Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCD214628, Kerry Wells, Judge.
IRION, J.
A jury convicted Carlos Manuel Diaz of two counts of sodomy by use of force (Pen. Code, § 286, subd. (c)(2)); three counts of forcible oral copulation (§ 288a, subd. (c)(2)); two counts of sexual penetration by a foreign object with use of force (§ 289, subd. (a)(1)); one count of forcible rape (§ 261, subd. (a)(2)); one count of assault with intent to commit sexual penetration or oral copulation (§ 220, subd. (a)); one count of assault by means likely to produce great bodily injury (§ 245, subd. (a)(1)); one count of sexual battery by restraint (§ 243.4, subd. (a)); one count of false imprisonment by violence, menace, fraud or deceit (§§ 236, 237, subd. (a)); one count of battery (§ 242); and one count of resisting an officer (§ 148, subd. (a)(1)). In addition, with respect to the forcible sex crimes (i.e., the rape, oral copulation, forcible penetration and sodomy counts) the jury found true the allegations that in the commission of each offense Diaz personally used a dangerous or deadly weapon, to wit: a rock, thereby subjecting Diaz to an indeterminate term of 15 years to life for each of those counts. (Former § 667.61, subds. (b), (c), (e)(4).) The jury also made a true finding that Diaz was armed with deadly weapons, to wit: a knife and a rock during the assault with intent to commit sexual penetration or oral copulation. (§ 12022.3, subd. (b).)
Unless otherwise indicated, all further statutory references are to the Penal Code.
Throughout our discussion, our reference to section 667.61 is to the version in effect in 2008 during the instant offenses.
Determining that some of the indeterminate terms should be served concurrently, the trial court sentenced appellant to a total indeterminate term of 45 years to life in state prison, plus a total determinate term of four years eight months.
Diaz contends that (1) insufficient evidence supports the jury's finding that he personally used a rock as a deadly or dangerous weapon in the commission of the forcible sex crimes; and (2) the trial court prejudicially erred by incorrectly instructing the jury on personal use of a deadly or dangerous weapon in the commission of the forcible sex crimes. We conclude that Diaz's arguments lack merit, and accordingly we affirm the judgment.
I
FACTUAL AND PROCEDURAL BACKGROUND
Diaz encountered 15-year-old Christine for the first time in a store one evening and persuaded her to come to his apartment. After Christine and Diaz entered the apartment, Diaz tried to kiss Christine. Christine refused the kiss with the explanation that she had just met Diaz. When Christine tried to leave, Diaz told Christine she could not leave and blocked the front door. Christine thought that Diaz might let her leave if she kissed him, and thus she did so while trying to turn the door knob. Apparently realizing that Christine was trying to open the door, Diaz forcefully pushed her onto the couch. Christine ran to the kitchen and picked up a knife from the counter. Diaz followed her and picked up a butter knife and a fork. As Christine ran to the front door again, Diaz disarmed her and put both knives and the fork in his back pocket. Diaz then twice punched Christine in the eye and knocked her to the floor.
Christine screamed for help, and Diaz told her that if she did not shut up he would throw a rock that was sitting by the front door. Diaz then picked up the rock — which weighed two or three pounds and was the size of a fist — and threw the rock at Christine with full force from a distance of about 12 feet while she was on the ground. The rock hit Christine in the face, causing her pain. Christine testified that after the rock hit her face, she felt "weak, like I had no control over the situation."
Christine continued to scream, and Diaz put his hands around Christine's neck and choked her at length while she unsuccessfully struggled to escape. She felt excruciating pain from the choking and felt like she was going to die. With his hands still around her neck, but loosening his grip, Diaz asked Christine if she was going to listen to him now. Christine responded affirmatively, and Diaz led her into the bathroom where he took off her clothes and ordered her into the shower. Christine complied because she was afraid that Diaz would "either try to kill me again or choke me or hit me, or whatever." In the bathroom, Diaz anally penetrated Christine with his penis, then orally copulated her, inserted his finger in her vagina and forced her to orally copulate him.
After Christine exited the bathroom and got dressed, she and Diaz talked for a while and she then told him that she wanted to go to sleep. She saw that Diaz had a phone in the apartment, but she did not try to use it to call for help because Diaz would see her and would "hit me or choke me." While Christine was lying on the couch, Diaz raped her, inserted his fingers in her vagina and orally copulated her, ignoring her pleas for him to stop. Diaz then reclined next to Christine on the couch with his hands over her feet. As Christine felt that Diaz would notice if she tried to get up, she did not try to leave, and she fell asleep.
The next morning, Christine told Diaz that she needed to leave, but Diaz told her that she could not leave with her face looking injured. Diaz then told Christine that she could leave if she took a shower with him. In the shower, Diaz anally penetrated Christine with his penis. He then let her leave the apartment, covering her injured face with a hat.
When examined by doctors, Christine had two black eyes, a swollen and bruised face, cut lips, bruises on her arm and neck, red dots on her face due to strangulation, scratch marks on her chest and shoulders, multiple lacerations to her mouth, and anal injuries.
Diaz was arrested and charged with two counts of sodomy by use of force (§ 286, subd. (c)(2) – counts 1 & 8); three counts of forcible oral copulation (§ 288a, subd. (c)(2) – counts 2, 3 & 6); two counts of rape by a foreign object with use of force (§ 289, subd. (a)(1) – counts 4 & 7); one count of forcible rape (§ 261, subd. (a)(2) – count 5); one count of assault with intent to commit sexual penetration or oral copulation (§ 220, subd. (a) – count 9); one count of assault by means likely to produce great bodily injury (§ 245, subd. (a)(1) – count 10); one count of false imprisonment by violence, menace, fraud or deceit (§§ 236, 237, subd. (a) – count 12);one count of battery (§ 242 – count 13); and one count of resisting an officer (§ 148, subd. (a)(1) – count 14).
Diaz testified at trial, claiming that Christine consented to all of the sexual activity, that he did not threaten Christine or hold her against her will, and that he accidentally caused Christine's physical injuries.
The jury convicted Diaz on all counts. Further, as to counts 1 through 8, the jury found true the allegations that in the commission of each forcible sex crime offense Diaz personally used a dangerous or deadly weapon, to wit: a rock, in violation of sections 12022 and 12022.3, within the meaning of section 667.61, subdivisions (b), (c) and (e)(4). As to count 9, the jury found true the allegations that in the commission of the offense Diaz was armed with deadly weapons, to wit: both a knife and a rock, within the meaning of section 12022.3, subdivision (b).
As to counts 1 through 8, the jury found not true the allegations that in the commission of each offense Diaz was armed with a deadly weapon, to wit: a knife, within the meaning of section 12022.3, subdivision (b).
The trial court sentenced Diaz to a total indeterminate term of 45 years to life in state prison, plus a total determinate term of four years eight months in prison. As relevant here, the indeterminate term was based on the true findings that Diaz used a rock as a dangerous or deadly weapon in the commission of counts 1 through 8 pursuant to section 667.61, subdivisions (b), (c) and (e)(4), which subjects a defendant to an indeterminate term of 15 years to life for each offense. (§ 667.61, subd. (b).) Based on section 667.61, subdivision (i), the trial court ordered three of the eight counts subject to the 15-year indeterminate term to run consecutively, and the rest of them to run concurrently.
II
DISCUSSION
A. Substantial Evidence Supports the Finding That Diaz Used a Rock as a Dangerous or Deadly Weapon in the Commission of Counts 1 Through 8
Diaz argues that insufficient evidence supports the jury's true finding that he used a rock as a dangerous or deadly weapon during the commission of the rape, sodomy, oral copulation and forcible penetration counts charged in counts 1 through 8. (§ 667.61, subds. (b), (c), (e)(4).)
In considering a challenge to the sufficiency of the evidence, "we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence — that is, evidence that is reasonable, credible, and of solid value — from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.... We presume every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence.... If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding.... 'A reviewing court neither reweighs evidence nor reevaluates a witness's credibility.' " (People v. Albillar (2010) 51 Cal.4th 47, 60, citations omitted.) " 'We review the sufficiency of the evidence to support an enhancement using the same standard we apply to a conviction.' " (People v. Wilson (2008) 44 Cal.4th 758, 806 (Wilson).)
Under section 667.61, subdivisions (b), (c) and (e)(4), a defendant is subject to punishment of 15 years to life in prison when he is convicted of any of the sex crimes with which Diaz was charged in counts 1 through 8 — sodomy by use of force (§ 286, subd. (c)(2)); forcible oral copulation (§ 288a, subd. (c)(2)); sexual penetration by a foreign object with use of force (§ 289, subd. (a)(1)); and forcible rape (§ 261, subd. (a)(2)) — and there is a finding that "[t]he defendant personally used a dangerous or deadly weapon or a firearm in the commission of the present offense in violation of Section 12022, 12202.3...." (§ 667.61, subd. (e)(4), italics added.) In turn, section 12022, subdivision (b)(1) applies when a defendant "personally uses a deadly or dangerous weapon in the commission of a felony or attempted felony, " and section 12202.3, subdivision (a) applies when a defendant "uses a firearm or deadly weapon in the commission of " of certain sex crimes, including those charged against Diaz in counts 1 through 8.
Diaz does not take issue with the jury's implied finding that the large rock he threw at Christine was a dangerous or deadly weapon. Instead, he challenges the sufficiency of the evidence to support the findings that he "used" the rock "in the commission of " each of the sex crimes charged in counts 1 through 8 within the meaning of section 667.61, subdivision (e)(4). According to Diaz, insufficient evidence supports the findings that the rock was used in the commission of counts 1 through 8 because, based on Christine's testimony, "what made her submit to the various sex acts over that two-day period was not the rock or fear of it, but rather the fear of being choked to death by [Diaz]."
Here, each of the sex crimes at issue in counts 1 through 8 include the element that the defendant committed the crimes against the will of the victim "by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury" on the victim or another person. (§§ 286, subd. (c)(2), 288a, subd. (c)(2), 289, subd. (a)(1), 261, subd. (a)(2).) According to our Supreme Court's interpretation, a defendant may be found to have used a weapon in the commission of forcible sex crimes, such as those charged in counts 1 through 8, even if the weapon is displayed in a threatening manner only before the sex crimes take place. (People v. Masbruch (1996) 13 Cal.4th 1001, 1011-1012 (Masbruch).) The sole requirement is that the weapon must aid the defendant in completing an essential element of the crime. (Ibid.)
Thus, as in the case of the firearm brandished by the defendant in Masbruch to initially gain control over the victim but not during the subsequent sex crimes, all that is required is a finding that the defendant " 'utilized the [weapon] at least as an aid in completing an essential element of ' the crimes" in that "he accomplished these acts against [the victim's] will 'by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury' on the victim or another person." (Masbruch, supra, 13 Cal.4th at p. 1011.) As Masbruch explained, "In considering whether a gun use occurred, the jury may consider a 'video' of the entire encounter; it is not limited to a 'snapshot' of the moments immediately preceding a sex offense. Thus, a jury could reasonably conclude that although defendant's presence with the victims was sporadic, the control and fear created by his initial firearm display continued throughout the encounter." (Ibid.; see also Wilson, supra, 44 Cal.4th at pp. 807-808 [following Masbruch to hold that the entire " 'video' " of a lengthy criminal encounter was relevant to determine whether a firearm was used in the commission of rapes when the defendant earlier used a gun but did not have it in his possession during the rapes at issue].)
As we will explain, applying Masbruch's interpretation of the term "use[]... in the commission of " the crime (§§ 667.61, subds. (e)(4), 12022.3, subd, (a)) in the context of forcible sex crimes, we conclude that substantial evidence supports a finding that Diaz used a rock in the commission of counts 1 through 8 because a reasonable fact finder could find that the rock aided Diaz in committing the crimes "by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury." (§§ 286, subd. (c)(2), 288a, subd. (c)(2), 289, subd. (a)(1), 261, subd. (a)(2).)
It is "for the trier of fact to decide" whether Diaz used a rock in the commission of the sex crimes charged in counts 1 through 8. (Masbruch, supra, 13 Cal.4th at p. 1007 ["Whether a defendant 'used a firearm in the commission of ' an enumerated sex offense is for the trier of fact to decide."].) "The prosecution need not, however, elicit testimony from the victim that she feared or maintained an actual awareness of the [weapon] during the commission of each and every crime defendant committed after the initial weapon display." (Id. at p. 1012.) A jury may "reasonably infer" such a fact. (Ibid.) Here, the facts were sufficient for a jury to infer that Christine remained aware that Diaz could throw the rock at her again if she did not acquiesce to the sex acts. Diaz had used the rock against Christine when trying to subdue her, and the rock had hit Christine in the face and caused her pain. Diaz had demonstrated that he was violent and unpredictable, and the rock remained in the apartment during each of the sex acts, available for Diaz to use. Under those circumstances, the jury could reasonably infer from the evidence that Diaz's act of throwing the rock at Christine, along with the ongoing presence of the rock in the apartment, served to create duress, menace and fear during each of the forcible sex crimes.
Further, Christine's express testimony supports an inference that Diaz's act of throwing the rock contributed to Christine's decision to acquiesce to each of the subsequent sex acts. As Christine explained, when Diaz hit her with the rock, she felt "weak, like I had no control over the situation." Christine also testified that she complied with the first group of sex acts in the shower because she was afraid that Diaz would "either try to kill me again or choke me or hit me, or whatever, " and she did not try to escape from the apartment during the night because Diaz would "hit me or choke me." The jury could reasonably rely on these statements as evidence that Christine remained in continuous fear that Diaz would hit her again, using the rock.
Diaz focuses on a portion of Christine's testimony to argue that Diaz's use of the rock did not create duress, menace or fear during the sex crimes. Specifically, the following exchange occurred between defense counsel and Christine:
"[Defense counsel]: So he didn't use a rock or knife to force you to have sex with him. Would that be a fair statement? [¶]... [¶]
"[Christine]: Um, well, what do you mean? Well, he didn't have the rock or any of the weapons in any of, like, the sex acts. He didn't have them in his hands.
"[Defense counsel]: In fact, you told us the main fear you had that night was being hit or choked again."
"[Christine:] Um, well, my main fear was probably dying, being strangled to death.
"[Defense counsel:] Okay. But when you were specifically asked by the district attorney, you said you were afraid of being hit or choked again. Correct?
"[Christine:] Yeah. But now that I look back on it and overall, it was probably the fear of being strangled to death."
This testimony does not preclude a finding that Diaz's act of throwing the rock at Christine aided in establishing duress, menace or fear during each of the eight forcible sex crimes. Christine stated that her "main fear" was being strangled and that "overall" strangulation was what she was afraid of. (Italics added.) However, the fact that Christine was more focused on the threat to her life caused by strangulation does not diminish the fact that, according to her own testimony, she was also afraid of being hit again, and being hit by the rock caused her to feel weak and helpless. Under the circumstances, there was sufficient evidence for the jury to conclude that both the rock and the threat of strangulation aided Diaz in creating duress, menace or fear during each of the forcible sex crimes. Diaz may not escape the consequences of using a rock as a deadly or dangerous weapon during the crimes by virtue of the fact that he also strangled Christine, causing even greater fear than that caused by the rock. He is culpable for both acts, and his sentence may be enhanced accordingly.
B. Diaz's Claim of Instructional Error
Diaz's remaining argument is that the trial court prejudicially erred when instructing the jury with respect to personal use of a deadly weapon as applicable to counts 1 through 8. "The independent or de novo standard of review is applicable in assessing whether instructions correctly state the law...." (People v. Posey (2004) 32 Cal.4th 193, 218.)
The applicable form jury instruction for personal use of a deadly weapon within the meaning of section 667.61 is CALCRIM No. 3145. However, CALCRIM No. 3145 does not include language dealing with the situation where, as here, there is a dispute over whether the defendant used the weapon "in the commission of " the offense. The prosecutor therefore suggested language to the trial court to address that issue, and the trial court included it in its instruction on personal use of a deadly weapon.
The bench notes to CALCRIM No. 3145 state that "[i]f the case involves an issue of whether the defendant used the weapon 'during the commission of ' the offense, the court may give CALCRIM No. 3261, In Commission of Felony: Defined — Escape Rule." (Judicial Council of Cal., Crim. Jury Instns. (2011) Bench Notes to CALCRIM No. 3145, p. 902.) However, reference to CALCRIM No. 3261 is not useful in this case where the weapon was used before the commission of the offense, because CALCRIM No. 3261 describes how long a crime continues, and thus is more useful in a case where the weapon was used after the offense. (Cf. People v. Jones (2001) 25 Cal.4th 98, 100-101 (Jones) [threat with knife made after sex act was use of weapon in the commission of the offense].)
The additional language stated: "A person may be found to have used a deadly weapon during the commission of a crime whether it was used before, during, or after the alleged crime so long as it was used to threaten or maintain control of the alleged victim. The crime continues until the perpetrator is no longer in physical control of the person who was the target of the crime." (Italics in original.) Diaz did not object to the instruction at trial, but he contends on appeal that the instruction was legally erroneous because it did not reflect the law set forth in Masbruch, supra, 13 Cal.4th 1001.
The prosecutor apparently based the additional language in the instruction on certain statements in Jones, supra, 25 Cal.4th 98, which dealt with whether use of a deadly weapon after a sex act could constitute use of the weapon in the commission of the offense. In Jones our Supreme Court stated, "In the case of a weapons-use enhancement, such use may be deemed to occur 'in the commission of ' the offense if it occurred before, during, or after the technical completion of the felonious sex act. The operative question is whether the sex offense posed a greater threat of harm — i.e., was more culpable — because the defendant used a deadly weapon to threaten or maintain control over his victim." (Id. at pp. 109-110.) Although this statement generally incorporates the concepts discussed in Masbruch, supra, 13 Cal.4th 1001, the discussion in Masbruch more fully addresses the situation present here, i.e., the use of a weapon before a sex act takes place.
1. Diaz Has Not Forfeited His Appellate Challenge to the Instruction
As a preliminary matter, we consider whether Diaz's lack of objection to the instruction in the trial court forecloses him from bringing an appellate challenge to the instruction on the ground that it was legally erroneous and violated his right to require the prosecution to prove, and the jury to find, every element of the enhancement beyond a reasonable doubt.
Although " '[g]enerally, a party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language..., ' " that rule "does not apply when... the trial court gives an instruction that is an incorrect statement of the law" in a criminal trial and thus violates the defendant's constitutional right to due process. (People v. Hudson (2006) 38 Cal.4th 1002, 1011-1012; see also People v. Smithey (1999) 20 Cal.4th 936, 976, fn. 7 ["Defendant's claim... is that the instruction is not 'correct in law, ' and that it violated his right to due process of law; the claim therefore is not of the type that must be preserved by objection."]; § 1259 ["The appellate court may... review any instruction given, refused or modified, even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby."].) Here, Diaz's appellate challenge is based on the contention that the instruction incorrectly stated the applicable law and violated his constitutional right to due process and right to a jury trial. Thus, he may raise the argument for the first time on appeal.
2. The Trial Court Did Not Prejudicially Err in Giving the Challenged Jury Instruction
For the purposes of our discussion, the relevant portions of the instruction on personal use of a deadly weapon, as given by the trial court in this case, are as follows:
"If you find the defendant guilty of the crimes charged in Counts 1, 2, 3, 4, 5, 6, 7, and 8, you must then decide whether, for each crime, the People have proved the additional allegation that the defendant personally used a deadly or dangerous weapon during the commission of that crime. You must decide whether the People have proved this allegation for each crime and return a separate finding for each crime. [¶]... [¶]
"Someone personally uses a deadly or dangerous weapon if he or she intentionally does either or the following:
"1. Displays the weapon in a menacing manner;
"OR
"2. Hits someone with the weapon.
"A person may be found to have used a deadly weapon during the commission of a crime whether it was used before, during, or after the alleged crime so long as it was used to threaten or maintain control of the alleged victim. The crime continues until the perpetrator is no longer in physical control of the person who was the target of the crime."
As we have explained, Diaz contends that the final paragraph set forth above was legally flawed because it did not reflect the law set forth in Masbruch, supra, 13 Cal.4th 1001, and thus violated his constitutional rights to due process and a jury trial, which entitle him to have the government prove, and the jury find, the facts establishing the elements of the enhancement beyond a reasonable doubt. (See People v. Sengpadychith (2001) 26 Cal.4th 316, 320, 324-326 (Sengpadychith) [violation of right to due process and jury trial for failure to properly instruct jury on elements of sentence enhancement].)
According to Diaz, "Masbruch makes clear... that use or display of [a] weapon may only occur before the crime if the weapon was initially used in a manner that created continuing fear and control, " but "the court's instruction omitted the concept of using the weapon initially in a manner that created 'continuing' fear and control." Diaz argues that because the instruction requires only that the weapon " 'was used to threaten or maintain control, ' " with no clarification that the control and fear must exist during the subsequent sex crime, the jury was improperly instructed that "if the rock was ever used to create a threat" (italics added), then the rock was used in the commission of counts 1 through 8. As Diaz reads the instruction, "all that the prosecution had to prove was that [Diaz] once used the rock to threaten, " and "[i]f [Diaz] did, then the jury could convict for using the rock during each of the subsequent sex crimes."
If indeed the instruction expressed the rule that Diaz reads into it, it would be erroneous. Masbruch makes clear that it is not enough that the weapon be used to threaten the victim at some point during the interaction between the defendant and the victim. As Masbruch explains, when a weapon is brandished or used before a forcible sex crime occurs, a jury may find that the weapon was used in the commission of the subsequent sex crimes if "the fear... instilled" by the weapon "continued throughout the encounter and aided defendant in completing an essential element of the [subsequent] crimes" in that it established force, violence, duress, menace or fear during the sex crimes. (Masbruch, supra, 13 Cal.4th at p. 1011.) Thus, a weapon is not used in the commission of a forcible sex crime if all the threat and fear caused by that weapon has dissipated by the time of the specific sex crime at issue, and the weapon thus does not aid in establishing the element of force, violence, duress, menace or fear with respect to that crime.
Such a case may arise, for instance, if the victim learns before the defendant commits a sex act that the weapon he initially brandished is in fact harmless and the defendant has no other means to threaten the victim. In that case, the initial weapon use would not be capable of causing duress, menace or fear during the subsequent sex act.
" ' "In determining whether error has been committed in giving or not giving jury instructions, we must consider the instructions as a whole... [and] assume that the jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given." ' " (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.) " '[T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction.' " (People v. Harrison (2005) 35 Cal.4th 208, 252.) " 'Instructions should be interpreted, if possible, so as to support the judgment rather than defeat it if they are reasonably susceptible to such interpretation.' " (Ramos, at p. 1088.)
Considering the jury instruction on personal use of a deadly weapon as a whole, we do not read it, as Diaz does, to convey a rule contrary to that set forth in Masbruch. Although the better practice would have been for the trial court to have added the words "during the crime" at the end of the challenged instruction, stating that the weapon must be "used to threaten or maintain control of the alleged victim during the crime, " we conclude that the same concept was necessarily conveyed to the jury because of statements made in other portions of the instruction. At the beginning of the instruction, jurors were told that they "must then decide whether, for each crime, the People have proved the additional allegation that the defendant personally used a deadly or dangerous weapon during the commission of that crime." (Italics added.) They were further told that they must "decide whether the People have proved this allegation for each crime." (Italics added.) When the instructional language that Diaz challenges is read together with these statements, it is clear that the weapon must be used to threaten or maintain control during the specific crime at issue in the count before the jury, and the instruction is thus in harmony with the rule set forth in Masbruch.
Further, even were we to accept Diaz's argument and conclude that the instruction improperly allowed the jury to find use of the rock in the commission of counts 1 through 8 regardless of whether Diaz's use of rock served to threaten or maintain control of Christine during the those crimes, we would conclude that Diaz has not established prejudice.
When an erroneous jury instruction concerns a sentence enhancement that increases the penalty for a crime, we apply the harmless error standard for constitutional errors set forth in Chapman v. California (1967) 386 U.S. 18. (Sengpadychith, supra, 26 Cal.4th at p. 326.) Under that standard, an error is prejudicial unless we conclude beyond a reasonable doubt that the error did not contribute to the jury's verdict. (Chapman, at p. 24.)
Here, in light of the evidence that Diaz used a rock to hit Christine, which made her feel weak and helpless, and Christine's testimony that she acquiesced to the sex acts and did not try to escape because she continued to fear that Diaz would hit her, we conclude that regardless of the error in the instructions, any reasonably jury would necessarily have concluded that Diaz's use of the rock served to create duress, menace and fear during the commission of counts 1 through 8, not just at an earlier time. Therefore, any instructional error was harmless beyond a reasonable doubt.
DISPOSITION
The judgment is affirmed.
WE CONCUR: BENKE, Acting P. J., O'ROURKE, J.