People v. Douglas

Full title: THE PEOPLE, Plaintiff and Respondent, v. BRYAN ANTHONY DOUGLAS, Defendant…

Court: California Court of Appeals, First District, Fourth Division

Date published: Feb 26, 2010

No. A123696 (Cal. Ct. App. Feb. 26, 2010)

Opinion

THE PEOPLE, Plaintiff and Respondent, v. BRYAN ANTHONY DOUGLAS, Defendant and Appellant. A123696 California Court of Appeal, First District, Fourth Division February 26, 2010

NOT TO BE PUBLISHED

Alameda County Super. Ct. No. C153466

Sepulveda, J.

A jury convicted defendant of 22 counts in connection with attacks on five women over a period of nearly 11 years, and he was sentenced to multiple life terms, and a separate aggregate determinate term, in state prison. On appeal, he claims instructional error and also argues that substantial evidence does not support four of his convictions. We reject his arguments and affirm the judgment.

I.

Factual and Procedural

Background

We summarize the relevant underlying facts, viewing the evidence as a whole and in the light most favorable to the prosecution. (People v. Staten (2000) 24 Cal.4th 434, 460.)

A. Crimes Against [REDACTED] Doe ¹ (Counts 1 through 11)

1 The victims were identified at trial by their first names and the fictitious last name Doe. (Pen. Code § 293.5.)

In late July 2005, 16-year-old [REDACTED] Doe was a runaway living at a hotel in Hayward. Around 3:00 a.m. on July 31, [REDACTED] was working as a prostitute on International Boulevard and 49th Avenue in Oakland. She entered defendant’s car after he asked whether she was working. After first saying that he would take [REDACTED] to her hotel room, defendant eventually said he wanted to take [REDACTED] to a nice house in Hayward where he was house sitting. With [REDACTED]’s permission, defendant covered [REDACTED]’s eyes with a jacket so that she would not know where they were going and could not return to the home later to rob it.

After defendant and [REDACTED] arrived at the Hayward house, defendant directed her to a guest room. [REDACTED] put her purse on the bed, and when she turned around defendant was holding a knife that he put to her neck. Defendant told [REDACTED] to put her hands behind her back and lie on the bed stomach first, and that he would stab her if she tried to get away. He taped her hands behind her back with duct tape and told her that he was going to have sex with her ten times and then let her go. Defendant then rolled [REDACTED] onto her back, removed her jeans and underwear, and started fondling her vagina. He first forced her to orally copulate him, and then he raped her without using a condom.

[REDACTED] started faking seizures, hoping that defendant would let her go, but he said he was going to “do it to” her seven more times before releasing her. Defendant took [REDACTED], with her hands still duct taped, to the bathroom to urinate. He then took her back to the bedroom, where he raped her again. He became frustrated that he could not ejaculate, and he made [REDACTED] give him oral sex again until he either ejaculated or urinated on her.

Defendant then directed [REDACTED], who was naked and still had her hands tied behind her back, into the living room and put her on the couch. They sat on the couch and watched television for about three hours. [REDACTED] testified that during this time, “I was laying on him because I was—at that point, I didn’t know what to do. I tried everything. So I was trying to maybe be nice, you know, and so I laid on him and I was so tired because I had been up for a whole day just crying and I went to sleep for like an hour.” When [REDACTED] woke up, defendant and she returned to the bedroom, where defendant raped her again.

At one point defendant tied [REDACTED] with a rope to the headboard of a bed, and positioned her in such a way that she would strangle herself if she put her legs down, then told her he was going to get gas. [REDACTED] tried to bite through the rope after she thought defendant had left. Defendant walked in, became angry that [REDACTED] was trying to leave, and tightened the rope around her neck. [REDACTED] passed out, and woke up to defendant shaking her and yelling at her. Defendant removed the rope from her neck, hands, and feet.

Defendant began acting meaner toward [REDACTED] after she tried to escape, displaying his knife more often, grabbing her more, and screaming “like he had personal hate” toward [REDACTED]. He tried to put his finger in her anus, but he stopped and became angry when [REDACTED] threatened to defecate on him. He then raped [REDACTED] again, and he ejaculated inside her. [REDACTED] testified that defendant raped her “[a]t least ten times” over the two days he held her in the Hayward house.

Toward the end of [REDACTED]’s second day with defendant, defendant received a call on the house’s telephone, and [REDACTED] believed that the owner of the house was telling defendant that the owner was returning home. Defendant told her that he would take her where she wanted to go, and she said she wanted to be dropped off at a hospital. About an hour later, defendant put [REDACTED]’s pants on and started getting their things together. [REDACTED]’s arms were turning blue, and she could not feel her hands. Defendant stuffed tissue into her mouth and then placed duct tape on her eyes and mouth. He walked her to his car, placed her in the passenger seat with the back fully reclined, and began to drive. They drove for about 10 or 15 minutes, and defendant stopped the car at the end of a cul-de-sac on Thiel Road in Hayward. Defendant stabbed [REDACTED], pushed her out of the car, and drove away.

Around 10:30 p.m. on August 1, a man who lived nearby heard defendant’s car pull up and noticed a “thumping” noise, then heard the car drive away. He and other neighbors investigated, and they found [REDACTED] lying on the ground bleeding, with her eyes and mouth covered with duct tape and her hands and ankles bound. A neighbor called 911, and paramedics arrived a short time later.

[REDACTED] suffered three stab wounds above her left breast and one on her left thigh. She was taken by ambulance to Eden Medical Center in Castro Valley, where she underwent surgery and almost died. A genital exam on the morning after [REDACTED] was taken to the hospital revealed four lacerations. Sperm captured from the crotch area of [REDACTED]’s jeans was used to create a DNA profile that matched defendant’s DNA profile.²

2 The likelihood of this DNA profile to occur in the general population was calculated by an Oakland police department criminalist to be one in 617 billion.

Defendant testified on his own behalf and denied guilt of any of the charged crimes. He acknowledged that he picked up prostitutes on International Boulevard in Oakland once or twice a week. As for his encounter with [REDACTED], defendant claimed that he picked her up as a prostitute around 5:30 a.m. on August 1, 2005, a day when he was house sitting for a friend who lived in Hayward. [REDACTED] told defendant that she would perform “oral and regular sex” for about $50, and they drove from International Boulevard to a residential area, where they had sex in his parked car. Because it was getting light and residents were coming outside, defendant offered to drive [REDACTED] to Hayward, where he would pay her an additional $50 to have sex with him again. Defendant brought [REDACTED] to where he was house sitting, and they had sex in a back room of the house.

After having sex at the Hayward house, defendant and [REDACTED] “just kind of hung out a little bit and talk[ed],” according to defendant. [REDACTED] received a telephone call and told defendant she had to leave. Defendant drove [REDACTED] to a motel in Hayward and dropped her off around 9:00 a.m., then returned to his friend’s house.

The jury convicted defendant of the following crimes in connection with the attack on [REDACTED] Doe: five counts of forcible rape (Pen. Code, § 261, subd. (a)(2) ³—counts 1, 3, 4, 6, 7), two counts of forcible oral copulation (§ 288a, subd. (c)(2)—counts 2, 8), one count of attempted sexual penetration by a foreign object (§ 289, subd. (a)(1)—count 5), one count of false imprisonment by violence (§ 236—count 9), one count of kidnapping (§ 207, subd. (a)—count 10), and one count of willful, deliberate, premeditated attempted murder (§§ 187, subd. (a), 664, subd. (f)—count 11). With respect to the rape and oral copulation counts, the jury found true allegations under section 667.61 (commonly known as the one strike law), that defendant was armed with and personally used a dangerous or deadly weapon in the commission of the crimes (§ 667.61, subd. (e)(4)), that defendant tied or bound the victim in the commission of the crimes (§ 667.61, subd. (e)(6)), and that he committed specified sex crimes against multiple victims (§ 667.61, subd. (e)(5)). With respect to the false imprisonment, kidnapping, and attempted murder counts, the jury found true the allegation that defendant personally used a deadly or dangerous weapon (a knife) (§ 12022, subd. (b)(1)). With respect to the attempted murder count, the jury found true the allegation that defendant inflicted great bodily injury on [REDACTED] (§ 12022.7, subd. (a)).

3 All statutory references are to the Penal Code unless otherwise indicated.

B. Crime Against Jane Doe (Count 12)

Around 4:30 a.m. on April 2, 1995, Jane Doe was on International Boulevard near 18th Avenue waiting for a bus. She had worked as a prostitute in the past, but she was not working that night. Defendant drove past her a few times before driving up and asking if she wanted a ride. She at first declined, but later accepted because her bus had not arrived. Jane asked defendant to drive her to her home in Oakland, and he agreed and began driving in the direction of her home. He later changed direction, saying he needed to get gas; however, he passed a gas station without stopping. When Jane asked where defendant was going, he locked her door, put a knife to her ribcage, and drove to an isolated location.

Defendant parked and told Jane to remove her clothing. She at first refused, and defendant ripped off her pants. She complied by removing her blouse after defendant put his knife to her throat. He then raped her. Afterward, they struggled over Jane’s purse, and defendant forced her out of the car. Jane walked to a restaurant, and Oakland police officers were called.

Jane was taken to Highland Hospital, where a physical examination revealed an approximately one-half inch cut on her left cheek and scratches on the left side of her neck and on her right breast. Jane was crying, and she had four vaginal tears consistent with forcible intercourse. Sperm was captured from the crotch of Jane’s underwear, and its DNA profile matched that of defendant.

Defendant testified that he picked up Jane as a prostitute on the night in question, and that Jane told him she would charge $20 for “oral sex and regular sex.” She directed him to drive to a warehouse. When they arrived, Jane informed defendant that she could not perform oral sex, so defendant said he could not pay her the entire $20. The two had sex, and afterward she grabbed for his wallet and pulled a knife out of her purse. According to defendant, he grabbed the knife from Jane, pushed her out of the car, and drove away.

Defendant was convicted of one count of forcible rape (§ 261, subd. (a)(2)—count 12) in connection with the attack on Jane Doe. The jury also found true one strike allegations that defendant kidnapped the victim (§ 667.61, subd. (d)(2)), that he was armed and personally used a dangerous or deadly weapon in the commission of the rape (§ 667.61, subd. (e)(4)), and that he committed specified sex crimes against multiple victims (§ 667.61, subd. (e)(5)).

C. Crimes Against Christina Doe (Counts 13, 14)

Around 3:00 a.m. on June 23, 2005, Christina Doe was alone on International Boulevard after failing to return to her residential drug treatment program following an approved outing. Defendant drove up and asked Christina if she wanted a ride. Christina at first declined, but later accepted defendant’s offer and got into his car. Defendant drove to an apartment complex, parked in a driveway behind the building, and told Christina to take off her pants. When she refused, he pulled out a knife and went to stab her. Christina grabbed the blade of the knife, seriously injuring her hand. She was able to open the car door, escape, then summon police after defendant drove away. Defendant denied ever seeing Christina before his arrest.

The jury convicted defendant of one count of assault to commit a designated forcible sex crime (§ 220—count 13) and one count of assault with a deadly weapon (§ 245, subd. (a)(1)—count 14) in connection with the attack on Christina. With respect to both counts, the jury found true the allegation that defendant personally used a deadly or dangerous weapon (a knife) (§ 12022, subd. (b)(1)). With respect to the assault with a deadly weapon count, the jury also found true the allegation that defendant inflicted great bodily injury (§ 12022.7, subd. (a)).

D. Crimes Against Van Doe (Counts 15 through 21)

Around midnight on September 15, 2005, Van Doe rode Bay Area Rapid Transit to the Fruitvale station in Oakland to meet a friend. Although she had worked as a prostitute in the past, she was not working as a prostitute that night. She walked toward a gas station on International Boulevard at 38th Avenue. When she arrived at the gas station, she asked the cashier behind a window for a bottle of soda. While the cashier went to retrieve a drink, defendant walked up to her, held a gun to her ribs, and told her if she screamed he would kill her. Defendant and Van got into defendant’s car, and they drove away.

Defendant drove Van to a different area of Oakland and parked so close to a fence that Van could not open the door to escape. He pressed his elbow to her neck, making it difficult for her to breathe, and he tied her wrists together behind her back with gauze. Defendant then threw Van’s jacket over her head so she could not see and drove away.

After driving for about 20 or 30 minutes, defendant stopped at a house in Oakland and parked with the passenger side near a fence, such that Van could not get out of the car. Defendant removed Van’s jeans and underwear. Defendant smelled Van’s underwear. He ordered Van to orally copulate him, and she complied because she did not want to die. Defendant also orally copulated Van, digitally penetrated her, and raped her twice. Van also testified that she was forced to orally copulate defendant twice. Defendant eventually put Van’s jeans back on her but did not return her underwear.

After defendant sexually assaulted Van, he placed her jacket over her head, drove her to another location near houses and a cemetery in Oakland, told her that he would kill her and her family if she told police what happened, and then dropped her off. Van’s hands were still tied behind her back with gauze, and her hands were numb. She flagged down a motorist, who helped her remove the gauze. Van used the motorist’s cell phone to call her boyfriend, who took her to her house. She later decided to go to the hospital, where she reported that she had been raped.

A physical examination conducted at Highland Hospital revealed tenderness in Van’s trachea and abrasions on her right wrist. Police collected the cloth that Van reported had been used to secure her wrists, and an officer observed red marks and indentations on her wrists. Vaginal swabs revealed sperm that had a DNA profile that matched defendant’s DNA profile.

A few months later, in the early morning hours of February 14, 2006, Van saw defendant in his car on International Boulevard in Oakland while she was working as a prostitute. Van recognized defendant as the person who had raped her, and she flagged down an Oakland police officer. She provided a description of defendant’s car and its license plate number to the officer, and that information led police to defendant. After defendant was arrested, police searched defendant’s residence and found Van’s underwear in a plastic bag on the headboard of his bed.

Defendant testified that he picked up Van as a prostitute on the night in question at a fast food restaurant parking lot on International Boulevard. He drove her to an apartment complex parking lot, and after haggling over price he agreed to pay her $40 for “oral and regular sex.” After they had sex, defendant drove Van back to the fast food restaurant parking lot, and she got out of the car.

The jury convicted defendant of the following crimes in connection with the attack on Van: two counts of forcible rape (§ 261, subd. (a)(2)—counts 15, 20), three counts of forcible oral copulation (§ 288a, subd. (c)(2)—counts 16, 18, 19), one count of sexual penetration by a foreign object (§ 289, subd. (a)(1)—count 17), and one count of second degree robbery (§ 211—count 21). With respect to counts 15 through 20, the jury also found true one strike allegations that defendant (1) kidnapped the victim (§ 667.61, subd. (d)(2)), (2) was armed with and personally used a dangerous or deadly weapon in the commission of the crimes (§ 667.61, subd. (e)(4)), (3) tied or bound the victim in the commission of the crimes (§ 667.61, subd. (e)(6)), and (4) committed specified sex crimes against multiple victims (§ 667.61, subd. (e)(5)). With respect to those same counts, the jury also found true the allegation that defendant personally used a firearm (§§ 12022.5, subd. (a)(1), 12022.53, subd. (b)). With respect to the robbery count, the jury found true the allegation that defendant personally used a firearm (§§ 12022.5, subd. (a)(1), 12022.53, subd. (b)).

E. Crime Against Catrina Doe (Count 22)

Catrina Doe had worked as a prostitute for almost 20 years. Around 3:00 a.m. on February 14, 2006, she was on the corner of 28th and San Pablo Avenues in Oakland trying to make money to pay for crack cocaine. Defendant pulled up in a car, motioned for Catrina to come over to the driver’s side, and told her to do something to prove she was not a police officer. Catrina exposed her breasts, then got into defendant’s car. Defendant and Catrina agreed that he would pay $20 for a sexual act, and that they would drive to her usual location on Chestnut Street. When they arrived, defendant said it looked like a “setup” to him, and said he would drive to a different location.

Defendant got on the freeway, which made Catrina nervous because she “d[idn’t] do freeways.” He drove to a residential area in east Oakland and said they would “do it in the car.” Catrina told him, “ ‘Money first.’ ” Defendant responded, “ ‘Bitch, you’ll do whatever the fuck I say,’ ” at which point Catrina started to get scared. Defendant told her to take off her coat. Catrina told him that would be difficult because she was paralyzed on the right side of her body and that she usually did not take off her coat because she found it difficult to put it back on. Defendant helped her remove it. Defendant then told her to take off her clothes, and she removed one leg of her pants. Defendant pulled the back of her head down “hard” to his lap, forced her to orally copulate him, and ejaculated in her mouth. Catrina testified that she would not have allowed a customer to put his penis in her mouth without a condom or to ejaculate in her mouth. As Catrina was retrieving her coat from the back seat of defendant’s car, defendant slapped her hand and said, “ ‘Get out of my car. I got a knife.’ ” Catrina got out of the car without her jacket, and defendant drove away.

Catrina screamed for help, and the police arrived after someone who lived nearby called 911. Catrina was taken to Highland Hospital. An oral swab from Catrina revealed sperm with a DNA profile that matched defendant’s DNA profile.

Defendant testified that he picked up Catrina as a prostitute on International Boulevard on the night in question. Catrina said that she would perform only oral sex, and after haggling over price Catrina accepted defendant’s offer to pay her $10. They drove to another location. As Catrina was performing oral sex, defendant felt her hand going down his leg toward his pants pocket where he kept his wallet. Suspecting that Catrina was trying to steal his wallet, defendant pushed her off him, told her to get out of the car, pushed her out, and drove away. He never paid her any money.

In connection with the attack on Catrina, the jury convicted defendant of one count of forcible oral copulation (§ 288a, subd. (c)(2)—count 22) and found true the one strike allegation that defendant committed specified sex crimes against multiple victims (§ 667.61, subd. (e)(5)).

Defendant was sentenced to five consecutive life terms: life in prison with the possibility of parole on the attempted murder conviction (count 11), 15 years to life on the conviction of forcible oral copulation of Catrina (count 22) (§ 667.61), and 25 years to life each on three convictions for forcible rape (of [REDACTED], Jane, and Van, counts 1, 12, 15), with a consecutive three years, four months in prison on the enhancement for count 15 (§ 12022.53, subd. (b)). The trial court further sentenced defendant to the following determinate terms, to be served consecutively: the midterm of five years for the kidnapping of [REDACTED] (count 10), one-third the midterm (16 months) for the assault on Christina (count 13), with an additional four months for the enhancement on that count. The court imposed the following determinate terms, to be served concurrently: the midterm of two years on the conviction for the false imprisonment by violence of [REDACTED] (count 9) and the lower term of three years for the second degree robbery conviction (count 21).⁴

4 The trial court stayed the sentences on counts 2 through 8, 14, and 16 through 20, as well as on various enhancements.

Defendant timely appealed.

II. Discussion

A. No Reversible Error to Omit Instructions on One Strike Allegations.

Defendant first argues that the trial court committed prejudicial error by failing to instruct the jury on the elements of three of the four one strike allegations considered by the jury (§ 667.61, subds. (d)(2), (e)(4), (5), (6)).⁵ “Section 667.61 requires the trial court to impose a life sentence when the defendant is convicted of a specified sexual offense and the People plead and prove one or more specified aggravating circumstances.” (People v. Campbell (2000) 82 Cal.App.4th 71, 76; § 667.61, subds. (a)-(e), (j).) The trial court has a sua sponte duty to instruct on the elements of one strike circumstances. (People v. Jones (1997) 58 Cal.App.4th 693, 709.) We will not reverse if we conclude that any error in failing to instruct the jury on the one strike allegations was harmless beyond a reasonable doubt. (Washington v. Recuenco (2006) 548 U.S. 212, 220-221; People v. Jones, supra, at p. 709.) An error is harmless beyond a reasonable doubt where the jury necessarily resolved the factual question posed by the omitted instructions adversely to defendant under other, properly given instructions (People v. Marshall (1996) 13 Cal.4th 799, 852; People v. Jones, supra, at p. 709), or where a review of the entire record reveals that the jury would have returned the same verdict absent the error. (Washington v. Recuenco, supra, at p. 221.)

5 Defendant requested, and the trial court instructed the jury with, CALJIC No. 17.19.1, regarding the deadly weapon use one strike allegation (§ 667.61, subd. (e)(4)). Although the prosecutor noted that findings were required with respect to the kidnapping and tying or binding one strike allegations (§ 667.61, subds. (d)(2), (e)(6)), neither side specifically requested jury instructions on those allegations or on the multiple victim one strike allegation (§ 667.61, subd. (e)(5)), perhaps because CALJIC does not provide form instructions for those allegations.

With these general principles in mind, we separately consider the four one strike allegations considered by the jury.

1. Kidnapping (§ 667.61, subd. (d)(2))

A defendant convicted of rape, oral copulation, or sexual penetration is subject to a life sentence (§ 667.61, subds. (a), (b), (c)(1), (5) & (7)) if the defendant kidnapped the victim “and the movement of the victim substantially increased the risk of harm to the victim over and above that level of risk necessarily inherent in the underlying offense” of rape, oral copulation, or sexual penetration. (§ 667.61, subd. (d)(2).) The second consolidated information included this allegation in connection with the forcible rapes of Jane Doe and Van Doe, the three counts of forcible copulation of Van, and the count of sexual penetration by a foreign object of Van.

As to each of the one strike kidnapping allegations, the verdict forms (for counts 12 and 15 through 20) included the following language (or language virtually identical thereto): “We, the jury further find that in... the commission of the above offense said defendant, BRYAN ANTHONY DOUGLAS _________ DID/DID NOT kidnap the victim and the movement of the victim substantially increased the risk of harm to the victim over and above that level of risk necessarily inherent in the commission of that offense within the meaning of Penal Code Section 667.61(d)(2).” The jury indicated, for each allegation, that defendant “DID” kidnap the victim. However, the jury was not given any instructions specifically pertaining to the elements of this one strike circumstance.

Defendant argues that the jury should have been given an instruction such as CALCRIM No. 3175, which provides that in order to prove the one strike kidnapping allegation, the People must prove beyond a reasonable doubt that: “1. The defendant took, held, or detained _____ <[victim’s name]> by the use of force or by instilling reasonable fear; [¶] 2. Using that force or fear, the defendant moved ____ <[victim’s name]> [or made (him/her) move] a substantial distance; [¶] 3. The movement of ____ <[victim’s name]> substantially increased the risk of harm to (him/her) beyond that necessarily present in the ____ <insert sex offense[s] from Pen. Code, § 667.61(c) >; [¶] [AND] [¶] 4. _____ <[victim’s name]> did not consent to the movement(./;) [¶] [AND [¶] 5. The defendant did not actually and reasonably believe that ____ <[victim’s name]> consented to the movement.⁶] [¶] Substantialdistance means more than a slight or trivial distance. The movement must be more than merely incidental to the commission of ____ <[the relevant sex offense]>. In deciding whether the distance was substantial and whether the movement substantially increased the risk of harm, you must consider all the circumstances relating to the movement.” (Original italics.)

6 Defendant apparently contends that jurors should have been given this optional bracketed language about his belief as to the consent of the victims. As set forth more fully below (post, § II.B.), there was no substantial evidence supporting an instruction regarding defendant’s mistaken belief as to the consent of his victims.

Respondent argues, and we agree, that it was harmless error to fail to instruct the jury regarding the kidnapping one strike allegation. Although neither side raises this issue, we note that the jury was elsewhere correctly instructed, pursuant to CALJIC No. 9.50, on the elements of kidnapping. That instruction provides in relevant part: “Every person who unlawfully and with physical force or by any other means of instilling fear, steals or takes, or holds, detains, or arrests another person and carries that person without her consent for a distance that is substantial in character, is guilty of the crime of kidnapping....”⁷ The jury was further instructed on the factors to consider in considering whether a distance is “substantial.” We therefore reject defendant’s argument that jurors did not have sufficient guidance on determining whether other victims were moved a “ ‘substantial distance’ ” or whether they were moved without their consent, as they were elsewhere correctly instructed that these were elements of the crime of kidnapping. (People v. Jones, supra, 58 Cal.App.4th at pp. 709-710 [“The instructions on the substantive kidnapping offenses gave the jury sufficient guidance with respect to the simple kidnapping circumstance.”].) Moreover, as respondent correctly notes, whether either Jane Doe or Van Doe was moved a “substantial” or only a “slight or trivial” distance was not an issue in the case. The victims and defendant all testified that defendant drove the victims some distance before their sexual encounters.⁸ A review of the entire record reveals that the jury would have returned the same verdict absent the error, as there was overwhelming evidence that defendant moved Jane and Van without their consent a substantial distance by force or fear in the commission of the crimes against them. (Washington v. Recuenco, supra, 548 U.S. at p. 221.)

7 Although this instruction was given in connection with the kidnapping of [REDACTED] Doe, the prosecutor did highlight the kidnapping allegation with respect to Jane Doe during closing argument, emphasizing that the allegation was true if defendant moved Jane a distance that “substantially increased the risk of harm to the victim.” He also discussed the allegation with respect to Van Doe, telling the jury to focus on whether defendant moved Van a substantial distance in order to make it easier to rape her.

8 We also reject defendant’s argument that the verdict forms did not ensure that the jury determined that the kidnappings occurred during the particular sex offenses to which the findings were meant to apply. The verdict forms indicated that the jury was to determine whether the kidnappings occurred “in the commission” of the crimes at issue.

We also disagree with defendant’s argument that “the prosecution appears to have inadvertently argued that the jury did not need to consider particular factual elements in the one-strike kidnapping enhancements.” The prosecutor stated during his closing argument, without objection: “Let me just show you what a verdict form is like so you understand it, and I do it in Van’s case because there’s so many clauses in her case. [¶] So, for example, this is count 18, this is the oral copulation. This is if you find the defendant guilty, it gives the language of what oral copulation is. The significance of the language is if it is at all different than the language in the jury instructions you get, because sometimes it is, you go by the jury instruction. Like the elements that I talked about. That’s the law that controls. So if you’re reading this and go, oh, this word wasn’t really in the jury instruction, then disregard it. [¶] So here you find him guilty of oral copulation, these are the clauses that you then make findings on. [¶] So, for example, the first clause, we the jury further find in the commission of the above offense said defendant, Bryan Anthony Douglas, did or did not kidnap the victim. If you find that there was kidnapping in her case, then you say ‘did’ and not ‘did not.’ ” Contrary to defendant’s argument, the prosecutor did not tell the jury that it “was not to worry about the wording of the verdicts, just to look to the jury instructions,” in effect telling jurors that they were to ignore language in the verdict forms if it did not appear in the jury instructions. Instead, the prosecutor was telling the jury to resolve any conflict between the wording of the jury verdict forms and the jury instructions by relying on the jury instructions. Although the jury was not specifically provided with instructions on the one strike allegations, it does not follow that they were led to believe that they could simply ignore the language of the verdict forms, as defendant apparently contends on appeal.

Finally, we disagree that failing to specifically instruct the jury that it must find the one strike kidnapping allegation true beyond a reasonable doubt was reversible error. The jury was instructed, pursuant to CALJIC 2.90 (Presumption of Innocence—Reasonable Doubt—Burden of Proof) that a “defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether his guilt is satisfactorily shown, he is entitled to a verdict of not guilty. This presumption places upon the People the burden of proving him guilty beyond a reasonable doubt.” The instruction further defined “reasonable doubt.” The jury was elsewhere instructed that it was required to find other enhancements—including one of the one strike allegations—true beyond a reasonable doubt. (CALJIC Nos. 17.16 [§ 12022, subds. (b)(1), (2)], 17.19 [§§ 12022.5, subd. (a), 12022.53, subd. (b)] 17.19.1 [§ 667.61, subd. (e)(4), use of a deadly weapon one strike enhancement].) Defense counsel likewise stressed during closing argument that defendant was presumed innocent “until the contrary is shown by proof beyond a reasonable doubt as to each independent allegation or charge.” (Italics added.) There was no suggestion in the jury instructions that the jury could find the one strike special circumstances for which it did not receive separate instructions true by a standard any less than beyond a reasonable doubt.⁹ (People v. Kelly (1992) 1 Cal.4th 495, 525 [in evaluating instructions, question is whether there is reasonable likelihood that jury misunderstood the charge].) Moreover, as we have already concluded, the record reveals that the jury would have returned the same verdict absent any instructional error.

9 The jury was elsewhere instructed that it could consider evidence of other sexual crimes admitted pursuant to Evidence Code section 1108 if it found by a preponderance of the evidence that defendant committed the other sexual offenses, and the trial court instructed the jury on the definition of the preponderance of the evidence standard (CALJIC No. 2.50.2). However, there was no suggestion that this standard of proof was applicable to any findings other than to those relating to the other sexual crimes evidence.

In short, the trial court did not commit reversible error by failing to instruct the jury on the kidnapping one strike allegations.

2. Tying or binding (§ 667.61, subd. (e)(6))

A defendant convicted of rape, oral copulation, or sexual penetration is subject to a life sentence (§ 667.61, subds. (a), (b), (c)(1), (5) & (7)) if the defendant “engaged in the tying or binding of the victim” during the crimes. (§ 667.61, subd. (e)(6).) The second consolidated information included this allegation in connection with the five forcible rapes and two forcible oral copulations of [REDACTED] Doe, as well as the two forcible rapes, three forcible oral copulations, and sexual penetration of Van Doe.

As to each of the one strike tying or binding allegations, the verdict forms (for counts 1 through 4, 6 through 8, and 15 through 20) included the following language: “We, the jury further find that in the commission of the above offense said defendant, BRYAN ANTHONY DOUGLAS _____ DID/DID NOT tie or bind the victim, within the meaning of Penal Code Section 667.61(e)(6).”¹⁰ The jury indicated, for each allegation, that defendant “DID” tie or bind the victim. However, the jury was not given any instructions specifically pertaining to the elements of this one strike circumstance.

10 Following an inquiry from the jury, the phrase “and another person” was removed from the verdict form for count 8 (forcible copulation of [REDACTED] Doe).

Defendant argues that the jury should have been given an instruction such as CALCRIM No. 3182, which provides that if the jury finds a defendant guilty of the charged crime, it must next determine whether the People have proved beyond a reasonable doubt “the additional allegation that the defendant tied or bound [the victim] during the commission” of the crime. If there is an issue as to whether the tying or binding occurred “in the commission of” a particular offense, CALCRIM 3261 (In Commission of Felony) is to be used. (Bench Notes to CALCRIM No. 3182 (Fall 2009 ed., vol. 2).) We agree with respondent that the error in omitting these instructions was harmless beyond a reasonable doubt. CALCRIM No. 3182 does not provide any legal instruction beyond what jurors in this case were asked on the relevant verdict forms to determine. There can be no serious dispute that, assuming the jury believed [REDACTED]’s and Van’s versions of events (which it is clear from the jury’s verdicts that they did), there was overwhelming evidence that they were tied or bound in the commission of the crimes against them. [REDACTED] testified that defendant bound her hands with duct tape, and that they remained bound the entire time she was in the house with defendant; the people who found her after she was dumped out of defendant’s car likewise saw that her hands were bound with tape, and her eyes were covered. Van testified that defendant bound her hands with medical gauze, and police observed red marks and indentations on her wrists. We conclude that the jury would have returned the same verdict absent the error, as there was overwhelming evidence that defendant bound [REDACTED] and Van in the commission of the sexual crimes against them.¹¹ (Washington v. Recuenco, supra, 548 U.S. at p. 221.)

11 For the same reason, and for the reasons set forth above with respect to the kidnapping one strike allegation, we conclude that it was not reversible error to omit a separate instruction that jurors had to determine the truth of the tying or binding allegation beyond a reasonable doubt.

People v. Campbell, supra, 82 Cal.App.4th 71, upon which defendant relies, is not to the contrary. The court there reversed an order setting aside a tying or binding allegation, concluding that covering a victim’s eyes with opaque tape constituted tying and binding for purposes of the statute. (Id. at pp. 76, 79-80.) The court focused on the fact that the circumstances that subject perpetrators of certain sexual offenses to an enhanced sentence under section 667.61, subdivision (e) (such as using a deadly weapon or committing the offense during a burglary) all increase the victim’s vulnerability, and covering a victim’s eyes had that same effect. (Campbell at pp. 77-78.) In rejecting defendant’s vagueness challenge to section 667.61, subdivision (e)(6), the court concluded: “A reasonable and practical construction of the phrase ‘tying or binding’ necessarily includes only those actions which render a victim more particularly vulnerable, whether by restricting her or his freedom of movement or by depriving her or him of one or more senses.” (Campbell at p. 80, fn. omitted.) The court did not hold, as defendant suggests on appeal, that a trial court is under an obligation to instruct the jury that it must determine whether a victim was in fact rendered “ ‘more particularly vulnerable.’ ” Indeed, the court recognized that where, as here, a victim’s hands are bound, “the increased vulnerability of [the] victim... is immediately clear.” (Id. at p. 78, italics added.)

The verdict forms demonstrate that the jury necessarily found the tying or binding allegations true. Overwhelming evidence supports the findings, and defendant does not argue otherwise. The fact that the jury was not given an instruction on this one strike allegation was harmless beyond a reasonable doubt.

3. Multiple victims (§ 667.61, subd. (e)(5))

A defendant convicted of rape, oral copulation, or sexual penetration is subject to a life sentence (§ 667.61, subds. (a), (b), (c)(1), (5) & (7)) if the defendant has been convicted in the present case of committing those specified offenses against more than one victim. (§ 667.61, subd. (e)(5).) The second consolidated information included this allegation in connection with all forcible rape, forcible oral copulation, and sexual penetration counts against defendant as to victims [REDACTED], Jane, Van, and Catrina.

As to each of the one strike multiple victim allegations, the verdict forms (for counts 1 through 4, 6 through 8, 12, 15 through 20, and 22) included the following language: “We, the jury further find that said defendant, BRYAN ANTHONY DOUGLAS _____ HAS/HAS NOT been convicted in these proceedings of committing an offense specified in subdivision (c) of Penal Code § 667.61 against more than one victim, within the meaning of Penal Code Section 667.61(e)(5).” The jury indicated, for each allegation, that defendant “HAS” been convicted of committing the offenses against more than one victim. However, the jury was not given any instructions specifically pertaining to the elements of this one strike circumstance.¹²

12 However, the prosecutor repeatedly went over this allegation during closing argument, stating, “The way that works is if you have five victims that are charged in this case [presumably meaning defendant was charged with crimes against five victims], if you find that one of the victims was sexually assaulted and then when you get to another victim if you find that another victim was also sexually assaulted, then you would make a finding that there are multiple victims in this case that you have found the defendant guilty of.” He further explained, “So as, for example, let’s say, you were to find him guilty of raping Jane Doe, there’s a multiple victims clause on her count, but that’s the first person you talk about, and you really can’t answer that multiple victims clause question because you haven’t talked about the others. So then you get to one of the counts on [REDACTED], rape, you find him guilty of that. At that point, you can put down a ‘yes’ to the multiple victims clause for both because you’ve now found him having committed sexual offense[s] on two. That’s how the multiple victims clause works.”

Defendant argues that the jury should have been given an instruction such as CALCRIM No. 3181, which provides: “If you find the defendant guilty of two or more sex offenses, as charged in [the relevant counts], you must then decide whether the People have proved the additional allegation that those crimes were committed against more than one victim.” From the jury’s verdict finding defendant guilty of the charged sexual offenses against [REDACTED], Jane, Van, and Catrina, it necessarily followed that the multiple victim circumstance (§ 667.61, subd. (e)(5)) applied (People v. Jones, supra, 58 Cal.App.4th at p. 710), and the jury specifically so found. Defendant does not argue to the contrary. Instead, relying on People v. Guerra (2009) 176 Cal.App.4th 933, he argues that “[j]uries are entitled to render inconsistent verdicts, even if [they are the] result of compromise or lenity.” In Guerra, defendant was convicted of sexual crimes against his daughter and one of her friends, but the jury found not true the enhancement allegations that defendant committed offenses against more than one victim. (Id. at p. 936.) When the jury returned its verdict, the trial court questioned the foreperson about the inconsistency of convicting defendant of crimes against two victims but finding not true the multiple victim one strike allegation. (Id. at pp. 936-938.) After the foreperson stated that jurors had misunderstood how to fill out the form, the trial court directed jurors to “ ‘reconsider’ ” the findings on the one strike allegations, and the jury thereafter found true the enhancement allegations. (Id. at pp. 938-940.) The appellate court reversed the true findings on the one strike allegations, concluding that it was error for the trial court to direct the jury to reconsider its verdict. (Id. at pp. 942, 945 [“[T]he state has no remedy when a jury acquits ‘in the teeth of both law and facts.’ ”].)

Even though it was possible that the jury might render inconsistent verdicts and findings here, it did not do so. The jury’s verdict of guilt on all counts necessarily established the factual predicate for the finding that defendant was convicted of the enumerated offenses against more than one victim. Therefore, “[t]he factual issue posed by the omitted instruction necessarily was resolved adversely to defendant under other properly given instructions. [Citations.]” (People v. Marshall, supra, 13 Cal.4th at p. 852.) “[O]nce the jury found defendant guilty of an underlying substantive sexual offense against [four] of the victims, logically it should also have found the related multiple victim circumstance true. But we fail to see anything wrong with this.” (People v. Jones, supra, 58 Cal.App.4th at p. 712 [harmless error not to instruct jury on multiple victim circumstances].) Any error in failing to give an instruction on the multiple victim one strike circumstance here, or failing to specifically instruct the jury that it had to determine the truth of the circumstance beyond a reasonable doubt, was harmless beyond a reasonable doubt.

4. Deadly weapon use (§ 667.61, subd. (e)(4))

A defendant convicted of rape, oral copulation, or sexual penetration is subject to a life sentence (§ 667.61, subds. (a), (b), (c)(1), (5) & (7)) if the defendant “personally used a dangerous or deadly weapon or a firearm in the commission of the present offense in violation of Section 12022, 12022.3, 12022.5, or 12022.8.” (§ 667.61, subd. (e)(4).) The second consolidated information included this allegation in connection with all forcible rape, forcible oral copulation, and sexual penetration counts against defendant as to victims [REDACTED], Jane, and Van. The jury was correctly instructed, pursuant to CALJIC No. 17.19.1 (Personal Use of Firearm or Deadly Weapon—Sex Crimes), that if it found defendant guilty on the relevant counts, it must determine beyond a reasonable doubt whether defendant was armed with and personally used a firearm or a deadly weapon during the commission of the crimes. The jury found true each one strike deadly weapon allegation.

Defendant acknowledges that the jury was correctly instructed on this one strike allegation. He argues that should this court vacate the other one strike enhancements, making it necessary to rely on the deadly weapon use allegation to uphold defendant’s life sentences, it should order that the determinate term imposed for the enhancement on count 15 be stayed because the one strike enhancement would take priority. (§ 667.61, subd. (f).) Because we do not find it necessary to strike the other one strike enhancements, we need not consider defendant’s argument.

B. No Error to Omit Mayberry Instruction.

Defendant next argues that the trial court had a sua sponte duty to instruct the jury, pursuant to People v. Mayberry (1975) 15 Cal.3d 143 (Mayberry), that it should find defendant not guilty if he held a reasonable and good faith but mistaken belief that his victims consented to engage in sexual intercourse.¹³ We disagree.

13 The instruction is set forth in CALJIC No. 10.65, which provides in part that “[t]here is no criminal intent if the defendant had a reasonable and good faith belief that the other person voluntarily consented to engage in [the relevant sexual act]. Therefore, a reasonable and good faith belief that there was voluntary consent is a defense to such a charge[.] [,unless the defendant thereafter became aware or reasonably should have been aware that the other person no longer consented to the sexual activity.]” The jury here was correctly instructed on the definition of the separate defense of actual consent. (CALJIC No. 1.23.1.)

“In the absence of a request for a particular instruction, a trial court’s obligation to instruct on a particular defense arises ‘ “only if [1] it appears that the defendant is relying on such a defense, or [2] if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant’s theory of the case.” ’ [Citations.]” (People v. Dominguez (2006) 39 Cal.4th 1141, 1148 [defendant not entitled to Mayberry instruction].) Here, defendant satisfies neither prong of this test. He testified that [REDACTED], Jane, Van, and Catrina were working as prostitutes when he picked them up, and that they consented to engage in sexual acts with him.¹⁴ The defense did not claim that the victims had refused consent to any of the described sexual acts but that defendant reasonably believed they had consented, defense counsel did not argue this theory to the jury, and defendant did not request a Mayberry instruction or object to its omission. Defendant claims on appeal that it “appears” he relied on the belief-as-to-consent defense at trial, yet he points only to his testimony that the victims actually consented, not that their conduct led him to believe that they had consented when they in fact had not. The fact that the prosecution listed the instruction in the proposed jury instructions filed with the trial court does not establish that defendant relied on the defense, as the prosecutor may have included the request only “ ‘out of an abundance of caution.’ ” (People v. Williams (1992) 4 Cal.4th 354, 363, fn. 8 [prosecutor requested Mayberry instruction but did not object when trial court refused to give it].) In short, defendant did not rely on a Mayberry defense at trial. (People v. Dominguez, supra, 39 Cal.4th at p. 1148.)

14 Because defendant testified that he had never seen Christina before trial, defendant did not rely on a consent defense with respect to her.

As for the second prong of the test, there was no substantial evidence supporting a Mayberry defense. (People v. Dominguez, supra, 39 Cal.4th at p. 1148.) A Mayberry instruction “should not be given absent substantial evidence of equivocal conduct that would have led a defendant to reasonably and in good faith believe consent existed where it did not.” (People v. Williams, supra, 4 Cal.4th at p. 362.) In Williams, defendant testified that the victim initiated sexual contact and willingly had intercourse with him, testimony which, if believed, established actual consent. (Ibid.) The victim testified that defendant raped her after he prevented her from leaving a hotel room, punched her in the eye, pushed her onto the bed, and ordered her to disrobe. (Ibid.) The Williams court concluded that there was no substantial evidence of equivocal conduct warranting a Mayberry instruction, because the “wholly divergent accounts create no middle ground from which [defendant] could argue he reasonably misinterpreted [the victim’s] conduct.” (Williams at p. 362.)

The Mayberry defense has both a subjective and an objective component. (People v. Williams, supra, 4 Cal.4th at p. 360.) In order to satisfy the subjective component, a defendant must present evidence of the victim’s equivocal conduct that showed why he had an honest and good faith, albeit mistaken, belief as to consent. (Id. at pp. 360-361.) In order to satisfy the objective component, the defendant must show that his mistake was reasonable under the circumstances. (Id. at p. 361.) “[R]egardless of how strongly a defendant may subjectively believe a person has consented to sexual intercourse, that belief must be formed under circumstances society will tolerate as reasonable in order for the defendant to have adduced substantial evidence giving rise to a Mayberry instruction.” (Ibid.)

In arguing that a Mayberry instruction was required here, defendant relies on the following passage from Williams: “We note for the guidance of the lower courts that there may be cases, as in Mayberry, in which there is evidence of equivocal conduct that could be reasonably and in good faith relied on to form a mistaken belief of consent, but also evidence that this equivocal conduct occurred only after the defendant’s exercise or threat of ‘force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another.’ (§ 261, subd. (a)(2); [citations].) No doubt it would offend modern sensibilities to allow a defendant to assert a claim of reasonable and good faith but mistaken belief in consent based on the victim’s behavior after the defendant had exercised or threatened ‘force violence, duress, menace or fear of immediate and unlawful bodily injury on the person or another.’ [Citations.] However, a trier of fact is permitted to credit some portions of a witness’s testimony, and not credit others. Since a trial judge cannot predict which evidence the jury will find credible, he or she must give the Mayberry instruction whenever there is substantial evidence of equivocal conduct that could be reasonably and in good faith relied on to form a mistaken belief of consent, despite the alleged temporal context in which that equivocal conduct occurred. The jury should, however, be further instructed, if appropriate, that a reasonable mistake of fact may not be found if the jury finds that such equivocal conduct on the part of the victim was the product of ‘force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another.’ ” (People v. Williams, supra, 4 Cal.4th at p. 364, original italics.)

Defendant apparently contends that, even though his victims testified that he used “force, violence, duress, menace, or fear of immediate and unlawful bodily injury” (§ 261, subd. (a)(2)) against them, it was up to the jury to decide whether defendant nonetheless had a good faith but mistaken belief that they consented to sexual acts with him. A review of the relevant evidence as to each of the victims he admitted picking up does not support this argument:

[REDACTED] Doe: [REDACTED] testified that defendant held her against her will over two days, during which time he bound her hands behind her back with duct tape and did not remove the tape the entire time she was with him, tied her up with rope, threatened her with a knife and later stabbed her, and forced her to have sex with him and to orally copulate him. By contrast, defendant testified that he picked up [REDACTED] as a prostitute, paid her to have sex with him, then “just kind of hung out a little bit and talk[ed]” at the home where he was house sitting, before dropping her off at a Hayward motel without incident. As in Williams, these “wholly divergent accounts create no middle ground from which [defendant] could argue he reasonably misinterpreted [the victim’s] conduct.” (People v. Williams, supra, 4 Cal.4th at p. 362.)

On appeal, defendant points to [REDACTED]’s testimony that at one point during her captivity, she “was trying to maybe be nice” to defendant because she did not want him to stab her or tape her mouth with duct tape again, as he had previously done when she “was crying too much when [she] was talking shit to him.” Assuming that defendant subjectively believed that [REDACTED] consented to be with him at this point, defendant did not meet the objective component of Mayberry, because his belief was not a reasonable one under the circumstances. (People v. Williams, supra, 4 Cal.4th at pp. 360-361.) [REDACTED] testified that at the time she tried to “be nice,” she was naked on the couch with her hands duct taped behind her back. At this point in her ordeal, defendant had already raped her twice and forced her to orally copulate him twice, and she was doing anything she could to get him to release her and to prevent him from hurting her more. There was no substantial evidence justifying a Mayberry instruction based on the evidence presented regarding [REDACTED].

Jane Doe: Jane testified that she accepted a ride with defendant because her bus had not arrived, and that he drove her against her will to an isolated location, ripped off her pants, and forced her at knifepoint to have sex with him. Defendant testified that he picked up Jane as a prostitute and that she agreed to have sex with him, but that he forced her out of his car after she tried to take his wallet. He focuses on appeal on the reasons it was reasonable to conclude, contrary to Jane’s testimony, that she was working as a prostitute on the night in question, but does not point to any equivocal conduct by Jane as to the sexual acts in which they engaged. He also acknowledges that he used force against Jane, but that he did so only after she tried to take his wallet and pulled a knife out of her purse. This use of force, if believed, was not relevant to a determination of whether Jane consented to have sex with defendant. And again, as in Williams, defendant’s and Jane’s “wholly divergent accounts create no middle ground from which [defendant] could argue he reasonably misinterpreted [Jane’s] conduct.” (People v. Williams, supra, 4 Cal.4th at p. 362.)

Van Doe: Van testified that defendant forced her at gunpoint into his car, drove her to another location, tied her wrists together behind her back, and raped her and forced her to orally copulate him. Defendant claimed that he picked up Van as a prostitute, drove her to another location, and paid her to have sex with him, and then drove her back to where he had picked her up without incident. Again, there was no middle ground from which defendant could argue he misinterpreted the victim’s conduct. (People v. Williams, supra, 4 Cal.4th at p. 362.) Defendant suggests on appeal that perhaps the jury believed that defendant picked up Van as a prostitute and did not use a gun or force until after he drove her to a secluded location. Even if this scenario had any evidentiary support in the record (which it does not), it does not amount to substantial evidence of Van’s equivocal conduct regarding the sexual acts in question.

Catrina Doe: The evidence regarding Catrina Doe provides a perhaps somewhat closer question. Catrina acknowledged that she was working as a prostitute on the night in question. She testified that after she asked defendant for payment before they had a sexual encounter as they had agreed, defendant told her, “ ‘Bitch, you’ll do whatever the fuck I say,’ ” helped her take off clothing that she told him she did not usually remove because of a disability, grabbed the back of her head hard and forced her to orally copulate him without using a condom, ejaculated in her mouth (something she would not have allowed a customer to do), then said he had a knife and forced her out of the car. Defendant claimed that Catrina started to orally copulate him as they had agreed, but that he pushed her out of the car after she tried to take his wallet.

Defendant argues on appeal that “[t]he evidence presented did not preclude a belief on appellant’s part that he was only taking what was paid for,” notwithstanding the fact that he testified at trial that he never paid Catrina. Had the jury credited defendant’s testimony regarding Catrina, the evidence would have supported a defense of actual consent to oral copulation. Although Catrina testified that defendant “helped” her out of her clothing, which might support an inference that he reasonably believed he was facilitating the sexual encounter they had previously agreed to, she also testified that this happened right after he threatened her. He also grabbed the back of her head “hard” in order to force her to orally copulate him. A review of all the relevant testimony leads us to conclude that substantial evidence did not support a Mayberry instruction under the circumstances.¹⁵

15 People v. May (1989) 213 Cal.App.3d 118, upon which defendant relies, is distinguishable. In May, the victim testified about equivocal conduct, including the fact that she willingly accompanied defendant to an apartment after “several hours of merriment” and did not verbally object to sex while in a bedroom, and she could not explain why she did not leave when she was able to do so. (Id. at p. 126.)

“The most that could be said for defendant’s testimony [about [REDACTED], Jane, Van, and Catrina], if credited, is that the victim[s] actually consented, not that he mistakenly believed [they] had done so. Accordingly, there being no evidence defendant relied on a mistake-of-fact defense nor any substantial evidence to support such a defense [citation], the trial court did not err by failing to instruct the jury, sua sponte, with the Mayberry mistake-of-fact instruction.” (People v. Dominguez, supra, 39 Cal.4th at p. 1149.)

C. Substantial Evidence Supports Defendants’ Convictions.

Defendant claims that insufficient evidence supports four of his convictions. When reviewing a claim of insufficiency of the evidence, we determine “ ‘whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” (People v. Catlin (2001) 26 Cal.4th 81, 139.) We must view the evidence in the light most favorable to the prosecution and must presume in support of the judgment the existence of every fact that the jury could reasonably deduce from the evidence. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) “Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends.” (People v. Jones (1990) 51 Cal.3d 294, 314.) “Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness’s credibility for that of the fact finder.” (Ibid.) We consider defendant’s arguments in turn.

1. Kidnapping of [REDACTED] Doe

Defendant first challenges the sufficiency of the evidence supporting his conviction for kidnapping [REDACTED] Doe. (§ 207, subd. (a)—count 10.) As the jury was instructed, conviction of kidnapping requires proof that (1) a person was unlawfully moved by use of force or any other means of instilling fear, (2) the movement was without her consent, and (3) the person was moved a substantial distance. (CALJIC No. 9.50; § 207, subd. (a).)

The prosecutor argued that the kidnapping of [REDACTED] occurred when defendant drove her from the home where he was holding her to the road where he dumped her out of the car after stabbing her. [REDACTED] testified that at the end of her second day of being held by defendant, defendant said he “was going to finally take me to where I wanted to go,” and she told him that she wanted to go to the hospital. She testified that “I didn’t know what to think. I just want[ed] to get out of the house. I was just happy that he was going to actually take me out of the house.” At that point, [REDACTED]’s hands (which she could not feel) were still duct taped behind her back, and her arms were turning blue because they were losing circulation. About an hour later, defendant put [REDACTED]’s pants on her, placed duct tape over her eyes, and stuffed tissue in her mouth before duct taping her mouth as well. [REDACTED] testified it felt “[l]ike it was going to suffocate me because I was panicking and all I could breathe out was my nose. I was crying, so I was like gagging, but I was just trying to stay calm.” Defendant walked [REDACTED] to his car, placed her in the passenger seat with the back all the way down, and drove for about 10 or 15 minutes. During the trip, [REDACTED] kept trying to ask through the duct tape over her mouth whether he was going to take her to the hospital, and she was worried that he would not do so. Defendant kept telling her to “shut up, be quiet, shut up,” and that he was “going to take [her].” After defendant stopped the car, he stabbed her and forced her out onto the street. This amounted to overwhelming evidence that defendant was guilty of kidnapping [REDACTED].

Defendant does not challenge the third element of kidnapping, essentially conceding that [REDACTED] was moved a substantial distance. (§ 207, subd. (a).) He instead relies on a case that found insufficient proof that the asportation of the victim was accomplished by use of force or fear. (People v. Green (1980) 27 Cal.3d 1, overruled on other grounds in People v. Martinez (1999) 20 Cal.4th 225, 239.) In Green, defendant instructed an acquaintance to call his (defendant’s) wife and falsely tell her that defendant needed to retrieve his belongings from the home of his wife’s sister, and that the acquaintance would give the wife a ride to the sister’s house. (Green at pp. 13-14.) The wife agreed, and she willingly entered the vehicle of defendant’s acquaintance. (Id. at p. 14.) The acquaintance did not take the wife to her sister’s house, and instead took her to another home, where defendant entered the car and took her to another location and murdered her. (Id. at pp. 62-63.) The Supreme Court held that the acquaintance’s initial asportation of the wife to where defendant was waiting did not constitute kidnapping, because “asportation by fraud alone,” in the absence of any use of force or fear, did not constitute a general kidnapping offense in California. (Id. at pp. 64-65.)

Defendant claims that this case is analogous to Green, because defendant promised to take [REDACTED] to the hospital but failed to do so, which amounted to “a false promise” but not kidnapping. Unlike in Green, however, the jury here was not instructed that it could find defendant guilty of kidnapping if it was shown that [REDACTED]’s consent to get in defendant’s car was obtained by fraud. (People v. Green, supra, 27 Cal.3d at pp. 63-64.) Also unlike in Green, the evidence overwhelmingly established that [REDACTED]’s entry into defendant’s car was through the use of force or fear. That defendant also lied to his victim about where he was taking her when he placed a bound, gagged, blindfolded, and panicking [REDACTED] into his car does not negate a jury finding that defendant kidnapped [REDACTED]. “Of course, it goes without saying that asportation may be accomplished by means that are both fraudulent and involve force or fear.” (People v. Majors (2004) 33 Cal.4th 321, 328, italics added [evidence victim entered vehicle under false threat of arrest sufficient to satisfy force or fear elements of kidnapping].)

To the extent that defendant argues that there was insufficient evidence that he took [REDACTED] without her consent, we reject his argument. The prosecutor focused during closing argument on defendant’s false promise to [REDACTED] that he would take her to the hospital: “If you go back to [REDACTED]’s testimony, she was so happy to leave that house. He told her he was taking her to Kaiser. That’s where she wanted to go, to the hospital. So she actually wanted to go in that car and wanted to go because she thought he was taking her to Kaiser. That’s not consent. All she’s consenting to is to go to Kaiser. She’s not consenting to be driven down to the end of the dead[-]end street and stabbed and moved out of the car. So for consent to work, the victim has to know what she is consenting to. In this case, she consented to was [sic] being driven to Kaiser, not what the defendant did. So under the law, that isn’t consent.” We disagree with defendant’s contention that the prosecutor’s argument focused only on a theory of kidnapping based on a “false promise,” because the prosecutor elsewhere emphasized that defendant forcibly moved [REDACTED]. “The jury was entitled to conclude that this was not a case of inducement by fraud or deceit, but one wherein the victim was forced to consent to defendant’s demands.” (People v. La Salle (1980) 103 Cal.App.3d 139, 146, original italics [woman entered defendant’s car because he threatened to drive off with victim’s daughter if she did not comply], disapproved on another ground in People v. Kimble (1988) 44 Cal.3d 480, 496, fn. 12.) Substantial evidence supports defendant’s conviction for kidnapping [REDACTED].

2. Fifth rape of [REDACTED] Doe

Defendant also was convicted of five counts of forcible rape against [REDACTED] Doe. Defendant and respondent agree that [REDACTED] described four separate acts of forcible rape, but they disagree over whether the evidence supported a fifth conviction for this crime.¹⁶

16 As the jury was instructed, conviction of forcible rape requires proof that a defendant engaged in an act of sexual intercourse with another person against the person’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury to that person. (§ 261, subd. (a)(2); CALJIC No. 10.00.)

On direct examination, [REDACTED] testified as follows:

“Q. During those couple of days that you were with him, how many times would you say that he raped you?

“A. I don’t know. At least ten times.

“Q. At least ten times?

“A. Yes.”

Defendant moved below pursuant to section 1118 to dismiss one of the forcible rape counts as to [REDACTED] (count 6), arguing that [REDACTED] had described only four separate acts. The trial court denied the motion.¹⁷

17 The prosecutor stated during closing argument: “[T]he way the law works is all you have to determine as a jury is that you all agree that he raped her five times during the [relevant time period]. A victim doesn’t have to independently describe each and every rape. And the reason the law is that way is we don’t want to be in a situation where the more somebody rapes somebody the more difficult the law becomes. And so to be careful that clearly he raped her five times, we only charge five counts because it happened at least ten times.”

Defendant renews his argument on appeal that insufficient evidence supports his conviction for the fifth rape of [REDACTED]. Our consideration of this issue begins and ends with the applicable standard of review: “ ‘ “Although an appellate court will not uphold a judgment or verdict based upon evidence inherently improbable, testimony which merely discloses unusual circumstances does not come within that category. [Citation.] To warrant the rejection of the statements given by a witness who has been believed by a trial court, there must exist either a physical impossibility that they are true, or their falsity must be apparent without resorting to inferences or deductions. [Citations.] Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.]” ’ ” (Mayberry, supra, 15 Cal.3d at p. 150; see also People v. Jones, supra, 51 Cal.3d at pp. 315-316 [generic testimony in child molestation cases must describe with sufficient specificity kind of acts committed, number of acts, and general time period]; People v. Thornton (1974) 11 Cal.3d 738, 754-755 [testimony that victim was raped 10 times over period of three to four hours not inherently improbable], overruled on another ground in People v. Flannel (1979) 25 Cal.3d 668, 684, fn. 12.)

The jury was instructed, pursuant to CALJIC No. 17.02, that it must decide each count separately. In convicting defendant of five counts of forcible rape, the jury accepted [REDACTED]’s testimony that she was raped “[a]t least ten times,” which was not inherently improbable or clearly false. (Mayberry, supra, 15 Cal.3d at p. 150.) [REDACTED] testified at trial more than three years after defendant’s attack on her, yet she was able to describe in detail the other crimes committed against her, including four forcible rapes. We are not compelled to reverse because she did not describe in similar detail a fifth forcible rape.¹⁸ Substantial evidence supports all five of defendant’s convictions for forcible rape of [REDACTED].

18 People v. Raley (1992) 2 Cal.4th 870, upon which defendant relies, is distinguishable, because in that case there was “no evidence of the particular nature of the sexual assault” on a deceased victim, only evidence that she said she was forced to “ ‘fool around’ ” with the defendant. (Id. at p. 890.) The term “ ‘fooling around’ ” apparently meant several things to defendant, and the appellate court concluded that it would be speculative to conclude that the victim was referring to oral copulation. (Id. at pp. 890-891.) Here, by contrast, [REDACTED] testified at length about each of the elements of forcible rape.

3. Third oral copulation of Van Doe

In connection with the attack on Van Doe, defendant was convicted of three counts of forcible oral copulation. Defendant and respondent agree that Van described two acts of forcible oral copulation: one incident when defendant forced her to orally copulate him, and one incident when he forcibly orally copulated her.¹⁹ However, they disagree over whether sufficient evidence supports a third conviction for forcible copulation.

19 As the jury was instructed, conviction of forcible oral copulation requires proof of “the act of copulating the mouth of one person with the sexual organ or anus of another person” against the will of the victim by means of force, violence, duress, menace or fear of immediate and unlawful bodily injury on the victim. (§ 288a, subd. (c)(2); CALJIC No. 10.10.)

On direct examination, Van testified as follows:

“Q. How many times did he have you perform oral sex on him that night?

“A. I think twice.

“Q. When you say you think twice, think back. Did he make you perform oral sex on him two times?

“A. Yeah.

“Q. And did you tell the police that night that he had made you perform oral sex on him two times?

“A. Yes.”²⁰

20 Van’s statement to police apparently was not offered into evidence.

Defendant argues on appeal that this testimony amounted only to speculation, which was insufficient to support his third conviction for oral copulation in connection with the attack on Van. We disagree. Van testified about three years after defendant’s attack, and described the act of oral copulation such that there was no question she was aware of what constituted the unlawful act. The jury necessarily accepted Van’s statement that defendant forced her to orally copulate him twice. Because the statement was not inherently improbable or demonstrably false, we cannot conclude that it amounted to insufficient evidence to uphold the jury’s verdict. (Mayberry, supra, 15 Cal.3d at p. 150; People v. Thornton, supra, 11 Cal.3d at pp. 754-755.)

4. Robbery of Van’s underwear

Defendant also was convicted of one count of second degree robbery (§ 211—count 21) in connection with the attack on Van, based on the taking of her underwear.²¹ As the jury was instructed, conviction of robbery requires proof that (1) a person possessed property, (2) the property was taken from the person or her immediate presence, (3) the property was taken against the person’s will, (4) the taking was accomplished by force or fear, and (5) the defendant had the specific intent to permanently deprive the person of the property. (CALJIC No. 9.40; § 211; People v. Green, supra, 27 Cal.3d at p. 50.) On appeal, defendant focuses only on the fourth element, arguing that there was insufficient evidence that he accomplished the taking of Van’s underwear by means of force or fear. (People v. Lindberg (2008) 45 Cal.4th 1, 28 [robbery conviction requires proof of defendant’s intent to steal before or during act of force against victim].) We disagree.

21 Although Van testified that her cell phone also was left in defendant’s car after he raped her, and neither the information nor the jury instructions specified what property was the subject of the robbery count, it is clear from the prosecutor’s closing argument to the jury that the prosecution was urging a robbery conviction based on the taking of Van’s underwear.

Van testified that after defendant forced her at gunpoint into his car, he first drove her to one location and tied her wrists behind her back, then drove her (with a jacket over her head) to another location, parking close to a fence so that Van could not escape. Defendant then removed Van’s jeans and underwear, and smelled her underwear. After defendant sexually assaulted Van, he put her jeans back on her but did not return her underwear. He also threatened to kill Van and her family if she told police what had happened. The underwear was later found in defendant’s bedroom in a plastic bag at the headboard of his bed. We agree with respondent that whether the taking of Van’s underwear occurred when defendant did not put them back on Van after the sexual assault or, as defendant claims, when he drove away with the underwear, the taking was accomplished by force or fear. Van’s hands were bound at both points, and defendant also threatened to kill her before he let her go. People v. Welsh (1936) 7 Cal.2d 209, 212, upon which defendant relies, is distinguishable because it involved a case where no force or fear was used in taking cigarettes from a woman’s purse.²² Here, by contrast, although the force or fear used against Van also was preparatory to the sexual assault against Van, the jury was free to infer that the force also was used to accomplish robbery. (People v. Holt (1997) 15 Cal.4th 619, 671 [jury may infer force was used to accomplish both sexual assault and robbery]; People v. Shadden (2001) 93 Cal.App.4th 164, 170 [same].) Substantial evidence supports defendant’s robbery conviction.

22 Rodriguez v. Superior Court (1984) 159 Cal.App.3d 821, upon which defendant also relies, is likewise distinguishable. In Rodriguez, the court held there was insufficient evidence to support a charge of robbery where a defendant raped a woman in his car and then drove away with her purse inside the car, where there was no evidence that defendant was even aware of the purse’s presence in the vehicle. (Id. at pp. 824, 827.) Here, by contrast, defendant smelled Van’s underwear, showing that he was well aware of the garment.

D. No Obligation to Instruct on Lesser Included Offense of Theft.

We next consider defendant’s related argument, raised for the first time on appeal, that the trial court prejudicially erred by failing to instruct the jury that it could find defendant guilty of the lesser included offense of theft in connection with the taking of Van’s underwear.²³ We reject defendant’s argument.

23 Neither defendant nor the prosecutor requested a jury instruction on theft.

“Theft is a necessarily included offense of robbery. [Citation.] ‘It is well settled that the trial court is obligated to instruct on necessarily included offenses—even without a request—when the evidence raises a question as to whether all of the elements of the charged offense are present and there is evidence that would justify a conviction of such a lesser offense.’ [Citation.]” (People v. Ledesma (2006) 39 Cal.4th 641, 715.) “If intent to steal arose only after the victim was assaulted, the robbery element of stealing by force or fear is absent. [Citations.]” (People v. Bradford (1997) 14 Cal.4th 1005, 1055-1056.) “However, a trial judge need not instruct the jury as to all lesser included offenses, just those that find substantial support in the evidence. [Citation.] ‘ “Substantial evidence” in this context is “ ‘ ‘evidence from which a jury composed of reasonable [persons] could... conclude[]’ ” that the lesser offense, but not the greater, was committed.’ [Citation.]” (People v. Haley (2004) 34 Cal.4th 283, 312 [no error to refuse involuntary manslaughter instruction as lesser included offense of first degree felony murder].)

Here, there is no substantial evidence that the lesser offense of theft, but not robbery, was committed. Defendant argues that “[t]here was substantial evidence that the actual conversion of personal property occurred separate from the force or fear applied during the charged sex offenses.” As we explained above (ante, § II.C.4.), however, there was substantial evidence that defendant used force or fear both when he initially removed Van’s underwear as well as when he drove away with the underwear still in his car. Defendant also contends the evidence did “not necessitate [the conclusion] that appellant harbored an intent to steal during the application of force or fear in removing the underwear from Van Doe or in driving away with the underwear still in his car.” The jury was correctly instructed, pursuant to CALJIC No. 3.31, that “there must exist a union or joint operation of act or conduct and a certain specific intent in the mind of the perpetrator” to find him guilty of robbery. The jury was entitled to infer that because defendant smelled Van’s underwear and then kept the garment near his bed after the attack, that he intended to steal the underwear when he forcibly removed them from Van or when he threatened to kill her before letting her go.

Finally, defendant argues that his testimony “belied any intent to steal Van Doe’s underwear.” Defendant testified that the underwear found in his room belonged to someone other than Van, not that he lacked intent to take Van’s property. His testimony did not amount to substantial evidence supporting a jury instruction regarding theft.

Moreover, we agree with respondent that even assuming the trial court erred, the error was harmless. “An erroneous failure to instruct on a lesser included offense requires reversal of a conviction if, taking into account the entire record, it appears ‘ “reasonably probable” ’ the defendant would have obtained a more favorable outcome had the error not occurred. [Citations.]” (People v. Ledesma, supra, 39 Cal.4th at p. 716 [reversing robbery conviction where there was “strong, explicit evidence” that motive for murder was to eliminate victim as witness to previous crime, not robbery]; People v. Breverman (1998) 19 Cal.4th 142, 178; People v. Watson (1956) 46 Cal.2d 818, 836.) “In making that evaluation, an appellate court may consider, among other things, whether the evidence supporting the existing judgment is so relatively strong, and the evidence supporting a different outcome is so comparatively weak, that there is no reasonable probability the error of which the defendant complains affected the result.” (Breverman at p. 177, original italics.) There was overwhelming evidence that defendant took Van’s underwear using force or fear, and the evidence that defendant committed only the lesser included offense of theft was comparatively weak. Therefore, any error in failing to instruct on the elements of theft was harmless.

III. Disposition

The judgment is affirmed.

We concur: Ruvolo, P. J., Rivera, J.