Opinion
E032612.
10-24-2003
THE PEOPLE, Plaintiff and Respondent, v. EMILIANO PONCE, Defendant and Appellant.
Steven Schorr, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Gil P. Gonzalez, Supervising Deputy Attorney General, and Tami Falkenstein Hennick, Deputy Attorney General, for Plaintiff and Respondent.
Defendant Emiliano Ponce committed extended, predatory sexual assaults on two separate victims, 10 days apart.
With respect to the first victim, he was convicted of kidnapping for the purpose of rape (Pen. Code, § 209, subd. (b)), two counts of rape (Pen. Code, § 261, subd. (a)), and one count of sexual penetration by a foreign object (Pen. Code, § 289, subd. (a)). On the kidnapping, a deadly weapon use enhancement was found true. (Pen. Code, § 12022, subd. (b)(1).) On each of the sexual offenses, deadly weapon use enhancements (Pen. Code, § 12022.3, subd. (a)) and "one-strike law" allegations (Pen. Code, § 667.61) were found true.
With respect to the second victim, he was acquitted of kidnapping for the purpose of rape. (Pen. Code, § 209, subd. (b).) However, he was convicted of two counts of rape (Pen. Code, § 261, subd. (a)), two counts of unlawful oral copulation (Pen. Code, § 288a, subd. (c)), one count of unlawful sodomy (Pen. Code, § 286, subd. (c)) and one count of sexual penetration by foreign object (Pen. Code, § 289, subd. (a)). On each of the sexual offenses, except sexual penetration by foreign object, deadly weapon use enhancements (Pen. Code, § 12022.3, subd. (a)) and one-strike law allegations (Pen. Code, § 667.61) were found true.
Defendant was sentenced to 176 years to life in prison.
In this appeal, defendant contends there was insufficient evidence that he committed more than one rape of the second victim. We disagree. Defendant also contends that, in instructing on unlawful oral copulation and unlawful sodomy, the trial court erroneously failed to instruct that, in order to find defendant guilty based on threats of future retaliation (as opposed to present force or fear), the jury had to find a reasonable possibility that he would execute the threats. We agree; we conclude, however, that the error was harmless beyond a reasonable doubt. Hence, we will affirm.
I
FACTUAL BACKGROUND
A. Sexual Assault on Jane Doe 2 on August 8, 1999 (Counts 8 Through 11).
Defendant does not challenge his convictions on counts 8 through 11, arising out of his sexual assault on Jane Doe 2. Accordingly, we discuss the facts underlying these counts only briefly.
On August 8, 1999, Jane Doe 2 was selling corn from a cart in Highland. Defendant, wielding a yellow screwdriver, forced her into his car. He used some wires below the steering wheel to start it. He drove her to an isolated orange grove, where, while still holding the screwdriver, he raped her twice, sodomized her twice, forced her to orally copulate him and digitally penetrated her.
B. Sexual Assault on Jane Doe 1 on August 18, 1999 (Counts 1 Through 7).
Jane Doe 1 lived with her sister and her brother-in-law, Susana and Enrique T. On August 18, 1999, about 1:30 p.m., she was waiting at a bus stop. Defendant pulled up. She testified that his car was "white and small." He said he was looking for someone to babysit his nephews for about two hours. She said she knew someone who could take care of them; she was thinking of a neighbor of hers. He asked her to take him to where the prospective babysitter lived. She got in his car and they went back to her sisters apartment.
Susana and Enrique came to the door. Jane Doe 1 asked if they had seen the neighbor. They said she was out. Defendant then asked Jane Doe 1 if she would babysit instead. He offered her $80 for two hours work. She agreed.
According to Enrique, the man who was with Jane Doe 1 was driving a compact car. He wrote down the license number. He told police the car was red. At trial, however, he testified that the front of the car was a different color from the back and one of the colors was light blue. About a week after the crimes, he identified defendant in a photographic lineup; however, he was unable to identify defendant at trial. Susana was never able to make an identification.
Defendant drove Jane Doe 1 away in his car. She noticed that "[t]he car had to be started with wires . . . ." There was a childs blanket in the back seat. Jane Doe 1 testified that defendant said his name was Emilio or Emiliano.
After stopping at various locations, supposedly to look for his sister and to do errands, defendant suggested that Jane Doe 1 do some filing work for his boss instead. He drove to a lake. He told Jane Doe 1 to get out of the car. When she refused, his demeanor changed. He started yelling at her, then forced her out of the car.
Defendant got the blanket from the car, spread it out on the ground, and forced Jane Doe 1 to lie down on it. He took off her pants and her blouse, but not her underwear. She kept hitting and scratching him and telling him to leave her alone. At one point, she threw dirt in his eyes. He digitally penetrated her. He then took off his clothes and her underwear. He tried to have sex with her, but he was unable to put his penis in her vagina. He forced her to orally copulate him. Around this time, she saw that he was holding a yellow screwdriver. He threatened her with it by putting it on her stomach.
Defendant tried once again to put his penis in her vagina, but he could not. Meanwhile, he had put the screwdriver down. She "grabbed" it and "stabbed him with it," striking him "[t]o one side of his eye." He grabbed it back and threatened to "do the same to [her]." They wrestled. He tried to put his penis in her vagina yet again, but could not.
Defendant went to the lake and "washed his private part." When he returned, he told Jane Doe 1 to go back to the car. She put her panties on, but he told her not to put on her pants. She got into the passenger seat. He put the seat back, got on top of her and forced his penis into her vagina. He was not holding the screwdriver, but he told her "if she did not cooperate, he would kill her . . . ." He got off her, turned her over, and sodomized her. After he stopped, he said "[t]hat he wasnt going to do anything to [her] but for [her] not to say anything." Nevertheless, he forced her to orally copulate him again.
He told her they were leaving and let her get dressed. Dawn was just breaking; they had been there all night. As they drove away, the car got stuck in some water. They both got out to push it; Jane Doe 1 got wet up to the knees. Defendant drove back toward the road, then stopped. He got on top of her and tried to have sex with her again, but could not, because she had her clothes on. Instead, he forced her to orally copulate him a third time.
Jane Doe 1 told him "[she] wasnt going to do it anymore." He replied that "he was going to leave [her] at the bus, that he wasnt going to do anything, but that [she] shouldnt say anything." He also said that "[i]f something came up, he had friends that could do something to [her] family." She told him "[she] wasnt going to say anything." Defendant dropped her a couple of blocks from her home. Once again, he threatened to do something to her family if she said anything.
Jane Doe 1 arrived home around 5:00 or 6:00 a.m. She was crying and saying she wanted to die. Her pants were wet from the knees down. The police were called. She was taken to a hospital, where Mirella Del Degan, a sexual assault nurse examiner, examined her.
Nurse Del Degan found that Jane Doe 1 had recent bruises on her left hand, left arm, and back. She also had recent scratches on her left chest, shoulder, and back and on her nose. Pinpoint hemorrhages on her soft palate were consistent with forcible oral copulation. She had two recent scratches on her labia minora and a recent bruise on her hymen. These injuries were consistent with forcible sexual intercourse. She had a rectal tear, along with a rectal abrasion and bruising, injuries consistent with forcible sodomy. Jane Doe 1 told Nurse Del Degan that her attacker had identified himself as Jorge.
On August 23, 1999, the police stopped defendants car. He was driving a Hyundai Excel. The license number was the one Enrique had written down. The hood was white; the rest of it was a gray "primer color . . . ." The ignition had been punched out. There were wires hanging out from under the dashboard that could be used to "hotwire" the car. Inside the car, the police found a childs blanket and several screwdrivers. At trial, Enrique identified defendants Hyundai as the car in which Jane Doe 1 had left.
When defendant was arrested, he had an abrasion over his right eye, as well as various scratches on his shoulder, arms, and chest. A nurse who performed a sexual assault examination on him, however, did not note any injury to his face. Jane Doe 1 identified defendant in a photographic lineup, in a live lineup, and at the preliminary hearing. At trial, initially, she could not identify him; after a break, however, she testified that he had turned to look at her, and she had recognized him.
Jane Doe 1s fingerprints, as well as defendants, were found on the Hyundai. Semen was found on the passenger seat. Jane Doe 1 identified the blanket, and semen was found on it. The semen on the car seat matched defendants DNA; it would have matched one in 59 Hispanics, one in 50 Caucasians, and one in 1,000 African-Americans. The semen on the blanket matched defendants DNA; it would have matched one in 1,000 Hispanics, one in 1,200 Caucasians, and one in 87,000 African-Americans.
Blood on Jane Doe 1s blouse and bra matched defendants DNA; it would have matched one in 440,000 Hispanics, one in 2,800,000 Caucasians, and one in 12,000,000 African-Americans.
When the police first interviewed Jane Doe 1, she said her attacker told her his name was George Emilio or George Emiliano. She also told them he had a mole over his lip and he was circumcised. Defendant was not circumcised and apparently had no mole.
Defendant testified on his own behalf. He denied ever having seen Jane Doe 1 or Jane Doe 2. He admitted owning the Hyundai. He testified, however, that one day in August 1999, he had lent it to a friend named Pablo Nu&ntil;ez, at 9:00 a.m. Nu&ntil;ez had returned it the next day, around 10:00 a.m. Defendant testified that he and Nu&ntil;ez looked similar, except that Nu&ntil;ezs hair was wavy and longer than defendants.
About two months before the crimes, defendant and his fiancée had had sex on the childs blanket. They had just moved into a new apartment; they were going to buy a new bed, but meanwhile they were sleeping on a stack of blankets on the floor. About a month before the crimes, defendant and his fiancée had had sex in the car after a day at the beach.
Defendant testified that the scratches found on him at his arrest had been inflicted by his fiancée during an argument. He did not recall having any injury near his eye.
II
THE SUFFICIENCY OF THE EVIDENCE
TO SUPPORT TWO COUNTS OF RAPE
Defendant contends there was insufficient evidence that he committed more than one rape of Jane Doe 1.
A. Additional Factual and Procedural Background.
1. Jane Doe 1s Testimony.
Jane Doe 1 testified that defendant put his penis in her vagina only once, while in the car. She also testified to a number of unsuccessful attempts to put his penis in her vagina. Specifically, she testified:
a. First Attempt on Blanket.
"Q Then what did he do?
"A He was on top of me.
"Q Did he try to have sex with you?
"A Yes.
"Q Was he able to put his penis into your vagina?
"A No. [¶] . . . [¶]
"Q . . . Did the defendant have sex with you there?
"A No.
"Q What happened?
"A He couldnt."
b. Second Attempt on Blanket.
"Q Did he try to have sex with you again?
"A Yes. [¶] . . . [¶]
"Q What did he do to you to try and have sex with you again?
"A He forced me again. He was on top of me again.
"Q Did he try to put his penis into your vagina?
"A Yes.
"Q Was he able to do that?
"A No.
"Q What happened?
"A He couldnt."
c. Third (and Possibly Fourth) Attempt on Blanket.
"Q Did he try to have sex with you again?
"A Yes.
"Q Was he able to?
"A No.
"Q Did he ask you to touch him?
"A Yes.
"Q Where did he ask you to touch him?
"A His parts.
"Q Did he ask you to do anything with his parts?
"A Yes.
"Q What?
"A To put his part inside my part.
"Q Did he make you do that?
"A Yes.
"Q Did he have sex with you then?
"A He couldnt.
"Q Were you able to put his penis into your vagina?
"A No. [¶] . . . [¶]
"Q Was he able to get his penis into you at any point, into your vagina?
"A Yes.
"Q When did that happen?
"A After he asked that we go back to the car.
"Q While you were out on the blanket, was he able to?
"A No. [¶] . . . [¶]
"Q Do you remember how many times on the blanket he tried to have sex with you?
"A No."
d. Attempt in Car.
"Q What happened there?
"A He tried to have sex with me again.
"Q What did he do?
"A I didnt allow it.
"Q What did he try to do to you?
"A Get on top of me.
"Q Did he . . . try to put himself in your vagina?
"A Yes.
"Q Why wasnt he able to?
"A Because I had my clothes on."
2. Testimony of Nurse Del Degan.
Nurse Del Degan testified: "I asked [Jane Doe 1] if he — the suspect had put his penis in her vagina. She said yes, several times." She found scratches on Jane Doe 1s labia minora and a bruise on her hymen. She also noted some dirt in Jane Doe 1s "vaginal area."
B. Analysis.
Rape requires "an act of sexual intercourse . . . ." (Pen. Code, § 261, subd. (a).) "Any sexual penetration, however slight, is sufficient to complete the crime." (Pen. Code, § 263.) "[I]n order to constitute the crime of rape vaginal penetration is not necessary; any penetration of the female genitalia by the penis, however slight, is sufficient." (People v. Karsai (1982) 131 Cal.App.3d 224, 231, disapproved on other grounds in People v. Jones (1988) 46 Cal.3d 585, 600, fn. 8.)
Jane Doe 1s testimony, by itself, failed to establish more than one penetration. Even though penetration of the external genitalia would have been legally sufficient, the prosecutors questions — and hence Jane Doe 1s answers — were all in terms of whether defendant managed to get his penis into her vagina. Except for the one rape in the car, she said he did not. She did testify that he repeatedly "tr[ied]" to have sex with her; however, she never explained how he tried. At times, she seemed to equate "tr[ying] to have sex" with "[g]et[ting] on top of [her]." In one instance, she testified that he tried to have sex with her, but could not because she had her clothes on. Accordingly, by "try[ing] to have sex," she did not necessarily mean inserting a penis beyond the external female genitalia. Any conclusion that defendant actually advanced his penis into the forbidden zone would be pure speculation.
Nurse Del Degans testimony, however, was sufficient to establish more than one penetration. She testified that Jane Doe 1 told her that defendant "had put his penis in her vagina . . . several times." In addition, she found dirt in Jane Doe 1s "vaginal area."
Defendant argues that this did not constitute substantial evidence because Jane Doe 1 herself denied at trial that a second penetration took place. We disagree. "[U]ncertainties or discrepancies in witnesses testimony raise only evidentiary issues that are for the jury to resolve. [Citation.]" (People v. Watts (1999) 76 Cal.App.4th 1250, 1259.) "The trier of fact may believe and accept a portion of the testimony of a witness and disbelieve the remainder. On appeal that portion which supports the judgment must be accepted, not that portion which would defeat, or tend to defeat, the judgment. [Citations.]" (People v. Thomas (1951) 103 Cal.App.2d 669, 672.)
"[P]rior inconsistent statements are admissible to prove their substance as well as to impeach the declarant. [Citation.]" (People v. Hawthorne (1992) 4 Cal.4th 43, 55, fn. 4; see also Evid. Code, § 1235.) For example, in People v. Brown (1984) 150 Cal.App.3d 968, a number of witnesses saw two men carry a stolen generator into a witnesss home. Initially, she told police she knew nothing about it. (Id . at p. 970.) After a fight with her husband, however, she told them she had seen her husband and the defendant carrying it. (Id. at p. 971.) At the preliminary hearing and at trial, she testified that she never saw the generator and that her second statement to the police had been a lie. (Id . at pp. 971-972.) The appellate court held that a witnesss prior statement can be sufficient to support a conviction, even when the witness repudiates it at trial. (Id. at pp. 972-973; see also id. at p. 969.) It noted that the witnesss incriminating statement had "indicia of trustworthiness": She had no motive to falsely incriminate the defendant; she had voluntarily cleared defendant of stealing a certain radio; she was able to describe the generator accurately; and her statement as to when and how the generator had been brought into her home had been corroborated. (Id. at p. 973.)
Here, similarly, a jury could rationally believe Jane Doe 1s statement to Nurse Del Degan and disbelieve her trial testimony on this point. When she made the statement, the attack was fresh in her mind. She gave her trial testimony, by contrast, almost three years later. She admitted that she did not remember how many times defendant "tried to have sex with [her]." It would be only natural for her to block out, or be reluctant to testify to, yet another rape. Moreover, Jane Doe 1 may have meant that, during the rape in the car, defendants penis came out of her vagina, and he chose to reinsert it. If so, each reinsertion could properly constitute a separate rape. (People v. Brown (1994) 28 Cal.App.4th 591, 601.)
Defendant therefore argues that Nurse Del Degans testimony was unreliable. She also testified: "I asked her if he put his penis in her rectum. She said yes, several times. I asked her about any oral copulation, and she said that he had made her orally copulate him. And I believe that he had also orally copulated her." (Italics added.) Defendant claims this was inconsistent with Jane Doe 1s trial testimony. Even if so, the jury, once again, could reasonably believe Jane Doe 1s statement to Nurse Del Degan and disbelieve her trial testimony. As with the rapes, she may have suppressed a second instance of sodomy; alternatively, she may have been referring to reinsertions. She was never actually asked whether defendant orally copulated her.
The finding of dirt in Jane Doe 1s vaginal area tended to confirm that there was more than one rape. Before moving from the blanket to the car, defendant washed his penis in the lake. Thus, it was fairly inferable that the dirt did not come from the rape in the car; and, if so, that one of the attempted rapes on the blanket actually succeeded, at least to the extent that defendants penis entered Jane Doe 1s "vaginal area."
We conclude that there was sufficient evidence to support defendants convictions on two counts of raping Jane Doe 1.
III
JURY INSTRUCTIONS ON
UNLAWFUL ORAL COPULATION AND UNLAWFUL SODOMY
Defendant contends the trial court erroneously failed to instruct on one of the elements of unlawful oral copulation and unlawful sodomy, when committed by means of threats of future retaliation.
A. Legal Background.
Oral copulation and sodomy are crimes only under certain circumstances. One is "when the act is accomplished against the victims will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person" (present force or fear). (Pen. Code, §§ 286, subd. (c)(2) [sodomy], 288a, subd. (c)(2) [oral copulation].) Another is when "the act is accomplished against the victims will by threatening to retaliate in the future against the victim or any other person, and there is a reasonable possibility that the perpetrator will execute the threat" (future threats). (Pen. Code, §§ 286, subd. (c)(3) [sodomy], 288a, subd. (c)(3) [oral copulation].) "Threatening to retaliate" is defined as making "a threat to kidnap or falsely imprison" or to "inflict extreme pain, serious bodily injury, or death." (Pen. Code, §§ 286, subd. (l) [sodomy], 288a, subd. (l) [oral copulation].)
B. Additional Factual and Procedural Background.
At an instructions conference, in discussing the unlawful oral copulation instruction, defense counsel asked the trial court to delete the portions dealing with future threats. The prosecutor disagreed; she argued: "[T]here were threats made to future harm." The trial court ruled that it would instruct on future threats. It therefore left in the portion of the instruction which stated that oral copulation was a crime when committed "by threatening to retaliate in the future against the victim or any other person, and theres a reasonable probability that the perpetrator will carry out the threat . . . ." However, it deleted another portion of the instruction which listed "a reasonable possibility that the perpetrator will execute the threat" as an element of the crime (apparently under the mistaken impression that this was a separate alternative theory rather than an element of the future threats theory).
Immediately afterward, in discussing the unlawful sodomy instruction, defense counsel reiterated his request to delete the portions dealing with future threats. He argued that defendants threats to harm Jane Doe 1s family were "more along the lines of dissuading a witness as opposed to the means whereby he overcame her will. . . . To me, the overcoming of the will was done by actual present — clear and present type of threats of using a weapon and then holding her down, things of that sort." The prosecutor responded that the instructions should be consistent. The trial court once again ruled that it would instruct on future threats. This time, however, it deleted both portions of the instruction that required "a reasonable probability that the perpetrator will carry out the threat."
Accordingly, concerning unlawful oral copulation, the trial court instructed:
"Every person who participates in an act of oral copulation 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 any other person, or by threatening to retaliate in the future against the victim or any other person, and theres a reasonable probability that the perpetrator will carry out the threat, is guilty of the crime of unlawful oral copulation, a violation of [s]ection 288(c) [sic] subdivision (c) . . . (2). [¶] . . . [¶]
"In order to prove this crime, each of the following elements must be proved: One, a person participated in an act of oral copulation with an alleged victim; and two, the act was accomplished against the alleged victims will by means of force, violence, duress, menace, or fear of immediate and unlawful injury on the alleged victim or any other person, or the act was accomplished against the alleged victims will by threatening to retaliate in the future against the alleged victim or any other person." (CALJIC No. 10.10 (6th ed.) (1999 rev.), italics added.)
Concerning unlawful sodomy, it instructed:
"Every person who participates in any act of sodomy when the act is accomplished against the victims will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the alleged victim or another person or by threatening to retaliate in the future against the alleged victim or any other person is guilty of the crime of unlawful sodomy in violation of [s]ection 286[,] subdivision (c) . . . (2) of the Penal Code. [¶] . . . [¶]
"In order to prove this crime each of the following elements must be proved: One, a person participated in an act of sodomy with an alleged victim; and two, the act was accomplished against the alleged victims will by means of force, violence, duress, menace, or fear of immediate and unlawful injury to the alleged victim or any other person, or the act was accomplished against the alleged victims will by threatening to retaliate in the future against the alleged victim or any other person." (CALJIC No. 10.20 (6th ed.) (1999 rev.), italics added.)
C. Analysis.
The instructions on the future threats theory omitted one element of this theory of the crimes. The People argue that the trial court was not required to instruct on future threats at all, because there was no evidence that defendant accomplished either oral copulation or sodomy by future threats rather than by present force or fear. We agree that such evidence was lacking. We do not agree, however, that there was no error.
All the threats defendant made before and during the sexual acts were threats of immediate harm to Jane Doe 1. For example, after his first failed attempt at intercourse, he told her to hold his penis, saying that "if [she] did it, he wouldnt do anything to [her]." Next, after she "stabbed" defendant with the screwdriver, he threatened to "do the same to [her]." Once they got back in the car, defendant examined his injury and told Jane Doe 1 again that "he was going to do the same thing to [her]." Finally, while raping her in the car, he said "he was going to kill [her]." Jane Doe 1 told police defendant had said, "Just do what I say and I wont kill you." Defendants display of the screwdriver constituted an implied threat, but it, too, was a threat of immediate harm, not future retaliation.
Defendant threatened future retaliation only after the sexual acts were over. He told Jane Doe 1 that "he was going to leave [her] at the bus, that he wasnt going to do anything, but that [she] shouldnt say anything." He also said that "[i]f something came up, he had friends that could do something to [her] family." Finally, he told her "he would do something to" her family "if [she] said something." Jane Doe 1 told Nurse Del Degan that he told her that "if she told anyone, . . . he would find her and kill her." Precisely because the sexual acts were over, these threats were not aimed at accomplishing those acts, but at avoiding discovery.
Hence, the trial court could have refused to instruct on future threats. As defendant points out, however, it did not simply fail to instruct on this theory; quite the contrary, it did instruct on it, but did so erroneously. Moreover, it is error in itself to give an instruction — even a legally accurate instruction — that has no application to the facts. (People v. Eggers (1947) 30 Cal.2d 676, 687.) We conclude that the trial court did err. We turn to whether the error was prejudicial.
It is not entirely clear what harmless error standard applies. (See generally People v. Guiton (1993) 4 Cal.4th 1116.) Accordingly, we will assume, without deciding, it is the federal constitutional standard of Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824, 17 L.Ed.2d 705]. "Under that test, an error is harmless only when, beyond a reasonable doubt, it did not contribute to the verdict." (People v. Williams (1997) 16 Cal.4th 635, 689.) Here, precisely because there was no evidence that the sexual acts were accomplished by threats of future retaliation, the error was harmless beyond a reasonable doubt.
People v. Harris (1994) 9 Cal.4th 407 is on point. There, as the court held, the evidence established as a matter of law that the victims wallet, car keys, and car had been taken from his person. (Id. pp. 420-422.) It was the prosecutions theory that other items taken from his office and home, though not taken from his person, had been taken from his immediate presence. (Id. at pp. 422-424.) The trial court instructed the jury that robbery required a taking from the victims "person or immediate presence . . . ." (Id. at p. 430, italics omitted.) It further instructed that " . . . `[t]he act of robbery is deemed to have occurred within the immediate presence of the victim as long as the victim perceived any overt act connected with the commission of the offense." (Id. at p. 415.)
The Supreme Court wasted little time in concluding that this definition of "immediate presence" was erroneous. (People v. Harris, supra, 9 Cal.4th at pp. 415-416.) It devoted the bulk of its opinion to whether the error was prejudicial under Chapman: "[U]nder the mandate of Chapman . . . we must ultimately look to the evidence considered by defendants jury under the instructions given in assessing the prejudicial impact or harmless nature of the error." (Harris at p. 428.) "[W]e must inquire whether it can be determined, beyond a reasonable doubt, that the jury actually rested its verdict on evidence establishing the requisite . . . element[s] of [the crime] independently of the force of the . . . misinstruction. [Citation.]" (Id. at p. 429.) "Here, . . . the trial courts misinstruction did not implicate the entirety of the definition of the `taking element of robbery — instead the jury was misinstructed on one of two possible factual theories by which that element could be satisfied, i.e., the theory of a taking from the victims immediate presence. No instructional error occurred in connection with the alternate theory by which the element of taking could be satisfied — the theory of a taking directly from the victims person." (Ibid .)
The court concluded that: "Because the force of the evidence showing [the victims] wallet, car keys, and automobile were taken directly from his person is `overwhelming [citation], the conclusion is inescapable that the evidence . . . is `of such compelling force as to show beyond a reasonable doubt that the erroneous instruction `must have made no difference in reaching the verdict obtained. [Citation.]" (People v. Harris, supra, 9 Cal.4th at p. 431, fn. omitted, quoting Yates v. Evatt (1991) 500 U.S. 391, 405, 407 [111 S.Ct. 1884, 114 L.Ed.2d 432].)
Here, similarly, the jury was merely misinstructed on one of two theories of unlawful oral copulation and unlawful sodomy. Defendant does not claim that the instructions on the alternative theory of present force or fear were erroneous in any way. The evidence that the charged oral copulations and sodomy were accomplished by "force, violence, duress, menace, or fear of immediate and unlawful bodily injury" was overwhelming. By contrast, as discussed, there was no evidence whatsoever that they were accomplished by threats of future retaliation.
In closing argument, defense counsel even conceded: "Theres no dispute that the victims were kidnapped. No dispute they were raped. No dispute about any of that. The issue is, is the defendant the guy that did it." "One situation in which instructional error removing an element of the crime from the jurys consideration has been deemed harmless is where the defendant concedes or admits that element. [Citations.]" (People v. Flood (1998) 18 Cal.4th 470, 504, fn. omitted.) We conclude beyond a reasonable doubt that the erroneous instructions made no difference in reaching the verdict.
As a subsidiary contention, defendant also argues that, as a result of the instructional error, the trial court erred by sentencing him pursuant to Penal Code sections 667.6, subdivision (c) and 667.61.
Penal Code section 667.61 is commonly called the one-strike law. It applies only to specified sexual offenses. These include oral copulation or sodomy, but only when committed "by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person." (Pen. Code, § 667.61, subd. (c)(6).)
Penal Code section 667.6, subdivision (c) allows the trial court to impose "a full, separate, and consecutive term" for each conviction of a specified sexual offense. It applies to oral copulation or sodomy only when "committ[ed] . . . by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person" or under color of authority. (Ibid.)
The trial court relied on both of these provisions when sentencing defendant on the counts of unlawful oral copulation and unlawful sodomy committed against Jane Doe 1.
Defendant bases this whole contention on the premise that the trial courts instructional error "makes it impossible to determine whether the jury convicted him" on a theory of present force or fear rather than future threats. As we have already held that the erroneous instructions did not affect the jurys verdict, we must reject this contention. On this record, it is clear beyond a reasonable doubt that the jury convicted defendant based on present force or fear.
Out of an excess of caution, however, we note that, even if the jury convicted defendant based solely on future threats, the trial court could have sentenced him under Penal Code sections 667.6, subdivision (c) and 667.61. These statutes apply where the offense is committed by "duress." Duress, in this context, includes "a direct or implied threat of . . . retribution sufficient to coerce a reasonable person of ordinary susceptibilities to (1) perform an act which otherwise would not have been performed or, (2) acquiesce in an act to which one otherwise would not have submitted." (People v. Pitmon (1985) 170 Cal.App.3d 38, 50, italics added, fn. omitted; see also Pen. Code, §§ 261, subd. (b), 262, subd. (c).) We perceive no relevant distinction between retribution and retaliation. Both can occur in the future.
Here, if the jury found that defendant accomplished the sexual acts by means of threats of future retaliation, then it necessarily also found that he accomplished them by threats of retribution, and hence by duress. This would be sufficient to trigger the application of Penal Code sections 667.6, subdivision (c) and 667.61. (See People v. Rich (2003) 109 Cal.App.4th 255, 261 [enhancement applicable to attempted rape could be imposed on defendant convicted of assault with intent to commit rape; assault with intent to commit rape necessarily constitutes attempted rape] [Fourth Dist., Div. Two].)
For both of these reasons, we conclude that the trial court did not err by sentencing defendant sentence defendant under Penal Code sections 667.6, subdivision (c) and 667.61.
IV
DISPOSITION
The judgment is affirmed.
We concur: RAMIREZ P.J., and McKINSTER J.