Opinion
NOT DESIGNATED FOR PUBLICATION
APPEAL from a judgment of the Superior Court of Los Angeles County, Barry A. Taylor, Judge., Los Angeles County Super. Ct. No. LA045976.
Judith Kahn, under appointment by the Court of Appeal, and Carla J. Johnson for Defendant and Appellant.
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle and Michael C. Keller, Deputy Attorneys General, for Plaintiff and Respondent.
TURNER, P. J.
I. INTRODUCTION
Defendant, Michael Anthony Loza, appeals from his convictions for: continuous sexual abuse (Pen. Code, § 288.5, subd. (a)); forcible rape with great bodily injury (§§ 261, subd. (a)(2), 667.61, subd. (b)); two counts of aggravated sexual assault on a child (§§ 264.1, 269, subd. (a)(2)); two counts of assault with a deadly weapon (§ 245, subd. (a)(1)); three counts of corporal injury to a spouse (§ 273.5, subd. (a)); misdemeanor battery (§ 242); three counts of forcible rape (§ 261, subd. (a)(2)); and two counts of criminal threats. (§ 422.) He received a determinate term of 90 years, 4 months. He also received 3 consecutive terms of 15 years to life. The determinate and indeterminate terms were ordered to run consecutively.
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant contends: he was improperly convicted of both violations of section 288.5 and two aggravated sexual assault offenses; section 654, subdivision (a) was violated; there was insufficient evidence to support sentencing pursuant to section 667.61, subdivision (b); the trial court improperly imposed the upper term in counts 1, 13, 14 and 15 and consecutive terms in counts 5, 6, 8, 9, 11 and 12; there was instructional error; and the misdemeanor battery conviction must be reversed. We agree with defendant that counts 1 and 7 must be reversed. We affirm the judgment in all other respects.
II. FACTUAL BACKGROUND
A. The Testimony of Vicki
Vicki married defendant in 1995. Defendant was frequently violent during their marriage. Vicki’s daughter from a previous relationship, S., was 10 years old at the time of their marriage. Defendant and Vicki later had two children, Lynn and Mark. Vicki was the sole wage earner. Defendant had diabetes and had difficulty holding a job. Defendant stayed home and cared for the children. On many occasions during their marriage, defendant hit or kicked Vicki. During October or November 2001, defendant was upset with Vicki because she came home late. Defendant hit Vicki several times in the ribs with a closed fist. Defendant also kicked Vicki. Defendant then chased Vicki around the apartment with a sledgehammer. Defendant raised the sledgehammer over Vicki’s head. Defendant told Vicki, “‘I’m going to kill you.’” Defendant swung the sledgehammer at Vicki, while holding it with both hands. Vicki was not struck by the sledgehammer. But Vicki sustained bruises in her rib area and on the back of her legs. Vicki was in pain for approximately a week thereafter. Defendant told Vicki: he would strike her on the back of the head or hit or kick her in the back of her legs; the marks would not be visible; and no one would be able to see them. After defendant had chased her with the sledgehammer and hit and kicked her, Vicki ran outside and sat near the pool for about an hour. From inside the residence, defendant yelled out to Vicki, “‘If you go to the police, I will kill the kids.’” Defendant came downstairs with the three children. Defendant told Vicki: “‘Come with me. . . . We’re all going to go for a walk and mail out some letters.’” After walking to the mailbox, Vicki saw defendant grab S.’s buttocks. S. appeared shocked. Vicki asked defendant, “‘What are you doing?’” Defendant responded: “‘This is mine. You get ahead of us now.’” When Vicki got in front of them, defendant began kicking her in the tailbone and told her to go faster. Defendant said: “‘Don’t look back. Don’t do anything. Just keep on walking.’”
In June 2003, defendant questioned Vicki about the fact that their son’s shoe was outside. When Vicki explained that the children had been outside playing, defendant picked her up and threw her across the room. Defendant then kicked Vicki in the sides. Defendant ordered Vicki to get up. Vicki sat on the couch where S. and Mark were sitting. Defendant said: “‘You think sitting next to your son is going to save you from this? It’s not.’” Defendant struck Vicki with a pool cue twice on the head. At the time of trial, Vicki still had a scar on her forehead from the injury. When defendant saw that Vicki was bleeding, he said: “Get up. You’ve got to take care of the blood. It’s getting all over the place.” Defendant took Vicki into the bathroom and turned on the water. Defendant then said, “‘[S.], get in here and help take care of your mom.’” Later, defendant told Vicki she should get medical attention for her wound. However, he then said, “‘If you get medical attention for that, then they’ll start asking questions . . . .” Defendant made Vicki feel guilty about seeking medical aid because if she explained what had happened to authorities, there would be problems. Vicki continued to bandage the wound for approximately one month before it stopped bleeding.
Defendant often choked Vicki. Defendant told Vicki, “‘At any minute, you could be gone.’” Defendant also threatened Vicki with a knife in the presence of the children. Vicki never went to the police because she always feared defendant. Vicki believed defendant would harm herself or her family.
In January 2004, S. moved out of the apartment. Neither Vicki nor defendant knew S.’s whereabouts. Defendant became obsessed with finding S.. Defendant believed Vicki knew where S. was living and was keeping it from him. On March 14, 2004, defendant came into the apartment and angrily said to Vicki, “‘I want to know where S. is now.’” Defendant hit Vicki hard in the face, knocking her against the wall and causing her to fall. Defendant told Vicki, “‘Get up and go call [S.] and tell her to get home.’” Vicki was bleeding from her nose. Vicki felt “half conscious” and was unable to move. Defendant said: “‘You’re not up? You still haven’t called [S.] yet? . . . I know how to make you call [S.]. I’m going to go in the room and get a hammer. If you don’t call [S.], she’ll have one dead mother.’” Vicki feared defendant would get the sledgehammer. Vicki was able to get up and ran out the door. Vicki feared defendant intended to kill all of them if S. returned.
Over the years, Vicki had seen defendant become violent with S.. Defendant would hit S. on the back of the head or in the arm. On one occasion, defendant picked S. up and threw her across the room. Defendant initially encouraged S. to call him “Dad.” After Lynn was born, defendant told S.: “‘Stop calling me “Dad.” I’m not your dad.’” S. was approximately 11 years old at the time. According to Vicki, defendant became protective of S.. Defendant did not want S. to have friends or go to their homes. Defendant began buying S. a lot of clothes. When Vicki complained, defendant said he wanted S. to feel he loved her as a father.
When S. was 16 years old, Vicki became aware that S. was pregnant. S. had become very ill. After running several tests, the doctor told Vicki that S. wanted to say something. However, S. did not say anything. The doctor told Vicki that S. was pregnant. Defendant had left to take Lynn to celebrate her birthday. S. then told Vicki that defendant was the father. Vicki said she was going to call the police. S. responded, “‘If you call the police, he’ll kill all of us.’” After they arrived home, S. went into another room with defendant to tell him of the pregnancy. When defendant came out of the room, he said: “‘Can you believe this? She’s pregnant.’” Defendant appeared surprised rather than upset.
S. ultimately decided to have an abortion. Vicki went with S. to the physician to get the abortion. S. begged Vicki not to confront defendant about the fact that he was the father. Defendant had told S. that he did not want anyone to know. After they had separated, defendant came to Vicki’s office in June 2004, despite the fact that a restraining order prohibited him from contacting her. Vicki asked defendant: “‘Tell me one thing. Were you the father of [S.]’s baby?’” Defendant responded, “‘I don’t know.’” After S.’s abortion, defendant often brought the mattress from the bedroom into the living room and had S. sleep with him. When Vicki questioned defendant about it, he said he was afraid of earthquakes and wanted the kids near him.
On one occasion when Lynn was approximately three months old, she was very ill. Vicki took her to the doctor covered by her insurance. The doctor told Vicki to give Lynn aspirin because he did not believe in antibiotics. However, when Lynn’s condition worsened, defendant took her to another doctor, who prescribed antibiotics. Defendant then attacked Vicki. Defendant kicked Vicki and banged her head against the floor. On several other occasions during their marriage, defendant became violent with Vicki. Defendant blamed Vicki for such things as his mother’s illness. Defendant often was smiling one instant and hitting her the next.
S. had witnessed some of the violence defendant directed toward Vicki. Defendant hit Vicki in the head with belts. On one occasion, S. saw defendant hit Vicki in the head with a pool cue. Defendant came home drunk and chased Vicki with the pool cue. After hitting Vicki in the forehead with the pool cue, defendant became angry because she would not get up. Vicki had a bleeding gash on her forehead. On another occasion, defendant hit Vicki with a suitcase when they were moving from an apartment following eviction. S. also saw defendant pull Vicki’s hair. On four or five occasions, S. saw defendant choke Vicki. S. also saw defendant put a knife to Vicki’s throat. On several occasions, Vicki was close to unconsciousness after defendant beat her. Defendant would scream at her: “‘Get up. Get up.’”
Defendant’s violence toward S. began when she was approximately 11 years old. Defendant used either an open hand or closed fist. The violence was often for small things like not doing the dishes or laundry. On one occasion, defendant pulled S. off a chair, causing her to strike her chin and neck. Thereafter, he pulled her by her hair through the house. Defendant then pulled her hair and cut it off. When a teacher inquired about the mark on her neck, S. told her how the injury occurred. The teacher called a social worker. S. told the social worker what had happened. When defendant became angry with S. for being late returning from school, he often pulled her hair and cut it off. Defendant also: kicked S. in the ribs; choked her; held a knife to her stomach; hit her in the chest and “crotch”; and struck her several times on the head. Defendant also beat S. with a long paint roller stick for staying at school to prepare for a test. S. was unable to go to school for five days. On another occasion, S. was blamed when her brother fell off his “big wheel” and hit his head. Defendant believed S. had caused Mark’s injury. Defendant pulled S. off the couch, kicked her, threw her against the wall. Defendant then threw the big wheel toy at S. and hit her on the side of her head with an open and closed fist.
B. Lynn’s Testimony
Lynn was nine years old at the time of trial. Lynn had seen defendant “hit and sock” Vicki with a closed fist on two occasions. Defendant seemed angry on those occasions. Defendant punched Vicki a few times until she fell on the floor. Defendant also punched S. until she fell to the floor on many occasions. Lynn also saw defendant pull S. by her hair and kick her a few times. Defendant hurt S. more than Vicki. One time defendant held a knife against S.’s neck and threatened, “‘I’m going to hurt you.’” At these times, defendant seemed angry. Lynn also saw defendant choke Vicki twice when he was angry. Defendant also choked S. on more than one occasion when he was angry. Lynn saw defendant punch S. in the stomach. Thereafter, S. fainted and threw up. Defendant hurt Vicki every month. Defendant had a knife while arguing with Vicki. Lynn had observed defendant kissing S. on the lips. After S. moved away, defendant came to Lynn and said, “‘I’m sorry for what I did to you and your sister and your brother and your mom.’” Lynn saw defendant and S. go into the bedroom and close the door. Lynn was afraid of defendant when he hurt Vicki and S.. Lynn was also afraid of defendant when she testified at trial.
C. S.’s Testimony
S. was born on January 7, 1985. She was 20 years old at the time of trial. Defendant was born on March 1, 1964. When S. was 11 years old, defendant began licking her belly button when she slept. Defendant also woke her up in the middle of the night to do dishes. Defendant began hitting S.. Vicki was pregnant with Lynn at that time. Defendant hit Vicki across her stomach with a belt. S. told Vicki that defendant licked her belly button. Vicki asked defendant about the belly button incidents. He told her that S. was lying. When S. was 13 years old, defendant came into the room wearing only his underwear and tried to touch her arms. S. became frightened and ran away. On another occasion when S. was 13, defendant came into the bathroom as she was showering. When S. got out of the shower, defendant pulled her arms causing her to fall, hit her head, and become unconscious. When she awoke, S. was naked and felt pain in her vaginal area. The vaginal pain was different from the premenstrual cramping she had experienced since age 11. Defendant did not say anything to her when she came out of the bathroom. Defendant continued to touch S. after that incident. Defendant kissed S. on her cheeks and lips and touched her breasts. Sometimes defendant would kiss and touch her daily. Other times he would skip a few weeks. This behavior continued until she left the house at age 19 on January 17, 2004. S. told Vicki what occurred on a few occasions. However, Vicki did not believe her. After the first few times, defendant told S. that he would kill her if she told anyone about the sexual conduct.
When S. was 13, she awoke twice to find defendant putting his tongue in her vaginal area. On the first occasion, S. began to scream because she was afraid. Defendant told S.: “‘Be quiet. Shut up.’” Defendant then had S. do housework. When Vicki returned home, defendant spoke to her about what had happened. When S. talked to Vicki, she did not believe her. S. began using heroin at age 13 because she was being abused and her mother did not believe her. Vicki told S. how useless she was. S. tried to kill herself by using heroin. Eventually, Vicki sent S. to “boot camp” for rehabilitation. Defendant knew that S. began using drugs just after she was raped by him. S. did not use drugs after age 14.
While S. was growing up, defendant stayed at home. S. was not allowed to have friends over or go to friends’ homes. The other children were only allowed to play outside if S. watched them. If something happened, S. was blamed. From age 15 forward, defendant asked S. 5 or 6 times whether she wanted him to be her dad or her boyfriend. Defendant did not want S. to leave him for someone else because he thought she loved him. S. told him each time: “‘I want you to be my dad. That’s my decision. I don’t want you to be my boyfriend.’” However, S. was still subjected to forcible sexual conduct with defendant. There was never a time when she refused to participate in sexual conduct that she was not beaten. She engaged in sexual conduct with defendant against her will more than 100 times.
S. and Lynn were watching television. Defendant came home from a bar and began to argue with Vicki in the kitchen. S. believed defendant knocked Vicki unconscious. Defendant grabbed S. by her hair and pulled her into the bathroom. The bathtub was full of water. Defendant leaned S. over the bathtub. S.’s arms were in the bathtub. S. was able to lift her face above the water. S. blacked out. S. awoke in her parents’ bed the following morning. S. had pain in her vaginal area like she had experienced when she was 13 years old but it was more painful. This incident occurred when S. was 16 years old. S. had bruises on the upper part of her breasts. A week or two later, S. began feeling weak. S. began throwing up, getting dizzy, and had difficulty walking. A few days later, S. was examined by a doctor. S. then learned she was pregnant. The only person S. had intercourse with was defendant. S. told Vicki that it was defendant’s child. When they returned home, S. told defendant she was pregnant. Defendant denied being responsible for the pregnancy. S. informed defendant he was the father. Thereafter, defendant went into the bedroom and told Vicki he was sorry. Initially, defendant wanted S. to have an abortion. Later, defendant wanted S. to keep the baby because she would be killing a living thing. However, eventually, S. decided to have an abortion.
The sleeping arrangements at home changed frequently. Sometimes the bed would be in the living room. S., Lynn, and Mark would sleep there and Vicki slept on the couch. On other occasions, S. slept in the bedroom with defendant while Vicki slept with the other children in the living room.
On another occasion, Vicki took Mark to the store. S. was asleep on a bed in the living room. Defendant got into bed with S.. Defendant began to pull off S.’s pants and shirt. S. objected and hit defendant in the face. Defendant became angry and hit S. with a closed fist a couple of times. S. had a bump on her lips, her nose was bleeding, and her eye was cut and blackened. Defendant ordered S. to go to the bathroom and clean herself up before her mother returned. Over the years beginning when S. was approximately age 14, defendant had sex with her on a continuous basis until she left home. Sometimes defendant forced S. to have sex: weekly; sometimes every other week; and sometimes every day. When S. told defendant she did not want to have sex he would hit her. Then, defendant would have sex with S. anyway. On occasion, S. did not fight because she was “sick of fighting.” Every time she tried to get defendant off of her, she, in her words, “would get beat.” Defendant told S. that he loved her. Defendant explained that S. was different than Vicki. Defendant told S. she was more attractive for him.
On one occasion, S. inadvertently left the gas on while cleaning the stove. The apartment smelled like gas. S.’s brother, Mark, locked himself in a room and began screaming. Defendant let Mark out of the room. S. described defendant’s reaction, “[H]e said I was trying to kill him because I was letting the gas go all over the house.” Defendant dragged S. into the bedroom and choked her until she passed out. When S. awoke, defendant was slapping her on the face telling her to wake up because he did not want to go to jail.
S. left home at age 19. S. left because she was “sick of it.” S. was tired of the beatings, the continuous rape, and watching defendant beat Vicki. After S. left, defendant called her at her boyfriend’s home. Defendant asked S. to come back, promising he would go to counseling and church. Defendant also wrote her several letters after she left. These letters were admitted into evidence at trial. S. never had a consensual sexual relationship with defendant.
III. DISCUSSION
A. Defendant Was Improperly Convicted Pursuant To Section 288.5 And Two Aggravated Sexual Assault Charges
Defendant argues he was improperly convicted for both continuous sexual abuse pursuant to section 288.5 for the period of January 7, 1998, through January 7, 1999, and for two counts of aggravated sexual assault on a child pursuant to sections 264.1 and 269, subdivision (a)(2) for crimes occurring within the same time period. The Attorney General agrees with defendant as we do. However, the parties disagree on the proper remedy to correct the error. Defendant argues that his aggravated sexual assault convictions in counts 3 and 4 should be reversed. We agree with the Attorney General that the continuous sexual abuse conviction should be reversed.
Section 288.5 provides in pertinent part: “(a) Any person who either resides in the same home with the minor child or has recurring access to the child, who over a period of time, not less than three months in duration, engages in three or more acts of substantial sexual conduct with a child under the age of 14 years at the time of the commission of the offense . . . is guilty of the offense of continuous sexual abuse of a child and shall be punished by imprisonment in the state prison for a term of 6, 12, or 16 years. [¶] . . . [¶] (c) No other felony sex offense involving the same victim may be charged in the same proceeding with a charge under this section unless the other charged offense occurred outside the time period charged under this section or the other offense is charged in the alternative. . . .” The charges in question here were not charged in the alternative.
In People v. Johnson (2002) 28 Cal.4th 240, 243-244, the defendant was convicted of continuous sexual abuse of a child under the age of 14 pursuant to section 288.5, subdivision (a) as well as six additional counts for forcible lewd acts on the same victim during the same time period. Defendant was sentenced to 16 years on the section 288.5, subdivision (a) conviction and imposition of sentence was stayed on the remaining six convictions pursuant to section 654, subdivision (a). The Court of Appeal reversed the defendant’s convictions on counts 2 through 6, based upon the plain language of section 288.5, subdivision (c). In affirming the appellate court’s findings, the California Supreme Court found the multiple convictions for violating section 288.5, subdivision (a) and another sex offense within the same time period were inconsistent with the statute. (Id., at p. 248.)
Following the Johnson decision, Presiding Justice Roger Boren of this appellate district held, “It would be anomalous if section 288.5, adopted to prevent child molesters from evading conviction, could be used by those molesters to circumvent multiple convictions with more severe penalties . . . than available for a conviction under section 288.5.” (People v. Alvarez (2002) 100 Cal.App.4th 1170, 1177-1178.) Our colleagues in the Court of Appeal for the First Appellate District reached similar conclusions in People v. Torres (2002) 102 Cal.App.4th 1053, 1059, “[I]n deciding which convictions to vacate as the remedy for a violation of the proscription against multiple convictions set forth in section 288.5, subdivision (c), that we leave appellant standing convicted of the alternative offenses that are most commensurate with his culpability.” In Torres,the defendant, as is the case here, faced a greater maximum aggregate penalty on the specific offenses than he did on the continuous sexual abuse conviction. The Torres court vacated the section 288.5 conviction.
More recently, in People v. Bautista (2005) 129 Cal.App.4th 1431, 1438, the defendant was convicted of: continuous sexual abuse of a child under the age of 14 pursuant to section 288.5, subdivision (a); six counts of procuring a child under the age of 16 for lewd and lascivious acts (§ 266j); and one count of a lewd or lascivious act. (§ 288, subd. (a).) All of the acts occurred within the same time period as the continuous sexual abuse count. The trial court sentenced the defendant to: 12 years for the section 288.5, subdivision (a) conviction; a concurrent 6 year term for the procurement in count 2; and stayed the sentence on the remaining counts. In reversing, the Bautista court held: “[W]e fail to see how convicting [defendant] only of procurement is in any way proportionate to the egregious criminal conduct in which she engaged. Consequently, we affirm the conviction of continuous sexual abuse of [the victim], and vacate her convictions of procurement of [the victim].” (Id., at p. 1438.)
In this case, the count 3 and 4 aggravated sexual assault charges are those for which defendant is most culpable. The jurors found that on two occasions, defendant raped S. with force and violence and against her will when she was under the age of 14. (§§ 264.1, 269, subd. (a)(2).) We therefore reverse defendant’s count 1 section 288.5 conviction. Upon issuance of the remittitur, count 1 is to be dismissed.
B. Alleged Violations Of Section 654, Subdivision (a)
Defendant argues that the trial court improperly imposed separate sentences for the count 9, spousal battery, and the count 10, assault with a deadly weapon, convictions. Defendant further argues the trial court improperly imposed sentences on the count 11 spousal battery and the count 12 terrorist threats. Defendant asserts these multiple sentences violate section 654, subdivision (a).
Section 654, subdivision (a) provides in pertinent part, “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. . . .” In People v. Latimer (1993) 5 Cal.4th 1203, 1211-1212, the California Supreme Court held: “[T]he purpose of section 654 ‘is to insure that a defendant’s punishment will be commensurate with his culpability.’ [Citation.] . . . A person who commits separate, factually distinct, crimes, even with only one ultimate intent and objective, is more culpable than the person who commits only one crime in pursuit of the same intent and objective.” (See also People v. Perez (1979) 23 Cal.3d 545, 552; People v. Nguyen (1988) 204 Cal.App.3d 181, 191.) In People v. Britt (2004) 32 Cal.4th 944, 951-952, the California Supreme Court explained: “The test for determining whether section 654 prohibits multiple punishment has long been established: ‘Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.’ [Citation.]” (See Neal v. State of California (1960) 55 Cal.2d 11, 19.) The trial court has broad latitude in determining whether section 654, subdivision (a) applies in a given case. (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312; People v. Herrera (1999) 70 Cal.App.4th 1456, 1466.) We review the trial court’s order imposing multiple sentences in the context of a section 654, subdivision (a) question for substantial evidence. (People v. Osband (1996) 13 Cal.4th 622, 730-731; People v. Downey (2000) 82 Cal.App.4th 899, 917; People v. Oseguera (1993) 20 Cal.App.4th 290, 294; People v. Saffle (1992) 4 Cal.App.4th 434, 438.) In conducting the substantial evidence analysis, we view the facts in the following fashion: “We must ‘view the evidence in a light most favorable to the respondent and presume in support of the order the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]’ (People v. Holly (1976) 62 Cal.App.3d 797, 803.)” (People v. McGuire (1993) 14 Cal.App.4th 687, 698; see also People v. Green (1996) 50 Cal.App.4th 1076, 1085.)
Preliminarily, we note the trial court stayed the section 245, subdivision (a)(1) aggravated assault sentence imposed as to count 10 where Vicki was the victim pursuant to section 654, subdivision (a). Counts 11, corporal injury to a spouse (§ 273.5, subd. (a)), and 12, criminal threats (§ 422), relate to the incidents occurring on March 14, 2004, again where Vicki was the victim. On March 14, 2004, defendant demanded that Vicki tell him of S.’s whereabouts. This was after S. had fled. Defendant hit Vicki hard in the face, knocking her against the wall, and causing her to fall. Defendant told Vicki, “‘Get up and go call [S.] and tell her to get home.’” Vicki was bleeding from her nose. Vicki felt “half conscious” and was unable to move. Defendant walked away and into the kitchen. Defendant turned around and said: “‘You’re not up? You still haven’t called [S.] yet? . . . I know how to make you call [S.]. I’m going to go in the room and get a hammer. If you don’t call [S.], she’ll have one dead mother.’” Defendant’s infliction of corporal injury on Vicki was separated by time and space from his threat to kill her. Although defendant may have intended to learn of S.’s whereabouts, he employed, what the trial court reasonably could have found, two distinct acts with separate intents to achieve that objective. There was substantial evidence to support the trial court’s imposition of separate punishments for both counts 11 and 12 and then staying the imposition of sentence as to count 10 pursuant to section 654, subdivision (a).
C. Sufficient Evidence Supported The Section 667.61, subdivision (b) Enhancement
Defendant argues that there was insufficient evidence to support the jurors’ finding he imposed great bodily injury pursuant section 667.61, subdivision (b) in connection with the count 2 rape charge. Count 2 involved the rape of S. when she was 16 years old that resulted in her pregnancy. S. aborted the fetus. Defendant argues that “pregnancy does not constitute great bodily injury” and he did not personally perform the abortion. Defendant reasons, “The statute does not impose additional penalties for an act which proximately resulted in great bodily injury.”
Section 667.61 provides in pertinent part: “(b) . . . [A] person who is convicted of an offense specified in subdivision (c) under one of the circumstances specified in subdivision (e) shall be punished by imprisonment in the state prison for life and shall not be eligible for release on parole for 15 years . . . [¶] (c) This section shall apply to any of the following offenses: [¶] (1) A violation of paragraph (2) of subdivision (a) of Section 261. [¶] . . . [¶] (e) The following circumstances shall apply to the offenses specified in subdivision (c): [¶] . . . [¶] (3) The defendant personally inflicted great bodily injury on the victim . . . in the commission of the present offense in violation of Section . . . 12022.7 . . . .” Section 12022.7 provides in pertinent part: “(a) Any person who personally inflicts great bodily injury on any person . . . in the commission of a felony . . . shall be punished by an additional and consecutive term of imprisonment . . . [¶] . . . [¶] (f) As used in this section, ‘great bodily injury’ means a significant or substantial physical injury.”
The question of whether S. suffered a great bodily injury as a result of the rape, resulting pregnancy, and abortion is a question of fact for the jury which we review for substantial evidence. (People v. Escobar (1992) 3 Cal.4th 740, 750; see People v. Chan (2005) 128 Cal.App.4th 408, 424.) In People v. Sargent (1978) 86 Cal.App.3d 148, 152, our colleagues in the Court of Appeal for the Fourth Appellate District held: “Pregnancy can have one of three results—childbirth, abortion or miscarriage. Childbirth is an agonizing experience. An abortion by whatever method used constitutes a severe intrusion into a woman’s body. A miscarriage speaks for itself. . . . We merely find that the facts in this case, i.e., a pregnancy followed by an abortion, clearly support a finding of great bodily injury. In other words, there is evidence of injury significantly and substantially beyond that necessarily present in the commission of rape. [Fn. omitted.]” In People v. Superior Court (Duval)(1988) 198 Cal.App.3d 1121, 1131, the late Presiding Justice Robert K. Puglia of the Court of Appeal for the Third Appellate District held: “Pregnancy, abortion, or venereal disease constitute injury significantly and substantially beyond that necessarily present in the commission of an act of unlawful sexual intercourse. [Citation.]” (See also People v. Johnson (1986) 181 Cal.App.3d 1137, 1139-1141 [victim who received herpes as a result of forcible rape held to have suffered great bodily injury].) Presiding Justice Puglia explained that pregnancy is not an element of the crime of rape. But he noted, if pregnancy was specifically intended by the rapist, a bodily injury enhancement may be charged and found true. (People v. Superior Court (Duval), supra, 198 Cal.App.3d at p. 1132; People v. Langdon (1987) 192 Cal.App.3d 1419, 1421-1422; see also People v. Williams (1981) 115 Cal.App.3d 446, 454-455 [sufficient evidence to support great bodily injury enhancement where victim sustained a torn hymen as a result of which blood accumulated in her vagina].)
In this case, defendant repeatedly forcibly raped S. more than 100 times from age 13 to age 19. When S. became pregnant with defendant’s child at age 16, he was neither upset nor surprised. The rape that caused the pregnancy was violent. After dragging S. into the bathroom by her hair, defendant bent her over a full tub of water with her head partially immersed. S. passed out and awoke the following morning in pain and bruised. Defendant asked S. to have the baby. S. experienced weakness, dizziness, and difficulty walking while pregnant. S. then underwent an abortion. Defendant treated S. as his wife and mother of his two children. Defendant told the other children to call S., “Mom.” Defendant frequently asked S. if she wanted him to be her boyfriend. This constituted substantial evidence he intended to impregnate her as well as the great bodily injury finding.
D. Great Bodily Injury Instruction
1. Definition of the term “personally inflicted”
Defendant argues that the trial court improperly instructed the jury regarding the great bodily injury finding related to count 2. More specifically, defendant argues the trial court had a sua sponte duty to define the term “personally inflict.” He also argues that the trial court improperly instructed the jury that “‘[p]regnancy and/or abortion that result from a rape’” constitutes great bodily injury. Defendant further argues that if the instructional error was waived, he was denied effective assistance of counsel. We disagree.
The jury was instructed as follows: “It is further alleged that at the time of the commission of the crimes charged in count[] 2, rape, the defendant personally inflicted great bodily injury upon [S.] [¶] If you find the defendant guilty of the crime of rape, you must then determine whether the defendant personally inflicted great bodily injury upon [S.] in the commission of the rape. [¶] ‘Great bodily injury’ means the significant or substantial physical injury. The commission of the crime of rape does not by itself constitute great bodily injury. Minor, trivial, or moderate injuries inherent in the crime of rape do not constitute great bodily injury. Pregnancy and or an abortion that result in [sic] a rape constitute great bodily injury. [¶] The People have the burden of proving the truth of this allegation. If you have a reasonable doubt that it is true, you must find it not to be true. Include the special finding on this question using a form that will be supplied to you.”
Preliminarily, defendant did not request that the instruction at issue be amplified, clarified, or modified to include definitions of the terms “personally inflict.” The California Supreme Court has held that in the absence of such a request for an amplifying instruction by the defendant, “[T]he trial court is under no duty to give such an instruction sua sponte.” (People v. Dennis (1998) 17 Cal.4th 468, 514; People v. Rodrigues (1994) 8 Cal.4th 1060, 1189; People v. Hamilton (1988) 46 Cal.3d 123, 146; see also People v. Johnson (1993) 6 Cal.4th 1, 52 [failure to request clarifying instructions bars appellate review of the issue].) Moreover, a trial court has no sua sponte duty to provide amplifying instructions for commonly understood terms in the absence of a request. (People v. Ryan (1999) 76 Cal.App.4th 1304, 1318-1319; People v. Hill (1983) 141 Cal.App.3d 661, 668.) In People v. Estrada (1995) 11 Cal.4th 568, 574, the California Supreme Court held: “The rule to be applied in determining whether the meaning of a statute is adequately conveyed by its express terms is well established. When a word or phrase ‘“is commonly understood by those familiar with the English language and is not used in a technical sense peculiar to the law, the court is not required to give an instruction as to its meaning in the absence of a request.”’ [Citations.]” (See People v. Rowland (1992) 4 Cal.4th 238, 270-271; People v. Bonin (1988) 46 Cal.3d 659, 698 overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.) The Supreme Court has explained, “If a statutory word or phrase is commonly understood and is not used in a technical sense, the court need not give any sua sponte instruction as to its meaning.” (People v. Rodriguez (2002)28 Cal.4th 543, 546-547; People v. Estrada, supra, 11 Cal.4th at p. 574.)
There is no technical or other meaning for the term “personally inflict” other than the commonly understood definition of to strike or beat against without the help of others. (See Webster’s New World Dictionary (3rd college ed. 1991) pp. 693, 1008.) In People v. Modiri (2006) 39 Cal.4th 481, 493, the California Supreme Court defined the term as: “Commonly understood, the verb, ‘to inflict,’ means ‘to lay (a blow) on: cause (something damaging or painful) to be endured: impose.’ [Citation.] . . . [¶] The term ‘personally,’ which modifies ‘inflicts’ . . . refers to an act performed ‘in person,’ and involving ‘the actual or immediate presence or action of the individual person himself (as opposed to a substitute, deputy, messenger, etc).’” The trial court had no duty to define the term. Furthermore, even if the trial court erred in failing to define the term “personally inflict,” the omission was harmless under any standard. (Chapman v. California (1967) 386 U.S. 18, 23-34; People v. Williams (1997) 16 Cal.4th 153, 226-227; People v. Roberts (1992) 2 Cal.4th 271, 314; People v. Watson (1956) 46 Cal.2d 818, 836.) There was no evidence to contradict the fact that defendant impregnated S.. And the evidence of the consequences of her pregnancy was uncontradicted.
2. The trial court did not alter the burden of proof
Defendant argues that the trial court improperly included the language, “‘[p]regnancy and/or abortion that result from a rape constitute great bodily injury’” because it relieved the prosecution of its burden of proving every element of the “great bodily injury” allegation. We disagree. As set forth previously, pregnancy and abortion as the result of forcible rape do constitute great bodily injury within the meaning of sections 667.61, subdivision (b) and 12022.7, subdivision (f). (People v. Sargent, supra, 86 Cal.App.3d at p. 151; People v. Superior Court (Duval), supra, 198 Cal.App.3d at p. 1132.) In addition, the jury still had the responsibility of determining whether: S. had been pregnant; went through an abortion; and defendant was the individual that impregnated S.. The verdicts establish the jurors found the evidence supported all of these elements.
In any event, even if the language removed an element of the enhancement from the jurors’ consideration, any resulting error was harmless beyond a reasonable doubt. (Chapman v. California, supra, 386 U.S. at p. 22; People v. Breverman (1998) 19 Cal.4th 142, 174-177; People v. Flood (1998) 18 Cal.4th 470, 502-507; People v. Lewis (2006) 139 Cal.App.4th 874, 883-884.) As set forth above, after being submersed in the bathtub, S. became unconscious during the rape and awakened in defendant’s bed with bruises and vaginal pain. Within a few weeks, S. experienced nausea, weakness, dizziness, and difficulty walking. S. then endured the physical pain and trauma of an abortion. Any purported error was harmless.
3. Effective assistance of counsel
Based on the above conclusions, we need not address any failure on the part of defense counsel to object to the instruction in question. Counsel need not pursue futile or meritless objections or argument. (People v. Prieto (2003) 30 Cal.4th 226, 261; People v. Ochoa (1998)19 Cal.4th 353, 432; People v. Lewis (1990) 50 Cal.3d 262, 289.) In any event, defendant has failed to sustain his prejudice burden—we have no doubt as to the accuracy of the factfinding that has occurred and there is no reasonable probability of a different result. (Lockhart v. Fretwell (1993) 506 U.S. 364, 369-370; People v. Williams (2006) 40 Cal.4th 287, 304.)
E. Count 7
The count 6 and 7 convictions involve a complex mixture of fact, law, and waived error. In count 6, defendant was charged with committing the crime of corporal injury to a spouse on Vicki between October 1 and presumably November 30, 2001, in violation of section 273.5, subdivision (a). Defendant was convicted of the crime of corporal injury to a spouse as charged in count 6. In count 7, defendant was charged with assault with a deadly weapon in violation of section 245, subdivision (a)(1). The information alleges that the deadly weapon is a sledgehammer and the offense was committed between October 1 and presumably November 30, 2001. The count 7 instruction on the charged offense required the jury to find the assault involved the use of a deadly weapon. Without objection, as to count 7, the jury was instructed pursuant to CALJIC No. 17.10 that misdemeanor battery was a lesser included offense of assault with a deadly weapon. The jury was instructed as to the elements of misdemeanor battery pursuant to CALJIC No. 16.140. As to count 7, defendant was convicted of only a misdemeanor battery.
Section 273.5, subdivision (a) states, “Any person who willfully inflicts upon a person who is his or her spouse, former spouse, cohabitant, former cohabitant, or the mother or father of his or her child, corporal injury resulting in a traumatic condition, is guilty of a felony, and upon conviction thereof shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not more than one year, or by a fine of up to six thousand dollars ($6,000) or by both that fine and imprisonment.”
The relevant facts are as follows. During October or November 2001, defendant was upset with Vicki because she came home late. Defendant hit Vicki several times in the ribs with a closed fist. Defendant also kicked Vicki. Defendant then chased Vicki around the apartment with a sledgehammer. Defendant raised the sledgehammer over Vicki’s head and swung it at her without striking her. Defendant told Vicki, “‘I’m going to kill you.’” Defendant never struck Vicki with the sledgehammer as charged in count 7. The only actual physical touching occurred when defendant slugged Vicki in the ribs.
At the outset, we note that battery is not a necessarily included offense of assault with a deadly weapon. (People v. Jones (1981) 119 Cal.App.3d 749, 754; People v. Yeats (1977) 66 Cal.App.3d 874, 878-879.) But, defendant by acceding to the battery lesser included offense instruction, has forfeited any objection on appeal in terms of an absence of proper notice of the charges. (People v. Toro (1989) 47 Cal.3d 966, 975 overruled on another point in People v. Guiuan (1998) 18 Cal.4th 558, 568, fn. 3; People v. Howell (1990) 226 Cal.App.3d 254, 262.) To complicate matters, defendant never touched Vicki with the sledgehammer as charged in count 7. Without a slight touching, no battery conviction can be returned. (People v. Davis (1995) 10 Cal.4th 463, 541; see People v. Anzalone (1999) 19 Cal.4th 1074, 1082.) The only theory under which defendant could have been found guilty of battery as to count 7, which requires a touching, was the conduct for which he was convicted as to count 6, corporal injury to a spouse. Battery is a lesser included offense of a violation of section 273.5, subdivision (a). (People v. Abrego (1993) 21 Cal.App.4th 133, 137-138; People v. Gutierrez (1985) 171 Cal.App.3d 944, 952.)
In this unique context, defendant argues the misdemeanor battery conviction must be reversed. The controlling opinion is People v. Ortega (1998) 19 Cal.4th 686, 692: “In People v. Pearson (1986) 42 Cal.3d 351, 359, we recognized the tension between these statutes, observing: ‘This court has long struggled with the problem of permitting multiple convictions while protecting the defendant from multiple punishment.’ The solution we have adopted is, in general, to permit multiple convictions on counts that arise from a single act or course of conduct-but to avoid multiple punishment, by staying execution of sentence on all but one of those convictions. (Id. at p. 360.) [¶] But despite the seemingly absolute language of section 954 (‘the defendant may be convicted of any number of the offenses charged’), there is an exception to the general rule permitting multiple convictions. ‘Although the reason for the rule is unclear, this court has long held that multiple convictions may not be based on necessarily included offenses. [Citations.]’ (People v. Pearson, supra, 42 Cal.3d 351, 355, italics in original.) “‘The test in this state of a necessarily included offense is simply that where an offense cannot be committed without necessarily committing another offense, the latter is a necessarily included offense.” [Citations.]’ ( Ibid.)” (See People v. Reed (2006) 38 Cal.4th 1224, 1227.) We utilize the statutory elements test in assessing whether improper multiple convictions have occurred. (Id. at p. 1231.)
In Ortega, the defendant was convicted of both robbery and theft. (People v. Ortega, supra, 19 Cal.4th at pp. 689-690, 699.) The Supreme Court held that multiple convictions could not lawfully occur and explained: “In the present case, therefore, whether defendants properly were convicted of both robbery and theft depends upon whether those convictions were based upon the same conduct. As we shall explain, it appears that defendants’ convictions for theft were based, at least in part, upon the same conduct underlying defendants’ robbery convictions under count 3 of the amended information.” (Id. at p. 699, italics added.) Likewise, in the present case, defendant’s count 7 lesser included battery conviction was based in part on the count 6 violation of section 273.5, subdivision (a). No touching occurred in connection with the charged use of the sledge hammer by defendant as alleged in count 7. The only touching, the statutory element of the misdemeanor at issue, that can logically have occurred involved Vicki being slugged in the ribs; the very conduct which gave rise to the count 6 violation of section 273.5, subdivision (a). Thus, the count 7 misdemeanor conviction is reversed. Upon issuance of the remittitur, count 7 is to be dismissed.
F. Penalty Assessments and Court Security Fees
1. State court construction penalties
The Attorney General argues that the trial court should have imposed additional state court construction penalties. We agree. The trial court imposed an $200 section 1202.4, subdivision (b)(1) restitution fine and stayed the $200 section 1202.45 parole revocation restitution fine. These two restitution fines are not subject to section 1464, subdivision (a) and Government Code section 76000, subdivision (a) penalty assessments. (§ 1202.4, subd. (e); People v. Sorenson (2005) 125 Cal.App.4th 612, 617; People v. McHenry (2000) 77 Cal.App.4th 730, 734.) However, the fines are subject to a Government Code section 70372, subdivision (a) state court construction penalty which, states in part, “[T]here shall be levied a state court construction penalty, in addition to any other state or local penalty including, but not limited to, the penalty provided by Section 1464 of the Penal Code and Section 76000 of the Government Code, in an amount equal to five dollars ($5) for every ten dollars ($10) or fraction thereof, upon every fine, penalty, or forfeiture imposed and collected by the courts for criminal offenses . . . .” Government Code section 70372 became effective January 1, 2003. Although the imposition of its penalties as to those counts that occurred prior to that date would constitute an ex post facto application of the law, counts 5, 9, 10, 11, and 12 occurred after January 1, 1003. The state court construction penalty applies to “every fine, penalty, or forfeiture imposed and collected by the courts for criminal offenses . . .” which includes restitution fines applicable to those counts. Therefore, a state court construction penalty of $100 is to be added to both the section 1202.4, subdivision (b)(1) and 1202.45 restitution fines. (Needless to note, the additions to the section 1202.45 parole revocation restitution fines are stayed.)
2. Court Security fees
The Attorney General argues that the trial court should have imposed a $20 court security fee pursuant to section 1465.8, subdivision (a)(1) as to each count. We agree, with exceptions. (See People v. Schoeb (2005) 132 Cal.App.4th 861, 865-866.) The trial court imposed only one section 1465.8, subdivision (a)(1) court security fee. Section 1465.8 became operative on August 17, 2003. As a result, only those counts that occurred after that date are subject to the additional fees. We can only be certain that the crimes alleged in counts 11 and 12 occurred after August 17, 2003. As a result, one additional section 1465.8, subdivision (a)(1) fee shall be imposed. The trial court is to personally insure the abstract of judgment is corrected to comport with the modifications we have ordered. (People v. Acosta (2002) 29 Cal.4th 105, 109, fn. 2; People v. Chan, supra, 128 Cal.App.4th at pp. 425-426.)
G. Future Proceedings
We have reversed the count 1 continuous sexual abuse of a child count and directed its dismissal. The 16-year count 1 sentence was the principal term. Therefore, it will be necessary that resentencing occur as to the determinate terms. (People v. Pelayo (1999) 69 Cal.App.4th 115, 125; see 6 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Appeal, § 168, pp. 415-416.) The determinate sentences as to counts 5-6 and 8-9 are reversed. The trial court is to select a new principal term and calculate the determinate terms. There will be no need to change the count 10 sentence which has been stayed pursuant to section 654, subdivision (a). Thus, any issue concerning the current effect of Cunningham v. California (2007) ___ U.S. __, ___ [127 S.Ct. 856, 863-864] is moot.
IV. DISPOSITION
The judgment is reversed as to counts 1 and 7. Upon issuance of the remittitur, those counts are to be dismissed. As to counts 5-6 and 8-9, the sentences are reversed. Under the applicable sentencing law, the trial court is to: select a principal term; set the length of the term; calculate the sentences on the subordinate terms; and impose the state court fees and penalties as noted. The judgment is affirmed in all other respects.
We concur: ARMSTRONG, J., KRIEGLER, J.