Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF125586, Elisabeth Sichel, Judge.
Robert E. Boyce, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Arlene Sevidal and Alana Cohen Butler, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Gaut J.
All statutory references are to the Penal Code unless stated otherwise.
A jury convicted defendant of three counts of aggravated assault against his six-year-old daughter by rape (count 1), forcible digital penetration (count 2), and forcible oral copulation (count 3), all of a child under 14 years of age. (§§ 269, subd. (a)(1), (4), & (5).) The court sentenced defendant to three consecutive terms of 15 years to life in prison.
On appeal, defendant argues there were two kinds of instructional error. He challenges the admission of police opinion testimony and the imposition of consecutive sentences. We reject these contentions and affirm the judgment.
2. Facts
One evening in the summer of 2005, Jane Doe was home watching television with defendant while her mother worked. Defendant fell asleep on the couch. When he woke up, he grabbed Jane roughly and transported her to the bedroom where he blocked her from trying to leave. He removed her clothes and then performed oral copulation and digital penetration on her. He concluded his assault by having intercourse with her. During the assault, Jane told her father he was hurting her and she asked him to stop. When she tried to get away, he restrained her. Afterwards, she was sore and took a bath. Defendant told her not to tell her mother or anyone else.
The next day Jane Doe told her mother what had happened but her mother did not believe her. Some weeks later Jane Doe confided to her cousins. Her aunt contacted an Orange County detective.
A Riverside County detective interviewed Jane at home. The detective also spoke to Jane’s mother who gave inconsistent statements and accused Jane Doe of lying and being influenced by television. Jane’s mother claimed defendant had touched Jane accidentally.
The detective also interviewed defendant who admitted he had fondled Jane under her underpants while watching television one night. He denied engaging in digital penetration or oral copulation. Instead, he said he rubbed her vagina with his fingers. When Jane asked what he was doing, he stopped touching her and washed his face in the bathroom. He removed her underpants and checked her vagina to make sure she was not hurt.
In a subsequent interview with the Riverside Child Abuse Team (RCAT), Jane made statements consistent with her previous interview.
A forensic examination revealed that the narrowness of Jane’s hymen was consistent with a sexual assault because it was an abnormal condition in a six-year-old girl.
3. Instructional Error
The trial court instructed the jury about lewd act with force as a lesser included offense of count 2 for digital penetration and simple assault as a lesser included offense of all three counts. Defendant claims the jury should have received instruction for each count about lesser included nonforcible offenses. Specifically, defendant asserts the court should have given instructions on nonforcible lewd act with a child on count 1 (§ 288, subd. (a)); nonforcible digital penetration of a child on count 2 (§ 289, subd. (j)); and nonforcible oral copulation with a child on count 3. (§ 288a, subd. (c)(1).)
The oft-recited rubric is as follows: “‘“‘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.] That obligation has been held to include giving instructions on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present [citation], but not when there is no evidence that the offense was less than that charged. [Citations.]”’ (People v. Breverman (1998) 19 Cal.4th 142, 154, 77 Cal.Rptr.2d 870, 960 P.2d 1094.)” (People v. Valdez (2004) 32 Cal.4th 73, 115.) We conduct an independent review. (People v. Waidla (2000) 22 Cal.4th 690, 733.)
As to count 1, we agree with respondent that a nonforcible lewd act on a child is not a lesser included offense of forcible rape, which requires only general intent. (People v. Benavides (2005) 35 Cal.4th 69, 97.) The other instructional error, as claimed by defendant in his reply brief and supplemental brief, is that the court also failed to give an instruction on statutory rape on count 1. (§ 261.5, subd. (d).) But, again, statutory rape is not a lesser included offense of aggravated rape of a child because the latter may be committed without committing the former. (People v. Birks (1998) 19 Cal.4th 108, 117.) If a victim was 12 years old and the offender was 20 years old, the crime would be aggravated rape (§ 269, subd. (a)(1)) but not statutory rape, for which the victim must be under 16 years old and the offender must be at least 21 years old. (CALCRIM Nos. 1070 and 1123.) We reject defendant’s further argument that there are other forms of statutory rape that could be lesser included offenses of section 269, subdivision (a)(1). (CALCRIM No. 1123.)
As to all three counts we agree there was no evidence to support giving instructions on nonforcible offenses. In defendant’s inconsistent and implausible version of events, he contended he did not commit any sexual offenses but—if he did—he stopped when his daughter complained. Jane, however, described defendant committing all three offenses forcibly and without consent or acquiescence by her. If the offenses occurred, they occurred by force. Under these circumstances, defendant’s proposed instructions were not justified. (People v. Valdez, supra, 32 Cal.4th at p. 115.) Even if there was error, it was harmless because no other outcome was reasonably probable. (People v. Breverman, supra, 19 Cal.4th at p. 178.)
4. Police Opinion Testimony
When he was being cross-examined by defense counsel, Detective Streeter volunteered that he thought Jane Doe had answered truthfully during her testimony at trial and that her testimony was “excellent.” Defense counsel complained that the detective was not answering his questions and was “elaborating.” Defense counsel did not accept the court’s suggestion to make a motion to strike. Later Streeter commented that Jane’s accusations against defendant “[d]id turn out this time to be true.”
Defendant argues Streeter’s opinions were inadmissible: “Lay opinion about the veracity of particular statements by another is inadmissible on that issue.” (People v. Melton (1988) 44 Cal.3d 713, 744, citing People v. Sergill (1982) 138 Cal.App.3d 34, 39-40; Evid. Code, §§ 800 and 805.) In this particular case, we question whether Streeter’s statements about Jane’s testimony may be characterized as lay opinion about the veracity of Jane’s testimony. When read in context, it is obvious that Streeter mentioned Jane’s testimony only to illustrate why he thought defendant was being evasive in his interview with the detective. Streeter was not testifying about Jane’s veracity. Nor was his offhand comment about her accusations being true proffered as evidence. Instead, he was simply trying to explain why he went forward with the investigation against defendant and comparing it with past situations in which he did not.
Even if we accept defendant’s argument that Streeter’s testimony was inadmissible and even if we ignore defendant’s waiver of the claim below, we conclude Streeter’s statements did not cause prejudice allowing defendant to succeed on a claim of ineffective assistance of counsel. We presume the jury followed its pretrial instruction that “You alone must judge the credibility or believability of the witnesses.” (People v. Flood (1998) 18 Cal.4th 470, 532.) Furthermore, as discussed previously, it is not reasonably probable that the jury would have exonerated defendant based on this record. (People v. Breverman, supra, 19 Cal.4th at p. 178.)
Defendant’s claim of error is based partly on his misreading of the record. Contrary to his assertion, the jury was properly instructed.
5. Consecutive Sentences
The trial court imposed three consecutive 15-year sentences, citing the factors delineated in California Rules of Court, rule 4.425. Defendant objects to consecutive sentencing by the court as a violation of the right to trial by jury.
Defendant, however, acknowledges that People v. Black (2007) 41 Cal.4th 799, 821 (Black II) rejected the contention that the imposition of consecutive terms violates Blakely v. Washington (2004) 542 U.S. 296 and Cunningham v. California (2007) 549 U.S. 270. The court in Black II explained that Cunningham did not undermine the previous conclusion in People v. Black (2005) 35 Cal.4th 1238 (Black I) that imposition of consecutive terms under section 669 does not implicate a defendant’s Sixth Amendment rights. (Black II, supra, at p. 821.) Blakely’s underlying rationale is inapplicable to the decision to impose consecutive or concurrent sentences. (Ibid.)
We are bound by Black II. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Accordingly, we conclude imposition of consecutive sentences did not violate defendant’s jury trial rights.
6. Disposition
We affirm the judgment.
We concur: Richli Acting P. J., King J.