Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CM021246
CANTIL-SAKAUYE, J.
Defendant Terry Lyn Prentice was found guilty by a jury of six counts of child molestation - a forcible lewd and lascivious act on J., a child under the age of 14 (count 1), forcible sodomy of J. (count 2), aggravated sexual assault of J. by sodomy (count 3), aggravated sexual assault of J. by forcible oral copulation (count 4), inducing a child, J., to engage in a lewd act with R. (count 5), and a nonforcible lewd and lascivious act on R., a child under the age of 14 (count 6). As to counts 1, 2, (against J.) and 6, (against R.) the trial court found true the allegation that defendant had been convicted in the present case of offenses specified in Penal Code section 667.61, subdivision (c), against more than one victim (§ 667.61, subd. (e)(5)), bringing defendant within the life sentence enhancement provision of section 667.61, subdivision (b). The trial court sentenced defendant to a determinate upper term of eight years in state prison on count 5, designated the principal term. The court imposed four consecutive indeterminate sentences of 15 years to life on counts 1, 3, 4, and 6. The court imposed, but stayed (§ 654), an indeterminate term of 15 years to life on count 2.
Hereafter, undesignated statutory references are to the Penal Code, unless otherwise indicated.
On appeal, we address defendant’s claims in the following order: (1) insufficiency of the evidence of force for counts 1 through 4; (2) erroneous introduction of evidence regarding defendant’s commission of other sexual offenses against D. and C.P. pursuant to Evidence Code section 1108 and its implementing jury instructions violated his right to due process; (3) prejudicial error in failing to instruct on lesser included offenses to counts 2 through 4; (4) prejudicial error in failing to instruct on lesser included offenses to count 6; (5) his conviction in count 2 must be reversed rather than stayed as a necessarily included offense to count 3; (6) the imposition of the upper term and consecutive sentences violated the principles of Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely) and Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856] (Cunningham); and (7) the trial court’s finding that defendant’s conviction of count 6 qualified as a conviction under section 667.61, subdivision (c)(7), violated the principles of Blakely and Cunningham. We agree only with the fifth claim of error and reject all others. We shall reverse defendant’s conviction for count 2 and direct that count to be dismissed. We affirm the conviction in all other respects.
FACTUAL AND PROCEDURAL BACKGROUND
When Katina married defendant in August 1997, she had two sons, A., who was five years old, and D., who was three years old. She and defendant then had a daughter, R., born in November 1997 and a son, J., born in December 1998.
Katina and defendant separated in March of 2000, due in part to Katina’s methamphetamine addiction. About a month later, Katina “went off the deep end.” She sent A. and D. to live with her parents and R. and J. to live with defendant. In April 2001 defendant was granted sole physical custody of J. and R. Defendant lived in Oroville in a motor home between 2001 and 2003, where the offenses were said to occur. Defendant brought R. and J. back to Katina at the end of March 2003 so that she could take care of them while he was in the process of a move.
Sometime later, Katina was using the bathroom when the children came in and J. asked her about her pubic hair. R. indicated defendant “did this” and made a sexual “humping” motion with her body. J. told R. she was not supposed to tell anybody. R. also complained to Katina that her private hurt and when Katina looked, R.’s genitals were covered with little red bumps and it looked like there was a rip. Katina took R. to the hospital. An investigation was started, although R. was not examined by the hospital at that time. R. was examined later as part of the investigation. The examining family nurse practitioner found R. to be reluctant to talk; her speech was difficult to understand; she was small for her age; her hygiene was poor; her hair was consistent with being malnourished; and she had difficulty naming her body parts. R.’s hymen had a rolled edge, a finding that can be associated with molest but is not conclusive. Although R. was interviewed by the child abuse response team (CART) on April 17, 2003, R. was found not to be a competent witness.
All four of Katina’s children were moved to a foster home in October 2003. J. told his foster mother that his dad had put his penis in J.’s butt and mouth. J. described videos defendant possessed and said he and R. were made to do sexual acts with each other. J. was four years old, about to turn five years old. Eventually, R. also disclosed to her foster mother that defendant had put his penis in her rear. The foster mother reported the disclosures to the children’s social worker.
In December 2003, Katina learned that J. had been touched by defendant. J. told her defendant touched his “pee pee” and made J. touch defendant’s “pee pee.” Katina reported the disclosure to the social worker.
During his June 2004 CART interview, J. said he knew he was there because his dad did something to him. J. said defendant put his pee pee (J. identified a penis as a pee pee or pee pee weiner) in J.’s mouth and butt and made J. do the same thing to his sister R. J. was four years old when it happened. J. said it happened once at nighttime on his bottom bunk, but another time on his dad’s bed. J. said defendant woke him up, took him to and put him in defendant’s bed where defendant took off J.’s pajamas. There they “did the nasty stuff.” J. said it hurt and lasted a long time. J. said pee came out of defendant’s pee pee when it was in J.’s mouth, that it tasted nasty and J. spit it out. According to J., the lights were off, but he could still see by the light coming from the television. When asked how many times this happened to him, J. said 10 times and then perhaps 20 or 30 times. He said the same thing happened to his sister. J. saw defendant and his five-year-old sister on top of the covers on defendant’s bed when he looked under the curtains by defendant’s bed. They had their clothes off and defendant put his pee pee in R.’s butt and pee pee.
In the CART interview, J. said defendant put on the television a nasty movie, describing a sexually explicit movie, after he took J. to his bed. J. was lying with defendant on defendant’s bed. J. did not want to watch it. When J. tried to get up to get his pajamas, defendant held J.’s arms. Defendant told J. not to tell anyone about the stuff he was doing to J. J. also told the interviewer defendant had J. touch his sister. J.’s genital exam in July 2004 was normal.
R. had a second CART interview on June 29, 2004. This time R. was able to identify body parts and distinguish between a boy and girl. She called female genitalia a girl penis, male genitalia a boy penis or pee pee and the buttocks of a person a butt. She said defendant had touched her girl penis and her butt with his boy penis or pee pee. Defendant had taken her clothes off and lay on top of her. She said defendant’s penis went inside and came back out.
At trial in April 2005, then six-year-old J. testified defendant touched J.’s private parts with his mouth in the motor home on his bed. J. said he took his own clothes off as defendant said to. J. testified defendant put his mouth on J.’s pee pee and defendant put his pee pee in J.’s butt. J. said defendant touched him almost every night and that they would do what J. had “told you.” When the prosecutor asked J. to say it again, J. said he forgot. At trial, J. said he and R. touched each other’s privates. Defendant told them to do it. J. testified he just laid there when defendant put his pee pee in J.’s butt. He said defendant never held him down or tried to stop J. from leaving the bed. Defendant never carried J. from J.’s bed to defendant’s bed. J. repeated that defendant put his mouth on J.’s pee pee and said that defendant also put his pee pee in J.’s mouth. J. testified he saw people having sex on television that defendant had put on in his room. J. saw the sexually explicit movie on television when he was being touched by defendant. J. testified he was touched “not everyday but sometimes.”
At trial R. testified she had received two “bad touches” from defendant. She said defendant touched her tongue and her butt with his “pinkie” when she had her clothes off. When defendant touched her on her butt with his pinkie, it hurt. She told defendant to stop, but he did not stop. She denied either seeing J. naked or touching him. She denied J. had seen her naked or touched her. R. testified she had seen naked people on television doing nasty things. Defendant turned it on and watched it with R. next to him on the bed. She did not remember saying that defendant hurt her pee pee and denied that it happened. She was sure that defendant had touched her on the butt with his pinkie.
Evidence was admitted at trial of uncharged offenses committed by defendant.
Defendant’s stepson D. testified at trial that defendant had touched him when he was six or seven years old. Defendant touched D.’s penis with his hand and mouth and tried to put his penis in D.’s “booty” (anus). Defendant also put his penis in D.’s mouth and when D. tried to get away, defendant grabbed him and pushed him back down on the bed. D. lost count how many times it happened. D. testified he came into court in 2004 to say what happened. D. was mad when defendant was proven innocent, because it did happen.
C.P., 13-years-old at the time of trial, testified defendant occasionally babysat him when he was four or five years old. Defendant would take C.P. to a shed behind the house where he would touch C.P.’s penis and make C.P. suck defendant’s penis. Defendant also sodomized C.P.
DISCUSSION
I.
Sufficiency Of The Evidence Of Force For Counts 1 Through 4
Defendant was convicted in count 1 of forcible lewd and lascivious conduct, in count 2 of forcible sodomy, in count 3 of aggravated sexual assault by forcible sodomy, and in count 4 of aggravated sexual assault by forcible oral copulation. Defendant claims the evidence of force is insufficient to support those convictions. We disagree.
We determine the substantiality of the evidence from the whole record, view the evidence in the light most favorable to the prosecution, consider both reasonable inferences and circumstantial evidence, and affirm the judgment if there is evidence “‘of ponderable legal significance . . . reasonable in nature, credible, and of solid value,’” from which a reasonable trier of fact could find defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578; see People v. Holt (1997) 15 Cal.4th 619, 667-669; see People v. Ceja (1993) 4 Cal.4th 1134, 1138.)
The offense of forcible lewd and lascivious conduct requires the use of “force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person.” (§ 288, subd. (b)(1).) “Force” within the meaning of section 288, subdivision (b)(1), means “physical force substantially different from or substantially greater than that necessary to accomplish the lewd act itself.” (People v. Cicero (1984) 157 Cal.App.3d 465, 474; see People v. Griffin (2004) 33 Cal.4th 1015, 1026-1027.) The offenses of forcible sodomy (§ 286, subd. (c)(2)), aggravated sexual assault by forcible sodomy (§ 269, subd. (a)(3)), and aggravated sexual assault by forcible oral copulation (§ 269, subd. (a)(4)) all require, by analogy to the offense of rape, that defendant accomplish the act of sodomy or oral copulation by the use of force sufficient to overcome the victim’s will. (See People v. Guido (2005) 125 Cal.App.4th 566, 574-576; People v. Griffin (2004) 33 Cal.4th 1015, 1025-1027.)
We note the prosecutor did not argue duress as an alternative to force and the jury was not instructed as to the meaning of duress. We will not now consider the prosecution’s argument for the first time on appeal that there was sufficient evidence of duress. (See People v. Yeoman (2003) 31 Cal.4th 93, 118, fn. 3.)
Defendant focuses on J.’s trial testimony and points out that it contains no statement by J. that defendant used force in committing the sexual acts and in fact, at trial, J. denied any use of force. Defendant distinguishes J.’s CART interview statement by claiming that J.’s statement regarding defendant holding his arms when he tried to get up is not evidence of any use of force to accomplish the lewd acts, but evidence only of defendant’s use of force to require J. to watch a movie containing sexual content.
It is true J. testified at trial that he took off his own clothes when directed by defendant, that defendant never carried him from his bed to defendant’s bed, that he (J.) just lay there when defendant put his penis in J.’s butt, that defendant never held him down and that defendant never tried to stop J. from leaving the bed. Such testimony, however, was contradicted by J.’s statements in his CART interview that defendant woke him up, “took” him to and “put” him in defendant’s bed and that defendant took off J.’s pajamas. It was in defendant’s bed that they “did the nasty stuff.” J. said defendant put “a nasty movie” on the television. J. did not want to watch the movie, but defendant held his arms when he tried to get up to put on his pajamas. At trial J. testified he saw the sexually explicit movie on television when he was being touched by defendant.
The jury could have reasonably chosen to believe J.’s statements at his CART interview. Viewed as a whole, the jury could have reasonably believed defendant physically took 4-year-old J. from his bed and put him onto defendant’s bed, put on a sexually explicit movie, removed J.’s clothes and while the movie was playing, engaged in a number of sexual acts with J. When J. tried to get up to put his pajamas back on, defendant held his arms. Contrary to defendant’s view, the jury did not have to restrictively view defendant’s restraint of J. as only requiring J. to watch the movie that was playing. It is a reasonable inference that defendant held down J.’s arms in order for defendant to continue his molestation of J. while the movie played. This evidence was sufficient to show force overcoming J.’s will (People v. Guido, supra, 125 Cal.App.4th at p. 576; People v. Griffin, supra, 33 Cal.4th at p. 1027) and also “physical force substantially different from or substantially greater than that necessary to accomplish the lewd act itself.” (People v. Cicero, supra, 157 Cal.App.3d at p. 474.)
II.
Admission Of Uncharged Offense Evidence
The trial court admitted, over defense objection, evidence of defendant’s prior molestation of D. and C.P. pursuant to Evidence Code section 1108. This section provides for the admission of sexual propensity evidence in a criminal prosecution for a sexual offense provided the evidence is not inadmissible under Evidence Code section 352. On appeal, defendant makes a facial constitutional challenge to Evidence Code section 1108 and its implementing jury instructions (CALJIC Nos. 2.50.01 & 2.50.1) contending the admission of sexual propensity evidence lowers the prosecution’s burden of proof violating his right to due process. The California Supreme Court has rejected this argument. (People v. Reliford (2003) 29 Cal.4th 1007, 1016; People v. Falsetta (1999) 21 Cal.4th 903, 917-922; accord People v. Fitch (1997) 55 Cal.App.4th 172, 182-183.) We are bound by the Supreme Court’s decisions. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
III.
The Trial Court’s Failure To Instruct On Lesser Included Offenses As To Counts 2 Through 4 Was Harmless Error
Defendant contends his convictions in counts 2, 3 and 4 for forcible sodomy and aggravated sexual assault must be reversed for the trial court’s failure to sua sponte instruct the jury as to lesser and necessarily included offenses. As to count 2 (forcible sodomy), defendant claims the jury should have been instructed as to the lesser included offenses of nonforcible sodomy of a minor in violation of section 286, subdivisions (b)(1), (b)(2), and (c)(1). As to both count 3 (aggravated sexual assault by forcible sodomy) and count 4 (aggravated sexual assault by forcible oral copulation), defendant claims the jury should have been instructed as to the lesser included offense of nonforcible lewd conduct with a child in violation of section 288, subdivision (a). As to count 4 (aggravated sexual assault by forcible oral copulation), defendant claims the jury should have been instructed as to the lesser included offenses of nonforcible oral copulation of a minor in violation of section 288a, subdivisions (b)(1), (b)(2), and (c)(1). We conclude the trial court erred in this case by failing to sua sponte instruct the jury with section 286, subdivision (b)(1) (nonforcible sodomy of a minor) in connection with count 2 (§ 286, subd. (c)(2)) and with section 288a, subdivision (c)(1) (nonforcible oral copulation with a minor) as a lesser included offense to count 4 (§ 269, subd. (a)(4)), but find such error was harmless. We reject defendant’s other claims.
A trial court is obligated to instruct on lesser-included offenses sua sponte if the evidence raises a question as to whether all the elements of the charged offense are present and there is evidence that would justify a conviction of such a lesser offense. (People v. Hughes (2002) 27 Cal.4th 287, 365 (Hughes); People v. Barton (1995) 12 Cal.4th 186, 194-195.) “[I]nstructing on lesser included offenses shown by the evidence avoids forcing the jury into an ‘unwarranted all-or-nothing choice.’” (Hughes, supra, at p. 365.)
To determine what lesser offenses are necessarily included in the charged offense for the purpose of giving such jury instructions, “one of two tests (called the ‘elements’ test and the ‘accusatory pleading’ test) must be met.” (People v. Lopez (1998) 19 Cal.4th 282, 288 (Lopez).) “Under the elements test, we look to see if all the legal elements of the lesser crime are included in the definition of the greater crime, such that the greater cannot be committed without committing the lesser. Under the accusatory pleading test, by contrast, we look not to official definitions, but to whether the accusatory pleading describes the greater offense in language such that the offender, if guilty, must necessarily have also committed the lesser crime.” (People v. Moon (2005) 37 Cal.4th 1, 25-26; see Lopez, supra, at pp. 288-289;see Hughes, supra, 27 Cal.4th at pp. 365-366; see People v. Birks (1998) 19 Cal.4th 108, 117.)
We first consider and reject defendant’s contention that nonforcible lewd conduct with a child in violation of section 288, subdivision (a), is a lesser included offense to counts 3 and 4, aggravated sexual assault by forcible sodomy and forcible oral copulation, respectively. Lewd conduct with a child requires a specific intent “of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child.” (§ 288, subd. (a).) In contrast, sodomy and oral copulation, which form the basis for the aggravated sexual assault charges against defendant in counts 3 and 4, are general intent crimes containing no “sexual gratification” specific intent element. (People v. Warner (2006) 39 Cal.4th 548, 557.) Therefore, section 288, subdivision (a), is not a lesser included offense to sodomy or oral copulation or aggravated sexual assaults based on those crimes under the elements test. (See People v. Griffin (1988) 46 Cal.3d 1011, 1030.) Nor are there any facts alleged in the information that make section 288, subdivision (a), a lesser included offense to counts 3 and 4 in this case.
“COUNT 3
Next we consider defendant’s claim that as to count 2 (forcible sodomy), the jury should have been instructed as to the lesser included offenses of nonforcible sodomy of a minor in violation of section 286, subdivisions (b)(1), (b)(2), and (c)(1). Subdivisions (b)(1), (b)(2), and (c)(1) of section 286 are all nonforcible crimes and all require the victim, or perpetrator and victim, to be within certain age limits. (§ 286, subd. (b)(1) [victim under age 18]; subd. (b)(2) [perpetrator over the age of 21 and victim under age 16]; subd. (c)(1) [victim under age 14 and more than 10 years younger than perpetrator].) “Forcible sodomy,” on the other hand, “is defined as ‘sexual conduct consisting of contact between the penis of one person and the anus of another person’ (§ 286, subd. (a)) ‘when the act is accomplished 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’ (id., subd. (c)(2)).” (Hughes, supra, 27 Cal.4th 287, 366.) Forcible sodomy, section 286, subdivision (a), does not require any particular age of either victim or perpetrator. Nonforcible sodomy under section 286 subdivisions (b)(1), (b)(2), and (c)(1), describing the crime with certain age differentials, however includes elements that are not part of the greater offense. These nonforcible sodomy subdivisions are not lesser included offenses to forcible sodomy under the elements test. (People v. Scott (2000) 83 Cal.App.4th 784, 794; People v. Gutierrez (1982) 137 Cal.App.3d 542, 548.) The court was not required to instruct sua sponte on the nonforcible sodomy subdivisions.
However, pertinent to the accusatory pleadings test, the amended information alleged as to count 2, forcible sodomy, that defendant committed the act of sodomy with J., “a child under the age of 14.” The information did not allege defendant’s age or relative age to J. Under the accusatory pleading test, the information alleged sufficient facts to make section 286, subdivision (b)(1) [nonforcible sodomy of a victim under the age of 18] a lesser included offense to the allegations of forcible sodomy under section 286, subdivision (c)(2).
“‘A criminal defendant is entitled to an instruction on a lesser included offense only if [citation] “there is evidence which, if accepted by the trier of fact, would absolve [the] defendant from guilt of the greater offense” [citation] but not the lesser. [Citations].’” (Lopez, supra, 19 Cal.4th at p. 288, quoting People v. Memro (1995) 11 Cal.4th 786, 871, original italics.) Here, the evidence was undisputed that J. was under 14 years old, specifically four years old, when these offenses occurred. There was ample evidence of defendant’s sodomy of J. and J.’s trial testimony did not describe any force accompanying the crime. Thus, there was substantial evidence from which the jury could have found defendant guilty of the lesser offense. The jury could have absolved defendant from guilt of the greater offense, involving force, by rejecting J.’s statements regarding force in his CART interview and believing his trial testimony in which he denied defendant used any force in accomplishing the sodomy. The trial court erred in failing to instruct the jury as to count 2 with the lesser included offense of nonforcible sodomy of a minor in violation of section 286, subdivision (b)(1).
We turn to defendant’s claim that as to count 4 (aggravated sexual assault by forcible oral copulation), the jury should have been instructed as to the lesser included offenses of nonforcible oral copulation of a minor in violation of section 288a, subdivisions (b)(1), (b)(2), and (c)(1). These three subdivisions involve nonforcible oral copulation with certain age differentials. Here, contrary to respondent’s view, we are not comparing the elements of forcible oral copulation with nonforcible oral copulation of a minor but rather we are comparing the elements of aggravated sexual assault by forcible oral copulation with nonforcible oral copulation of a minor. (§ 269, subd. (a)(4) with § 288a, subds. (b)(1), (b)(2), and (c)(1).)
Specifically, section 288a, subdivision (b)(1), makes it a crime to participate in an act of oral copulation with another person who is under the age of 18. Subdivision (b)(2) of section 288a makes it a felony for any person over the age of 21 years to participate in an act of oral copulation with another person who is under 16 years of age. Subdivision (c)(1) of section 288a makes it a felony punishable by three, six or eight years in state prison for a person to participate in an act of oral copulation with another person who is under 14 years of age and more than 10 years younger than that person.
At the time of this case and as charged in the information, section 269, subdivision (a)(4), (aggravated sexual assault by forcible oral copulation against a minor) made it a felony punishable by imprisonment for 15 years to life for any person to commit an act of oral copulation on a child under 14 years of age and 10 or more years younger by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person.
Section 269 has since been amended in 2006, to change the “10 or more years younger” requirement to “7 or more years younger.” (Stats. 2006, ch. 337, § 6 (SB 1128), eff. Sept. 20, 2006, amended by Initiative (Prop. 83, § 5) at the Nov. 7, 2006, general election, operative Nov. 8, 2006.)
All the legal elements of section 288a, subdivision (c)(1), (nonforcible oral copulation with a person under 14 years of age and more than 10 years younger than defendant) are included in the definition of aggravated sexual assault by forcible oral copulation in violation of section 269, subdivision (a)(4), as applicable at the time of this case. Aggravated sexual assault under section 269, subdivision (a)(4), simply adds the requirement that the oral copulation be committed by force, violence, duress, menace, or fear of immediate and unlawful bodily injury. The amended information in this case specifically alleged in count 4 that defendant committed forcible oral copulation on J., who was under the age of 14 years, the defendant being more than 10 years older than J., in violation of section 269, subdivision (a)(4). Under both the elements test and the accusatory pleading test, section 288a, subdivision (c)(1) was a lesser included crime to count 4.
There was evidence in this case “‘“which, if accepted by the trier of fact, would absolve [the] defendant from guilt of the greater offense” [citation] but not the lesser. [Citations].’” (Lopez, supra, 19 Cal.4th at p. 288.) Here, the evidence was undisputed that J. was four years old when these offenses occurred. The evidence showed defendant was 31 years old at the time of trial, clearly more than 10 years older than J., who was six years old at the time of trial. This evidence met the age requirements of both former section 269, subdivision (a)(4) and section 288a, subdivision (c)(1). There was ample evidence of oral copulation between J. and defendant. And as we have explained before, the jury could have rejected J.’s statements regarding force in his CART interview and believed J.’s trial testimony in which he denied defendant used any force in engaging in the oral copulation. Therefore, the trial court erred in failing to instruct the jury as to count 4 with the lesser included offense of oral copulation of a minor without force in violation of section 288a, subdivision (c)(1).
There was absolutely no evidence from which the jury could have found J. was under the age of 16 or 18, but not also under the age of 14. There was no evidence from which the jury could have found defendant was over the age of 21, but not also more than 10 years older than J. Therefore, it was not error for the trial court to fail to instruct the jury with section 288a, subdivision (b)(1) and subdivision (b)(2), as lesser included offenses to count 4. A court need not instruct on a lesser included offense when there is no evidence the offense was only the lesser. (People v. Barton, supra, 12 Cal.4th 186, 195.)
Although we conclude the trial court erred in failing to instruct the jury as to lesser included offenses to count 2 and count 4, we conclude such error was harmless.
“‘Error in failing to instruct the jury on a lesser included offense is harmless when the jury necessarily decides the factual questions posed by the omitted instructions adversely to defendant under other properly given instructions.’” (People v. Chatman (2006) 38 Cal.4th 344, 392, quoting People v. Lewis (2001) 25 Cal.4th 610, 646.) As to count 1, the charge of a forcible lewd and lascivious act upon J. in violation of section 288, subdivision (b), the trial court instructed the jury with the lesser included offense of a nonforcible lewd and lascivious act upon J. in violation of section 288, subdivision (a). The jury found defendant guilty of count 1 as charged, that is, a forcible lewd act. As the evidence showed defendant engaged in the multiple alleged sexual acts with J., including the lewd act, when he took J. to his bed, all as part of the same occasion, the jury necessarily resolved the issue of force used by defendant in committing those offenses when it rejected the nonforcible lesser offense to count 1.
The prosecution argued the lewd act consisted of defendant making J. “put his pee-pee in his mouth.” While admittedly an ambiguous description, it appears the prosecution was referring to the evidence regarding J.’s penis being in defendant’s mouth as opposed to defendant’s penis being in J.’s mouth, which latter act was argued in connection with count 4.
IV.
Failure To Instruct On Lesser Included Offenses To Section 288 Subdivision (a) Count 6
Defendant was convicted in count 6 of a nonforcible lewd act with R., a child under the age of 14 years. Defendant claims the trial court erred in failing to instruct the jury with two lesser included offenses - unlawful oral copulation (§ 288a) and assault (§ 240). We disagree.
“[S]ection 288, subdivision (a), states a felony offense for any person who ‘willfully and lewdly commits any lewd or lascivious act’ on the body of a child under the age of 14, ‘with the intent of arousing . . . the lust, passions, or sexual desires of that person or the child.’ Any touching of a child under the age of 14 violates this section, even if the touching is outwardly innocuous and inoffensive, if it is accompanied by the intent to arouse or gratify the sexual desires of either the perpetrator or the victim.” (Lopez, supra, 19 Cal.4th at p. 289, quoting People v. Martinez (1995) 11 Cal.4th 434, 450-452.) Unlawful oral copulation requires, of course, oral copulation, which the statute defines as “the act of copulating the mouth of one person with the sexual organ or anus of another.” (§ 288a, subd. (a).) Based on the different acts required for the offenses, it is clear a person can be guilty of a lewd and lascivious act in violation of section 288, subdivision (a) without committing unlawful oral copulation. Unlawful oral copulation is not a lesser included offense to nonforcible lewd and lascivious conduct under the elements test. (People v. Moon, supra, 37 Cal.4th at p. 25 [comparing the elements of the offenses, the greater cannot be committed without committing the lesser].) Nor did the amended information here specify oral copulation as the lewd act committed so that “the accusatory pleading describe[d] the greater offense in language such that the offender, if guilty, must necessarily have also committed the lesser crime. [Citation.]” (Id. at pp. 25-26.)
We also point out the evidence regarding defendant’s acts with R. included his putting his penis in R.’s “rear,” touching R.’s “private” with his penis and touching R.’s tongue and “butt” with his “pinkie.” “Pinkie” was not R.’s word for either genitalia or buttocks, but appears to refer to defendant’s finger, as the prosecution argued in closing. Our review of the record discloses no evidentiary basis for the jury to find oral copulation. Regardless of our conclusion that unlawful oral copulation was not a lesser included offense to lewd and lascivious conduct, the trial court certainly had no duty to instruct on an offense for which there was no evidence justifying a conviction. (Lopez, supra, 19 Cal.4th at p. 288.)
Defendant next contends simple assault in violation of section 240 was a lesser included offense to the charge of lewd and lascivious conduct in count 6. We do not resolve whether simple assault could be a lesser included charge to a violation of section 288, subdivision (a) generally, as we conclude there was no evidentiary basis for the jury to conclude defendant was guilty in this case of assault, but not lewd conduct. Therefore, the trial court did not err in failing to give an assault instruction.
The elements of assault as provided by CALJIC No. 9.00 require, in relevant part, that a person “willfully and unlawfully committed an act which by its nature would probably and directly result in the application of physical force on another person.” There was evidence of several possible acts of defendant touching R. The act of defendant putting his penis in R.’s “rear” or touching her “private” with his penis were blatantly sexual in nature and if the jury found defendant had committed either of those acts, there is no way the jury would not also have found defendant had the requisite specific sexual gratification intent necessary for a violation of section 288, subdivision (a). If the jury rejected the evidence of those acts, but found defendant had touched R.’s mouth or “butt” with his finger, the jury would have had to decide defendant’s intent in committing those acts. If the jury found defendant had the specific sexual gratification intent specified for a lewd act, defendant would be guilty of violating section 288, subdivision (a). If, however, the jury concluded defendant did not have such intent, there would be no “unlawful” act to support a finding of assault. A parent may touch the mouth and even the buttocks of their five-year-old child without committing an assault. There was no evidence from which the jury could find defendant had committed only an assault and not a lewd act. The trial court did not err in failing to instruct the jury as to assault.
We reject respondent’s argument in its supplemental brief that the trial court did not err in failing to instruct on assault in this case because the statute of limitations had expired for a misdemeanor charge of simple assault. (§§ 241, subd. (a); 802, subd. (a).) Respondent erroneously focuses on the filing date of the first amended information on April 6, 2005, as the basis for its argument. However, the original information was filed on November 29, 2004. It alleged count 6 was committed by defendant between June 1, 2002 and January 31, 2004, a change from the dates originally alleged in the complaint, allowed by the trial court’s grant of the prosecution’s motion to amend at the preliminary hearing. No statute of limitations problem appears on the face of the information.
V.
Count 2 Is A Necessarily Included Offense Of Count 3
Defendant was convicted in count 2 of forcible sodomy of J. (§ 286, subd. (c)(2)) and in count 3 of aggravated sexual assault of J. by forcible sodomy. (§ 269, subd. (a)(3).) The trial court sentenced defendant to 15 years to life for his conviction in count 2, but stayed the sentence pursuant to section “654, plus California Rule of Court[, r]ule 4.424 in that the conduct is also encompassed by the conviction in Count 3.” Defendant now claims his conviction in count 2 must be reversed, not merely stayed, as a necessarily included offense of count 3.
We review the trial court’s action based on its finding that the same conduct was involved in both convictions, a finding consistent with our resolution of defendant’s arguments in sections I and II, ante, and agree with defendant.
“Section 954 sets forth the general rule that defendants may be charged with and convicted of multiple offenses based on a single act or an indivisible course of conduct.” (People v. Pearson (1986) 42 Cal.3d 351, 354 (Pearson); see also People v. Ortega (1998) 19 Cal.4th 686, 692 (Ortega).) But “multiple convictions may not be based on necessarily included offenses.” (Pearson, supra, at p. 355; Ortega, supra, at p. 692.) “‘The test in this state of a necessarily included offense is simply that where an offense cannot be committed without necessarily committing another offense, the latter is a necessarily included offense.’ [Citations.]” (Pearson, supra, at p. 355; see Ortega, supra, at p. 692.) “In deciding whether multiple conviction is proper, a court should consider only the statutory elements.” (People v. Reed (2006) 38 Cal.4th 1224, 1229.)
Defendant was convicted in count 2 of forcible sodomy in violation of section 286, subdivision (c)(2). He was convicted and sentenced in count 3 of aggravated sexual assault based on forcible sodomy as proscribed by section 286, subdivision (c)(2). (§ 269, subd. (a)(3.) Forcible sodomy is a necessary and lesser included offense of aggravated sexual assault by forcible sodomy under the elements test. When a jury convicts a defendant of both a greater and a necessarily included offense, “the correct course of action is to reverse the conviction for the included offense and direct the entry of a dismissal of the less serious crime.” (People v. Chan (2005) 128 Cal.App.4th 408, 421; see People v. Moran (1970) 1 Cal.3d 755, 763.) We shall do so.
VI.
Blakely/Cunningham Error As To The Imposition Of The Upper Term And Consecutive Sentences
The trial court sentenced defendant to the upper term of eight years in state prison on count 5. It stated it did so based on its finding the victim was particularly vulnerable, the offense was premeditated, and defendant took advantage of a position of trust. The trial court imposed full and consecutive sentences as to counts 1, 3, 4, and 6, finding the crimes and their objectives were predominantly independent of each other, they involved separate acts of violence or threats of violence, and they were committed at different times or places rather than being committed so close in time as to indicate a single period of aberrant behavior. The court added, “Furthermore I think the statutory basis for the consecutive sentence is also [section] 667.1.”
Defendant contends on appeal the trial court’s imposition of the upper term and consecutive sentences denied him his federal constitutional right to have all facts legally essential to his sentence determined by a jury and proved beyond a reasonable doubt under Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] (Apprendi), Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely), and Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856] (Cunningham).
Respondent argues defendant forfeited his right to make this constitutional argument by failing to object to the trial court’s sentencing on that basis. Respondent’s forfeiture argument has been rejected by the California Supreme Court. (People v. Sandoval (2007) 41 Cal.4th 825, 837, fn. 4 (Sandoval).) We will reach the merits.
In Apprendi, supra, 530 U.S. 466 [147 L.Ed.2d 435], the United States Supreme Court held that, “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” (Id. at p. 490 [147 L.Ed.2d at p. 455].)
In Blakely, the Supreme Court applied the rule of Apprendi to invalidate a state court sentence. The high court explained that “the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” (Blakely, supra, 542 U.S. at p. 303 [159 L.Ed.2d at p. 413].)
In Cunningham, the Supreme Court applied Apprendi and Blakely to California’s determinate sentencing law and held that by “assign[ing] to the trial judge, not to the jury, authority to find the facts that expose a defendant to an elevated ‘upper term’ sentence,” California’s determinate sentencing law “violates a defendant’s right to trial by jury safeguarded by the Sixth and Fourteenth Amendments.” (Id. at p. ___ [166 L.Ed.2d at p. 864], overruling People v. Black (2005) 35 Cal.4th 1238 (Black I) on this point.)
On remand for reconsideration in light of Cunningham, the California Supreme Court in People v. Black (2007) 41 Cal.4th 799 (Black II), concluded “that imposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” (Id. at p. 816.) The Supreme Court also concluded Cunningham did not call into question its prior conclusion that “[t]he determination whether two or more sentences should be served [consecutively] is a ‘sentencing decision[] made by the judge after the jury has made the factual findings necessary to subject the defendant to the statutory maximum sentence on each offense’ and does not ‘implicate[] the defendant’s right to a jury trial on facts that are the functional equivalent of elements of an offense.’” (Id. at p. 823, quoting Black I, supra, 35 Cal.4th at p. 1264.)
In Sandoval, supra, 41 Cal.4th 825, a companion case to Black II, the California Supreme Court determined the defendant’s constitutional rights to jury trial were violated by the imposition of an upper term sentence. (Sandoval, supra, at p. 838.) The court stated the test for harmless error (Washington v. Recuenco (2006) ___ U.S. ___ [165 L.Ed.2d 466]) was whether the reviewing court could conclude, “beyond a reasonable doubt, that the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury[.]” (Sandoval, supra, at p. 839.)
Applying these principles to this case, it is clear the trial court’s imposition of consecutive sentences on counts 1, 3, 4, and 6 did not violate defendant’s constitutional rights under Apprendi, Blakely, and Cunningham. (Black II, supra, 41 Cal.4th at p. 822.)
With respect to the trial court’s imposition of an upper term on count 5, the trial court stated it did so based on its finding the victim was particularly vulnerable, the offense was premeditated, and defendant took advantage of a position of trust. The first stated circumstance refers to the aggravating circumstance identified by California Rules of Court, rule 4.421(a)(3), the second stated circumstance appears to refer to rule 4.421(a)(8) [manner in which crime was carried out indicates planning] and the third stated circumstance refers to rule 4.421(a)(11). These aggravating circumstances were not found to exist by the jury, were not admitted by the defendant, and were not based on defendant’s record of prior conviction. The trial court’s factual finding of these circumstances violated defendant’s federal constitutional right to jury trial. (Cunningham, supra, 549 U.S. ___ [166 L.Ed.2d 856, 864]; Black II, supra, 41 Cal.4th 816.)
Hereafter, references to rules are to the California Rules of Court.
However, we conclude such error was harmless under the standard announced by Sandoval, supra, 41 Cal.4th 825. That is, we conclude, “beyond a reasonable doubt, that the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury[.]” (Id. at p. 839.) In fact, we conclude the jury would have found true two of the three identified circumstances cited by the trial court for imposing the upper term. It is undisputed that at the time of the offense in count 5 (inducing J. to engage in a lewd act with R.) both children were very young; J. was four years old and R. was five years old. R. was small and developmentally behind for her age. She showed signs of malnourishment when she was initially examined by the family nurse practitioner. The children’s mother had sent them to live with defendant, their father, because of her substance abuse problem. The children lived alone with defendant in his motor home, where the offenses occurred. The offenses involving J. (and by reasonable inference R.) took place at night. Defendant woke J. up and took him from his bed. Under these circumstances, beyond a reasonable doubt, the jury would have found, themselves using the beyond-a-reasonable-doubt standard, that the children were unquestionably particularly vulnerable victims, at the mercy of their father, who unquestionably took advantage of a position of trust.
VII.
Blakely/Cunningham Error As To The Section 667.61, Subdivision (c)(7) Finding
Section 667.61, subdivision (b), as relevant here, provides an indeterminate life term of at least 15 years for a person convicted of an offense specified in subdivision (c) under one of the circumstances specified in subdivision (e). Forcible lewd conduct (§ 288, subd. (b)) and forcible sodomy (§ 286, subd. (c)(2)) are two of the offenses specified in subdivision (c). One of the other offenses specified in subdivision (c), in effect at the time of this case, was “[a] violation of subdivision (a) of section 288, unless the defendant qualifies for probation under subdivision (c) of section 1203.066.” (§ 667.61, subd. (c)(7).) One of the circumstances specified in subdivision (e) is where “[t]he defendant has been convicted in the present case or cases of committing an offense specified in subdivision (c) against more than one victim.” (§ 667.61, subd. (e)(5).)
“(b) Except as provided in subdivision (a), any person who is convicted of an offense specified in subdivision (c) under one of the circumstances specified in subdivision (e) shall be punished by imprisonment in the state prison for 15 years to life.
Section 667.61 was amended in 2006 to, among other things, delete the language “unless the defendant qualifies for probation under subdivision (c) of section 1203.066” from subdivision (c)(7) (renumbered (c)(8)). (Stats. 2006, ch. 337, § 33, (SB 1128) eff. Sept. 20, 2006, amended by Initiative (Prop. 83, § 12) at the Nov. 7, 2006 general election, operative Nov. 8, 2006.)
As to counts 1, 2, and 6, the trial court found true the allegation defendant had been convicted in the present case of offenses specified in section 667.61, subdivision (c), against more than one victim (§ 667.61, subd. (e)(5)), bringing defendant within the life sentence enhancement provision of section 667.61, subdivision (b). Defendant claims the trial court violated his Sixth Amendment rights as interpreted by Blakely, supra, 542 U.S. 296 [159 L.Ed.2d 403] and Cunningham, supra, 549 U.S. ___ [166 L.Ed.2d 856] by finding that defendant was convicted in count 6 of an offense described by subdivision (c)(7) of section 667.61. We disagree.
In People v. Benitez (2005) 127 Cal.App.4th 1274 (Benitez), this court rejected the claim Blakely required a jury to make the finding regarding the defendant’s eligibility for probation for purposes of section 667.61, subdivision (c)(7). We stated: “[T]he proviso in Penal Code section 667.61, subdivision (c)(7) (that a defendant is unqualified for probation) is not an element of the enhancement to be negated upon proof to a jury. Rather, it is a legislative grant of authority to the trial court to entertain a request for probation (should a defendant satisfy the criteria in section 1203.066, subd. (c)) despite eligibility otherwise for sentencing under section 667.61. . . . [¶] Finding a defendant ineligible for probation is not a form of punishment, because probation itself is an act of clemency on the part of the trial court. [Citation.] Because a defendant’s eligibility for probation results in a reduction rather than an increase in the sentence prescribed for his offenses, it is not subject to the rule of Blakely.” (Id. at p. 1278.)
We decline defendant’s invitation to reconsider Benitez as we agree with its analysis of the issue and we do not conclude that analysis is changed after Cunningham. Defendant’s federal constitutional right to jury trial and proof beyond a reasonable doubt applies only to factual findings that increase a sentence above the statutory maximum. (Cunningham, supra, 549 U.S. ___ [166 L.Ed.2d at pp. 864-865, 873].)
Nor do we agree with defendant that the analysis is somehow different in this case because of defendant’s ineligibility for probation under section 1203.065, subdivision (a), due to his conviction in count 5 of violating section 266j. In our view, defendant misreads former section 667.61, subdivision (c)(7). Section 667.61, subdivision (c)(7), did not require a finding of “ineligibility” for probation to increase a defendant’s sentence to the life sentence provided by section 667.61. Rather, it provided a conviction of section 288, subdivision (a), is one of the specified offenses triggering the provisions of the life enhancement statute “unless the defendant qualifies for probation under subdivision (c) of Section 1203.066.” (§ 667.61, subd. (c)(7), italics added.) That is, a finding of “eligibility” for probation could take a defendant’s conviction of section 288, subdivision (a), out of the coverage of subdivision (c)(7), thereby potentially reducing the defendant’s ultimate sentence. This is true even if the defendant is otherwise ineligible for probation under another statute. Blakely and Cunningham do not apply to findings required for sentence reductions. (See Benitez, supra, 127 Cal.App.4th at p. 1278.)
Section 1203.065, subdivision (a) provides: “Notwithstanding any other provision of law, probation shall not be granted to, nor shall the execution or imposition of sentence be suspended for, any person who is convicted of violating . . . Section . . . 266j . . . .”
DISPOSITION
Defendant’s conviction in count 2, forcible sodomy in violation of section 286, subdivision (c)(2), is reversed and the trial court is directed to enter a dismissal of that count. In all other respects, the judgment is affirmed.
We concur: BLEASE , Acting P.J., SIMS , J.
“15 Yrs. To Life
“On or about and between June 1, 2002 and January 31, 2004, in the above named Judicial District, the crime of AGGRAVATED SEXUAL ASSAULT OF A CHILD - SODOMY, in violation of PENAL CODE SECTION 269(a)(3), a Felony, was committed by TERRY LYNN PRENTICE, did commit the following act upon victim, J[.] P., who was under the age of 14 years, the defendant TERRY LYNN PRENTICE, being more than 10 years older than the victim: sodomy, in violation of section 286, when committed by force, violence, duress, menace, and fear of immediate and unlawful bodily injury on the victim and another. [¶] Notice: Conviction of this offense will require you to provide specimens and samples pursuant to Penal Code section 296. Willful refusal to provide the specimens and samples is a crime.”
“COUNT 4
“15 Yrs. To Life
“On or about and between June 1, 2002 and January 31, 2004, in the above named Judicial District, the crime of AGGRAVATED SEXUAL ASSAULT OF A CHILD - ORAL COPULATION, in violation of PENAL CODE SECTION 269(a)(4), a Felony, was committed by TERRY LYNN PRENTICE, did commit the following act upon victim, J[.] P., who was under the age of 14 years, the defendant, being more than 10 years older than the victim: oral copulation, in violation of section 288a, when committed by force, violence, duress, menace, and fear of immediate and unlawful bodily injury on the victim and another. [¶] Notice: Conviction of this offense will require you to provide specimens and samples pursuant to Penal Code section 296. Willful refusal to provide the specimens and samples is a crime.”
“(c) This section shall apply to any of the following offenses: [¶] . . . [¶] (4) Lewd or lascivious act, in violation of subdivision (b) of Section 288. [¶]. . . [¶] (6) Sodomy, in violation of paragraph (2) or (3) of subdivision (c), or subdivision (d), of Section 286.
“(7) Oral copulation, in violation of paragraph (2) or (3) of subdivision (c), or subdivision (d), of Section 288a.
“(8) Lewd or lascivious act, in violation of subdivision (a) of Section 288.
“(e) The following circumstances shall apply to the offenses specified in subdivision (c): [¶] . . . [¶] (5) The defendant has been convicted in the present case or cases of committing an offense specified in subdivision (c) against more than one victim.”