Filed 11/20/18 P. v. Greene CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Bernard Schwartz, Judge. Affirmed with directions.

Wallin & Klarich and Stephen D. Klarich for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Eric A. Swenson and Jennifer B. Truong, Deputy Attorneys General, for Plaintiff and Respondent.

I. INTRODUCTION

A jury found defendant and appellant, Joseph Greene, guilty of nine sex offenses against his two stepdaughters, Doe 1, and her younger sister, Doe 2. In counts 1 through 4 the jury convicted defendant of raping Doe 1 by force (Pen. Code, § 261, subd. (a)(2)),[1] in count 5 of attempting to rape Doe 1 (§§ 664, 261, subd. (a)(2)), and in count 6 of orally copulating Doe 1 by force (§ 288a, subd. (c)(2)(A)). These offenses occurred in early 2016 when Doe 1 was 21 years old.

In counts 7 and 8, the jury convicted defendant of the aggravated sexual assault of Doe 2, a child under age 14 and seven or more years younger than defendant, by forcibly orally copulating Doe 2 (§§ 269, subd. (a)(4), 288a, subd. (c)(2)(A); count 7), and by forcibly sexually penetrating Doe 2 (§§ 269, subd. (a)(5), 289; count 8). In count 9, the jury convicted defendant of committing a lewd act with Doe 2, a child under age 14. (§ 288, subd. (a).) These offenses occurred between February 2005 and February 2007 when Doe 2 was age nine or 10.

The jury also found true a multiple victim enhancement allegation, pursuant to section 667.61, subdivisions (b), (c) and (e)(4) of the “One Strike” law. (§ 667.61, subds. (c)(1), (e)(4), (j)(2).) Thus, pursuant to the multiple victim enhancement, defendant was sentenced to eight consecutive terms of 25 years to life on counts 1 through 4 and 6

through 9, and he received a determinate four-year term on count 5, resulting in a total sentence of 204 years to life.

In this appeal, defendant raises three claims of trial error and three claims of error regarding his One Strike law sentences. Regarding trial error, he claims: (1) insufficient evidence supports three of his four convictions for rape by force in counts 1 through 4; (2) insufficient evidence supports his convictions in counts 7 and 8; and (3) in counts 7 and 8, the court erroneously failed to instruct the jury sua sponte on the lesser included offenses of nonforcible oral copulation and nonforcible sexual penetration of a child age 14 or younger. We reject these claims. As we explain, substantial evidence supports defendant’s convictions in counts 1, 2, 3, 4, 7, and 8, and there was insufficient evidence to warrant instructing the jury on the lesser included offenses of nonforcible oral copulation and nonforcible sexual penetration in counts 7 and 8.

Regarding his One Strike law sentences, defendant claims: (1) he was erroneously sentenced pursuant to the One Strike law because the multiple victim allegation was improperly and misleadingly pled, in violation of both section 667.61 and his due process rights; (2) his 25-year-to-life sentences on counts 7, 8, and 9 (the crimes against Doe 2) violate the ex post facto clauses of the state and federal Constitutions because when these crimes were committed in 2005 to 2007, section 667.61 only provided for 15-year-to-life sentences on these counts; and, finally, (3) his counsel rendered ineffective assistance in failing to object to his One Strike law sentences on each of these grounds.

We also reject these claims. The multiple victim allegation was properly pleaded, and there was no due process or ex post facto violation. It is therefore unnecessary to address defendant’s alternative claim that counsel rendered ineffective assistance in failing to object to the information or his One Strike law sentences. Defendant was properly sentenced to 25 years to life on counts 7, 8, and 9 based on the multiple victim circumstance enhancement and subdivision (j)(2) of section 667.61. But defendant was erroneously sentenced to 25-year-to-life terms on counts 1 through 4 and 6 (the qualifying sex offense against Doe 1). Thus, we amend the judgment to reduce defendant’s sentences on counts 1 through 4 and 6 from 25 years to life to 15 years to life. In all other respects, we affirm the judgment.

II. FACTUAL BACKGROUND

A. Prosecution Evidence

Defendant had been in a relationship with the mother of Doe 1 and Doe 2, and he raised the girls and their younger brothers as his children. Defendant would discipline the girls physically, and he was especially hard on Doe 2. Doe 1 was born in August 1994, and Doe 2 was born in February 1996. At trial in March 2017, Doe 1 was age 22 and Doe 2 was age 21. While growing up, Does 1 and 2 believed defendant was their biological father, and they did not learn he was not their biological father until they were teenagers.

1. Forcible Oral Copulation with Doe 2 (Count 7)

One day when Doe 2 was nine or 10 years old, defendant was driving home with Doe 2 and the other children when Doe 2 asked defendant whether he missed an old coworker of his who lived up the street from them in Perris. Defendant became angry and struck Doe 2 across her face with either his closed fist or the back of his hand, because she could feel his ring against her face. The blow made Doe 2’s cheek bleed, and it bruised her face so badly she had to stay home from school for a week. When they arrived home, defendant ordered Doe 2 to go to his room, and to wait for him there, and she complied.

Defendant then entered the room, closed the door, and instructed Doe 2 to close her eyes and open her mouth. Again, Doe 2 complied. Defendant stuck something in her mouth and it tasted salty. When he pulled it out, she opened her eyes and saw it was his penis. He laughed and said, “I told you I wouldn’t make you try something you wouldn’t like.” Doe 2 began to cry. She was afraid of defendant because he was “very violent.” She did not immediately tell anyone about the incident because she thought defendant would try to hurt her if she did, and she also thought no one would believe her.

At the time of the incident, Doe 2’s mother and defendant were separated, Doe 2’s mother was in drug rehabilitation, and defendant was Doe 2’s sole guardian. Defendant and Doe 2’s mother later divorced.

2. Forcible Sexual Penetration of Doe 2 (Count 8)

Two days to two weeks after the oral copulation incident, Doe 2 was sunburned on her arms, legs, and face while playing soccer. Defendant said he would put aloe vera on her to soothe the pain. When they returned home that day, defendant told Doe 2 to wait in his room. Doe 2 was reluctant to go into defendant’s room and stayed outside in the hallway, but defendant said, “I told you, go to the room.” Doe 2 went into the room, and defendant entered and closed the door.

Defendant brought aloe vera with him and told Doe 2 to undress so he could put it on her. Doe 2 was afraid defendant would touch her inappropriately, but she was also afraid he would hurt her if she did not do as he said. Defendant told Doe 2 to remove her clothing, she and defendant removed her clothing, and defendant began putting aloe vera all over Doe 2’s body, including on her chest and her vaginal area. After either part or all of her clothing had been removed, defendant hit Doe 2 across her face.

When all of her clothing was off, defendant rubbed Doe 2’s vaginal area with his hand and inserted his finger into her vagina. At times, he rubbed her with both of his hands; at other times he rubbed her with one hand and had his other hand inside the front of his pants. Doe 2 was “silently crying.” After defendant finished, Doe 2 felt embarrassed and uncomfortable. She went into the closet and continued crying. Defendant left the house for a date, and Doe 2 and her siblings stayed at home with defendant’s brother.

3. Lewd Act with Doe 2 (Count 9)

Around one week after the sexual penetration incident, Doe 2 was sleeping in her room when defendant woke her and told her to put on her bathing suit. Doe 2 did so, and went into defendant’s room where he had filled his bathtub with water. Doe 2’s two younger brothers were playing in the bathtub, but they got out when she got in. Defendant entered the bathroom and undressed Doe 2. He rubbed her all over her nude body, including her chest and vaginal area. She was nine or 10 years old and usually bathed herself. When defendant did this, Doe 2 felt uncomfortable and sad. After this incident, Doe 2’s mother got out of rehabilitation. Doe 2 told her mother she did not want to go to defendant’s house anymore, she did not like defendant, and was afraid of him.

4. Four Forcible Rapes of Doe 1 (Counts 1-4)

In early 2016, when she was age 21, Doe 1 regarded defendant as her father and often spent time with him. Every morning, she worked out with defendant at his house in Corona, and she would go to his house for family parties.

One day, in March 2016, Doe 2 and her boyfriend picked up Doe 1 at her apartment, and the three of them drove to defendant’s house to play pool. They played pool late into the night, and Doe 2 and her boyfriend did not want to drive Doe 1 home because it was out of their way. After Doe 2 and her boyfriend left the house, Doe 1 went upstairs to sleep in defendant’s mother’s bedroom. Defendant’s mother was away that night, and only Doe 1 and defendant were in the house.

Around midnight, defendant came into his mother’s bedroom and asked Doe 1 if he could open the window. He climbed over the bed to open the window, then he kissed Doe 1 on her face and mouth and pulled down her pants. Doe 1 was scared because she did not understand what was going on. Defendant inserted his penis into Doe 1’s vagina, and Doe 1 began “noticeably” crying. Defendant ejaculated. He was much taller and heavier than Doe 1, and she did not believe she could fight him off. There had been no flirting or foreplay that night between defendant and Doe 1. Doe 1 “just laid there” and did not try to call 911 or anyone.

Defendant came back into the bedroom three more times that night, and each time he inserted his penis into Doe 1’s vagina and ejaculated. The second or third time, he choked Doe 1 with both his hands and slapped her face. He told her she was “Daddy’s little slut,” and asked her, “[D]o you wish it was you I was fucking instead of your mom when you were a little girl?” Doe 1 said nothing in response; she was crying and upset. After the fourth incident, defendant told Doe 1 that her brothers could never find out what he had done because they would think she was a “whore.” Doe 1 was scared and agreed not to tell anyone. That night, Doe 1 did not sleep. In the morning, her sister-in-law came over to exercise with her and defendant. Doe 1 told her sister-in-law she did not want to exercise and asked to be taken home.

5. Forcible Oral Copulation (Count 6) and Attempted Rape (Count 5) of Doe 1

A few days or weeks after the night defendant and Doe 1 had sexual intercourse, Doe 1 went to defendant’s house again, because her brothers had asked her to come over and she did not want to disappoint them. At one point, defendant asked Doe 1 to come to his bedroom to look at his “big jar of weed” or marijuana. One of Doe 1’s brothers was in his room across the hall, so Doe 1 thought nothing would happen if she went into defendant’s bedroom. The door to the bedroom was closed because defendant did not want the boys to know he had marijuana.

Inside his bedroom, defendant leaned on a barstool, pulled out his penis, and told Doe 1 to get on her knees and suck his penis. Doe 1 was afraid defendant would hurt her if she refused, but if she did what he wanted he would not try to have sex with her again. So she orally copulated him, then tried to leave the room. At that point, defendant pushed her onto his bed and tried to take off her pants. She fought defendant and told him she would scream for her brothers if he took off her pants. He let her go, and she left the room.

6. The Camping Trip and Ultimate Fighting Championship Party (April-June 2016)

Around April 2016, after the night defendant and Doe 1 had sexual intercourse, Doe 1 saw defendant at a camping trip he had arranged for all of the family’s children, including Doe 1. Doe 1 was only at the campsite for a few hours during the daytime. She did not want to stay the night, because defendant was “making comments.” He raised his hand and asked Doe 1 whether she was “ready for five?” He also called her “DLS.” She had a tattoo of a tree on the back of her neck, and he swiped the back of her neck and told her she should get “DLS” for “Daddy’s little slut” tattooed inside the tree.

Before Doe 1 left the campsite, defendant told Doe 1 to send him a promiscuous photograph of her. Doe 1 was afraid that if she did not do so, defendant would be angry, would hurt her, and would tell her brothers she was a whore as he had said he would. She thought if she complied everything would be easier, so she sent defendant two photographs of herself wearing a bra or lingerie.

A month or so after the camping trip, in late May or early June 2016, defendant moved into a new house in Fontana, and threw a party for family and friends. Doe 1 went to the party because her brothers asked her to go. There was an Ultimate Fighting Championship fight that night. Before the party, Doe 1 told her sister-in-law that defendant had hurt her sexually and asked her sister-in-law to come along so she would not be alone with defendant. At one point, Doe 1 was alone in the garage with defendant, and he grabbed her hand and asked her to come to his bedroom. She said no, but he dragged her by her arm, through the open garage door and to the front door of the house, which was locked. There, defendant put his hands up Doe 1’s dress and touched her vaginal area. He only pulled his hand back when Doe 1’s brother opened the front door. After that, Doe 1 told her sister-in-law she needed to go home, and she went to the car and cried.

7. Dr. Jody Ward’s Child Sexual Abuse Accommodation Syndrome (CSAAS) Testimony

Dr. Jody Ward testified about CSAAS—a pattern of behaviors exhibited by many children who have been sexually abused by a family member or close friend. CSAAS is helpful, not as a diagnostic tool to determine whether sexual abuse has occurred, but in understanding why children who have been sexually abused “within an ongoing relationship” behave as they do. For example, they tend not to report the abuse right away. They also tend to feel helpless due to the inherent power differential between themselves and their adult abusers.

8. Defendant’s Police Interviews

In June and July 2016, defendant was interviewed by Detective Daryl Sailer, a sex crimes detective with the Corona Police Department. In the initial interview, defendant denied ever touching Doe 2 or Doe 1, but in a subsequent interview he admitted he had sexual intercourse with Doe 1 four times in one night and that Doe 1 had performed oral sex on him on another occasion. He claimed Doe 1 flirted with him before they had sex.

B. Defense Case

Defendant did not testify or present any other affirmative evidence.

III. DISCUSSION

A. Substantial Evidence Supports Each Forcible Rape Conviction (Counts 1-4)

Defendant claims insufficient evidence supports three of his four convictions for rape by force against Doe 1 in counts 1 through 4. (§ 269, subd. (a)(2).) He claims Doe 1’s testimony showed that only one rape occurred, not four. We disagree. Doe 1’s testimony showed that four separate rapes occurred.

In evaluating a claim that insufficient evidence supports a criminal conviction, we review the entire record in the light most favorable to the judgment in order to determine whether it contains substantial evidence—i.e., evidence that is reasonable, credible, and of solid value—from which a reasonable jury or trier of fact could have found the defendant guilty of the crime beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 576-577.) We presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence. (People v. Manibusan (2013) 58 Cal.4th 40, 87.) Reversal for insufficient evidence is unwarranted unless it appears “that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].” (People v. Redmond (1969) 71 Cal.2d 745, 755.)

“Forcible rape is an act of sexual intercourse accomplished with a person not the spouse of the perpetrator against the person’s will [i.e., without the person’s consent] by means of force or violence.” (People v. Wallace (2008) 44 Cal.4th 1032, 1077.) Doe 1’s testimony showed defendant forcibly raped Doe 1 four times, on a single night in March 2016, between the hours of midnight and 4:00 or 5:00 a.m.

The first rape occurred after defendant came into his mother’s bedroom, climbed over the bed where Doe 1 was lying, and opened the window. He then pulled off Doe 1’s pants, put his penis into her vagina, and ejaculated, as Doe 1 noticeably cried. Doe 1 testified that defendant returned to the room three more times that night, at 20-minute to one-hour intervals, and each time he inserted his penis into Doe 1’s vagina and ejaculated. The second or third time he pulled Doe 1’s hair, slapped her face, and choked her.

Defendant claims Doe 1’s testimony showed that only one rape occurred because she at one point testified it was hard to “completely dissect” each of the four incidents of sexual intercourse in her mind and they all “seem[ed] like one big . . . thing.” But the fact the four incidents seemed like “one big . . . thing” to Doe 1 does not mean that only one rape occurred. Doe 1 testified that defendant put his penis into her vagina four times, separated by 20-minute to one-hour intervals. Also, defendant acknowledged that four separate incidents of sexual intercourse occurred when, during the camping trip in April 2016, he raised his hand to Doe 1 and asked her whether she was “ready for five?” Thus, substantial evidence shows four rapes occurred.

Defendant points out that Doe 1 “did not specifically state what caused [him] to ejaculate” during each incident. “Ejaculation, however, is not an element of rape; all that is required is ‘sexual penetration, however slight.’ (§ 263.)” (People v. Wallace, supra, 44 Cal.4th at p. 1079.) Thus, what caused defendant to ejaculate during each incident, or even whether he ejaculated during any of the incidents, is irrelevant to whether he committed rape.

More generally, defendant submits it was “incumbent upon the People to describe the circumstances under which [he] purportedly inserted his penis into [Doe 1’s] vagina so that each count could be said to stand on its own.” But Doe 1’s testimony met this standard; she testified there were four separate incidents of sexual intercourse separated by 20-minute to one-hour intervals. Thus, each rape “stood on its own” and no greater specificity concerning the circumstances of each rape was required to be shown.

B. Substantial Evidence Supports the Convictions in Counts 7 and 8

The jury convicted defendant of orally copulating Doe 2 by force, fear, or threats in count 7 (§§ 269, subd. (a)(4), 288a, subd. (c)(2)(A)), and of sexually penetrating Doe 2 by force, fear, or threats in count 8 (§§ 269, subd. (a)(5), 289). Defendant claims insufficient evidence supports these convictions because the evidence did not show that the offenses were committed by “force, fear, menace, or duress.” Again, we disagree. Substantial evidence shows counts 7 and 8 were committed by fear and duress. Thus, it is unnecessary for this court to address whether substantial evidence shows these offenses were also committed by force, violence, or menace.

As noted, in evaluating a claim that insufficient evidence supports a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—i.e., evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson, supra, 26 Cal.3d at pp. 576-577.) Reversal is required only when it appears that under no hypothesis whatsoever is there sufficient evidence to support the conviction. (People v. Bolin (1998) 18 Cal.4th 297, 331.)

For purposes of counts 7 and 8, the jury was properly instructed on the meaning of force, duress, menace, and fear: “An act is accomplished by force if a person uses enough physical force to overcome the other person’s will. [¶] Duress means a direct or implied threat of force, violence, danger, hardship, or retribution that causes a reasonable person to do or submit to something that he or she would not otherwise do or submit to. When deciding whether an act was accomplished by duress, consider all of the circumstances, including the age of the other person and her relationship to defendant . . . [¶] Menace means a threat, statement, or act showing an intent to injure someone. [¶] An act is accomplished by fear if the other person is actually and reasonably afraid or she is actually but unreasonably afraid and the defendant knows of her fear and takes advantage of it.” (CALCRIM Nos. 1015 [Oral Copulation by Force, Fear, or Threats] & 1045 [Sexual Penetration by Force, Fear, or Threats].)

Regarding count 7, the oral copulation count, Doe 2 testified that defendant struck her in her face one day while driving home, after she asked him whether he missed an old coworker who lived near the family. He struck her with a closed fist or the back of his hand, causing her cheek to bleed and badly bruising her face. When they arrived home, he ordered her go to his room and wait for him, and she complied. When he arrived in the room, he instructed her to close her eyes and open her mouth, which she did, and he inserted his penis into her mouth. When he pulled it out, she opened her eyes and saw it was his penis.

Defendant acknowledges this testimony but submits “there was no causal nexus between any force or violence or fear on the one hand, and the accomplishment of the sexual act on the other. That is, [defendant] did not slap [Doe 2] for resisting his sexual advances. In fact, [Doe 2] remained unaware of the nature of the sexual act until after it was completed.” This argument is wholly unpersuasive. Substantial evidence shows, and the jury could have reasonably concluded, that (1) Doe 2 submitted to defendant’s act of putting his penis into her mouth because she actually and reasonably feared he would severely punish her if she did not cooperate by closing her eyes and opening her mouth, and (2) defendant knew of her fear and took advantage of it in order to force her to orally copulate him. Thus, substantial evidence shows defendant accomplished the act of oral copulation by fear. The same evidence also unquestionably demonstrates that the act was done by duress. The evidence of duress is significantly enhanced by the fact that defendant was a father figure to Doe 2 and the incident occurred when Doe 2 was nine or 10 years old. (CALCRIM No. 1015 [“When deciding whether the act was accomplished by duress, consider all the circumstances, including the age of the other person and (his/her) relationship to the defendant.”].)

Regarding count 8, the sexual penetration count, Doe 2 testified that only days or weeks after the oral copulation, she suffered a sunburn while playing soccer; defendant directed her to his room and said he would put aloe vera on her; once he was in the room with her, he had her disrobe and helped her disrobe; then, as he rubbed the aloe vera on her, he penetrated her vagina with the tip of his finger. Defendant argues there was no evidence he “threatened [Doe 2] in any way in order to actually accomplish the act of sexual penetration.” He claims that although he was “tough on [Doe 2] . . . there is no evidence that [he] took advantage of his toughness in order to accomplish the act [of sexual penetration].” Again, we are not persuaded.

Doe 2 testified she was reluctant to go into defendant’s room and stayed in the hallway, but defendant ordered her to go into his room, saying, “I told you, go to the room.” Doe 2 also testified she was afraid defendant would touch her inappropriately (as he had done when he put his penis in her mouth), but she was also afraid he would hurt her if she did not do as he said. After he entered the room, he closed the door. And, after either all or part of Doe 2’s clothing had been removed, he hit her across her face. When all of her clothing was off, he rubbed her vaginal area with his hand and inserted his finger into her vagina. Doe 2 was “silently crying” as he did this. Thus, substantial evidence shows defendant accomplished the act of sexual penetration by fear and duress, just as he accomplished the act of oral copulation by fear and duress.

C. Insufficient Evidence Warranted Instructing the Jury on the Lesser Included Offenses of Nonforcible Oral Copulation and Nonforcible Sexual Penetration in Counts 7 and 8

Defendant next claims the trial court erroneously failed to instruct the jury sua sponte on the lesser included offenses of nonforcible oral copulation and nonforcible sexual penetration of a child under age 14 in counts 7 and 8. We disagree. The court did not have a duty to instruct sua sponte on these lesser included offenses because insufficient evidence showed, and the jury could not have reasonably determined, that defendant committed the lesser but not the greater offenses.

“[A] trial court errs if it fails to instruct, sua sponte, on all theories of a lesser included offense which find substantial support in the evidence.” (People v. Breverman (1998) 19 Cal.4th 142, 162.) In other words, “[t]he trial court has a duty to instruct the jury sua sponte on all lesser included offenses if there is substantial evidence from which a jury can reasonably conclude the defendant committed the lesser, uncharged offense, but not the greater.” (People v. Brothers (2015) 236 Cal.App.4th 24, 29.)

We refer to the charged offenses in counts 7 and 8 as “forcible” oral copulation and “forcible” sexual penetration, as a shorthand way of referring to the umbrella element of force, violence, duress, retribution, menace, or fear. In this case, nonforcible oral copulation of a child under age 14 and more than 10 years younger than defendant (§ 288a, subd. (c)(1)) was a lesser included offense of the charged offense of forcible oral copulation of a child under age 14 and seven or more years younger than defendant (§§ 269, subd. (a)(4), 288a, subd. (c)(2)), because the evidence showed that Doe 2 was more than 10 years younger than defendant, and the greater offense of forcible oral copulation otherwise includes all elements of nonforcible oral copulation, except the element of force, violence, duress, retribution, menace, or fear. (See generally People v. Woods (2015) 241 Cal.App.4th 461, 471-476.) Likewise, nonforcible sexual penetration of any person (§ 289, subd. (h)) is a lesser included offense of the forcible sexual penetration of a child under age 14 and seven or more years younger than defendant (§ 269, subd. (a)(5)), because the greater offense includes all elements of the lesser, except the element of force, duress, retribution, menace, or fear.

Defendant submits that “the jury could have entertained reasonable doubt” as to whether he committed counts 7 and 8 by force, duress, retribution, menace, or fear; however, he argues the jury was “placed in the difficult position of either voting to convict” him of the greater offenses or convicting him of no offense at all. But no evidence showed, and the jury could not have reasonably concluded, that defendant committed nonforcible oral copulation in count 7, or nonforcible sexual penetration in count 8. More specifically, no evidence showed that the incidents of oral copulation and sexual penetration which Doe 2 described were not accomplished by fear and duress. Doe 2’s testimony showed that if defendant committed the acts of oral copulation and sexual penetration, he accomplished these acts by fear and duress. The choice the jury had was to believe Doe 2’s entire testimony concerning how the incidents occurred or to disbelieve her testimony and acquit defendant in counts 7 and 8. This was proper, because convictions for the lesser included offenses of nonforcible oral copulation and nonforcible sexual penetration had no support in the evidence.

D. The Multiple Victim Enhancement Allegation Was Properly Pleaded But Defendant’s Sentences on Counts 1 Through 4 and 6 (the Qualifying Sex Offenses Against Doe 1) Must Be Reduced from 25 Years to Life to 15 Years to Life

Defendant claims that his One Strike law sentences of 25 years to life on counts 1 through 4 and 6 through 9, all of which are based on the multiple victim enhancement (§ 667.61, subd. (e)(4)), must be stricken because the multiple victim allegation was improperly or misleadingly pleaded, in violation of both the pleading requirements of section 667.61, subdivision (o) and his due process right to notice of the multiple victim enhancement. We reject these claims. As we explain, the multiple victim allegation was properly pleaded, and there was no due process notice violation.

Nonetheless, the record shows defendant was erroneously sentenced to 25 years to life on counts 1 through 4 and 6 (the qualifying sex offenses against Doe 1); he was required to be sentenced to 15 years to life on these five counts. (§ 667.61, subds. (b), (c), (e)(4).) Thus, we modify the judgment to reduce defendant’s sentence on counts 1 through 4 and 6 from 25 years to life to 15 years to life. Defendant was correctly sentenced to 25 years to life on counts 7, 8, and 9 (§ 667.61, subds. (b), (c), (e)(4), (j)(2)) and to four years on count 5.

1. Relevant Background

The operative first amended information alleged each of the nine charged offenses in separate paragraphs titled “Count 1” through “Count 9.” At the end of each paragraph, the information included a bracketed notation, ostensibly referring to the sentence or range of sentences applicable to that count. In counts 1 through 6, and in count 9, the information included the bracketed notation “[3/6/8 prison]”—ostensibly referring to the low, middle, and high terms applicable to a conviction in each of these seven counts. (See, e.g., § 264, subd. (a) [“[R]ape . . . is punishable by imprisonment in the state prison for three, six, or eight years.”].) In counts 7 and 8, which charged defendant with committing aggravated sex offenses against Doe 2 (§ 269, subd. (a)), the bracketed notation was “[15-L]”—indicating that, if convicted in the count, defendant would be punished by 15 years to life on the count (§ 269, subd. (b) [aggravated sexual assault of a child is punishable by 15 years to life]).

Following count 9, the information included a One Strike law allegation, printed in boldface type and titled “Special Allegation—Penal Code section 667.61(e)(4).” Under that heading, the information stated: “It is further alleged that in the present case and cases defendant committed a qualifying sex offense against more than one victim as listed in Penal Code section 667.61, subdivision (e)(4).” The jury found the multiple victim allegation true, by returning a verdict form stating: “We, the jury . . . , find the defendant . . . did commit a qualifying offense with more than one victim within the meaning of . . . section 667.61, subdivision (e), subsection (4).” No other One Strike law allegations were pled in the information, submitted to the jury, or found true by the jury. Defendant was sentenced to consecutive terms of 25 years to life on counts 1 through 4 and 6 through 9 (a total of 200 years to life), plus four years on count 5.

2. Applicable Provisions of the One Strike Law, Overview

Section 667.61, sometimes called the One Strike law, is an alternative sentencing scheme which provides for indeterminate sentences for felony sex crimes committed under particular circumstances. (People v Anderson (2009) 47 Cal.4th 92, 99.) Section 667.61, subdivision (a) provides that: “Except as provided in subdivision (j), (l), or (m), any person who is convicted of an offense specified in subdivision (c) under one or more of the circumstances specified in subdivision (d) or under two or more of the circumstances specified in subdivision (e) shall be punished by imprisonment in the state prison for 25 years to life.” (Italics added.) In contrast to subdivision (a), subdivision (b) of section 667.61 provides that: “Except as provided in subdivision (a), (j), (l), or (m), any person who is convicted of an offense specified in subdivision (c) under one of the circumstances specified in subdivision (e) shall be punished by imprisonment in the state prison for 15 years to life.” (Italics added.)

The offenses specified in subdivision (c) of section 667.61 include defendant’s convictions in counts 1 through 4 and 6 through 9—namely, forcible rape (§ 261, subd. (a)(2), counts 1-4 [against Doe 1]); forcible oral copulation (§ 288a, subd. (c)(1), count 6 [against Doe 1] & count 7 [against Doe 2]); forcible sexual penetration (§ 289, subd. (a), count 8 [against Doe 2]); and a lewd act on a child under age 14 (§§ 288, subd. (a), count 9 [against Doe 2]). (§ 667.61, subd. (c)(1) [forcible rape], (c)(5) [forcible sexual penetration], (c)(7) [forcible oral copulation], (c)(8) [lewd act with child under age 14].) The multiple victim circumstance is specified in subdivision (e)(4), and applies when “[t]he defendant has been convicted in the present case or cases of committing an offense specified in subdivision (c) against more than one victim.” (§ 667.61, subd. (e)(4).)

3. Defendant’s Statutory Pleading and Due Process Notice Claims Lack Merit

Defendant claims the multiple victim allegation was insufficiently or misleadingly pled in the information, because the information “only alleged that one sex crime was committed against more than one victim . . . .” (Italics added.) As a result, he argues, the jury, “per the jury verdict form,” “specifically found only one sex crime had been committed against more than one victim.” (Italics added.) Additionally, he argues the information contained misleading “specific representations . . . regarding the extent of [defendant’s sentencing] exposure if he went to trial and lost” which were inconsistent with his One Strike law sentences. Lastly, he claims the information violated his due process right to fair notice of the multiple victim circumstance allegation.

For all of these reasons, defendant claims the trial court erroneously imposed One Strike law sentences on counts 1 through 4, 6, and 9, but not on counts 7 or 8, given that counts 7 and 8 “were the only counts that the prosecution alleged fell within” the One Strike law. None of these claims have merit. Defendant misreads the information and the applicable provisions of the One Strike law.

To begin with, section 667.61, subdivision (o) sets forth a statutory pleading and proof requirement for One Strike law circumstance allegations under subdivisions (d) and (e). It provides: “The penalties provided in this section shall apply only if the existence of any circumstance specified in subdivision (d) or (e) is alleged in the accusatory pleading pursuant to this section, and is either admitted by the defendant in open court or found to be true by the trier of fact.” (§ 667.61, subd. (o), italics added.) The language of subdivision (o) “is straightforward and plain.” (People v. Mancebo (2002) 27 Cal.4th 735, 749 [discussing former § 667.61, subd. (i), the precursor to § 667.61, subd. (o)].)

As relevant here, section 667.61, subdivision (o) simply required the information to allege the multiple victim circumstance “pursuant to” section 667.61. (§ 667.61, subd. (o).) The information did this by alleging the multiple victim circumstance in the “Special Allegation” following counts 1 through 9. The special allegation referred to “Penal Code section 667.61, subdivision (e)(4)” and alleged the multiple victim circumstance in the language of subdivision (e)(4): “It is further alleged that in the present case and cases defendant committed a qualifying sex offense against more than one victim as listed in Penal Code section 667.61, subdivision (e)(4).” (Italics added.) This allegation informed defendant that he would be subject to indeterminate sentencing on all qualifying sex offenses (i.e., those listed in subdivision (c)) charged in the information, if he were to be convicted in the present case or cases of committing “a qualifying sex offense against more than one victim.” (§ 667.61, subds. (b), (c), (e)(4).)

Defendant claims that, by referring to “a qualifying offense,” the information misleadingly alleged he committed “only one” qualifying sex offense against more than one victim. By this claim, he suggests the information was required to allege which of the charged sex offenses in counts 1 through 9 constituted qualifying sex offenses listed in section 667.61, subdivision (c), and which combination of those counts was committed against more than one victim. Nothing in subdivision (o) required this level of specificity in pleading the multiple victim circumstance allegation.

Additionally, the information as a whole, together with section 667.61, sufficiently informed defendant of how and to what extent the multiple victim allegation would apply to defendant. Each of the offenses charged in counts 1 through 9, with the exception of count 5 (the attempted rape of Doe 1), was a qualifying sex offense listed in section 667.61, subdivision (c). The information also alleged that counts 1 through 6 were committed against Doe 1, and that counts 7, 8, and 9 were committed against Doe 2. Thus, anyone reading the information, together with section 667.61, would have understood the multiple victim circumstance allegation would apply to defendant if he were to be convicted, in the present case or cases, of any one or more of counts 1 through 4 and 6 (the qualifying sex offenses against Doe 1), and any one or more of counts 7, 8, and 9 (the qualifying sex offenses against Doe 2).

The pleading of the multiple victim circumstance allegation, in compliance with section 667.61 subdivision (o), also satisfied defendant’s due process right to fair notice of the allegation. “A defendant has a due process right to fair notice of the allegations that will be invoked to increase the punishment for his or her crimes.” (People v. Houston (2012) 54 Cal.4th 1186, 1227.) For the reasons explained, the information gave defendant fair notice that the prosecution would seek to impose indeterminate One Strike law sentences on each qualifying sex offense charged in counts 1 through 9 and listed in subdivision (c) (i.e., on counts 1-4 and 6-9), if defendant was convicted in the present case or cases of committing “an offense specified in subdivision (c) against more than one victim.” (§ 667.61. subd. (e)(4), italics & underlining added.)[2]

Defendant mistakenly claims that by its verdict form, which the jury returned on the multiple circumstance allegation, the jury “specifically found only one sex crime had been committed against more than one victim.” (Italics added.) This argument misreads the jury form. The verdict form stated defendant “did commit a qualifying offense with

more than one victim within the meaning of Penal Code section 667.61, subdivision (e), subsection (4).” (Italics added.) The jury was instructed pursuant to CALCRIM No. 3181 that: “If you find the defendant guilty of two or more sex offenses you must then decide whether the People have proved the additional allegation that those crimes were committed against more than one victim. The alleged victim in counts 1 through 6 is [Doe 1]. The alleged victim in counts 7 through 9 is [Doe 2].” In light of the instruction, the jury verdict form does not mean the jury found that defendant committed “only one” qualifying sex offense against more than one victim. Rather, it means the jury found that defendant committed at least one or “a” qualifying offense against more than one victim.

Defendant also claims the information was misleading to the extent it referenced “[3/6/8 prison]” at the end of counts 1 through 6, and 9, and “[15-L]” at the end of counts 7 and 8. Defendant claims these references constitute “specific representations, by the People, regarding the extent of [his] exposure [to punishment] if he went to trial and lost.” More specifically, he claims the trial court’s imposition of the indeterminate One Strike law sentences was “a classic ‘bait and switch’” because, “ased upon the four corners of the [information],” he was “advised that he would be facing a determinate sentence on all but one count, and, as to that one count, his maximum indeterminate exposure would be 15 years to life.” We disagree.