her. On a later occasion, Doe and defendant had intercourse on defendants living room floor. Doe was lying on her back. Defendant touched her all over her body, orally copulated her, then had intercourse with her.

Every other weekend when Doe visited her father, until she was 13 years old, she and defendant either had intercourse, oral copulation, or engaged in sexual touching. She touched defendants penis and he touched her vagina almost every time she went to defendants house. She orally copulated defendant more than 10 or 15 times at his house, and defendant performed acts of oral copulation on Doe more than 10 times at his house. Twice, at defendants house, defendant attempted to have anal sex with Doe. He turned her around and told her it would feel really good for him. She complained that it hurt a lot and told him she did not want to do it. After a while, defendant was satisfied with vaginal sex. Defendant would use a condom when they had intercourse.

Doe and defendant continued to masturbate each other on their trips to Tijuana and at Does fathers house. There were also incidents of oral copulation at Does fathers house when Does father was taking a shower. They once had intercourse in a secluded area in the rocks behind the neighborhood, and defendant once masturbated Doe in a truck during a family trip to Bakersfield. On another occasion, Doe was supposed to go to the movies with some friends, but arranged to meet defendant instead. He took her to an area in the mountains, where they had intercourse on an old mattress.

Doe testified that at some point the sex acts became easier to perform because they were like a routine. She said she wanted her favorite uncle to be happy, and thats what he wanted to do. So thats what we would do. He continued to treat her well and she continued to feel special to him. She felt like she was his girlfriend and lover. She began writing letters to him when she was around 11 years old, expressing her romantic love for him and inviting him to have sex with her. Defendant told Doe he would marry her when she was 18 years old, and she believed him. He spoke of her as a lady, not a child, which made her feel good. Defendant would show Doe pornography, including photos of women masturbating, and would discuss it with her. At some point, defendant told Doe he was also having sex with Does mother and maternal aunt. No one knew about their sexual relationship while it was ongoing. Defendant told Doe their sexual relationship was their secret and not to tell anyone.

The sexual relationship with defendant ended when Doe was 13 years old and had a boyfriend named R. At that point, Doe told defendant she would no longer be having sexual relations with him, although R. did not touch her or do things with her as defendant did. She began avoiding defendant and stopped visiting her father so often. When Doe did visit her father, defendant would stare at her and R. and give them dirty looks. Still, Doe did not tell R., her parents, or even her closest girlfriends about what had happened with defendant. She was too frightened and confused. She also did not get along with her mother, and did not trust her mother enough to tell her mother what had happened. Her mother had gone to jail for hitting her when she was 14 years old. Her father was distant, and she could not talk to him about anything. She stayed very busy in an attempt to stop thinking about what had happened with defendant.

When Doe was 17 years old, she told her current boyfriend C. about defendant after C. noticed she cried a lot and kept asking her what was wrong. Several days later, during December 2004, defendant showed up at Does mothers hair salon in Perris while Doe was working there. C. arranged to have Doe leave the salon because she was upset and did not want her mother to see her that way. That evening, Doe learned that C. told Does mother that defendant had basically raped Doe. Several days later, Doe reported the matter to the police. She was prompted to report the matter because C. had convinced her it was something serious. She told C. she had always believed the relationship was her fault, and she should have known it was wrong and taken the initiative to stop it even though she was only nine years old when it began.

B. Defendants Admissions

On May 12, 2005, Doe made a pretext phone call to defendant from the Perris police station and spoke to him for about an hour. The call was recorded and played to the jury. During the call, Doe told defendant the police had contacted her and were planning to investigate the matter. Doe asked defendant what she should tell the police. Defendant responded, Huh? Its that that shouldnt be talked about my child. Do you want to see me in jail? What did we agree on? He also told her, No look, you deny everything, you deny everything. . . .

Defendant repeatedly asked Doe whether she was alone and whether she wanted to see him go to jail for the rest of his life. He told her to deny she had sex with him and to claim her mother made it up because she wanted to see defendant go to jail. He also told her to say her father was always at home and she never left his house. Doe told defendant that her boyfriend knew she was not a virgin, and asked him how she would explain that to the police. Defendant told Doe to deny that she was not a virgin and to refuse to see a doctor.

Defendant told Doe, Yes, but my child if you deny . . . that you had sex with me, maybe they wont get . . . the truth out of you or any of that. I know that youlook, its for your own good and my own good and your mothers good too. Because look, youll affect your mothers and sisters reputations, and everybody will find out that I was with both sisters . . . . He told Doe she would have to forget about everything that had happened between them. When Doe asked defendant whether he had any proof that they had sex, including photos or letters, defendant said the letters Doe wrote to him were in Mexico with his sister.

Doe specifically asked defendant whether he recalled how many times they had had sexual intercourse and oral sex. In response, defendant admitted he had had intercourse with Doe three times, and that they had orally copulated each other many times. He also admitted he committed lewd acts on Doe many times and that they had masturbated each other many times. He denied, however, they had ever had anal sex. He also denied that any of the acts were forced. Doe testified she told police that defendant made [her] have sexual intercourse with him when he held her on top of him.

Shortly after the phone call, sheriffs deputies arrested defendant at his home and took him to the police station. Defendant was interviewed after he was advised of and waived his Miranda^[3]rights. This interview was also recorded and played for the jury. During the interview, defendant initially denied, but then admitted, the sexual intercourse, oral copulation, and lewd acts with Doe; again, however, he denied having anal sex or using force with Doe.

C. Defense Evidence

Defendants daughter, Gabriela, testified that on November 23 or 24, 2004, Does mother came to defendants house. She was angry with defendant and defendant was a little scared. On the following day, defendant and Gabriela went to Does mothers beauty salon. In the parking lot, defendant gave Does mother $2,700 in cash. Thereafter, between December 2004 and April 2005, defendant was away from home. Gabriela also testified that her family knew defendant was having an affair with Does mother, his brothers wife, while his brother was still married to Does mother. When defendant was in jail, he told Gabriela he had had a sexual relationship with Doe several years earlier.

The defense did not deny any of the nonforcible lewd act charges. (Counts 3-18;  288, subd. (a).) The defense argued, however, that the charges of aggravated sexual assault by rape and oral copulation, respectively, were overcharged because defendant did not use force or overcome Does will when he first had sexual intercourse with her or the first time Doe orally copulated him.

III. DISCUSSION

A. The Trial Courts Supplemental Instruction on Force Correctly Stated the Law, and the Court Adequately and Accurately Responded to the Jurys Questions Regarding the Elements of Force and Consent in Counts 1 and 2

Defendant contends the trial court gave an erroneous supplemental instruction on the element of force in counts 1 and 2, in response to the jurys initial written inquiry and follow-up questions on the definition of force. More broadly, he claims the trial court violated section 1138 by failing to accurately and adequately respond to the jurors questions regarding the elements of force and consent. We find no error.

1. Relevant Background

Before deliberations, the trial court gave several instructions which told the jury that force was an element of the crimes charged in counts 1 and 2. Specifically, the jury was given CALJIC Nos. 10.55 (Aggravated Sexual Assault of a Child),^[4]10.00 (RapeSpouse and NonspouseForce or Threats),^[5]and 10.10 (Unlawful Oral Copulation by Force or Threats).^[6] Following these instructions, the trial court gave a special instruction on force, which stated that the acts of Sexual Intercourse and Oral Copulation are accomplished by force if a person uses enough physical force to overcome the victims will. The trial court then gave CALJIC Nos. 10.65 (Belief as to ConsentForcible RapeUnlawful Oral Copulation)^[7]and 1.23.1 (Consent Defined in Rape . . . and Oral Copulation).^[8]

During deliberations, the jury submitted a request or question, simply stating definition of force. In the courtroom, the trial court told the jurors that the given instructions included a definition of force, and reread the special instruction which stated that, the acts of Sexual Intercourse and Oral Copulation are accomplished by force if the person uses enough physical force to overcome the victims will. The court then asked the jurors whether the special instruction answered their question. After Juror No. 1 responded, Not quite, the court gave the following, supplemental instruction:

Thus the force requirement for purposes of rape and forcible oral copulation has no special meaning outside the commonly understood definition of force. Though the statute does require proof of both force and lack of consent, force plays merely a supporting evidentiary role, as necessary only to ensure an act of intercourse has been undertaken against a victims will. [] Thus, even conduct which might normally attend sexual intercourse, when engaged in with force sufficient to overcome the victims will, can support a forcible rape or oral copulation conviction.^[9]

The court then asked the jurors whether the supplemental instruction helped, and the following colloquy ensued between the court and several of the jurors:

JUROR NO. 1: Do you have another definition?

THE COURT: No. You see, thats allone of the things I mentioned to you when we were doing that voir dire is you have to decide factually what occurred. Thats your job. You must make that determination. [] With regards to this force allegation, you must decide whether or not the conduct thats been described fits within the meaning of the law. Thats for you to decide. Im not going to give you any definition that is going to tell you this was or this was not sufficient force. Thats your decision. Okay?

JUROR NO. 1: Can I ask something?

THE COURT: Sure.

JUROR NO. 1: At any age you have your own consent; is that correct? You have your own will at any age?

THE COURT: Youre talking about the fact of the age of the victim in this matter?

JUROR NO. 1: Right.

THE COURT: The first two counts are ones that deal with force, and its because those counts do deal with force that the law is such that it is. And those counts talk about an absence of consent and the use of force, and that factually has to be determined by the jury if those things occurredif there was the sexual activity, if there was a lack of consent, if there was force. That is your decision. That hasfor Counts 1 and 2, that is thea requirement. [] Well send you back in there, and Ill make you a copy

JUROR NO. 4: Is there not more definitions within those guidelines? Wasnt there about four main points? [] . . . [] . . . of what articulates force?

THE COURT: Well, I can point you to again, for our purposesit has no special meaning outside the commonly understood definition of force.

JUROR NO. 9: The force thats being perceived by the victim or being perceived by us? Whose perception is it?

THE COURT: No. Its a factual determination that you make as to whether or not force was used.

JUROR NO. 9: Whether the victim perceived it?

THE COURT: I didnt say anything here about the victim perceiving anything, that I recall. Do you recall me saying anything like that?

JUROR NO. 9: No.

THE COURT: What Ive talked about here is the forcethere has to be the sexual conduct, the lack of consent, and force. Thats what comprises the situation. Thats what makes up the criminal conduct. So its your decision as to whether or not there was sexual conduct, lack of consent, and force.

JUROR NO. 9: Legally a minor cannot give consent?

THE COURT: Thats not an issue in Counts 1 and 2. You didnt see anything in here about a minor on Counts 1 and 2, did you? Did you read something about a minor on Counts 1 and 2? Then theres nothing in here about that. [] Dont make up things. Dont add things. Use the instructions that Ive given you. Those cover the law on this issue. If there wasif there was some issue about a minor on Counts 1 and 2, I would have told you. Okay? [] Well send you back.

Later that afternoon, the jury returned its verdicts finding defendant guilty as charged on all counts.

2. Applicable Law and Analysis

Defendant raises two separate[,] albeit overlapping claims of error regarding the trial courts responses to the jurys questions on the elements of force and consent in counts 1 and 2. He principally argues that the trial court violated section 1138 by failing to adequately and correctly respond to the jurors questions on the definition of force and whether Does young age and perception of whether force was used were relevant to determining whether she consented to the initial acts of intercourse and oral copulation. As part of this claim, he also argues that the second and third sentences of the supplemental instruction, which further defined the element of force for the jury, were inherently problematic and improperly downplay[ed] the element of force in view of the jurys subsequent questions concerning the relevance of Does young age and perception of force on the issue of consent.

The jurys questions clearly indicated they were confused regarding the elements of force and consent. Section 1138 requires the trial court to provide the jury any desired information on any point of law arising in the case.^[10] (People v. Gonzalez (1990) 51 Cal.3d 1179, 1212.) The statute imposes on the court the primary duty to help the jury understand the legal principles it is asked to apply. (People v. Cleveland (2004) 32 Cal.4th 704, 755.) This does not mean, however, that the trial court must always elaborate on its standard instructions. Where, as here, the original instructions are themselves full and complete, the court has discretion under section 1138 to determine what additional explanations are sufficient to satisfy the jurys request for information. (People v. Gonzalez, supra, at p. 1213.) We review a trial courts exercise of its discretion under section 1138 for an abuse of discretion. (People v. Waidla (2000) 22 Cal.4th 690, 745.)

Here, the trial court did not abuse its discretion in the way it responded to the jurys inquiries on force and consent. As we explain, the courts supplemental instruction and further admonitions to the jury were accurate and adequately responded to the jurors questions.

The first question the jury raised was its note on definition of force. In response to this inquiry, the trial court reread its special instruction that the acts of Sexual Intercourse and Oral Copulation are accomplished by force if a person uses enough physical force to overcome the victims will. When the jurors said that the special instruction did not quite answer their question on the definition of force, the trial court read the supplemental instruction on force.

Defendant first argues that the second and third sentences of the supplemental instruction improperly downplay[ed] the element of force as an element of the offenses in counts 1 and 2. He claims the sentences were misleading on the troubling issues of force and consent, in view of the jurys subsequent questions regarding Does consent. We disagree. In pertinent part, the supplemental instruction stated that, Though the statute does require proof of both force and lack of consent, force plays merely a supporting evidentiary role, as necessary only to insure an act of intercourse has been undertaken against a victims will. [] Thus, even conduct which might normally attend sexual intercourse, when engaged in with force sufficient to overcome the victims will, can support a forcible rape or oral copulation conviction.

The challenged portions of the supplemental instruction correctly stated the law. Indeed, the term force has no special meaning in cases of forcible rape or forcible oral copulation, and merely means force sufficient to overcome the victims will. (People v. Griffin(2004) 33 Cal.4th 1015, 1023-1024, 1027 (Griffin) [forcible rape]; People v. Guido (2005) 125 Cal.App.4th 566, 575-576 [oral copulation by force].) As the court in Griffin observed, in order to establish force within the meaning of section 261, [current subdivision (a)(2)], the prosecution need only show that the defendant used physical force of a degree sufficient to support a finding that the act of sexual intercourse was against the will of the [victim]. (Griffin, supra, at pp. 1023-1024, quoting People v. Young (1987) 190 Cal.App.3d 248, 257-258.) Accordingly, the court also observed that forceplays merely a supporting evidentiary role, as necessary only to insure an act of intercourse has been undertaken against a victims will. (Griffin, supra, at p. 1025, italics added, quoting People v. Cicero (1984) 157 Cal.App.3d 465, 475.)

And, in discussing the nature and type of forcible conduct required for forcible rape, the Griffin court explained that [t]he Legislature has never sought to circumscribe the nature or type of forcible conduct that will support a conviction of forcible rape, and indeed, the rape case law suggests that even conduct which might normally attend sexual intercourse, when engaged in with force sufficient to overcome the victims will, can support a forcible rape conviction. (See People v. Tollack [(1951) 105 Cal.App.2d 169, 171] [The kind of physical force is immaterial . . . it may consist in . . . laying hold of and kissing [the victim] against her will].) (Griffin, supra, 33 Cal.4th at p. 1027, italics added.) As Griffin demonstrates, the supplemental instruction correctly stated the law.

Nor was the supplemental instruction misleading in view of the jurys subsequent questions concerning consent. After the trial court gave the supplemental instruction, the jurors raised additional questions concerning whether and to what extent Does young age and her perception of whether defendant used force were relevant to whether she consented to the intercourse and oral copulation. In response to these questions, the trial court referred the jury to the given instructions, and told them it was its job to determine whether there was sexual conduct, lack of consent, and force. The issue of force was never downplayed, either in the supplemental instruction or the courts subsequent admonitions to the jury.^[11]

Nor did the trial court abuse its discretion or violate section 1138 in responding to any of the jurys questions on force and consent. When the jurors asked whether they should use Does perception or their own perception of whether force was used, the trial court properly told them there was nothing in the instructions about the victim perceiving force. Thus, the court effectively and correctly told the jurors that the issue of force was an objective question they had to decide based on all the relevant facts and circumstances. Indeed, the court told the jurors, its your decision as to whether or not there was sexual conduct, lack of consent, and force. Thus, the court fully and accurately responded to the perception of force question.

The jurors also asked whether a person can give their own consent at any age and whether a minor can legally give consent. The trial court did not directly answer the first question. Instead, it referred the jurors to the given instructions, and emphasized that lack of consent and force were factual questions the jury had to decide. Thereafter, when another juror asked whether a minor could legally give consent, the court very directly and correctly told the jurors that legal consent was not an issue in Counts 1 and 2, that the given instructions cover[ed] the law on this issue, and not to make up things or add things to the instructions.

These responses adequately addressed the jurors questions concerning the relevancy of Does age to the issue of consent. CALJIC No. 1.23.1 did cover the law on the issue of consent. It told the jurors that consent meant positive cooperation in an act or attitude as an exercise of free will. The person must act freely and voluntarily and have knowledge of the nature of the act or transaction involved. The instruction also stated that, [t]he fact, if established, that the defendant and [Doe] engaged in a current or previous dating relationship does not by itself constitute consent.

Although Does young age and level of maturity were both relevant in determining whether she consented to the intercourse and oral copulation, they were not the only considerations. Consent is to be determined based on all the relevant circumstances. (See People v. Young, supra, 190 Cal.App.3d at p. 257.) Thus, if the trial court had told the jury that age was relevant to the issue of consent, the defense might well be arguing that the trial court was improperly endorsing the jurors apparent view that Does young age rendered her incapable of consent. As one court has observed, [j]ury questions can present a court with particularly vexing challenges. The urgency to respond with alacrity must be weighed against the need for precision in drafting replies that are accurate, responsive, and balanced. When a question shows the jury has focused on a particular issue, or is leaning in a certain direction, the court must not appear to be an advocate, either endorsing or redirecting the jurys inclination. (People v. Moore (1996) 44 Cal.App.4th 1323, 1331.)

Still, it is perhaps only natural that the jurors had questions concerning Does age and whether a minor may legally give consent. The phrase age of legal consent has passed into law usage and been incorporated into folk law. (Donaldson v. Department of Real Estate (2005) 134 Cal.App.4th 948, 963.) But legal consent was not an issue in the case, and any attempt to explain the irrelevant issue of legal consent may have served only to confuse the jury. Just as there is no longer any statutory rape in this state, so there is no age of consent as concerns sexual relations, and references to such a concept can only muddy the analytical waters. (Id. at p. 964.) The trial court properly told the jury not to be concerned with legal consent because it was not an issue in the case.

In sum, the trial courts supplemental instruction on force correctly stated the law, and did not downplay the issue of force in view of the jurys subsequent questions on consent and force. In addition, the trial court accurately and adequately responded to the jurys additional questions on force and consent.

B. Consecutive Terms Were Mandatory onCounts 1 and 2

Lastly, defendant claims the sentencing court erroneously concluded that counts 1 and 2 carried mandatory consecutive terms, and it had no discretion to impose concurrent terms on these counts. He acknowledges that case law supports the trial courts view that mandatory terms were required. (People v. Jimenez (2000) 80 Cal.App.4th 286, 290-292 (Jimenez); People v. Glass (2004) 114 Cal.App.4th 1032, 1037-1038 (Glass).) He argues, however, that these cases were wrongly decided. We disagree that Jimenez and Glass were wrongly decided. In any event, consecutive terms were mandatory on counts 1 and 2.

Section 667.6, subdivision (d) provides that consecutive terms shall be imposed for each violation of an offense listed in subdivision (e), if the offenses involved separate victims or the same victim on separate occasions. Subdivision (e) lists forcible rape ( 261, subd. (a)(3)) and forcible oral copulation ( 288a, subd. (c)(3)), but does not list any form of aggravated sexual assault ( 269). In counts 1 and 2, defendant was convicted of violating subdivisions (a)(1) and (a)(4), respectively, of section 269, by committing forcible rape and forcible oral copulation, respectively, on a child under age 14 and more than 10 or more years younger than defendant. Thus, here, the fundamental requirements of section 667.6 were met and consecutive terms were mandatory on counts 1 and 2.

Defendant argues that consecutive terms were not mandatory because section 269 is not listed in section 667.6, subdivision (e). The Jimenez court rejected substantially the same argument. There, the defendant suffered two aggravated sexual assault convictions based on two acts of forcible sodomy against the same victim on different occasions. ( 269, subd. (a)(3), 286; Jimenez, supra, 80 Cal.App.4th at pp. 288-289.) The defendant argued that consecutive terms were not mandatory because section 269 was not listed in section 667.6, subdivision (d). The court reasoned that sections 269 and 667.6 served different purposes, and it would be irrational to suppose the Legislature intended that criminals who commit multiple violent sexual offenses would be exempt from the aggravated punishment prescribed by section 667.6 merely because their victims happened to be children under age 14 who were 10 or more years younger than they. (Jimenez, supra, at p. 291.)

The court in Glass adopted the same reasoning in the analogous context of section 12022.8 great bodily injury enhancements on section 269 violations. Although section 269 is not listed in section 12022.8, the underlying offenses to which the enhancements apply are listed. (Glass, supra, 114 Cal.App.4th at pp. 1036-1038.) For the reasons expressed in Jimenez and Glass, consecutive terms were mandatory on counts 1 and 2.

IV. DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ King

J.

We concur:

/s/ Ramirez

P.J.

/s/ Richli

J.

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Analysis and review provided by Vista Property line attorney.

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

^[2] The information also charged, and the trial court implicitly found, that defendant engaged in substantial sexual conduct with the victim within the meaning of section 1203.66, subdivision (a)(8), rendering defendant ineligible for probation.

^[3]Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694].

^[4] In pertinent part, CALJIC No. 10.55 told the jury that the crime of aggravated sexual assault of a child, as charged in counts 1 and 2, respectively, required proof that a person committed rape and/or oral copulation by force.

^[5] CALJIC No. 10.00 defined the crime of forcible rape. It stated: Every person who engages in an act of sexual intercourse with another person who is [not] the spouse of the perpetrator accomplished against that persons will by means of force, is guilty of the crime of rape in violation of Penal Code section [261, subdivision (a)(2)]. (Italics added.) The same instruction told the jury that [a]gainst that persons will means without the consent of the alleged victim, and that [t]he act of intercourse had to be accomplished by means of force.

^[6] CALJIC No. 10.10 defined the crime of oral copulation by force. It told the jury that [e]very person who participates in an act of oral copulation against the will of the victim [by means of force,] is guilty of the crime of unlawful oral copulation in violation of the Penal Code section 288a, subdivision (c)[(2)]. Like CALJIC No. 10.00 on forcible rape, it also told the jury that [a]gainst the will means without the consent of the alleged victim, and [t]he act of oral copulation had to be accomplished against the victims will by means of force.

^[7] CALJIC No. 10.65 told the jury that criminal intent must exist at the time of the commission of the crimes of forcible rape and oral copulation by force, and there is no criminal intent if the defendant had a reasonable and good faith belief that the other person voluntarily consented to engage in [sexual intercourse] and/or [oral copulation]. Therefore, a reasonable and good faith belief that there was voluntary consent is a defense to such a charge . . . [, unless the defendant thereafter became aware or reasonably should have been aware that the other person no longer consented to the sexual activity.]

^[8] CALJIC No. 1.23.1 defined the term consent for purposes of forcible rape and oral copulation by force. It stated that the word consent means positive cooperation in an act or attitude as an exercise of free will. The person must act freely and voluntarily and have knowledge of the nature of the act or transaction involved. [] [The fact, if established, that the defendant and [Doe] engaged in a current or previous dating relationship does not by itself constitute consent.]

The instruction also stated that: [A person who initially consents and participates in the act of sexual intercourse and/or oral copulation has the right to withdraw that consent. To be effective as a withdrawal of consent, the person must inform the other person by words or conduct that consent no longer exists, and the other person must stop. The words or conduct must be sufficient to cause a reasonable person to be aware that consent has been withdrawn. If the other person knows or reasonably should know that consent has been withdrawn, forcibly continuing the act of sexual intercourse and/or oral copulation despite the objection, is against the will and without the consent of the person.]

^[9] Defense counsel objected to the second and third sentences of the supplemental instruction on the grounds that the term force was commonly understood and thus required no further definition in the context of forcible rape and oral copulation by force, and on the further grounds that the two sentences downplay[ed] the elements of force and lack of consent, both of which, counsel pointed out, had to be proved beyond a reasonable doubt.

^[10] Section 1138 provides, in relevant part: After the jury have retired for deliberation, . . . if they desire to be informed on any point of law arising in the case, they must require the officer to conduct them into court. Upon being brought into court, the information required must be given in the presence of, or after notice to, the prosecuting attorney, and the defendant or his counsel . . . .

^[11] Defendant also claims that the second and third sentences of the supplemental instruction were based on inapplicable case law, namely, Griffin, supra, 33 Cal.4th 1015 and In re John Z. (2003) 29 Cal.4th 756. He makes no effort, however, to explain how the principles set forth in these cases are inapplicable to the present case or the issues of force and consent. Instead, he argues that the cases are distinguishable on their facts. This argument is immaterial to whether the supplemental instruction correctly stated the law. And for the reasons we explained, the supplemental instruction correctly stated the law.