Filed 8/4/17 P. v. Thomas CA4/2


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California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO



THE PEOPLE,

Plaintiff and Respondent,

v.

ELLERY DENNIS THOMAS,

Defendant and Appellant.


E064888

(Super.Ct.No. FVI1401296)

OPINION


APPEAL from the Superior Court of San Bernardino County. Eric M. Nakata, Judge. Affirmed as modified.
Robert J. Booher, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra and Kamala D. Harris, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr. and Anthony Da Silva, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Ellery Dennis Thomas used “mental manipulation” to coerce his 23-year-old daughter into participating in various sex acts with him against her will. She secretly audio recorded one instance of this; the recording was played for the jury, and it strongly corroborated her testimony about the other instances. Evidence was also admitted that defendant had committed an uncharged lewd act against her when she was 13.
After a jury trial, defendant was found guilty of two counts of forcible rape (Pen. Code, § 261, subd. (a)(2)), four counts of forcible oral copulation (Pen. Code, § 288a, subd. (c)(2)(A)), two counts of forcible sexual penetration (Pen. Code, § 289, subd. (a)(1)(A)), one count of incest (Pen. Code, § 285), and one count of misdemeanor sexual battery (Pen. Code, § 243.4, subd. (e)(1)). He was sentenced to a total of 64 years 8 months in prison, along with the usual fines, fees, and miscellaneous sentencing orders.
Defendant appeals, contending:
1. The convictions violate due process because they are based on “generic testimony.”
2. There was insufficient evidence of force, violence, duress, menace, or fear.
3. The trial court erred by admitting evidence of the 2003 sexual offense against the same victim.
4. The trial court erred by failing to instruct that sexual battery was a lesser included offense of forcible sexual penetration.
5. The trial court erroneously failed to state reasons for imposing full-term consecutive sentences.
6. The trial court violated Penal Code section 654 by failing to stay the sentence on the incest count.
7. The trial court erred by imposing a $10,000 parole revocation fine because it imposed only a $1,000 restitution fine.
The People concede that the sentence for incest should have been stayed; we agree. We will modify the judgment accordingly. Otherwise, defendant has not shown any prejudicial error. Hence, we will affirm the judgment as thus modified.
FACTUAL BACKGROUND
A. Prior Sexual Offenses Against A.T.
Defendant is A.T.’s biological father. She lived with him during only two intervals in her life — once when she was between 11 and 13, and again when she was between 19 and 20.
One day in 2003, when A.T. was 13, she arrived home from school still wearing her gym clothes. This was against defendant’s rules, so she went into the backyard and changed before going into the house. As she was changing, she saw defendant looking out of a window at her. She knew she was in “major trouble” because of the “serious look” on his face.
He called her into his office. After lecturing her, he had her take off her panties and bend over his desk. He then pressed “his pelvis against [her] bottom” and said, “This is what it feels like to be raped.”
As a result of this incident, A.T. was placed in foster care.
When A.T. was an adult, she wrote two letters to try to help defendant get back his license as a psychiatric technician. In the first letter, in 2010, she said that her allegations were true, but she had forgiven him. In the second letter, in 2013, she said she had made up the allegations.
B. A.T.’s Five Months on the “Program.”
1. The “grinding” incident.
As of November 2013, A.T. was 23 years old.
November 15, 2013, was defendant’s 60th birthday. As a result, A.T. and her children stayed at his home over the weekend.
One morning, after defendant’s then wife (A.T.’s stepmother) left for work, defendant asked A.T. to come into his bedroom. She was wearing a nightgown. Defendant was lying on the bed, wearing shorts but no shirt.
For about an hour, defendant told A.T. about “the program,” which he was going to use to help her “become a grown woman” who could “satisfy a lover.” It was also supposed to help her “trust[] him in almost anything that he put forth towards [her].” He did not specifically say that it would involve sex.
Defendant then asked A.T. to take her nightgown off. She “knew [from] his face that he was serious . . . .” She “did not want to provoke him in any type of way . . . .” She complied because she was concerned about the “outcome” if she did not. Because of the look on his face, she felt that she had no choice.
He asked her to get on top of him and “grind on him.” Again, she complied. The grinding lasted a few minutes. He had her get off, so he could take off his shorts, and then get back on; however, there was no more grinding.
Defendant asked her to go back to her room and look after her children. She put her nightgown back on and left the bedroom. She did not tell anybody because she “didn’t think anybody would believe [her].”
2. Defendant’s threats.
The “program” ultimately lasted almost five months — from mid-November 2013 through April 4, 2014 — during which defendant used threats and “mental manipulation” to get A.T. to perform various sexual acts (itemized in the factual background, part B.3, post) with him.
According to A.T., “There were . . . threats throughout the whole program.” “He always threatened me behind the situation.” That was why she went along with the program.
Defendant threatened to make her go to jail with him. He did not ejaculate during any of the sex acts; however, he threatened to ejaculate, impregnate her, and tell people that he was the father. He also threatened to video record himself orally copulating her.
One time, he told her that he wanted to video record her for a school project. Once he started recording, however, he tried to get her to confess to the sexual acts and to say that she was engaging in them willingly. He said that he was going to give the recording to his teacher — a retired police officer — who would have her children taken away.
Defendant threatened to go to the father of A.T.’s children and tell him that she was an unfit mother. He also made other threats to have her children taken away. A.T. “d[id] everything [defendant] asked so that [her children] wouldn’t have to go into foster care.”
She felt she had no real choice but to participate. Occasionally, she would refuse to participate in a particular sexual act, but then defendant would threaten her. He told her she could end the program by “making love to him” of her own free will.
3. The sexual acts.
a. One count of forcible oral copulation
(out of counts 2, 4, 7, and 8).
In defendant’s bedroom, he told A.T. to take her pants off and lie down on the bed. He then got down on his knees and orally copulated her for about five minutes. She cried and asked him to stop. She kept trying to “scoot away,” but he held her down by the legs so she could not escape.
b. Two counts of forcible oral copulation
(out of counts 2, 4, 7, and 8).
In defendant’s bedroom, he pulled his pants down. He told A.T. she could either orally copulate him or have intercourse with him. She felt that she had no choice but to do one or the other. She orally copulated him while he was standing and she was on her knees.
On another occasion, in defendant’s home office, sometime after dark, he asked A.T. to orally copulate him. He was sitting on the couch and she was on her knees. After she did it, she cried. He told her “if [she] kept crying, . . . he [would] make [her] suck it again.”
c. Two counts of forcible rape (counts 1 and 6), one count of incest (count 5), and one count of forcible oral copulation
(out of counts 2, 4, 7, and 8).
In A.T.’s apartment, defendant had her go into the bathroom with him. He told her to take off her pants. The bathroom was small, but defendant had her get on the floor and put his penis in her vagina. He then made her get on her knees and orally copulate him. She was crying.
Another time, in defendant’s bedroom, he told A.T. to take off her clothes and to lie down on the bed. He got on top of her and inserted his penis into her vagina.
Whenever A.T. cried during intercourse, defendant would make her choose between having intercourse again or orally copulating him.
d. One count of forcible sexual penetration
(out of counts 3 and 9).
In A.T.’s kitchen, defendant unzipped her pants and put his fingers in her vagina. As he did so, he kept asking her, “Do [you] belong to [me]? Do[] [I] own [you]?”
e. Sexual battery (count 10).
In defendant’s kitchen, when A.T. was wearing a T-shirt and pants, defendant touched her breasts over her clothing.
f. Manual masturbation.
Defendant would tell A.T. to give him a “hand job” in exchange for him doing things for her. For example, after A.T. had an argument with her stepmother, defendant would intercede with the stepmother; then he would “try to make [A.T.] show appreciation towards him by giving him a hand job.” If she declined, “[h]e would make [her] do it anyways.”
She gave him at least one hand job in his home office. She gave him another in the bathroom of her apartment. Sometimes, to convince her to give him a hand job, he would tell her that afterwards, “[I]t’s going to be over.”
g. A.T. audio records a sexual encounter, including one count of forcible sexual penetration (out of counts 3 and 9).
On April 5, 2014, A.T. and her children went over to defendant’s house. After the stepmother left for work, defendant called A.T. into his bedroom.
Earlier that week, A.T.’s stepmother had accused her of neglecting her youngest child, who had mild eczema. Defendant told A.T. that “he was going to try his best to keep [the stepmother] off [A.T.’s] back,” but in return, A.T. had to “suck his penis.”
He told A.T. to go into the bathroom and take off her clothes. She complied, but then she put on a bathrobe. She also set her cell phone to audio record and put it in the pocket of the robe. The resulting recording was played for the jury.
When A.T. went back in the bedroom, defendant was lying on the bed. She begged him, “Please don’t make me do this . . . .” He said, “I won’t make you suck my dick.” “But you got to do something else for me to show that you appreciate what I did.” “Just lick it . . . or . . . [y]ou can give me a hand job . . . .”
A.T. started crying. He told her, “Okay. No crying. No crying, or we go back to your original thing. Okay? If you cry, you suck. You understand that. One tear, you suck.” A.T. testified that the “original thing” referred to oral copulation.
Defendant commented, “You need to shave. You wanna lick that?” A.T. testified that defendant was referring to her vagina. When she declined, defendant said, “Pretty soon, I’m not going to give you no choices. . . . I asked you to end it, and you haven’t.” “Next Saturday’s going to be the last time, and I’m going to do whatever I want.” “So you are going to suck next Saturday. I’ll do everything I want to do with you. That okay? And . . . while you give me a hand job, I’m going to be playing with this. Okay? You want to do it now?” A.T. testified that she gave defendant a hand job while he put his fingers in her vagina.
C. A.T. Contacts the Police.
1. First pretext call.
On April 8, 2014, A.T. went to the police and gave them the audio recording. The police then had her make a pretext call to defendant.
During the pretext call, defendant was angry that A.T. had not been returning his calls. There was this dialog:
“[A.T.]: I just did not feel like talking to you because of what, what you put me through.
“[Defendant]: . . . I didn’t put you through nothing . . . .
“[A.T.]: Yes, you did.
“[Defendant]: You know something, that was a decision you made also.
“[A.T.]: No I didn’t. I told you I didn’t want to be part of that.
“[Defendant]: Okay, okay. It’s just my fault.”
She said, “My mind was still messed up from all the stuff that happened.” He replied, “[I]f your mind is so messed up then maybe you shouldn’t have the kids.”
They also said:
“[A.T.]: . . . I’m not going to have sex with you anymore, I’m not going to do any of that other, any of that with you anymore.
“[Defendant]: What are you talking about . . . ?
“[A.T.]: You know what I’m talking about Dad.
“[Defendant]: . . . [W]hat did I tell you the other day?
“[A.T.]: That it was going to be over.
“[Defendant]: And that’s it.
“[A.T.]: You’ve done it before, Dad, but, what, what makes it, what makes it change now?
“[Defendant]: Because, I told you, and I didn’t tell you that before.
“[A.T.]: Yes you have. You’ve told me plenty of times that it’s going to be over and you kept, having me, making me do things with you. You kept making me have oral sex with you.
“[Defendant]: . . . I told you, I’m done with it.”
2. Second pretext call.
Some 15 or 20 minutes later, the police had A.T. make a second pretext call. In it, she threatened to call her stepmother and “explain what’s going on.” Defendant begged her, “[P]lease don’t do this.” He added, “I promise you. I will not do it anymore,” “it’s over.” “I will not go to [the father of your children] and I will never bring that up again.”
After she said, “I’ll have to think about it,” he said, “Okay but then we’ll both go to jail . . . , you don’t realize that. We’ll both go to jail.”
Finally, there was this exchange:
“[A.T.]: You put this on me. I told you plenty of times I didn’t want to do this.
“[Defendant]: . . . Okay . . . .
“[A.T.]: You pushed me and pushed me Dad.
“[Defendant]: . . . I did.”
DISCUSSION
I
CONVICTIONS BASED ON “GENERIC TESTIMONY”
Defendant contends that all of his convictions (other than those based on the audio recording) violate due process because they are based on “generic testimony.”
Generic testimony, in this context, means testimony by a victim regarding the commission of multiple sexual offenses when it does not “give specific details regarding the time, place and circumstances” — “testimony describing a series of essentially indistinguishable acts of molestation.” (People v. Jones (1990) 51 Cal.3d 294, 299-300 (Jones).) Defendant defines it as “testimony in which the victim failed to provide any specificity beyond the location and the type of sexual conduct.”
Generic testimony has been “a recurrent problem in the prosecution of so-called resident child molesters: Because of the age of the victim and the repeated and continual nature of the offenses, trial testimony often failed to identify with specificity the date or place of particular charged acts, and the defense’s ability to respond to specific charges arguably was impaired. A line of Court of Appeal decisions beginning with People v. Van Hoek (1988) 200 Cal.App.3d 811 . . . reversed convictions obtained through the use of such ‘generic’ testimony, concluding that the inability to effectively defend against such charges deprived defendants of due process and that such proceedings improperly compromised the constitutional guarantee of jury unanimity. [Citations.]” (People v. Johnson (2002) 28 Cal.4th 240, 242-243, fn. omitted.)
In Jones, supra, 51 Cal.3d 294, however, the Supreme Court disapproved Van Hoek and its progeny. (Jones, at pp. 320-321, 322.) Rather, it held that the use of generic testimony to prove child molestation charges does not, in itself, violate due process. (Id. at pp. 316-322.)
First, the court concluded that generic testimony does not violate the right to notice. (Jones, supra, 51 Cal.3d at pp. 317-318.) A “defendant has no right to notice of the specific time or place of an offense, so long as it occurred within the applicable limitation period.” (Id. at p. 317.) Ordinarily, the necessary notice is provided, not by the trial testimony, but rather by the information, by the preliminary hearing, and by discovery. (Id. at pp. 317-318.)
Second, it concluded that “generic child molestation charges by no means deprive the defendant of a reasonable opportunity to defend.” (Jones, supra, 51 Cal.3d at p. 320.) “[I]f the defendant has . . . had continuous access to the victim, neither alibi nor wrongful identification is likely to be an available defense. [Citation.]” (Id. at p. 319.) The defendant can defend by other means, including by cross-examination, by impeachment, by expert testimony, and by taking the stand and denying the generic testimony. (Id. at p. 320.)
Third, generic testimony does not necessarily violate jury unanimity. “[A]lthough the jury may not be able to readily distinguish between the various acts, it is certainly capable of unanimously agreeing that they took place in the number and manner described.” (Jones, supra, 51 Cal.3d at p. 321.) “For example, if the victim testified that an act of oral copulation occurred once each month for the first three months of 1990, and the People charge three counts of molestation, the jury’s unanimous conclusion that these three acts took place would satisfy the constitutional requirement of unanimity.” (Ibid.)
The court further held that generic testimony can be substantial evidence sufficient to support a conviction, provided the victim describes: (1) “the kind of act or acts committed with sufficient specificity . . . to assure that unlawful conduct indeed has occurred and to differentiate between the various types of proscribed conduct”; (2) “the number of acts committed with sufficient certainty to support each of the counts alleged”; and (3) “the general time period in which these acts occurred . . . to assure the acts were committed within the applicable limitation period.” (Jones, supra, 51 Cal.3d at p. 316.)
The People argue that the evidence in this case was not generic. We will assume, however, without deciding, that it was within Jones’s definition of generic testimony.
Defendant’s whole argument is that Jones is distinguishable when the victim is an adult who was not living with the defendant. As he acknowledges, however, Jones noted that “even a mature victim might understandably be hard pressed to separate particular incidents of repetitive molestations by time, place or circumstance. [(]See People v. Luna (1988) 204 Cal.App.3d 726, 748 . . . .)” (Jones, supra, 51 Cal.3d at p. 305.) Defendant asserts (on no authority but his own) that by “mature victim,” the Supreme Court meant an older child, not an adult. However, Luna had stated that sometimes “the number of offenses is so numerous even an adult would not be able to count them . . . .” (People v. Luna, supra, 204 Cal.App.3d at p. 748.)
Moreover, the reasoning in Jones did not turn on whether the victim was an adult or a child. To the contrary, the court noted that earlier cases seemed to “reflect persistent doubts” about the credibility of a child witness; hence, they had been “undermined” by empirical studies showing that child witnesses can be reliable, as well as by statutory changes recognizing that child witnesses can be credible. (Jones, supra, 51 Cal.3d at pp. 314-315.) It concluded: “[I]n determining the sufficiency of generic testimony, we must focus on factors other than the youth of the victim/witness.” (Id. at p. 315, italics added.) Evidently, the court viewed itself as eliminating old rules applicable only to child witnesses, not creating new ones.
One and only one aspect of the court’s analysis turned on whether the defendant lived with the victim — namely, when it noted that, in that event, the defendant is not likely to be able to claim alibi or mistaken identity as a defense. Here, however, because A.T. was a member of defendant’s family and visited him regularly, the same is true. The bottom line is that, whenever an adult victim’s claim to have trouble distinguishing between the charged sex acts is plausible, the reasoning in Jones applies. Moreover, the plausibility of that claim is up to the jury; if the jury finds it not plausible, it will disbelieve the victim and the defendant will not be harmed.
Much as defendant fails to explain why Jones does not apply here, he fails to explain how his right to due process was violated. He had all the notice of the charges to which he was constitutionally entitled under Jones. He had a reasonable opportunity to defend, as Jones suggested, including by cross-examination, by impeachment, by expert testimony, or by taking the stand. He implies (though he does not argue) that he was prevented from raising an alibi defense or a consent defense. However, as he concedes, the prosecution is not required to establish the date and time of a crime with sufficient specificity to allow the defendant to assert an alibi. (People v. Avina (1989) 211 Cal.App.3d 48, 56.) And he could have raised a consent defense — if one existed — by taking the stand. Finally, his right to jury unanimity was not violated, because A.T. described sex acts that could be distinguished by nature of the act, by location, and sometimes by clothing, position, and/or words that were spoken.
We therefore conclude that, even assuming that defendant was convicted based on generic testimony, this did not violate his constitutional rights.
II
THE SUFFICIENCY OF THE EVIDENCE OF DURESS
Counts 1 through 4 and 6 through 9 charged sexual offenses that required “force, violence, duress, menace, or fear of immediate and unlawful bodily injury . . . .” (Pen. Code, §§ 261, subd. (a)(2), 288a, subd. (c)(2)(A), 289, subd. (a)(1)(A).) Defendant concedes that, in connection with one count of forcible oral copulation — the one based on the incident in which he held A.T. down by the legs — there was sufficient evidence of force. Otherwise, however, he contends that there was insufficient evidence of force, violence, duress, menace, or fear of injury.
“‘When considering a challenge to the sufficiency of the evidence to support a conviction, 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. [Citation.] We presume in support of the judgment the existence of every fact the trier of fact reasonably could infer from the evidence. [Citation.] 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. [Citation.] . . . .’ [Citation.]” (People v. Covarrubias (2016) 1 Cal.5th 838, 890.)
“[T]he relevant inquiry . . . is whether, in light of all the evidence, ‘any reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt.’ [Citation.]” (People v. Zaragoza (2016) 1 Cal.5th 21, 44.)
The People do not contend that there was any evidence of force, violence, menace, or fear of injury, so we will focus on duress. “‘[D]uress’ means a direct or implied threat of force, violence, danger, or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to perform an act which otherwise would not have been performed, or acquiesce in an act to which one otherwise would not have submitted.” (Pen. Code, § 261, subd. (b); see CALCRIM Nos. 1015, 1045.)
“‘Duress can arise from various circumstances, including the relationship between the defendant and the victim and their relative ages and sizes. [Citations.] “Where the defendant is a family member and the victim is young, . . . the position of dominance and authority of the defendant and his continuous exploitation of the victim” is relevant to the existence of duress. [Citation.]’ [Citation.]” (People v. Hale (2012) 204 Cal.App.4th 961, 979.)
Here, the grinding incident was not charged as a separate crime. Nevertheless, it sowed the seeds of later duress. As a 13-year-old child, A.T. had complied with defendant’s inappropriate and sexualized discipline because he had a “serious” look on his face, which meant that she was in “major trouble.” Hence, even when she was a 23-year-old woman, once he made the inappropriate and sexualized demand that she take off her nightgown and did so with a “serious” look on his face, defendant was exploiting his dominance and authority. A.T. testified that she complied with this demand because she was concerned about the “outcome” if she did not. Giving someone an order implies an “or else.” Thus, this was sufficient evidence of an implied threat of retribution.
Thereafter, having established his power over A.T., defendant reinforced it with express threats of retribution. He threatened to have her children taken away, to make her go to jail, and to impregnate her. He also threatened that, if she did not perform one sexual act, she would have to perform a different sexual act. She did not want to participate in any of the sexual acts; thus, manifestly, her will was overcome.
In the audio recording, defendant did not make any express threats. However, he showed that he knew that he was compelling A.T. to act against her will. For example, he said, “I won’t make you suck my dick.” “But you got to do something else for me to show that you appreciate what I did.” He also said, “No crying. . . . If you cry, you suck.” Similarly, he said, “Next Saturday’s going to be the last time, and I’m going to do whatever I want.”
Defendant argues that, because there was no evidence of the dates of the threats or of the dates of the sexual acts, there was insufficient evidence that the threats caused A.T. to participate. However, as discussed, he used duress in the very first incident; his resulting dominance reasonably would have influenced A.T. during the later incidents. Moreover, A.T. testified that defendant “always” threatened her in connection with the sexual acts. With regard to all of the sexual acts, she participated because she felt she had no other choice.
Defendant relies on People v. Espinoza (2002) 95 Cal.App.4th 1287, in which the court found insufficient evidence of duress. (Id. at pp. 1318-1322.) There, however, the only evidence of duress was that the defendant was the father of the 12-year-old victim, and as such, older and bigger; moreover, the victim was afraid of him. (Id. at pp. 1292, 1319.) However, he never threatened her, and she never resisted him physically or verbally. (Id. at p. 1293.) Thus, as defendant puts it himself, Espinoza stands for the proposition that “[t]he mere fact that a perpetrator is the parent of the victim does not establish duress.” It is not controlling here, because defendant expressly and implicitly threatened A.T.
We therefore conclude that there was sufficient evidence of duress with regard to all of the forcible sexual offenses.
III
EVIDENCE OF A PRIOR SEXUAL OFFENSE AGAINST THE SAME VICTIM
Defendant contends that the trial court erred by admitting evidence that defendant committed a sexual offense against the same victim in 2003.
A. Additional Factual and Procedural Background.
Defendant’s 2003 sexual offense against A.T. was the subject of cross-motions in limine. The prosecutor argued that it was relevant “to explain to the jury why this 23-year-old victim submits under duress to the conduct by the defendant . . . .”
The trial court considered the following factors:
1. “Well, the same victim, the nature of the events are sexual, so in my mind it then becomes relevant.”
2. “It’s older, over 10 years old.”
3. “The degree of certainty of its commission, that’s a question because of the district attorney’s office allowing the defendant to plead to something that was nonsexual.”
4. “The likelihood of confusing, misleading, or distracting the jurors . . . , I’m not sure that there’s that necessarily.”
5. “Its similarity to the charged offense, that does not sound like that’s an issue.”
6. “Its prejudicial impact . . . [it] certainly would be prejudicial to the defense.”
7. “The burden of the defendant in defending against an uncharged offense does not apply because this was a felony plea [to] child abuse.”
8. The availability of less prejudicial alternatives . . . , I’m not sure that there are any . . . .”
The trial court then ruled “that the probative value outweighs its prejudice.” It therefore allowed the prosecution to introduce the evidence, although not the fact that defendant had been convicted.
B. Analysis.
“An exception to the general rule against admitting propensity evidence is Evidence Code section 1108, subdivision (a), which provides for the admissibility of evidence of other sexual offenses in the prosecution for a sexual offense, subject to Evidence Code section 352.” (People v. Jones (2012) 54 Cal.4th 1, 49.)
“‘[A]vailable legislative history indicates section 1108 was intended in sex offense cases to relax the evidentiary restraints [Evidence Code] section 1101, subdivision (a), imposed, to assure that the trier of fact would be made aware of the defendant’s other sex offenses in evaluating the victim’s and the defendant’s credibility. In this regard, section 1108 implicitly abrogates prior decisions . . . indicating that “propensity” evidence is per se unduly prejudicial to the defense.’ [Citation.]” (People v. Abilez (2007) 41 Cal.4th 472, 502.)
“When determining the prejudicial impact of other sexual offenses admitted under Evidence Code section 1108, the trial court may consider the ‘nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant’s other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense. [Citations.]’ [Citation.]” (People v. McCurdy (2014) 59 Cal.4th 1063, 1098-1099.)
“Like any ruling under section 352, the trial court’s ruling admitting evidence under section 1108 is subject to review for abuse of discretion. [Citations.]” (People v. Story (2009) 45 Cal.4th 1282, 1295.) “[A] trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it.” (People v. Carmony (2004) 33 Cal.4th 367, 377.)
Evidence that defendant had a propensity to commit sexual offenses against A.T. was substantially probative. “‘In the determination of probabilities of guilt, evidence of character is relevant. [Citations.]’ [Citation.] Indeed, the rationale for excluding such evidence is not that it lacks probative value, but that it is too relevant.” (People v. Fitch (1997) 55 Cal.App.4th 172, 179.)
It was particularly probative here, because it was substantially similar to the first 2013-2014 incident, when defendant ordered A.T. to grind on him. Both times, A.T. was the victim. Both times, she complied with defendant’s demand because he had a serious look on his face. Both times, defendant claimed to be teaching her a lesson — in 2003, what it was like to be raped, and in 2013-2014, how to be a better woman. And both times, the sexual conduct consisted of pelvis-to-pelvis rubbing.
The evidence was additionally probative because it helped to show duress. If the jury had not heard about the 2003 incident, it might well have questioned A.T.’s testimony that a mere serious look from defendant could make her, when she was an adult, do something sexual that she did not want to do. The evidence of the 2003 incident showed that defendant had inculcated this response in her when she was still a child.
At the same time, the evidence was not unduly prejudicial. Admittedly, it was somewhat inflammatory, in that A.T. had been a child at the time. However, unlike the charged crimes, it did not involve any actual penetration and it was not repeated.
Defendant argues that the 2003 incident was remote. However, “the passage of a substantial length of time does not automatically render . . . prior incidents prejudicial.” (People v. Soto (1998) 64 Cal.App.4th 966, 991; see, e.g., People v. Branch (2001) 91 Cal.App.4th 274, 284 [30 years earlier not too remote]; People v. Waples (2000) 79 Cal.App.4th 1389, 1395 [20 years earlier not too remote].) Here, it is not unreasonable to suppose that a propensity to commit sexual offenses against a particular victim could persist for 10 years.
Defendant also argues that, because this evidence forced him to introduce evidence that A.T. had recanted her account, it resulted in undue consumption of time. However, the evidence of the incident, plus the evidence of her recantation, took up not more than 24 transcript pages and did not require either side to call any witness other than A.T.
Next, defendant argues that the jury was not told about his guilty plea, and therefore it may have been tempted to convict him as punishment for his 2003 offense. (See People v. Ewoldt (1994) 7 Cal.4th 380, 405.) If that was a concern, however, he could have introduced evidence of the guilty plea himself. Moreover, the jury was told that A.T. was placed in foster care as a result of the incident, so it knew that the incident did come to the attention of the authorities. In any event, it was unlikely to punish defendant for the uncharged offense when, as here, the charged offenses were significantly more serious. (People v. Tran (2011) 51 Cal.4th 1040, 1047.)
Finally, defendant complains that the jury was not instructed regarding the proper and improper use of the challenged evidence. (E.g., CALCRIM No. 1191A [Evidence of Uncharged Sex Offense].) However, he does not argue that this was, in itself, reversible error. It was not; such a limiting instruction is required only on request (Evid. Code, § 355; People v. Cottone (2013) 57 Cal.4th 269, 293), and defense counsel did not request one. Defendant merely argues that the prejudice from the asserted evidentiary error was compounded by the lack of a limiting instruction. Because we find no such error, we need not consider prejudice.
We therefore conclude that the trial court did not abuse its discretion by admitting the evidence of the 2003 sexual offense.
IV
FAILURE TO INSTRUCT ON A LESSER INCLUDED OFFENSE
Defendant contends that the trial court erred by failing to instruct that sexual battery was a lesser included offense of forcible sexual penetration.
“An instruction on a lesser included offense must be given only if there is substantial evidence from which a jury could reasonably conclude that the defendant committed the lesser, uncharged offense but not the greater, charged offense. [Citation.]” (People v. Thomas (2012) 53 Cal.4th 771, 813.)
Forcible sexual penetration, as relevant here, is committed by “causing the penetration, however slight, of the genital or anal opening of any person . . . for the purpose of sexual arousal, gratification, or abuse by any foreign object, substance, instrument, or device, or by any unknown object” (Pen. Code, § 289, subd. (k)(1)), “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. (a)(1)(A)).
Sexual battery, again as relevant here, is committed by “touch[ing] an intimate part of another person while that person is unlawfully restrained . . . if the touching is against the will of the person touched and is for the purpose of sexual arousal, sexual gratification, or sexual abuse . . . .” (Pen. Code, § 243.4, subd. (a).)
We may assume, without deciding, that sexual battery is a lesser included offense of forcible sexual penetration. On that assumption, forcible sexual penetration has two elements that sexual battery lacks: (1) force, violence, duress, menace, or fear of injury, and (2) penetration. (People v. Ortega, supra, 240 Cal.App.4th at pp. 966, 972.) We may also assume, without deciding, that there was substantial evidence that one or both of these elements were absent.
From these assumptions, it follows that the trial court did err. However, “[i]t is well established that ‘[e]rror 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.’ [Citations.]” (People v. Lancaster (2007) 41 Cal.4th 50, 85.)
Defendant argues that the evidence of duress was “seriously problematic.” He concludes that there is a reasonable probability that the jury would have convicted him of the lesser offense. However, we know that the jury also found defendant guilty of forcible rape and forcible oral copulation. With the exception of one count of forcible oral copulation, the evidence of duress was essentially the same for all of these counts. (See part II, ante.) It follows that, even if the jury had been instructed on felony sexual battery, it would still have found defendant guilty of forcible sexual penetration. (People v. Melton (1988) 44 Cal.3d 713, 745-747 [failure to instruct on theft, as lesser of robbery, was harmless, because jury found defendant guilty of burglary and murder and thus found that he formed intent to steal before killing]; People v. Bolden (1996) 44 Cal.App.4th 707, 715 [failure to instruct on recklessly burning structure, as lesser of arson of structure, was harmless, because jury found defendant guilty of exploding destructive device with specific intent to injure or destroy].) The asserted error was therefore harmless under any standard.
V
FAILURE TO STATE REASONS FOR FULL CONSECUTIVE SENTENCES
Defendant contends that the trial court erred by failing to state reasons for imposing full consecutive sentences.
A. Additional Factual and Procedural Background.
At sentencing, defendant made a statement to the court in which he admitted that he was “responsible.” However, he implied that any sex acts were consensual, saying, “I made the decision to have a relationship with [A.T.] when I knew better.” He claimed that the case was “not what it seems.” He insisted that there was “no sexual activity on the recording.” He apologized to “all of the people that [he] hurt due to this relationship, especially [his] family”; he did not apologize specifically to A.T.
Defense counsel then argued: “[S]ome of these offenses are not statutorily required to be run consecutively, that would be the incest charge and the misdemeanor. We would ask that those be imposed concurrently.”
The trial court responded: “Why? Why would I do that when the man has not shown any remorse for what he did? . . . Why would I even consider that?”
This discussion ensued:
“[DEFENSE COUNSEL]: Your Honor, he did say that he apologized for his actions. He did take responsibility for his choices.
“THE COURT: Okay. Stop now.
“[DEFENSE COUNSEL]: Yes, your Honor.
“THE COURT: Because I don’t buy that.
“[DEFENSE COUNSEL]: Yes, your Honor.
“THE COURT: Not based on what he said.”
It then sentenced defendant to eight years (the upper term), to be served consecutively, for each of the forcible sex offenses (counts 1 through 4 and 6 through 9); plus eight months (one-third the midterm) for incest (count 5), also to be served consecutively; plus 180 days for sexual battery.
B. Analysis.
Penal Code section 667.6 applies to certain specified sex crimes, including forcible rape, forcible oral copulation, and forcible sexual penetration. (Id., subd. (e)(1), (e)(7), (e)(8).) It provides that the trial court must impose a full consecutive term for each such crime “if the crimes involve separate victims or involve the same victim on separate occasions.” (Id., subd. (d).) The trial court may impose a full consecutive term for each such crime “if the crimes involve the same victim on the same occasion.” (Id., subd. (c).)
If the trial court is not required to impose a full consecutive term under Penal Code section 667.6, subdivision (d), but it does so anyway in the exercise of its discretion under subdivision (c), it must state its reasons. (Cal. Rules of Court, rule 4.426(b).)
Defendant argues that there was insufficient evidence that the forcible sex offenses occurred on separate occasions. We may so assume, without deciding. Even if so, however, the trial court still had discretion to impose full consecutive sentences, though it had to state reasons.
A trial court’s failure to state reasons is forfeited, however, unless raised below. (People v. Boyce (2014) 59 Cal.4th 672, 730.) Here, defense counsel never objected that the trial court had failed to state reasons. Quite the contrary — he conceded that the forcible sex offenses were “statutorily required to be run consecutively,” and thus, essentially, that no statement of reasons was required.
Defendant notes that forfeiture does not apply when there was no “meaningful opportunity to object . . . .” (People v. Scott (1994) 9 Cal.4th 331, 356.) He argues that defense counsel had no such opportunity, because the trial court interrupted him and told him, “Stop now.” At that point, however, defense counsel was trying to argue that defendant was remorseful; the trial court interrupted him because it was convinced by defendant’s statement that he was not. The failure to state reasons for full consecutive sentencing was a logically distinct topic; there is no reason to suppose that, if defense counsel had tried to raise this as an issue, the trial court would have refused to listen to him.
Separately and alternatively, the failure to state reasons was harmless. The trial court imposed consecutive sentences for incest and sexual battery, rejecting defense counsel’s request for concurrent sentences, specifically because defendant lacked remorse. It felt very strongly about this. It seems clear that, if defense counsel had asked the trial court to state reasons for imposing full consecutive sentences for the forcible sexual offenses, the trial court would, once again, have cited defendant’s lack of remorse. It is not reasonably probable that it would have imposed a concurrent sentence for any of the offenses. (See People v. Davis (1995) 10 Cal.4th 463, 552.)
VI
APPLICATION OF SECTION 654 TO THE INCEST COUNT
Defendant contends that the trial court violated Penal Code section 654 by failing to stay the sentence on the incest count. The People concede the error.
Penal Code section 654, subdivision (a), as relevant here, provides: “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.”
Incest is defined as sexual intercourse between certain relatives, including a parent and a child, where both of them are at least 14 years old, even if they both consent. (Pen. Code, § 285; People v. Stratton (1904) 141 Cal. 604, 606; People v. Scott (2007) 157 Cal.App.4th 189, 192, fn. 3.)
Defendant was convicted on two counts of forcible rape. The evidence showed only two instances in which he had intercourse with A.T. It follows that one or the other of the forcible rapes also constituted the incest. Because both convictions are based on the identical act, multiple punishment is barred under Penal Code section 654. (See also People v. Hicks (1993) 6 Cal.4th 784, 791-797 [Pen. Code, § 667.6, subd. (c), operates as an exception to Pen. Code, § 654 when both crimes are based on separate acts committed in indivisible transaction, but not when both crimes are based on same act]; People v. Siko (1988) 45 Cal.3d 820, 823-826 [Pen. Code, § 667.6, subd. (c), does not operate as an exception to Pen. Code, § 654 when both crimes are based on the same act].)
We will modify the judgment accordingly.
VII
CONFLICTING RESTITUTION FINE
AND PAROLE REVOCATION FINE AMOUNTS
Defendant contends that the trial court erred by imposing a parole revocation fine and a restitution fine in different amounts. He argues that the greater fine must be reduced to the lesser amount. The People agree that the trial court erred, but they ask us to remand to give the trial court an opportunity to resolve the discrepancy.
A. Additional Factual and Procedural Background.
The probation officer’s report recommended that defendant pay a restitution fine of $10,000 and a parole revocation restitution fine of $10,000.
During the oral pronouncement of judgment, the trial court stated:
“The Court orders the defendant to pay a restitution fine pursuant to Penal Code section 1204.2 in the amount of $1,000 . . . .
“The defendant is ordered to pay a restitution fine pursuant to Penal Code section 1202.45 in the amount of $10,000, and that’s suspended pending successful completion of parole, at which time the fine will be permanently stayed and only imposed upon a revocation of parole.” (Italics added.)
The sentencing minute order, however, states that both fines were set at $10,000. The abstract of judgment likewise recites that both fines were set at $10,000.
B. Discussion.
The trial court was required to impose both a restitution fine (Pen. Code, § 1202.4) and a parole revocation restitution fine (Pen. Code, § 1202.45) — each in the same amount.
When there is an irreconcilable conflict between the clerk’s transcript and the reporter’s transcript, the “older rule” is that the reporter’s transcript must be accepted; however, the “modern rule” is to accept whichever “should be given greater credence in the circumstances of the case. [Citations.]” (People v. Pirali (2013) 217 Cal.App.4th 1341, 1346; see People v. Smith (1983) 33 Cal.3d 596, 599.)
Here, the trial court made handwritten annotations on the probation officer’s report, indicating which recommendations it was and was not accepting. With respect to both fines, it circled the typed figure “10,000.00.” Thus, it is clear to us, beyond any room for argument, that the trial court intended to set both fines in the same amount — namely $10,000 — and it simply misspoke (or was misreported).
Because the sentencing minute order and the abstract of judgment are consistent with this conclusion, it does not require us to modify the judgment.
DISPOSITION
The judgment is modified by staying execution of the consecutive eight-month term imposed on count 5 (incest); thus, the total term is reduced to 64 years. This stay will become permanent once defendant has served the rest of his sentence. The judgment as thus modified is affirmed. The superior court clerk is directed to prepare a new sentencing minute order and a new abstract of judgment and to forward a certified copy of the amended abstract to the Director of the Department of Corrections and Rehabilitation. (Pen. Code, §§ 1213, 1216.)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.


We concur:

McKINSTER
J.

FIELDS
J.