Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Santa Clara County Super. Ct. No. CC514949
Bamattre-Manoukian, Acting P.J.
Defendant Rodney Theodore Kralovetz was convicted after jury trial of two counts of forcible oral copulation (Pen. Code, § 288a, subd. (c)) and one count of lewd acts on a child aged 14 or 15 (§ 288, subd. (c)). The jury further found true special allegations that defendant tied or bound the victim of the oral copulation offenses. The trial court sentenced defendant to two consecutive terms of 15 years to life. (§§ 667.61, subd. (b) & (e)(6), 667.6, subd. (d).)
All further statutory references are to the Penal Code unless otherwise specified.
Although the information and jury verdict forms listed these offenses as a violation of section 288, subdivision (c)(1), when the offenses occurred in 1997, the offenses constituted a violation of section 288, subdivision (c).
On appeal, defendant contends that (1) there is insufficient evidence of force, violence, duress, menace or fear to support the forcible oral copulation convictions; (2) the trial court erred in refusing to instruct the jury on lesser offenses of simple battery and non-forcible oral copulation; (3) the court erred in allowing the information to be amended to add the special allegations of tying and binding after plea negotiations failed; (4) there is insufficient evidence to support the special allegation of tying and binding; (5) the special allegation verdict forms were defective; (6) CALCRIM No. 1191 improperly allowed the jury to apply a preponderance of the evidence burden of proof to infer criminal propensity; and (7) the abstract of judgment should be modified to correct clerical error. We will order the abstract of judgment modified to reflect the correct dates of defendant’s offenses. As we find no reversible error, however, we will affirm the judgment as so modified.
BACKGROUND
Defendant was charged by amended information with two counts of forcible oral copulation (§ 288a, subd. (c); counts 1 & 2), and one count of lewd conduct on a child aged 14 or 15 (§ 288, subd. (c); count 3). The alleged victim of all the offenses was then 14-year-old J.B., and the information further alleged that defendant “engaged in the tying or binding of the victim or another person in the commission of” the offenses in counts 1 and 2 “within the meaning of” section 667.61, subdivisions (b) and (e).
See footnote 2, ante.
The Prosecution’s Case
The Charged Offenses
J.B. testified that his mother passed away in 1990, when he was seven years old, so he and his sister went to live with his grandmother. They lived near Camden Avenue and Blossom Hill Road in San Jose. J.B. started using alcohol, marijuana, and methamphetamine when he was about 13 or 14 years old. At the time, defendant was “just a friend from the neighborhood.” J.B. first met defendant at a creek close to J.B.’s house where J.B. and his friends gathered to drink or smoke marijuana. Thereafter, J.B. saw defendant several times a week on a regular basis. Defendant provided methamphetamine to J.B. and his friends and sometimes provided marijuana and alcohol.
In the fall of 1997, when J.B. was 14, he ran away from home because his grandmother was going to have him tested for drugs and he knew that he would not test clean. At the time, defendant was living in his van, which he parked on the street in the neighborhood or behind a Cask and Flask Liquor Store that was a couple of miles away. The van “was like a small RV,” which contained a bed. It had a driver’s side door, a passenger door and a single door in the back, but its windows were all blacked out. J.B. packed some clothes in a backpack, paged defendant, and then met him by the creek. After J.B. and defendant talked there, J.B. left with defendant. The first thing they did was “get high.” J.B. stayed in the van with defendant for a few weeks. J.B. could not say how long he stayed with defendant because J.B. used drugs the entire duration of his stay.
A missing person’s police report indicated that J.B. left home on November 6, 1997, and returned home on December 22, 1997.
For at least the first week of J.B.’s stay, nothing unusual happened. But then, while J.B. was on the bed in the van in the process of changing his clothes, and while he was naked except for a T-shirt, defendant quickly put shackles around J.B.’s ankles. J.B. was surprised. He wrapped a towel around himself and tried to get the shackles off, but he could not get them off. Defendant tried to make light of the situation as if it was a joke, but J.B. did not consider it a joke. J.B. asked defendant to take the shackles off him, but defendant said that he could not find the key. J.B. did not attempt to leave the van because he was afraid.
J.B. continued to use methamphetamine with defendant because he wanted to stay awake; he did not want to fall asleep “in that position.” Although J.B. was able to stay awake for a number of days, at some point he did fall asleep. He awoke to find defendant on top of him and defendant’s mouth on his penis. J.B. told defendant to stop and “told him to get off me.” “[H]e got off me relatively quick,” and “[s]aid that he couldn’t help himself.” Defendant told J.B. that he loved J.B. and that he was sorry. J.B. did not try to leave because he was still afraid, still in the leg shackles, and still had no pants on. He was afraid of “[t]he whole situation that [he] was in, being locked up in the back of [defendant’s] van.” He was also ashamed and embarrassed, and he did not feel free to leave.
After a number of days, J.B. fell asleep again. He awoke to find defendant on top of him again and defendant’s mouth on his penis “the same way.” J.B. told defendant to stop and to get off him, “pushed him away, and he got off.” Defendant was apologetic as before, and again told J.B. that he loved him. J.B. did not run or call for help because he was afraid. He continued to use drugs in an attempt to stay awake.
However, after a couple more days, J.B. fell asleep again. When he awoke, he was lying face down, defendant was lying was on top of him with no clothes on, and defendant’s erect penis was between his buttocks. J.B. told defendant to stop and to get off of him. J.B. “fought him off” and “had to push him off.” Defendant again told J.B. that he could not help himself, that he loved J.B., and that he was sorry. J.B. later awoke two more times to find defendant on top of him in the same manner.
J.B. does not know how much time passed between each of these incidents. During the entire time he was shackled, he did not leave the van even though it was not locked because he was afraid and ashamed. Defendant left the van to get them food. J.B. kept asking defendant to look for the key to the shackles and defendant kept saying that he could not find the key. Defendant finally bought a set of thumb cuffs which had a key that worked on the shackles. J.B. thought that the shackles had been on him for “maybe two weeks.” During that time, J.B. could not and did not use a regular bathroom; when the shackles were not on him he was able to use bathrooms in parks and service stations. After defendant took the shackles off J.B., J.B. stayed with defendant for a period of time, approximately two weeks, during which time nothing of a sexual nature happened.
With money defendant gave him, J.B. eventually used a pay phone to call a friend. Defendant drove J.B. to a pre-arranged location where Kim, a woman who worked for J.B.’s grandmother, met him. After J.B. returned to his grandmother’s home, he did not tell anybody what had happened to him. He had not tried to break out of the shackles, so he did not have any injuries as a result of the shackles. He was ashamed and humiliated about everything that had happened. He first disclosed what had happened a few years before defendant’s trial. He told his wife and his wife encouraged him to contact the police.
San Jose Police Officer Thomas Navin testified that he made a traffic stop of defendant’s van on or about the night of November 20, 1999. Inside the van with defendant were seven people between the ages of 14 and 19. The officer searched the van and found lockable leg shackles and thumb cuffs.
San Jose Police Officer Robert Labarbera testified that he interviewed defendant, who was born in March 1960, on November 15, 2005. Defendant said that he always tried to help as many youths as he could, especially those with drug abuse problems. He said that he had attempted to help over 500 children and that he believed that approximately 400 of them are no longer using drugs thanks to him. Defendant admitted that he owned leg shackles in the mid to late 1990s.
The Uncharged Offenses
J.S. testified that he met defendant around the time he started high school, which was in 1989. J.S. was 13 or 14 at that time and his father had just passed away. A childhood friend introduced him to defendant, and J.S. occasionally obtained marijuana and methamphetamine from defendant and used the drugs with him.
Defendant usually parked his van in front of his mother’s house near Camden and Ross Avenues. J.S. spent one night in the van with defendant. During that night, after they had smoked some marijuana and while J.S. was going to sleep, defendant reached over J.S.’s waist and put his hand up J.S.’s shirt and then down his pants. J.S. was shocked and afraid, and he immediately turned over on his stomach. Defendant took his hand away and did not say anything. J.S. got up and left early in the morning.
J.K. was 18 years old in 1999 when he was convicted of possession of drugs for sale and furnishing drugs to a minor. J.K. met defendant in 1993 or 1994 at a creek in the area of Blossom Hill Road and Camden Avenue, where J.K. gathered with his friends. J.K. and his friends bought drugs from defendant, and they went with defendant to his van, used methamphetamine, and “h[u]ng out” with him. This continued, off and on, for a couple of years.
The jury was informed that J.K. was in custody on new charges at the time he testified, but they were not told what the new charges were.
Defendant lived in his van, which he would park in front of various friends’ houses, and J.K. spent the night in defendant’s van on numerous occasions because he was a runaway. Once, when J.K. spent the night in the van, he awoke to find his pants unbuttoned and defendant stroking his penis. J.K. pushed defendant away and told him to stop. Defendant did not apologize. J.K. got up, zipped up his pants, and left the van. Defendant followed J.K, so he started running, trying to get away from defendant. Defendant caught J.K. and hit him across the back of the head. Defendant said, “ ‘Why did you leave? Why did you run? I love you. Come back. Don’t leave me.’ ” J.K. ran to a store and called his mother. He did not tell his mother what had happened because he was afraid that she would not believe him. Somebody had done something similar to him on a prior occasion, and his mother had not believed him when he told her about it. His mother called the police, but he did not tell the police what had happened either. He first talked to the police about what had happened about one year before defendant’s trial.
J.H. started high school in San Jose in 1994. He first met defendant some time in late 1994, when J.H. was at a liquor store with a friend and the friend called defendant. Defendant came, picked them up in his van, and drove them around for a while. A month or so later, J.H. started “hanging out” with defendant fairly regularly. At first they drank and smoked marijuana; later they used methamphetamine and other drugs.
J.H. stayed overnight in the van with defendant on several occasions. At first, defendant would roll over and cuddle up to him. J.H. just thought defendant was asleep and dreaming. Then one night J.H. passed out after being up for several days using methamphetamine. He awoke to find that defendant had put his legs over J.H.’s legs, pulled down J.H.’s pants, and was fondling J.H.’s penis. J.H. pushed defendant away and fell back asleep. He did not tell anybody about the incident when he awoke again because he was embarrassed. Defendant did the same thing the next night. He said, “ ‘You’re the only one that I’ve ever done this to. I love you. You’re special.’ ” J.H. did not tell anybody about this incident either, for the same reason. Several additional incidents occurred within the next week or so. However, one incident happened about a month or two later.
J.H. had stopped “hanging out” with defendant for a while, but on this occasion he took LSD with some friends and decided to smoke marijuana in defendant’s van with him. J.H. fell asleep after doing so, and awoke to find defendant performing oral sex on him. J.H. “pretty much froze[] in fear”; he could not leave because he was intoxicated and had nowhere to go. Defendant continued for 10 or 15 minutes, and then stopped and said, “ ‘You’re too scared to even get off.’ ” J.H. went back to sleep.
K.L., who was born in 1983, testified that he met defendant at the McDonald’s at Camden and Leigh Avenue in late 1997. Defendant asked K.L. if he smoked marijuana. When K.L. answered affirmatively, defendant told him that if he ever wanted to smoke marijuana, he could meet defendant at his van behind a nearby liquor store. K.L. took defendant up on his offer that same evening. J.B., who K.L. knew from school, was in defendant’s van at the time. Thereafter, K.L. frequently spent time driving around and smoking marijuana with defendant, but K.L. never used methamphetamine. Other people from K.L.’s school, besides J.B., “hung out with” defendant as well. Defendant went to jail in June 1998, and K.L. spent most of his time with defendant after defendant was released from custody some time in the summer of 1998.
K.L. stayed overnight in defendant’s van five or six times, the last time on November 13, 1999, when the van was parked outside a friend’s house. K.L. slept fully dressed in the same bed as defendant, and awoke to find his pants unzipped and defendant’s hand around his penis. K.L. was lying on his side with his back to defendant’s stomach. K.L. pulled defendant’s hand away, zipped up his pants, and tried to get up, but defendant put his hand around K.L.’s stomach and pulled K.L. closer to him. K.L. was afraid because defendant would not let him leave. K.L. tried to pull himself away from defendant a few times while defendant pretended to be asleep. After about five minutes, K.L. got defendant’s hand free, left the van, and went inside his friend’s house. He did not tell his friend what had happened because he was afraid. The next day, K.L. went to work with defendant.
San Jose Police Officer Richard Lira testified that on March 26, 1998, he conducted a probation search of defendant, after which he took defendant into custody. Defendant was under the influence of methamphetamine and had methamphetamine on his person. The parties stipulated that on June 18, 1998, defendant pleaded guilty to possession of methamphetamine and being under the influence of a controlled substance as a result of his arrest on March 26, 1998.
Officer Labarbera testified that when he first mentioned J.B.’s name to defendant during the November 2005 interview, defendant recognized the name but responded to questions as though he was talking about a different person. The officer then clarified that defendant was talking about J.K. rather than J.B. Defendant talked about K.L., and said that K.L. had falsely accused him because defendant had embarrassed K.L. in front of some friends. Defendant also talked about J.S., but without mentioning his last name.
J.B. and J.K. have the same first name.
The Defense Case
Santa Clara County Sheriff’s Deputy Keith Randall testified that, for officer safety reasons, he places leg shackles on a prisoner from behind the prisoner. Otherwise, the prisoner could hit or kick him, causing injury. He also double locks the shackles. Unless he does so, the shackles tighten every time they are hit against something. If the shackles tighten, they can cause redness and swelling. Even if the shackles are double locked, they can cause redness if they are kept on for eight hours.
Thomas Zimmerman testified that he has known defendant since they both were in junior high school. In 1997, defendant was working as a driver for a transportation company when he told Zimmerman about an opening with the company. Zimmerman began working for the company in late 1997 or early 1998. At the time, defendant had a small camper-style van that he often parked in front of his mother’s house, or at the house of their friend Chris Owen, who lived around Camden and Leigh Avenues behind a Cask and Flask liquor store. During the 10 to 15 times Zimmerman saw defendant’s van in late 1997 and early 1998, Zimmerman never saw any juveniles in or around the van and never saw defendant using or dealing drugs.
Cathy Silas testified that she has known Zimmerman since elementary school and defendant since high school. She met Owen in 1977. In the fall of 1997, defendant lived in a small van which he parked by Owen’s property. Silas never saw children around the van and never heard any children inside the van.
Kimberly Bangerter testified that from 1995 to 2000, she worked for J.B.’s grandmother. She knew J.B. fairly well. J.B. ran away from home in the fall of 1997. During that time, he called his grandmother’s office a couple of times and Bangerter begged J.B. to come home. After one of J.B.’s calls, Bangerter arranged to pick J.B. up at a shopping center. She and J.B.’s grandmother drove to the center in separate vehicles. Defendant was with J.B. when Bangerter arrived, which was the first time Bangerter met defendant. J.B. looked tired, but he did not say anything about being held captive. Defendant left, J.B.’s grandmother arrived, and J.B. went home with his grandmother.
Defendant testified in his own behalf that he did not put shackles on J.B., did not hold J.B. captive in his van, did not orally copulate J.B., and did not rub his erect penis on J.B.’s back side. Although defendant owned leg shackles in 1999, he did not have them in 1997.
In late 1996 or early 1997, defendant bought a van that held a refrigerator, stove, sink, couch and bed. He lived in the van in the fall of 1997, and parked it at Owen’s house. Although he had a history of drug abuse, starting when he was 16 years old, he stopped using drugs on August 19, 1997.
Defendant met J.B. through J.B.’s sister. J.B. ran away from home in November 1997, and spent the first night in defendant’s van. Defendant dropped J.B. off at a bowling alley the next morning. Thereafter, defendant communicated with J.B., both on the telephone and in person, but J.B. did not spend another night in defendant’s van. Defendant did not provide or use drugs with J.B. He tried to get J.B. to quit using methamphetamine and marijuana and to go home. Finally, defendant got J.B. to call Bangerter. Defendant and J.B. first met Bangerter at a restaurant. Then defendant took J.B. to buy a Christmas present for his grandmother before meeting Bangerter again at J.B.’s grandmother’s house. Defendant left after J.B. went inside the house. Defendant saw J.B. numerous times after that.
Defendant used drugs with J.S. and other members of J.S.’s family in 1988 and 1989. One night, defendant and J.S. were in defendant’s van after getting high on marijuana. Defendant fell asleep and awoke when J.S. pushed defendant’s hand off of his waist. J.S. said that defendant had reached over and hugged him. Defendant apologized and J.S. never brought it up again. Defendant denied having had his hand around J.S. and denied touching J.S.’s penis.
Defendant also used drugs with J.K. J.K. lived with defendant in his van for about three months because J.K. was a runaway, and defendant bought him food and clothing. One morning defendant awoke to find J.K. kissing him. Defendant pushed J.K. away and explained that he did not want anything in return for helping J.K. J.K. ran from the van 10 to 15 minutes later. Defendant ran after J.K. because defendant was afraid that J.K. was going to do something stupid. He did not hit J.K. He told J.K. that he needed to go home. J.K. agreed, so they called J.K.’s mother, she called the police, defendant talked with J.K.’s mother and the police when they arrived, and J.K. left with his mother.
Defendant knows J.H. through defendant’s sister, and he used drugs with J.H., but J.H. never lived or stayed the night with defendant in his van, and defendant never touched J.H. inappropriately.
Defendant met K.L. at a McDonald’s one night, and thereafter used drugs with him. To his knowledge, he never touched K.L. inappropriately. Defendant was asleep the entire time he was in his van with K.L. and could not say what happened while he was asleep.
Defendant acknowledged that he previously pleaded no contest to allegations that between October 1, 1999, and November 13, 1999, he kissed a 16-year-old boy on the lips; that he fondled K.L. on November 13, 1999; and that on five occasions in October and November 1999 he provided narcotics to a minor. Defendant also acknowledged that he was found under the influence and in possession of methamphetamine on March 26, 1998, but he testified that it was because J.S.’s girlfriend put methamphetamine into his soft drink without his knowledge.
The victim of these allegations did not testify at defendant’s trial.
Verdicts and Sentencing
On April 18, 2007, the jury found defendant guilty of two counts of forcible oral copulation (§ 288a, subd. (c); counts 1 & 2), and found true the special allegations as to both counts that defendant “tied or bound [J.B.], and that [J.B.] was tied or bound when” the offenses were committed. The jury further found defendant guilty of lewd acts on a child aged 14 or 15 (§ 288, subd. (c); count 3). On June 29, 2007, the court sentenced defendant to consecutive terms of 15 years to life on counts 1 and 2 pursuant to section 667.6, subdivision (d), and California Rules of Court, rules 4.425(a)(2) and (a)(3). The court imposed a concurrent term of two years on count 3.
DISCUSSION
Sufficiency of the Evidence of Forcible Oral Copulation
Defendant contends that the convictions for forcible oral copulation should be vacated and reduced to lesser offenses because there is not substantial evidence to support a finding that the offenses were committed by force, violence, duress, menace or fear. Defendant argues that J.B. “testified unequivocally that he was asleep when [defendant] initiated the oral copulations and that [defendant] immediately stopped when [J.B.] woke up and asked him to do so. [J.B.] also began living with [defendant] of his own accord, could have left the van when he was shackled but made no effort to do so, and continued living with [defendant] after the shackles were removed.” The Attorney General argues that the evidence established that defendant twice orally copulated J.B. through force, duress, or fear.
“In reviewing a criminal conviction challenged as lacking evidentiary support, ‘ “the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” ’ [Citation.] The same standard of review applies to cases in which the prosecution relies mainly on circumstantial evidence [citation], and to special circumstance allegations [citation]. An appellate court must accept logical inferences that the jury might have drawn from the circumstantial evidence. [Citation.]” (People v. Maury (2003) 30 Cal.4th 342, 396.)
The trial court instructed the jury pursuant to CALCRIM No. 1015 that “defendant is charged in counts 1 and 2 with oral copulation by force. To prove that the defendant is guilty of this crime, the People must prove that 1, the defendant committed an act of oral copulation with someone else; 2, the other person did not consent to the act; and 3, the defendant accomplished the act by force, violence, duress, menace or fear of immediate and unlawful bodily injury to anyone. [¶] ‘Oral copulation’ is any contact, no matter how slight, between the mouth of one person and the sexual organ or anus of another person. Penetration is not required. [¶] An act is accomplished by force if a person uses enough physical force to overcome the other person’s will. [¶] ‘Duress’ means a direct or implied threat of force, violence, danger, hardship or retribution that causes a reasonable person to do or submit to something that he or she would not otherwise do or submit to. [¶] When deciding whether the act was accomplished by duress, consider all the circumstances including the age of the other person and his relationship to the defendant. [¶] ‘Retribution’ is a form of payback or revenge. [¶] ‘Menace’ means a threat, statement or act showing an intent to injure someone. [¶] An act is accomplished by fear if a person is actually and reasonably afraid or he is actually but unreasonably afraid and the defendant knows of his fear and takes advantage of it.”
The prosecutor argued to the jury that defendant’s acts of oral copulation on J.B. were accomplished by the use of force, duress, and/or fear. The alleged force was “the simple act of putting on those shackles, that is a physical act that overcomes [J.B.’s] will.” The alleged duress was the shackles together with the difference in age and size of defendant and J.B., and their relationship. The alleged fear was J.B.’s testimony that he was afraid.
“In determining the existence of duress, force or fear, factors such as the position of dominance and authority of the defendant and his continuous exploitations of the victim may be considered. [Citations.]” (People v. Cardenas (1994) 21 Cal.App.4th 927, 940.) “Physical control can create ‘duress’ without constituting ‘force.’ ” (People v. Schulz (1992) 2 Cal.App.4th 999, 1005 (Schulz); People v. Espinoza (2002) 95 Cal.App.4th 1287, 1319 (Espinoza).) “[D]uress involves psychological coercion. [Citation.] Duress can arise from various circumstances, including the relationship between the defendant and the victim and their relative ages and sizes.” (Schulz, supra, at p. 1005; Espinoza, supra, at pp. 1319-1320.) However, “ ‘[p]sychological coercion’ without more does not establish duress. At a minimum there must be an implied threat of ‘force, violence, danger, hardship or retribution.’ ” (People v. Hecker (1990) 219 Cal.App.3d 1238, 1250-1251, fn. omitted.) “As long as the total circumstances support an inference that the victim’s participation was impelled, at least partly, by an implied threat, we do not think the factual basis [of duress] is eliminated by evidence of other motivating factors.” (People v. Wilkerson (1992) 6 Cal.App.4th 1571, 1580.)
We find that, on the record before us, the jury could have reasonably found that defendant accomplished the two acts of oral copulation on J.B. by force, duress, and/or fear. In 1997, defendant was a 37-year-old man and J.B. was a 14-year-old boy. Defendant befriended J.B. and his high school classmates, and provided them with drugs and alcohol and a van in which to use them. J.B. had run away from home because his grandmother suspected his drug use and J.B did not want to get caught. Defendant allowed J.B. to stay with him in his van and continued to provide him with drugs. After J.B. had been with defendant for a while, and while J.B. was naked below his waist, defendant placed shackles around J.B.’s legs and told him that he did not have the key to the shackles. J.B. was afraid and ashamed of his situation. J.B. continued to use the drugs that defendant provided in order to stay awake, because he did not want to fall asleep in the situation he found himself, but eventually he did fall asleep. Defendant used that opportunity to orally copulated J.B. And, even though he stopped when J.B. awoke and told him to stop, defendant repeated his actions when J.B. fell asleep again. J.B. did not leave the van or call for help because he was afraid of defendant and the situation he was in. The fact that J.B. did not leave the van immediately after defendant removed the shackles does not diminish the fact that defendant took advantage of his use of the shackles, his relationship with and continuous exploitation of J.B., and J.B.’s fear of defendant and the situation defendant had place him in at the time, in order to accomplish the acts of oral copulation that defendant would not have been able to otherwise accomplish.
Instruction on Lesser Included Offenses
Defendant’s counsel requested that the court instruct the jury with CALCRIM Nos. 1081 [oral copulation with minor: defendant 21 or older (§ 288a, subd. (b)(2))] and 935 [sexual battery (§ 243.4, subds. (a) & (d))]. He argued that the instructions deal with the lesser included or, at the very least, lesser related offenses of forcible oral copulation as charged in counts 1 and 2. Defendant also requested that, if the court decided to not give these instructions, the court instruct the jury on the lesser included offenses of simple assault (§ 240; see CALCRIM No. 915) and simple battery (§ 242; see CALCRIM No. 960).
The prosecutor argued that CALCRIM Nos. 1081 and 935 deal with lesser related, not lesser included, offenses. She noted that “[w]e have certainly come up with circumstances under which a defendant could commit the quote/unquote greater offense without committing the lesser offense. That is the definition of what is or what is not a lesser included offense. So we’ve been able to come up with those scenarios or those examples and I think that’s what defines them as crimes that are not lesser included offenses.” The prosecutor further argued that there was no evidence to support the instructions. “I think there either is the evidence in the record that it happened as [J.B.] described it, or as Mr. Kralovetz described it, which is that it didn’t happen at all. I don’t think there has been any evidence in the record suggesting that there was quote/unquote consensual contact that involved anything short of the legal definition of duress, fear, force as described by counts 1 and 2.”
The court found that there was no evidence to support giving the requested instructions on the lesser included offenses. The court further found that CALCRIM Nos. 1081 and 935 deal with offenses that “are arguably lesser related offenses. It’s within the Court’s discretion to give those instructions if the Court felt it appropriate. And based on all the evidence I’ve heard in this trial to this date, I will not give those lesser related instructions as well.”
Defendant now contends that his convictions on counts 1 and 2 should be reversed because the court erred in refusing to instruct the jury on the lesser included offenses of simple battery (§ 242; CALCRIM No. 960) and non-forcible oral copulation with a minor (§ 288a, subd. (b)(2); CALCRIM No. 1081). Defendant argues that simple battery is a lesser included offense of forcible oral copulation under the elements test, that non-forcible oral copulation with a minor is a lesser included offense of forcible oral copulation under the accusatory pleading test, and that there was substantial evidence to support instructions on both these lesser offenses.
The Attorney General concedes that simple battery is a lesser included offense of forcible oral copulation, but contends that the court did not err in refusing to instruct on the offense as “there existed no evidence from which a reasonable jury could have concluded that [defendant] committed the lesser but not the greater offense.” The Attorney General further contends that, assuming without conceding that non-forcible oral copulation with a minor is a lesser included offense of forcible oral copulation, the record does not provide a substantial basis upon which the jury could have found that defendant committed oral copulation but did not do so by using force, duress or fear.
“To determine whether a lesser offense is necessarily included in the charged offense, one of two tests (called the ‘elements’ test and the ‘accusatory pleading’ test) must be met. The elements test is satisfied when ‘ “all the legal ingredients of the corpus delicti of the lesser offense [are] included in the elements of the greater offense.” [Citation.]’ [Citations.] Stated differently, if a crime cannot be committed without also necessarily committing a lesser offense, the latter is a lesser included offense within the former. [Citations.] [¶] Under the accusatory pleading test, a lesser offense is included within the greater charged offense ‘ “if the charging allegations of the accusatory pleading include language describing the offense in such a way that if committed as specified the lesser offense is necessarily committed.” [Citation.]’ [Citations.]” (People v. Lopez (1998) 19 Cal.4th 282, 288-289.)
“ ‘[A] defendant has a constitutional right to have the jury determine every material issue presented by the evidence [and] . . . an erroneous failure to instruct on a lesser included offense constitutes a denial of that right . . . .’ [Citations.] To protect this right and the broader interest of safeguarding the jury’s function of ascertaining the truth, a trial court must instruct on lesser included offenses, even in the absence of a request, whenever there is substantial evidence raising a question as to whether all of the elements of the charged offense are present.’ [Citations.] ‘Substantial evidence is evidence sufficient to “deserve consideration by the jury,” that is, evidence that a reasonable jury could finding persuasive.’ [Citation.]” (People v. Lewis (2001) 25 Cal.4th 610, 645.) Stated another way, “[a] criminal defendant is entitled to an instruction on a lesser included offense only if [citation] ‘there is evidence which, if accepted by the trier of fact, would absolve [the] defendant from guilt of the greater offense’ [citation] but not the lesser. [Citations.]” (People v. Memro (1995) 11 Cal.4th 786, 871.) Any error in failing to instruct on a lesser included offense does not warrant reversal “unless an examination of the ‘entire cause, including the evidence,’ ” discloses that “it appears ‘reasonably probable’ the defendant would have achieved a more favorable result had the error not occurred. [Citation.]” (People v. Breverman (1998) 19 Cal.4th 142, 149.)
We agree with the Attorney General that the trial court did not err in refusing to instruct the jury on simple battery and non-forcible oral copulation as lesser included offenses of forcible oral copulation because there was no evidence from which a reasonable jury could have concluded that defendant committed the lesser but not the greater offenses. The only evidence regarding the alleged offenses was J.B.’s testimony. J.B. testified that he stayed several weeks in defendant’s van after running away from home in 1997. During J.B.’s stay, defendant provided J.B. with drugs; shackled J.B. while J.B. was naked below the waist; told J.B. that he did not have the key to the shackles, and kept the shackles on J.B. for an extended period of time, causing J.B. to be afraid and ashamed; and then took advantage of the situation by orally copulating J.B. after J.B. fell asleep and until J.B. awakened and told him to stop. Defendant’s testimony was that J.B. stayed in his van only the first night after J.B. ran away from home. Defendant denied providing J.B. with drugs, denied shackling J.B., and denied orally copulating J.B. On this record, we cannot say that there was evidence which, if accepted by the jury, would have absolved defendant of the greater offense of forcible oral copulation but not the lesser offenses of simple battery or non-forcible oral copulation. (People v. Memro, supra, 11 Cal.4th at p. 871.)
Amendment of the Information
The first time J.B. spoke to an officer about defendant’s offenses was in May 2005. J.B. told the officer at that time that he had been shackled. The officer interviewed defendant in November 2005, during which time defendant admitted that he owned leg shackles in the mid to late 1990s. The felony complaint filed in December 2005 charged defendant with three counts of forcible oral copulation, but it did not include allegations that defendant engaged in the tying or binding of J.B. in the commission of the offenses. (See § 667.61, subds. (b) & (e)(6).) Defendant faced a possible maximum sentence of 24 years in state prison if convicted of all three counts charged in the felony complaint.
The preliminary examination was held on August 28, 2006, during which J.B. testified that he was shackled during the commission of defendant’s sexual offenses. Following the hearing, the magistrate found probable cause to charge defendant with two counts of forcible oral copulation. The information filed on September 8, 2006, charged defendant with two counts of forcible oral copulation, again without allegations that defendant engaged in the tying or binding of J.B. in the commission of the offenses, and one count of lewd acts on a child of 14 years. Defendant was arraigned on the information and entered a not guilty plea on September 11, 2006. At the time, he faced a possible maximum sentence of 21 years in state prison if convicted on all counts of the information.
In November 2006, the prosecutor filed motions to amend the information to add special allegations of tying or binding during the commission of the forcible oral offenses. (§ 667.61, subds. (b) & (e).) Defendant filed opposition to the motions, arguing in part that the proposed amendments violated his right to due process as “[t]he prospect of an enhancement under P.C. 667.61 was not raised during plea negotiations and was not raised at preliminary examination or in the information.” At a hearing on January 12, 2007, defendant contended that the failure to include the tying and binding allegations in the complaint and information affected the plea bargaining in the case. The trial court granted the motion to amend, finding that the motion “is properly brought.” The amended information, which was filed the same day as the hearing, subjected defendant to two consecutive terms of 15 years to life. On January 17, 2007, the court granted defendant’s motion for a continuance, and the trial began on March 27, 2007, with discussions on motions in limine.
Defendant now contends that allowing the prosecutor to amend the information after plea negotiations failed violated defendant’s due process rights to notice and to make an informed decision during those plea negotiations. The Attorney General contends that the trial court did not abuse its discretion or violate defendant’s due process rights by granting the prosecution’s motion to amend the information.
Section 1009 states in relevant part: “The court in which an action is pending may order or permit an amendment of an . . . information . . . for any defect or insufficiency, at any stage of the proceedings . . . . The defendant shall be required to plead to such amendment or amended pleading forthwith, . . . and the trial or other proceeding shall continue as if the pleading had been originally filed as amended, unless the substantial rights of the defendant would be prejudiced thereby, in which event a reasonable postponement, not longer than the ends of justice require, may be granted. . . . [A]n information [cannot be amended] so as to charge an offense not shown by the evidence taken at the preliminary examination.” “However, as the case law emphasizes, the questions of whether the prosecution should be permitted to amend the information and whether continuance in a concrete case should be granted are matters within the sound discretion of the trial court and its ruling will not be disturbed on appeal in the absence of a clear abuse of discretion. [Citations.]” (People v. George (1980) 109 Cal.App.3d 814, 818-819; see also People v. Winters (1990) 221 Cal.App.3d 997, 1005; People v. Bolden (1996) 44 Cal.App.4th 707, 716.)
“The test for determining whether the trial court abused its discretion in permitting the amendment of the information is whether the amendment prejudiced the substantial rights of the defendant, and attempted to change the offense to one not shown by the evidence taken at the preliminary examination . . . .” (People v. Brown (1973) 35 Cal.App.3d 317, 322.) Here, no abuse of discretion occurred because the amendment of the information did not prejudice defendant’s due process rights.
“ ‘Due process of law requires that an accused be advised of the charges against him in order that he may have a reasonable opportunity to prepare and present his defense and not be taken by surprise by evidence offered at his trial.’ [Citations.]” (People v. Valladoli (1996) 13 Cal.4th 590, 607 (Valladoli); see also People v. Jones (1990) 51 Cal.3d 294, 317.) Here, the evidence adduced at the preliminary hearing was that defendant placed leg shackles on J.B. while J.B. changed his clothes, and while he was naked from the waist down, in the back of defendant’s van. Sometime later, while J.B. was still shackled, and after J.B. had used drugs provided by defendant, J.B. twice awoke to find defendant orally copulating him. Therefore, the amended information which added the special allegations of tying and binding did not attempt to change the charged offenses to ones not shown by the evidence presented at the preliminary examination. (§ 1009.) In addition, defendant’s motion for a continuance was granted after the court permitted the amendment to the information, and defendant’s trial did not begin until over two months later. Therefore, he was given a reasonable opportunity to prepare and present his defense.
In Valladoli, the defendant contended that permitting the prosecution to amend an information after the verdict pursuant to section 969a to charge prior felony convictions violated his due process rights. (13 Cal.4th at p. 606.) Our Supreme Court held that the postverdict amendment procedure permitted by section 969a does not, in itself, deny a criminal defendant an opportunity to prepare to meet the new charges, in part due to the availability of a continuance. (Id. at p. 607.) The court also found that the statute gives the trial court discretion to permit or deny a proposed amendment, and the court set out various factors trial courts “should scrutinize” when exercising that discretion: “(i) the reason for the late amendment, (ii) whether the defendant is surprised by the belated attempt to amend, (iii) whether the prosecution’s initial failure to allege the prior convictions affected the defendant’s decisions during plea bargaining, if any, (iv) whether other prior felony convictions had been charged originally, and (v) whether the jury has already been discharged.” (Id. at pp. 607-608.)
Defendant contends that the factors set out in Valladoli are applicable here and support his claim that the trial court in this case abused its discretion by allowing the amendment to the information. Specifically, defendant contends that (i) the prosecutor had no valid reason for the late amendment, (ii) defendant was surprised by the belated attempt to amend, (iii) defendant’s decision to not take offered plea bargains “might well have been different” had he known that he was potentially exposed to a 30-year-to-life term rather than a 21- or 24-year term, and (iv) no other enhancements based on shackling had been charged originally.
Even if we assume that the factors set forth by the court in Valladoli are relevant in determining whether a trial court abused its discretion by permitting amendment of an information pursuant to section 1009 to add sentencing enhancements prior to trial, we still find no abuse of discretion. The prosecutor stated that she waited to add the allegations until after the preliminary hearing, when she could see what charges were supported by J.B.’s testimony, and she correctly noted that she was under no obligation to include the allegations in the felony complaint. The special allegations were supported by J.B.’s testimony at the preliminary examination, which was held just over two months before the prosecutor filed her first motion to amend. And, defendant’s claim that his decisions “might well have been different” during plea negotiations is nothing more than speculation; defendant did not state or testify below that he would have accepted a prior plea offer if he had known that he might be facing a possible 30-year-to-life sentence. No abuse of discretion has been shown.
Defendant also contends that allowing the prosecutor to amend the information after plea negotiations failed violated his due process right to be free from vindictive prosecution. The gravamen of a vindictive prosecution is the increase in charges or a new prosecution brought in retaliation for the exercise of constitutional rights. (North Carolina v. Pearce (1969) 395 U.S. 711, 723-726, overruled on other grounds by Alabama v. Smith (1989) 490 U.S 794.) “Where the defendant shows that the prosecution has increased the charges in apparent response to the defendant’s exercise of a procedural right, the defendant has made an initial showing of an appearance of vindictiveness. [Citation.]” (Twiggs v. Superior Court (1983) 34 Cal.3d 360, 371.) “[O]nce the presumption of vindictiveness is raised the prosecution bears a heavy burden of rebutting the presumption with an explanation that adequately eliminates actual vindictiveness. In this regard, the trial court should consider the prosecutor’s explanation in light of the total circumstances of the case in deciding whether the presumption has been rebutted.” (Id. at p. 374.)
Defendant acknowledges that in United States v. Goodwin (1982) 457 U.S. 368, 382-383, the Supreme Court found that the mere fact that the defendant had refused to enter a guilty plea and had requested a jury trial was insufficient to warrant a presumption that subsequent changes in the charging decision were unjustified. He also acknowledges that California courts have reached similar conclusions. (See, e.g., People v. Matthews (1986) 183 Cal.App.3d 458, 466-467; People v. Hudson (1989) 210 Cal.App.3d 784, 788-789.) In this case, defendant did not claim below that the prosecutor’s motion to amend was due to vindictive prosecution. Even if he had, we cannot say that defendant’s refusal to enter a guilty plea and his request to go to trial, taken alone, was sufficient to warrant a presumption by the trial court that the motion to amend was due to vindictiveness. (United States v. Goodwin, supra, 457 U.S. at pp. 382-383.) Accordingly, we must reject defendant’s vindictiveness claim made for the first time here.
Sufficiency of the Evidence of Tying or Binding
Defendant contends that there is not sufficient evidence to support the jury’s finding under section 667.61, subdivision (e)(6), “because the evidence did not show that [defendant] ‘engaged’ in the shackling ‘in the commission of’ the oral copulations.” “The evidence showed that although [defendant] ‘engaged in the tying or binding,’ that action took place several days to a week before the first oral copulation and over a week before the second oral copulation. The plain language of the statute does not state that a defendant is subject to this provision if he ‘engaged in the tying or binding’ at some other time or if the victim was already tied or bound at the time of the sex offenses.” “[T]he nexus between the shackling and the oral copulations was too attenuated to support” the jury’s finding under section 667.61, subdivision (e)(6).
The court instructed the jury pursuant to CALCRIM No. 3182 that “[i]f you find the defendant guilty of the crimes charged in counts 1 or 2, oral copulation by force, fear, violence, duress, menace, or fear of immediate and unlawful bodily injury to anyone, you must then decide whether, for each crime, the People have proved the additional allegation that the defendant tied or bound [J.B.] during the commission of those crimes. [¶] You must decide whether the People have proved this allegation for each crime and return a separate finding for each crime. [¶] The People have the burden of proving each allegation beyond a reasonable doubt. If the People have not met this burden, you must find that the allegation has not been proved.” As noted above, the jury’s true findings of these allegations as to both counts 1 and 2 subjected defendant to two consecutive sentences of 15 years to life. (§ 667.61, subds. (b) & (e)(6), 667.6, subd. (d).)
“Providing for an enhanced sentence for one who, in the course of committing [a forcible sex offense], ‘engage[s] in the tying or binding of the victim’ (§ 667.61, subd. (e)(6)) necessarily has to do with the Legislature’s recognition that such acts render the victim of a sexual assault particularly vulnerable, in that they facilitate the offense while further disabling the victim. [Citations.] This amplification of distress, in an already terrifying and degrading situation, by tying or binding the victim is the epitome of what we have termed a ‘cheap shot’ [citation], thereby making more culpable an already serious and violent sexual offense.” (People v. Campbell (2000) 82 Cal.App.4th 71, 78-79.)
In People v. Jones (2001) 25 Cal.4th 98, our Supreme Court’s “task [was] to construe the phrase ‘in the commission [of]’ as it appears in Penal Code sections 12022.3, subdivision (a), and 667.61, subdivision (e)(4).” (Id. at p. 108.) Section 667.61, subdivision (e)(4) provides for enhanced punishment when a defendant personally uses a dangerous or deadly weapon or a firearm “in the commission of” specified sex offenses. To accomplish its task, the court looked for guidance to its cases construing other Penal Code provisions that use the phrase “in the commission of” or substantially similar language. (Jones, supra, 25 Cal.4th at p. 108.) The court presumed that the Legislature, in drafting the provisions, was aware of its long-standing judicial construction of the phrase “in the commission of” as used in other Penal Code sections and intended to incorporate it. (Id. at p. 109.) As part of its analysis, the court noted that in People v. Masbruch (1996) 13 Cal.4th 1001, it had found that, in the case of a weapons-use enhancement, “such use may be deemed to occur ‘in the commission of’ the offense if it occurred before, during, or after the technical completion of the felonious sex act. The operative question is whether the sex offense posed a greater threat of harm—i.e., was more culpable—because the defendant used a deadly weapon to threaten or maintain control over his victim.” (Jones, supra, at pp. 109-110.) Because of this and other cases, the court in Jones concluded that “ ‘a broad construction of the phrase “in the commission of” advances the purpose of enhancements which provide for additional punishment when a weapon is used . . . .’ [Citation.]” (Id. at p. 111.)
In this case, which involves an enhancement for the use of tying or binding, such use may be deemed to have occurred “in the commission of” the forcible oral copulations if it occurred before, during, or after the completion of the underlying offenses. The evidence at trial showed that defendant shackled J.B. some time before committing the oral copulation offenses, and J.B. was still shackled at the time of those offenses. Therefore, defendant’s actions came within the statutory prohibition on tying or binding of the victim “in the commission of” the forcible oral copulation offenses, and the evidence is sufficient to support the jury’s finding to that effect. (People v. Masbruch, supra, 13 Cal.4th at p. 1011; People v. Jones, supra, 25 Cal.4th at pp. 109-110; compare People v. Alvarado (2001) 87 Cal.App.4th 178, a case relied on by defendant, that was decided by this court one month before People v. Jones, supra, 25 Cal.4th 98.)
Verdict Forms
The special verdict forms for the section 667.61, subdivision (e)(6) special allegation asked the jury to find true or false the allegation that defendant “tied or bound [J.B.], and [J.B.] was tied or bound when” the oral copulation offenses charged in counts 1 and 2 “[were] committed.” Defendant now contends that the jury’s true findings should be reversed “because the verdict forms did not accurately reflect the language of the statute that required a finding that the tying or binding be done ‘in the commission of’ the oral copulation” offenses.
As a preliminary matter, the Attorney General contends that defendant forfeited his right to challenge the verdict forms because he did not object to them below. (See, e.g., People v. Jones (2003) 29 Cal.4th 1229, 1259.) Defendant contends that any failure on the part of trial counsel to object to the verdict forms constitutes ineffective assistance. An appeal may be heard even in the absence of an objection when, as here, defense counsel was arguably ineffective for failing to raise it below. Therefore, we will consider defendant’s challenge on the merits.
“ ‘[T]echnical defects in a verdict may be disregarded if the jury’s intent to convict of a specified offense within the charges is unmistakably clear, and the accused’s substantial rights suffered no prejudice. [Citations.]’ ” (People v. Bolin (1998) 18 Cal.4th 297, 331; People v. Jones, supra, 29 Cal.4th at p. 1259.) Where the jury is properly instructed on its required finding as to alleged special circumstances and instructed to return its finding on the form provided, and the prosecutor reiterates during argument that the jury is to indicate on the verdict form provided whether it found the special circumstances allegations to be true or not true, the jury’s intent to find the special circumstances allegations true or not true as instructed “is unmistakably clear.” (People v. Jones, supra, 29 Cal.4th at p. 1259.) Here, as we indicated above, the jury was properly instructed on its required findings as to the special allegations under section 667.61, subdivision (e)(6), and the jury was instructed to return its findings on the verdict forms it was provided. In addition, the prosecutor reiterated during argument that the jury was to indicate on the verdict forms whether it found the special allegations as instructed to be true or not true. Therefore, any defect in the verdict forms does not require reversal of the special allegation findings.
CALCRIM No. 1191
The trial court instructed the jury pursuant to CALCRIM No. 1191 that “[t]he People presented evidence that the defendant may have committed one or more of the following crimes: Oral copulation with a person who was under the age of 16 at a time after the defendant had reached the 21st birthday; lewd or lascivious act on a 14, 15-year-old child who was at least ten years younger than the defendant; sexual battery, or annoying or molesting a child. [¶] None of these crimes are charged in this case. These crimes are defined for you following this instruction. You may consider this evidence only if the People have proved by a preponderance of the evidence that defendant, in fact, committed the uncharged crimes. Proof by a preponderance of the evidence is a different burden of proof than proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true. [¶] If the People have not met this burden of proof, you must disregard this evidence entirely. If you decide that the defendant committed the uncharged crimes, you may, but are not required to, conclude from the evidence that the defendant was disposed or inclined to commit sexual offenses. And based on that decision, also conclude that the defendant was likely to commit the crimes of oral copulation as charged in counts 1 and 2, and lewd and lascivious act on a child as charged in count 3. [¶] If you conclude that the defendant committed the uncharged crimes, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of the crimes charged. [¶] The People must still prove each element of every charge beyond a reasonable doubt. Do not consider this evidence for any other purpose.” Defendant did not object to the form of the instruction but did object throughout the trial to the admission of the evidence of the uncharged crimes under Evidence Code section 1108.
Defendant now contends that the instruction “lowered the prosecution’s burden of proof because it indicated that the entire chain of reasoning leading to an inference of predisposition could be supported by a preponderance of the evidence.” The Attorney General contends that the court did not err by instructing the jury with CALCRIM No. 1191.
“In People v. Reliford (2003) 29 Cal.4th 1007, 1012-1013 (Reliford), our Supreme Court held that the 1999 version of CALJIC No. 2.50.01, an instruction that explained the application of Evidence Code section 1108, correctly stated the law. The court rejected the defendant’s contentions that the instruction was likely to mislead the jury concerning the limited purpose for which it may consider other-crimes evidence and the prosecution’s burden of proof. [Citation.] The court held that the 2002 version of the instruction, which deleted one sentence and added another, was ‘an improvement.’ [Citation.]” (People v. Wilson (2008) 166 Cal.App.4th 1034, 1048-1049 (Wilson).)
“ ‘The version of CALJIC No. 2.50.01 considered in Reliford is similar in all material respects to . . . CALCRIM No. 1191 . . . in its explanation of the law on permissive inferences and the burden of proof.’ (People v. Schnabel (2007) 150 Cal.App.4th 83, 87, fn. omitted.)” (Wilson, supra, 166 Cal.App.4th at p. 1049.) “Although the instruction considered in Reliford was the older CALJIC No. 2.50.01, there is no material difference in the manner in which each of the instructions allows the jury to conclude from the prior conduct evidence that the defendant was predisposed to commit sexual offenses and, therefore, likely committed the current offenses. CALCRIM No. 1191, as given here, cautions the jury that it is not required to draw these conclusions and, in any event, such a conclusion is insufficient, alone, to support a conviction.” (People v. Cromp (2007) 153 Cal.App.4th 476, 480; see also Schnabel, supra, 150 Cal.App.4th at p. 87.) CALCRIM No. 1191 and the instruction given in this case also correctly explain that the People must still prove every element of every charge beyond a reasonable doubt. Based on Reliford, we therefore reject defendant’s contention that the CALCRIM No. 1191 instruction given in this case lowered the prosecution’s burden of proof. (Cromp, supra, 153 Cal.App.4th at p. 480; Schnabel, supra, 150 Cal.App.4th at p. 87; see Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Modification of the Abstract of Judgment
The amended information alleged that defendant committed all the charged offenses between November 1 and December 31, 1997. The evidence at trial indicated that the offenses occurred between November 6 and December 22, 1997. (See fn. 4, ante.) However, the abstract of judgment states that defendant’s offenses occurred in 1998. Defendant contends that the abstract of judgment should be corrected to reflect that all three offenses occurred in 1997, and the Attorney General has no objection to such a correction. Accordingly, we will so order.
DISPOSITION
The abstract of judgment is ordered modified to state that the offenses in counts 1, 2 and 3 occurred in 1997 rather than in 1998. As so modified, the judgment is affirmed.
WE CONCUR: MIHARA, J., MCADAMS, J.