P. v. Villegas

Filed 5/16/06  P. v. Villegas CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b).  This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

            APPEAL from a judgment of the Superior Court of San Diego County, Robert F. O'Neill, Judge.  Affirmed.

            Mark Steven Villegas was convicted by a jury of committing multiple sexual offenses against five different women between May 1999 and September 2002.  He was sentenced to 95 years to life, plus 25 years.

            On appeal, Villegas contends his convictions must be reversed because the court failed to sever the case into five trials (one for each victim); changed the scope of the admissibility of the evidence after the case was submitted to the jury; refused his requested instruction on the use of force; failed to define duress, menace or fear in the context of the nonrape counts; and refused defense counsel's request for identifying information about the jurors.  We affirm the judgment.

FACTS

May 28, 1999 - Sofia V.

            On May 28, 1999, Villegas drove to an area in Chula Vista known for prostitution where he saw 18-year-old Sofia V. walking down the street.  She was on her way from the Trophy Lounge to an ATM machine.  Villegas called out to Sofia but she ignored him.  As Sofia was walking back to the Trophy Lounge after getting money from the ATM machine, Villegas threatened her with a knife and forced her inside his car.  He drove around for about an hour, keeping the knife at her side, until he backed into a parking space under a carport at an apartment complex.  He grabbed her hair, pushed her head toward his lap and told her " to suck my dick, you bitch" while he held a knife to her neck or back.  She complied.  He then told her to undress, which she did.  In the back seat, he engaged in sexual intercourse with her.  After he ejaculated, he told her to get dressed.  She put on her shirt and pants but not her bra, underwear or jacket.  He told her to move to the front passenger seat.  When she got out of the car, Villegas drove away with her bra, underwear, and purse still in his car.

            Sofia yelled for help.  Someone from the apartment complex responded.  She told the person she had been raped and, at her request, the police were called.  She cooperated with the police and a subsequent medical examination.  DNA testing of the sperm recovered from Sofia matched Villegas.

            At trial, Sofia V. identified Villegas as the man who raped her.

July 31, 2001 - Sarah F.

            On July 31, 2001, Villegas drove to an area on El Cajon Boulevard known for prostitution where he saw 15-year-old Sarah F.  She was working her first night as a prostitute.  Sarah had been with other men that night.  Villegas approached in his dark green Honda.  Villegas told Sarah to get in his car because the police were watching.  As he drove, he asked Sarah the cost of a " blow job" and when she told him the price and that he would have to wear a condom, he said he did not want to use a condom. 

            He parked in a dimly lit carport on an alley.  He got out of the car, saying he had to urinate, unzipped his pants, and then " jumped back in the car," grabbed her hair and when Sarah started screaming, threatened to stab her if she did not " shut up."   Sarah felt a sharp object on the back of her neck while Villegas pushed her head toward his lap.  He ordered Sarah to remove her clothes.  He threw her money and clothes into the back seat and demanded she orally copulate him, which she did because she was frightened he would stab her.  He told her " he liked to get his dick sucked" and to " cut girls."   After he ejaculated, he told her to get out of the car.  He threw her clothes out of the car.  She dressed and ran down the alley. 

            A clerk at a convenience store called the police for her.  She told the police Villegas had forced her into the car because she was afraid if she told the police that she had been engaging in prostitution, the police would not help her.  She had a medical examination.  Sarah had red marks on her neck area which she attributed to her assailant grabbing her and having a sharp object at her neck.  A few days later, Sarah told a woman police officer that the man had not forced her into the car and that she had been engaging in prostitution.

            In October 2002, Sarah identified Villegas in a photographic line-up as the man who assaulted her.  She also identified Villegas at trial as the assailant.

September 28, 2001 - Susan W.

            On September 28, 2001, Villegas drove his green Honda Civic to an area on Main Street known for prostitution where he saw 19-year-old Susan W. walking down the street.  She was new to the area and was walking to a liquor store to buy cigarettes while her boyfriend was at a barbershop.  Villegas asked Susan if she wanted a ride.  She initially said no but eventually accepted his offer.  He asked if she did drugs.  She said no.  He told her he was " on drugs."

            Instead of driving to the liquor store, he drove to an alley and parked the car.  She tried to get out of the car, but he locked the doors.  Villegas grabbed her ponytail with his right hand and yanked her head toward his lap while he held a knife in his left hand.  He told her he wanted her to " suck his dick" and to undress.  She removed her clothes, which he threw out the window.  He told her if she did not do want he wanted, he would kill her and he would kill her if anybody came down the alley.  While she orally copulated him, he ran a knife up and down her back.  After Villegas ejaculated, he told Susan if she told anyone, he would find her and kill her.  He told her to get out of the car.  Once she was out of the car, he sped away, taking with him a necklace she had been wearing.

            Susan ran to the barbershop but discovered her boyfriend had been called away on an emergency.  A man from a neighboring business saw her crying and asked if she was okay.  She told him " a little bit of what happened" and he called the police.  Two police officers arrived five to ten minutes later.  She recognized one of the officers.  About two weeks earlier, the officer had conducted a field interview of Susan because he believed she was engaging in prostitution since it was not a normal area for a young woman to be walking unless she was a prostitute.  Susan had denied being a prostitute.  The officer told her it was not a safe area.  The officer recognized Susan when he responded to the 911 call.  He told her, " I warned you not to be in this area, and these are the types of things that can happen."

            Because of the prior contact with the officer who had accused her of being a prostitute and his " I told you so" attitude, Susan was not completely honest with the officers.  She told them Villegas forced her into the car because she did not want them to think she was a prostitute.  She believed they would treat the case " more poorly" if they thought she was a prostitute.  Otherwise, she told them truthfully what had happened.  After the case was filed, Susan told the prosecuting attorney that Villegas had not forced her into the car.

            A medical examination showed superficial, linear lacerations on her back and some abrasions on her arm.  Dried semen was collected from Susan's face.  DNA testing showed the semen was from Villegas.

            At trial, Susan identified Villegas as the assailant.  However, in a photographic line-up conducted several months prior to the trial, she identified someone other than Villegas as the assailant.

May 26, 2002 - Jessica F.

            On May 26, 2002, Villegas drove his dark Honda Civic to an area in National City known for prostitution where he saw 19-year-old Jessica F. talking on a cell phone near a restaurant.  He pulled up to her and asked if she was lost or needed a ride.  Jessica F., who lived in Las Vegas, was on the phone with a former boyfriend, the father of one of her children.  He had left Jessica  F. at the restaurant, returned to a motel, and offered to get her, but because it would take him about 20 minutes to return to the restaurant, he advised Jessica F. to accept a ride from Villegas.  She did so and, after consulting with the former boyfriend, told Villegas where she was staying.  Villegas indicated he knew where the motel was located.

            Villegas engaged in apparently normal conversation, asking her name, if she was married (she was) and had children (she did).  He then asked if she was a prostitute.  She said, no, explaining she had a full time job detailing cars in Las Vegas.  After mentioning he had won a significant amount of money at a casino, he again asked if she was a prostitute.  Jessica F. thought it was a little strange, but she had " quite frequently" been asked if she was a prostitute while living in Las Vegas.  She denied it again.

            When Jessica F. asked Villegas why he was driving on the freeway in the wrong direction, he told her he needed to pick up a friend.  Jessica F. said okay but stressed she needed to return to the motel.  Once again, Villegas asked if she was a prostitute.  Once again she denied it.  He stated he thought she could make a lot of money as a prostitute and asked, " How much does a girl usually make on a good night?"   She said she did not know.

            Villegas drove into a dark residential neighborhood and parked near an area that was under construction.  Jessica F. was ready to grab her purse and leave when Villegas told her not to move and to do what he said " or else."   He grabbed her hair and told her to undress.  She did.  He threw her clothes, purse, phone, and jewelry in the back seat.  He demanded she orally copulate him, telling her that if she " didn't suck his dick the way [she] would suck [her] husband's dick, that he would put a cap in [her] ass."   He also threatened to " slice and dice" her and put her " in a barrel" if she did not " do a good job."   She orally copulated him.  He did not ejaculate.

            He told her to get on top of him and he then engaged in sexual intercourse with her.  He told her was going to let her go on the condition she not tell the police or anyone else and, if she did, he would tell the police that it was all her fault, that she was a prostitute, and the police would believe him not her.  He told her he was going to throw her clothes in front of the car and she would have ten seconds to get her clothes, he would then start driving, she should run after the car, and at the top of the hill he would return her belongings and give her some money.

            Villegas threw her clothes in front of the car but kept her cell phone, jewelry and purse.  She grabbed the clothes and ran after Villegas's car for a short while as he drove off, but when he started driving faster and disappeared from view over the top of the hill, she ran in a different direction and hid behind a bush.  Eventually, she put on some clothes, ran to a busy area and stopped a car by stepping into the street.  She told the driver she had just been raped and robbed.  He lent her his cell phone which she used to call her former boyfriend for directions to the motel and had the man drive her there.  While she was in the shower at the motel, the police were called.

            When the police officers arrived, one of the officers accused her of being a prostitute.  For the police, Jessica F. retraced the route Villegas had taken and her route after the rape, gave a statement at the police station, and submitted to a medical examination.  Villegas's sperm was found on the vaginal swab taken from Jessica F.  No other person's DNA was found on the swab.  Jessica F. had bleeding scratches on her arm that she assumed came from her assailant's fingernails.

            At trial, Jessica F. identified Villegas as the man who assaulted her.

September 2, 2002 - Jessica T.

            On September 2, 2002, Villegas drove his dark Honda with its broken windshield to an area of El Cajon Boulevard known for prostitution where he saw 20-year-old Jessica T. walking down a street.  Jessica T., who worked full-time at the accounts receivable department of a magazine distributor, had decided that night to try to earn some extra money as a prostitute.  Villegas asked Jessica  T. if she wanted a ride.  She got in the car.  Villegas drove to a dark, nearly empty parking lot and backed into a parking space between two vans.  After he parked the car, he grabbed her hair, pushed her head down, put an object that felt like a knife to the back of her head and demanded she " suck his dick."   She orally copulated him.  He did not ejaculate.  He told her to remove her clothes.  He threw her clothes in the back seat.  He pushed her head back to his lap and she continued oral copulation.  He then pulled her on top of him, and engaged in sexual intercourse with her.

            When he was finished, he pushed her off of him, and talked about taking her back to El Cajon Boulevard where she could make some money for him.  Jessica  T. was frightened because Villegas had been upset when he had gone through her purse earlier and had not found any money.  He told her if she did not go with him and get him some money, he would leave her for dead in the parking lot.  He said he had a gun under the seat and that he was a police officer. 

            When he bent down, appearing to Jessica T. as if he were about to retrieve something from under the seat, she fled naked from the car.  She hid behind a bush as she heard tires screech, a car approach at high speed, and then continue driving.  Eventually, she made her way into an elevator of an unoccupied building and used the phone in the elevator to call for help.

            Jessica T. did not tell the police she had been prostituting.  She also, untruthfully, told them she had been forced into the car.

            Jessica T. was taken for a medical examination.  DNA on a vaginal swab taken from Jessica T. was matched to Villegas.  No other person's DNA was found on the swab.  Jessica T. had multiple scratches on her body that were consistent with hiding in the bushes.  She also had a laceration in her genital area that was consistent with her story, but could also be consistent with consensual sexual intercourse.

            Jessica T. was shown a photographic lineup and identified Villegas as her assailant.  At trial, she also identified Villegas.

Searches After Villegas was Arrested

            Villegas was arrested at his workplace.  In the glove compartment of his green Honda, the police found a steak knife.  In the search of Villegas's room, the police found a fishing knife.  In the garage, the police found a pellet gun.  Villegas's fingerprints were not found on the fishing knife or pellet gun.  Villegas's father testified the fishing knife belonged to him and the pellet gun belonged to his other son.

Defense

            Villegas did not testify.  His theory was that all the victims were prostitutes who falsely claimed they had been forced to commit various sexual acts because Villegas had not paid them, and had left them humiliated and stranded, sometimes naked or half naked.  He theorized they may have been also using the false accusations to get away from their pimps and prostitution lifestyle.

Jury Verdicts and Sentence

            The jury convicted Villegas of five counts of forcible oral copulation, one for each of the five women (Pen. Code,^[1] §  288a, subd. (c)(2)); three counts of forcible rape (Jessica T., Sofia V., Jessica F.) (§  261, subd. (a)(2)); and one count of robbery (Jessica F.) (§  211).

            The jury found Villegas used a deadly weapon during the offenses committed against Susan W. and Sofia V., but not during the offenses committed against Jessica T., Sarah F., or Jessica F.  The jury found Villegas had committed forcible sexual offenses that involved multiple victims within the meaning of section 667.61, subds. (b), (c), (e).

            Villegas was found not guilty of robbing or committing a grand theft against Susan W. (§§  211, 487, subd. (c)); a rape (§  261, subd. (a)(2)), forcible penetration with a foreign object (§  243.4, subd. (e)(1)), and kidnapping as to Sofia V. (§  209, subd. (b)(1)).  Upon the motion of the prosecutor, the court dismissed charges of rape by foreign object of Jessica T. (§  289, subd. (a)(1)) and two sexual offenses against another victim (Christina S.).

            The court sentenced Villegas to a term of 95 years to life, plus an additional 25 years.

DISCUSSION

I

Denial of Severance Motion

            Villegas contends the court erred in failing to grant his motion to sever the counts into five separate trials, one for each victim. He argues he was prejudiced because " the jury in this case was encouraged to view the evidence cumulatively, with no limitation whatsoever," " there were major credibility issues with every complaining witness," and " the combination of five victims with 15 charges stacked the deck insurmountably against [him], resulting in the outright denial of his right to due process."

            Before trial a new attorney appointed to represent Villegas moved for five separate trials -- one for each victim -- arguing that a joint trial would make it difficult for the jury to individually analyze each case, and Villegas would be prejudiced by the " spillover effect."   The trial court denied the motion, finding all the charges were of the same class and also possessed common characteristics and attributes since they involved sexual assaults.  The court found the evidence would be cross-admissible under Evidence Code section 1108 and the cases were of equal seriousness.

            The People may charge a defendant with multiple offenses in one accusatory pleading if the offenses are of " the same class" or are " connected together in their commission."   (§  954.)  " Because consolidation ordinarily promotes efficiency, the law prefers it."   (People v. Ochoa (1998) 19 Cal.4th 353, 409.)

            The trial court may order separate trials " in the interests of justice and for good cause shown."   (§  954.)  The defendant must "   'clearly establish that there [was] a substantial danger of prejudice requiring that the charges be separately tried.'  "   (People v. Davis (1995) 10 Cal.4th 463, 508.)  " [C]ross-admissibility [of evidence] ordinarily dispels any inference of prejudice  .  .  .  ."   (People v. Mason (1991) 52 Cal.3d 909, 934; People v. Carter (2005) 36 Cal.4th 1114, 1154.)

            Cross-admissibility of evidence, however, is not required for joint trials; " [b]ecause of the factors favoring joinder, a party seeking severance must make a stronger showing of potential prejudice than would be necessary to exclude other-crimes evidence in a severed trial."   (People v. Arias (1996) 13 Cal.4th 92, 127; see also §  954.1.)  To discharge the burden of showing prejudice, the defendant must show, in addition to lack of cross-admissibility, some other factor is present, for example, that one of the offenses was substantially more inflammatory than the others or was supported by significantly stronger evidence.  (Frank v. Superior Court (1989) 48 Cal.3d 632, 641.)

            A denial of a motion to sever charges is reviewed under an abuse of discretion standard.  (See People v. Kraft (2000) 23 Cal.4th 978, 1030.)  The court's denial must fall "   'outside the bounds of reason.'  "   (People v. Osband (1996) 13 Cal.4th 622, 666.)  Whether the trial court abused its discretion in denying a motion to sever is based on the facts as they appeared at the time of the hearing.  (People v. Douglas (1991) 234 Cal.App.3d 273, 281.)  However, " [e]ven if a trial court's severance or joinder ruling is correct at the time it was made, a reviewing court must reverse the judgment if the 'defendant shows that joinder actually resulted in " gross unfairness" amounting to a denial of due process.'  "   (People v. Mendoza (2000) 24 Cal.4th 130, 162.)

            As Villegas concedes, the cases of the five victims involved counts of the same class, that is, forcible sexual offenses, and joinder was proper on that basis.

            The evidence from the five victims was cross-admissible.  Evidence Code section 1108 allows admission of other sexual offenses to establish the defendant has a propensity to commit sexual offenses.  (See People v. Falsetta (1999) 21 Cal.4th 903, 905.)  Thus, if there had been separate trials, the evidence from each of the victims would have been admissible in the trial of any one victim to show Villegas had a propensity to commit sexual offenses.  The other sexual offenses were also cross-admissible under Evidence Code section 1101, subdivision (b), which allows uncharged offenses to be used to establish something other than the defendant's propensity, such as identity, motive, or the use of a common plan or scheme if there was a distinctive modus operandi.  (See People v. Carter, supra, 36 Cal.4th 1114, 1154.)  Here, the five offenses showed a distinctive modus operandi, that is, in the crimes the perpetrator used a dark green Honda, picked up a woman in an area known for prostitution, drove her to another area, grabbed her hair, forced her head down to his lap, threatened her with a weapon, required her to undress, forced her to engage in oral copulation, and drove away with some of the woman's belongings.

            The trial court has discretion to exclude other crimes evidence, whether admitted under Evidence Code sections 1108 or 1101, subdivision (b), if the probative value of the evidence is outweighed by a danger of undue prejudice.  (Evid. Code, §  352; People v. Falsetta, supra, 21 Cal.4th 903, 919.)  As to propensity evidence, " trial judges must consider such factors as its 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."   (People v. Falsetta, at p. 917.)  Similar factors must be considered in assessing whether to admit nonpropensity evidence under Evidence Code section 1101, subdivision (b).  (See People v. Ewoldt (1994) 7 Cal.4th 380, 405; Brown v. Smith (1997) 55 Cal.App.4th 767, 792.)

            " It is important to keep in mind what the concept of 'undue prejudice' means in the context of [Evidence Code] section 352.  '  " Prejudice" as contemplated by section 352 is not so sweeping as to include any evidence the opponent finds inconvenient.  Evidence is not prejudicial, as that term is used in a section 352 context, merely because it undermines the opponent's position or shores up that of the proponent.  The ability to do so is what makes evidence relevant.  The code speaks in terms of undue prejudice.  .  .  . "   'The " prejudice" referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues.  In applying section 352, " prejudicial" is not synonymous with " damaging."   '  "   '  "   (People v. Branch (2001) 91 Cal.App.4th 274, 286, italics omitted.)

            In opposing the severance motion, Villegas argued he would be prejudiced by the " spillover" effect of having all the charges joined in one trial.  He continues this argument on appeal, asserting " the combination of five victims with 15 charges stacked the deck insurmountably against [him], resulting in the outright denial of his right to due process."   He does not pinpoint any particular evidence as being prejudicial.  For example, he does not argue that any of the crimes were too remote, too dissimilar or were irrelevant. Villegas's argument that the number of incidents was prejudicial is, in essence, an argument that propensity evidence is inherently prejudicial.  The Supreme Court, however, has rejected this argument.  (People v. Falsetta, supra, 21 Cal.4th 903, 907.)

            Villegas's argument confuses " prejudice" with " damaging."   As we explained above, " prejudicial" and " damaging" are not synonymous terms.  The other charges were " damaging" only in the sense that they were relevant and cross-admissible to show a propensity to commit crimes.  None of the crimes was uniquely likely to evoke an emotional bias against Villegas such that the jury was likely to convict him of another crime solely because they had been emotionally inflamed.  The crimes were similar in nature and similarly committed.  Each woman's case had strong evidence in support including DNA evidence in four of the cases.  None of the crimes involved evidence that was significantly stronger or weaker than any of the other cases.

            We find no abuse of the discretion in the trial court's denial of the severance motion.

II

Court's Response to Juror Note

            Villegas contends the court's response to a jury note resulted in changing the admissibility of evidence after submission of the case to the jury and violated his right to have each count proven beyond a reasonable doubt.

(A)  Factual and Procedural Background

            During the discussion of jury instructions, it was agreed the court would not give the standard instructions on Evidence Code section 1108 (admission of other sexual offenses to prove a propensity to commit sexual offenses) or Evidence Code section 1101 (admission of other crimes evidence to prove a fact other than propensity such as motive, intent, or a common plan or scheme) because the standard instructions tell the jury it may use the other offenses as evidence to prove a defendant's guilt of a charged offense if it finds the other offense true by a preponderance of the evidence.  The standard instructions address the typical situation where the prosecutor introduces evidence of uncharged offenses.  In that situation, it is appropriate to tell the jury the other-offense evidence may be used if found true by a preponderance standard.  (See People v. Falsetta, supra, 21 Cal.4th 903, 924.)  In this case, however, since the other offenses were all charged offenses, the jury was required to find all of the offenses proven beyond a reasonable doubt and the standard instructions with their reference to a preponderance of the evidence standard could be misleading and confusing.

            In the course of the discussion about jury instructions, defense counsel agreed it would be proper for the jury to " consider the similarities as one factor" but not to use the similarities to " close the gap, so-to-speak, in any deficiency of proof."   The prosecutor stated he planned to argue the similarities since the defense was largely based on attacking the victims' credibility and the pattern of conduct could be used to corroborate the victims' versions of what occurred.  The court stated the prosecutor could argue the similarities, but noted the jury could not " convict on one count just because [it] convicted on another count," and the focus must be on each count individually.  The court, however, did not believe it could " fashion an instruction that would really accommodate that" and concluded the standard instructions on other-offense evidence were " inapplicable as to the evidence presented" and would confuse the jury.

            The prosecutor, during rebuttal closing argument, argued the similarities of the victims' accounts and argued the jury could consider the evidence from the other offenses.  The prosecutor offered a " box" analogy:

" Now, this case does not rest solely on the word of one victim.  You have evidence that corroborates their accounts.  The evidence from each case is corroborating evidence.  It's circumstantial evidence as to what the other victims are telling you is true.  Think of it like this.  Victim one, Jessica T, there's a box here and all the testimony and all the evidence that relates to her crime is in this box.  Box two, next victim, all the evidence, testimony, tapes, in that box.  Victim three, same thing.  There's five boxes lined up in front of you.  When you go to examine and decide whether or not the proof is there as to victim one, proof beyond a reasonable doubt, you don't just look in that box.  You can pick up each box and pour it into the first one, pour it all into Jessica T's case.  And then look at the -- look at all of it, examine all of it.

" The direct evidence that Jessica T. gave you as to what happened to her, what he said to her, what he did to her, what she saw him do, and then look at the corroborating evidence from the other cases.  And decide after you've done that whether the proof is there beyond a reasonable doubt, and you will find there is no other way to look at it.  Beyond a reasonable doubt these acts happened.  She's telling the truth.  Do the same thing with each victim.  Pour it all in."

            The prosecutor then gave the jury an analogy of going into a candy store once each day for a period of five days, leaving each time with a candy bar without paying, and when stopped by a security guard, explaining, she had forgotten to pay.  The prosecutor argued the jury, when considering the first day, could believe it was equally reasonable to believe she had forgotten to pay for the candy bar or that she had stolen it, but in assessing whether she had stolen the candy bar on the first day, the jury could consider the four subsequent days she had taken a candy bar without paying, and find one of the explanations became " extremely unreasonable."   The prosecutor argued, " And that's what you do when you look at these cases.  You look at all the evidence before you make a decision.  It's just like when you have a puzzle.  If you're looking at one piece and you're asked to tell them, what is that one piece?  You may not know.  You may not recognize what that little nose is or nostril, but when you put all the pieces together and stand back, you see the big picture.  You know who's in the picture."

            After the prosecutor finished her argument, defense counsel objected the argument was improper because the court had not given an Evidence Code section 1108 instruction.  The prosecutor argued the jury was entitled to look at the similarities, at the pattern when assessing the evidence.  The court agreed with the prosecutor, noting the argument was a proper statement of the law and that argument is not evidence.

            On the morning of the jury's second day of deliberations, it sent a note to the court stating:

" Can we use evidence from other cases to judge any given case or count?

" Can we use cumulative evidence of separate counts to determine each count? e.g., the box example."

            The court initially indicated to the prosecutor and defense counsel that it would answer " yes" to the jury's first question.  The court stated the second question was " problematical" because it suggested the jury was asking if it convicted Villegas of some counts, could it then conclude he was guilty of the remaining counts.  The court stated the answer to this question was " clearly no."   The court told counsel it could reinstruct the jury that it needs to decide each count separately or could answer the jury note by saying " yes" and " no" to the second question but invited counsel to propose responses to the note.  The prosecutor suggested the jury be instructed:

" Each count must be proved separately and beyond a reasonable doubt.  In determining whether a particular count has been proved beyond a reasonable doubt, you may consider the entire body of evidence presented at trial; the facts as you determine them to be and any reasonable inferences that you draw from them.  Therefore, to answer your question, you may use evidence from the other counts in deliberating on any other count in the case."

            During the discussion of this proposed instruction, the prosecutor suggested the last sentence, which had been objected to by defense counsel, could be deleted.  Defense counsel argued the court should simply refer the jury to the instructions it already had.  Defense counsel noted that although the court and counsel had been assuming the jury was struggling with comparing CALJIC Nos. 17.01 (conviction of lesser included offense) and 2.90 (defining reasonable doubt), it was not clear that the jury was actually having problems with these instructions and therefore the court should respond in more detail only if the jury returned with a more specific question.

            The court gave the instruction proposed by the prosecutor, but with the last sentence omitted:

" Each count must be proved separately and beyond a reasonable doubt.  In determining whether a particular count has been proved beyond a reasonable doubt, you may consider the entire body of evidence presented at trial, the facts as you determine them to be, and any reasonable inference that you draw from them."

            These instructions were given to the jury on the morning of its third day of deliberations.  Later that morning, the jury submitted a note asking for the meaning of a word used in the weapon enhancements.  The court responded to the note during the midafternoon.  About thirty minutes later, the jury informed the court it had reached a verdict.

(B)  Analysis

            The trial court has a duty to instruct the jury on general principles of law that are closely and openly connected with the evidence and necessary to the jury's understanding of the case.  (People v. Cummings (1993) 4 Cal.4th 1233, 1311.)  If the jury, during deliberation requests to be informed on a point of law, the trial court must attempt " to clear up any instructional confusion expressed by the jury."   (People v. Gonzalez (1990) 51 Cal.3d 1179, 1212; §  1138.)  If the original instructions were full and complete, the court has discretion not to give any further instructions but to refer the jury to the instructions already given.  (People v. Beardslee (1991) 53 Cal.3d 68, 97; People v. Smithey (1999) 20 Cal.4th 936, 984.)

            In evaluating the correctness of the instructions given to the jury, we look at all the instructions, not merely a single instruction or a part of that instruction.  (People v. Musselwhite (1998) 17 Cal.4th 1216, 1248; People v. Castillo (1997) 16 Cal.4th 1009, 1016.)  Reversal is not warranted for an instructional error unless there is a reasonable (not merely theoretical) possibility that the instructional error affected the outcome of the trial.  (People v. Watson (1956) 46 Cal.2d 818, 836; People v. Blakeley (2000) 23 Cal.4th 82, 94.)

(C)  Change of Admissibility of Evidence

            Relying on People v. Armstead (2002) 102 Cal.App.4th 784 (Armstead), Villegas argues the court's response to the jury note changed the admissibility of the evidence after the case had been tried and arguments made.

            In Armstead, the defendant was charged with nine robberies and convicted of three.  During deliberations, the jury sent a note stating:

"   'CALJIC [No.] 2.90 includes the phrase " consideration of all the evidence" in the second paragraph.  Does this phrase mean, 1) all of the evidence presented throughout the trial, or 2) all of the evidence presented per count?  In other words, do we base our judgment on each count based solely on the evidence related specifically to the exact robbery and/or victim?"   (Armstead, supra, 102 Cal.App.4th at p.  790.) 

            The court proposed the following answer:

"   'You may consider evidence of the other charged crimes in deciding each count under consideration.  In doing so you must treat the other crimes evidence as circumstantial evidence and follow the instructions on circumstantial evidence.  " Other crimes" evidence may not be considered to prove that defendant is a person of bad character or that he has a disposition to commit crimes, but may be considered by you only for the limited purpose of determining if it tends to show identity of the perpetrator, motive, or intent.'  "   (Armstead, supra, 102 Cal.App.4th at p. 790.)

            Armstead's counsel agreed the jury could consider all the evidence but could not consider or use a finding of guilt on one count against the defendant on another count.  He objected to use of the other counts to show identity because there was no " signature modus operandi" established before admission of the evidence for that purpose and to use of the other counts to show motive or intent because neither was at issue in the case.  Defense counsel suggested the court tell the jury:  "   'You may consider all the evidence that's been presented at the trial.  If you believe [Armstead] is guilty or innocent as to other counts, you may not consider that as to any other particular counts.  As to each particular count, the prosecution must prove his guilt beyond a reasonable doubt.'  "   (Armstead, supra, 102 Cal.App.4th at p. 791.)

            The trial court in Armstead noted the evidence had shown the defendant participated in a conspiracy or plan to commit robberies with another person, and the evidence would have been admitted under Evidence Code section 1101, subdivision (b) if the prosecutor had sought admission of other crimes evidence.  The court and parties also discussed the problem of giving the standard instruction on other-crimes evidence with its reference to the preponderance of the evidence standard when all the offenses were charged and the possible danger of misleading the jury into returning verdicts based on a less than reasonable doubt standard.  Ultimately, the court gave its proposed instruction.

            In Armstead the Court of Appeal reversed because the trial court's response to the juror's question " in effect changed the scope or basis of admissibility of the evidence" by allowing the jury to use other-crimes evidence on issues of identity, motive and intent when it had not admitted the evidence for that purpose nor engaged in the necessary weighing of the probative value of the evidence compared to its prejudicial effect.  (Armstead, supra, 102 Cal.App.4th at pp. 793-794.)  This " substantial change in the scope of the evidence" after the case had been submitted to the jury deprived the defendant " of the opportunity to meaningfully challenge the evidence in its new character."   (Id. at p. 794).  The defendant was denied an opportunity to contest the admissibility of the evidence or to argue the weight it should be given.  (Ibid.)  The Armstead court found " the trial court's ad hoc shift in the scope of the evidence after the case had been submitted to the jury was fundamentally unfair and denied [the defendant] due process."   (Ibid.)  Additionally, the court held the defendant's Sixth Amendment right to confront evidence was violated.  (Ibid.)

            The court in Armstead concluded the error was not harmless beyond a reasonable doubt, noting that " [e]ven though there was considerable evidence pointing to Armstead's guilt on [the three counts where the jury returned guilty convictions], it is impossible to know whether the court's response contributed to the convictions on those counts."   (Armstead, supra, 102 CalApp.4th at p. 795.)

            In this case unlike Armstead, there was no surprise change in the admissibility of the evidence after the case had been submitted to the jury.  From the beginning of the case, the defense faced cross-admissibility of the offenses.  The severance motion was denied largely because of the court's finding the evidence would be cross-admissible.  Defense counsel, during the discussion of the jury instructions, acknowledged the similarities among the offenses was a factor the jury could consider.  The court, during the jury instructions, specifically authorized the prosecutor to argue the similarities.

            In sum, we conclude the court's response to the jury note did not impermissibly change the admissibility of the evidence after the case had been submitted to the jury.

(D)  Proof Beyond a Reasonable Doubt on Each Count

            Villegas also contends the court's response to the jury note violated his right to have each count proven beyond a reasonable doubt.  He points out the jury was " told the 'entire body of evidence' could be used to determine the guilt on each count."   He argues:  " There was no limitation on the use of the evidence.  The jury was not required to find a particular allegation true beyond a reasonable doubt before it could consider its relevance to another count, or even to find the allegation true by a preponderance of the evidence."   (Original emphasis.)  He contends he was prejudiced " because with the judge's permission and no limitation whatsoever, the jury was allowed to convict [him] on multiple counts solely on the fact that there were multiple counts."   We disagree.

            Nothing in the instruction told the jury it could convict Villegas solely on the basis there were multiple victims and multiple counts.  In particular, nothing in the instruction told the jury it could use the other counts as propensity evidence on less than a reasonable doubt standard.  Instead, the instruction stressed " [e]ach count must be proved separately and beyond a reasonable doubt."   This statement reiterated earlier instructions telling the jury:  " Each count charge[s] a distinct crime.  You must decide each Count separately" and that the jury could not convict the defendant of any offense unless it was proved beyond a reasonable doubt.  (CALJIC Nos. 17.02, 2.90.)

            Further, to the extent the language in the court's response told the jury it could " consider the entire body of evidence presented at trial, the facts as you determine them to be, and any reasonable inference that you draw from them," this was essentially an instruction that the jury could use evidence from the other counts as circumstantial evidence of guilt.  The circumstantial evidence instruction, CALJIC No. 2.01, told the jury, " each fact which is essential to complete a set of circumstances necessary to establish the defendant's guilt must be proved beyond a reasonable doubt.  In other words, before an inference essential to establish guilt may be found to have been proved beyond a reasonable doubt, each fact or circumstance upon which the inference necessarily rests must be proved beyond a reasonable doubt."   Thus, the instructions, when read together, do not support a conclusion Villegas's right to have each count determined beyond a reasonable doubt was violated.

            Moreover, even if we were to find the court erred in its response and should have explicitly limited the jury's use of the evidence, we would not reverse. 

            Villegas did not dispute that he engaged in sexual conduct with the five women on the specific occasions; he only disputed whether the sexual conduct was consensual, arguing that the women were all prostitutes who had engaged in sexual conduct for money, had not been paid, and had falsely accused Villegas of forcible sexual offenses.  Since Villegas did not testify as to what occurred on the individual occasions, the issue was not whether the jury should believe Villegas's version of what occurred or the women's version, but rather whether the victims' versions had been impeached to the point where their testimony was not credible.  This credibility determination was not dependent on resorting to evidence relating to the other offenses.  Each version was individually corroborated by strong and abundant evidence.

            There was physical evidence corroborating the women's stories of forcible sexual offenses:  Sofia had a small laceration in her genital area that was consistent with sexual assault; Sarah had red marks on her neck area which she attributed to her assailant grabbing her and having a sharp object at her neck; Susan had cuts on her back and abrasions on her arm; Jessica F. had bleeding scratches on her arm that she attributed to her assailant's fingernails; and Jessica T. had multiple scratches on her body that consistent with hiding in the bushes and a laceration in her genital area that was consistent with sexual assault.

            Further, each woman promptly reported the offense and talked to the police.  Sofia, immediately after Villegas left, yelled for help from people in an apartment complex and when someone responded, she told him she had been raped and asked for the police to be called.  Sarah, after Villegas left, ran away, told a stranger she encountered that she had been raped and went to a store where the police were called. Susan, immediately after Villegas drove away, ran to a pay phone and called the police.  Jessica F., fled from Villegas, hid in the bushes and then ran to a busier area where she stopped a car and told the driver that she had been raped and robbed, and after she returned to the motel, the police were summoned.  Jessica T. fled from Villegas, hid behind some bushes then ran into the interior of a building where she was able to contact the police through a phone in an elevator.

            Additionally, we note the verdicts themselves indicate the jury individually considered each count and applied a reasonable doubt standard.  The jury did not blindly convict Villegas of all the charged counts.  It acquitted him of robbing Susan W., and of raping, forcibly penetrating with a foreign object, and kidnapping Sofia V.  The jury did not blindly find true all the weapons allegations.  It did not find true the weapons allegations as to Jessica T., Sara F., or Sofia V.  The jury's findings on the weapons allegations are particularly strong indicators that the jury carefully considered each count.  The jury did not merely use evidence to conclude Villegas had used a weapon as to some victims to conclude he had a propensity to use a weapon and therefore used a weapon in the other offenses where the women did not see the weapon.

            We conclude the court's response to the jury's note did not result in undermining the requirement that each offense be proven beyond a reasonable doubt.^[2]

III

Instruction - Use of Force

            Villegas contends the court erred in refusing his instruction proposing a definition of " force" for the rape offenses.  This instruction stated:  " The term 'force' means physical force that is substantially different from or substantially greater than that necessary to accomplish the sexual intercourse itself."

            Villegas argues his instruction is supported by People v. Cicero (1984) 157 Cal.App.3d 465, 474, a case involving charges of forcible lewd acts on a child, which held the prosecution must prove the defendant used " physical force substantially different from or substantially greater than that necessary to accomplish the lewd act itself."   Our Supreme Court, however, has specifically disapproved of the use of this definition of force in a rape case.  (People v. Griffin (2004) 33 Cal.4th 1015, 1018-1019.)  The Supreme Court held the term " force" as used in the rape statute does not have a specialized, legal meaning " [n]or is there anything in the common usage definitions of the term 'force,' or in the express statutory language of section 261 itself, that suggests force in a forcible rape prosecution actually means force 'substantially different from or substantially greater than' the physical force normally inherent in an act of consensual sexual intercourse.  [Citation.]  To the contrary, it has long been recognized that 'in order to establish force within the meaning of [the rape statute], the prosecution need only show the defendant used physical force of a degree sufficient to support a finding that the act of sexual intercourse was against the will of the [victim].'  "   (Id. at p. 1023-1024, italics omitted, third bracketed material added.)  The Supreme Court specifically limited Cicero's "   'substantially different from or substantially greater'  " definition of force to forcible lewd conduct prosecutions under section 288, subdivision (b)(1).  (People v. Griffin, at p. 1028.)

            We are required to follow the decisions of the California Supreme Court.  (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)  The court did not err by refusing the requested instruction.

IV

Instructions on Duress, Menace or Fear to Nonrape Sexual Offenses

            The trial court instructed the jury on menace, duress and fear in the rape instructions but not in the forcible oral copulation instructions.^[3]  Villegas contends this omission was prejudicial " because of the specialized meaning of those terms in the context of these offenses."   We disagree.

            The rape instruction, CALJIC No. 10.00, in pertinent part, stated:

" Every person who engages in an act of sexual intercourse with another person who is not the spouse of the perpetrator accomplished against that person's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury to that person, is guilty of the crime of rape.  [¶]  .  .  .  [¶]

"   'Against that person's will' means without the consent of the alleged victim.

"   'Menace' means any threat, declaration, or act that shows an intention to inflict injury upon another.

"   'Duress' 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 she would not otherwise have performed, or acquiesce in an act to which she otherwise would not have submitted.  The total circumstances, including but not limited to threats to harm the victim, the age of the victim, and his or her relationship to the defendant, physically controlling the victim when the victim attempts to resist, and warnings to the victim that revealing the perpetrator's conduct would result in jeopardizing the safety of the victim or the victim's family, are factors to consider in appraising the existence of the duress.

" The element of fear is not established simply by a substantive feeling of fear by the victim.  The following must be established beyond a reasonable doubt:

" 1.  The complaining witness genuinely entertained a fear of immediate and unlawful bodily injury sufficient to induce her to submit to sexual intercourse against her will, and

" 2.  The complaining witness' fear was reasonable under the circumstances or, if not reasonable, the defendant knew of the complaining victim's subjective fear and took advantage of it.  .  .  ."

            The instruction on forcible oral copulation (CALJIC No. 10.10) told the jury:  " Every person who participates in an act of oral copulation against the will of the victim by means of force, violence, duress, menace or fear of immediate and unlawful bodily injury on the victim or any other person is guilty of the crime of unlawful oral copulation.  .  .  ."   The instructions defined the phrase " [a]gainst the will" as " without the consent of the alleged victim."   The instructions did not otherwise define the terms " force, violence, duress, menace or fear."

            "   '[I]t is the trial court's duty to see that the jurors are adequately informed on the law governing all elements of the case to the extent necessary to enable them to perform their function.  .  .  .  A trial court has a sua sponte duty (1) to instruct on general principles of law relevant to issues raised by the evidence [citation]; and (2) to give explanatory instructions when terms used in an instruction have a technical meaning peculiar to the law [citation].'  "   (People v. Enriquez (1996) 42 Cal.App.4th 661, 665.)

            " Although trial courts, generally, have a duty to define technical terms that have meanings peculiar to the law, there is no duty to clarify, amplify, or otherwise instruct on commonly understood words or terms used in statutes or jury instructions.  'When a word or phrase "   'is commonly understood by those familiar with the English language and is not used in a technical sense peculiar to the law, the court is not required to give an instruction as to its meaning in the absence of a request.'  "   [Citations.]  A word or phrase having a technical, legal meaning requiring clarification by the court is one that has a definition that differs from its nonlegal meaning.  [Citation.]'  "   (People v. Griffin, supra,