THE PEOPLE v. ABEL AGUIRRE (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

OPINIONFACTS

Following a jury trial, appellant Abel Aguirre stands convicted of forcible rape (Pen.Code,1 § 261, subd. (a)(2);  count 1).   In a bifurcated proceeding, the trial court found that appellant previously was convicted of committing a lewd act on a child (§ 288, subd. (a)), which constituted a serious felony (§ 667, subd. (a)(1)), serious or violent felony under the three strikes law (§§ 667, subds.(b)-(i), 1170.12, subds. (a)-(d)), an aggravating circumstance under the one strike law (§ 667.61, subds.(a) & (d)), which rendered him a habitual sexual offender (§ 667.71) and for which he served a prior prison term (§ 667.5, subd. (b)).  Appellant was sentenced to prison for a total term of 50 years to life plus six years and was ordered to pay various fees, fines, and assessments.   He now appeals, raising various claims of error.   For the reasons that follow, we will modify the judgment by striking the section 667.5, subdivision (b) enhancement, but otherwise affirm.

The Charged Offense

On August 23, 2008, 17–year–old S.S. was visiting her friend, Ashley, at the latter's home in Visalia.   About midnight, S.S. drank two 24–ounce cans of beer.   Around 3:00 a.m., she left, alone and on foot, to go to the home of another friend, Torey.

S.S. walked east on Houston and crossed Giddings.   As she passed a driveway, she heard what sounded like a tool dropping.   A man she had never seen before, but identified at trial as appellant, walked up behind her.   She crossed the street, but he came up to her and asked what she was doing.   Hoping he would leave her alone if he thought a male was coming, she responded that she was waiting for her boyfriend.   She then crossed back to the other side of the street, and appellant kept walking on his side.

S.S. stopped and called Torey to tell him that somebody was following her.   Appellant, who had passed by her on the opposite side of the street, stopped and came toward her.   Without saying anything, he hit her in the face with a closed fist, causing her phone to fly out of her hand.   He then pushed her, and she started screaming for help.   Somehow they ended up on the other side of some bushes.   S.S. hit appellant in the face and screamed and struggled, but he told her that if she did not have sex with him, he would kill her.   He pinned her down and she “kind of like gave up,” but she was still crying and telling him to stop.

Appellant unbuttoned S.S.'s shorts and pulled them down about to her knees.   He then pulled out his penis and tried to penetrate her.   She told him that she was on her period and did not want to, so he asked “if he could put it in [her] butt.”   She started screaming again, and he said “ ‘Okay, okay,’ ” and put it in her vagina.   He did not remove her tampon first.   He fondled her breasts, then ejaculated on his hand and got up.   He told her he was sorry and took off running.

S.S. pulled up her pants, found one of her two phones, and called Torey.²  She was scared and crying, and she ran to Torey's house.   Once there, she sat on the porch and cried as she told him what had happened.   She ended up going inside and going to sleep.   She did not call the police, because she was in shock and scared.   She did not know if they would believe her, since she had been attacked by someone she did not know.

S.S. awoke around 10:00 or 11:00 that morning, which was Saturday.   She called her friend Tyler and had him pick her up.   She told him what happened, and they drove back by the location so that S.S. could look for the phone she had lost.   They were unable to find it.   They then went to Ashley's house.   S.S. went inside and started crying and told Ashley what happened.   S.S. also changed her clothes.   She put the clothes she had worn during the attack into her backpack and left them at Ashley's house.³

That night, S.S. and her ex-boyfriend went back to where S.S. had seen appellant.   If they found him, S.S. was going to hurt him.   They did not find him that night.   Around 3:00 p.m. the next day, Sunday, S.S. went back to the area again with Tyler and two other friends to try to find appellant.   They went to the house from which S.S. believed appellant had exited before he attacked her.   Tyler went up to the door of the house.   When the residents opened the door, Tyler and the others went inside to look for appellant, because they did not believe he was not there.

Visalia police officer Blake McEwen and his field training officer were driving by, and they were flagged down.   Tyler told McEwen that S.S. had been raped the night before and that they were in the area looking for the suspect.   McEwen spoke to S.S.;   while she was talking to him, she saw appellant jump a fence behind the house.   She alerted McEwen, who checked the area but did not find anyone.⁴

McEwen took S.S. to the police station to make a statement.   After, she went to an urgent care clinic, where a sexual assault examination was conducted.   It revealed that S.S. had an abrasion on her right leg and scattered abrasions on her left knee.   There was also some bruising.   In addition, there were parallel linear abrasions and bruising on the back of her left shoulder, and scattered abrasions on the back of her left wrist.   The injuries were consistent with the history given by S.S. that the assault happened in bushes.   There were no visible findings, such as tears, bruises, or other abnormalities, in the genital examination, only some red moist secretions inside the vaginal vault that were consistent with S.S. being on her menstrual cycle.   It is typical not to see findings in the vaginal vault.   S.S. reported tenderness in her groin area.   The findings were consistent with what S.S. said happened.

On August 25, Detective Howerton began a follow-up investigation by taking a report from S.S. He then went to a residence on Houston, where he spoke with Ezequiel Aguirre and appellant's grandmother, and learned appellant's name and date of birth.   Howerton subsequently showed S.S. a photographic lineup, and she made an identification.

On the morning of August 26, Ezequiel Aguirre drove appellant to Vancouver, Washington, at appellant's request.   Appellant was afraid for his safety because of some people who had come to the house looking for him.   On the way, appellant asked what a woman's period meant and then started telling Aguirre what had happened with the girl on Houston Avenue.   Appellant did not say if he knew her, but said he had seen her walking by and had asked her if he could walk with her.   He then said he asked her if they could have sex, and she said yes.   Later, however, she told him that she was on her period.   Appellant then told Aguirre that he proceeded to finish “what a man does.”   Appellant said the girl changed her mind when they were already having sex.   He had sex with her after she told him no, and then he went back home.

The clothing S.S. was wearing, together with swabs and slides taken during the sexual assault examination, were subjected to laboratory analysis.   Semen was found on S.S.'s shorts.   DNA extracted from the stain was a single-source profile that was the same as appellant's DNA profile.   The profile obtained from the sperm fraction from the shorts would be expected to occur in randomly selected individuals in approximately one in 23.6 trillion African–Americans, approximately one in 770 quintillion Caucasians, and approximately one in 5.2 quintillion Hispanics, making it “very strong evidence” that appellant was the source of the DNA.

At some point, appellant was taken into custody and he gave a statement to Howerton.⁵  In it, appellant said he was at his house when a female, whom he did not know but had seen walk past the house before, came by.   He approached her in a respectful way and asked her name.   When she did not answer, he thought she was on drugs or something.   He then asked if she wanted to go to his house and drink some beer.   She said no, that she was waiting for her boyfriend.   Appellant said okay, and that he was going to go to a friend's house to see if he had some drugs.   When appellant was walking, the girl stopped on the side of the road.   He decided to talk to her, but she was talking on the phone and telling her boyfriend that appellant was following her.   Appellant was trying to get her attention, because he was already “drugged up.”   He pushed her so he could ask her a question.   The push knocked the phone out of her hand.   She asked what he wanted and he said he wanted to have sex with her.   He apologized, said he wanted to have sex with her if it was all right with her, and then pulled out his penis and showed it to her.   She told him that he should have just asked her, and she suggested they go over to some bushes.   There they “made out,” and she said that if he had approached her in a good way, she would have said yes.   When he finished, she did not say anything.   He thought she was all right with it because she did not accuse him of rape or anything.   Two days later, however, she came back with a couple of people who said they wanted to kill appellant because he had raped her.

Appellant related that the female pulled down her own pants.   He denied threatening to kill her.   He did not know how old she was and did not realize she was a minor.   He just thought she was pretty.   He thought she was all right with it because, when he pulled out his penis, she suggested going over to some bushes where nobody could see them, and then she pulled down her pants.   She then tried to get on top of him, but he told her to let him do it.   When Howerton asked if appellant had sex with the girl, appellant replied yes, because she wanted to.   At no time did she tell him no or say to stop.   He denied hitting her.   The only reason he “pushed her” was because she was telling the person on the phone that she did not know appellant and that he was going to do something to her.   He was just talking to her as “any normal person would talk to a female.”   He got a bit angry at the way she was treating him.   He was alone and needed female company, so he was thinking he would “push her in a good way.”

Appellant estimated that the entire encounter lasted about 30 minutes.   The female did not cry at any time, and even thanked appellant because he did not hit her.   To appellant, she seemed unsure of whether she wanted to do anything with him because she had a boyfriend.   He did not force her, but he insisted by staying with her while he was walking.   She was not scared at first, but then he started seeing “that she was just trying to be a bitch about” him.   He was continually insisting that she have sex with him.   Appellant explained to Howerton that he was “like a person that ․ [¶] ․ [¶] ․ I'm not gonna give up till I get some, you know, but ․ I'm not gonna put hands on you or nothing, like, to where ․ I gotta hit you or something like that.”

Appellant related that he did not wear a condom when they had sex.   He did ejaculate, but did not want to do so inside her because she said she was on her period, and he believed that was when women got pregnant more easily.   When he “felt like coming,” he “just pulled it out” and started ejaculating.

Appellant related that he had been smoking methamphetamine and crack off and on for three days.   He conceded that perhaps he did not know how to “come at ․ females,” but he did not consider himself as having raped her.   Asked for his definition of rape, he replied that it was “forcing somebody, pulling their pants down and ․ push[ing] them down” when they were trying to fight.   This female, however, did not do anything.   He guessed she was not sure whether she wanted to have sex with him.   She was afraid because she did not know who he was until he started talking to her.   Appellant related that he thought the female was older, like 20–something or 22.   He never would have approached her in the way he did if he had known she was a minor.

Appellant reiterated that the female was not scared and willingly had sex with him.   She never said no;  she said she didn't know because she was on her period.   Appellant did not realize that she still had a tampon in when she was having sex with him.   When Howerton suggested appellant went ahead and had sex with her anyway, appellant responded, “Yeah. I didn't care․  [¶] ․ [¶] ․ Yeah, because she was on her period.”   She did not say no, just that she was on her period.   Appellant initially took it as a no, but then said, “ ‘Who cares?’ ”   According to appellant, he did not know what tampons or periods were.

Appellant reiterated that S.S. pulled down her own pants.   He did not consider that rape.   Appellant related that if S.S. had told him “no” in the instant after he pushed her, he would have gotten off.   Appellant insisted that he never forced S.S. and that she was willing.   He knew she did not feel forced because she would have called the police and made a report, but she did not.   Appellant reasoned that S.S. was making accusations because she “gets the fun of just seeing [him] locked up.”   He reiterated that “in any of that moment of relations,” she never tried to fight or to run.

Appellant admitted twice telling S.S. he was sorry, once after he pushed her and again after he had sex with her.   He agreed with Howerton's statement that he said he was sorry because he did something wrong.   He was remorseful, but she knew she had caused him to be like that because she was just trying to “play” him.   Appellant gave Howerton his word that if appellant was allowed to go back on the streets, he would not do it again.

Appellant conceded that S.S. was fearful at first because she did not know him, but then he was not sure “whether she wanted to or not.”   Appellant also said that he was the one who suggested they do it in the bushes, in response to her asking where he wanted to do it.   When Howerton asked why the bushes when appellant's house was right there and would be a lot more comfortable, appellant responded, “Doesn't matter.   Doesn't matter as long as I get laid.”   Howerton stated, “That's all you care about, if you're laid.”   Appellant clarified that she was okay with it because she never called the police.   Appellant insisted that she never told him no, and that she was just “trying to play with” him.

Appellant admitted asking S.S. to have other types of sex, but explained that it was when they were “already a couple.”   They made an agreement that it was all right that they had sex.   She did not want to because she had a tampon, but she never said no.   Appellant conceded he did not come at S.S. the right way, and that maybe she was not sure how to react.   This ensued:

“[Appellant]:  “Well, when she was talking on the phone you know what my reaction was?   Oh, these ․ people are gonna call the cops and ․ I already told ‘em where I live and they're gonna get me for harassing or what—like I said.

“Howerton:  So you decided to stay there even longer and have sex with her.

“[Appellant]:  I decided to take it to the fullest to where she's—she—[¶] ․ [¶]

“Howerton:  —you were gonna get sex regardless.

“[Appellant]:  —she, like, she, like seen it as, hey, it's nothing serious but you know what?

“Howerton:  So you were gonna get sex regard —

“[Appellant] No, no —

“Howerton:  —you were gonna get sex regardless.

“[Appellant] —I wasn't gonna get it regardless—regardless.   I was gonna get—I was gonna get what I had coming regardless whether I was right or wrong.   Right?

“Howerton:  So you had—you had it coming.   Regardless.

“[Appellant]:  I had it coming.   Yeah. [¶] ․ [¶]

“Howerton:  —you just met the girl ten minutes and you—you—[¶] ․ [¶]—had it coming.

“[Appellant]:  I had it coming.

“Howerton:  You were gonna get that sex.

“[Appellant]:  Yeah. ‘Cause she—she—she really gave it to me after—after all this we went through․

“Howerton:  After the slapping the phone out of her hand and after the pushing she gave it up, compliantly.

“[Appellant]:  Well, I can't say it like that but, like I say, that was the wrong way of approaching her.   Yeah.”

Appellant again insisted that he did not force S.S. or hurt her.   When Howerton responded that he did hurt her because it hurt when appellant had sex with her with the tampon inside her, appellant related that he gave “it” to her and she put it in herself.   Howerton suggested she did it out of fear;  appellant responded that it was not fear anymore because she did it herself, and if she had told him no, he would never have insisted.   Appellant maintained that he never told her to pull her pants down;  he just showed her his penis and she asked where he wanted to do it.   He then suggested the bushes.   Howerton noted that this was right after he slapped the phone out of her hand.   Appellant said he understood he had come at her the wrong way, but pointed out that he did not grab her and choke her.   He said his hands were never on her to where he forced her and got on her.

The Propensity Evidence

Around 9:30 p.m. on August 16, 2004, 12–year–old Dy. was in a Walgreens store with her mother and sister, Da. While Dy. was in the bread aisle, a man she had never seen before came up behind her, put his arms around her neck and waist, and began to fondle her breast and buttocks over her clothing.   Da., who was in the same aisle, kicked the man, who let go of Dy. Da. then grabbed Dy.'s hand, and the girls ran and hid behind the pharmacy.   When they saw that the coast was clear, they alerted a security guard, who locked the store.   The man was still inside, and Dy. identified him to the police officer who responded.

Sergeant Damon Maurice of the Visalia Police Department responded to the store, which was in the area of Houston and Dinuba.   Upon his arrival, he spoke to Dy., who was crying uncontrollably and who pointed out appellant as the person who touched her.   Maurice spoke to appellant at the store.   Appellant related that he had walked into the store and walked up behind Dy. and given her a hug.   He said that his groin made contact with her back and buttocks, and that he fondled her buttocks and breast.

Maurice arrested appellant.   At the police department, appellant waived his rights and told Maurice that he had drunk two 24–ounce bottles of alcohol before entering the Walgreens.   He said he went into Walgreens because he was looking for a date.   He admitted he did not know Dy. and had never seen her before, but was trying to see if she had a boyfriend.   Appellant, who was 18 years old at the time, said he thought Dy. was 16 or 17.   Appellant said he told her she was “looking good,” and he gave her a hug.   He said he did this because he was “horny,” and that he knew it was against the law to touch a person against the person's will or without the person's consent.   Appellant denied touching Dy.'s breast and buttocks with his hands.   He apologized at one point and said that if Maurice gave him a chance, nothing like this would happen again.

DISCUSSION

I.  Failure to Instruct on Attempted Rape

Appellant raises several claims of error arising out of the trial court's failure to instruct on attempted rape.   We conclude that, to the extent error occurred, it was harmless.

A. Background

The clerk's transcript on appeal contains no list of jury instructions requested by either party.   The on-the-record instructional conference was very brief, with the trial court simply listing the numbers of the CALCRIM instructions it intended to give and discussing with counsel any that were questionable.   The only lesser included offense instructions mentioned were those pertaining to simple battery and simple assault.   At no time did the court or counsel mention CALCRIM No. 460, the general instruction on attempt.   In part, this instruction would have told jurors:

“To prove that the defendant is guilty of this crime, the People must prove that:  [¶] 1. The defendant took a direct but ineffective step toward committing _ ;  [¶] AND [¶] 2. The defendant intended to commit _ .”  The instruction would also have given the court the option of instructing:  “The defendant may be guilty of attempt even if you conclude that _ was actually completed.”

The jury was instructed on forcible rape and the defense of consent.⁶  It was also instructed on simple assault and simple battery.   No instruction defining attempted rape was given.   Despite this fact, attempted rape was referenced in several of the instructions.⁷  The jury was also given a verdict form for attempted rape, which was returned unsigned (as were the verdict forms for simple battery and simple assault).

B. Failure to Instruct on Attempted Rape as a Lesser Included Offense of Rape

Appellant says the trial court committed prejudicial error under state law, and denied him due process of law under the Fourteenth Amendment to the United States Constitution, when it failed to instruct, sua sponte, on attempted rape as a lesser included offense of rape.   We conclude such an instruction was not required.⁸

“ ‘ “It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence.  [Citations.]  The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury's understanding of the case.”  [Citation.]’ ”  (People v. Breverman (1998) 19 Cal.4th 142, 154.)

The trial court's obligation to instruct sua sponte “encompasses instructions on lesser included offenses if there is evidence that, if accepted by the trier of fact, would absolve the defendant of guilt of the greater offense but not of the lesser.  [Citations.]”  (People v. Blair (2005) 36 Cal.4th 686, 745.)   To warrant an instruction on a lesser included offense, however, “the evidence supporting the instruction must be substantial—that is, it must be evidence from which a jury composed of reasonable persons could conclude that the facts underlying the particular instruction exist.  [Citations.]”  (Ibid.) The testimony of a single witness—including the defendant—can constitute substantial evidence requiring the court to instruct on its own initiative (People v. Lewis (2001) 25 Cal.4th 610, 646), but speculation is insufficient (People v. Sakarias (2000) 22 Cal.4th 596, 620).   A lesser included offense instruction “need not be given when there is no evidence that the offense is less than that charged.  [Citation.]”  (People v. Mendoza (2000) 24 Cal.4th 130, 174.)  “[I]f there is no proof, other than an unexplainable rejection of the prosecution's evidence, that the offense was less than that charged, such instructions shall not be given.  [Citation.]”  (People v. Kraft (2000) 23 Cal.4th 978, 1063–1064.)

“[I]f a crime cannot be committed without also necessarily committing a lesser offense, the latter is a lesser included offense within the former.   [Citations.]”  (People v. Lopez (1998) 19 Cal.4th 282, 288.)   Forcible rape, in violation of section 261, subdivision (a)(2), “is an act of sexual intercourse accomplished with a person not the spouse of the perpetrator against the person's will by means of force or violence.  [Citation.]”  (People v. Marshall (1997) 15 Cal.4th 1, 36.)   It is a general intent crime.  (People v. Griffin (1988) 46 Cal.3d 1011, 1030.)   Attempt, on the other hand, is a specific intent crime.  (People v. Strunk (1995) 31 Cal.App.4th 265, 271.)   Although it has been suggested that, as such, attempt “does not fit within the definition of a necessarily included offense of a general intent crime” (ibid.), the California Supreme Court has assumed that attempted rape is a lesser included offense of forcible rape (see People v. Kelly (1992) 1 Cal.4th 495, 528).   We do likewise, and exercise our independent judgment in determining whether an instruction on attempted rape, as a lesser included offense of rape, should have been given.  (See People v. Manriquez (2005) 37 Cal.4th 547, 584.)

“Any sexual penetration, however slight, is sufficient to complete the crime” of rape. (§ 263;  see People v. Wallace (2008) 44 Cal.4th 1032, 1079.)   Thus, penetration of no more than the lips of the vagina is sufficient to constitute rape.  (People v. Esposti (1947) 82 Cal.App.2d 76, 78.)   If, all of the other elements being proven, there is no penetration, the crime is attempted rape.  (Ibid.)

Appellant acknowledges that S.S.'s testimony and his statement to Howerton both indicate his penis penetrated her vagina, and that, during discussion of admission of the propensity evidence, defense counsel conceded that the only real issue was consent.⁹  The trial court's duty to instruct on lesser included offenses arises from the evidence at trial, however, and not from the parties' theories of the case.  (People v. Barton (1995) 12 Cal.4th 186, 203.)   Thus, appellant now contends there was “a mountain of evidence from which the jury could have concluded there was a reasonable doubt” that penetration actually occurred.

We disagree.   Neither S.S. nor appellant expressed any doubt about whether penetration occurred.   In fact, they could hardly have been more certain on this point.¹⁰  Appellant says some jurors might reasonably have doubted that actual penetration occurred because S.S.'s tampon would have prevented it.   That the tampon would have prevented penetration of the vaginal lips is sheer speculation.   Also speculative is the notion that, because S.S.'s shorts were only lowered to about her knees, her legs were not spread sufficiently apart to permit penetration.   As previously stated, speculation is an insufficient basis upon which to require the giving of an instruction on a lesser included offense.  (People v. Sakarias, supra, 22 Cal.4th at p. 620.)

Appellant points to the fact no evidence was presented that appellant's DNA was found on the swabs and slides collected from S.S.'s vaginal vault, and argues that from this, the jury reasonably could have concluded appellant emitted no semen inside S.S. As he recognizes, S.S. testified that appellant ejaculated into his hand, and appellant told Howerton that he did not ejaculate inside her.   Appellant says, however, that some jurors could reasonably have believed that since appellant did ejaculate, if there was penile penetration, some semen would have leaked from his penis inside S.S.'s vagina.   Again, this is nothing more than speculation.¹¹

Appellant also points to perceived credibility issues with S.S., as well as reasons jurors purportedly could have concluded he himself was mistaken about whether penetration occurred.   We do not believe these constitute evidence from which reasonable jurors could have concluded there was no penetration.  (See People v. Blair, supra, 36 Cal.4th at p. 745.)

Additionally, near the end of the interview, appellant told Howerton:

“That's just how it is.   I just say how it is.   I did slap the phone out of her and I did push because I didn't know how to come at her.   I was drugged up.   But I never got on top of her, put my penis in her or none of that.   Yeah, we did have sex but she wanted to after—after she seen I wasn't gonna hurt her and after she—I told her I was sorry and all that, you know, she's good.”   (Italics added.)

Appellant says the emphasized portion, taken together with other evidence that penetration may not have occurred, was substantial enough to warrant an instruction on attempt.   As we have explained, however, there is no actual evidence suggesting penetration may not have occurred;  there is only speculation.   Moreover, when the emphasized statement is examined in context, it is clear that appellant was denying that he forced S.S. to have sex with him, rather than saying there was no penetration.

Because the evidence did not support the giving of instructions on attempted rape as a lesser included offense, failure to give such instructions violated neither state law nor appellant's rights under the federal Constitution.  (See, e.g., People v. Rundle (2008) 43 Cal.4th 76, 142, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22;  People v. Wilson (2008) 43 Cal.4th 1, 17;  People v. Prince (2007) 40 Cal.4th 1179, 1265;  People v. Breverman, supra, 19 Cal.4th at pp. 165, 167, 170–173.)   That one or both parties may have desired such instructions does not establish error.  (People v. Prince, supra, at p. 1265;  People v. Steele (2002) 27 Cal.4th 1230, 1251.)

Citing section 663, appellant says that, “notwithstanding the posture of the evidence, had it been properly instructed on attempted rape, the jury would have been able to find appellant guilty of an attempt even though it believed appellant had committed the greater offense of rape.” ¹²  Appellant cites no authority, and we are aware of none, suggesting that section 663 requires the giving of an instruction on attempt as a lesser included offense when, as here, such an instruction is unsupported by the evidence.   Rather, the statute was “designed to address the dilemma created when a defendant is charged only with an attempt but the evidence at trial shows his attempt succeeded rather than failed,” and it “offers the trial court the option of not convicting for the attempt but instead allowing a new trial on the completed crime.”  (In re Sylvester C. (2006) 137 Cal.App.4th 601, 610.)   Moreover, “[t]he fact that a jury can exercise a naked power to convict the defendant of an included offense not supported by the evidence does not entitle the defendant to an instruction thereon.”  (People v. Aguilar (1989) 214 Cal.App.3d 1434, 1436.)

C. Failure to Instruct on Attempted Rape as Constituting Failure to Instruct on Elements of Offense

Appellant says the trial court's error in failing to instruct on attempted rape as a lesser included offense can also be viewed as a failure to instruct on the elements of the offense of attempted rape.   We are not persuaded by his argument that reversal is therefore required.

“Conviction of the crime of attempted forcible rape requires proof the defendant formed the specific intent to commit the crime of rape and performed a direct but ineffectual act, beyond mere preparation, leading toward the commission of a rape.  [Citations.]”  (People v. Rundle, supra, 43 Cal.4th at p. 138;  see § 21a.)   A trial court has a sua sponte duty to instruct on all elements of an offense.  (People v. Ortiz (2002) 101 Cal.App.4th 410, 416.)   Here, however, as we have discussed, there was no substantial evidence the offense was only attempted rape.   Accordingly, the trial court did not err by failing to instruct on attempt.   Although it was error to provide the jury with a verdict form for attempted rape, the error was favorable to appellant because it allowed the jury to convict him of an offense less than that shown by the evidence, and so he may not now complain.  (People v. Lee (1999) 20 Cal.4th 47, 52 (lead opn. of Baxter, J.);   see People v. Rogers (2006) 39SU1H⌑D. Failure to Instruct on Attempted Rape as Affecting Consideration of Battery and Assault

Observing that, in CALCRIM No. 3517, jurors were told that simple battery was a lesser crime of attempted rape and simple assault was a lesser crime of simple battery (see fn. 7, ante ), appellant contends the trial court's failure to instruct on attempted rape precluded the jury's meaningful consideration of simple battery and simple assault.   The result, he says, was the removal of those offenses from the jury, a violation of his rights to a jury trial and due process under the state and federal Constitutions.

“In assessing a claim of instructional error or ambiguity, we consider the instructions as a whole to determine whether there is a reasonable likelihood the jury was misled.  [Citations.]”  (People v. Tate (2010) 49 Cal.4th 635, 696;  accord, e.g., People v. Rundle, supra, 43 Cal.4th at p. 149;  People v. Young (2005) 34 Cal.4th 1149, 1202.)   Viewing the instructions as a whole in the present case, we find no reasonable likelihood jurors were misled in their consideration of battery or assault.   Additionally, we reject the claim those offenses were removed from the jury's meaningful consideration.

Jurors were instructed that “[t]he defendant is charged as a lesser offense in count one with assault,” and that “[t]he defendant is charged as a lesser offense in count one with battery.”   The elements of those offenses were set out, and the jury was then instructed on forcible rape as the charge in count 1. No reference to attempted rape was contained in these instructions.   After the attorneys' summations, the court told the jurors, in pertinent part:

“If all of you find that the defendant is not guilty of a greater crime, you may find him guilty of a lesser crime if you are convinced beyond a reasonable doubt that the defendant is guilty of that lesser crime.   A defendant may not be convicted of both a greater and a lesser crime for the same conduct.

“Now I will explain to you which crimes are affected by this instruction.

“Attempted rape is a lesser crime of rape charged in count one.   Simple battery is a lesser crime of attempted rape.   Simple assault is a lesser crime of simple battery.

“It is up to you to decide the order in which you consider each crime and the relevant evidence, but I can accept a verdict of guilty of a lesser crime only if you have found the defendant not guilty of the corresponding greater crime.”

Under the instructions given, it was at most ambiguous whether battery was a lesser offense to rape, as opposed only to attempted rape.¹⁴  As previously discussed, there was no substantial evidence the offense was only attempted rape based on a theory of lack of penetration.   This left appellant's defense, consent.   If the jury had believed that S.S. consented to the sexual intercourse, under the instructions given it would have acquitted appellant of rape.   Jurors simply could not have found an offensive touching (battery) during the intercourse itself, yet found consensual intercourse.  (See People v. Demetrulias (2006) 39 Cal.4th 1, 24;  cf.  People v. Myers (1998) 61 Cal.App.4th 328, 335.)   Under the evidence, the only way jurors could have convicted appellant of battery was if they believed S.S. freely consented to sexual intercourse, but that appellant committed battery when he pushed her or knocked the cell phone out of her hand.   It strains credulity to conclude jurors could have found those actions (which, according to appellant, preceded the intercourse) constituted battery, but consent to intercourse was subsequently freely given.  (See People v. Romero (2008) 44 Cal.4th 386, 403.)   Moreover, jurors did not express any confusion on the circumstances under which they could return a guilty verdict on battery.

There is no reasonable likelihood the jury was misled in its consideration of battery or assault.

II. Admission of Propensity Evidence

Appellant next says the trial court abused its discretion by admitting evidence of his prior lewd act on Dy., and that his trial was thereby rendered fundamentally unfair.   We find no error.

A. Background

The prosecutor moved, in limine, for admission of appellant's prior uncharged sexual offense, namely, his 2004 violation of section 288, subdivision (a) involving Dy. The prosecutor asserted that the evidence was admissible under Evidence Code section 1108, and was not made inadmissible by Evidence Code section 352.   Defense counsel objected solely under Evidence Code section 352, arguing that only consent was at issue in the present case, and that the uncharged incident was highly prejudicial in that it involved molestation of a 12–year–old.   Defense counsel asserted that if jurors concluded appellant was a child molester, they likely would have an emotional reaction and would not use the evidence for its proper purpose.   Defense counsel further argued that putting on the evidence would require at least two to three witnesses and would create a trial within a trial, and that the evidence could confuse the jury.   In response, the prosecutor argued that the evidence was highly probative because appellant was seven years older than each girl at the time, the crimes occurred a block away from each other, and each involved appellant accosting a complete stranger.   The prosecutor further argued that the present offense, which involved an actual stranger rape in the bushes, was more likely to emotionally inflame a jury than a touching over clothes, as occurred in the earlier offense, and the prosecutor promised that presentation of the evidence would be quick and that she would make clear to the jury that appellant was not charged with the prior matter.

Observing that the evidence was explicitly admissible under Evidence Code section 1108 unless barred by Evidence Code section 352, the trial court focused on the pertinent factors under the latter statute.   It found there was substantial similarity between the two events;  these were completely unrelated reports;  there was prior punishment, so the jury would not seek to punish appellant in this proceeding for something he was not punished for in the past;  although the prior event was somewhat inflammatory because of the age of the victim, it was substantially less inflammatory than the current charge of forcible rape;  and the prior event was fairly recent, having occurred within the last four years.   Accordingly, the court concluded that the probative value of the proffered evidence significantly outweighed any prejudicial effect, and so the evidence would be admitted.

Just prior to Da.'s testimony, defense counsel asked to approach the bench.   After an unreported discussion, the trial court informed jurors:

“And the next witness, their testimony is being admitted for a limited purpose.   And that will be explained to you in some detail in the final instructions.  [¶] But essentially it's evidence that [appellant] is—has an inclination or disposition to commit sexual offenses.   And this testimony is limited to that purpose.   And we'll explain it in more detail in the final instructions.”

The court ascertained that this admonition was acceptable to counsel, whereupon Da. was called to the stand.

The testimony concerning appellant's prior sex offense is set out in the statement of facts, ante.   During instructions, jurors were told, pursuant to CALCRIM No. 1191, that they could, but were not required to, conclude from the evidence that appellant was disposed to commit sexual offenses and, based on that decision, conclude that he was likely to and did commit rape.   The conclusion that he committed the uncharged offense was only one factor to consider along with all the other evidence, however, and was not sufficient by itself to prove appellant was guilty of forcible rape.

Appellant does not now claim the evidence was outside the purview of Evidence Code section 1108.   He says, however, that the trial court erred by concluding that the probative value of the evidence significantly outweighed any prejudicial effect, and that admission of the evidence constituted a prejudicial abuse of discretion.

B. Analysis

Subdivision (a) of Evidence Code section 1108 provides:  “In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant's commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352.”   The statute thus provides an exception to the general rule, contained in Evidence Code section 1101, that prohibits the admission of character evidence to prove a defendant's propensity to commit certain conduct on a specific occasion.  (People v. Escudero (2010) 183 Cal.App.4th 302, 309–310.)

Here, the issue is whether evidence of appellant's prior lewd act on a child under 14, while admissible under Evidence Code section 1108, nevertheless should have been excluded pursuant to Evidence Code section 352.   That statute provides:  “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”

Evidence a defendant committed another sex offense is relevant to the issue of his disposition or propensity to commit such offenses.  (People v. Reliford (2003) 29 Cal.4th 1007, 1012.)   Thus, it has at least some probative value.   The “prejudice” referred to in Evidence Code section 352 is not the effect relevant albeit damaging evidence may have on a party's case, but rather “ ‘characteriz[es] evidence that uniquely tends to evoke an emotional bias against a party as an individual, while having only slight probative value with regard to the issues.  [Citation.]’ ”  (People v. Scheid (1997) 16 Cal.4th 1, 19.)   As a result, evidence should be excluded as unduly prejudicial “ ‘when it is of such nature as to inflame the emotions of the jury, motivating [jurors] to use the information, not to logically evaluate the point upon which it is relevant, but to reward or punish one side because of the jurors' emotional reaction.   In such a circumstance, the evidence is unduly prejudicial because of the substantial likelihood the jury will use it for an illegitimate purpose.’  [Citation.]”  (People v. Escudero, supra, 183 Cal.App.4th at p. 310.)

“The trial court is vested with wide discretion in determining the admissibility of evidence.   Its exercise of discretion under Evidence Code section 352 will not be disturbed on appeal absent a clear abuse, i.e., unless the prejudicial effect of the evidence clearly outweighs its probative value.   [Citation.]”  (People v. Karis (1988) 46 Cal.3d 612, 637.)   In order to successfully challenge a trial court's exercise of discretion under Evidence Code section 352, an appellant must “affirmatively show[ ] that the court exercised its discretion ‘ “in an arbitrary, capricious or patently absurd manner.” ’  [Citations.]”  (People v. Escudero, supra, 183 Cal.App.4th at p. 310.)

Appellant fails to make the requisite showing here.  “ ‘The principal factor affecting the probative value of an uncharged act is its similarity to the charged offense.   Other factors affecting the probative value include the extent to which the source of the evidence is independent of the charged offense, and the amount of time between the uncharged acts and the charged offense.   The factors affecting the prejudicial effect of uncharged acts include whether the uncharged acts resulted in criminal convictions and whether the evidence of uncharged acts is stronger or more inflammatory than the evidence of the charged offenses.’  [Citation.]  ‘The weighing process under [Evidence Code] section 352 depends upon the trial court's consideration of the unique facts and issues of each case, rather than upon the mechanical application of automatic rules.’  [Citation.]”  (People v. Hollie (2010) 180 Cal.App.4th 1262, 1274;  see also People v. Story (2009) 45 Cal.4th 1282, 1295.)

Here, the trial court expressly considered, and carefully weighed, the pertinent factors.   Appellant acknowledges that the acts were independent of each other, but argues they were similar only with respect to unimportant, ordinary details that added little to the probative value of the uncharged act.   He says there was a huge disparity in the ages of the victims, and argues that child molestation is qualitatively different from the charged offense in terms of its inflammatory effect.   He also observes that jurors never learned he had been convicted of the earlier offense.

We find the similarities between the charged and uncharged events sufficiently significant to enhance the probative value of the uncharged act.   Of particular import is the fact that both victims were minors at the time appellant accosted them.   That Dy. was under 14 while S.S. was not does not lessen the uncharged act's probative value, especially in light of appellant's age, and the difference in his age and that of his victim, at the time of each event.  (See People v. Escudero, supra, 183 Cal.App.4th at pp. 311–312 [uncharged sexual assaults against two adult women held “highly probative” as to defendant's guilt of charged sexual molestation of seven-year-old girl];  People v. Cromp (2007) 153 Cal.App.4th 476, 480 [prior rape of developmentally disabled adult woman held probative of charged sexual molestation of four- and eight-year-old].)   In addition, S.S. and Dy. both were complete strangers, a circumstance that was probative of appellant's intent to act regardless of consent and, in turn, a circumstance that was probative of S.S.'s credibility.  (See People v. Nguyen (2010) 184 Cal.App.4th 1096, 1119;  People v. Hollie, supra, 180 Cal.App.4th at pp. 1275–1276.)

On the other side of the scale, the uncharged act was not unduly inflammatory.   We reject the notion that fondling over clothing—even of a 12–year–old girl—is more inflammatory than forcible rape.   Moreover, the uncharged act was not particularly remote in time.

Appellant notes that the jury was never informed that he was punished for his molestation of Dy. Although this can heighten prejudicial effect (see People v. Ewoldt (1994) 7 Cal.4th 380, 405), the evidence here made it clear that the offense was reported to the police and that appellant was arrested for it.   Moreover, the prosecutor reminded the jury that appellant was not currently charged with the incident involving Dy., and that it was presented to show appellant's disposition.   Her argument on this point was brief and never suggested that jurors should punish appellant for the prior incident.   Under the circumstances, and in light of the jury instructions concerning the purpose for which jurors could consider the evidence (which we must presume jurors followed), we do not believe jurors were inclined to improperly punish appellant for the incident involving Dy. (See People v. Hollie, supra, 180 Cal.App.4th at p. 1277.)

Having considered both the probative value and the prejudicial effect of the challenged evidence, we conclude the trial court did not abuse its discretion by admitting the Dy. incident.  (See People v. Hollie, supra, 180 Cal.App.4th at p. 1277.)   It follows that there was no due process violation.   (People v. Kelly (2007) 42 Cal.4th 763, 787;  see People v. Falsetta (1999) 21 Cal.4th 903, 917–918.)

III. Sentencing Errors

A.  Standard of Proof re:  Prior Conviction and Special Enhancement Allegations

Appellant's prior section 288, subdivision (a) conviction formed the basis for allegations under section 667, subdivision (a)(1);  sections 667, subdivisions (b)-(i) and 1170.12, subdivisions (a)-(d);  section 667.5, subdivision (b);  section 667.61, subdivisions (a) and (d);  and section 667.71.   After the jury returned its guilty verdict on the rape charge, appellant proceeded to a court trial on the five special allegations.   The prosecutor presented a certified copy of the section 969b packet, which contained, inter alia, a photograph of appellant, fingerprints, and a certified copy of the abstract of judgment.   The prosecutor noted that if there was an identification issue, she had an officer on call.   This ensued:

“The Court:  My recollection is that Officer Maurice did identify him as the person who committed the 288.   So this is on the 288?

“[Prosecutor] Yes, Your Honor.

“The Court:  Okay. It appears that there is a prima facie case that this defendant was, in fact, convicted in case number 132222 of a violation of ․ section 288(a) on December 8th, 2004 and sentenced to state prison for that offense.  [¶] Do you have any comments you wish to make on this?

“[Defense Counsel]:  I think that that's the wrong standard, Your Honor, prima facie case.

“The Court:  I'm just saying before I make a final finding, I'm asking if you have any comments.

“[Defense Counsel]:  I have no evidence to present.

“The Court:  Okay. Then I will find that he is the person who was convicted in case number 132222 of a violation of ․ section 288(a) and was sent to state prison for that offense, which means that the special allegation of within the meaning of ․ section 667.61(a) and (d) is true;  that special allegation under 667.71 is true;  and as to ․ section 1170.12(a) through (d) and 667(d) through (i) he suffered a prior conviction of a serious violent felony;  and 667(a)(1), a prior serious felony;  667.5(b), a prior conviction for which he served time and term in prison.”

Pointing to the court's reference to a prima facie case and the fact the court did not state the standard it used to find the special allegations true, appellant now contends the court erroneously employed a standard of “prima facie case” rather than proof beyond a reasonable doubt as was required.  (See, e.g., Apprendi v. New Jersey (2000) 530 U.S. 466;  People v. Sengpadychith (2001) 26 Cal.4th 316, 325;  People v. Tenner (1993) 6 Cal.4th 559, 566.)   We disagree.

Absent evidence to the contrary, a reviewing court presumes the trial court knew and applied the correct statutory and case law.  (People v. Coddington (2000) 23 Cal.4th 529, 644, overruled on another ground in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13;  accord, People v. Braxton (2004) 34 Cal.4th 798, 814.)

“This rule has been applied in both civil [citations] and criminal [citations] proceedings and a number of criminal cases unequivocally hold that the rule encompasses a presumption that the trial court applied the proper burden of proof in matters tried to the court.  [Citations.]  In the typical criminal case in which a jury trial is waived, the judge, of course, does not normally publicly announce that he is applying the reasonable doubt standard, but simply finds the defendant guilty or not guilty of the charged offense.   [Citation.]”  (Ross v. Superior Court (1977) 19 Cal.3d 899, 913–914, fn. omitted.)

In the present case, when the trial court's reference to a prima facie case is considered in context, it is apparent the court was simply giving the parties its preliminary finding and inviting them to comment or argue before it made a final determination.   There was no error, nor was the presumption of propriety overcome, either by the court's reference to a prima facie case or by the factors to which appellant points, as allegedly supporting a finding that the court utilized a standard less than beyond a reasonable doubt:

“ ‘As a practical matter, ․ prior convictions are normally proven by the use of documentary evidence alone.’  [Citation.]  ‘Once the prosecutor presents this prima facie evidence of conviction, the trial court is allowed to make reasonable inferences from the facts presented.   If there is no evidence to the contrary, the trial court may consider the abstract [of judgment] and the facts of the particular case, and utilizing the official duty presumption, find a defendant was convicted of and served the term of imprisonment for the listed felony.’  [Citation.]”  (People v. Prieto (2003) 30 Cal.4th 226, 258.)

B. Imposition of Section 667, Subdivision (a)(1) and Section 667.5, Subdivision (b) Enhancements Based on Same Prior Conviction

Although not raised by either party, our review of the record shows that the trial court imposed a five-year enhancement pursuant to section 667, subdivision (a)(1), and a one-year enhancement pursuant to section 667.5, subdivision (b), based on the same prior conviction.   Under these circumstances, imposition of the section 667.5, subdivision (b) enhancement violated the California Supreme Court's holding in People v. Jones (1993) 5 Cal.4th 1142, 1144–1145, 1149–1150, and the resultant one-year term must be stricken (id. at p. 1153).¹⁵

DISPOSITION

The judgment is modified to provide that the one-year enhancement imposed pursuant to section 667.5, subdivision (b) is stricken.   As so modified, the judgment is affirmed.   The trial court is directed to prepare an amended abstract of judgment reflecting said modification, and to transmit a certified copy thereof to the appropriate authorities.

DAWSON, Acting P.J.

WE CONCUR:

KANE, J.

POOCHIGIAN, J.

FOOTNOTES

FN1. All statutory references are to the Penal Code unless otherwise stated..  FN1. All statutory references are to the Penal Code unless otherwise stated.

FN2. S.S. had a prepaid phone that did not have any minutes left to use, but it had her numbers stored in it.   This phone was in her pocket, and she lost it during the attack.   She also had her mother's cell phone.   That was the phone she had been using when appellant struck her.   After everything was over, S.S. saw it, lit up, in the bushes and picked it up.   At no time did S.S. call Randy Guzman intentionally.   However, about 3:30 a.m. on August 23, Guzman received a call from the cell phone.   He could hear voices, including that of S.S., but only faintly, as if they were not speaking into the phone.   He stayed on the line for a couple of minutes, but nobody ever came on.   Guzman did not hear yelling or screaming, and could not make out anyone's demeanor.S.S.'s prepaid phone was located on September 24, when Detective Steve Howerton visited the scene.   He found the phone in some bushes about 12 feet from the curb..  FN2. S.S. had a prepaid phone that did not have any minutes left to use, but it had her numbers stored in it.   This phone was in her pocket, and she lost it during the attack.   She also had her mother's cell phone.   That was the phone she had been using when appellant struck her.   After everything was over, S.S. saw it, lit up, in the bushes and picked it up.   At no time did S.S. call Randy Guzman intentionally.   However, about 3:30 a.m. on August 23, Guzman received a call from the cell phone.   He could hear voices, including that of S.S., but only faintly, as if they were not speaking into the phone.   He stayed on the line for a couple of minutes, but nobody ever came on.   Guzman did not hear yelling or screaming, and could not make out anyone's demeanor.S.S.'s prepaid phone was located on September 24, when Detective Steve Howerton visited the scene.   He found the phone in some bushes about 12 feet from the curb.

FN3. Ashley confirmed that S.S. arrived back at her house sometime before noon, and that she looked “real worried and just like not right.”   When Ashley asked what was wrong, S.S. started crying and revealed she had been raped.   S.S.'s account to Ashley was consistent with S.S.'s trial testimony.   Ashley did not call the police, because S.S. did not want anyone to know what happened.   After the police were contacted, however, Ashley turned the clothes S.S. had been wearing over to them..  FN3. Ashley confirmed that S.S. arrived back at her house sometime before noon, and that she looked “real worried and just like not right.”   When Ashley asked what was wrong, S.S. started crying and revealed she had been raped.   S.S.'s account to Ashley was consistent with S.S.'s trial testimony.   Ashley did not call the police, because S.S. did not want anyone to know what happened.   After the police were contacted, however, Ashley turned the clothes S.S. had been wearing over to them.

FN4. According to Tyler, appellant came out of a neighbor's house while Tyler was talking to the residents of the first house, about the same time someone was flagging down the police.   Tyler told the police what had happened and he pointed to appellant, who was running and jumping over a fence.   By the time everything got figured out, however, appellant was gone..  FN4. According to Tyler, appellant came out of a neighbor's house while Tyler was talking to the residents of the first house, about the same time someone was flagging down the police.   Tyler told the police what had happened and he pointed to appellant, who was running and jumping over a fence.   By the time everything got figured out, however, appellant was gone.

FN5. An audio recording of the interview was played for the jury..  FN5. An audio recording of the interview was played for the jury.

FN6. Pursuant to CALCRIM No. 1000, jurors were told:  “The defendant is charged with rape by force, fear, duress, or threats in count one.   To prove that the defendant is guilty of this crime, the People must prove that, one, the defendant had sexual intercourse with a woman;  two, he and the woman were not married to each other at the time of the intercourse;  three, the woman did not consent to the intercourse;  and, four, the defendant accomplished the intercourse by force, violence, duress, menace, or fear of immediate and unlawful bodily injury to the woman or to someone else.  [¶] Sexual intercourse means any penetration, no matter how slight, of the vagina or genitalia by the penis.   Ejaculation is not required.  [¶] To consent a woman must act freely and voluntarily and know the nature of the act.   A woman who initially consents to an act of intercourse may change her mind during the act.  [¶] If she does so, under the law the act of intercourse is then committed without her consent if, one, she communicated to the defendant that she objected to the act of intercourse and attempted to stop the act;  two, she communicated her objections through words or acts that a reasonable person would have understood as showing her lack of consent and;  three, the defendant forcibly continued the act of intercourse despite her objection.  [¶] Intercourse is accomplished by force if a person uses enough physical force to overcome the woman's will.  [¶] Duress means a direct or implied threat of force, violence, danger, or retribution that would cause a reasonable person to do or submit to something that she would not do or submit to otherwise.  [¶] When deciding whether the act was ․ accomplished by duress, consider all the circumstances, including the woman's age and her relationship to the defendant.  [¶] Retribution is a form of payback or revenge.   Menace means a threat, statement, or act showing an intent to injure something.  [¶] Intercourse is accomplished by fear if the woman is actually and reasonably afraid or she is actually but unreasonably afraid, and the defendant knows of her fear and takes advantage of it.  [¶] A woman must be alive at the time of the sexual intercourse for the crime of rape to occur.  [¶] The defendant is not guilty of rape if he actually and reasonably believed that the woman consented to the intercourse.  [¶] The People have the burden of proving beyond a reasonable doubt that the defendant did not actually and reasonably believe that the woman consented.   If the People have not met this burden, you must find the defendant not guilty.”.  FN6. Pursuant to CALCRIM No. 1000, jurors were told:  “The defendant is charged with rape by force, fear, duress, or threats in count one.   To prove that the defendant is guilty of this crime, the People must prove that, one, the defendant had sexual intercourse with a woman;  two, he and the woman were not married to each other at the time of the intercourse;  three, the woman did not consent to the intercourse;  and, four, the defendant accomplished the intercourse by force, violence, duress, menace, or fear of immediate and unlawful bodily injury to the woman or to someone else.  [¶] Sexual intercourse means any penetration, no matter how slight, of the vagina or genitalia by the penis.   Ejaculation is not required.  [¶] To consent a woman must act freely and voluntarily and know the nature of the act.   A woman who initially consents to an act of intercourse may change her mind during the act.  [¶] If she does so, under the law the act of intercourse is then committed without her consent if, one, she communicated to the defendant that she objected to the act of intercourse and attempted to stop the act;  two, she communicated her objections through words or acts that a reasonable person would have understood as showing her lack of consent and;  three, the defendant forcibly continued the act of intercourse despite her objection.  [¶] Intercourse is accomplished by force if a person uses enough physical force to overcome the woman's will.  [¶] Duress means a direct or implied threat of force, violence, danger, or retribution that would cause a reasonable person to do or submit to something that she would not do or submit to otherwise.  [¶] When deciding whether the act was ․ accomplished by duress, consider all the circumstances, including the woman's age and her relationship to the defendant.  [¶] Retribution is a form of payback or revenge.   Menace means a threat, statement, or act showing an intent to injure something.  [¶] Intercourse is accomplished by fear if the woman is actually and reasonably afraid or she is actually but unreasonably afraid, and the defendant knows of her fear and takes advantage of it.  [¶] A woman must be alive at the time of the sexual intercourse for the crime of rape to occur.  [¶] The defendant is not guilty of rape if he actually and reasonably believed that the woman consented to the intercourse.  [¶] The People have the burden of proving beyond a reasonable doubt that the defendant did not actually and reasonably believe that the woman consented.   If the People have not met this burden, you must find the defendant not guilty.”

FN7. Pursuant to CALCRIM No. 252, jurors were told, in part:  “The crime charged in count one and the lesser crimes require proof of the union or joint operation of act and wrongful intent.  [¶] The following crimes require general criminal intent:  Rape, as charged in count one;  battery, as charged as a lesser offense in count one;  and assault, as charged as a lesser offense on count one.  [¶] ․ [¶] The following crime requires a specific intent or mental state:  Attempted rape, as charged as a lesser offense in count one.  [¶] For you to find a person guilty of this crime, that person must not only intentionally commit the prohibited act, but must do so with a specific intent.   The act and the specific intent required are explained in the instruction for that crime.  [¶] The specific intent required for the crime of attempt, as a lesser offense, is the attempt to do any crime, and must be accompanied by a specific intent to do that named crime.”Pursuant to CALCRIM No. 3517, jurors were told, in part:  “If all of you find that the defendant is not guilty of a greater crime, you may find him guilty of a lesser crime if you are convinced beyond a reasonable doubt that the defendant is guilty of that lesser crime.   A defendant may not be convicted of both a greater and a lesser crime for the same conduct.  [¶] Now I will explain to you which crimes are affected by this instruction.   [¶] Attempted rape is a lesser crime of rape charged in count one.   Simple battery is a lesser crime of attempted rape.   Simple assault is a lesser crime of simple battery.  [¶] It is up to you to decide the order in which you consider each crime and the relevant evidence, but I can accept a verdict of guilty of a lesser crime only if you have found the defendant not guilty of the corresponding greater crime.  [¶] For any count in which a greater and lesser crime is charged, you will receive verdict forms of guilty and not guilty for the greater crime and also verdict forms of guilty and not guilty for the lesser crime.  [¶] Follow these instructions before you give me any completed and signed final verdict form.   Return any unused verdict forms to me unsigned.  [¶] ․ [¶] Follow these directions when you decide whether the defendant is guilty or not guilty of attempted rape, which is a lesser crime than rape.  [¶] Follow these directions when you decide whether the defendant is guilty or not guilty of simple battery, which is a lesser crime to an attempted rape.  [¶] Follow these instructions when you decide whether the defendant is guilty or not guilty of simple assault, which is a lesser crime than simple battery.”.  FN7. Pursuant to CALCRIM No. 252, jurors were told, in part:  “The crime charged in count one and the lesser crimes require proof of the union or joint operation of act and wrongful intent.  [¶] The following crimes require general criminal intent:  Rape, as charged in count one;  battery, as charged as a lesser offense in count one;  and assault, as charged as a lesser offense on count one.  [¶] ․ [¶] The following crime requires a specific intent or mental state:  Attempted rape, as charged as a lesser offense in count one.  [¶] For you to find a person guilty of this crime, that person must not only intentionally commit the prohibited act, but must do so with a specific intent.   The act and the specific intent required are explained in the instruction for that crime.  [¶] The specific intent required for the crime of attempt, as a lesser offense, is the attempt to do any crime, and must be accompanied by a specific intent to do that named crime.”Pursuant to CALCRIM No. 3517, jurors were told, in part:  “If all of you find that the defendant is not guilty of a greater crime, you may find him guilty of a lesser crime if you are convinced beyond a reasonable doubt that the defendant is guilty of that lesser crime.   A defendant may not be convicted of both a greater and a lesser crime for the same conduct.  [¶] Now I will explain to you which crimes are affected by this instruction.   [¶] Attempted rape is a lesser crime of rape charged in count one.   Simple battery is a lesser crime of attempted rape.   Simple assault is a lesser crime of simple battery.  [¶] It is up to you to decide the order in which you consider each crime and the relevant evidence, but I can accept a verdict of guilty of a lesser crime only if you have found the defendant not guilty of the corresponding greater crime.  [¶] For any count in which a greater and lesser crime is charged, you will receive verdict forms of guilty and not guilty for the greater crime and also verdict forms of guilty and not guilty for the lesser crime.  [¶] Follow these instructions before you give me any completed and signed final verdict form.   Return any unused verdict forms to me unsigned.  [¶] ․ [¶] Follow these directions when you decide whether the defendant is guilty or not guilty of attempted rape, which is a lesser crime than rape.  [¶] Follow these directions when you decide whether the defendant is guilty or not guilty of simple battery, which is a lesser crime to an attempted rape.  [¶] Follow these instructions when you decide whether the defendant is guilty or not guilty of simple assault, which is a lesser crime than simple battery.”

FN8. The California Supreme Court's observation in People v. Boyer (2006) 38 Cal.4th 412, 441, footnote 17, is applicable here:  “With respect to this and virtually every other claim raised on appeal, defendant urges that the error ․ he is asserting infringed various of his constitutional rights to a fair and reliable trial.   In most instances, insofar as defendant raised the issue at all in the trial court, he failed explicitly to make some or all of the constitutional arguments he now advances.   In each instance, unless otherwise indicated, it appears that either (1) the appellate claim is of a kind (e.g., failure to instruct sua sponte;  erroneous instruction affecting defendant's substantial rights) that required no trial court action by the defendant to preserve it, or (2) the new arguments do not invoke facts or legal standards different from those the trial court itself was asked to apply, but merely assert that the trial court's act or omission, insofar as wrong for the reasons actually presented to that court, had the additional legal consequence of violating the Constitution.   To that extent, defendant's new constitutional arguments are not forfeited on appeal.  [Citations.]  [¶] In the latter instance, of course, rejection, on the merits, of a claim that the trial court erred on the issue actually before that court necessarily leads to rejection of the newly applied constitutional ‘gloss' as well.   No separate constitutional discussion is required in such cases, and we therefore provide none.”.  FN8. The California Supreme Court's observation in People v. Boyer (2006) 38 Cal.4th 412, 441, footnote 17, is applicable here:  “With respect to this and virtually every other claim raised on appeal, defendant urges that the error ․ he is asserting infringed various of his constitutional rights to a fair and reliable trial.   In most instances, insofar as defendant raised the issue at all in the trial court, he failed explicitly to make some or all of the constitutional arguments he now advances.   In each instance, unless otherwise indicated, it appears that either (1) the appellate claim is of a kind (e.g., failure to instruct sua sponte;  erroneous instruction affecting defendant's substantial rights) that required no trial court action by the defendant to preserve it, or (2) the new arguments do not invoke facts or legal standards different from those the trial court itself was asked to apply, but merely assert that the trial court's act or omission, insofar as wrong for the reasons actually presented to that court, had the additional legal consequence of violating the Constitution.   To that extent, defendant's new constitutional arguments are not forfeited on appeal.  [Citations.]  [¶] In the latter instance, of course, rejection, on the merits, of a claim that the trial court erred on the issue actually before that court necessarily leads to rejection of the newly applied constitutional ‘gloss' as well.   No separate constitutional discussion is required in such cases, and we therefore provide none.”

FN9. Defense counsel essentially made the same concession during argument to the jury..  FN9. Defense counsel essentially made the same concession during argument to the jury.

FN10. For instance, S.S. testified, “Then he just put [his penis] into my vagina anyways.”   Appellant told Howerton, “I felt like coming, right, so I just pulled it out and I was—I wasn't gonna come in her so I just pulled it out.”.  FN10. For instance, S.S. testified, “Then he just put [his penis] into my vagina anyways.”   Appellant told Howerton, “I felt like coming, right, so I just pulled it out and I was—I wasn't gonna come in her so I just pulled it out.”

FN11. We might just as easily speculate that any absence of semen was a result of the fact the sexual assault examination did not take place until more than 24 hours after the intercourse occurred, during which time S.S. would reasonably have been expected to cleanse herself, in addition to which any semen could have been absorbed by her tampon.  (See People v. Wallace, supra, 44 Cal.4th at p. 1079.).  FN11. We might just as easily speculate that any absence of semen was a result of the fact the sexual assault examination did not take place until more than 24 hours after the intercourse occurred, during which time S.S. would reasonably have been expected to cleanse herself, in addition to which any semen could have been absorbed by her tampon.  (See People v. Wallace, supra, 44 Cal.4th at p. 1079.)

FN12. Section 663 provides:  “Any person may be convicted of an attempt to commit a crime, although it appears on the trial that the crime intended or attempted was perpetrated by such person in pursuance of such attempt, unless the Court, in its discretion, discharges the jury and directs such person to be tried for such crime.”.  FN12. Section 663 provides:  “Any person may be convicted of an attempt to commit a crime, although it appears on the trial that the crime intended or attempted was perpetrated by such person in pursuance of such attempt, unless the Court, in its discretion, discharges the jury and directs such person to be tried for such crime.”

FN13. Even if we were to find error, we would conclude it was harmless.   The jury's guilty verdict on count 1 showed it found every element of the completed offense proven beyond a reasonable doubt.   The jury having found the elements of the completed crime, any erroneous failure to instruct on the elements of attempt clearly did not contribute to the verdict.  (See People v. Cole (2004) 33 Cal.4th 1158, 1208–1209.).  FN13. Even if we were to find error, we would conclude it was harmless.   The jury's guilty verdict on count 1 showed it found every element of the completed offense proven beyond a reasonable doubt.   The jury having found the elements of the completed crime, any erroneous failure to instruct on the elements of attempt clearly did not contribute to the verdict.  (See People v. Cole (2004) 33 Cal.4th 1158, 1208–1209.)

FN14. The California Supreme Court has held that because battery cannot be accomplished without a touching of the victim, while attempted forcible rape does not require a touching, battery is not a lesser included offense of attempted forcible rape.  (People v. Marshall, supra, 15 Cal.4th at pp. 38–39.)   Thus, appellant's jurors should not have been told that simple battery was a lesser crime of attempted rape.   This error does not affect our analysis, however..  FN14. The California Supreme Court has held that because battery cannot be accomplished without a touching of the victim, while attempted forcible rape does not require a touching, battery is not a lesser included offense of attempted forcible rape.  (People v. Marshall, supra, 15 Cal.4th at pp. 38–39.)   Thus, appellant's jurors should not have been told that simple battery was a lesser crime of attempted rape.   This error does not affect our analysis, however.

FN15. In accordance with Government Code section 68081, we notified the parties of our preliminary determination in this regard and afforded them the opportunity to address the issue.The propriety of imposing both enhancements based on the same prior conviction was raised at sentencing.   Unfortunately, the prosecutor's assurance that “[i]t's done regularly all the time” was accepted without supporting legal authority..  FN15. In accordance with Government Code section 68081, we notified the parties of our preliminary determination in this regard and afforded them the opportunity to address the issue.The propriety of imposing both enhancements based on the same prior conviction was raised at sentencing.   Unfortunately, the prosecutor's assurance that “[i]t's done regularly all the time” was accepted without supporting legal authority.