P. v. Adams

Filed 9/17/08 P. v. Adams CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from the Superior Court of Riverside County. J. Thompson Hanks, Judge. Affirmed in part and reversed in part.

Jean Matulis, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, David Delgado-Rucci, and Ronald A. Jakob, Deputy Attorneys General, for Plaintiff and Respondent.

Edward Michael Adams appeals his conviction for multiple sexual offenses against five women. We reverse his conviction as to one victim for instructional error. We otherwise affirm his conviction and sentence.

PROCEDURAL HISTORY

A second amended information charged defendant with respect to five victims, identified as Jane Does Nos. 1 through 5, as follows:

Doe 1:^[1]

Count 1: Oral copulation by force, violence, duress, menace and fear of immediate and unlawful bodily injury (Pen. Code, 288a, subd. (c)(2));^[2]

Count 2: Felony sexual battery ( 243.4, subd. (d)).

Doe 2:

Count 3: Oral copulation by force, violence, duress, menace and fear of immediate and unlawful bodily injury ( 288a, subd. (c)(2));

Count 4: Felony sexual battery ( 243.4, subd. (d));

Count 5: Misdemeanor sexual battery ( 243.4, subd. (e)(1));

Count 6: Misdemeanor sexual battery ( 243.4, subd. (e)(1));

Count 7: Misdemeanor sexual battery ( 243.4, subd. (e)(1)).

Doe 3:

Count 8: Felony sexual battery ( 243.4, subd. (d));

Count 9: Felony sexual battery ( 243.4, subd. (d)).

Doe 4:

Count 10: Oral copulation by force, violence, duress, menace and fear of immediate and unlawful bodily injury ( 288a, subd. (c)(2));

Count 11: Felony sexual battery ( 243.4, subd. (a));

Count 12: Misdemeanor sexual battery ( 243.4, subd. (e)(1));

Count 13: Misdemeanor sexual battery ( 243.4, subd. (e)(1)).

Doe 5:

Count 14: Kidnapping for purpose of rape and other sexual offenses ( 209, subd. (b)(1));

Count 15: Oral copulation by force, violence, duress, menace and fear of immediate and unlawful bodily injury ( 288a, subd. (c)(2));

Count 16: Penetration by foreign object by force, violence, duress, menace and fear of immediate and unlawful bodily injury ( 289, subd. (a)(1));

Count 17: Rape by force, violence and fear of immediate and unlawful bodily injury ( 261, subd. (a)(2)).

The information also alleged that defendant committed an offense against more than one victim within the meaning of section 667.61, subdivision (e)(5), and that he kidnapped Doe 5 during the commission of count 17, within the meaning of section 667.61, subdivision (e)(1).

A jury convicted defendant on all counts and returned true findings on the section 667.61 multiple victim and kidnapping allegations. The court sentenced defendant to life with the possibility of parole on count 14; to three terms of 25 years to life on counts 15, 16 and 17; to three terms of 15 years to life on counts 1, 3 and 10; and to a total determinate term of eight years on the remaining felony counts (counts 2, 4, 8, 9 & 11), with concurrent 180-day terms for each of the misdemeanor counts (counts 5, 6, 7, 12 & 13).

Defendant filed a timely notice of appeal.

FACTS

Defendant created a sophisticated scheme to induce women to put themselves in a position where he could take advantage of them sexually.^[3] Although there were variations among the incidents, which we describe in more detail below, they followed a similar pattern. He would call a place of business and speak to a female employee. He would manipulate the woman into guessing his identity and would pretend to be someone high up in the company she worked for. He would tell the woman that he wanted her to meet with a potential client and that if she obtained the contract with the potential client, she would be rewarded with a better job. He would tell her that she had to meet with the client immediately, because the client was about to leave the state. He would tell her where to meet the client. The woman would pick up the clientdefendantwho would then manipulate her into taking him to an isolated location or to a hotel, where he would manipulate and/or intimidate her into allowing him to fondle her and, in most instances, force her to masturbate him or perform oral sex.

Doe 1

Doe 1 was the branch manager at an Enterprise car rental office in Riverside. One morning, defendant called and manipulated Doe 1 into naming her boss and then claimed to be her bosss boss. He told her he had heard good things about her and wanted to offer her a position in public relations. He told her there was a potential client in town who could offer the company several million dollars in business. The client, Michael Day, was in town on a golfing trip and was returning to Texas that afternoon. He wanted Doe 1 to take the client to lunch and sell the company. He directed her to meet the client in front of the Home Depot in Corona. Doe 1 agreed to do so.

Doe 1 met Day, whom she identified as defendant, in front of the Home Depot. Defendant hugged her, then they both got into Doe 1s car. As Doe 1 drove out of the parking lot, she asked defendant where he wanted to have lunch and discuss business. Defendant said he was not hungry. He directed her to drive to a large park. He told her to pull over. She parked the car, but did not turn off the engine. After some conversation, Doe 1 became uncomfortable and told defendant she did not want to stay there. He asked her to drive to a residential area because he wanted to look at houses. He directed her to a new development and had her park on an isolated dirt road.

Defendant touched Doe 1 on the shoulder and commented that she was attractive. She asked what he was doing. He replied, Well, how are you going to sell the company? When she pushed his arm away, he said he would hate to have to tell her boss that she proved him wrong. He told Doe 1 that she was pretty and touched her right thigh as he undid his pants. Doe 1 asked what he was doing. Defendant said that her boss had assured him that she would take care of him. Doe 1 told him that she wasnt comfortable. Defendant began to masturbate and continued talking about the need for her to sell the company and that her boss had said shed take care of him. He kept talking about her promotion. She said Im not doing those things, and told him to [p]ut [his] dick back in [his] pants. He grabbed her hand and placed it on his penis, forcing her to masturbate him. She yanked her hand away. Defendant then grabbed her neck and pushed her head down toward his penis. His penis briefly entered her mouth. Doe 1 pulled away and pushed herself as far away from him as possible. Defendant continued to masturbate until he ejaculated. He told her that he would tell her boss that she took care of him and that he would do business with Enterprise. She no longer believed that the incident had anything to do with a job.

She drove him back to the Home Depot and dropped him off. She then went to a store to purchase some nylons because hers had a run and because she wanted to compose herself. Afterward, she called a friend and told her what happened. The friend accompanied her to the police. Doe 1 testified that defendant had kept one hand in his pocket and that she thought he might have a weapon. She also felt isolated and froze[n], and just wanted to stay calm and get out of the situation safely.

Doe 2

Doe 2, who was 18, worked at LA Fitness in Corona. A man called and asked for her by name. He manipulated her into naming her best friend, Crystal, and told her that he was from a modeling agency Crystal worked for and that Crystal had recommended her for a modeling job. He told her he wanted someone to interview her for the job. He told her to be sexual with the interviewer and to hug him like you want to grab his balls. When Doe 2 asked if he was kidding, the caller said he was.

The caller said that the interviewer was in town from Texas and that he was about to catch a flight. He needed her to meet the man in front of the Home Depot, which was about a block away from LA Fitness. He asked Doe 2 to change from her work clothes into her regular clothing.

Doe 2 changed and drove to Home Depot. She saw defendant standing in front of the store. Defendant greeted her with a big hug, then said they needed to go somewhere secluded so the interview could be personal. She thought he seemed grandfatherly, so she agreed. He directed her to a remote road and had her park behind a building where there were no other cars. After they parked, he rubbed her thigh and then grabbed her, pulling her tight against his body. She tried to push him away. He released her when a car drove by. Doe 2 considered honking her horn, but did not do so because she was afraid it might make him angry and cause him to rape or kill her.

Defendant grabbed Doe 2s hand and manipulated it in a rubbing manner against his crotch, over his pants. She said no and pulled away. He told her it was for the job. He grabbed at her breasts both over and under her clothing and rubbed her vaginal area over her clothing. He pulled her head toward and forced her mouth against his neck. He then removed his penis from his pants and placed her hand on it, forcing her to masturbate him. He placed her hand against his testicles. She pulled away. He grabbed her head and forced it down onto his penis, telling her that Crystal did this. His penis penetrated her lips briefly. He resumed masturbating until he ejaculated. He then told her that she got the job. Doe 2 returned defendant to the Home Depot. After she got home, she told her father what happened. He called the police.

Doe 3

Doe 3, who was 19, was the sales manager at the Guess store at the Brea Mall.^[4] She received a call at work from a man who asked for her by name. The caller claimed to be someone high up in the company. When Doe 3 asked if he was the vice-president, Vince, the caller said she was correct. The caller said Guess was competing with another company to get a contract with Thomas Martin. He asked Doe 3 to meet with Martin and promised her a promotion if she secured the account.

The caller instructed Doe 3 to meet Martin in front of a restaurant at the mall. He said she had to meet Martin right away, because he was only in town for a short while. The caller told Doe 3 to act seductive with Martin. When she asked what he meant, the caller said, Youre a smart girl. You can figure it out.

Doe 3 picked defendant up in front of the restaurant. He asked her to find a hotel where they could relax for awhile. She said she didnt know any hotels in the area. However, she began to drive around. Defendant directed her to pull into a Heritage Inn in Fullerton. He directed her to get a room, and said she would be reimbursed for the cost. She complied.

When they entered the room, Doe 3 went to open the drapes, but defendant asked her not to, saying he had just had eye surgery. She returned to the door of the room to turn on the light, but he asked her not to. Defendant, who was standing across the room near the bed, dropped his pants, exposing himself. Doe 3 asked him what was going on. Defendant told her that Vince had said she would take care of him. Doe 3 refused to engage in any sexual activity with him. Defendant replied that he was not going to touch her and that it would be over soon.

Defendant began to masturbate and asked Doe 3 to hug him. She refused at first, but eventually went over to defendant and put her arm around him. She then moved away, but resumed hugging him after defendant said that Vince had told him that instead of five it would be seven, and that it would be over soon. Doe 3 understood that to mean that she could get a $7,000 bonus rather than a $5,000 bonus. Using a firm voice, defendant instructed Doe 3 to hug him and to kiss his neck as he masturbated. He then instructed her to lie down on the bed and to lift her dress up. He told her to masturbate herself. He kissed her stomach and her toes and touched her breasts beneath her dress. Doe 3 initially refused each of defendants instructions, but ultimately complied. Defendant eventually ejaculated. They left the room and Doe 3 returned defendant to the mall where she had picked him up.

Doe 3 returned to work, but was crying and upset. The store manager had her call the district manager, who told her to call the police. Doe 3 reported the incident to the police.

Doe 4

Doe 4, who was 17, worked at a jewelry cart at the Spectrum mall in Irvine. Defendant approached her at the cart. He said he liked the jewelry, but needed to discuss it with his daughter. He asked for the phone number of the cart. She wrote her name and the phone number on a piece of paper and gave it to him.

About an hour later, a man called the cart and claimed to be Doe 4s bosss boss. He asked if she would be interested in a modeling position to promote the business. She said she would. The man told her she would have to meet a man named David Thomas in front of the mall movie theater and impress him. He told her to do whatever Thomas wanted in order to get Thomas to agree to a business deal. If she succeeded, she would get the job.

Doe 4 greeted defendant with a hug. They got into her car, and he asked her to get a hotel room for the afternoon. She understood that he meant to do sexual stuff. She had thought they were just going to have lunch. Nevertheless, she complied when he directed her to park her car in a parking lot where there were few cars. Prior to that, defendant had touched her a little bit but not anything that bad. He had tried to touch her breast or her leg. After she parked, he put his hand on her bare inner thigh. She pushed his hand away, but had it in her mind that she might have to do something to get the job. She was kind of willing to do something in exchange for the job, but she was also a little scared.

While they were parked, defendant told Doe 4 that she was in competition with a 26-year-old woman he had met with the night before. She said she did not think she could compete because she did not have as much experience. Defendant unzipped his pants and pulled out his penis and pushed Doe 4s head toward his lap. His penis entered her mouth. In Doe 4s words, he did not really force her, but he was making it so that [she] would. She would not have voluntarily done it. She was somewhat scared, but she also wanted the job.

A man came out of a business and walked toward the car. Defendant told Doe 4 to drive away. As she drove, he asked her to find a hotel. He touched her leg and touched her vaginal area under her shorts as she drove. He also touched her breasts. When she would move his hand away, he would ask her, Dont you want this job, or something to that effect.

She drove to one hotel and went in, but was told there were no rooms available. She did not tell anyone at the first hotel what was going on. She drove to a second hotel and went in, but did not see anyone to ask for a room. She returned to the car and told defendant that there were no rooms available. He asked her to go to a third hotel, but she said she had to go back to the Spectrum.

On the way back, Doe 4 told defendant he sounded a lot like the man who had called her at the cart. She had realized that he was not who he said he was. She refused to allow him to touch her. When she dropped him off, she said she knew who he was. He said, Yeah, I know. Doe 4 called a friend who encouraged her to call the police, and she did.

Doe 5

Doe 5 was a 42-year-old married woman who worked at a clothing store in South Coast Plaza in Costa Mesa. Defendant came into the store pretending to be shopping for his family. Doe 5 gave him her business card. He then left the store. A few minutes later, a man called and asked for Doe 5 by name. He said he wanted to offer her a job. He induced her to guess that he was Don, a good customer of hers whom she had recently seen at a fashion show. Don told her that his boss, Michael, would call her to make an appointment to discuss the job. A few minutes later, Michael called and asked her to meet him outside the employee entrance to the Nordstrom store. He said he was returning to Texas that day and needed to speak to her right away. She agreed to meet him.

Doe 5 picked defendant up as agreed. He asked her to drive to a hotel. She thought they would sit in the lobby of a nice hotel and sign the contract. However, as they drove out of the parking lot, defendant, who had his hand in his pocket, said, You have to do whatever Im telling you. Doe 5 thought he might have a gun.

Defendant directed her to a motel in Santa Ana and told her to get a room. When she said she had no money, he gave her cash. He remained in the car while she rented the room at a walk-up window. She did not tell the clerk what was happening because she was afraid.

Inside the room, defendant made Doe 5 suck his penis. He then told her to lie on the bed. He masturbated for a while, then inserted his fingers into her vagina. He orally copulated her and made her orally copulate him again. He then had intercourse with her, but did not ejaculate. He withdrew his penis and then masturbated until he ejaculated. Doe 5 complied with all of his demands because she was afraid. She said she felt hypnotized.

Doe 5 returned defendant to South Coast Plaza. She told a friend what had happened and then told her husband. Her husband took her to the police to make a report.

LEGAL ANALYSIS

I

THE SEXUAL BATTERY COUNTS WERE NOT SUBMITTED TO THE JURY ON AN INVALID LEGAL THEORY

As to Does 1, 2 and 4, defendant was charged with sexual battery, both felony and misdemeanor. ( 243.4, subds. (a), (d), (e)(1).) As to Doe 3, defendant was charged with felony sexual battery only.

Defendant contends that the jury instructions failed to define consent with respect to sexual battery and that the court failed to give the so-called Mayberry^[5]instruction with respect to that offense. He argues that the prosecutor erroneously argued that for purposes of sexual battery, consent can be vitiated by fraud or deceit. Because this erroneous argument was not refuted by the courts instructions, he contends, it is impossible to know whether the jurys verdicts on the sexual battery counts are based on an incorrect legal theory.

We note first that defendant is mistaken that the court did not define consent for the jury in the context of sexual battery. Both felony and misdemeanor sexual battery require a touching which is against the will of the victim. ( 243.4, subds. (a), (d), (e)(1).) The court gave CALJIC Nos. 10.37, 10.37.1 and 16.145, all of which state that for purposes of sexual battery, against the will means without the consent of the alleged victim. This correctly states the law: In the context of forcible sexual offenses, against the victims will and without the victims consent are synonymous. (See People v. Giardino (2000) 82 Cal.App.4th 454, 460.) The record does not reflect that defendant requested clarification or any further definition in order to address the prosecutors argument that consent can be vitiated by fraud or deceit, however, and because the instructions correctly state the law with respect to consent, the court had no sua sponte duty to provide any further definition. Accordingly, defendant has forfeited review of any issue which is based on the contention that the definition of consent was inadequate. (People v. Rundle (2008) 43 Cal.4th 76, 151.)

Defendant is correct that Mayberry, supra, 15 Cal.3d 143 applies to sexual battery as well as to rape. Mayberry is predicated on the notion that under section 26, a reasonable mistake of fact regarding consent is incompatible with the existence of wrongful intent. (Id. at pp. 154-156; Williams, supra, 4 Cal.4th at p. 360.) ( 26 provides in part that a person who committed the charged act under an ignorance or mistake of fact lacks criminal intent.)As noted above, touching against the victims will and therefore without her consent is an element of sexual battery. Accordingly, a defendant who actually and reasonably believes that the alleged victim consented to sexual touching lacks criminal intent. Defendant does not, however, explain how the omission of an instruction concerning mistake of fact as to consent relates to the error he asserts, which is that the prosecutor erroneously relied on the theory that fraud can vitiate consent.^[6]

In support of his contention that the prosecutor erroneously argued to the jury that the women did not act consensually because of defendants fraud or deceit, defendant points to the following portions of the prosecutors argument:

So, unlawful restraint. What is it? It is without consent. And without consent, and it will be do you find for one.^[7] [Sic.] It doesnt mean acting passive. That doesnt mean consent. Its a willful, free will. You choose to voluntarily do something, you do it under free will without hardship, without duress, without confusion, without all the facts, you make that consensual decision based on legitimate, true facts and not out of fear and confusion. So, theres really no issue here on the consent.

How does the defendant compel these women to be unlawfully restrained? He compels them by fraud, deceit and duress. The defendant does all those acts and inflicts it upon his victims in order to trick them into a situation. [] . . . So, if theres no physical force required, it has to be a psychological force which compels another person to be unlawfully restrained, to be there against their will without consent. [] Psychological force, authority figure: offering a job.

You saw these women. . . . None of them was interested in this ugly, dirty old man. How else is he gonna get them? Hes got to fraud them. [Sic.]

When lack of consent is a necessary element of a crime, the fact the defendant employed fraudulent misrepresentations to induce the victim to consent to the proscribed act ordinarily does not vitiate the consent to supply the required element of nonconsent. (People v. Stuedemann (2007) 156 Cal.App.4th 1, 6; see also Boro v. Superior Court (1985) 163 Cal.App.3d 1224, 1229.) The prosecutors argument was therefore legally erroneous. Nevertheless, it does not require reversal of defendants conviction on these counts. Reversal is required only if the court presented the case to the jury on a legally incorrect theory. In the absence of an instruction by the court on the incorrect theory, a misstatement of the law by the prosecutor merely amount[s] to prosecutorial misconduct [citation] during argument, rather than trial and resolution of the case on an improper legal basis. (People v. Morales (2001) 25 Cal.4th 34, 43.) Here, because the court did not instruct the jury that fraud or deceit could vitiate consent, defendants claim that the case may have been decided on an incorrect legal theory fails.^[8]

We do agree with defendant that it is possible that the jury found him guilty on at least some charges based on the erroneous understanding, fostered by the prosecutors argument, that the victims consent was not legally valid because it was obtained by fraud. However, defendant did not object to the prosecutors argument. When a defendant believes that the prosecutors argument misstates the law and therefore constitutes misconduct, he or she must make a timely and specific objection and request that the court admonish the jury to disregard the erroneous argument. Otherwise, the claim is not preserved for appeal unless an objection would have been futile or an admonition would not have cured the harm caused by the misconduct. (People v. Hill (1998) 17 Cal.4th 800, 820.) The purpose of this rule is to afford the trial court the opportunity to remedy misconduct during closing argument in the first instance and avoid the potential for prejudice. (See People v. Boyette (2002) 29 Cal.4th 381, 432.) Here, an admonition from the court would have remedied any potential harm, but the court was not asked to provide one. The record does not give us any reason to conclude that an objection would have been futile. (Ibid.) We are therefore unable to address this issue.

II

NO MAYBERRY INSTRUCTION WAS REQUIRED ON THE SEXUAL BATTERY COUNTS AS TO DOES 1 AND 2, AND ANY ERROR IN OMITTING THE INSTRUCTION WITH RESPECT TO DOE 4 WAS HARMLESS; HOWEVER, THE OMISSION OF THE INSTRUCTION AS TO DOE 3 REQUIRES REVERSAL

Defendant next contends that the omission of a Mayberry instruction violated his right to due process and to a jury trial, as provided by the Fifth, Sixth and Fourteenth Amendments to the United States Constitution, and to have his affirmative defense submitted to the jury. Accordingly, he contends that the sexual battery convictions as to Does 1, 2, 3 and 4 must be reversed.

As we stated above, the defense of reasonable belief in consent applies to sexual battery. Even in the absence of a request from the defendant, a trial court has a duty to instruct on the Mayberry defense if the record contains evidence sufficient for a reasonable jury to find in favor of the defendant, the defendant actually relied on the defense, and the defense is not inconsistent with the defendants theory of the case. (People v. Maury (2003) 30 Cal.4th 342, 424.) Defendant contends that the instruction was required because there was substantial evidence to support that defense as to the sexual battery charges pertaining to Does 1, 2, 3 and 4.^[9]

As to Does 1 and 2, however, defendant did not rely on the defense of reasonable belief in consent. As to Doe 1, he argued that either she willingly engaged in the sexual conduct or defendant tried to force her to touch his penis but failed, resulting in the lesser offense of battery. Defendant argued that Doe 2 engaged willingly in the sexual acts and only realized after the fact that she had been conned. Thus, his defense was actual consent. However, a Mayberry instruction depends upon evidence of equivocal conduct on the part of the victim which reasonably led the defendant to believe that she consented. When a defendant relies on actual consent, no Mayberry instruction need be given. (Williams, supra, 4 Cal.4th at p. 362.)

As to Doe 4, defendant argued that because she had just consensually engaged in oral copulation, he reasonably believed that she also consented to his touching her breast. Nevertheless, the omission of the Mayberry instruction as to sexual battery was harmless. The jury convicted defendant of forcible oral copulation on Doe 4, and therefore determined that the oral copulation was not consensual but was accomplished against Doe 4s will and by means of force. A reasonable mistake of fact may not be found if any equivocal conduct by the victim was the product of force, violence, duress, menace, or fear of immediate bodily harm. (CALJIC No. 10.65; Williams, supra, 4 Cal.4th at p. 364.) Thus, a finding that defendant reasonably believed that Doe 4 consented to his touching her breast immediately after he had forced her to engage in oral copulation was precluded as a matter of law. Accordingly, the omission of the Mayberry instruction with respect to sexual battery on Doe 4 was harmless beyond a reasonable doubt.^[10] (People v. Wright, supra, 40 Cal.4th at pp. 98-99.)

Defendant also relied on reasonable belief in consent as to the two counts of sexual battery pertaining to Doe 3. There was substantial evidenceevidence sufficient for a reasonable jury to find in favor of the defendant (People v. Salas, supra, 37 Cal.4th at p. 982)that Doe 3s equivocal conduct led him to believe, reasonably, that she consented to the acts. Doe 3 testified that when defendant asked her to take him to a hotel she did not refuse, but merely said she was unfamiliar with the area. When he directed her to pull into the Heritage Inn, she did so without demur. When defendant told her that Vince would reimburse her, she went inside the hotel, alone, and got a room. She accompanied him upstairs and entered the room. After defendant asked her not to open the drapes, she walked back to the door to turn on the lights. From her position next to the door, she saw him drop his pants. Defendant was across the room, near the window. She did not leave the room. Her only response was to say, Whats going on? When he asked her to hug him while he masturbated, she said no at first, but ultimately walked over to him and put her arm around him. She then moved away from him. Defendant said that Vince had told him that instead of five it would be seven, and that it would be over soon. She understood that to mean that instead of a $5,000 bonus, she could get a $7,000 bonus. She therefore resumed hugging him. With each subsequent request, she initially said she did not want to do what defendant asked her, but she ultimately complied with each request. At one point, he asked her to lie down on the bed. She said she didnt want to. Defendant said that Vince had told him that she would be getting a job out of it. She then lay down on the bed. She explained that she complied because she was afraid of what might happen if she did not, and that after she refused his first request, defendants voice became firmer and more demanding rather than asking. She did not voice her fear to defendant, however.

This evidence supports the conclusion that defendant could reasonably have interpreted Doe 3s conduct as reflecting her consent, albeit with reluctance, to engage in the acts she described in order to get the job or the bonus that Vince had offered her. Accordingly, the court should have given the Mayberry instruction. (Williams, supra, 4 Cal.4th at pp. 360-362.)

The omission was not harmless beyond a reasonable doubt. Defendants defense against the sexual battery charges as to Doe 3 was based entirely on his claim that he reasonably believed that she consented to engage in sexual acts in order to get the benefit he fraudulently promised her. However, there was no instruction which permitted the jury to acquit him on that basis. On the contrary, the Mayberry instruction which was given was expressly limited to the crimes of rape, oral copulation and genital penetration. We recognize that counsel for both sides appeared to believe that the instruction did apply to sexual battery and argued the case accordingly. However, jurors are instructed that they must follow the courts instructions and disregard any arguments by counsel which conflict with the instructions. (CALJIC No. 1.00.) Despite the arguments of counsel, the jurors in this case were compelled to conclude from the instruction as given that the Mayberry defense did not apply to sexual battery as a matter of law. Defendants conviction on counts 8 and 9 must therefore be reversed.

III

THE COURT DID NOT GIVE AN ERRONEOUS DEFINITION OF DURESS

Defendant argues that all of the sexual battery convictions must be reversed because the prosecutor argued, incorrectly, that the crimes were committed by duress and that duress includes a threat of hardship. He contends that in People v. Leal (2004) 33 Cal.4th 999 (Leal), the California Supreme Court held that in 1993, the Legislature amended the definition of duress to delete hardship, except for purposes of section 288, subdivision (b)(1) (lewd act on child under the age of 14 by use of force, violence, duress, menace or fear of immediate and unlawful bodily injury). Accordingly, he contends that the case was submitted to the jury on an incorrect legal theory.

As the People point out, the amendments addressed in Leal applied only to the rape and spousal rape statutes. (Leal, supra, 33 Cal.4th at pp. 1006, 1007-1008, discussing 261, subd. (b), and former 262, subd. (c) [now subd. (b)].) The court rejected the argument that in amending those statutes, the Legislature intended to delete hardship as a permissible basis for finding duress in all sex crimes. (Leal, at p. 1007.) Rather, after examining the history of the amendments, the court concluded that the Legislature clearly confined the definition of duress in the rape and spousal rape statutes to apply in those sections. Had the Legislature intended for this definition to apply as well to other sexual offenses, it could easily have said so. (Id. at p. 1008.) Defendant is correct that in Leal, the court was specifically addressing the meaning of duress as used in section 288, subdivision (b)(1). He is incorrect in asserting, however, that the courts holding was limited to the meaning of duress in that statute. Rather, the court began its discussion by noting that the phrase by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury is used in section 288, subdivision (b)(1), and in the statutory definitions of three other sexual offenses: forcible sodomy ( 286, subd. (c)(2)); forcible oral copulation ( 288a, subd. (c)(2)); and forcible sexual penetration ( 289, subd. (a)(1)). (Leal, at p. 1004.) It went on to address, and reject, the defendants contention that the 1993 amendments reflected an intent to delete hardship from the definition of duress for all sexual offenses, including, but not limited to, section 288, subdivision (b)(1). (Leal,at pp. 1004, 1005-1008.) The conclusion that hardship remains a part of the definition of duress for the three other sexual offenses is part of the courts express holding. Accordingly, defendants argument fails, at least with respect to those offenses at issue in this case which can be committed by means of duress. Sexual battery is not among them, however.

Defendant also argues that the prosecutor improperly argued that sexual battery can be committed by duress or hardship. He is correct that by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury is not part of the statutory definition of sexual battery. However, the jury instructions do not include the concept that sexual battery, or the restraint necessary for sexual battery, can be committed or achieved by duress. Thus, even if the prosecutors argument was legally erroneous, this argument fails for the reasons stated in section I of this opinion, i.e., that in the absence of an instruction by the court on the incorrect theory, a misstatement of the law by the prosecutor merely amount[s] to prosecutorial misconduct [citation] during argument, rather than trial and resolution of the case on an improper legal basis. (People v. Morales, supra, 25 Cal.4th at p. 43.)

IV

SUBSTANTIAL EVIDENCE SUPPORTS THE CONVICTIONS AS TO DOE 4 (COUNTS 1013)

Defendant contends that there is insufficient evidence to support his convictions for forcible oral copulation and sexual battery against Doe 4.

In considering defendants claim of insufficiency of the evidence . . . necessary to affirm his conviction . . . , we must determine only whether, on the record as a whole, any rational trier of fact could find him guilty beyond a reasonable doubt. [Citation.] We view the evidence in the light most favorable to the prosecution, and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] (People v. Griffin (2004) 33 Cal.4th 1015, 1028.) We resolve all conflicts in favor of the judgment and indulge all reasonable inferences from the evidence in support of the judgment. (Bickel v. City of Piedmont (1997) 16 Cal.4th 1040, 1053.)

It is the appellants burden to affirmatively demonstrate error. (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.) To prevail on a claim of insufficiency of the evidence, a criminal defendant must discuss all of the material evidence in the light most favorable to the prosecution and then must persuade the court that even viewed in that light, the evidence does not reasonably support the jurys verdict. (Id. at p. 1574.) Although defendant recites the material evidence as to Doe 4, he discusses the evidence not in the light most favorable to the prosecution, but in the light most favorable to a judgment of acquittal. We could therefore deem the issue waived. (People v. Dougherty (1982) 138 Cal.App.3d 278, 282.) We will nevertheless address his arguments.

Defendant first asserts that there is insufficient evidence of force to support the conviction for forcible oral copulation. He cites Doe 4s testimony that defendant did not forcefully push her head down toward his lap, and asserts that the evidence shows that she performed the act because she thought she might get a job. The gravamen of forcible rape is the use of force which served to overcome the will of the victim to thwart or resist the attack; the issue is not whether the use of such force physically facilitated sexual penetration or prevented the victim from physically resisting her attacker. (People v. Griffin, supra, 33 Cal.4th at pp. 1027-1028.) The same standard applies to forcible oral copulation. (People v. Guido (2005) 125 Cal.App.4th 566, 576.)

Doe 4 testified that she did not want to orally copulate defendant and probably would not have done so voluntarily if he had not used his hand to push or guide her head toward his lap. She also testified that although defendant was not forcing her head down, he was making it so that [she] would. This is sufficient to satisfy the element of force.

Defendant also asserts that the evidence is insufficient to support the verdict because Doe 4 admitted that she engaged in the act because she thought she would get a job if she did. However, she also said she was just scared and that she didnt know what else to do. She testified that all of those factors played a part. The fact that her testimony was conflicting on this point does not require, or even permit, us to reverse defendants conviction because, in reviewing a claim of insufficiency of the evidence, we must resolve all conflicts in the evidence and questions of credibility in favor of the verdict. (People v. Autry (1995) 37 Cal.App.4th 351, 358.)

Defendant also contends that the felony sexual battery conviction ( 243.4, subd. (a)) must be reversed because the evidence shows that Doe 4 was not restrained at any time when defendant touched her. He notes that she was literally at the steering wheel the whole time the offenses allegedly occurred. Unlawful restraint, however, need not be physical. Rather, the restraint may be accomplished by words or acts . . . which [the victim] fears to disregard. (People v. Arnold (1992) 6 Cal.App.4th 18, 28.) Therefore, a person is unlawfully restrained when his or her liberty is being controlled by words, acts or authority of the perpetrator aimed at depriving the persons liberty. (Ibid.) The touching of Doe 4s breasts and vaginal area occurred after she had copulated defendant orally and while she was driving him to a hotel. Doe 4 testified that she did not want to go to a hotel with defendant, but drove at his direction because she didnt know what else to do. She also said that she didnt know what defendant was going to do, or how he would react or what he would do if she resisted him aggressively, and that she was scared during the oral copulation incident. And, although Doe 4 was driving, that does not compel the inference that Doe 4 was in control of the situation, as defendant implies. The jury could reasonably infer from Doe 4s testimony that she was afraid that defendant might hurt her if she tried to get out of the car, and that her liberty was therefore restrained. We must indulge all inferences in support of the judgment. (People v. Villalobos (2006) 145 Cal.App.4th 310, 322.)

Finally, defendant contends that the conviction for misdemeanor sexual battery must be reversed because the evidence showed no true lack of consent to the touching. Although the jury could have inferred that Doe 4 did consent to the touching, believing that she would get a modeling job if she went along with it, the evidence also supports the inference that she did not consent.

V

THERE WAS NO INSTRUCTIONAL ERROR AS TO THE CHARGE OF KIDNAPPING FOR PURPOSE OF RAPE

As to Doe 5, defendant was charged with kidnapping for the purpose of rape and other offenses, and with forcible rape, forcible oral copulation, and forcible genital penetration. Defendant contends that his conviction for kidnapping must be reversed because the court failed to define consent and because the court failed to give a Mayberry instruction in connection with that offense.

The kidnapping instruction informed the jury that kidnapping is the unlawful compulsion of another person without that persons consent and because of a reasonable apprehension of harm, to move for a substantial distance. (CALJIC No. 9.52.1.) The word consent, as used in that instruction, has no technical meaning which differs from the meaning of the word in ordinary English usage. Accordingly, no definition was required. (People v. Estrada (1995) 11 Cal.4th 568, 574-575.)

The Mayberry defense applies to kidnapping for rape. (Mayberry, supra, 15 Cal.3d at pp. 154-155.) As noted above, however, the Mayberry instruction given in this case was limited to charged offenses of rape, oral copulation and genital penetration; it did not refer to kidnapping for the purpose of committing those offenses. A Mayberry instruction is required, even in the absence of a request, if there is substantial evidence that the victims equivocal conduct caused the defendant to believe, reasonably, that the victim consented to be transported to commit the charged sexual acts, if the defendant actually relied on the defense, and if the defense was not inconsistent with the defense theory of the case. (See People v. Maury, supra, 30 Cal.4th at p. 424.)

Whether defendant relied on the Mayberry defense with respect to the kidnapping charge is debatable. He did explicitly rely on it with respect to all of the sexual offenses alleged as to Doe 5, saying that she did not resist him, that he made no threats and that he simply asked her to do things, and she does it [sic]. He did not refer to a belief that Doe 5 consented to drive to the motel for sexual purposes, but we will assume that that is implicit in his defense. Nevertheless, any error in omitting kidnapping from the Mayberry instruction is harmless beyond a reasonable doubt. Doe 5s conduct while in the motel room with defendant could also appear to be consensual, even as she described it, yet the jury, having heard the Mayberry instruction, rejected defendants contention that he reasonably believed that she consented to the sexual acts and also rejected any contention that Doe 5 actually consented. The jury clearly accepted Doe 5s testimony that she did not consent to any sexual activities with him. And, there was no evidence which would support the conclusion that Doe 5 accompanied defendant willingly with the intent of engaging in sexual activities but then withdrew her consent. Thus, there is no basis upon which to conclude that if the jury had been instructed in accordance with Mayberry on the kidnapping charge, it would have found defendant not guilty. Accordingly, the omission of the instruction was harmless beyond a reasonable doubt.

VI

THERE IS NO CUMULATIVE ERROR

Defendant argues, perfunctorily, that even if the errors he has asserted do not individually require reversal of his conviction, we should find that the errors are cumulatively prejudicial. Defendant makes no specific argument as to how any errors are cumulatively prejudicial, however, and we therefore decline to address the issue. (Paterno v. State of California (1999) 74 Cal.App.4th 68, 106 [An appellate court is not required to examine undeveloped claims, nor to make arguments for parties].)

VII

SENTENCING ERROR

Defendant contends that the court violated his constitutional rights, within the meaning of Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856, 166 L.Ed.2d 856], because it imposed an aggravated term on count 2 and consecutive sentences on counts 4, 8, 9 and 11. He acknowledges that both errors are subject to harmless error analysis, under the standard enunciated by the California Supreme Court in People v. Sandoval (2007) 41 Cal.4th 825. Rather than making any argument as to why the errors were not harmless beyond a reasonable doubt, he argues that the standard as enunciated in Sandoval is incorrect. He acknowledges that we are bound by the holding of Sandoval, and states that he raises the issues to exhaust his state remedies and to preserve the issues for federal review. We acknowledge defendants arguments, but, since we are bound by the ruling of the California Supreme Court (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), we need not address them.

DISPOSITION

The convictions on counts 8 and 9 are reversed and the cause is remanded for a new trial on those counts. The judgment is otherwise affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ McKinster

J.

We concur:

/s/ Hollenhorst

Acting P.J.

/s/ Gaut

J.

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^[1]For convenience, we will refer to the victims as Doe 1, etc.

^[2]All statutory citations refer to the Penal Code.

^[3]We refer to the victims as women. However, three of the victims in this case were teenagersDoes 4, 2 and 3 were 17, 18 and 19, respectively, at the time of the incidents. Doe 1 was 26, and Doe 5 was 42.

^[4]Three of the incidents took place in Orange County. The agencies involved agreed that all of the cases could be prosecuted in Riverside County.

^[5]In People v. Mayberry (1975) 15 Cal.3d 143 (Mayberry), the California Supreme Court held that a reasonable, bona fide mistake of fact regarding consent is incompatible with the existence of wrongful intent. (Id. at pp. 154-156; People v. Williams (1992) 4 Cal.4th 354, 360 (Williams).)

^[6]We discuss below defendants second contention pertaining to the omission of the Mayberry instruction.

^[7]We do not know whether the prosecutors argument was indeed this inarticulate, or whether the transcription is extraordinarily inept.

^[8]In a similar argument, discussed below in section III, defendant contends that if the prosecutor argues an incorrect legal theory, reversal is required unless the courts instructions explain that the theory was improper. He cites People v. Edwards (1985) 39 Cal.3d 107. Edwards not only does not say that, it does not even address the question of prosecutorial reliance on an erroneous legal theory. Rather, the issue in Edwards is the trial courts failure to instruct on legal theories which were supported by the evidence. (Id. at pp. 112-117.)

^[9]Defendant requested CALJIC No. 10.65, the Mayberry instruction, as to some, but not all, of the sexual battery counts. For reasons not disclosed by the record, however, the court limited the Mayberry instruction to the crimes of rape, oral copulation and genital penetration by foreign object.

^[10]The California Supreme Court has not yet determined whether omission of an affirmative defense instruction to which the defendant is entitled is reviewed under the standard of People v. Watson (1956) 46 Cal.2d 818, or under the standard of Chapman v. California (1967) 386 U.S. 18. (People v. Salas (2006) 37 Cal.4th 967, 984; see also People v. Wright (2006) 40 Cal.4th 81, 98.) We will assume that the more stringent Chapmanv. California standard applies.