Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 07SF0197, Richard F. Toohey, Judge.
Jean Matulis, 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, Assistant Attorney General, Rhonda Cartwright Ladendorf and Stacy Tyler, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
FYBEL, J.
Introduction
A jury convicted Braulio Ernesto Carrera of one count (count 1) of forcible rape (Pen. Code, § 261, subd. (a)(2)), two counts (counts 2 and 3) of committing a lewd act upon a child (id., § 288, subd. (c)(1)), and one count (count 6) of continuous sexual abuse of a child under the age of 14 (id., § 288.5, subd. (a)). The trial court sentenced Carrera to the upper term of 16 years on count 6 with a consecutive upper term of eight years on count 1 for a total prison term of 24 years. The court imposed a concurrent term of two years on count 3 and stayed execution of a two year term on count 2 pursuant to Penal Code section 654.
Carrera challenges his conviction and sentence on three grounds: (1) former CALCRIM No. 362 (new Jan. 2006) was erroneous and the error was prejudicial; (2) substantial evidence does not support the conviction for forcible rape because there was no evidence at trial of force, fear, menace, or duress; and (3) the trial court erred by imposing a full, separate, and consecutive sentence on count 1 pursuant to Penal Code former section 667.6, subdivision (d) (former section 667.6(d)).
We conclude any error in giving former CALCRIM No. 362 was harmless and substantial evidence established Carrera committed forcible rape. Although the trial court erred by imposing a full, separate, and consecutive sentence on count 1 pursuant to former section 667.6(d), remand for resentencing is unnecessary because, absent the error, the court would have exercised its discretion to impose a consecutive sentence on count 1 pursuant to Penal Code section 667.6, subdivision (c) (section 667.6(c)).
Facts
We view the evidence in the light most favorable to the verdict and resolve all conflicts in its favor. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v. Barnes (1986) 42 Cal.3d 284, 303.)
I. Carrera Continuously Molests Nataly S. When She Was a Child.
Nataly S. was 18 years old when she testified at trial in March 2009. Between the ages of four and six, she lived in an apartment with her parents in Rancho Santa Margarita.
When Nataly was three or four years old, Carrera, who is the cousin of Nataly’s father, moved in to live with Nataly’s family. Nataly’s mother often left Nataly with him and listed him as an emergency contact for her once she started going to school. Nataly’s mother occasionally asked Carrera to pick Nataly up from school and allowed him to take Nataly on outings to amusement parks. Nataly’s mother sometimes left Nataly alone or with Carrera for hours at a time during school vacations.
Nataly remembered that Carrera would take off her clothing and put his mouth on her vagina and breasts. He told her, “this is going to be our little secret.”
At some point, Nataly’s mother asked her husband (Nataly’s father) to tell Carrera to move out because he had brought a woman into the house. Carrera moved out of the apartment, but remained friendly with Nataly’s family.
When Nataly was six, she and her parents moved into a condominium, and Carrera moved to different apartment with a garage. Nataly remembered going to that garage more than 50 times. Every time Nataly visited the garage, Carrera would play pornographic movies and make her do what the girls in the movie were doing, such as place her mouth on his penis, touch him, or kiss him.
When Nataly was about 10 years old, she stayed overnight on several occasions at Carrera’s home, where Carrera’s wife, mother in law, and then five year old son also lived. Nataly slept in the living room. Once, she woke up and realized that Carrera’s erect penis was in her mouth. When Nataly was about 11 or 12 years old, Carrera picked her up to take her to a water park where they would join his wife, son, and mother in law. On the way to the amusement park, Carrera stopped at his house, took Nataly inside, and stuck his penis in her vagina for the first time. They did not “have sex, ” but Nataly was in a lot of pain and cried.
When Nataly was about 11 years old, Carrera planned to take her to Downtown Disney. Before they left, Carrera took Nataly to his garage and had her lie on a couch with his son. Carrera touched her vagina underneath a blanket he had placed over them. Carrera would touch Nataly whenever he could talk her mother into letting him take Nataly somewhere.
On another occasion when Nataly was 11 years old, Carrera took her shopping to buy clothing for her sister’s new baby. On the way, they stopped at the pizza parlor where Carrera worked and there he made her look at some pornographic magazines.
Nataly could not recall how many times Carrera molested her when she was between the ages of 4 and 6, and estimated that as she grew older, he would molest her about twice a month. She did not tell anyone about what Carrera was doing because he threatened to harm her parents. Carrera told Nataly, “it was our game, ” and “it was a little secret, our little secret.”
When Nataly was six or seven years old, her mother told her, “if anybody touches you here or down there, you come and tell me.” For a long time after being told that, Nataly could not sleep because she contemplated whether to tell her mother about what Carrera was doing. She “was scared to not get believed, to not be believed or get hurt, so [she] never said anything.”
When Nataly entered middle school, her mother and father alternated taking her to school in the morning. Sometimes, when neither parent could take her, Nataly walked by herself to school, and Carrera occasionally picked her up at the end of the day. After Nataly’s parents had left for work in the morning, Carrera often would come to the door where Nataly was living and make her come with him to the garage, where he would take off her clothes and place his mouth on her vagina and breasts. She estimated he put his mouth on her vagina hundreds of times. On several occasions, Carrera blindfolded her and stuck a banana in her mouth to teach her how to orally copulate him.
One day, when Nataly was 12 or 13 years old, her father went to the house to pick her up and take her to school (he and his wife were temporarily separated and he was living elsewhere). Nataly’s mother had left for work at 6:00 a.m. that morning. Finding the house empty, Nataly’s father became worried and drove around the neighborhood looking for Nataly. He returned to the house briefly, then resumed searching the neighborhood for Nataly. When he returned to the house yet again, sometime after 7:00 a.m., he found Nataly crying in the bathroom. Carrera had taken Nataly that morning to his garage for over an hour. Nataly’s father immediately checked the telephone to see if there had been a suspicious call. He saw a number on the telephone and dialed it; Carrera answered. Nataly’s father demanded to know what was going on and whether Carrera had called his home. Carrera did not answer at first, but, after a while, said he had found Nataly “in the street” and brought her home.
After this conversation, Nataly’s father asked Nataly if Carrera had done anything inappropriate to her. She told her father she had gone with Carrera to hand out flyers for the pizza parlor and denied he had done anything inappropriate. (Nataly’s father testified that Nataly did not say anything and would not tell him where she had been.)
II. Carrera Resumes Molesting Nataly When She Is 15 Years Old.
When Nataly was 12 or 13 years old, her family moved to Lake Elsinore. At age 15, Nataly went through depression and began cutting herself with a razor blade. She thought her depression had to do with the emotion she never faced because she never told anyone about what Carrera had done to her. When her mother asked her why she cut herself, Nataly said that cutting helped relieve a pain she felt inside. While going through her depression, Nataly developed a close relationship with her father’s cousin, E.P., who became her best friend and confidant, helped her, and got her into counseling.
Around this time, Nataly’s parents decided to move back to Orange County to get her away from her boyfriend, of whom they disapproved. Nataly begged her parents not to move back to Orange County, but did not give a reason for not wanting to move.
In February or March 2006, after moving back to Orange County, Nataly got a job at the pizza parlor where Carrera worked. Nataly was 15 years old at the time. On her first day on the job, Carrera molested her. While teaching Nataly how to clean the bathroom, Carrera asked her if she remembered what they used to do when she was little. Scared, Nataly said “yes.” He leaned in and kissed her on the lips while reaching his hand under her skirt.
Every time Nataly cleaned the bathroom, Carrera would pretend to go in to help her, and instead would put his mouth on her vagina or on her breast, or put his fingers inside of her. Nataly did not want Carrera to molest her, but she let him do it because she was afraid and still “brainwashed by him.”
Nataly often told her mother she did not want to go to work; sometimes Nataly cried and flatly refused to go. Several times, Nataly was accompanied to work by her mother, and Nataly would beg her to take her home early or not to leave. Carrera always urged Nataly’s mother to leave.
III. Carrera Rapes Nataly on April 25, 2006.
On the night of Tuesday, April 25, 2006, Carrera asked Nataly to stay late at the pizza parlor to work. He had contacted Nataly’s mother and obtained her permission. Nataly started to cry and told Carrera she did not feel good and wanted to go home, but she stayed. Carrera sent Nataly into the bathroom to clean. When she came out, everyone was gone except Carrera. He led Nataly to the back of the kitchen, took some blankets out of the closet and laid them on the floor. While Nataly was lying down, Carrera removed her pants and put something “liquidy” on her that came out of a little tube. In an interview with a member of the Child Abuse Services Team (CAST), Nataly said Carrera “pushed [her] down, ” removed her pants and underwear, and spread her legs.
When Carrera started to remove her pants, Nataly became very scared. She asked him if he was “going to stick it in, ” and he said “yes.” Nataly backed away; she did not want to have sex with Carrera. She was scared, particularly because Carrera did not put on a condom. When she asked whether he was going to put on a condom, Carrera told her he could not have babies. Nataly then blacked out. (In the CAST interview, Nataly said that Carrera entered her, moved his penis back and forth, and ejaculated.) Nataly remembered “it being over, ” cleaning herself, and putting her clothes on.
Nataly did not consent to have sexual intercourse with Carrera. She did not resist his advances or fight back because, as she explained, “this had been going on since I was younger” and she “was pretty good at just going along with it.” She also was worried that Carrera would hurt her or her family if she resisted.
Nataly was upset and crying when her mother picked her up at 9:00 p.m. Nataly refused to say what was wrong.
IV. Nataly Reveals That Carrera Molested and Raped Her.
About one week earlier, Nataly had asked Carrera for some marijuana and something to help her lose weight. He gave her methamphetamine and taught her how to use it. The first day Nataly used methamphetamine she told her boyfriend, Kevin, that Carrera had molested her when she was a child. Nataly said she had never told that to anyone before and swore Kevin to secrecy for fear Carrera would harm her family.
On April 28, 2006, Nataly was caught at school with drugs. The police were called in and Nataly was sent home. She told the police she got the drugs from a customer at the pizza parlor. She refused to talk to her parents, so they enlisted the help of E.P.
Nataly did not want to talk to anybody when E.P. arrived at her house. He demanded an explanation and told her the family would find out the truth eventually because they intended to hire a private investigator. Nataly became scared and agreed to talk to E.P. in her room, out of her parents’ earshot.
When they were alone, Nataly began to shake and told E.P. she was being molested and she took the drugs to “get that off her mind.” She said Carrera gave her the drugs. E.P. asked Nataly who was molesting her, and she replied, “I can’t tell you because they’re going to kill me. They’re going to harm me.” She said the man who had sexually abused her told her he could “have somebody disappear or get killed” for $20. After E.P. assured Nataly she would be well protected, she told him Carrera had been molesting her. At that point, Nataly’s demeanor changed; she seemed relieved and told E.P. that Carrera had been molesting her since she was about five years old. After awhile, Nataly told E.P. that Carrera had recently abused her.
After they had spoken for about an hour, E.P. drove Nataly to the home of his cousin, who was an officer in the Los Angeles Police Department. Once Nataly had told her story to E.P.’s cousin, the three of them returned to the home of Nataly’s parents, where E.P. broke the news to them while his cousin summoned local law enforcement.
V. The Investigation
Orange County Sheriff’s Deputy Doris Rodriguez arrived at Nataly’s home at about 10:35 p.m. on April 28, 2006. Nataly told deputy Rodriguez that Carrera began molesting her when she was four or five years old, and that the molestation continued up to the time her family moved to Lake Elsinore. She told deputy Rodriguez that she had never told anyone what Carrera had done because he threatened to hurt her family.
Nataly told deputy Rodriguez that after her family moved back to Orange County, she accepted a job at the pizza parlor where Carrera worked because she assumed he had changed and would no longer molest her. Instead, Nataly explained, Carrera had molested her from her first day on the job, and nearly every day she worked. Nataly said the first day on the job, Carrera kissed her, putting his tongue into her mouth, and soon thereafter the molestation escalated to oral copulation and digital penetration.
Nataly then recounted what happened on the night of April 25. She told deputy Rodriguez that on that night, Carrera told her she would be working late, and, after sending everyone home early, locked the front door, put a large potted plant in front of it, and led her to the kitchen. There, Carrera spread a blanket and pillows on the floor, removed her clothes, pulled her legs apart with his hands, applied a lubricant to her genitals, and inserted his penis into her vagina. Nataly did not know if he ejaculated, and she felt wet afterwards. Nataly said she did not resist because she was scared of Carrera because he was bigger than she was, he had threatened her, and he “knew a lot of ‘bad people.’”
Investigator Tracy Morris of the Orange County Sheriff’s Department was assigned to the case a few days after Nataly reported the crimes. On May 3, 2006, she went to the pizza parlor where Carrera worked to interview him. He denied raping Nataly or having consensual sex with her, and claimed that Nataly “ha[d] a lot of problems.” He said he worked at the pizza parlor every day and could be contacted there or at his home, but he would not talk further with law enforcement without consulting an attorney.
Investigator Morris returned with a search warrant to the pizza parlor, where he found blankets and pillows in a closet. Carrera was not there. Over the next several weeks, investigator Morris searched for Carrera at his home and work at various times of the day, but never found him. Eventually, Carrera’s attorney contacted investigator Morris.
The clothes Nataly wore on April 25, 2006, were confiscated and tested for DNA. A forensic scientist compared Carrera’s DNA with a semen stain found on Nataly’s underwear and determined Carrera could not be excluded as a possible source. The semen stain had no sperm. A man who has had a vasectomy does not secrete sperm in his semen, and Carrera had had a vasectomy.
VI. Expert Testimony
Dr. Jody Ward, a psychologist, testified as an expert on child sexual abuse victims. Dr. Ward explained that sexual abuse typically is perpetrated by family and close family friends. A child who feels threatened is very unlikely to report abuse, and reporting is often delayed until a “crisis situation” compels it.
Dr. Ward also testified about a psychological phenomenon called child sexual abuse accommodation syndrome, which she described as a “pattern of behaviors that many children exhibit when they’ve been sexually abused.” The components include secrecy, helplessness, entrapment and accommodation, delayed and unconvincing disclosure, and recantation. Child sexual abuse accommodation syndrome cannot be used to determine whether sexual abuse has happened, but can be used to explain why children behave as they do in response to sexual abuse.
VII. The CAST Interview
On May 18, 2006, Nataly was interviewed by a member of CAST. A DVD of the interview was played for the jury, and the DVD and a transcript of it were received in evidence.
In the CAST interview, Nataly recounted how Carrera had molested her since she was four or five years old, with a brief cessation when she lived in Lake Elsinore. She explained the molestation resumed when she began working at the pizza parlor and that Carrera had threatened to harm her family if she told anyone.
Nataly recounted how on the night of April 25, 2006, Carrera told her he had made arrangements for her to work late. Nataly knew nothing of these arrangements, did not want to stay late, and did not feel well. Carrera told her he “wanted [her] to do something” that would only take a few minutes. He offered her money, but she insisted she wanted to leave.
That night, after all of the other employees had left, Carrera closed and locked the doors to the pizza parlor and led Nataly to the kitchen. He locked the back door, spread a blanket on the floor, and then “pushed [Nataly] down” and “h[e]ld [her] down.” Nataly asked, “what are you doing?” Carrera took off her pants and underwear. Nataly, who was “freaking out, ” asked, “are you going to put your penis in?” Carrera said, “yeah, ” then spread her legs open. Nataly asked if he was going to wear a condom and “are you clean.” Carrera replied, “yeah, I can’t have babies” and pushed his penis into her vagina.
After some time, Carrera withdrew, masturbated, and ejaculated. He made Nataly clean herself and washed out his mouth. Nataly’s mother arrived shortly thereafter and drove her home.
VIII. Carrera’s Testimony
Carrera testified in his own behalf. He denied molesting Nataly or touching her in a sexual manner in any way before the April 2006 incident. He denied that Nataly’s mother ever left her alone with him, denied ever being alone with her for any period of time, and denied ever taking Nataly anywhere by himself. Other than once taking Nataly to the Wild Rivers amusement park, he denied taking her to any amusement park without her parents. He also denied ever going to Nataly’s house before school, ever picking her up from school, or ever even having been asked to pick her up from school. He claimed the incident in which Nataly’s father confronted him after she was missing never happened.
Carrera testified he hired Nataly to work at the pizza parlor because his wife told him to do so as he was short staffed. He denied ever forcing himself on Nataly at work and insisted she made advances to him.
According to Carrera, he reproached Nataly in April for talking on the phone during business hours. She responded by asking him whether he “liked it when someone sucked his dick.” Carrera looked at her, laughed, and walked away. Nataly called back to him to let her know when he was ready.
Carrera testified he thought about Nataly’s proposition over the next two days and on Tuesday, April 25, told her he was ready. That evening, after sending all the employees home early, he told Nataly, “you know what, I’m ready.” She replied, “let’s do it.”
Carrera testified he arranged some pillows on the kitchen floor to cushion Nataly’s knees as she knelt in front of him to perform fellatio. They kissed briefly, then Nataly unzipped Carrera’s pants. After Nataly pulled Carrera’s penis out of his pants, both of them together pulled down Nataly’s pants and underwear. He asserted they did not intend to have sexual intercourse. He claimed his penis never entered her vagina, but inadvertently touched one side of it. He also claimed that Nataly did not masturbate him and he did not masturbate himself. He testified something came out of his penis, but it was “very little.” Midway through the encounter, Carrera told Nataly to stop because he had not closed the business or locked the doors and was afraid someone would catch them.
According to Carrera, Nataly asked, “are you going to leave me like this?” He sent her to the front of the pizza parlor and said nothing else to her after that.
Carrera denied telling Nataly not to tell anyone about their sexual encounter and denied any conversation with her about drugs. He admitted he lied to investigator Morris by denying having any sexual encounter with Nataly and claimed he lied because he did not want to be arrested in front of his wife.
Discussion
I.
Any Error in Giving Former CALCRIM No. 362 Was Harmless.
Carrera argues the trial court erred by instructing the jury with former CALCRIM No. 362 (“Consciousness of Guilt: False Statements”) because it singled out his statements for special scrutiny and allowed the jury to infer consciousness of guilt from his trial testimony. He argues the instruction impaired his right to testify under the Fifth and Fourteenth Amendments to the United States Constitution. We conclude any error in giving former CALCRIM No. 362 was harmless beyond a reasonable doubt under the facts and circumstances of this case.
The modified version of former CALCRIM No. 362 given to the jury in this case read: “If [the] defendant made a false or misleading statement relating to the charged crime, knowing the statement was false or intending to mislead, that conduct may show he was aware of his guilt of the crime and you may consider it in determining his guilt. [¶] If you conclude that the defendant made the statement, it is up to you to decide its meaning and importance. However, evidence that the defendant made such a statement cannot prove guilt by itself.”
CALJIC No. 2.03, the standard consciousness of guilt instruction in use before former CALCRIM No. 362, limited the jury’s consideration of the defendant’s false or misleading statements to those made before trial. CALJIC No. 2.03 provided: “If you find that before this trial [a] [the] defendant made a willfully false or deliberately misleading statement concerning the crime[s] for which [he] [she] is now being tried, you may consider that statement as a circumstance tending to prove a consciousness of guilt. However, that conduct is not sufficient by itself to prove guilt, and its weight and significance, if any, are for you to decide.” (Italics added.)
In People v. Beyah (2009) 170 Cal.App.4th 1241, 1248 1249 (Beyah), the court concluded the CALCRIM committee did not intend to permit an inference of consciousness of guilt based on the defendant’s trial testimony. The Beyah court explained: “It is also true that many of the cases that discuss the inference of consciousness of guilt arising from deliberately false statements involve statements made to officers at the time of the defendant’s arrest. [Citation.] Indeed, the Bench Notes accompanying CALCRIM No. 362 cite to these decisions. And although CALCRIM No. 362 omits the limiting language found in CALJIC No. 2.03, CALCRIM No. 362 expressly refers to a false or misleading statement made by defendant, not to false or misleading testimony. Further, the parties have not cited, nor have we found, any case in which a consciousness of guilt instruction was given based solely on a defendant’s trial testimony.” (Id. at p. 1248.)
In August 2009, the CALCRIM committee revised the first paragraph of former CALCRIM No. 362 to read: “If [the] defendant... made a false or misleading statement before this trial relating to the charged crime, knowing the statement was false or intending to mislead, that conduct may show (he/she) was aware of (his/her) guilt of the crime and you may consider it in determining (his/her) guilt.” (CALCRIM No. 362 (2009 rev.) (2009 2010 ed.), italics added.)
In Beyah, supra, 170 Cal.App.4th at pages 1248 1249, the court concluded former CALCRIM No. 362 was erroneous, but the defendant suffered no prejudice “because California law makes clear that a defendant’s false trial testimony may, in proper circumstances, be considered as evidence of consciousness of guilt.” The Beyah court explained: “As applied to this case, CALCRIM No. 362 did nothing more than state this principle, i.e., that if the jury concluded that defendant intentionally gave false or misleading testimony, it may infer that defendant is aware of his guilt and may consider that inference-along with other evidence-in determining defendant’s guilt. And although it might be said that the instruction singles out a defendant’s testimony as subject to heightened scrutiny compared to other witnesses, that is true only because the principle involved is uniquely applicable to the defendant. That is not, however, a legitimate ground for concluding that the instruction unconstitutionally burdened defendant’s choice to testify or resulted in any improper inference of guilt based on the jury’s evaluation of his testimony.” (Beyah, supra, 170 Cal.App.4th at p. 1250, fn. omitted.)
The Beyah court relied on two cases for its conclusion: People v. Showers (1968) 68 Cal.2d 639 and People v. Amador (1970) 8 Cal.App.3d 788. In People v. Showers, supra, 68 Cal.2d at page 643, the defendant was seen searching for something in an ivy patch where a balloon of heroin was found. At trial, the defendant testified he had been looking for money that someone else had told him was lost in the ivy. No money was ever found. (Ibid.) The California Supreme Court held there was substantial evidence of the defendant’s consciousness of guilt based in part on his trial testimony: “In the circumstances defendant’s explanation for his three visits to the ivy patch could be found by the trier of fact to be a fabrication. False statements regarding incriminating circumstances constitute evidence which may support an inference of consciousness of guilt.” (Ibid.)
In People v. Amador, supra, 8 Cal.App.3d at pages 789-790, the defendant gave a farfetched explanation at trial for why his palm print had been found in a house that had been burglarized. The Court of Appeal held the defendant’s false trial testimony could be considered as evidence of consciousness of guilt if the trier of fact could conclude the testimony was intentionally false. The court explained: “Analytically there may be a difference between false statements to the police during the investigatory stage of a prosecution and false testimony from the stand. It has, however, been recognized authoritatively that under proper circumstances each type of falsehood may be considered as part of the prosecution’s total case.... ‘“[W]here a material fact is established by evidence and it is shown that a defendant’s testimony as to that fact was willfully untrue, this circumstance not only furnishes a ground for disbelieving other testimony of this defendant [citations], but also tends to show consciousness of guilt or liability on his part and has probative force in connection with other evidence on the issue of such guilt or liability....” [¶] ‘It should be emphasized that no inference of consciousness of guilt can be drawn from the mere fact that the jury, in order to convict, must have disbelieved defendant’s [testimony]; only where the false statement or testimony is intentional rather than merely mistaken and where such statement or testimony suggests that the defendant has no true exculpatory explanation can it be considered as an admission of guilt. [Citations.]’” (Id. at pp. 791 792.)
Under this authority, former CALCRIM No. 362 is technically not erroneous as applied to trial testimony; instead, the instruction appears to have been incomplete by not explaining the circumstances in which the jury may find intentionally false or misleading trial testimony to be evidence of consciousness of guilt. But, for purposes of analysis, we will presume former CALCRIM No. 362 is erroneous. We agree with Beyah, however, and conclude instructing the jury with former CALCRIM No. 362 did not cause Carrera to suffer prejudice.
Carrera’s trial testimony was so contradicted by other evidence and so farfetched that a rational jury could conclude he intentionally gave false or misleading testimony, and therefrom infer he was aware of his guilt. Carrera testified that he was never alone with Nataly, that the only amusement park he ever her took her to was Wild Rivers, and that he never had a confrontation with her father on the morning when Nataly was missing. That testimony was flatly at odds with the testimony of Nataly and her parents, and Carrera’s wife testified that Carrera took Nataly to Disneyland.
Carrera’s explanation, described above, for his sexual encounter with Nataly on April 25 was patently incredible. He did not deny his semen was on Nataly’s underwear, and his explanation-that he inadvertently got a “little” on her-was implausible, particularly considering his insistence he did not intend to engage in sexual intercourse, Nataly did not masturbate him, and he did not masturbate himself.
In addition, Carrera testified he lied to investigator Morris, claiming he had no sexual encounter with Nataly on April 25, 2006. Thus, if the trial court had given a version of CALCRIM No. 362 that limited the consideration of the defendant’s false or misleading statements to those made before trial, the jury would have, beyond a reasonable doubt, inferred Carrera was conscious of his guilt.
We therefore conclude, it is “clear beyond a reasonable doubt that a rational jury would have found [Carrera] guilty absent the error” in giving former CALCRIM No. 362. (Neder v. United States (1999) 527 U.S. 1, 18.)
II.
The Evidence Was Sufficient to Establish Carrera Used Force in Raping Nataly.
Carrera argues the evidence was insufficient to support the conviction for forcible rape under Penal Code section 261, subdivision (a)(2) because there was no evidence he used “force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person of another.” We disagree.
Carrera was charged with, and found guilty of, forcible rape under Penal Code section 261, subdivision (a)(2), which states: “(a) Rape is an act of sexual intercourse accomplished with a person not the spouse of the perpetrator, under any of the following circumstances: [¶]... [¶] (2) Where it is accomplished against a person’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another.”
“The gravamen of the crime of forcible rape is a sexual penetration accomplished against the victim’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury. As reflected in the surveyed case law, in a forcible rape prosecution the jury determines whether the use of force served to overcome the will of the victim to thwart or resist the attack, not whether the use of such force physically facilitated sexual penetration or prevented the victim from physically resisting her attacker. The 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 victim’s will, can support a forcible rape conviction.” (People v. Griffin (2004) 33 Cal.4th 1015, 1027, first and third italics in original, second italics added.)
The evidence at trial was sufficient to support a finding that Carrera used force that served to overcome the will of Nataly to thwart or resist the attack. Nataly was only 15 years old when Carrera raped her; he was a grown man. During the CAST interview, Nataly said that Carrera pushed and held her down. When Nataly asked, “what are you doing, ” Carrera ignored her protestations, took off her pants and underwear, and spread her legs. Nataly was “freaking out.” The videotape of the CAST interview and a transcript of it were received in evidence.
At trial, Nataly testified she backed away to avoid Carrera, but blacked out, her will to resist having been overcome. Deputy Rodriguez testified that Nataly told her she did not resist Carrera because he was bigger than she was, he had threatened her, and he “knew a lot of ‘bad people.’”
The direct evidence of one witness is sufficient to prove any fact. (Evid. Code, § 411.) The CAST interview, the testimony of Nataly, and the testimony of deputy Rodriguez were sufficient to establish Carrera used force.
III.
The Trial Court Erred by Imposing a Consecutive Sentence on Count 1 Pursuant to Former Section 667.6(d), But Remand Is Unnecessary Because the Error Is Harmless.
Carrera argues the trial court erred by imposing a full, separate, and consecutive sentence on count 1 under former section 667.6(d). The Attorney General agrees but asserts remand is unnecessary because in the absence of error, the trial court would have exercised its discretion to impose a consecutive sentence on count 1. We agree with the Attorney General.
The trial court selected count 6 (continuous sexual abuse of a child under the age of 14) (Pen. Code, § 288.5, subd. (a)) as the principal term and sentenced Carrera to the upper term of 16 years on that count. The court sentenced Carrera to a concurrent term of two years on count 3 (committing a lewd act upon a child) and stayed execution of a two year sentence on count 2 (committing a lewd act upon a child) under Penal Code section 654. The court sentenced Carrera to a term of eight years on count 1 and, pursuant to former section 667.6(d), made that term run consecutively.
Current Penal Code section 667.6, subdivision (d) requires the court to impose a full, consecutive sentence for each violation of an offense set forth in section 667.6, subdivision (e) against the same victim on different occasions. Under former section 667.6(d), which was in effect when the offenses in this case were committed, continuous sexual abuse of a child (Pen. Code, § 288.5, subd. (a)) was not an enumerated offense for which a consecutive sentence was required. (See Historical and Statutory Notes, 49 West’s Ann. Pen. Code (2010 ed.) foll. § 667.6, p. 378.) After the offenses in this case were committed, continuous sexual abuse of a child was included as an offense requiring imposition of a full, separate, and consecutive sentence under Penal Code section 667.6, subdivision (d). (Pen. Code, § 667.6, subds. (d), (e).)
The mandatory consecutive sentencing scheme in former section 667.6(d) and current Penal Code section 667.6, subdivision (d) applies only when the defendant stands convicted of more than one offense identified in the statute. (People v. Jones (1988) 46 Cal.3d 585, 594, fn. 5.) Of the offenses of which Carrera was convicted, only one-forcible rape-was subject to former section 667.6(d), as it read when the offenses were committed. Accordingly, the trial court erred by imposing a mandatory consecutive term on count 1 pursuant to former section 667.6(d).
Section 667.6(c) granted the trial court discretion to impose a full consecutive sentence for a single violation of any of the offenses in Penal Code section 667.6, subdivision (e), one of which is, and was when the offenses were committed, forcible rape under Penal Code section 261, subdivision (a)(2). The Attorney General argues remand is unnecessary because it is clear the trial court would have run the term on count 1 consecutively pursuant to section 667.6(c) had it been aware it could not impose a full, separate, and consecutive term under former section 667.6(d).
Remand and resentencing are not required when “[i]t is not reasonably probable that a more favorable sentence would have been imposed in the absence of error.” (People v. Davis (1995) 10 Cal.4th 463, 552.) In this case, it is not reasonably probable the trial court would have imposed a concurrent sentence on count 1 if the court knew former section 667.6(d) was inapplicable. Indeed, we know the trial court would have exercised its discretion to impose a consecutive sentence on count 1 pursuant to section 667.6(c). At sentencing, the trial court remarked, “I also believe that full term consecutive sentencing is appropriate in this case whether it’s mandatory under [Penal Code section 667.6, ] sub[division] (d) or discretionary under sub[division] (c).”
The record fully supports imposition of a consecutive sentence on count 1. Criteria affecting the decision whether to impose a consecutive rather than a concurrent sentence include “[t]he crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior.” (Cal. Rules of Court, rule 4.425(a)(3).) Here, the crimes of forcible rape and continuous child abuse on a child under the age of 14 were committed several years apart and in different places. Nataly was between the ages of four and 12 to 13 when Carrera molested her in such places as his home and garage. This period of abuse ended for several years while Nataly and her family lived in Lake Elsinore. The molestation resumed when Nataly moved back to Orange County, and she was 15 years old when Carrera raped her on the kitchen floor of the pizza parlor.
Given these circumstances, “[i]t is inconceivable that the trial court would impose a different sentence if we were to remand for resentencing.” (People v. Champion (1995) 9 Cal.4th 879, 934, disapproved on another ground in People v. Combs (2004) 34 Cal.4th 821, 860.)
Disposition
The judgment is affirmed.
WE CONCUR: RYLAARSDAM, ACTING P. J., BEDSWORTH, J.