1 Filed 8/29/13 P. v. Myles CA3 NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

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

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THE PEOPLE, Plaintiff and Respondent,

v. ORLINDO ANTONIO MYLES, Defendant and Appellant. C066505 (Super. Ct. No. 05F05593)

THE PEOPLE, Plaintiff and Respondent,

v. KRISTOPHER SPEIGHT, Defendant and Appellant. C066506 (Super. Ct. No. 05F05593)2 Defendants Orlindo Antonio Myles and Kr istopher Speight were tried together with separate juries. A jury convicted Myle s of first degree residential burglary; first degree robbery; assault with intent to commit rape, oral copulation, sexual penetration or sexual penetration in concert; sexual penetrati on; and sexual penetration in concert. The jury also found true allegations that Myle s committed the sexual offenses during a first degree burglary and that he tied or bound the victim in the commission of the sexual offenses, qualifying him for harsher puni shment under the one strike law. A different jury convicted Speight of firs t degree residential burglary; first degree robbery; sexual penetration; and sexual penetra tion in concert. The jury also found true allegations that Speight committ ed the sexual offenses during a first degree burglary and that he tied or bound the victim in the co mmission of the sexual offenses, qualifying him for harsher punishment unde r the one strike law. The trial court sentenced Myles to a dete rminate term of seven years four months in prison plus a consecutive in determinate term of 25 years to life. It sentenced Speight to a determinate term of three years in prison plus a consecutive indeterminate term of 25 years to life. In part I of this opinion we discuss the appellate contentions asserted by Myles. Myles contends (A) his trial counsel provide d ineffective assistan ce by not moving to exclude Myles’s jury wh en Speight testified in his own defense and implicated Myles; and (B) the trial court erred in instructing the jury with CALCRI M No. 335, because the direction that Speight was an “accomplice” un dermined Myles’s defense that Speight was the primary offender. We will affirm the judgment against Myles, but we will direct the trial court to correct the abstract of judgment to indicate that Myles was convicted on count five of sexual penetration in concert, not rape in concert. In part II of this opinion we will discu ss Speight’s appellate contentions. Speight argues (A) there is insufficient evidence to sustain his convic tion for sexual penetration in3 concert as an aider and abettor; (B) the tria l court erred in instru cting the jury on the meaning of the words “in concert”; (C) if th e conviction for sexual pe netration in concert (count five) is allowed to stand, the convic tion for sexual penetration (count four) must be stricken because it is a n ecessarily included o ffense; (D) the trial court erroneously instructed the jury that Sp eight’s testimony required corrob oration; (E) the trial court gave an argumentative instru ction on aiding and abetting; (F) the trial court erred in failing to instruct sua sponte on the lesser included offenses of battery and sexual battery in connection with the charge of sexual pene tration; (G) because Speight did not commit any sexual offense, the one strike finding that he committed a sexual offense during the commission of a burglary is not supported by th e evidence; (H) because Speight did not commit any sexual offense, the on e strike finding that he tied or bound the victim in the commission of a sexual offense is not sup ported by the evidence; (I) the trial court erroneously believed consecutive sentences we re mandatory and hence did not exercise informed discretion; (J) the sentence of 25 years to life constitutes cruel and/or unusual punishment in this context; (K) Speight’s tr ial counsel provided ineffective assistance; and (L) the abstract of judgment must be co rrected to reflect that Speight was convicted on count five of sexual penetration in concert, not rape in concert. We will dismiss the conviction on count fo ur for sexual penetration, and lift the stay of execution of sentence on the count five conviction for sexual penetration in concert. We will remand the matter to the tria l court to resentence Speight on count five. We will affirm the judgment in all other respect s. We will also direct the trial court to amend and correct the abstract of judgment.4 BACKGROUND On June 8, 2005, the 14-y ear-old victim was at home al one with her two-year-old sister when Myles and Speight entered the home. 1 The victim said Myles wore a red sweatshirt and Speight wore a blue sweatshirt. Speight grabbed the victim ’s arm and placed his arm ar ound her neck, putting her in a headlock. Myles later al so grabbed the victim, holding he r tightly around her torso. While holding her, Myles groped the victim’s breasts and trie d to put his hands down her pants. The victim yanked Myles’s hand away an d tried to grab his wrists to free herself from his hold. Myles grabbed the victim’s wr ists and pushed her toward her parents’ bedroom where Speight had gone. The victim’s sister was asl eep on her parents’ bed. The victim told defendants not to touch her sister. Myles responded, “A s long as you cooperate, we wouldn’t do anything [to her].” Speight was in the roomwhen Myles made this threat “loud enough to hear” and Speight repeated almost the same statement ma de by Myles. Speight then rummaged through the things in the parents’ bedroom. Myles brought the victim to a bedroom ac ross the hall. He took a digital camera and gave it to Speight, who placed it in a backpack and then left the bedroom. Myles kissed the victim, lifted her shirt, a nd sucked on her nipples. He held the victim’s hands above her head and tried to take off her pants and underwear. The victim resisted, biting Myles on his right forearm and kicking him in the groin. Myles punched the victim in the face and the top of her head three times with a closed fist, causing her nose to bleed. Myles then took th e victim to her brothers’ bedroom. Speight was not in that room. Myles threw the victim onto the botto m bunk of the bunk bed in the room. He

1 All dates refer to 2005 unless otherwise indicated.5 took his penis out of his pants and told the vic tim to suck it. The vi ctim refused. Myles then ripped off the victim’s bra, pulled down her pants and unde rwear, grabbed, kissed and sucked her breasts, tried to force himsel f on top of her and, us ing his hands, forced her to open her legs. The victim resisted a nd tried to get Myles off her. Her pants and underwear were around her ankles. At some point in time, Speight appear ed at the doorway of the bedroom, looked inside and said “Come on. We gotta go. Her brothers are going to be home soon.” Speight did not do or say anything to stop Myles from harming the victim. Myles picked the victim up and took her in to the hallway. The victim struggled to get out of his hold. Her pant s and underwear were around he r ankles. Speight was also in the hallway, in a position where he could see the victim struggling against Myles. Myles threatened to hit the vi ctim with a wooden CD (compa ct disc) rack as the victim continued to struggle. Myles told Speight to get something to tie the vic tim up with. Speight left the hallway and returned with a cord in his hands. The victimbegan to fight harder when she saw the cord, but she fell to the floor and ended up on he r stomach. Both defendants were on top of her tying her down. The vi ctim could not see which person actually tied her up. Her hands were tied very tightly behi nd her back so that she could not move her hands. After she was tied up, Myles pulled the victim to her feet. He put his fingers inside the victim’s vagina and said, “Tell me it feels good.” Speight was not in the hallway at that point. The victim was una ble to stop Myles because her hands were bound, and she felt comp letely helpless. After he digitally penetrated her, Myles brought the victim, still tied up, back to her parents’ bedroom. The victim’s sister was still asleep. Spei ght took the victim’s Playstation 2 console from her pa rents’ bedroom. He told Myles, “Leave her alone. We gotta go.”6 The victim managed to dial 911 after defendants left. The entire occurrence, from the time defendants entered the victim’s home to the time they left, took about 10 to 15 minutes. That same day, child abuse evidence collector Ana Ross saw bruises on the victim’s nose, dried blood un der her nose, redness on her neck and arms, and ligature marks on her wrists. Ross al so observed redness on the victim’s hymen, which Ross testified was consistent with a sexual assault. In Myles’s backpack, police found a camer a taken from the victim’s house. Myles also had what appeared to be a puncture markon his right forearm. In DNA testing of a saliva swab taken from the victim’s left breast, Myles was determined to be a contributor. Speight was eliminated as a contribut or for the DNA sample taken from the victim’s breast. But Speight resembled the co mposite sketch of one of the intruders that was prepared based on the victim’s description. Police detectives interviewed Speight thre e times. Speight lied to police about his whereabouts on June 8 during the first two in terviews. On June 14, police detectives interviewed Speight a third time. Speight told detectives that Myles came up with the idea to “hit” the victim’s house but Speight ag reed to go with Myles; Myles tricked the victim into letting defendants into her house; Myles hit the victim ; and Myles directed Speight to take various items from the house. Speight also said he saw the victim’s pants pulled down, heard Myles say “I’m about to fuck her,” and realized that Myles was probably trying to rape the victim. According to Speight, he objected and told Myles to leave the victim alone. But Speight admitted th at Myles instructed him to tie the victim up and Speight complied by wrapping a cord around her arms. Spei ght did not tell police that he escorted the victim out of the room af ter Myles announced his intent to rape her. At two live lineups on June 18, the vi ctim identified Speight and Myles as her assailants. The victim was certain that Myles was the person who sexually assaulted her.7 A second amended information charged de fendants with first degree residential burglary (Pen. Code, § 459 -- count one); 2 first degree robbery (§ 211 -- count two); assault with intent to commit rape, oral c opulation, sexual pene tration, or sexual penetration in concert (§ 220, subd. (b) -- co unt three); sexual penetration (§ 289, subd. (a)(1) -- count four); and sexual penetration in concert (§ 264.1 -- count five). It was alleged in counts four and five that defe ndants committed the charged sexual offenses during a first degree burglary and that defe ndants tied or bound the victim in the commission of the sexual offenses (§ 667. 61, former subd. (e)(6), now subd. (e)(5)). Defendants were tried together but with tw o juries. Speight testified at trial. Myles did not testify. Speight provided the follo wing account about what happened on June 8: Myles asked Speight whether he knew of any houses to “hit” for a portable video game called “PSP.” Speight showed Myles the victim’s hous e. Although he was initially reluctant, Speight agreed to help Myle s burglarize the house. Speight rang the doorbell of the house to check whether anyone was at home. He was surprised when the victim answered the do or. But Speight did not tell Myles that he did not want to go forward with thei r plan to burglarize the house. Myles told Speight to find out whether anyone else was at home. Speight complied when Myles said he would go with Speight. They retu rned to the house together. Speight asked the victim if her parents were home. She responded that they were at work. Speight and Myles then left. Myles told Speight th ey were going to “rush” into the house, grab the victim, and “hit” the house. Speight refused, but My les convinced him to go back once more. Speight and Myles returned to the victim’s house and rang the doorbell again. They

2 Undesignated statutory references are to the Penal Code.8 asked the victim to call them if she saw Speight’s brother be cause they needed him to go home. The victim invited Speight and Myles into the house. The victim was writing down a fake tele phone number that Speight gave her when Myles yelled “Grab her.” The victim hit Sp eight on the side of the head. Speight grabbed the victim’s arms to stop her from hitting him and Myles hit the victim. Myles grabbed the victim and placed his arm around her neck. When Speight saw Myles hit the victim, he “froze.” He did not expect that Myles would hit the victim, but he wa nted “to go along with it and just get it done” so that they could leave the house. Speight was afraid because, even though My les never threatened him, he thought Myles might try to hit him. Pursuant to instruction fro m Myles, Speight took a came ra that was on the kitchen counter. Speight proceeded to the first be droom he saw, the parents’ bedroom, and looked around for the PSP. He then went across the hall to the next bedroom, thinking the PSP would more likely be in a kid’s bedroom. In the second bedroom, Speight saw Myles, with his back to Speight, leaning over the victim “like he was on top of her.” Sp eight saw the victim’s shirt pulled up and her breasts were visible. Speight told Myles he did not think the PSP was in the parents’ bedroom. Myles asked the victim if there were any guns or money in the house. The victim answered no. Myles then picked the victim up and said he was going to a back room. The victim struggled with Myles. Speight looked around the second bedroom for the PSP but did not find it. He returned to the parents’ bedroom, where he looked around for money and other things. The telephone rang and Speight noticed the victim’s sister on the bed. Speight denied threatening to hurt the victim’s sister and denied hearing My les threaten to hurt her. Speight panicked when he saw the victim’s sister and went to search for Myles in the back bedrooms.9 Standing at the doorway of one of th e back bedrooms, Speight saw the victim sitting on a bunk bed with her pants around her legs and Myles kneeling in front of her. Myles said he was about to “fuck her.” After Speight learned that Myles intended to rape the victim, Speight tried to get out of the house as fast as he could; he told Myles to leave the victim alone and they needed to leave the house. Speight entered the bedroom, grabbed the victim by the shoulders and pant s and pulled her up while trying to pull up her pants. He pulled her into the hallway. Myles stopped Speight and sa id they needed so mething to tie up the victim so she did not call the police. Speight grabbed an electrical cord. The victim struggled with Myles and Myles hit her in th e stomach, causing her to fall to the ground. The victim continued to fight and Myles thr eatened to hit her with a CD rack. Speight instructed the victim to stop struggling. He gave the co rd to Myles and Myles used it to bind the victim. Speight denied that he tied up the victim. After the victim was bound, Speight return ed to the parents’ bedroom. He told Myles to bring the victim to the parents’ bedroom and to put the victim on the bed. Myles took a camera and asked Speight to take a Playstation 2 console. Speight and Myles ran from the victim’s house together. Speight was not truthful with police when they interviewed hi m, and he tried to downplay his role in the incident. The Myles jury found Myles guilty on all counts and found all of the one strike allegations to be true. The Speight jury fo und Speight guilty on all counts except count three, and it found all of the one strike allegati ons in counts four and five to be true. The trial court sentenced Myles as follows : the upper term of six years in prison on count two (the principal term); a consec utive one year four months on count one; a consecutive indeterminate term of 25 year s to life on count four; a concurrent indeterminate term of life with the possi bility of parole on count three; and an10 indeterminate term of 25 years to life on count five, stayed pursuant to section 654; for a total aggregate term of seven years four mo nths plus 25 years to life in prison. The trial court sentenced Speight as follo ws: the lower term of three years in prison on count two (the principal term); f our years on count one, stayed pursuant to section 654; a consecutive indeterminate term of 25 years to life on count four pursuant to section 667.6, subdivision (d ); and 25 years to life on coun t five, stayed pursuant to section 654; for a total aggregate term of three years plus 25 years to life. DISCUSSION PART I -- MYLES
A Myles contends his trial counsel provid ed ineffective assistance by not moving to exclude Myles’s jury wh en Speight testified in his own defense and implicated Myles. According to Myles, his primary defense was that he was not one of the intruders; his alternate defense was that he was not the pr imary offender. But Speight’s defense was that Myles was the primary offender. Spei ght testified accordingly in front of both juries. 3

3 Counsel for Myles moved to sever the trial or, in the alternative, empanel two juries. The trial court ordered separate juries . Myles’s motion was made pursuant to People v. Aranda (1965) 63 Cal.2d 518 and Bruton v. United States (1968) 391 U.S. 123 [20 L.Ed.2d 476], which stand for the propos ition that a non-testifying codefendant’s extrajudicial statement that inculpates defendant is generally inadmissible because it violates defendant’s constitutiona l right of confrontation and cr oss-examination, even if a limiting instruction is given. ( People v. Jennings (2010) 50 Cal.4th 616, 652.) In his reply brief on appeal, Myles agrees that a ny confrontation clause concern regarding Speight’s pretrial statements was dispelle d when Speight testified and Myles had an opportunity to confront and cross-examine Speight. ( People v. Dement (2011) 53 Cal.4th 1, 23-24; People v. Steger (1976) 16 Cal.3d 539, 551 [cou rt did not err in admitting pretrial statement of codefend ant who testified at trial]; People v. Sosa (1972) 26 Cal.App.3d 514, 517-518 [adm ission of codefendant’s te stimony about his pretrial statements was not error where codefendant wa s available at trial for “full and effective” cross-examination]; Crawford v. Washington (2004) 541 U.S. 36, 59, fn. 9 [158 L.Ed.2d11 Myles cites “general authorities” for the proposition that “the failure to object to damaging and inadmissible testimony or to make appropriate motions can be the basis for a conclusion that counsel was incompeten t.” But those general authorities are not dispositive here because they do not involve a trial counsel’s failure to object to the testimony of a codefendant before the ju ry of a jointly tried defendant. Myles claims People v. Wardlow (1981) 118 Cal.App.3d 375 ( Wardlow ) illustrates how a dual jury trial should be con ducted. But Myles concedes that the court in Wardlow did not consider the precise issue pr esented here; Myles has been unable to find a published California case on point. Thus , Myles turns to cases from other states. He cites a Florida case, Watson v. State (Fla.Dist.Ct.App. 1994 ) 633 So.2d 525, which involved defendants who were tried together with separate juries ( id. at pp. 525-526), but that case does not assist him. Although th e Florida appellate court determined, without explanation, that it was error to permit de fendant Watson’s jury to remain in the courtroom during eyewitness testimony ex culpating codefendant Tomingo but inculpating Watson ( ibid. ), the appellate court nonetheless affirmed the ju dgment against Watson because his tr ial counsel did not ask that Watson’s jury be excused during Tomingo’s case, and, in any event, the eyewitness testimony against Watson did not render his trial illegal. ( Id. at p. 526.) Myles also cites an Illinois case, People v. Rodriguez (Ill.Dist.Ct.App. 1997) 680 N.E.2d 757, 767, but that case is distingu ishable. It involve d the violation of a defendant’s Sixth Amendment rights where a jointly tried codefendant cross-examined defendant in the presence of defendant’s jury. Here, Myles did not testify and there is no contention that Myles was precluded fro m presenting evidence in his case.

177, 197] [when codefendant/declarant appe ars at trial and is subject to crossexamination by defendant, the confrontation clause places no constraints on the use of codefendant’s prior testimonial statements].)12 Ultimately, Myles fails to specify why Speight’s testimony was inadmissible against Myles, and he fails to specify the particular grounds upon which his trial counsel should have objected. This fa ilure is fatal to his ineffe ctive assistance claim. ( People v. Stankewitz(1990) 51 Cal.3d 72, 114 [n o basis to conclude that counsel erred in failing to object to admission of eviden ce where appellant offered no potential basis for objection that counsel might have overlooked]; People v. Beasley (2003) 105 Cal.App.4th 1078, 1092 [failure to specify the gr ounds for objection and show its merits on appeal defeats ineffective assistance claim].) Accordingly, we need not c onsider his other contentions because he fails to demonstrate error by his trial counsel. ( People v. Maury (2003) 30 Cal.4th 342, 389 [ineffective assistance of counsel claim requires proof that trial counsel’s representation was deficient]; Strickland v. Washington (1984) 466 U.S. 668, 687 [80 L.Ed.2d 674, 693] [same].)
B Myles also contends the trial court co mmitted instructional error. According to Myles, although his counsel argued that Sp eight was the primary offender, the trial court nonetheless instructed the jury with CALCRIM No. 335, direc ting the jury that “[i]f any of the crimes charged, or the lesser incl uded crime, were comm itted, then defendant Kristopher Speight was an accomplice to those crimes.” 4 Myles says the instruction undermined his defense that Speight was the primary actor. Myles’s premise -- that an accomplice is not a primary offender -- is incorrect. For purposes of the CALCRIM No . 335 instruction, an accomplice is “one who is liable to prosecution for the identical offense ch arged against the defendant.” (§ 1111; People v. Avila (2006) 38 Cal.4th 491, 564; People v. Felton (2004) 122 Cal.Ap p.4th 260, 268.)

4 Myles requested the CALCRIM No. 335 instru ction during trial. But he argues his contention on appeal is not fo rfeited because the error affect ed his substantial rights. (§ 1259.)13 To be chargeable as an acc omplice, a witness must dire ctly commit the act constituting the offense or aid and abet in its commission. ( People v. Avila, supra, 38 Cal.4th at p. 564.) “Under Penal Code section 1111 . . . , ‘accomplice’ is not s ynonymous with aider and abettor; a perpetrator can be an accomplice.” ( People v. Felton, supra, 122 Cal.App.4th at p. 269; see People v. Belton (1979) 23 Cal.3d 516, 523 [perpetrator of a crime is an accomplice].) Therefore, the instruction th at Speight was an accomplice did not require the jury to find that Myles was th e primary offender. In fact, the trial court instructed Myles’s jury on ai ding and abetting, explaining th at Myles may be guilty of a crime as a direct perpetrator or an aider and abettor. Myles concedes in his reply brief that defendants can both be accomplices. He nonetheless asserts that a reasonable jury would have assumed that the CALCRIM No. 335 instruction meant that Myles was not an accomplice but was the primary offender in the crimes. But this speculation finds no evidence in the record. However, our review of the record disclo ses a clerical error in the abstract of judgment. 5 The abstract of judgment incorrectly states that Myles was convicted in count five of rape in concert, rather than sexual pe netration in concert. We will direct the trial court to prepare a corrected abstract of judgment. ( People v. Mitchell (2001) 26 Cal.4th 181, 185.) PART II -- SPEIGHT
A Speight contends there is insufficient ev idence to sustain his conviction for sexual penetration in concert as an aider and abetto r. He asserts there is no evidence that he

5 Although the parties did not ra ise this clerical error in their appellate briefs, the error and the remedy appear to be clear. Any party a ggrieved may petition for rehearing. (Gov. Code, § 68081.)14 knew of Myles’s intent to commit sexual pene tration, and no evidence that Speight intended to encourage or facilitate the commission of that offense. In determining whether su fficient evidence supports a conviction, “ ‘we do not determine the facts ourselves. Rather, we “e xamine the whole record in the light most favorable to the judgment to determine wh ether it discloses substantial evidence -- evidence that is reasonable, credible and of solid value -- such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” [Citations.] We presume in support of the judg ment the existence of every fact the trier could reasonably deduce from the evidence. [Citati on.] [¶] The same standard of review applies to cases in which the prosecution relies primarily on circumstantial evidence and to special circumstance allegations. [Citation.] “[I]f th e circumstances reasonably justify the jury’s findings, the judgment may not be reversed simply because the circumstances might also reasonably be reconciled with a contrary finding.” [Citation.]’ ” ( People v. Nelson (2011) 51 Cal.4th 198, 210.) We do not reweigh evidence or reevaluate a witness’s credibility. ( Ibid. ) Section 264.1 provides in pertinent part that “in any case in which the defendant, voluntarily acting in concert with another pe rson, by force or violence and against the will of the victim,” commits the offense of se xual penetration, as de scribed in section 289 [defining sexual penetration], either personally or as an aider and abettor, the defendant shall be sentenced to state prison. (§ 264.1, subd. (a).) A defendant is guilty of sexual penetration in concert as an aider and abettor if (1) the direct perpetrator committed or atte mpted to commit the offense of sexual penetration, (2) the aider and abettor knew of the direct pe rpetrator’s unlawful intent, (3) the aider and abettor intended to encourage and bring about the di rect perpetrator’s unlawful ends, and (4) the aider and abettor enga ged in conduct that in fact assisted the achievement of the crime. ( People v. Perez(2005) 35 Cal.4th 1219, 1225-1227; People v. Keovilayphone (2005) 132 Cal. App.4th 491, 497.)15 Whether a defendant aided and abetted th e commission of a crime is a question of fact which may be proved by circumstantial evidence. ( People v. Beeman (1984) 35 Cal.3d 547, 559–560; People v. Pitts (1990) 223 Cal.App.3d 606, 892–893.) A number of cases have discussed the evidence sufficien t to support such a conviction. (See, e.g., People v. Pelayo (1999) 69 Cal.App.4th 115, 120-121 [suffi cient evidence where defendant facilitated the sexual penetration comm itted by cohort]; People v. Nguyen (1993) 21 Cal.App.4th 518, 529-530, 533 -534 [defendants aided and abetted the perpetrators who actually comm itted the sexual offense]; People v. Lopez(1981) 116 Cal.App.3d 882, 884-885 [sufficient evidence where defendant’s actions prior to rape showed he knew cohort’s intent to rape and he helped cohort carry out plan]; People v. Villa (1957) 156 Cal.App.2d 128, 130-132, 1 35-137 [sufficient evidence where defendant’s silence and lack of objection constituted tacit approva l of sexual offense]; People v. Shevette (1950) 98 Cal.App.2d 782, 78 3-786 [sufficient evidence where defendant aided and abetted cohort].) Here, the record establishes there was sufficient evidence from which the jury could reasonably find that Spei ght committed sexual penetrati on in concert as an aider and abettor. Acting together, Myles and Spei ght entered the victim’s home and grabbed her. Myles groped the victim’s breasts and at tempted to put his hands down her pants the first time he grabbed her. To gain the vic tim’s cooperation, defendants threatened to harm the victim’s sister. Thereafter, Speight saw Myles on top of the victim in one of the bedrooms and saw that the victim’s shirt wa s pulled up. Speight did not object to Myles’s treatment of the victim but instead cont inued to carry out their plan to search the victim’s house for the PSP, leaving Myles alone with the victim. In one of the back bedrooms, Speight sa w the victim with her pants pulled down around her legs and Myles kneeli ng in front of her. Myles told Speight he was about to “fuck her.” Speight knew at that point that My les intended to rape the victim. According to the victim, Speight did not pull Myles off her, did not object to what Myles said he16 intended to do, and did not tell Myles to leav e her alone. Instead, when Myles announced that he wanted to bind the vi ctim, Speight gave Myles an el ectrical cord to use for that purpose and, according to the vi ctim, helped restrain and bi nd the victim. The victim’s testimony that Speight helped bind her is cons istent with Speight’s pretrial admission to police that he wrapped a cord around the victim’s arms. Af ter the victim’s hands were bound, Myles digitally penetrated her vagina. Although Speight was not in the hallway when Myles committed the offense of sexual penetration, the jury could reasonably conclude that Speight knew Myles intended to rape the victim, Speight’s conduct evince d an intent to help Myles accomplish his stated purpose, and Speight’s actions in fact helped Myles commit sexual penetration. ( People v. Pelayo, supra, 69 Cal.App.4th at p. 121 [prese nce when the crime occurred is not required for aider and abettor liability]; People v. Nguyen, supra, 21 Cal.App.4th at pp. 529-530 [failure to take action to prevent a crime is a factor the jury may consider in assessing defendant’s criminal responsib ility], 531-532 [a person may aid and abet a criminal offense without prio r agreement, and the primary offender need not expressly communicate his criminal purpose to defendan t because that purpose may be apparent from the circumstances].) Speight testified that he tried to st op Myles from raping the victim. He also testified that his reasons for helping Myle s bind the victim did not include assisting Myles with sexual assault. But the jury was not required to believe Speight’s testimony in that regard, and it clearly did not believe it. ( People v. Beeman, supra, 35 Cal.3d at pp. 559–560; People v. Villa, supra , 156 Cal.App.2d at p. 136.) Substantial evidence supports the jury’s finding that all of the elements of sexual penetration in concert as an aide r and abettor were established.
B Speight next contends the trial court erre d in instructing the ju ry on the meaning of the words “in concert.” Convicted of sexua l penetration in concert (§ 264.1 -- count17 five), he argues CALCRIM No. 1046 describes “a cting ‘in concert’ ” in terms of “aiding and abetting” and does not adequately convey the requirement that the codefendants must act together in a concerted effort. Speight sa ys the trial court’s answ ers to jury questions on the subject merely reinforced the error. He claims the in structional error permitted the jury to convict him w ithout proof that he acted in a concerted effort with Myles to commit the crime of se xual penetration. Section 264.1 describes acti ng in concert with another person as either committing the offense personally, or aiding and abetting the other person. (§ 264.1; People v. Jones (1989) 212 Cal.App.3d 966, 969.) The trial c ourt instructed the ju ry with CALCRIM No. 1046, explaining that the Pe ople must prove (1) defendan t personally committed sexual penetration and voluntarily acted with so meone else who aided and abetted its commission; or (2) defendant voluntarily ai ded and abetted someone else who personally committed sexual penetration. When the jury subsequently asked what “in concert” means, the trial court responded that it means “together.” The trial court adequately explained to the jury that in order to convict Speight of sexual penetra tion in concert, it must find that Speight and Myles acted together. ( People v. Jones, supra, 212 Cal.App.3d at p. 969; People v. Calimee (1975) 49 Cal.App.3d 337, 341.) Consis tent with the trial court’s explanation, the prosecutor told the jury that the charge of sexual pe netration in concert meant that Speight and someone else comm itted sexual penetration. Speight nonetheless argues that proof of aiding and abetting does not necessarily establish that defendants acted in concert. Although acting in concert is not necessarily synonymous with “aiding and abetting” ( People v. Jones, supra, 212 Cal.App.3d at p. 969), the evidence in th is case supports the finding that Speight acted in concert with Myles by aiding and abetting his se xual penetration of the victim. ( People v. Wheeler (1977) 71 Cal.App.3d 902, 906-9 07.) Speight was tried for sexual penetration in concert as an aider and abettor. The trial court told the jury that Speight was guilty of sexual18 penetration in concert if the People proved that Speight voluntarily aided and abetted the commission of sexual penetration. That instru ction correctly stated the law in the context of this case (§ 264.1, subds. (a), (b)(1) & (2) [defendant can be guilty of committing sexual penetration in concert as an aider and abettor]; People v. Adams (1993) 19 Cal.App.4th 412, 446 [active participation in the commission of the sexual act is not required for in concert finding]; People v. Lopez, supra , 116 Cal.App.3d at p. 884 [defendant need not personally participate in the physical act of the sexual offense for in concert liability to attach]) and did not negate the other jury instru ctions that Speight must act in concert or t ogether with Myles in committing sexual penetration. ( People v.
Fiu (2008) 165 Cal.App.4th 360, 370 [we cons ider the instructions as a whole in determining a claim of instructional error].) Speight claims that when the jury asked whether “toge ther” means “physically or mentally,” the trial court erred in respondi ng that “together” does not mean “physically together.” Speight says section 264.1 re quires some physical action to assist the commission of the offense, not merely a “meeting of the minds” or “mental togetherness.” But the trial court’s response was correct. A defendant can act in concert without being physically presen t during the sexual act. ( People v. Champion (1995) 9 Cal.4th 879, 933 [def endant committed a sexua l offense in concert even though he was not in the room when the rape was co mmitted where the condu ct by the group of defendants helped in the commission of th e rape], disapproved on another ground in People v. Ray (1996) 13 Cal.4th 313, 369, fn. 2; People v. Lopez, supra , 116 Cal.App.3d at p. 884 [defendant was pr operly convicted of forcible rape while acting in concert although he was not in the be droom when his co-defendant raped the victim].) The trial court correctly told the jury that Speight did not have to be physically present in the hallway when Myles committed the act of sexua l penetration for the jury to find that Speight acted in conc ert with Myles.19 As for the requirement of some action by the aider and abe ttor to assist the commission of the offense, the trial court told the jury that the Pe ople must prove that Speight’s words or conduct did, in fact, aid and abet the perpetrator’s commission of sexual penetration. In response to jury ques tion No. three, the trial court reiterated that someone aids or abets a crime if he “does, in fact, aid, facilitate, promote, encourage, or instigate the perpetrator’s . . . commission of that crime.” Considering the instructions together, as we must on appeal ( People v. Fiu, supra, 165 Cal.App.4th at p. 370), we find no reasonable likelihood the jury understood that it coul d convict Speight of sexual penetration in concert without finding co ncerted action by Speight and Myles and conduct by Speight which aide d Myles in committing the cr ime of sexual penetration. 6 Speight appears to argue in his reply brie f that the offense of sexual penetration in concert requires a “gang sexual assault” or “group sexual attack.” But a “gang-type sexual assault” is not required for an in concert sexual offense. ( People v. Champion,

supra, 9 Cal.4th at pp. 932-933 [defendant Ross was properly convicted of rape in concert even though none of his companions were in the bathroom when he raped the victim]; People v. Green (1985) 166 Cal.A pp.3d 514, 516-517 [s ufficient evidence supported finding that defendant acted in con cert in the commission of rape even though defendant was the only person who had se xual intercourse with the victim]; People v. Lopez, supra, 116 Cal.App.3d at p. 887 [“If the Le gislature wanted to limit section 264.1 to gang rape with only the active participants being held culpable, it could easily have done so”]; People v. Wheeler, supra, 71 Cal.App.3d at pp. 90 6-907 [defendant acted in

6 Speight was prosecuted as an aider and ab ettor on the count five charge of sexual penetration in concert. In their appellate brie fs, the parties discuss th e fact that the jury instructions pertaining to count five did no t include an instruction on the natural and probable consequences doctrine of aiding and abetting. But we need not address that issue because Speight does not cl aim the omission was erroneous.20 concert in the commission of rape even though his companion was the only person who had sexual intercourse with the victim].) C Speight further argues that if the conv iction for sexual penetration in concert (count five) is allowed to stand, the convic tion for sexual penetration (count four) must be stricken because it is a nece ssarily included offe nse. The Attorney General agrees that counts four and five are based on the sa me conduct and that commission of sexual penetration in concert necessa rily includes the commission of sexual penetration. Although multiple convictions are generally allowed, there is an exception for necessarily included offenses. ( People v. Medina (2007) 41 Cal.4th 685, 701.) A lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense or the facts actually alleged in the accusatory plea ding include all the elements of the lesser offens e, such that the greater ca nnot be committed without also committing the lesser. ( Ibid .) The logic behind the rule prohibiting convictions for both a greater offense and a necessarily included offense is that “ ‘[i]f a defendant cannot commit the greater offense with out committing the lesser, convictio n of the greater is also conviction of the lesser. To permit convictio n of both the greater and the lesser offense “ ‘ “would be to convict twice of the lesser. ” ’ ” [Citation.] There is no reason to permit two convictions for the lesser offense.’ [Cita tion.] There is also no prejudice to the People if a court strikes, rather than stays, the conviction. If a greater offense is reversed on appeal, the lesser included offense may be re vived by operation of law. [Citations.]” ( Id. at p. 702, italics omitted.) Sexual penetration in concert pursuant to section 264.1 requires sexual penetration as described in section 289. (§ 264.1, s ubd. (a).) Accordingly, the crime of sexual penetration in concert necessar ily includes the crime of sexua l penetration. Because we affirm the conviction for sexua l penetration in concert (count five), we will dismiss the conviction for sexual penetr ation (count four). ( People v. Medina, supra , 41 Cal.4th at p.21 702.) And because we will dism iss the conviction in count fo ur, we will lift the stay of execution of sentence on count five, which the tria l court ordered pursuant to section 654.
D Speight next claims the trial court e rroneously instructed the jury that his testimony required corroboration. He says th is was error because the trial court also instructed the jury that it could convict Speight based solely on the victim’s uncorroborated testimony. Speight ar gues those instructions undermined his constitutional right to testify and to present evidence in his defense, and suggested his testimony was entitled to less weight and sh ould not be trusted. He claims the instructional error was not harmless bey ond a reasonable doubt under the standard enunciated in Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705]. The Attorney General does not dispute instructiona l error, but argues any error was harmless. The trial court instructed the jury pursuant to CALCRIM No. 301, stating: “Except for the testimony of Defendant Kris topher Speight, which requires supporting evidence, the testimony of only one witness can prove any fact. Before you conclude that the testimony of one witness proves a fa ct, you should carefu lly review all the evidence.” 7 Speight cites cases in which a trial court to ld the jury that a te stifying defendant is an accomplice whose testimony must be vi ewed with caution or distrust. ( People v. Coffman and Marlow (2004) 34 Cal.4th 1, 103-105; People v. Alvarez (1996) 14 Cal.4th 155, 217-219; People v. Fowler (1987) 196 Cal.App.3d 79, 85-88.) Those cases are

7 The trial court also instru cted the jury with CALCRIM No . 1190, stating: “Conviction of a sexual assault crime may be based on the testimony of a complaining witness alone.” CALCRIM No. 1190 is a correct statement of law. ( People v. Gammage (1992) 2 Cal.4th 693, 700 [construing CALJIC No. 10.60 which is simi lar to CALCRIM No. 1190].) It declares a substa ntive rule of law and does not give greater weight to the victim’s testimony or dilute the prosecution’s burden of proof. ( Ibid. )22 distinguishable. Here, the trial court did not instruct Speight’s jury that Speight was an accomplice whose testimony must be viewed with caution or distrust; rather, it instructed the jury that if any of the charged crimes were committed, Myles was an accomplice to those crimes, and any statement by Myles that tended to incriminat e Speight should be viewed with caution. Nonetheless, even if it was error to in struct the jury purs uant to CALCRIM No. 301, we conclude the error was harmless bey ond a reasonable doubt because the evidence overwhelmingly established Speight’s guilt on count five, sexual penetration in concert. 8 Among other things, the trial court direct ed the jury to impartially compare and consider all the evidence, and it instructed th em that unless the evid ence proved Speight guilty beyond a reasonable doubt, the jury must find Speight not guilty. We presume the jurors understood and followed the trial court’s instructions. ( People v. Holt (1997) 15 Cal.4th 619, 662.) The victim testified to the following: two males entered her house and grabbed her; Myles hit her and sexually assaulted her but she fought him off; Myles told Speight to find something with which to tie the victim ; Speight found a cord to use; the victim was rendered helpless after her hands were bo und; Speight left her in the hallway with Myles after she was bound; and Myles then digitally penetrated her vagina. Speight’s testimony corroborated the victim’s testimony. Speight testified that he and Myles, acting together, gained entry to the victim’s house by trickery with a plan to steal a PSP; Myles hit the victim multiple ti mes; in one of the bedrooms, Myles was on top of the victim and the vic tim’s shirt was pulled up, revea ling her breasts; in another bedroom, the victim was on the bed with he r pants around her legs and Myles knelt in

8 Because we will dismiss the conviction on count four for sexual penetration (as we have already explained), we do not address Speight’s additi onal contentions pertaining to that count.23 front of the victim; Myles said he was abou t to “fuck her”; the victim fought Myles; Myles asked for something to use with which to tie the vi ctim; Speight gave Myles an electrical cord to use; and after the victim wa s bound, Speight left her in the hallway with Myles. Speight acknowledge d that binding the victim re ndered her helpless against Myles’s subsequent sexual assault. The victim’s testimony about the sexua l assault was also corroborated by DNA evidence, the puncture mark observed on My les’s forearm on June 14, and the testimony of Ana Ross regarding the victim’s inju ries. The victim’s testimony was also corroborated by the victim’s st atements to Ross on June 8 that there were two assailants, one of the assailants penetrated the victim’s vagina with his finger, and both assailants threatened to hurt th e victim’s sister. In addition, Speight’s pretrial statemen t to police corroborate d the evidence that Speight acted in concert with Myles and ai ded and abetted Myles in the commission of sexual penetration. The trial court instructed the jury that if it decided that a witness made a statement before trial, the jury could use the statem ent to evaluate whether the witness’s testimony in court was believable and as evidence that th e information in the earlier statement was true. The trial court also instructed the jury th at it must decide how much importance to give pretrial statements and to consider such statements along with all the other evidence in r eaching its verdict. Speight told police that defendants entere d the victim’s house together to steal a game; they grabbed the victim; Myles hit the victim; Myles took the victim’s pants off; Myles told Speight, “I’m about to fuck her” or “I’m about to rape this bitch” and the victim responded “no” or “don’t”; Speigh t knew Myles was trying to rape the victim; thereafter Speight got a cord and wrapped it aro und the victim’s arms when they were in the hallway; and Speight and Myles ran from the victim’s house together. Although Speight denied at trial that he tied the victim, he repeatedly told police that he did. The jury found that Speight enga ged in the tying or bind ing of the victim.24 The evidence overwhelmingl y established Speight’s guilt on count five, sexual penetration in concert. Based on the entir e record, we conclude beyond a reasonable doubt that any error in in structing the jury pursuant to CALCRIM No. 301 did not contribute to the jury’s findings on count five.
E Speight next contends the trial court gave an argumentative instruction on aiding and abetting. Over Speight’s objection, the trial court gave the following special instruction to the jury: “Among the factors which may be considered in making the determination of aiding and abetting are: presen ce at the scene of the crime, companionship, flight, and conduct before and after the offense.” Speight claims the special instruction was argumentative and in vited the jury to draw inferences favorable to the prosecution. He says the instruction implied that the cited factors were to be accorded weight, th ereby violating his fede ral due process right to have the jury d ecide the issue of guilt or innocence. This court rejected a similar argument in People v. Battle (2011) 198 Cal.App.4th 50, 84-85 ( Battle ). The trial court in that case gave the same instruction as the one challenged here. ( Id. at p. 84.) One of the defendant s argued that the instruction was argumentative and invaded the province of the jury. ( Ibid. ) This court disagreed, holding that the instruction merely listed fact ors which the jury could consider. ( Id. at p. 85.) We reach the same conclusion here. “ ‘An instruction is argumentative when it recites facts drawn fro m the evidence in such a manner as to constitute argument to the jury in the guise of a statement of law. [Citation.]’ [Citation.] An argumentative in struction is ‘ “an instruction ‘of such a character as to invite the ju ry to draw inferences favorab le to one of the parties from specified items of evidence.’ ” [Citation.]’ [Citation.]” ( Battle, supra , 198 Cal.App.4th at p. 85.) The special instruction on aiding and abetting in this case is not argumentative25 because it merely listed factors in a neutral fa shion, without referring to specific items of evidence. The inst ruction stated that the jury “may” consider the listed factors and did not suggest that any factor should be given an y particular weight or that the jury should apply any particular factor in favor of or agai nst finding Speight an ai der and abettor. An instruction that lists relevant factors for the jury to consider in a neutral manner and that does not “take a position as to the impact” of each of the factors listed is proper. ( People v. Martinez(1999) 20 Cal. 4th 225, 237; People v. Wright (1988) 45 Cal.3d 1126, 1138- 1141, italics omitted; People v. Mitchell (1994) 30 Cal.App.4th 783, 805, 809-810.) Speight relies on People v. Mouton (1993) 15 Cal.App.4th 13 13, but that case is inapposite. Unlike here, the challenged instru ction in that case listed the prosecution evidence. ( Id. at p. 1321.) Likewise, the instructions challenged in People v. Smith (1977) 67 Cal.App.3d 45, 49-50, People v. Wright, supra, 45 Cal.3d at p. 1135 and People v. Panah (2005) 35 Cal.4th 395, 485-486 are also distinguishable because they focused on specific items of evid ence, such as the testimony of particular witnesses, and told the jury how su ch evidence should be considered. Although Speight argues otherwise, the sp ecial instruction challenged here did not draw the jury’s attention away from the aiding and abetting elements set forth in CALCRIM No. 401. The trial court instructed Speight’s jury that th e People must prove those elements. Nothing in the special in struction suggested that the listed factors relieved the prosecution of its burden of proof. In fact, in his closing argument the prosecutor reviewed the CALCRI M No. 401 elements, and did not argue that the factors listed in the special instructi on replaced thos e elements. Speight claims the special instruction was misleading because the cited factors bear little relevance to determining whether he aided and abetted Myles in the commission of the sexual offenses. We disa gree. The factors listed in the challenged instruction are relevant to whether de fendant is an aider and abettor. ( People v. Campbell (1994) 25 Cal.App.4th 402, 409; People v. Chagolla (1983) 144 Cal.App.3d 422, 429;26 In re Lynette G. (1976) 54 Cal.App.3d 1087, 1 094–1095.) Unlike the instruction condemned in People v. Mouton, supra, 15 Cal.App.4th 1313, the in struction in this case did not include irrelevant factors. (See Battle, supra , 198 Cal.App.4th at p. 85.) Based on the evidence, Speight’s jury could rationa lly find that Speight aided and abetted the commission of sexual penetration in concert. (See People v. Jones, supra , 212 Cal.App.3d at 970; People v. Lopez, supra , 116 Cal.App.3d at pp. 884-885; People v. Wheeler, supra , 71 Cal.App.3d at p. 906.) Speight’s challenge to the sp ecial instruction lacks merit.
F Speight claims the trial court erred in fa iling to instruct sua sponte on the lesser included offenses of battery and sexual battery in connection with the charge of sexual penetration. Although he did not request le sser included offense in structions for count four (sexual penetration) or count five (sexua l penetration in concert), he claims the trial court nonetheless had a sua sponte duty to in struct on lesser included offenses because the jury could have found, under the natura l and probable consequences doctrine, that battery and sexual battery we re reasonably foreseeable c onsequences of first degree burglary, while sexual penetration was not. Speight was prosecuted under the natura l and probable consequences theory of aiding and abetting on count four, but not on count five . Because the claim of instructional error applies only to count four, and because we have already concluded that the conviction on count four must be dism issed, we do not address this claim of instructional error. G Speight further argues that because he did not commit any sexua l offense, the one strike finding that he committed a sexual offe nse during the commission of a burglary is not supported by the evidence. He challe nges the jury’s finding, made pursuant to section 667.61, subdivision (e)(2) (section 667. 61(e)(2)), that he committed the crimes of27 sexual penetration and sexual pe netration in concert during th e commission of a burglary. He claims the finding must be reversed beca use section 667.61(e)(2) applies only to those who personally commit an enumerated sexual o ffense, not to aiders and abettors, and there is no evidence that he personally co mmitted a sexual offense during a burglary. In construing a statute, our principal ta sk is to ascertain the intent of the Legislature so as to effectuate the statute’s purpose. ( People v. Jones (1993) 5 Cal.4th 1142, 1146; People v. Overstreet (1986) 42 Cal.3d 891, 895 .) We turn first to the language of the statute because the words the Legislature chose are the best indicators of its intent. ( Jones, supra, 5 Cal.4th at p. 1146; Overstreet, supra, 42 Cal.3d at p. 895.) We give the words of the statute their ordina ry meaning and construe them in context, harmonizing the various parts of the statute. ( People v. Lawrence (2000) 24 Cal.4th 219, 230; People v. Hernandez(2009) 180 Cal.App.4th 337, 348.) If the language of the statute is clear, we presume the Legislatur e meant what it said and apply the statute according to its terms without further judicial construction. ( Lawrence, supra, 24 Cal.4th at pp. 230-231; People v. Alvarado (2001) 87 Cal.App.4th 178, 185-186.) Although the defendant is entitled to the benefit of every reasonable doubt as to the interpretation of words or the construction of language used in a statute, we must avoid interpretations that would frustrate the purpose of the statute, rend er it nugatory, and lead to absurd results. ( People v. Alvarado , supra, 87 Cal.App.4th at p. 186.) Section 667.61 is an alternative and harsher sentencing sche me for certain sex crimes, including sexual penetration in concert. 9 ( People v. Mancebo (2002) 27 Cal.4th

9 At the time of the offenses, secti on 667.61 provided, in relevant part: “(a) A person who is convicted of an offe nse specified in subdivision (c) under one or more of the circumstances specified in subd ivision (d) or under two or more of the circumstances specified in subdivision (e) sha ll be punished by imprisonment in the state prison for life and shall not be eligible for release on parole for 25 years . . . .28 “(b) Except as provided in subdivision (a), a person who is convicted of an offense specified in subdivision (c) under one of th e circumstances specified in subdivision (e) shall be punished by imprisonm ent in the state prison for life and shall not be eligible for release on parole for 15 years . . . . “(c) This section shall apply to any of the following offens es: [¶] . . . [¶] “(3) A violation of Section 264.1. [¶] . . . [¶] “(5) A violation of subdivision (a) of Section 289. [¶] . . . [¶] “(d) The following circumstances sha ll apply to the offe nses specified in subdivision (c): [¶] . . . [¶] “(4) The defendant committed the presen t offense during the commission of a burglary, as defined in subdivision (a) of Section 460, w ith intent to commit an offense specified in subdivision (c). “(e) The following circumstances shall apply to the offenses specified in subdivision (c): [¶] . . . [¶] “(2) Except as provided in paragraph (4 ) of subdivision (d), th e defendant committed the present offense during the commission of a burg lary, as defined in subdivision (a) of Section 460, or during the commission of a burglary of a building, including any commercial establishment, which was then closed to the pub lic, in violation of Section 459. “(3) The defendant personally inflicted great bodily injury on the victim or another person in the commission of the present o ffense in violation of Section 12022.53, 12022.7, or 12022.8. “(4) The defendant personally used a dangerous or deadly weapon or firearm in the commission of the present offense in viola tion of Section 12022, 12022.3, 12022.5, or 12022.53. [¶] . . . [¶] “(6) The defendant engaged in the tying or binding of the victim or another person in the commission of the present offense.” (Stats . 1998, ch. 936, § 9, pp. 6874-6876.) Although section 667.61 has been amende d since the time of Speight’s offenses (Historical and Statutory Note s, 49 West’s Ann. Pen. Code (2013 supp.) foll. § 667.61, p. 62), the amendments do not affect our analysis.29 735, 741-742.) It is denominated the one strike law because it imposes life imprisonment as the punishment for certain sexual offens es committed under spec ified conditions, even if the offender has no prior convictions. ( People v. Estrada (1997) 57 Cal.App.4th 1270, 1274.) Section 667.61 mandates a sentence of 25 years to life in prison when a defendant is convicted of a sexual offense such as sexu al penetration in concert and the People have pleaded and proved one of the circumstances listed in secti on 667.61, subdivision (d) or at least two of the circumstances listed in section 667.61, subdivis ion (e). (Stats. 1998, ch. 936, § 9, p. 6874; § 667.61, subds. (a ) & (c).) Moreover, section 667.61 mandates a sentence of 15 years to life in prison when a defendant is convicted of a sexual offense such as sexual penetration in concert and th e People have pleaded and proved only one circumstance under section 667.61, subdivision (e). (Stats. 1998, ch. 936, § 9, p. 6874; § 667.61, subd. (b).) Among the circumstance s identified in section 667.61, subdivision (e) is the one described in subdivision (e )(2): “the defendant committed the present offense during the commission of a burglary . . . .” 10 (Stats. 1998, ch. 936, § 9, p. 6875; § 667.61(e)(2).) Section 667.61(e)(2) does not say that it only applies when a defendant personally commits a sexual offense. (§ 667.61(e)(2).) By comparison, the Legislature used the word “personally” in other subdivisions of section 667.61 to indicate that the defendant must personally engage in the conduct describe d. Section 667.61, subdivisions (d)(6) and (d)(7), for example, refer to circumstances where the defendant “personally inflicted” injury or harm. In addition, section 667.61, subdivision (e )(3) refers to a circumstance where the defendant “personally used a danger ous or deadly weapon or a firearm.” The

10 There was no evidence that Speight committed a burglary w ith the intent to commit a sexual offense; therefore, the exception to section 667.61(e)(2) does not apply. ( People v. Hernandez, supra , 180 Cal.App.4th at p. 349 [sec tion 667.61, subdivision (d)(4) requires intent to commit a specified sex offense upon entry into a residence].)30 use of the word “personally ” in subdivisions (d)(6), (d)(7) and (e)(3) limits the application of these qualifyi ng circumstances to direct pe rpetrators. The Legislature knew how to articulate a circum stance limited to personal co mmission of an offense. ( People v. Murphy (2001) 25 Cal.4th 136, 159 [use of different language suggests a different legislative intent]; Faulder v. Mendocino County Bd. of Supervisors (2006) 144 Cal.App.4th 1362, 1372 [“ ‘When the Legislature uses mate rially different language in statutory provisions addressing the same subjec t or related subjects, the normal inference is that the Legislature intended a difference in meaning’ ”].) The fact that the Legislature did not use the word “personally” in sec tion 667.61(e)(2) indicates that section 667.61(e)(2) applies to aiders and ab ettors and direct perpetrators. ( People v. Calhoun (2007) 40 Cal.4th 398, 402-405 [statute wh ich provides enhanced penalty for those who flee the scene of the crime “ ‘after committing a violatio n of’ ” the underlying crime applies to an aider and abettor because statutory language is not limited to direct perpetrators]; People v. Farr (1997) 54 Cal.App.4th 835, 845 ( Farr).) We decline to read section 667.61(e)(2) as requiring a defendant to personally commit an enumerated sexual offense where the Legislature did not include such a limitation. ( People v. Rodriguez (1999) 69 Cal.App.4th 341, 350 [“ ‘ “[W]he n the Legislature has carefully employed a term in one place and has excluded it in another, it should not be implied where excluded.” ’ ”].) The statute is not ambiguous in this rega rd, but even if it was, legislative intent supports the application of section 667.61(e)(2 ) to aiders and abettors. Section 667.61, subdivision (e) describes circumstances that in crease a victim’s vulnerability, such as the use of a deadly weapon and tying or binding. ( People v. Campbell(2000) 82 Cal.App.4th 71, 77-78 ( Campbell ).) Section 667.61 mandates lengthy prison sentences where the nature or method of the sex offense placed the vi ctim “in a position of elevated vulnerability.” ( People v. Palmore (2000) 79 Cal.App.4th 12 90, 1296, italics omitted.) Interpreting section 667.61(e)(2) to apply to ai ders and abettors furthers the legislative31 purpose of deterring the commission of se rious sexual offenses during residential burglaries by punishing aiders and abettors whose conduct f acilitates or encourages such offenses. ( People v. Alvarado, supra , 87 Cal.App.4th at p. 187 [purpose of section 667.61(e)(2) is to protect people in thei r homes and deter, by harsher punishment, burglars from sexually preying on the people th ey encounter after entering residences].) This is especially appropriate where the ai der and abettor engaged in tying the victim, thereby substantially increasing the risk of harm to the victim. ( People v. Manners (1986) 180 Cal.App.3d 826, 833 [culpability of aider and abettor whose conduct compounds harm to victim is as great as th at of perpetrator].) Given the Legislature’s concern in section 667.61 over circumstances that increase the vulnerability of victims and the words the Legislature chose to use in section 667.61(e)(2), we conclude that section 667.61(e)(2) applies to aiders and abettors. Speight nonetheless notes that section 667.61(e)(2) applies if “the defendant committed the present offense during the commissi on of a burglary . . . .” (§ 667.61, subd. (e)(2); emphasis added.) Focusing on the wo rd “committed,” he says he did not commit sexual penetration in c oncert because he was not a direct perpetrator of that offense. But courts have interpreted statutes requiring a defend ant to “commit” an offense or act to include aiders and abettors. ( People v. Calhoun, supra , 40 Cal.4th at pp. 402-405; Farr, supra , 54 Cal.App.4th at p. 845; People v. Manners, supra , 180 Cal.App.3d at p. 833.) And a defendant viol ates section 264.1 when he commits sexual penetration as an aider and abe ttor. (§ 264.1, subd. (a); People v. Lopez, supra, 116 Cal.App.3d at pp. 884-885.) Speight argues that even if an aider and abettor can “commit” a sexual offense within the meaning of section 667.61(e)(2), there was insufficient evidence to establish his liability under a direct aiding and abetting th eory. But as we have already explained, substantial evidence supports the finding that Speight aided and abetted Myles in the commission of sexual penetration in concert. We need not consider Speight’s contention32 that section 667.61(e)(2) does not apply to an aider and abettor convicted under a natural and probable consequences doc trine because Speight was not convicted under the natural and probable consequences doc trine on count five and we will dismiss the conviction on count four. Speight relies on People v. Cole (1982) 31 Cal.3d 568, 570-571 ( Cole ), but that case is distinguishable because secti on 12022.7, the statute examined in Cole, provided an enhanced penalty for “[a]ny person who . . . personally inflicts gr eat bodily injury.” Here, the Legislature did not limit the secti on 667.61(e)(2) circumstance to those who “personally” commit an enumerated sexual offense. (§ 667.61(e)(2).) Speight also relies on People v. Walker (1976) 18 Cal.3d 232 ( Walker) and People v. Piper (1986) 42 Cal.3d 471 ( Piper). Those cases, like Cole, supra , 31 Cal.3d 568, involved firearms-use enhancement statut es. The issue in Walker was whether section 12022.5 applied only to a defendant who pe rsonally used a firearm in the commission of a charged felony. ( Walker , supra , 18 Cal.3d at pp. 235-236.) Section 12022.5 was a sentence enhancement statute that applied to any person who “uses a firearm” in the commission or attempted commission of specified crimes. ( Walker, supra, at p. 236, fn. 1.) Citing People v. Hicks (1971) 4 Cal.3d 757, 765-766 ( Hicks ), superseded by statute on another point as noted in People v. Coffman and Marlow, supra , 34 Cal.4th at page 117, the Supreme Court in Walker noted that up to that time, it had construed enhancement statutes for being armed as appl ying only to persons who were personally armed, and the legislative history of section 12022.5 did not disclose any intent to apply the statute differently. ( Walker, supra, 18 Cal.3d at p. 241.) Hicks , in turn, cited People v. Perkins (1951) 37 Cal.2d 62, 63-64 ( Perkins ) which held that sect ion 1203, the statute at issue in Perkins , required personal use of a firearm or deadly weapon and noted that the Legislature had amended section 1203 to require personal use in response to judicial decisions applying the statute to aiders and abettors. ( Hicks, supra , 4 Cal.3d at pp. 765- 766.) In that context, the Walker court stated: “Generally, if a statute is intended to33 impose a derivative liability on some person other than the actor, there must be some legislative direction that it is to be applie d to persons who do no t themselves commit the proscribed act. Such a direction is found in section 31 which fixes responsibility on an aider and abettor for a crime personally co mmitted by a confederate. But the statute which defines aiders and abettors as princi pals in the commission of a criminal offense does not also purport to impose additiona l derivative punishme nt grounded on an accomplice’s personal conduct, as those statutes which provide for such increased punishment ‘ “do not define a crime or offens e but relate to the penalty to be imposed under certain circumstances.” ’ [Citations.] Hence the rules which make an accused derivatively liable for a crime which he does not personally commit, do not at the same time impose a derivatively increased punish ment by reason of the manner in which a confederate commits the crime.” ( Walker, supra, 18 Cal.3d at pp. 241-242.) Following long-established precedent and in the absence of contrary legislative intent, the court in Walker held that section 12022.5 did not appl y to persons who did not personally use a firearm. ( Walker, supra, 18 Cal.3d at p. 242.) Piper also involved the interpretation of a firearm use enhancement statute. The question in Piper was whether defendant’s prior conv iction for shooting at an occupied vehicle constituted a “serious felony” within the meaning of sec tion 1192.7, thereby qualifying him for an enhanced se ntence under section 667. ( Piper, supra , 42 Cal.3d at p. 473.) At that time, section 1192.7, subd ivision (c)(8) provided that a “serious felony” included “any felony in which the defendant uses a firearm.” ( Piper, supra, at p. 476, italics omitted.) The Supreme Court interpreted the phrase “uses a firearm” in section 1192.7, subdivision (c)(8) to mean pe rsonally uses a firearm. ( Piper, supra , 42 Cal.3d at p. 473.) This holding was based on the syntax of sec tion 1192.7, subdivision (c)(8) -- i.e., the use of the phrase “in which the defendant uses a firearm” rather than “in which a firearm is used” -- and prior decisions, such as Walker, supra , 18 Cal.3d 232 and Cole, supra , 3134 Cal.3d 568, which interpreted similar firearm use language to require a showing of personal use. ( Piper, supra, 42 Cal.3d at p. 476.) Outside the context of the firearm use statutes, however, the court in Farr, supra, 54 Cal.App.4th 835, held that a statute providing a separate sentencing scheme applied to aiders and abettors where the statute did not condition its application to those who personally commit the offense. ( Id. at pp. 843-845.) The defendants in Farr were convicted of eight felonies, including mu ltiple sex crimes, committed during a home invasion robbery. ( Id. at pp. 838, 841-842.) As to the sex offenses, the trial court imposed full term consecutive prison sentences pursuant to section 667.6, subdivision (d) (section 667.6(d)). ( Farr, supra, 54 Cal.App.4th at pp. 838, fn . 2, 842.) Relying on the language of the statute and Walker, supra , 18 Cal.3d 232, the defendants in Farr argued that section 667.6(d) did not apply to them because they did not pe rsonally commit all the sexual assaults. ( Farr, supra, 54 Cal.App.4th at pp. 842-843.) The appellate court rejected the argument. It noted that the language of section 667.6 did not explicitly requ ire the defendant to person ally commit an enumerated offense. ( Farr, supra, 54 Cal.App.4th at p. 845.) Additionally, the court found no evidence that the Legislature intended to re quire a defendant to personally commit a listed sexual offense in order to be subject to full term consecutive sentencing under section 667.6. ( Farr, supra, at pp. 845-846.) The court distinguished Walker because, among other things, section 667.6(d) and other sentencing schemes have not been construed to require an accused to personally commit the offense. ( Farr, supra, at pp. 843-845.) After Farr, supra, 54 Cal.App.4th 835 was decided in 1997, the Legislature amended section 667.6(d), but did not limit th e application of the statute to direct perpetrators. (Historical and Statutory Notes, 49 West’s Ann. Pen. Code (2010 ed.) foll. § 667.6, pp. 378–380.)35 We likewise conclude that Walker, supra , 18 Cal.3d 232, is distinguishable. Walker is supported by the Legislature’s rejec tion of judicial decisions that applied firearm use statutes to aiders and abettors and a long line of cases construing “use” to mean “personal use.” ( Walker, supra, at pp. 241-242; Perkins, supra , 37 Cal.2d at pp. 64-65.) But the legislative history and precede ntial decisions applicable to firearm use statutes are not present with regard to secti on 667.61(e)(2). As we have stated, unlike the other subdivisions in section 667.61, there is no indication of a legisl ative intent to limit the application of secti on 667.61(e)(2) to direct perpetrato rs. Speight fails to demonstrate a basis for reversing the section 667.61(e)(2) finding.
H In addition, Speight argues that because he did not commit any sexual offense, the one strike finding that he tied or bound the vi ctim in the commission of a sexual offense is not supported by the evidence. At the time of defendant’s conviction, section 667.61, subdivision (e)(6) (former section 667.61(e)(6)) provided that a defendant qualifies for punishment under the one strike law in the circumstance where “[t]he de fendant engaged in the tying or binding of the victim or another person in the commission of the presen t offense.” Speight claims the jury’s former section 6 67.61(e)(6) finding must be reversed because there is no evidence that he tied or bound the victim “in the commission of” a charged sexual offense. 11 For the reasons we have already e xplained, however, substantial evidence

11 Tying or binding the victim is done “i n the commission of” a sexual offense when tying or binding the victim aids the commission of the sexual offense. In People v. Masbruch (1996) 13 Cal.4th 1001, the California Su preme Court held that the defendant in that case utilized a gun “ ‘at least as an ai d in completing an esse ntial element of’ the crimes of rape and sodomy” and thus the ev idence was sufficient to support a finding under section 12022.3, subdivision (a) that the defendant used a firearm in the commission of the offenses. ( Masbruch, supra, 13 Cal.4th at pp. 1011-1012.) Later, in People v. Jones (2001) 25 Cal.4th 98, the Supreme Court said it is undisputed that the36 supports the jury finding that Speight co mmitted the sexual offense as an aider and abettor. Citing Campbell, supra , 82 Cal.App.4th 71, Speight claims his participation in tying or binding the victim was not done “in the commissi on of” a sexual offense because he did not exploit the victim ’s vulnerability by digitally penetrating her. But the argument repeats his prior contention regard ing section 667.61(e)(2) that the word “commit” means “personally co mmit.” We reject his curre nt argument for the same reasons we rejected his prior argument. Moreover, Campbell involved a defendant who, acting alone, committed a sexual assault. ( Campbell, supra , 82 Cal.App.4th at p. 74.) Campbell did not analyze the application of former section 667. 61(e)(6) to an aider and abettor. People v. Alvarado,

supra , 87 Cal.App.4th 178, which is cited in Speight’s repl y brief, also involves a defendant who acted alone. Contra ry to Speight’s claim, neither Campbell nor People v. Alvarado states or suggests that former sec tion 667.61(e)(6) applies only where the defendant personally exploited the victim’s vulnerability by sexually assaulting her after she is tied or bound. As for Sp eight’s claim that his particip ation in the tying or binding of the victim was not done “in the commiss ion of” a sexual offense because he did not intend the commission of a sexual offense, form er section 667.61(e)(6) applies regardless of Speight’s intent when he tied or bound the victim. ( Campbell, supra, 82 Cal.App.4th at p. 78 [“the statute does not refer at al l to the attacker’s objective in performing prohibited acts, and any such particular inte ntion cannot be controlling”].) We reject Speight’s former secti on 667.61(e)(6) claim.

phrase “in the commission of” has the same meaning under both section 667.61, subdivision (e)(4), and section 12022.3, subdivision (a). ( Jones, supra, 25 Cal.4th at pp. 108, fn. 4, 109-110.)37 I Speight says the trial court erroneous ly believed consecutive sentences were mandatory under section 667.6, subdivision (d) and hence did not exercise informed discretion in sentencing him on count four (s exual penetration). He urges us to remand the matter so the trial court can exercise its discretion. Because we will dismiss the conviction on count four, we need not address the contention as to that count. But because we will also lift the stay of execution of the sentence on count five (sexual penetration in concert), we will rema nd the matter to the trial court for resentencing on that count. On remand, the trial court should decide whether consecutive sentencing is mandatory or discretionary under section 667.6 and comply with the strictures in People v. Belmontes (1983) 34 Cal.3d 335.
J Speight asserts that the sentence of 25 years to life in prison constitutes cruel and/or unusual punishment in this context. He challenges the sentence he received on count four under the California and federal Constitutions. Although we will dismiss the conviction on count four, we address this clai m because it applies to the 25-year-to-life sentence imposed on count five. “ ‘Whether a punishment is cruel or unus ual is a question of law for the appellate court, but the underlying disputed facts must be viewed in th e light most favorable to the judgment.’ [Citations.]” ( People v. Em (2009) 171 Cal.App.4t h 964, 971.) Speight bears a “ ‘considerable burden’ ” in showi ng that his sentence is unconstitutional. ( Id. at p. 972; Rummel v. Estelle (1980) 445 U.S. 263, 272 [63 L.Ed.2d 382, 390].)
1 The Attorney General stat es that Speight forfeited his claim of cruel and/or unusual punishment by failing to raise it below. We agree that Speight’s failure to raise his cruel and/or unusual puni shment claim in the trial court forfeited any right to appellate review of the claim. “Cruel a nd[/or] unusual punishment arguments, under the38 federal or California tests, require examinat ion of the offense and the offender.” ( People
v. Norman (2003) 109 Cal.App.4th 221, 229; People v. DeJesus (1995) 38 Cal.App.4th 1, 27 [challenge based on People v. Dillon (1983) 34 Cal.3d 441 ( Dillon ) 12 is factspecific].) This fact-basedinquiry must be raised in the trial court. ( People v. DeJesus,

supra, 38 Cal.App.4th at p. 27.) If it is not, it is forfeited. ( Ibid.; People v. Kelley (1997) 52 Cal.App.4th 568, 583.) Howe ver, because Speight also rais es an ineffective assistance of counsel claim, we discuss the merits of his constitutional claims.
2 We turn first to Speight’s state constituti onal claim. Article I, section 17 of the California Constitution prohibits the infliction of cruel or unusual punishment. A sentence may violate this prohibition “ ‘if, al though not cruel or unusual in its method, it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.’ [Citation.]” ( People v. Uecker (2009) 172 Cal.App.4th 583, 600.) “Our Supreme Court has emphasized ‘the considerable burde n a defendant must overcome in challenging a penalty as cruel or unusual. The doctr ine of separation of powers is firmly entrenched in the law of California, an d a court should not lightly encroach on matters which ar e uniquely in the domain of the Legislature. Perhaps foremost among these are the definition of cr ime and the determinat ion of punishment. While these intrinsically legi slative functions are circum scribed by the constitutional limits of article I, section 17 [of the Califor nia Constitution], the validity of enactments will not be questioned “unless their unc onstitutionality clearly, positively, and unmistakably appears.” ’ [Citation.]” ( People v. Kinsey (1995) 40 Cal.App.4th 1621,

12 Dillon was disapproved on another ground in People v. Chun (2009) 45 Cal.4th 1172, 1185-1186.39 1630.) “ ‘[F]indings of dispro portionality have occurred with ex quisite rarity in the case law.’ [Citation.]” ( People v. Em, supra , 171 Cal.App.4th at p. 972.) Speight’s 25-year-to-life sentence was imposed under section 667.61. That statute reflects a legislative determination that certain sex crimes carried out under particular circumstances warrant harsher punishment. ( Campbell, supra , 82 Cal.App.4th at pp. 77- 79.) “The choice of fitting and proper penalties is not an exactscience, but a legislative skill involving an appraisal of the evils to be corrected, the weighing of practical alternatives, consideration of relevant polic y factors, and responsiveness to the public will; in appropriate cases, some leeway for experimentation may also be permissible. The judiciary, accordingly, shoul d not interfere in this process unless a statute prescribes a penalty ‘out of all proportion to the offense’ [citations], i.e., so severe in relation to the crime as to violate the prohibition against cruel or unusual punishment.” ( In re Lynch (1972) 8 Cal.3d 410, 423–424 ( Lynch ).) We consider three areas of focus in assessing a penalty for disproportionality under the California Constitution: (1) an examin ation of the nature of the offense and the offender, with particular regard to the degr ee of danger both presen t to society; (2) a comparison of the sentence with punishme nts for different offenses in the same jurisdiction; and (3) a comparis on of the sentence with punishments for the same offense in other jurisdictions. ( People v. Uecker, supra, 172 Cal.App.4t h at p. 600 [ Lynch, supra, 8 Cal.3d 410].) In examining the first area of focus -- the nature of th e offense and the offender -- “ ‘we must consider not only th e offense as defined by the Legislature but also “the facts of the crime in question” (including its motive, its manner of commission, the extent of the defendant’s involvement, and the conseque nces of his acts); we must also consider the defendant’s individual cu lpability in light of his age, prior criminality, personal characteristics, and state of mind.’ [Citation.]” ( People v. Uecker, supra, 172 Cal.App.4th at p. 600

. )40 The California Supreme Court in Dillon, supra, 34 Cal.3d 441, af ter applying the first area of focus, held that under the circ umstances of that case, the life sentence the defendant received for first degree murder under the felony-murder rule violated California’s prohibition against cruel or unusual punishment. ( Dillon, supra , 34 Cal.3d at pp. 479-489.) The defendant was a 17-year-old high sch ool student with no prior criminal record at the time of the offenses. ( Id. at pp. 451, 486, fn. 35.) He lived not far from a secluded farm on which the victim and his brother illegally grew marijuana. The defendant knew the victim and his brother gu arded their property and carried firearms in this endeavor. The defendant and a friend recruited six other classmates to steal marijuana from the victim’s property. Some of the boys arme d themselves with shotguns, a baseball bat, and a knife. The de fendant carried a .22 caliber semi-automatic rifle. The boys split up into four pairs. ( Id. at p. 451.) One of the boys accidentally discharged his shotgun twice. ( Id. at pp. 452, 482.) Believing that his friends had been fired upon, hearing the victim approach his location where retreat and hiding were not possible, and believing the victim was about to shoot him, the defendant fired his rifle at the victim nine tim es, killing him. ( Id. at pp. 482-483.) The jury and trial judge credited the defendant’s testimony that he shot the vic tim out of fear for his life and panic. ( Id. at p. 482.) A psychologist testif ied at trial that the defendan t was unusually immature for his age. ( Id. at p. 483.) The jury in Dillon was reluctant to conv ict the defendant of first degree murder but was instructed that a verdict of first degree mu rder was required if the jury found that the killing occurred during an attempted robbery. ( Dillon, supra , 34 Cal.3d at p. 484.) The trial judge sympathized with the jury’s reluct ance to apply the felony-murder rule under the facts of that case and commented that th e evidence did not support a first degree murder conviction under any theory other than the felony-murder rule, but “ ‘the law is the law.’ ” ( Ibid. ) After it was determined that the defendant was ineligible for41 commitment to the California Youth Authority, the trial court was compelled to sentence him to life in prison. ( Id. at pp. 486-487.) Finding the defendant’s life sentence gro ssly disproportionate to the offense as committed and to the defendant ’s individual culpability, the California Supreme Court modified the judgment to reduce the defendant ’s conviction to second degree murder. ( Dillon, supra , 34 Cal.3d at p. 450, 488-489.) In so holding, the Court considered the defendant’s lack of criminal record, unus ual immaturity and re sultant inability to appreciate the risk he created or to extricat e himself from the situa tion without panicking, and the fact that his cohorts , who were aiders and abetto rs to the killing, were not convicted of homicide or sentenced to state prison. ( Id. at pp. 488-489.) Speight compares himself and the facts in this case to the defendant and the facts in Dillon, supra, 34 Cal.3d 441, and argues the first areaof focus weighs in his favor. He points to his youth at the time of the offense a nd lack of a prior crimin al record. He also asserts that weapons were not involved in th e charged offenses and he did not personally commit sexual penetration but instead tried to stop Myles from committing the assault. Speight says he is not the sort of perpetrator that the one strike law was intended to target because he is not a “serious an d dangerous sex offender.” It is true that Speight had no criminal re cord, but the seriousness of the offenses he committed outweighs his lack of prior criminal history. ( People v. Gonzales (2001) 87 Cal.App.4th 1, 17; People v. Alvarado, supra, 87 Cal.App.4th at pp . 199-201 [mandatory one strike term of 15 years to life for defe ndant who was 18 years old at time of offense and had no criminal record wa s not cruel or unusual].) And although Speight was only 17 years old at the time of the offenses, he was older than Myles and there is no evidence that Speight was unusually immature for hi s age. Speight was not a mere passive observer in the events lead ing to the commission of se xual penetration. Speight identified the victim’s house to Myles as a hous e “to hit for PSP’s.” He led Myles to the victim’s house. He agreed to “hit” the vic tim’s house with Myles even though he did not42 know Myles well and did not trust him. Speighttook steps to determ ine that the 14-yearold victim was at home alone and proceeded with the burglary after Myles expressed the intent to “rush” into the house and grab th e victim. Soon after ga ining entry into the victim’s house, Speight grabbed the victim’s ar m and, according to the victim, placed his arm around her neck, putting her in a headlock . Speight then saw Myles hit the victim hard enough to cause the vic tim to come out of Speight’s arms, yet Speight thought he would simply “go along with it and just get it done.” Speight said nothing, walked away from the victim, and proceeded to search the house for things to take. According to the victim, Speight threatened to hu rt her sister if the victim di d not cooperate. Speight saw Myles assaulting the victim and heard Myles say he planned to rape the victim, but Speight left the victim alone w ith Myles in the hallway. The victim testified that Speight did nothing to stop Myles from harming her. Speight knew Myles inte nded to rape the victim but nonetheless helped Myles restrain the victim, and eith er bound the victim himself or helped Myles bind her. Although Speight told Myles to leave the victim alone, that occurred after defendants bou nd the victim and after Myles digitally penetrated her. Speight was an active participant in the planned burglary and his conduct facilitated the commission of sexu al penetration by Myles. ( People v. Em, supra, 171 Cal.App.4th at pp. 966-967, 975-976 [two co nsecutive 25-year-to-life terms imposed on defendant who was only 15 year s old at time of offense was not cruel and/or unusual where defendant actively participated in a robbery by gang members and one of the participants shot and killed the victim]; People v. Gonzales , supra , 87 Cal.App.4th at pp. 5-6, 16-19 [sentence of to tal of 50 years to life for first degree murder wherein a principal personally used a firearm in the commission of the offense imposed against 16- year-old defendants convicted as aider and ab ettors was not cruel or unusual where the shooter openly carried a gun as defendants, who were gang members, advanced upon the victims after a perceived act of disrespect]; People v. Ortiz(1997) 57 Cal.App.4th 480,43 486-487 [sentence of 26 years to life for 14-ye ar-old defendant who participated in an armed robbery and was convicted of first degree murder as an aider and abettor was not cruel or unusual].) We do not agree with Sp eight’s assessment that his only offense was burglary or robbery. The jury convicted Sp eight of “serious” an d “violent” felonies under the three strikes law and Speight was statutorily ineligible for probation. (§§ 667.5, subd. (c), 667.61, subd. (h), 1170.12, 1192.7, subd. (c), 1203.065, subd. (a).) Unlike in Dillon, there is no evidence of reluctance by the trial judge to impose a 25- year-to-life sentence on count five, and there is no evidence of a disparity in sentencing between defendants. In addition, the inherent danger of home invasion robberies and the harm caused to victims cannot be overlooked. ( People v. Alvarado, supra , 87 Cal.App.4th at p. 200 [the double trauma of having one’s home invade d and then being sexually violated is substantial]; People v. Estrada, supra, 57 Cal.App.4th at p. 1281; People v. Nguyen,

supra, 21 Cal.App.4th at pp. 532-533.) During th e incident, the victim was placed in a headlock, groped, threat ened, punched, bound and sexually a ssaulted. Defendants left the victim naked from the waist down next to her tw o-year-old sister, with the victim’s hands tied behind her back and her face bloody and battered. As for the second area of focus -- a comparison of the sentence with punishments for different offenses in th e same jurisdiction -- Speight points out that his aggregate sentence of 28 years to life ex ceeds the penalty for first degr ee murder, which is 25 years to life. But the punishment for first degree murder may be greater than 25 years to life because a person convicted of first degree murd er may be subject to the death penalty or life in prison without the possibility of parole. (§ 190, subd. (a).) Speight is eligible for parole. In addition, Speight’ s argument does not take into a ccount the legislative purpose of providing harsher punishme nt for serious sexual offenses committed under aggravated circumstances that increase the victim’s vulnerability. ( People v. Crooks (1997) 55 Cal.App.4th 797, 808.) Speight’s one strike sentence was based on his commission of44 multiple serious or violent offenses: firs t degree burglary and se xual penetration in concert while binding the victim. ( People v. Estrada, supra , 57 Cal.App.4th at p. 1282 [the penalty for a single offense cannot properly be compared to the one strike penalty for committing multiple offenses]; People v. Crooks, supra , 55 Cal.App.4th at p. 807 [same].) Punishing these crimes with a 25 -year-to-life sentence is not shocking or outrageous. ( People v. Alvarado, supra , 87 Cal.App.4th at p. 200; People v. Estrada,

supra , 57 Cal.App.4th at pp. 1280-1282.) Turning to the third area of focu s -- a comparison of the sentence with punishments for the same offense in othe r jurisdictions -- Speight does not make a showing that the section 667. 61 penalty he received is out of line with punishments prescribed for the same offens e in other states having iden tical or similar constitutional provisions. ( People v. Dougherty (1982) 138 Cal.App.3d 278, 282-283; People v. Galambos (2002) 104 Cal.App.4th 1147, 1159 [appellate contentio ns must be supported by analysis].) But even if California has ta ken a more aggressive approach than other states in setting punishment under the one strike law, that fact alone would not necessarily render Speight’s se ntence unconstitutional. ( People v. Uecker, supra, 172 Cal.App.4th at p. 601; People v. Alvarado, supra , 87 Cal.App.4th at pp. 200-201; accord, Rummel v. Estelle, supra, 445 U.S. at pp. 281-282 [63 L. Ed.2d at pp. 395-396] [even if a state’s statute is the most stringent in the nation, that severity does not render a defendant’s sentence grossly dispropo rtionate to his offenses].) Speight fails to show that, applying the th ree areas of focus to the circumstances of this case, his sentence was so disproportionate that it shocks the conscience and offends notions of human dignity. 3 Speight also contends the sentence he re ceived violates the Eighth Amendment to the United States Constitution. He claims, ba sed on the same factor s supporting his state constitutional claim, that his “sentence should be declared cruel and unusual punishment45 as applied to him.” For the reasons we ha ve explained, Speight’s cruel and unusual punishment claim under the federal Constitution fails. The Eighth Amendment, wh ich forbids cruel and unusua l punishments, contains a proportionality principle that app lies to noncapital sentences. ( Graham v. Florida (2010) __ U.S. __ [176 L.Ed .2d 825, 835-836] ( Graham ); Ewing v. California (2003) 538 U.S. 11, 20 [155 L.Ed.2d 108, 117] (lea d opn. of O’Connor, J.); cf. id. at pp. 32-33 [155 L.Ed.2d at p. 125] (dis. opn. of Stevens, J.) & id. at p. 35-36 [155 L.Ed.2d at p. 127] (dis. opn. of Breyer, J.).) But th e Eighth Amendment fo rbids only extreme sentences that are grossly disproportionate to the crime. ( Harmelin v. Michigan (1991) 501 U.S. 957, 1001 [115 L.Ed.2d 836, 869] (conc. opn. of Kennedy, J.).) Strict proportionality between the crime and the sentence is not required. ( Ibid. ) “Outside the context of capital punishment, successful challenges to the prop ortionality of particular sentences have been exceedingly rare.” ( Rummel v. Estelle, supra, 445 U.S. at p. 272 [63 L.Ed.2d at 390].) Proportionality analysis cons iders the gravity of the current offens e compared with the harshness of the penalty, in light of the state interests behind the sentencing statute. ( Ewing v. California, supra, 538 U.S. at pp. 28- 30 [155 L.Ed.2d at pp. 122-123] (lead opn. of O’Connor, J.).) Based on our examin ation of the entire record, we conclude the one strike sentence imposed in this case is not grossly disproportionate to the offenses committed. The conduct leadi ng to the current offenses wa s not passive, harmless, or a mere technical violation of the law. (Cf. Solem v. Helm (1983) 463 U.S. 277, 296 [77 L.Ed.2d 637, 653]; People v. Carmony (2005) 127 Cal.App. 4th 1066, 1077.) Speight says that given his youth and imma turity, the penological goals set forth in Graham, supra , ___ U.S. ___ [176 L.Ed.2d 825] mi litate against imposition of a life sentence with a mi nimum term. But Graham is not on point. The Supreme Court held in Graham that it is unconstitutional to impose a sentence of life in prison without the possibility of parole agai nst a juvenile for a nonhomicide offense. ( Graham, supra,

___46 U.S. ___, ___, ___ [176 L.Ed.2d at pp. 832 , 845, 850].) Here, however, Speight is eligible for parole.
K Speight contends his trial counsel provided ineffective assistance. He claims his counsel failed to object to the erroneous instructions concerning “in concert,” corroboration of his testimony, and the lesser included offenses on count four. He also claims his counsel failed to seek relief from cruel and/or unusual punishment. To establish a claim of ineffective assist ance of counsel, the defendant must prove that (1) trial counsel’s representation was deficient because it fell below an objective standard of reasonableness under prevailing professional norms, and (2) the deficiency resulted in prejudice to the defendant. ( People v. Maury, supra, 30 Cal.4th at p. 389; Strickland v. Washington, supra, 466 U.S. at p. 687 [80 L.Ed .2d at p. 693].) We “need not determine whether counsel’s performan ce was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. . . . If it is easier to dispose of an ineffe ctiveness claim on the ground of lack of sufficient prejudice, . . . that course should be followed.” ( Strickland v. Washington, supra , 466 U.S. at p. 697 [80 L.Ed.2d at p. 699]; In re Cox (2003) 30 Cal.4th 974, 10 19-1020.) We review trial counsel’s performance with de ferential scrutiny, indulgi ng a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance and recognizing the many choices th at attorneys make in handling cases and the danger of second-guessing an attorney’s decisions. ( People v. Maury, supra, 30 Cal.4th at p. 389; Strickland v. Washington, supra, 466 U.S. at p. 689 [ 80 L.Ed.2d at p. 694].) Regarding the meaning of the words “in co ncert,” we have concluded that the trial court properly instructed th e jury. And we have determined that the 25-year-to-life sentence is not unconstitutionally cruel and/or unusual. Because there was no error in connection with those matters, there was no me ritorious basis for Speight’s trial counsel to object. Speight cannot establish that his trial counsel was deficient on those issues.47 ( People v. Weaver (2001) 26 Cal.4th 876, 931 [counsel is not ineffective for failing to make a meritless objection or motion]; People v. Memro (1995) 11 Cal.4th 786, 834, overruled on another ground in People v. Gaines (2009) 46 Cal.4th 172, 181, fn. 2; People v. Maury, supra, 30 Cal.4th at p. 389 [defendant must establish deficiency in counsel’s performance].) We need not address Speight’s conten tion pertaining to the lesser included offenses on count four because we will dismiss that conviction. Speight’s remaining ineffective assistance claim -- that his trial counsel failed to object to the erroneous instruction regard ing corroboration of his testimony -- fails because he has not demons trated prejudice. ( People v. Ledesma (1987) 43 Cal.3d 171, 217-218; Strickland v. Washington , supra , 466 U.S. at pp. 693- 694 [80 L.Ed.2d at pp. 697-698.) “[P]rejudice must be affirmatively proved; the record must demonstrate ‘a reasonable probability that, butfor counsel’s unprofessiona l errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ [Citation.]” ( People v. Maury,

supra, 30 Cal.4th at p. 389.) De fendant must show a reasonable probability of a more favorable result. ( People v. Ledesma, supra, 43 Cal.3d at pp. 217-218; Strickland v. Washington , supra , 466 U.S. at pp. 693- 694 [80 L.Ed.2d at pp. 697-698].) It is not enough for defendant to show th at errors had some conceivable effect on the outcome of the case. ( People v. Ledesma, supra, 43 Cal.3d at p. 217.) As we have explained in this opinion, the record establishes beyond a reasonable doubt that any error in in structing the jury pursuant to CALCRIM No. 301 did not contribute to the verdict on count five. Sp eight cannot show prejudice resulted from his trial counsel’s alleged deficiency.48 L Speight claims the abstract of judgment mu st be corrected to reflect that he was convicted on count five of sexual penetratio n in concert, not rape in concert. The Attorney General agrees, and so do we. The abstract of judgment incorrectly indi cates that Speight wa s convicted on count five of rape in concert. We will direct the trial court to prepare a corrected abstract of judgment. DISPOSITION The judgment against Myles is affirmed. The trial court is dire cted to correct the abstract of judgment to indicate that Myle s was convicted on count five of sexual penetration in concert, not rape in concert. The trial court shall forward a certified copy of the corrected abstract of judgment to the California Department of Corrections and Rehabilitation. In Speight’s case, the conv iction for sexual penetration (c ount four) is dismissed, and the stay of execution of sentence on th e conviction for sexual penetration in concert (count five) is lifted. The matter is rema nded to the trial court with directions to resentence Speight on count five in accordance with People v. Belmontes, supra, 34 Cal.3d 335. In all other respects the judgmentis affirmed. The trial court is further directed to amend the abstract of judgment to reflect dismissal of the conviction on count four and the new sentence on count five, an d to correct the abstract of judgment to indicate that Speight was convicted on count fi ve of sexual penetration in concert, not rape in concert. The trial court shall fo rward a certified copy of the amended and49 corrected abstract of judgment to the California Department of Corrections and Rehabilitation.

MAURO , J.

We concur:

ROBIE , Acting P. J.

HOCH , J.