Filed 4/22/16
                     CERTIFIED FOR PARTIAL PUBLICATION*




          IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                            THIRD APPELLATE DISTRICT
                                            (Yolo)
                                             ----


THE PEOPLE,                                                      C076235

                Plaintiff and Respondent,             (Super. Ct. No. CRF13-0744)

        v.

SERGIO ALVAREZ,

                Defendant and Appellant.



      APPEAL from a judgment of the Superior Court of Yolo County, Timothy L. Fall,
Judge. Reversed in part and remanded with directions.


      Scott Concklin, under appointment by the Court of Appeal, for Defendant and
Appellant.

      Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Jennifer
M. Poe, Deputy Attorneys General, for Plaintiff and Respondent.


* Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is
certified for partial publication, including the introduction, the Factual and Procedural
Background, subparts 1.1, 1.1.1, 1.1.2, 1.1.3, and 1.1.5 of the Discussion, and the
Disposition.


                                              1
          While on patrol in his official capacity as a police officer in West Sacramento,
defendant Sergio Alvarez induced five women he encountered to provide him sexual
favors, often to avoid being taken to jail. A jury convicted defendant of multiple counts
of aggravated kidnapping, oral copulation under threat of authority and by duress, and
rape under threat of authority and by duress. The jury also sustained kidnapping,
residential burglary, and multiple victim sentencing enhancements. He now appeals,
asserting there is insufficient evidence to support a number of his convictions, and the
trial court made various instructional and sentencing errors. In the published portion of
the opinion (subpts. 1.1, 1.1.1, 1.1.2, 1.1.3, and 1.1.5 of the Discussion, post) we address
limitations on the lawful arrest defense to kidnapping. We will reverse the judgment as
to several convictions, modify defendant’s sentence as to others, remand for retrial as to
one count, and otherwise affirm the judgment.

                    FACTUAL AND PROCEDURAL BACKGROUND
Terri G. (Counts 1-3)

          Toward the end of August 2012, Terri G. was walking to her friend’s house at
about 4:00 a.m. when she was stopped by a police officer in a patrol car. Terri G. had
been carrying methamphetamine that morning, but dropped it at a telephone booth before
the officer stopped her. The officer pulled his car in front of her, got out of the car, and
began searching through her purse. He began looking through her phone, asking if she
was “working” and whether the names in her phone were dates. She told him she was not
a prostitute and that she was going to see her boyfriend. The officer informed her she had
a warrant. He placed Terri G. in the backseat of the patrol car without handcuffing her,
and he returned her purse to her before closing the door. She felt that something “was not
right.”

          The officer told her she did not have to go to jail, despite her warrant. He asked
her again if she was a prostitute, and she responded that living on the street she had done


                                                2
things to survive that she was not proud of and that she would not want to do again. He
told her that she “knew what to do and to lay down.” Not knowing what else to do, she
complied. He began to drive; she was scared because he had a gun and she did not know
what was going to happen. The car stopped in an alley, and defendant opened the car
door and told her to get out. He instructed her to get down on her knees and to wipe off
her lipstick. He exposed his penis, and she began to fellate him. The officer kept
touching her back and head, complimenting her, and soliciting compliments from her.
She repeated whatever he told her to say because she “just wanted to get out alive.”
Eventually, he told her to get up, remove her pants, and lie face down in the backseat of
the patrol car. She complied because she did not feel she had any other choice. He had
intercourse with her, and then instructed her to get on her knees again, outside the car.
He inserted his penis in her mouth, held her by the neck and mouth, and ejaculated. She
wiped the ejaculate on her jacket. She did what he told her to do without objection
because she was scared that he would hurt her. She was not thinking about going to jail
for the warrant; she did not realize she was not going to jail until after he told her to get
dressed, to lay low, and that he would see her again.

       She later talked to a friend, Kayla R., about the event. Based on their discussion
about his physical description, she learned the officer was defendant. She reported the
incident to another officer when she was arrested on the outstanding warrant about a
week later. She identified defendant as the perpetrator in court and during an interview
with detectives.

       Defendant testified he encountered Terri G. one night as he was driving back to
the police department. He asked if she had anything illegal on her person; she replied
that she did not, but she was reaching into her pockets. She then consented to a search,
which he conducted. Finding nothing, he let her go. Only later did he run a warrant




                                               3
check of her name. Defendant denied having any sexual contact with Terri G. and denied
that she was in the backseat of his patrol car, despite the presence of her DNA.

       The jury convicted defendant of kidnapping Terri G. to commit oral copulation,
rape, or sexual penetration (count 1), committing oral copulation against her will by
threatening to use his authority as a public official (count 2), and of committing oral
copulation against her will by means of duress (count 3). The jury also sustained the
allegation that as to count 3, defendant had kidnapped the victim (enhancement 3a) and
had committed the same crime against multiple victims.
Anna B. (Counts 8-10)

       Anna B. is a heroin user and a self-professed “escort” who lives in Sacramento. In
September 2012, she was in West Sacramento staying with a friend. In the middle of the
night, she realized her cell phone battery was low and she did not have her phone charger
with her. She walked from her motel room looking for somewhere to buy a charger. As
she walked, a police officer in a patrol car (whom she identified at trial as defendant)
pulled over, got out of the car, and began asking her questions. She explained she was
trying to buy a cell phone charger and asked if he knew where she could purchase one.
He indirectly asked whether she was prostituting, and she responded she was not. He
asked her to get into the back of the patrol car so he could run her information. She asked
if there was any way to avoid that. He responded she should get in for safety reasons,
and that he would drive her to a store where she could purchase a charger. She got in and
he shut the door.

       He drove to another location, where he stopped and checked her information on
the computer and with the dispatcher. It seemed to her that he was trying to find
something to use as leverage against her, which made her nervous. At some point in their
conversation, she volunteered that she was under the influence of heroin. He told her he
could arrest her because she was under the influence. He insistently asked if she knew of


                                             4
any information to share with him, which made her feel she would have to divulge
something to be set free. She began to panic; she tried to reason with him and when that
did not work, she began pleading with him and crying. She felt helpless, trapped, and
scared. She began to get angry and asked why he did not just take her to jail. She was
scared and thought going to jail would be easier than dealing with him. He told her he
could not let her go unless she gave him something. She offered to give him her phone
number. He responded that he could take her somewhere more private. She told him she
would rather not, and that she would rather be taken to jail or released. He repeated he
would take her somewhere more private to discuss it. They drove somewhere dark and
remote. While driving, he made comments that made her think he was trying to get her
to solicit him or bribe him. He let her out of the car and implied he wanted sexual
conduct from her; she was intimidated, and felt she had to comply with his orders. She
did not necessarily think he would kill her, but she was frightened of more than just
incarceration.

       He lifted her onto the trunk of the car and made a comment about her breasts.
When he was putting her back on the ground, she accidentally touched the button on the
radio positioned on his shoulder, and he silenced her while he responded to someone
asking if he was all right. He then placed her hand on his penis, and directed her to
fellate him. She complied. For a short time, he handcuffed her because she said, “you
are a police officer and you are making me do this, so you might as well put me in the
handcuffs and . . . do it right . . . .” However, he removed them because she was having a
difficult time fellating him. He also felt her breasts, and may have touched her vagina.
Afterward, when she commented about him ejaculating in her mouth, he gave her a piece
of gum. He drove her to a gas station, let her go, and said he would “give [her] a call.”
She went in, bought her cell phone charger, and walked back to her motel.




                                             5
       About a month later, in Sacramento, Anna B. was sleeping on the street with her
boyfriend. A female police officer woke her up. Anna B. told her about the sexual
encounter with defendant. The female officer had Anna B. speak to a sergeant and some
detectives about the incident.

       Defendant testified he met Anna B. when he saw a man walking down the street
and Anna some distance behind him. When he approached, Anna B. walked toward his
patrol car and said she was glad he stopped because the man was “creeping” her out.
Defendant obtained Anna B.’s name and ran it through his system. He then got out of the
car and talked to her; she did not appear to be intoxicated or under the influence at that
time. As she was trying to find somewhere to buy a phone charger, he told her there was
a store nearby that would probably have one and offered her a ride, which she accepted.
She flirted with him while they drove, and he asked if she wanted to stop and talk. She
agreed, so he parked and they talked for 10 to 15 minutes. She offered to give him her
phone number, but another patrol car drove by, so defendant suggested they go
somewhere more private. She assented, so he drove to an industrial area and got out of
the car. He let her out and they began kissing. She said the situation was like a
“fantasy.” She accidentally hit the lapel microphone to his radio as he helped her off the
trunk of the car, and he heard the dispatcher. She asked if he was going to handcuff and
frisk her, so he handcuffed her behind her back and groped her breasts as she groped his
groin (he was standing behind her). It seemed to him that she was trying to unzip his
pants, so he unzipped them and she began to perform oral sex. She told him the
handcuffs were uncomfortable, so he removed them and she completed the act. After
talking some more he dropped her at a store so she could purchase her phone charger.

       The jury convicted defendant of kidnapping Anna B. to commit oral copulation or
sexual penetration (count 8), committing oral copulation against her will by threatening
to use his authority as a public official (count 9), and of committing oral copulation


                                              6
against her will by means of duress (count 10). The jury also sustained the allegation that
as to count 10, defendant had kidnapped the victim (enhancement 10a) and had
committed the same crime against multiple victims.
Kayla R. (Counts 13, 15-16)

       Kayla R. was first approached by defendant, who was driving his patrol car, in
October 2011 at about 3:00 or 4:00 in the morning while she was sitting at a bus stop in
front of a bar. She was high at the time and had a pipe and methamphetamine in her
purse. (She was also under the influence of methamphetamine when she testified at trial.)
She consented to defendant’s request to pat her down and search her purse. He found her
pipe, handcuffed her, and placed her in the backseat of the patrol car. He left her there
with the door closed while he spoke to other police officers. She was scared and thought
she was going to jail. After the other officers left, defendant opened the door and asked
why he should not take her to jail. He then repeatedly asked if she had something to offer
him, left her in the backseat to think some more, and shut the door again.

       When he returned, Kayla R. suggested sex. He did not respond, but shut the door,
started to drive, and told her to duck down. He parked in an area near several industrial
buildings. At the time she felt trapped and obligated to have sex with him, but did not
mind because she did not want to go to jail. He removed her handcuffs, exposed his
penis, and said it was his “first time doing . . . something like this,” and she fellated him
twice. They then had intercourse without a condom. He ejaculated, but told her she
would not get pregnant because he had had a vasectomy, so she did not mind.

       Afterward, he asked if she wanted to see him again, and she said yes and gave him
her phone number. She thought he was nice and it made her feel special or important to
be wanted by him. They met on perhaps a dozen occasions while defendant was on duty,
and had sex nearly every time they met. On these subsequent occasions, she did not feel
pressured to have sex because she was not trying to avoid jail. She does not feel that she


                                              7
was a victim; however, she did testify that she felt he was taking advantage of his
position as an officer.

       Defendant testified he met Kayla R. in late 2011 when he conducted a stop of two
known probationers who were with her on the street at the time. When her name did not
register any record in his warrant check, he challenged whether she was providing
accurate information, and she told him her family lived nearby and could verify its
accuracy. He drove her there, and denied any sexual contact took place. A couple of
weeks later, he saw her on the street wrapped in a blanket, so he stopped to speak with
her. She sat in the back of the patrol car, with the door open, while they talked because it
was cold. During that encounter, he found a methamphetamine pipe on her, so he
counseled her about the dangers of drugs. After they talked, he drove her to her friend’s
house. She gave him her phone number and told him to “call her sometime.” He denied
there was any sexual contact on that occasion. Their third encounter was initiated by his
phone call to her, which resulted in a consensual oral copulation. They continued to meet
for approximately eight months, always while he was on duty, and mostly involving an
act of oral copulation. He stopped calling her when it became apparent she was telling
others about their relationship, she started asking to see him when he was not working,
and she started asking him to rent a room for her. He denied arresting her, denied that
she pleaded with him to not take her to jail, and denied asking what she could give him so
that he would not take her to jail.

       The jury convicted defendant of kidnapping Kayla R. to commit oral copulation,
rape, or sexual penetration (count 13), committing oral copulation against her will by
threatening to use his authority as a public official (count 15), and of committing rape
against her will by threatening to use his authority as a public official (count 16).




                                              8
Karen N. (Counts 19-24)

       Karen N. testified that she had four interactions with defendant. On the first
occasion, in either December 2011 or January 2012, defendant and another officer
responded to a call about her disruptive behavior at her friend’s apartment. She was
intoxicated, screaming, and hitting the walls. Karen N. left the apartment voluntarily, and
the friend gave defendant Karen’s hat to return to her. After she left the apartment, either
with defendant or on her own, Karen N. found herself in an unknown location, possibly
handcuffed, in the back of a patrol car with defendant directing her to crawl out of the
backseat, get on her knees, close her eyes, and turn around. When she complied, she
found she was facing the officer’s exposed penis. Finding herself “caught between a rock
and a hard place,” not wanting him to kill or to hurt her and wanting to be set free, she
performed oral copulation on the officer. Afterwards, she stood up, looked at his name
tag, and heard him tell her, “now everything Mr. Alvarez does is a secret.”

       A few months later, when she was almost at her door after a night of recycling, she
heard a car approach her from behind. She ran into her motel room, but before she could
close the door, defendant entered and followed her into her bathroom. He ordered her
onto her knees, unzipped his pants, asked if she “want[ed] to do something,” and then
forced her to fellate him. She was frightened. When he was finished, he left.

       On the third occasion, Karen N. had just forced her boyfriend to leave her motel
room when defendant knocked on the door. Though she sat in her room with the lights
off without making any noise, defendant kept knocking on the door. She was nervous.
Defendant said, “Karen, if you don’t open the door, I have to go get a key and open it.”
Realizing he was not going to leave, she opened the door. He came into the room, closed
her window, asked her if she “wanted to do something,” exposed his penis, and directed
her to get on her knees. She became ill and vomited in the garbage can, but he did not




                                             9
care. She did not want to have sex with defendant but, to make him leave, she orally
copulated him, and briefly had intercourse with him.

       Their fourth interaction occurred when he approached her in his patrol car around
2:00 or 3:00 a.m. as she was walking out of a motel. On this occasion, she was “a little
bit high” on methamphetamine. He asked if she wanted a ride. She asked if he was
going to drive her home and got in the backseat of the car. Instead of taking her home, he
drove to a nearby alley. He looked at her, told her they could not have sex, though she
had not asked him to have sex with her, asked her if she “want[ed] to do something,”
unzipped his pants, and directed her to get on her knees. In an attempt to make it easier
for herself, she “played with him . . . and started kissing him and told him he was cute.”
Not knowing what else she could do, she complied and orally copulated him for “a
second,” and then she got up and ran away.

       Defendant testified he first met Karen N. long ago when he arrested her on a
domestic violence charge or warrant. He did recall escorting her from her friend’s
apartment one night when she was intoxicated and causing a disturbance. The friend
found a hat belonging to Karen N. after she had left, and defendant agreed to take it to
her. He found her walking nearby, returned her hat to her, and offered her a ride. Not
handcuffed, she got into the backseat and told defendant her friend was upset with her
because she “would not give it up to him.” But, she implied she would engage in sexual
conduct with defendant. He asked if she wanted to go somewhere to talk about it more,
and she said she did. He drove to a vacant area, parked, and let her out of the car. She
began to undress. Defendant told her he did not want that, but asked if she would give
him oral sex. She fellated him. About a month later, he saw Karen N. walk past his
parked patrol car. He greeted her and asked “if she remembered what happened last
time.” She responded that she did, that “it was kind of crazy, but she liked it.” He asked
if she would be willing to do it again. She assented, and he unlocked the door so she


                                             10
could get into the backseat. They drove to an alley, where he let her out of the car and
she performed oral sex. They had another sexual encounter at her motel after she waved
him over when he was patrolling the area. He entered her room, and she showed him
lingerie she had hanging in her closet. He asked if there was something she “wanted to
do.” She said “yeah,” and she fellated and had intercourse with him. He recorded this
encounter on a camera he carried on his person. She was intoxicated during each of these
encounters. He denied that the fourth incident Karen N. recounted ever took place, and
denied he had any sexual contact with her in her bathroom.

       The jury convicted defendant of committing oral copulation against the will of
Karen N. by means of duress on four separate occasions (counts 19, 20, 22 and 24); of
raping her by means of duress (count 21), and of kidnapping her to commit oral
copulation (count 23). The jury also sustained the allegations that, as to count 24, he had
kidnapped the victim (enhancement 24a), as to counts 20, 21 and 22, defendant had
committed the acts of oral copulation and rape during the course of a residential burglary
(enhancements 20a, 21a, 22a), and as to counts 19, 20, 22, and 24, he had committed the
same crime against multiple victims.1
Rochelle G. (Counts 25-27)

       In late September 2012, Rochelle G. was approached by an officer in a patrol car
at approximately 4:00 a.m. while she was walking in a shopping center parking lot. (In
subsequent questioning with detectives, she identified defendant as the officer in a
photographic lineup and recalled that his name began with the letter “A.”) Defendant,


1 The jury did not make any finding as to the multiple victim enhancement (Pen. Code,
§ 667.61, subd. (e)(4); undesignated statutory references are to this code) alleged in
association with count 21 and informed the court as such when the verdicts were read;
however, the trial court did not address this enhancement in its declaration of a mistrial as
to certain counts and enhancements. At the People’s request, we exercise our authority
pursuant to section 1260 to dismiss the multiple victim enhancement to count 21.


                                             11
who was in uniform and wearing his gun, got out of the patrol car, shone the car’s
spotlight on Rochelle G., and asked her why she was on the street at that time of night.
Rochelle G. informed him that she was going to use the pay phone by the grocery store
located in that shopping center to call a friend. He asked if she was prostituting. After
conducting a field sobriety test, defendant stated that it appeared Rochelle G. was under
the influence, which she denied. He searched her, feeling inside her bra and patting her
crotch and butt while she had her hands behind her head. He then placed her in the back
of the patrol car and closed the door, without handcuffing her. Rochelle G. felt very
uncomfortable, nervous, scared, and “stuck.” Defendant ran Rochelle G.’s name through
the computer in the car to check for outstanding warrants and an arrest record. He then
told her she was under arrest for being under the influence of a controlled substance.

       He asked her what she could do for him to let her go. She said she would not
“snitch” on anyone or provide any information but promised he would not see her on the
streets again at that time of night. He responded that was not what he wanted. She told
him she would not proposition him because it was illegal and he was a police officer. He
told her it was only illegal if she “g[o]t paid for it.” She asked him to drop her at a
relative’s house, which he declined, stating he was “not a taxi service.” They remained
parked at the shopping center for a while, until she finally agreed to fellate him so that
she could be released. She felt she “had to do it” because she was in the back of the
patrol car and it appeared to be “the only thing that [she] could do to not go to jail.”

       He drove her to an alley off a nearby street, obtained her assurance that this would
remain between them, and then stopped the car. He opened the back door, directed her to
remain seated but to move her feet out of the car and to wipe off her lipstick. He moved
closer, sought further reassurance the encounter would stay between them, unzipped his
pants, and exposed his penis. Defendant said something akin to “you know you want to,”
to which she replied, “I don’t want to.” Rochelle G. was feeling “real uncomfortable,”


                                              12
and she “wanted to run,” but she knew if she did, he would take her to jail, so she
proceeded to fellate him. While she was performing the oral copulation, he alternately
placed his hands inside her bra and used his hands to move her head back and forth. He
asked if she liked it, and she responded negatively. He ejaculated in her mouth, zipped
up his pants, sought further reassurances of her confidentiality, and then he left her in the
alley.

         Defendant testified he did not recognize Rochelle G. and did not recall any contact
with her. Additionally, he denied having any sexual contact with Rochelle G.

         The jury convicted defendant of kidnapping Rochelle G. to commit oral copulation
(count 25), committing oral copulation against her will by threatening to use his authority
as a public official (count 26), and of committing oral copulation against her will by
means of duress (count 27). The jury also sustained the allegations that as to count 27,
defendant had kidnapped the victim (enhancement 27a) and had committed the same
crime against multiple victims.
Sentencing

         The trial court sentenced defendant to an aggregate state prison term of 205 years
to life. It imposed consecutive 25-year-to-life sentences for counts 3, 10, 20, 21, 22,2 24,
and 27, a consecutive 15-year-to-life sentence for count 19, consecutive seven-year-to-
life sentences for counts 1, 8, 13, 23, and 25 (with the terms for counts 1, 8, 23, and 25
stayed pursuant to § 654), consecutive six-year determinate sentences for counts 2, 9, 15,
and 26 (with the terms for counts 2, 9, and 26 stayed pursuant to § 654), and a
consecutive two-year determinate sentence (one-third the middle term) for count 16.




2 The indeterminate abstract of judgment does not list the conviction for count 22 at item
1. On remand we will direct the trial court to correct the abstract by including
defendant’s conviction for oral copulation by duress (count 22).

                                              13
                                         DISCUSSION

          Defendant challenges the sufficiency of the evidence supporting all of his
convictions, save counts 20, 21, and 22 (victim, Karen N.). As to the kidnapping
convictions and enhancements, he contends there was insufficient evidence of unlawful
arrest or lack of consent. As to the oral copulation and rape under threat of authority
convictions, he contends there was insufficient evidence the threatened incarceration was
unlawful or the oral copulation was nonconsensual. As to oral copulation by means of
duress, he contends his conduct could be punished only as oral copulation under threat of
authority, and that there was insufficient evidence of duress. We accept and reject these
contentions to varying degrees.

          Defendant also asserts various instructional errors. Namely, he claims that the
trial court should have instructed on the kidnapping defense of lawful arrest and should
have defined “threat” to mean a declaration or expression of intent to do an injurious and
unlawful act; that a special instruction provided by the trial court erroneously permitted
the jury to find a threat based only on the victim’s subjective interpretation of the
circumstances; and that an instruction regarding defendant’s reasonable belief in a
victim’s consent was erroneously applied to the counts in which he was charged with oral
copulation or rape under threat of authority, improperly directed the jury to conclude
defendant was dishonest, and also negated his defense of consent based on a reasonable
mistake of fact. We conclude the trial court did make various instructional errors, but
these errors were mostly harmless.

          Defendant also asserts that the trial court should have stayed his sentence on
counts 15 and 16 pursuant to section 654, and that the sentences it imposed in counts 1, 8,
13, 23, and 25 were unauthorized. As to those assertions, we agree, though we do not
modify the sentence as to count 23 because we reverse it on other grounds as stated
herein.



                                               14
1.0    Sufficiency of the Evidence

       Defendant contends his convictions for all counts, except counts 20, 21, and 22,
and all kidnapping enhancements must be reversed because they are supported by
insufficient evidence. With respect to the kidnapping counts and enhancements, he
contends he did not kidnap the victims—either because they consented to riding in his
patrol car or because he had lawfully arrested them. With respect to the convictions for
oral copulation or rape under threat of authority, defendant contends he did not threaten
any unlawful conduct as required to sustain the convictions because he had lawfully
arrested the victims. With respect to the convictions for oral copulation or rape by means
of duress, defendant alternately contends there was no duress because the sexual contact
was consensual or there was no requisite threat of “ ‘force, violence, danger, or
retribution.’ ” (§ 261, subd. (b).) We conclude insufficient evidence supports
defendant’s convictions for counts 19, 23, 24 (Karen N.), and 27 (Rochelle G.).

       In considering a claim challenging the sufficiency of the evidence to support a
conviction, “ ‘ “we review the entire record in the light most favorable to the judgment to
determine whether it contains substantial evidence—that is, evidence that is reasonable,
credible, and of solid value—from which a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.” ’ ” (People v. McCurdy (2014) 59 Cal. 4th
1063, 1104.) We presume the existence of facts that can be reasonably deduced from the
evidence in support of the judgment. (Ibid.) However, “a jury may not rely upon
unreasonable inferences, and . . . ‘[a]n inference is not reasonable if it is based only on
speculation.’ ” (People v. Hughes (2002) 27 Cal. 4th 287, 365.) In this review, we do not
resolve credibility issues or conflicts in the evidence de novo. (People v. Jackson (2014)
58 Cal. 4th 724, 749.) Reversal is not warranted unless there is no hypothesis on which
there exists substantial evidence to support the conviction. (People v. Bolin (1998)
18 Cal. 4th 297, 331.) We apply the same test where sufficiency of the evidence of a
sentencing enhancement is challenged. (People v. Alvarez (1996) 14 Cal. 4th 155, 225.)

                                              15
       1.1      Aggravated Kidnapping and Kidnapping Enhancements*
       Defendant contends there is insufficient evidence to support a finding that he
kidnapped the victims, for purposes of either the aggravated kidnapping convictions or
the kidnapping sentencing enhancements, because in each instance either (1) the victim
consented to the movement, even if that consent was obtained by fraud or deceit, or (2)
the victim was under lawful arrest at the time of the movement. We conclude substantial
evidence supports the kidnapping conviction and enhancement as to some victims but not
as to others.

       To be convicted of aggravated kidnapping, as defendant was in counts 1, 8, 13, 23,
and 25, he must have “kidnap[ped] or carrie[d] away” another to commit rape, oral
copulation, or any other specified offense, where “the movement of the victim is beyond
that merely incidental to the commission of, and increases the risk of harm to the victim
over and above that necessarily present in, the intended underlying offense.” (§ 209,
subd. (b)(1), (2).) Similarly, the kidnapping sentencing enhancement for counts 3 and 10
require that in the commission of rape or oral copulation by means of duress, among
other enumerated crimes, “[t]he defendant kidnapped the victim . . . and the movement of
the victim substantially increased the risk of harm to the victim over and above that level
of risk necessarily inherent in the underlying offense . . . .” (§ 667.61, subd. (d)(2); see
id., subd. (c)(1) & (7).) Thus, unsurprisingly, both the aggravated kidnapping convictions
and the kidnapping sentencing enhancements require the jury to find that defendant
kidnapped the victims.

       As pertinent here, section 207, subdivision (a) defines “kidnapping” as “forcibly,
or by any other means of instilling fear, steal[ing] or tak[ing], or hold[ing], detain[ing], or
arrest[ing] any person in this state, and carr[ying] the person into another country, state,
or county, or into another part of the same county . . . .” Thus, kidnapping requires the


* See footnote, ante, page 1.


                                              16
asportation of the victim accomplished by force or instilling fear. (People v. Majors
(2004) 33 Cal. 4th 321, 326 (Majors).) This does not require physical compulsion. (Id. at
pp. 326-327.) Rather, where the victim reasonably feels compelled under the
circumstances to comply with the defendant’s orders under fear of harm or injury from
the defendant, the asportation is forcible. (Id. at p. 327.) Moreover, asportation
accomplished by threat of arrest “carries with it the threat that one’s compliance, if not
otherwise forthcoming, will be physically forced.” (Id. at p. 331.) Thus, the threat of
arrest carries with it an implicit use of force necessary for a kidnapping conviction.
(Ibid.) In contrast, where the perpetrator tricks the victim into the asportation by fraud,
deceit, enticement, or false promises, without application of the requisite force or fear,
there is no kidnapping. (Majors, at pp. 327-328.)

       Additionally, where a victim consents to the movement, meaning he or she
exercises his or her free will in the absence of threats, force, or duress, there is no
kidnapping. (See People v. Sattiewhite (2014) 59 Cal. 4th 446, 476-477 (Sattiewhite).)
However, even where a victim’s initial cooperation is obtained without force or fear, a
kidnapping occurs if the accused subsequently compels the victim to accompany him.
(People v. Hovarter (2008) 44 Cal. 4th 983, 1017 [where victim voluntarily accepted ride
with the defendant, that voluntariness is vitiated when the defendant does not let the
victim out of the car]; accord, People v. Thompson (1967) 252 Cal. App. 2d 76, 87-88
[movement is not consensual where victim agrees to follow robber upstairs, stops
midway up the stairs to look at relatives below, and continues only after robber waves
gun and says “Come on, come on”].)

       Further, the criminal kidnapping statute does not apply “[t]o any person acting
under Section 834 . . . ,” which defines a lawful “arrest” as “taking a person into custody,
in a case and in the manner authorized by law.” (§§ 207, subd. (f)(2), 834.) An arrest
requires “ ‘(1) taking a person into custody; [and] (2) actual restraint of the person or his


                                              17
[or her] submission to custody.’ ” (People v. Boren (1987) 188 Cal. App. 3d 1171, 1177.)
An officer may arrest a person if that person has an outstanding warrant or, in the absence
of a warrant, where the person to be arrested has committed a public offense in the
officer’s presence, or the officer has probable cause to believe the person to be arrested
has committed a felony. (§ 836, subd. (a)(1), (3).) Whether an officer has probable cause
to effectuate an arrest is an objective standard, and the “ ‘secret intentions, hopes, or
purposes’ ” of the arresting officer are not relevant to the legality of the arrest. (Levin v.
United Air Lines, Inc. (2008) 158 Cal. App. 4th 1002, 1018; see People v. Rodriguez
(1997) 53 Cal. App. 4th 1250, 1266-1267 [the arresting officer’s ulterior motives do not
invalidate behavior that is otherwise objectively reasonable pursuant to the Fourth
Amendment].) Additionally, “probable cause is not vitiated and an arrest remains valid
even if the officer purports to arrest the person for the wrong crime.” (Johnson v. Lewis
(2004) 120 Cal. App. 4th 443, 452.)

       Again, section 207, subdivision (f)(2) provides for the application of the lawful
arrest defense to a “person acting under Section 834 [defining a legal arrest] . . . .”
(Italics added.) Based on the plain language of the statute, once a person is no longer
acting to effectuate a legal arrest, the protection from criminal liability otherwise
afforded is lost. Just as the defense afforded by a victim’s initial consent may be vitiated
by a subsequent withdrawal of that consent (People v. Hovarter, supra, 44 Cal.4th at
pp. 1017-1018), we conclude that changing circumstances may limit a defendant’s ability
to rely on a lawful arrest as a defense to a kidnapping charge. Thus, while an officer is
transporting someone pursuant to a lawful arrest, he is not kidnapping the arrested
person; however, once the transportation is no longer for lawful law enforcement
objectives, it may transmute into a kidnapping.3


3 We are not persuaded by defendant’s assertion that he is immunized from prosecution
for kidnapping or any lesser included offense based on his lawful arrest of the victims

                                              18
             1.1.1 Terri G. (Count 1 and Enhancement 3a)*
       Defendant contends his conviction for the aggravated kidnapping of Terri G.
(count 1) and the kidnapping enhancement applied to his conviction for oral copulation
by means of duress (enhancement 3a) must be reversed because she was subject to a
lawful arrest when she was transported in defendant’s patrol car. We disagree.

       To convict defendant of kidnapping, the jury had to necessarily reject defendant’s
testimony that Terri G. was not in his patrol car. Thus, it must have at least partially
accepted Terri G.’s testimony, which was that by the time defendant restrained Terri G.
by placing her in the backseat of the patrol car and closing the door, he knew she had an
outstanding warrant. That would provide defendant probable cause to arrest her. (See
§ 836, subd. (a) [“A peace officer may arrest a person in obedience to a warrant”].)
Thus, this would appear to be a case in which an arrest was authorized by the law.
Additionally, despite the fact defendant returned Terri G.’s purse to her and did not
handcuff her, there is nothing about the manner in which defendant effected the arrest



pursuant to section 847. Section 847 applies as a bar to civil liability. (§ 847, subd. (b).)
The inclusion of the phrase “cause of action” in this section does not, contrary to
defendant’s argument, make that statute applicable to criminal liability. Each of the
examples proffered by defendant as authority for the phrase “cause of action” denoting
criminal counts is inapposite. Penal Code section 298, subdivision (c)(2), Health and
Safety Code section 25984, subdivision (b)(1), Government Code section 8655.5,
subdivision (c)(1), and Business and Professions Code section 11021 all specifically
provide a “civil or criminal” (italics added) modifier to the term “cause of action” to
indicate that a criminal claim is effected. Section 847 does not include any such
modifier. Instead, it states, “[t]here shall be no civil liability . . . and no cause of action
shall arise . . . .” (§ 847, subd. (b).) Additionally the two criminal cases cited by
defendant wherein a cause of action is mentioned involve a discussion of the general
concepts of res judicata and collateral estoppel; they do not involve an interpretation of
section 847. (See People v. Sims (1982) 32 Cal. 3d 468, 477, fn. 6; see also People v.
Damon (1996) 51 Cal. App. 4th 958, 968.) Indeed, defendant has not cited any cases, nor
have we found any, in which section 847 has applied to immunize a peace officer from
criminal liability.
* See footnote, ante, page 1.


                                              19
that violates constitutional norms. However, after arresting Terri G., defendant told her
she did not have to go to jail despite her warrant, pointedly asked if she was a prostitute,
and when she responded that she had done things of which she was not proud and would
not want to do again, he told her she “knew what to do and to lay down.” She was
frightened and did not know what else to do, so she complied. He drove the car to an
alley, where he opened the car door and directed her to perform oral sex. At the point at
which defendant began to offer an alternative to jail while driving the patrol car, he was
not “acting under” a lawful arrest but to pursue his own prurient interests. Accordingly,
there is substantial evidence to support a finding that the lawful arrest defense did not
apply to absolve defendant of criminal liability.
            1.1.2 Anna B. (Count 8 and Enhancement 10a)*
       Defendant contends his conviction for the aggravated kidnapping of Anna B.
(count 8) and the kidnapping enhancement applied to his conviction for oral copulation
by means of duress (enhancement 10a) must be reversed because she was subject to a
lawful arrest when she was transported in defendant’s patrol car and she consented to
being transported in the car, even if the asportation was by fraud or deceit. We disagree.

       According to both Anna B.’s and defendant’s testimony, Anna B. entered the rear
seat of defendant’s patrol car voluntarily based on his promise that he would take her to a
store to purchase a cell phone charger. Thus, Anna B.’s initial consent appears to have
been voluntarily given, without the threat of arrest, even if it was premised on a
fraudulent promise by defendant. However, she further testified that they drove to a
second location, where he stopped the car to run her information, seemingly to find
something to use as leverage against her. At that point, she began to plead with him to let
her go and cried. He refused to release her. Instead he drove to a third and more remote
location, where he directed her to perform oral sex. By then her consent had been

* See footnote, ante, page 1.


                                             20
vitiated by defendant’s refusal to release her at the second location. Thus, there is
substantial evidence to support the jury’s finding that Anna B. did not consent to the
movement.

       At some point during their conversation at the second location, Anna B. divulged
to defendant that she was under the influence of heroin. However, defendant testified
that when he first encountered Anna B. she did not appear to be intoxicated or under the
influence of any narcotic. Because being under the influence of the narcotic, as opposed
to its possession, is only a misdemeanor offense, defendant lacked probable cause to
arrest Anna B. unless she committed that offense in his presence. (Pen. Code, § 836;
Health & Saf. Code, § 11550.) However, even assuming defendant did lawfully arrest
Anna B., there is substantial evidence to support a finding that the lawful arrest defense
did not apply where defendant transported Anna B. from the second location to an
isolated area so they could talk in private despite her request to be taken to jail, where he
made comments to induce her to solicit him while driving, and where, on arriving at the
final location, he implied he wanted sexual contact with her. During the course of this
asportation, there is substantial evidence to support a finding that even if defendant had
lawfully arrested Anna B. at one time, he was no longer “acting under” that arrest when
he drove her to an isolated area so that she could satisfy his prurient interests. Therefore,
neither count 8 nor enhancement 10a are to be reversed for a want of evidence.
             1.1.3 Kayla R. (Count 13)*
       Defendant contends his conviction for the aggravated kidnapping of Kayla R.
(count 13) must be reversed because she was subject to a lawful arrest when she was
transported in defendant’s patrol car and she consented to being transported in the car.
We disagree.



* See footnote, ante, page 1.


                                             21
       According to Kayla R.’s testimony, she did not enter the patrol car until after
defendant had patted her down, found a methamphetamine pipe in her possession, placed
her in handcuffs, and directed her to sit in the backseat. She was, therefore, subject to a
lawful arrest when she entered defendant’s patrol car. Nonetheless, after other officers
left the scene, defendant opened the door, asked Kayla R. why he should not take her to
jail, and prodded her to offer him something, leaving her in the locked rear compartment
to “think.” Thereafter, once she offered him sex, he told her to duck down and he drove
her to an area near some industrial buildings, where she orally copulated him. This is
substantial evidence to support a finding that during his transportation of Kayla R.,
defendant was no longer “acting under” a lawful arrest and is not entitled to the
protection of that defense.

       According to defendant, Kayla R.’s testimony shows she made the voluntary
decision to go with defendant to have sex rather than go to jail. Kayla R. did testify that
she offered to have sex with defendant, that defendant then began driving, and while they
drove defendant and Kayla R. talked about what would be “a good place to go to do
that.” Defendant argues this is evidence of positive cooperation in act or attitude
pursuant to an exercise of free will, thereby constituting consent. (See Sattiewhite, supra,
59 Cal.4th at pp. 476-477.) Were we to look at that evidence alone, we might agree with
defendant’s assessment.

       However, Kayla R. also testified that defendant had handcuffed her, placed her in
the backseat of the patrol car, and left her there while he spoke with other officers. After
the other officers left, he asked why he should not take her to jail and what she had to
offer him. When she refused to provide him any information, he shut the door again, and
left her to think. For purposes of kidnapping, one has not consented unless acting “freely
and voluntarily and not under the influence of threats, force or duress . . . .” (People v.
Davis (1995) 10 Cal. 4th 463, 517.) Thus, “the concepts of consent and force or fear with


                                             22
regard to kidnapping are inextricably intertwined.” (Majors, supra, 33 Cal.4th at p. 331.)
Therefore, where there is a threat of arrest, there is also an implied threat that a failure to
comply will result in the application of physical force, thereby undermining the victim’s
free will in any assessment of consent. (Ibid.) Here, Kayla R. was under arrest at the
time she purportedly consented to go with defendant, already handcuffed and sitting in
the rear seat of his patrol car. Therefore, there is substantial evidence to support a finding
that she did not consent to go with defendant.4
             1.1.4 Karen N. (Count 23)5
       Defendant contends his conviction for the aggravated kidnapping of Karen N.
(count 23) must be reversed because she consented to being transported in the patrol car,
even if the asportation was by fraud or deceit. We agree.

       By their fourth interaction, defendant had raped Karen N. and had forced her to
orally copulate him on multiple occasions. Thus, it is theoretically possible, as the
People argue, that Karen N. was afraid of defendant based on their past interactions.
Nonetheless, Karen N.’s testimony does not establish that her will was overcome by fear
when she got into the car voluntarily, thinking defendant was going to drive her home
when he offered her a ride. Nor are we persuaded that Karen N.’s question to defendant,
“are you really going to give me a ride home?” before getting into his car, is substantial
evidence to support a conclusion that her consent was not voluntarily given. Even if she
did doubt where defendant was going to take her that does not render her decision to
enter the car involuntary.


4 For the same reasons, we do not find any error in the trial court’s denial of defendant’s
motion for acquittal as to count 13. (See People v. Stevens (2007) 41 Cal. 4th 182, 200.)
5 In light of our conclusion in section 1.3.3, post, at page 36, that insufficient evidence
supports defendant’s conviction for oral copulation by means of duress in count 24, we
do not address his contention that insufficient evidence supports the sentencing
enhancement in count 24a. (See § 667.61, subd. (a).)


                                              23
       Thus, even though defendant drove her to an alley instead of home, there is no
evidence that Karen N. resisted being transported in defendant’s car in any way or that
defendant asserted any force or threat to cause Karen N. to get in the car. On this
evidence, despite the fact that Karen N.’s consent to enter the patrol car and to be
transported by defendant was obtained by deceit, there is insufficient evidence to support
a finding that it was not voluntarily provided. (Majors, supra, 33 Cal.4th at pp. 327-328;
People v. Stephenson (1974) 10 Cal. 3d 652, 659-660.) Therefore, defendant’s conviction
for count 23 must be reversed.6
            1.1.5 Rochelle G. (Count 25)7/*
       Defendant contends his conviction for the aggravated kidnapping of Rochelle G.
(count 25) and the kidnapping enhancement applied to his conviction for oral copulation
by means of duress (enhancement 27a) must be reversed because she was subject to a
lawful arrest when she was transported in defendant’s patrol car and she consented to
being transported in the patrol car. We disagree.

       As noted above, an arrest is not lawful where it is not conducted in a manner
authorized by law. (§ 836.) Here, in searching Rochelle G. following her field sobriety
test, defendant felt her breasts inside her bra and patted her crotch and butt, making
Rochelle G. feel very uncomfortable. Defendant was authorized only to conduct a search


6 In light of this conclusion, we do not address defendant’s contention that the abstract of
judgment on count 23 must be corrected to reflect that he was convicted of aggravated
kidnapping to commit oral copulation and not “Oral cop by duress,” as currently
indicated. Nor do we address whether the trial court committed a sentencing error as to
this count.
7 In section 1.3.2, post, at pages 31 to 33, we conclude there is insufficient evidence to
support defendant’s conviction for oral copulation by means of duress in count 27.
Therefore, we do not address the sufficiency of the evidence to support enhancement 27a,
because it cannot stand in the absence of an associated conviction. (See § 667.61, subd.
(a).)
* See footnote, ante, page 1.


                                             24
incident to arrest, which, subject to limitations, authorizes an officer “to search an
arrestee’s person, personal property, or vehicle for evidence of crime in order to prevent
its concealment or destruction” (People v. Tom (2014) 59 Cal. 4th 1210, 1247) or to
protect officer safety where there is reason to believe the suspect is armed (see Riley v.
California (2014) ___ U.S. ___, ___ [189 L. Ed. 2d 430, 440]). Here, there was nothing to
indicate Rochelle G., whom defendant arrested for being under the influence of a
narcotic, was armed or that she would be able to conceal or destroy evidence of her crime
with anything inside her bra, vagina, or buttocks. Therefore, defendant’s search of
Rochelle G. was unreasonable and her arrest was not conducted in a manner authorized
by law. Accordingly, there is substantial evidence to support a finding that the lawful
arrest defense did not apply.

       Rochelle G. testified she did not enter defendant’s car until after he directed her to
do so (after he shone a spotlight on her, accused her of prostituting, conducted field
sobriety tests, accused her of being under the influence of drugs, and improperly searched
her). This is substantial evidence to support the jury’s finding that Rochelle G. did not
enter the car consensually. (Majors, supra, 33 Cal.4th at p. 331.) Thereafter, while she
remained locked in the rear compartment of the patrol car, defendant refused her request
to take her to her relative’s house and refused to release her on her promise not to be on
the streets at that time of night again. Based on the circumstances and the victim’s
custodial status, it would be reasonable for a jury to conclude that Rochelle G. did not
consent to the movement, despite agreement to orally copulate defendant, because she
could not leave and defendant had already demonstrated that he would not release her or
take her where she wanted to go. (See Sattiewhite, supra, 59 Cal.4th at pp. 476-477
[consent requires “an exercise of ‘a free will’ ” and “that the consenting person . . . ‘act[s]
freely and voluntarily and not under the influence of threats, force, or duress’ ”].)




                                              25
Therefore, there is substantial evidence to support the finding that Rochelle G. did not
consent to the movement. [END OF PUB. PT. OF DISCUSSION]
       1.2 Rape and Oral Copulation Under Threat of Authority
       Defendant contends there is insufficient evidence to support his convictions for
rape or oral copulation under threat of authority (§§ 261, subd. (a)(7), 288a, subd. (k)) in
counts 2, 9, 15, 16, or 26, because he did not unlawfully threaten incarceration, arrest, or
deportation. We disagree.

       The statutes at issue here require the perpetrator to commit the sexual intercourse
or oral copulation “against the victim’s will by threatening to use the authority of a public
official to incarcerate, arrest, or deport the victim . . . .” (§§ 261, subd. (a)(7), 288a, subd.
(k).)8 Had the Legislature intended sections 261, subdivision (a)(7) and 288a,
subdivision (k) to require a threat only of an unlawful incarceration, arrest, or deportation,
it certainly could have so stated. But it did not, and we decline to read such a
requirement where the Legislature has not provided it. (People v. Leal (2004) 33 Cal. 4th
999, 1008 (Leal) [in construing a statute, we do not “ ‘ “insert what has been
omitted” ’ ”].)

       Moreover, contrary to defendant’s assertion, though many statutes make the
criminality of a threat dependent on the unlawful nature of the act threatened, not all do. 9


8 These sections stand in contrast to section 289.6, subdivision (a)(2), which provides
that “a peace officer who engages in sexual activity with a consenting adult who is
confined in a detention facility is guilty of a public offense.” (Italics added.)
9 For example, section 71, subdivision (a) makes it a crime to prevent or attempt to
prevent a school or public officer or employee from fulfilling his or her duties “by means
of a threat . . . to inflict an unlawful injury”; section 76, subdivision (a) makes it a crime
to “knowingly and willingly threaten[] the life of, or threaten[] serious bodily harm to”
public officials; section 137, subdivision (b), defines the requisite “threat of force”
necessary to be convicted of inducing false testimony as a “threat of unlawful injury”;
sections 261, subdivision (a)(6) and 288a, subdivision (l) define a threat of “retaliat[ion]”
as a basis for a rape or unlawful oral copulation conviction as “a threat to kidnap or

                                               26
The crime of extortion, for example, permits a jury to find the fear necessary to sustain a
conviction based on a threat by the defendant to accuse the victim or a relative of a crime;
to expose or impute to the victim a deformity, disgrace, or crime; to expose a secret
affecting the victim; or to report the immigration status or suspected immigration status
of the victim. (§ 519, subds. 1-5.) While these threatened acts are not unlawful per se,
when a person issues these threats in an effort to obtain property or an official act, it is a
crime. (§§ 518, 523; see, e.g., Mendoza v. Hamzeh (2013) 215 Cal. App. 4th 799, 805
[“[t]he threat to report a crime may constitute extortion even if the victim did in fact
commit a crime”]; see also People v. Peniston (1966) 242 Cal. App. 2d 719, 723-724
[permitting conviction for criminal extortion where the defendant threatened to show
partially nude photographs of the victim to her husband and parents].) Similarly here,
regardless whether the threatened arrest or incarceration was lawful, it is illegal to
threaten those acts to induce a victim to engage unwillingly in sexual intercourse or oral
copulation with a defendant. Therefore, we do not address defendant’s contention that
there was insufficient evidence he threatened any unlawful act. As that is the only
contention defendant raised with respect to the sufficiency of the evidence supporting
counts 2 (Terri G.) and 9 (Anna B.), we conclude those counts are supported by
substantial evidence.

       We next turn to defendant’s contention that as to Kayla R. and Rochelle G., there
is insufficient evidence the sexual act was nonconsensual to support his convictions in




falsely imprison, or to inflict extreme pain, serious bodily injury, or death”; section 422,
subdivision (a) makes it unlawful to “willfully threaten[] to commit a crime”; and section
519, subdivision 1 provides that a threat “[t]o do an unlawful injury” to a person or
property may provide sufficient fear to constitute an extortion. We also acknowledge that
to protect First Amendment rights, the use of the term threat in section 69, which
prohibits a person from deterring an officer by threat or violence, has been interpreted to
mean a threat of unlawful violence. (In re Manuel G. (1997) 16 Cal. 4th 805, 814-815.)


                                              27
counts 15, 16, and 26. We conclude substantial evidence supports the jury’s implicit
findings that Kayla R. and Rochelle G. did not consent to the sexual acts.

       For purposes of rape under threat of authority, “consent” means “positive
cooperation in act or attitude pursuant to an exercise of free will. The person must act
freely and voluntarily and have knowledge of the nature of the act or transaction
involved.” (§ 261.6.) We see no reason to apply a different definition for purposes of the
oral copulation under threat of authority. Here, Kayla R. had been handcuffed,
threatened with jail, and then taken to a remote location. She did not offer to have sex
with defendant until after he had arrested her, handcuffed her, confined her, and left her
to think more when she refused to provide information. By not taking her to jail or
releasing her when she refused to offer something in exchange, defendant had already
demonstrated he would continue to apply threats and pressure when he did not get what
he wanted. Kayla R. testified she felt trapped and obligated to have sex with defendant to
avoid jail. On this evidence, though it is balanced, we conclude a jury could reasonably
find Kayla R. had not consented to the sexual acts for purposes of counts 15 and 16.10

       Rochelle G. did not agree to fellate defendant in exchange for her release until
after defendant had already searched her improperly, confined her in the patrol car,
rejected the promise she offered in exchange for being released, refused to drive her to a
relative’s house, and suggested it would only be illegal for her to proposition defendant if
he paid her. Even when he drove her to an alley and exposed his penis, she informed him
she did not want to fellate him. She further testified she was uncomfortable and wanted
to run or resist, but felt she “had to do it” and that if she did not, defendant would take her
to jail and no one would believe her. Rochelle G. plainly did not want to fellate



10 For the same reasons, we find no error in the trial court’s denial of defendant’s motion
for acquittal as to counts 15 and 16. (See People v. Stevens, supra, 41 Cal.4th at p. 200.)


                                              28
defendant. Therefore, there is substantial evidence to support a finding that the oral
copulation charged in count 26 was nonconsensual.
       1.3 Oral Copulation by Means of Duress
       Defendant contends there is insufficient evidence to support his convictions for
oral copulation by duress in counts 3, 10, 19, 24, and 27. Section 288a, subdivision
(c)(2)(A) provides that “[a]ny person who commits an act of oral copulation when the act
is accomplished against the victim’s will by means of force, violence, duress, menace, or
fear of immediate and unlawful bodily injury on the victim or another person . . . ” has
committed a criminal act. Defendant was charged specifically as having violated this
section by means of duress only; therefore, we limit our review to determine if there is
substantial evidence to support the convictions pursuant to that theory. (People v. Kunkin
(1973) 9 Cal. 3d 245, 251.) For purposes of this section, “duress" is a direct or implied
threat of force, violence, danger, hardship, or retribution sufficient to coerce a reasonable
person of ordinary susceptibilities to perform an act which otherwise would not have
been performed, or acquiesce in an act to which one otherwise would not have submitted.
(Leal, supra, 33 Cal.4th at pp. 1005, 1009-1010.)
             1.3.1 Application of the Williamson Rule
       First, we address defendant’s contention that, pursuant to In re Williamson (1954)
43 Cal. 2d 651, 654-655, his convictions for oral copulation by duress in counts 3, 10, and
27, cannot stand because they are based on his threats to bring Terri G., Anna B., and
Rochelle G. to jail, which conduct is specifically punishable under section 288a,
subdivision (k). As we explain below, we conclude section 288a, subdivision (k) is a
more specific statute preventing prosecution under section 288a, subdivision (c)(2)(A)
where the only threatened conduct is arrest, incarceration, or deportation.

       Where a specific statute prohibits the same crime as a more general statute, the
court will infer a legislative intent that the crime be punished only under the specific



                                             29
statute. (In re Williamson, supra, 43 Cal.2d at pp. 654-655; accord, People v. Jenkins
(1980) 28 Cal. 3d 494, 505 [“The fact that the Legislature has enacted a specific statute
covering much the same ground as a more general law is a powerful indication that the
Legislature intended the specific provision alone to apply.”].) “Absent some indication
of legislative intent to the contrary, the Williamson rule applies when (1) ‘each element of
the general statute corresponds to an element on the face of the special statute’ or (2)
when ‘it appears from the statutory context that a violation of the special statute will
necessarily or commonly result in a violation of the general statute.’ ” (People v. Murphy
(2011) 52 Cal. 4th 81, 86.) Thus, as explained in Mitchell v. Superior Court (1989)
49 Cal. 3d 1230, 1250, “when the Legislature has enacted a specific statute addressing a
specific matter, and has prescribed a sanction therefor, the People may not prosecute
under a general statute that covers the same conduct, but which prescribes a more severe
penalty, unless a legislative intent to permit such alternative prosecution clearly appears.”

       The elements of oral copulation by means of duress are (1) oral copulation, (2)
accomplished against the victim’s will, and (3) by means of a direct or implied threat of
force, violence, danger, hardship, or retribution sufficient to coerce a reasonable person
of ordinary susceptibilities to perform an act that otherwise would not have been
performed, or acquiesce in an act to which one otherwise would not have submitted.
(§ 288a, subd. (c)(2)(A); Leal, supra, 33 Cal.4th at p. 1006.) The elements of oral
copulation under threat of authority are (1) oral copulation, (2) accomplished against the
victim’s will, (3) by threatening to use the authority of a public official to incarcerate,
arrest, or deport the victim or another, and (4) the victim has a reasonable belief the
perpetrator is a public official. (§ 288a, subd. (k).) Thus, each of the elements of the
more general crime of oral copulation by means of duress corresponds to an element
appearing on the face of the more specific crime of oral copulation under threat of




                                              30
authority, where the threat of authority is simply a specific category of threats that may
be issued to constitute duress.

       Additionally, violations of both statutes are generally punishable by the same
sentencing triad of three, six, or eight years in state prison. (§§ 288a, subd. (c)(2)(A),
(k).) However, oral copulation by means of duress is subject to harsher sentencing if the
victim is a minor or if the crime is committed in conjunction with an aggravated
kidnapping or first degree burglary. (§§ 288a, subds. (c)(2)(B)-(C), 667.61, subds. (c)(7),
(d)(2), (4).) Thus, the two provisions do conflict. (See People v. Artis (1993)
20 Cal. App. 4th 1024, 1026-1027 [stating the necessity of a conflict between the elements
to prove, or the punishment for, the crimes codified in the statutes for purposes of the
Williamson rule analysis].)

       Therefore, to the extent that defendant’s convictions for oral copulation by means
of duress in counts 3, 10, and 27 are premised on conduct that would be punishable as
oral copulation under threat of authority, those convictions must be reversed. If,
however, there is substantial evidence of a “ ‘direct or implied threat of force, violence,
danger, hardship, or retribution sufficient to coerce a reasonable person of ordinary
susceptibilities to perform an act which otherwise would not have been performed, or
acquiesce in an act to which one otherwise would not have submitted’ ” (Leal, supra,
33 Cal.4th at p. 1006, italics omitted), other than a threat to “incarcerate, arrest, or
deport” the victim (§ 288a, subd. (k)), the convictions may be affirmed.
             1.3.2 Sufficiency of the Evidence of Duress in Counts 3, 10, and 27
       In light of our conclusion regarding the application of the Williamson rule, we
address whether there is sufficient evidence of duress to support defendant’s convictions
in counts 3, 10, and 27 when we exclude evidence of a threat of incarceration. We
conclude defendant’s conviction for count 27 (Rochelle G.) must be reversed because
there is insufficient evidence of duress when we exclude a threat of arrest, incarceration,


                                              31
or deportation, which cannot be considered as a basis for oral copulation by means of
duress due to the existence of the more specific statute penalizing oral copulation under
threat of authority. However, we find substantial evidence to support defendant’s
convictions for oral copulation by means of duress in counts 3 (Terri G.) and 10
(Anna B.).

       The fact that a victim was in custody at the time of the sexual contact is not
sufficient in and of itself to show that she was coerced into consenting to the contact, nor
is the fact that defendant was armed with a gun in its holster; however, these are both
factors to be considered among the totality of the circumstances to determine whether
there was a sufficient threat to overcome the victim’s will. (See People v. Williams
(2007) 156 Cal. App. 4th 949, 961[custody alone is not sufficient to render consent to a
search involuntary where officers did not draw their weapons or make an “ ‘overt or
implied threat of force’ ”].) Additionally, while psychological coercion may be
considered in determining whether there is evidence of duress, “ ‘ “[p]sychological
coercion” without more does not establish duress.’ ” (People v. Espinoza (2002)
95 Cal. App. 4th 1287, 1321.)

       Terri G. refused to tell defendant about any drug dealers when he suggested she
did not have to go to jail despite her outstanding warrant. Defendant then asked if she
had ever been a prostitute and told her she “knew what [she] could do for him” and to “lie
down.” She complied, “[b]ecause he’s a police officer and [she] didn’t know what to
do.” She was scared because she had never had an experience like this, defendant was
armed, and she did not know what was going to happen. He drove her to an alley, told
her to get on her knees, and placed his penis in her mouth. She “just wanted to get out
alive,” so she did what he told her to do and did not resist. When he ejaculated, he had
one hand around her throat and one on the back of her head, choking her. That defendant
told her to lie down, indicating that he wanted to avoid suspicion or notice; that he drove


                                             32
her to an isolated alley; that he was armed and she was in custody; that he forced his
penis into her mouth; and that he ultimately put his hand around her throat, were
sufficient to demonstrate at least an implied threat of force or violence, sufficient to
sustain a finding of duress. Therefore, there is substantial evidence to support
defendant’s conviction on count 3.

       Anna B. was not afraid that defendant would take her to jail, for she repeatedly
asked to be taken to jail or let go, but she was afraid of something else, and she was
intimidated by defendant. She did not think he would kill her but feared something
“more than incarceration,” and she felt she had to comply with his orders. Based on her
testimony, Anna B. had cause to be afraid: She was in a strange town; it was late at
night; she was alone and her cell phone battery was waning or had died when she was
contacted by defendant; she felt defendant was trying to trick her into soliciting or bribing
him; he drove her to a dark and remote location after she had asked to be released or
taken to jail; he silenced her when the dispatcher called on the radio; and he refused to
release her despite her pleas. On this evidence, a reasonable trier of fact could conclude
defendant made a direct or implied threat of danger, sufficient to sustain a finding of
duress to warrant a conviction for oral copulation by duress in count 10.

       Unlike Terri G. and Anna B., Rochelle G. did not testify that she was afraid of
what defendant would do to her. Instead, her testimony evinced her sole motivation in
fellating defendant was to avoid going to jail. As she said, she “felt like [she] had to do
what [she] had to do so that [she] didn’t have to go to jail that night.” In the absence of
any evidence that Rochelle G. engaged in the oral copulation for any reason other than a
threat of jail, defendant’s conviction for oral copulation by duress in count 27 cannot
stand. Here, there is no such evidence. Therefore, we reverse defendant’s conviction for
count 27 based on insufficient evidence of duress.




                                              33
             1.3.3 Sufficiency of the Evidence of Duress in Counts 19 and 24
       Defendant also challenges the sufficiency of the evidence for counts 19 and 24
(Karen N.), claiming, with respect to count 19, there was no evidence he made an express
or implied threat of force, violence, danger, hardship, or retribution, and with respect to
count 24, there was no evidence of a “direct or implied threat of force, violence, danger,
or retribution” that overcame Karen N.’s will to refuse the oral copulation. We address
these two counts separately because the conduct was not also punished by a conviction
based on a threat of arrest, incarceration, or deportation. Nonetheless, the Williamson
rule still applies, so where the evidence demonstrates the threatened conduct, independent
of any threat of arrest, incarceration, or deportation, is insufficient to sustain a finding of
duress, the conviction must be reversed. We conclude neither conviction is supported by
substantial evidence.

       As to the first incident, charged as count 19, there is no evidence of any direct or
implied threat of force, violence, danger, hardship or retribution. The People argued
Karen N. was afraid of defendant because she was drunk, it was cold outside, she had no
means of transportation to her motel room other than a ride from defendant, she could not
remember where she was or what happened prior to finding herself in defendant’s car,
and she gave defendant oral sex because she wanted to “set [her]self free” and she did not
want defendant to hurt her. But, Karen N. testified that she asked defendant for a ride
after the person she was staying with kicked her out of his apartment. The next thing she
remembered was being on the sidewalk giving defendant oral sex. She vaguely recalled
being told to “crawl out of the backseat,” to “get on [her] knees,” to “close [her] eyes,”
and to “turn around.” She complied and his penis was directly in front of her face. When
he asked, “you want this?” she began to fellate him without saying anything. She may
have been handcuffed but, as discussed above, even if she was in custody, that in and of
itself is not sufficient to demonstrate coercion, especially where she could not remember



                                              34
defendant saying anything else to her. (See People v. Williams, supra, 156 Cal.App.4th
at p. 961.)

       Additionally, though Karen N. felt she was “caught between a rock and a hard
place,” and that she orally copulated him because she “wanted to set [her]self free, and
[she did not] want this guy to hurt [her],” and she “thought maybe he was going to shoot
[her] execution style for no reason whatsoever,” she also acknowledged that her “mind
kind of goes to drastic extremes.” “Under some circumstances a conviction [premised on
a theory of ‘fear of immediate and unlawful bodily injury’ (§ 288a, subd. (c)(2)(A))] can
be sustained even where the victim entertains an unreasonable fear of the assailant, if the
assailant knows and takes advantage of the unreasonable fear.” (People v. Bermudez
(1984) 157 Cal. App. 3d 619, 625.) But here, there is no evidence that defendant was
aware of Karen N.’s fear, nor was defendant charged with oral copulation by means of
“fear of immediate and unlawful bodily injury.” (§ 288a, subd. (c)(2)(A); see People v.
Kunkin, supra, 9 Cal.3d at p. 251 [in a substantial evidence analysis, we do not consider
theories not before the jury].) Therefore, her fear of being shot, in the absence of some
direct or implied threat that defendant would shoot her, is not relevant to this inquiry.
And there was no evidence defendant threatened to shoot her, or even that he unholstered
his service weapon.

       On these facts, there is insufficient evidence to support a finding of duress with
respect to this first incident. Therefore, we must reverse defendant’s conviction in count
19 for oral copulation by means of duress.

       Defendant also contends there is insufficient evidence to support his conviction for
oral copulation by means of duress in count 24 because there was no direct or implied
threat of force, violence, danger, or retribution, and there was no evidence Karen N. did
not consent to the sexual contact. The People argue the jury could have found an implied
threat of force or retribution based on the three prior incidents between defendant and


                                             35
Karen N. in which defendant asked Karen N. if she “want[ed] to do something” just
before ordering her onto her knees and placing his penis in her mouth.

       As noted above, the fourth incident was initiated when defendant offered to give
Karen N. a ride home, and she got into the patrol car, even though she asked if he was
“really” going to take her home. She could not explain how she ended up on her knees in
an alley instead—she suggested “Maybe I was accustomed to it. I don’t know. Maybe
he said it. I don’t know.” But she did recall that she began to “play[] with him” by
kissing him and telling him he was cute to make it easier on herself. She put her mouth
on his penis momentarily and then ran away, but she returned to collect her sunglasses
when defendant shouted that she had forgotten them. There was no evidence that he tried
to stop her or that he followed her.

       Though the history between defendant and Karen N. could certainly color the
interpretation of this incident, there was simply no evidence that defendant even
impliedly threatened any force, violence, danger, hardship, or retribution would befall
Karen N. if she did not orally copulate him on this occasion, nor was there any evidence
she resisted or otherwise did not consent to the sexual contact. Accordingly, we must
reverse defendant’s conviction for oral copulation by means of duress in count 24 for
insufficient evidence.

2.0    Instructional Errors

       Defendant claims the trial court erred in failing to instruct the jury sua sponte on
the defense of lawful arrest. We conclude any error by the trial court in failing to provide
such an instruction was harmless.

       Defendant also contends it was error for the trial court to fail to provide a
definition of the term “threat.” We conclude the only error in this regard was failing to
instruct the jury that a defendant may not be guilty of oral copulation by means of duress



                                             36
where the direct or implied threat is a threat of arrest, incarceration, or deportation. We
further conclude this error was prejudicial as to count 3 (Terri G.), and therefore reverse
the judgment with respect to that count.

       Defendant also contends the trial court provided an erroneous special instruction
on threats that permitted the jury to find a threat based solely on the victim’s subjective
interpretation of the circumstances without a finding that defendant directly or impliedly
issued a threat. We conclude any error in this instruction was harmless.

       Defendant’s final set of instructional challenges are aimed at the instruction
provided regarding whether defendant could reasonably rely on a victim’s consent. We
conclude defendant did not suffer any prejudice as a result of any error in the instruction.

       In considering a claim of instructional error, we first ascertain what the relevant
law provides, and then determine what meaning the instruction given conveys. (People v.
Andrade (2000) 85 Cal. App. 4th 579, 585.) “ ‘[T]he correctness of jury instructions is to
be determined from the entire charge of the court, not from a consideration of parts of an
instruction or from a particular instruction.’ ” (People v. Carrington (2009) 47 Cal. 4th
145, 192.) We presume jurors are “intelligent and capable of understanding and applying
the court’s instructions.” (People v. Gonzales (2011) 51 Cal. 4th 894, 940.) And we do
not find error unless “there is a reasonable likelihood that the jury understood the
instruction in a manner that violated the defendant’s rights.” (Andrade, supra,
85 Cal.App.4th at p. 585.)
       2.1 Defense of Lawful Arrest
       Defendant contends the trial court prejudicially erred by failing to instruct the jury
sua sponte on the lawful arrest defense to kidnapping. A trial court is not obligated to
instruct on a particular defense sua sponte unless (1) it appears the defendant is relying on
the defense, or (2) there is substantial evidence to support the defense and the defense is
not inconsistent with the defendant’s theory of the case. (People v. Dominguez (2006)


                                             37
39 Cal. 4th 1141, 1148.) “[W]hen the trial court believes ‘there is substantial evidence
that would support a defense inconsistent with that advanced by a defendant, the court
should ascertain from the defendant whether he wishes instructions on the alternative
theory.’ ” (People v. Breverman (1998) 19 Cal. 4th 142, 157 (Breverman).) Even
assuming the trial court erred by not instructing the jury sua sponte on the lawful arrest
defense to kidnapping, we conclude the error was not prejudicial.

       Terri G., Rochelle G., and Kayla R. all testified that they were arrested by
defendant. Anna B. testified that though she got into the patrol car consensually, she later
told defendant she was under the influence of heroin and defendant responded that he
could take her to jail for that. As to Terri G., defendant testified that she was not in his
patrol car and they never had any sexual contact. As to Rochelle G., he testified that he
had no sexual contact with her, and, further, that he did not recognize her or recall any
contact with her whatsoever. As to Kayla R., defendant specifically denied arresting her
and testified that when he drove Kayla R. in his patrol car it was consensual and, on the
occasion that was the basis of the kidnapping conviction, so that he could drive her to a
friend’s house. Defendant testified he gave Anna B. a ride so she could buy a cell phone
charger, that they stopped to talk when she began flirting with him, and that they drove
somewhere private so she could live out a sexual fantasy.

       Defendant’s principal theory as to Terri G. and Rochelle G. was that they had
concocted their testimony in association with Kayla R., and his alternate theory,
assuming the jury believed the victims’ testimony, was that no kidnapping had occurred
because he had not moved them any more distance than necessary to complete the sex
act, i.e., that the movement was incidental. The defense theory as to Kayla R. was that
their relationship was entirely consensual. As to Anna B., the defense theory was that she
was a prostitute and a liar, and their entire interaction was consensual.




                                              38
       A lawful arrest defense would clearly be inconsistent with defendant’s theory that
Terri G. had never been in his patrol car and that his transportation of both Kayla R. and
Anna B. was consensual. However, it would not necessarily be inconsistent with his
theory that he did not remember Rochelle G. Nor is it necessarily inconsistent with the
theory that the asportation of Terri G. and Rochelle G. was incidental only. Therefore, in
light of the evidence that these victims may have been lawfully arrested, it was likely
error for the trial court to fail to provide a lawful arrest instruction sua sponte, or at least
to ascertain whether defense counsel wanted such an instruction.11 The purpose of such
an inquiry is to “afford assurance that the theory has not been inadvertently overlooked
by counsel,” which it appears to have been here. (People v. Sedeno (1974) 10 Cal. 3d
703, 717, fn. 7.)

       That does not mean, however, that the trial court’s error was prejudicial. We
review the failure to instruct sua sponte on a defense under the standard set forth in
People v. Watson (1956) 46 Cal. 2d 818. (See Breverman, supra, 19 Cal.4th at p. 178; see
also People v. Elize (1999) 71 Cal. App. 4th 605, 616.) Thus, we do not reverse a
conviction of a charged offense unless, “ ‘after an examination of the entire cause,
including the evidence’ [citation], it appears ‘reasonably probable’ the defendant would
have obtained a more favorable outcome had the error not occurred [citation].”
(Breverman, at p. 178.) This review is distinct from a review for the sufficiency of the
evidence. In a harmless error analysis, we conduct a “broader and more active
consideration of the evidence. In appraising the prejudicial effect of trial court error, an
appellate court does not halt on the rim of substantial evidence or ignore reasonable



11 However, there is insufficient evidence to support instruction on this defense with
respect to the kidnapping of Karen N. (count 23 and enhancement 24a) because there was
no evidence she entered the car other than voluntarily based on defendant’s fraudulent
offer to drive her home.


                                               39
inferences favoring the appellant.” (People v. Butts (1965) 236 Cal. App. 2d 817, 832.)
We consider, among other things, the relative strength of the evidence supporting the
existing judgment and that evidence supporting a different outcome to determine “that
there is no reasonable probability the error of which the defendant complains affected the
result.” (Breverman, at p. 177.)

       Here, there was evidence that defendant was not “acting under” that lawful arrest
for the entirety of his transportation of the victims. Indeed, the victims’ testimony
suggests that defendant drove the vulnerable women to isolated areas—an alley, an
industrial area, and a construction zone—in the middle of the night so they could provide
him sexual satisfaction. Thus, the victims provide both the evidence of the arrest, which
defendant generally denied by his own testimony, and the evidence of defendant’s
subsequent words and conduct showing he had abandoned pursuit of law enforcement
objectives that may have been associated with the arrest initially to pursue his own
prurient interests instead. Thus, the relative strength of the evidence supporting the
existing judgments, i.e., that defendant had kidnapped Terri G., Anna B., Kayla R., and
Rochelle G., and that he was not transporting them while “acting under Section 834”
(§ 207, subd. (f)(2)), indicates “there is no reasonable probability” (Breverman, supra,
19 Cal.4th at p. 177) that had the jury been instructed on the lawful arrest defense he
would have been found not guilty as to counts 1, 8, 13, and 25, and enhancements 3a,
10a, and 27a.12 Therefore, any error by the trial court was harmless.
       2.2 Threats
            2.2.1 Failure to Define
       Defendant contends the trial court prejudicially erred with respect to all counts in
failing to instruct the jury sua sponte on the meaning of the term “threat.” Specifically,


12 We have already reversed count 27 and its accompanying enhancement—27a—based
on insufficient evidence.


                                             40
he argues the jury should have been instructed that in the context of criminal law a threat
is a declaration or expression of intent to do an injurious and unlawful act. We conclude
the trial court did not err in failing to define the term “threat” as proposed by defendant.
However, it was error, as to counts 3 and 10, for the trial court to fail to instruct the jury
that defendant could not be found guilty of oral copulation by means of duress unless the
jury found defendant’s threat, whether direct or implied, was a threat of something other
than incarceration or arrest.

       “The language of a statute defining a crime or defense is generally an appropriate
and desirable basis for an instruction, and is ordinarily sufficient when the defendant fails
to request amplification. If the jury would have no difficulty in understanding the statute
without guidance, the court need do no more than instruct in statutory language.”
(People v. Poggi (1988) 45 Cal. 3d 306, 327.) A court need not “define terms that are
commonly understood by those familiar with the English language, but it does have a
duty to define terms that have a technical meaning peculiar to the law,” i.e., where the
“ ‘statutory definition differs from the meaning that might be ascribed to the same terms
in common parlance.’ ” (People v. Bland (2002) 28 Cal. 4th 313, 334.) Thus, whether an
instruction is required “turn[s] not on whether the term or phrase at issue has more than
one meaning, but on whether the term or phrase has a ‘technical meaning peculiar to the
law.’ ” (People v. Forbes (1996) 42 Cal. App. 4th 599, 605.)

       Defendant first contends that the legal definition of “threat” requires that he
expressed intent to do something, and cannot mean he posed a threat by his presence or
existence. We disagree. Here, the instructions to the jury were that to find defendant
guilty of oral copulation or rape by duress, the jury had to find “a direct or implied threat
of force, violence, danger, or retribution,” and to find defendant guilty of oral copulation
or rape under threat of authority, the jury had to find defendant “threaten[ed] to use the
authority of a public office to incarcerate or arrest someone.” These instructions indicate


                                              41
defendant actually had to do something, whether through words or conduct, that
threatened some specific action or condition, i.e., “force, violence, danger, or retribution”
or “incarcerat[ion] or arrest.” There is nothing to indicate “threat” or “threaten” in this
context means anything more particular that a person familiar with the English language
would not understand.

       Additionally, we note the threat could be based on defendant’s conduct, without
defendant vocalizing any express threat, so he could by his presence, depending on the
attendant circumstances, convey a threat sufficient to constitute duress. (See People v.
Wilkerson (1992) 6 Cal. App. 4th 1571, 1578-1580 [concluding substantial evidence to
support convictions for lewd conduct with a child under the age of 14 by duress where
the defendant occupied a position of authority, had a background of drinking and
violence, and circumstances suggested an implied threat of harm if the victims refused to
comply]; but see People v. Espinoza, supra, 95 Cal.App.4th at pp. 1321-1322
[defendant’s lewd act was not accomplished by duress where the only showing was that
he was the victim’s father, he was larger than she was, she had a limited intellectual level,
and she was afraid because he had molested her several times].) Defendant’s citation to
People v. Jackson (1996) 13 Cal. 4th 1164, 1256 (conc. opn. of Mosk, J.) for the
proposition that a threat cannot be based on his mere presence is equally unconvincing.
There, Justice Mosk disagreed with Justice Baxter (also concurring) regarding whether a
nonviolent escape constituted an “ ‘implied threat’ of force or violence” for purposes of
determining whether the death penalty should apply. (Id. at p. 1255 (conc. opn. of Mosk,
J.).) Justice Mosk held that there was no threat regardless whether he accepted that a
threat was “ ‘[an] expression of an intention to inflict loss or harm on another by illegal
means and esp[ecially] by means involving coercion or duress of the person threatened’ ”
or “ ‘something that by its very nature or relation to another threatens the welfare of the
latter,’ ” i.e., a crumbling cliff that threatened the village over which it loomed. (Id. at



                                              42
p. 1256 (conc. opn. of Mosk, J.).) Therefore, defendant’s argument that threat in this
context cannot mean he posed a threat by his presence or existence is unavailing.

       Nor are we persuaded that the definition of “threat” as “ ‘an “ ‘expression of an
intent to inflict evil, injury, or damage on another,’ ” ’ ” as stated in People v. Borrelli
(2000) 77 Cal. App. 4th 703, 715, is controlling here. That definition is drawn from cases
involving the criminalization of pure speech as threats, which necessarily requires
communication of the threat through verbalization and, by extension, involves a context
in which First Amendment protections come into play, thereby requiring that the
threatened conduct be limited to physical violence or other unprotected speech. (See id.
at pp. 715-717.)

       We also disagree with defendant’s contention that for purposes of rape or oral
copulation under threat of authority there is no threat unless defendant threatened illegal
arrest or incarceration. As discussed above, regardless whether the threatened arrest or
incarceration is unlawful, the fact that it is threatened to induce the victim to engage
unwillingly in sexual intercourse or oral copulation renders the act illegal. (See §§ 518,
523; see also Mendoza v. Hamzeh, supra, 215 Cal.App.4th at p. 805 [“[t]he threat to
report a crime may constitute extortion even if the victim did in fact commit a crime”];
People v. Peniston, supra, 242 Cal.App.2d at pp. 723-724 [finding the defendant could be
convicted of criminal extortion where he threatened to show partially nude photographs
of the victim to her husband and parents].)

       Finally, we need not address defendant’s contention that with respect to rape or
oral copulation by means of duress, there is no duress if the application of “force,
violence, danger, or retribution” threatened is lawful. First, we have already reversed
counts 19, 24, and 27 based on a lack of substantial evidence to support a finding of
duress; therefore, we do not address any instructional error with respect to those counts.
Moreover, to the extent we found there was substantial evidence to support a conviction


                                              43
for oral copulation by means of duress in counts 3 (Terri G.) and 10 (Anna B.), it was
based on a threat of force, violence, or danger that entailed unlawful conduct. The trial
court need not provide an instruction that is not supported by substantial evidence;
therefore, even if defendant is correct in his assertion that there is no duress if the
application of “force, violence, danger, or retribution” threatened is lawful (an assertion
we do not decide), it would not be error in this instance for the trial court to fail to
provide such an instruction here.

       The same is true of counts 20, 21, and 22, where the duress finding was not
premised on any threat of lawful action or merely on the circumstances. Rather, the
duress finding was premised on a combination of defendant’s conduct and words,
including for count 20: Defendant pushed his way into Karen N.’s motel room uninvited,
followed her into her bathroom, ordered her onto her knees while he unzipped his pants,
and forced her to orally copulate him. And for counts 21 and 22, he knocked insistently
on her motel room door, indicated if she did not open the door, he would get a key and
open it, then came into the room, closed the window, exposed his penis, forced her onto
her knees, ignoring the fact that she was ill, and directed her to orally copulate him and
then to have vaginal intercourse. There was not substantial evidence to support any
instruction on lawful “threat” with respect to these counts.

       However, as we explained above, pursuant to the Williamson rule, any conviction
for oral copulation or rape by means of duress could not be based on a threat by
defendant to use his authority as a peace officer to arrest, incarcerate, or deport the
victims. (In re Williamson (1954) 43 Cal. 2d 651.) Based on this conclusion, as to counts
3 (Terri G.) and 10 (Anna B.) it was error for the trial court to fail to instruct the jury that
for oral copulation by means of duress, a threat of incarceration cannot be the basis of a
finding of duress. The parties do not agree which harmless error standard applies, but we
need not decide because, under either standard, we cannot conclude the error to be


                                               44
harmless as to count 3 (Terri G.), and we conclude the error is harmless as to count 10
(Anna B.). Though we concluded there was substantial evidence to support the
conviction for oral copulation by means of duress in count 3, there was not enough
evidence to render it even reasonably probable that defendant would not have achieved a
more favorable result had the jury been instructed in kind. (People v. Watson, supra,
46 Cal.2d at p. 836.) On the other hand, as to count 10, it is clear beyond a reasonable
doubt that the jury did not base its finding of duress on fear of incarceration or arrest
because Anna B. clearly testified she was not afraid of incarceration but asked defendant
to take her to jail, and there was no conflicting evidence presented. (Chapman v.
California (1967) 386 U.S. 18 [17 L. Ed. 2d 705].) Therefore, we reverse defendant’s
conviction as to count 3 only.
             2.2.2 Erroneous Special Instruction
       The trial court provided the jury a special instruction that read as follows:
“Several of these Instructions for the charged crimes or enhancements require you to
determine whether the defendant made ‘a threat’ or ‘threatened’ to do something. When
these Instructions require that you consider such ‘threats,’ it is not necessary to conclude
that the defendant spoke the threat in express words, nor are particular words otherwise
required for the threat. The Jury may conclude that the defendant ‘threatened’ to do the
thing required by the Instruction so long as the jury is convinced, beyond a reasonable
doubt, that the defendant’s words, conduct and/or the surrounding circumstances of the
alleged threat convey a threat or are interpreted to convey a threat to do the thing required
by the Instruction. This Instruction does not change the requirement that the People are
required to prove, beyond a reasonable doubt, any particular intent or mental state
required by the Instructions for the charged crimes or any other element required by the
charged crimes.” (Italics added.)




                                              45
       Defendant contends this instruction is erroneous because it did not require the jury
to find defendant actually issued a threat but permitted the jury to find a threat based on
the victim’s subjective interpretation of the surrounding circumstances. Defendant
specifically targets (1) use of the disjunctive possibility of “surrounding circumstances”
alone as a basis for finding a threat and (2) finding a threat based on the disjunctive
possibility of the victim subjectively interpreting that a threat has been conveyed. We do
not encourage inclusion of the amorphous conjunction “and/or” in instructions because of
the confusion it may spawn. Nonetheless, we conclude any error made by the trial court
in providing this instruction was harmless.

       With respect to the counts premised on defendant’s threat to use his official
authority to arrest or incarcerate the victim, even if the instruction would erroneously
permit a jury to find such a threat based solely on the victim’s subjective interpretation of
the surrounding circumstances, we conclude such an error would be harmless here. “An
instruction that . . . misdescribes an element of an offense is harmless only if ‘it appears
“beyond a reasonable doubt that the error complained of did not contribute to the verdict
obtained.” ’ [Citations.] ‘To say that an error did not contribute to the verdict is . . . to
find that error unimportant in relation to everything else the jury considered on the issue
in question, as revealed in the record.’ ” (People v. Mayfield (1997) 14 Cal. 4th 668, 774.)
For the jury to believe the victims orally copulated defendant and that the oral copulation
was against their will, the jury also had to believe defendant had confined the victims in
the rear seat of his patrol car and had impliedly threatened he would take them to jail if
they did not perform sexual favors.

       Except with respect to Anna B.—count 9—the jury was not presented with any
evidence that defendant had not arrested or threatened to incarcerate the victim. And,
even with respect to that count, defendant testified everything was consensual; Anna B.
testified that after she admitted using heroin defendant told her he could take her to jail


                                              46
and it was only then that she felt compelled to orally copulate him. Thus, for the jury to
convict defendant, it had to believe defendant did impliedly threaten Anna B. by his
words and conduct. We are persuaded beyond a reasonable doubt that any instructional
error in incorrectly defining “threat” was harmless in relation to the evidence considered
by the jury.

       Additionally, because all the remaining kidnapping convictions13 involve
defendant’s kidnapping the victims to commit oral copulation where defendant was
convicted of oral copulation under threat of authority, any error is also harmless as to
those convictions. Thus, we turn to whether the instruction was prejudicial as to
defendant’s remaining convictions for rape or oral copulation by means of duress—
counts 20, 21, and 22 (Karen N.). As to those counts, we also conclude the instructional
error, if any, was harmless in light of the evidence presented.

       In the interaction that was the basis of his conviction in count 20, defendant
entered Karen N.’s room uninvited, followed her into the bathroom, unzipped his pants,
and impliedly demanded her to fellate him. There was no evidence to the contrary, as
defendant denied the sexual encounter altogether. And in the interaction that was the
basis of counts 21 and 22, defendant threatened to enter her room forcibly if Karen N. did
not allow him in, ignored her illness, and demanded oral copulation and sex. Defendant
claimed the fellatio and sex were consensual and that she invited him into the room. As
to all three of these convictions, the jury necessarily found defendant entered her room
with the intent to commit a felony. (See §§ 459-460 [first degree burglary occurs when
someone enters an inhabited residence with intent to commit a felony]; 667.61, subd.
(d)(4) [residential burglary sentencing enhancement].)



13 We have already reversed count 23—the aggravated kidnapping of Karen N.—based
on insufficient evidence.


                                             47
       The evidence, which the jury necessarily believed, showed that defendant forced
his way into Karen N.’s room first by entering without being invited and following her
into her bathroom, and then by threatening to enter forcibly if she did not allow him in
and closing the door and window, thereby preventing anyone outside from hearing what
happened within the room. This conduct by defendant, in addition to him unzipping his
pants and suggesting she may want something, after a previous encounter in which she
orally copulated him, was the only evidence of any threat with regard to these
interactions. In light of this record and the jury’s other findings, we conclude that even if
the instruction was erroneous, beyond a reasonable doubt that error was unimportant.
       2.3 Williams Instruction
       “In People v. Mayberry (1975) 15 Cal. 3d 143, our Supreme Court held that a
defendant who entertains a reasonable and good faith, but mistaken, belief that a victim
voluntarily consented to intercourse does not have the wrongful intent necessary to be
convicted of rape by force. [Citation.] This defense has both a subjective and objective
component. (People v. Williams (1992) 4 Cal. 4th 354, 360.) In order to satisfy the
subjective component, the defendant ‘must adduce evidence of the victim’s equivocal
conduct on the basis of which he erroneously believed there was consent.’ (Id. at p. 361.)
To satisfy the objective component, the defendant must show his belief regarding consent
was formed in circumstances society will tolerate as reasonable. [Citation.] When
warranted by the evidence, it is error for the court to decline an instruction on the effect
of a defendant’s reasonable and honest belief in the victim’s consent.” (People v. Sojka
(2011) 196 Cal. App. 4th 733, 736-737 (Sojka), quoting and citing People v. Williams
(1992) 4 Cal. 4th 354, 360 (Williams).) In Williams, the court further held that where a
defendant claims a reasonable and good faith but mistaken belief in consent based on the
victim’s equivocal conduct, but there is also evidence that conduct occurred “after the
defendant had exercised or threatened ‘force, violence, duress, menace, or fear of
immediate and unlawful bodily injury on the person or another,’ ” the jury should also be

                                             48
instructed “that a reasonable mistake of fact may not be found if the jury finds that such
equivocal conduct on the part of the victim was the product of ‘force, violence, duress,
menace, or fear of immediate and unlawful bodily injury on the person or another.’ ”
(Williams, supra, 4 Cal.4th at p. 364.)

       Here, the jury was instructed, based on CALJIC No. 10.6514 (and in accordance
with People v. Mayberry (1975) 15 Cal. 3d 143 (Mayberry)) that “[t]he defendant is not
guilty of [rape, unlawful oral copulation, or kidnapping] if he actually and reasonably
believed the woman consented to [the intercourse, the act, or to go with defendant]. The
People have the burden of proving beyond a reasonable doubt that the defendant did not
actually or reasonably believe the woman consented to [the intercourse, the act, or to go
with defendant]. If the People have not met this burden, you must find the defendant not
guilty.”15 Over defendant’s objection, the jury was also instructed, purportedly in



14 CALJIC No. 10.65 reads: “In the crime of unlawful [forcible rape] [oral copulation
by force and threats] [forcible sodomy] [penetration of the [genital] [or] [anal] opening
by a foreign object, substance, instrument or device by force, [violence] [fear] [or]
[threats to retaliate]], criminal intent must exist at the time of the commission of the
(crime charged). [¶] There is no criminal intent if the defendant had a reasonable and
good faith belief that the other person voluntarily consented to engage in [sexual
intercourse] [oral copulation] [sodomy] [or] [penetration of the [genital] [anal] opening
by a foreign object, substance, instrument, or device]. Therefore, a reasonable and good
faith belief that there was voluntary consent is a defense to such a charge[.] [, unless the
defendant thereafter became aware or reasonably should have been aware that the other
person no longer consented to the sexual activity.] [¶] [However, a belief that is based
upon ambiguous conduct by an alleged victim that is the product of conduct by the
defendant that amounts to force, violence, duress, menace, or fear of immediate and
unlawful bodily injury on the person of the alleged victim or another is not a reasonable
good faith belief.] [¶] If after a consideration of all of the evidence you have a
reasonable doubt that the defendant had criminal intent at the time of the accused sexual
activity, you must find [him] [her] not guilty of the crime.” (CALJIC No. 10.65 (7th ed.
2005).)
15 Though initially applied in the context of rape, application of this defense has been
extended to unlawful oral copulation. (See People v. May (1989) 213 Cal. App. 3d 118,

                                             49
accordance with Williams and also based on CALJIC No. 10.65, that “[a] belief that is
based upon ambiguous conduct by an alleged victim that is the product of conduct by the
defendant that amounts to duress or threats to use the authority of a public official to
incarcerate or arrest the victim, a belief based on that type of ambiguous conduct in
response to the defendant’s own conduct is not a reasonable and good faith belief.”

       Defendant asserts three distinct errors based on the Williams instruction. First, he
contends the instruction, as given by the trial court, was improperly applied to threats of
official action. Second, he asserts the instruction improperly directed the jury to
conclude his subjective belief in the victims’ consent was not made in good faith. Third,
he argues that when read in conjunction with the special instruction provided on threats
discussed above, it negated the Mayberry defense by “allow[ing] the jury to infer, in
circular fashion, that if the victim [subjectively] interprets the defendant’s conduct as a
threat, then the defendant cannot have a reasonable and good faith belief that the victim
consented.” We conclude the instruction was properly applied to threats of official
action, and that the instruction was otherwise erroneous but that the error was harmless.
             2.3.1 Application to Rape or Oral Copulation Under Threat of Authority
       As stated above, the trial court instructed the jury that “[a] belief that is based
upon ambiguous conduct by an alleged victim that is the product of conduct by the
defendant that amounts to duress or threats to use the authority of a public official to
incarcerate or arrest the victim, a belief based on that type of ambiguous conduct in
response to the defendant’s own conduct is not a reasonable and good faith belief.”
(Italics added.) Defendant contends this instruction is erroneous because it is not limited
to unlawful arrests, thereby suggesting “that even those who are lawfully arrested and
subject to lawful incarceration are incapable of consent, so much so that it is


128-129 [noting the failure to give a Mayberry instruction infected forcible copulation
convictions].)


                                              50
unreasonable for anyone to rely on the appearance of consent.” This contention relies on
a misinterpretation of Williams. Defendant also argues that because consensual sex
between an arresting officer and an arrestee is punished as a lesser offense, “the idea that
a lawfully arrested person might consent to have sex with the arresting officer is not so
unthinkable that it ‘offend[s] modern sensibilities’ ” so as to warrant provision of the
Williams instruction. (Williams, supra, 4 Cal.4th at p. 364.) We are not persuaded.

       “Mayberry is predicated on the notion that . . . reasonable mistake of fact
regarding consent is incompatible with the existence of wrongful intent.” (Williams,
supra, 4 Cal.4th at p. 360; Mayberry, supra, 15 Cal.3d at pp. 154-155.) Thus, the
Mayberry defense “negates the wrongful intent required for the crime.” (People v.
Martinez (2010) 47 Cal. 4th 911, 954.) It is only available to aid a defendant where his
belief of consent “was formed in circumstances society will tolerate as reasonable.”
(Sojka, supra, 196 Cal.App.4th at p. 737.) Thus, it has been limited by Williams, so that
it is not available where the defendant’s mistake of fact is based on the victim’s equivocal
conduct where that conduct is the product of the defendant’s own conduct, i.e., “ ‘force,
violence, duress, menace, or fear of immediate and unlawful bodily injury on the person
or another’ ” (Williams, supra, 4 Cal.4th at p. 364) or a threat “to use the authority of a
public official to incarcerate, arrest, or deport the victim or another . . . ” (§§ 261, subd.
(a)(7), 288a, subd. (k)).

       Defendant contends provision of the Williams instruction indicates that a properly
arrested person can never consent to orally copulate or have sex with the arresting officer.
We disagree. Rather, it indicates that if the arresting officer claims he mistakenly
believed the victim consented based on the victim’s equivocal conduct that was brought
about as a result of the arresting officer’s threat of lawful arrest or incarceration, it is not
reasonable for the officer to believe mistakenly that the victim consented to the sexual
contact. We believe permitting an officer to rely on equivocal conduct on the part of the


                                               51
victim to claim she consented when that conduct was a result of the officer’s own
extortionist threat to arrest or incarcerate the victim does “offend modern sensibilities”
(Williams, supra, 4 Cal.4th at p. 364) and is not a set of “circumstances society will
tolerate as reasonable” (Sojka, supra, 196 Cal.App.4th at p. 737). Thus, we conclude the
Williams instruction was not erroneous for including threats of lawful as well as unlawful
arrests or incarcerations.

       Nor do we believe such a conclusion upsets the statutory scheme, which
acknowledges the possibility of consensual sex between an arresting officer and arrestee,
but criminalizes such conduct. Section 289.6, on which defendant relies, makes it a
crime for “[a]n employee or officer of a public entity detention facility, or an employee,
officer, agent of a private person or entity that provides a detention facility or staff for a
detention facility, a person or agent of a public or private entity under contract with a
detention facility, a volunteer of a private or public entity detention facility, or a peace
officer who engages in sexual activity with a consenting adult who is confined in a
detention facility,” where a “detention facility” includes “[a] vehicle used to transport
confined persons during their period of confinement, including transporting a person after
he or she has been arrested but has not been booked,” and where “sexual activity”
includes “[s]exual intercourse” and “[o]ral copulation.” (§ 289.6, subds. (a)(2), (c)(4),
(d)(1) & (3).) Contrary to defendant’s assertion, the fact that even consensual sex
between an arresting officer and arrestee is criminal implies that such conduct does
“offend modern sensibilities.” (Williams, supra, 4 Cal.4th at p. 364.) Were it not
offensive, it would not be criminal.
             2.3.2 Improper Direction of Jury
       Defendant next contends that the Williams instruction given in this case
improperly directed the jury to find defendant asserted his belief in the victims’ consent
in bad faith based on its predicate finding that a victim subjectively felt threatened by



                                              52
defendant’s words or conduct, or the surrounding circumstances, and by extension to
conclude defendant was dishonest. “ ‘In assessing a claim of instructional error, “we
must view a challenged portion ‘in the context of the instructions as a whole and the trial
record’ to determine ‘ “whether there is a reasonable likelihood that the jury has applied
the challenged instruction in a way” that violates the Constitution.’ ” ’ ” (People v. Tully
(2012) 54 Cal. 4th 952, 1025.) We conclude the challenged instruction, when considered
in the context of the instructions as a whole, was not improper.

       Here, the instructions cumulatively read “[t]he defendant is not guilty of [rape,
unlawful oral copulation, or kidnapping] if he actually and reasonably believed the
woman consented to [the intercourse, the act, or to go with defendant]. The People have
the burden of proving beyond a reasonable doubt that the defendant did not actually or
reasonably believe the woman consented to [the intercourse, the act, or to go with
defendant]. If the People have not met this burden, you must find the defendant not
guilty.” The challenged instruction continued, “[i]n [enumerated] instructions
[(summarized above)] you are instructed on the issue of defendant’s belief of consent. A
belief that is based upon ambiguous conduct by an alleged victim that is the product of
conduct by the defendant that amounts to duress or threats to use the authority of a public
official to incarcerate or arrest the victim is not a reasonable and good faith belief.”

       In this context, a “good faith” belief is one that is actually held. Thus, when read
in the context of the instructions as a whole, the challenged instruction does not direct the
jury to draw the conclusion that defendant was dishonest. Rather, the instruction merely
directs the jury to conclude, if it finds defendant’s belief of consent is based on a victim’s
ambiguous conduct that is the product of defendant’s duress or threats, the defense based
on defendant’s actual and reasonable belief of consent does not apply. Thus, as a whole,
the instruction does not direct the jury to infer that defendant was dishonest if it
concludes his mistake of fact as to the victim’s consent was not reasonable.


                                              53
       Even if the jury was directed to conclude the mistake was not a reasonable and
good faith mistake, we cannot take the logical leaps suggested by defendant also to
conclude the jury was reasonably likely to then infer that defendant was dishonest in his
testimony as to his belief in the victims’ consent, and subsequently to disbelieve the
remainder of his testimony. The jury was instructed, “[i]f you decide that a witness
deliberately lied about something significant in this case, you should consider not
believing anything that witness says. Or, if you think the witness lied about some things,
but told the truth about others, you may simply accept the part that you think is true and
ignore the rest.” It was also instructed that assessing the credibility of the witnesses was
solely within its province, and that the jury “may believe all, part, or none of any
witness’s testimony. Consider the testimony of each witness and decide how much of it
you believe.”

       Here, with respect to the victims, some members of the jury clearly did believe
part of some victims’ testimony and not other parts. For example, though defendant was
charged with the rape of Terri G. (counts 4 and 5), and Terri G. testified they had sex in
the same circumstances for which defendant was convicted of oral copulation under
threat of authority and by means of duress of Terri G., the jury did not convict defendant
of these charges. The jury apparently did believe Terri G. as to her kidnapping and the
oral copulation, but disbelieved she and defendant had sexual intercourse. There is no
other conclusion to draw from the verdicts rendered, especially because defendant
testified he had no sexual contact with Terri G. and claimed she had concocted her
testimony. There is no reason to believe the jury would treat defendant any differently
than it did Terri G. Thus, even if the jury drew the conclusion that defendant was
dishonest in his testimony as to his belief of the victims’ consent, it does not appear
reasonably likely the jury would disbelieve the remainder of defendant’s testimony.




                                             54
Accordingly, we conclude the challenged instruction was not erroneous, but, even if it
was in error, the error was harmless.
            2.3.3 Negation of Mayberry Defense
       Defendant contends that, when combined with the special instruction on threats
discussed in part 2.2.2, ante, the Williams instruction provided here improperly negated
the Mayberry defense. The Mayberry defense is premised on the assumption that the
victim did not actually consent. (Mayberry, supra, 15 Cal. 3d 143.) Indeed it applies
where, based on the victim’s equivocal conduct, the defendant reasonably but mistakenly
believes the victim has consented, thereby negating his criminal intent. (Williams, supra,
4 Cal.4th at p. 360.) The defense becomes unavailable, as stated in Williams, where the
defendant causes the victim’s equivocal conduct through the application of “force,
violence, duress, menace, or fear” or some other set of socially intolerable circumstances.
(§§ 261, subd. (a)(2), 288a, subd. (c)(2)(A); Williams, at p. 364.) Nonetheless, the focus
of the Williams inquiry is on whether the defendant has done something that causes his
claim—that he reasonably and in good faith believed the victim consented—to “offend
[our] modern sensibilities.” (Williams, at p. 364.) Thus, while we disagree with
defendant’s claim that the Williams instruction is premised on the victim’s behavior being
“the product of duress that he knowingly and intentionally inflicted,” we agree that the
formulation of the special and Williams instructions provided was erroneous because it
improperly permitted the jury to find defendant could not rely on his belief in the victim’s
consent based on her ambiguous conduct where that conduct was the product of some
threat or duress subjectively perceived by her, regardless whether a threat or duress would
be perceived by a reasonable person in the same circumstances.

       Nonetheless, for the same reasons we found the instructional error in the special
threat instruction harmless, we find any error that resulted from the incorporation of the
threat instruction into the Williams instruction is also harmless. As to each count of oral



                                             55
copulation or rape under threat of authority, there was, at a minimum, an implied threat
by defendant that if the women did not orally copulate or have sex with him, he would
take them to jail, and there was no evidence such a threat was merely subjectively
perceived by the victims, where defendant confined the women in the locked rear seat of
his patrol car and asked what they could give him so they did not have to go to jail. In
light of this record, the jury did not, beyond a reasonable doubt, apply the instructions in
a manner that violated his constitutional rights. And, as above, because the remaining
aggravated kidnapping convictions are based on his transporting the victims against their
will to commit oral copulation, defendant was not prejudiced as to those counts by the
erroneous instruction. Finally, with respect to counts 20, 21, and 22 (Karen N.), oral
copulation and rape by means of duress, where defendant entered the victim’s motel
room uninvited or by threats to enter forcibly and with intent to commit a felony therein,
which the jury necessarily found true in light of its findings on the residential burglary
enhancement, any error in the threat instruction was harmless on the issue of the victim’s
consent.

3.0    Sentencing Errors
       3.1 Section 654
       The trial court sentenced defendant to a life sentence for kidnapping Kayla R. for
the purposes of rape or oral copulation (count 13), a consecutive determinate term of six
years for oral copulation of Kayla R. by threat of official authority (count 15), and a
consecutive two-year term for rape of Kayla R. by threat of official authority (count 16).
Though defendant and Kayla R. met multiple times over the course of several months, the
acts that were the basis of these three convictions all involved a single encounter in
October 2011. Thus, defendant contends, and the People properly concede, the sentences
for the rape and oral copulation by threat of official authority (counts 15 and 16) must be
stayed pursuant to section 654 because those offenses and the aggravated kidnapping are



                                             56
part of an indivisible course of conduct motivated by a single criminal objective. (People
v. Lewis (2008) 43 Cal. 4th 415, 519; People v. Latimer (1993) 5 Cal. 4th 1203, 1216-
1217.) On the facts before us, we agree. Therefore, we stay execution of defendant’s
sentence on counts 15 and 16.
       3.2 Unauthorized Sentence
       Defendant contends the trial court imposed an unauthorized sentence on counts 1,
8, 13, 23, and 25, when it imposed a sentence of seven years to life for his aggravated
kidnapping of the victims (§ 209, subd. (b)(1)). We agree, except as to count 23. The
punishment for a violation of section 209, subdivision (b)(1) is life with the possibility of
parole. “A term of life with the possibility of parole does not have a minimum
determinate term of seven years; rather, a person sentenced to such a term first becomes
eligible for parole in seven years. (§ 3046, subd. (a)(1).)” (People v. Robinson (2014)
232 Cal. App. 4th 69, 72, fn. 3.) Therefore, we modify defendant’s sentence for counts 1,
8, 13, and 25, to life with the possibility of parole.

                                       DISPOSITION

       The judgment is reversed as to counts 3, 19, 23, 24, and 27. The multiple victim
enhancement alleged in association with count 21 (§ 667.61, subd. (e)(4)) is dismissed.
Defendant’s sentence on counts 1, 8, 13, and 25, is modified to life with the possibility of
parole as to each count. Execution of defendant’s sentence on counts 15 and 16 is stayed.
We lift the stay of execution of sentence as to count 25. As modified, the judgment is
affirmed. The matter is remanded to the trial court for retrial on count 3 and any
applicable enhancements only. If the People elect to retry defendant as to count 3, the
trial court shall resentence defendant following retrial. If, within 60 days after the
remittitur issues from this court, the People have not filed and served an election to retry
count 3, the trial court shall dismiss said count, and shall resentence defendant as
necessary. The clerk of the trial court shall correct the indeterminate abstract of


                                               57
judgment to include defendant’s conviction for count 22 (oral copulation by duress—
§ 288a, subd. (c)(2)(A)) in item 1 of that abstract. We further direct the clerk of the trial
court to prepare an amended abstract of judgment not inconsistent with the holdings
expressed herein, and to forward a certified copy of the amended abstract to the
Department of Corrections and Rehabilitation.




                                                            BUTZ                , J.



We concur:



      NICHOLSON              , Acting P. J.



      MAURO                  , J.




                                              58