Filed 7/24/14 P. v. Iniguez CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent,

v. ANDRES INIGUEZ, Defendant and Appellant. H038896 (Santa Clara County Super. Ct. No. C1197826)

I. INTRODUCTION Defendant Andres Iniguez appeals after conv iction, by jury trial, of three counts of committing a lewd or lascivious act on a child under the age of 14 (Pen. Code, § 288, subd. (a) 1 ), three counts of aggravated sexual a ssault of a child und er the age of 14 (§ 269), five counts of committing a forcible lewd or lascivious ac t on a child under the age of 14 (§ 288, subd. (b)(1 )), and one count of attempted lewd or lascivious act on a child aged 14 or 15 (§§ 664 /288, subd. (c)(1)). Defendant was sentenced to an indeterminate prison term of 45 years to life, consecutive to an aggregate determinate term of 38 years. On appeal, defendant contends: (1) there was no substantial evidence that he used force, fear, or duress to comm it the aggravated sexual assaults or the forcible lewd or lascivious acts; (2) the prosecution failed to prove he did not re asonably believe the

1 All further statutory references are to the Penal Code unless otherwise indicated.2 victim consented to sexual intercourse, and the trial court failed to properly instruct the jury on the definition of consen t; (3) the trial court erred by failing to give lesser included offense instructions as to the aggravated sexual assault counts; (4) there was no substantial evidence that he lewdly touched th e victim on one occasion; (5) the trial court erroneously told the jury that it could not consider lesser offe nses if it could not agree on the greater charges; (6) there was cumulative error; (7) the trial court erred by imposing a full-term consecutive sentence on one count; and (8) the trial court erred by imposing an AIDS education fee, along with penalty assessments. For reasons that we will explain, we fi nd insufficient eviden ce to support one count of committing a forcible lewd and lasc ivious act on a child under the age of 14 (count 16), and we will reduce that count to a misdemeanor battery and stay the sentence pursuant to section 654. We will also stri ke the AIDS education fee and associated penalty assessments. We will a ffirm the judgment as modified. II. BACKGROUND A. Family Background and Discovery of Sexual Abuse Defendant was the live-in boyfriend of Maria F. and the father of two of her children. Maria had five other children, including Monica Doe, who was born in January of 1997. Defendant wa s 29 years older than Monica. Monica and her siblings lived in Mexico from the time Monica was one and a half years old until 2005, when the fa mily moved in with defendant in San Jose. At that point, Monica was eight years old and entering the third grade. From 2005 until late 2007 or early 20 08, Monica and her family shared an apartment with extended family (the first apartment). Moni ca was in third, fourth, and fifth grades during this time period, and she was eight to 10 or 11 years old. In the first apartment, Monica, Maria, de fendant, and defendant’s daug hter all shared a room. Sometimes Maria and defendant would sleep on the bed, with the girls sleeping on the3 floor. Sometimes the girls would sleep on th e bed, with Maria a nd defendant sleeping on the floor. The family then moved to a three-bedr oom apartment with defendant (the second apartment). Monica and her half-sibling initi ally had their own bedroom in the second apartment. However, the family later rented out two of the bedrooms. At that point, Maria, defendant, Monica, and defendant’s da ughter all shared a bedroom. There was only one bed, and sometimes all four of them slept in the bed or on the floor together. After Maria gave birth to defendant’s younge r daughter in December of 2008, Maria and the baby slept on the bed while defendant, M onica, and defendant’s older daughter slept on the floor. Monica was 11 years old and in fifth grade at that time. On January 16, 2011 (shortly after Moni ca’s fourteenth birthday), the family was getting ready for church. Maria prepared breakfast, then went to tell Monica and defendant that breakfast was ready. Through the bedroom doorway, she saw defendant touch Monica’s vagina, over her pants. Moni ca moved her arm to hide her face when defendant touched her, “like she didn’t like it.” Monica also moved her hand as if to push defendant’s hand away. After observing the incident, Maria went into the bedroom, hit defendant, and told him to leave. Maria asked Monica what had happened. Monica responded, “Everything,” and said that defendant had been molesting her si nce they had lived in the first apartment. Maria called the police a few days later. B. Medical Exam Mary Ritter, a physician assistant at Va lley Medical Center’s Sexual Assault Response Team (SART), perfo rmed a SART examination on Monica on February 3, 2011. Monica told Ritter that defendant had touched her in her fro nt and back private areas starting at age eight. At age 11, defend ant began putting his penis into her vagina. Sometimes this was painful. Monica bled once, and sometim es she had pain when she urinated. Defendant also put his penis into her anus, which caused her to have a painful4 bowel movement. Defendant would ejaculate. He had also touched her breast with his hand, and he had put his mouth on her breast. The SART exam revealed that Monica’s hymenal tissue was very narrow in three places. The narrowing had been caused by pene trating injuries, which had healed. Ritter could not tell what caused the injuries and wh ether the penetration had been consensual or not. The injuries were at least two weeks old. C. Monica’s Trial Testimony Monica was 15 years old at the time of tr ial. Defendant be gan inappropriately touching her when the family lived in the first apartmen t—sometime between 2005 and 2008, when Monica was eight to 10 or 11 years old. Defe ndant initially touched her less than once a month. Defendant began touchi ng her more often—“like every three days, two days”—when the family moved to the seco nd apartment. Defendant would touch her vagina and breasts. He touched the inside of her vagina two or three times. On two occasions, defendant tried to pu t Monica’s mouth on his penis. Monica did not remember how old she wa s when defendant began having sexual intercourse with her, but she recalled that it occurred in 2010 (when Monica was 13 years old) and that it occurred after the family bega n living in the second apartment. Monica could not remember if it also occurred in 20 09 (when she was 12 years old). Defendant had sexual intercourse with Monica about once or twice each week. Monica recalled two specific incidents of sexual intercourse. One incident occurred after she and defendant had gone to the gym together. On that occasion, Monica tried to stop defendant by going to the bathroom, but defendant “wouldn’t let [her] stop him.” The second specific incident of sexual in tercourse occurred in December of 2010, when Monica was 13 years old. This was the la st time that they had sexual intercourse. Defendant had begun touching her when she was sleeping on the floor. Monica5 submitted when defendant put his penis inside of her and did not tr y to cry out, because she did not want anyone to notice and she “didn’t want to go through all of this.” Although defendant was bigger than Mo nica, she was not afraid of him. Defendant had never sl apped her, held her arms down, or threatened her. However, he did hold her arm “hard” when they had sexua l intercourse. Defendant would “grab” her before he put his penis into her vagina. Monica did not want defendant to touc h her. She believed defendant knew that she did not want to engage in sexual interc ourse with him. Monica would tell defendant that she “didn’t want him to be doing that ” or to “stop doing that,” but he “wouldn’t listen” to her. When Monica slept next to defendant, she would wrap a blanket around herself. Defendant would try to uncover her and turn her. She would try to turn away when he tried to put his penis inside her va gina, and sometimes, de fendant would stop. Monica would also push defendant away from her, or pull her pants up after defendant had pulled them down. Defenda nt would “[s]ometimes” stop af ter she did so. Defendant would stop molesting Monica if she got angry with him, but she could not stay angry at him because her mother would notice. Defendant once asked Monica if anyone knew what they were do ing. He told her that if her mother ever asked “if there wa s something going on,” Monica should say that her mother was wrong. Monica did not tell her mother about the sexual abuse. Although her mother was often in the bedroom during the incidents, Monica did not cry out. She did not want her mother to notice or “get hurt .” She explained, “I didn’t know what was going to be [defendant’s] reaction towards me or my mom if he knew that I told her.” If her mother knew, Monica would have to “go th rough all of this,” defendant would leave, and her mother would not have “someone to help her out.” Monica had also been sexually abused by an older brother. The brother had touched Monica when she was ei ght or nine years old. Us ually, he touched her vagina and breasts, but on one occasi on he put his penis into her vagina. Defendant saw that6 incident. In about 2009, Monica told her cousin that someone had touched her inappropriately when she had been living in Mexico. D. Defendant’s Admissions Defendant was arrested on January 19, 2011 and interviewed by two detectives that day. Regarding the incident that Monica’s mo ther had observed, de fendant initially said he had only touched Monica’s stomach ar ea while playing with her. Defendant eventually admitted touching Mo nica’s vagina over her clothing, but he continued to claim he had just been “p laying around with her.” Defendant admitted that he had begun touc hing Monica when she was 11 or 12 years old. He had touche d her breast, over her bra, an d her vagina, both outside and inside of her underwear. He had touched her buttocks area as well. Once or twice, defendant had grabbed Monica’s hand and put it on his penis. Defendant admitted having sex with Monica beginni ng when she was 11 years old, before his younger daughter was born. At first, defendant said it had happened only three or four times, but he later said it had ha ppened ten times or less. After an officer asked defendant to describe “how everything started” and suggested that Monica might have “wanted it too,” defendant asserted th at Monica had pulled her pants down and leaned against him, saying she want ed to know “ ‘wha t it feels like.’ ” Defendant described how he and Monica would usually have sex at night when they were sleeping on the floor. He would fa ce Monica while she had her back to him. Monica would pull her pants down and push her buttocks agai nst his groin “because she wanted to have sex with him.” Sometimes he would be the one to pull her pants down. Defendant had put his finger in to Monica’s vagina several times, claiming her vagina had been wet. Defendant desc ribed putting his hand on Monica ’s shoulder during sex. At the end of his interview, defendant wr ote apology letters to Monica and Maria. He asked Maria to forgive him “for all the damage[] I have done” and swore he would7 never do “this” again. In his letter to Moni ca, he similarly acknowledged that he “did so much damage” to her. He apologiz ed and asked for her forgiveness. E. CSAAS Expert Carl Lewis, a trainer on child abuse i ssues and a licensed private investigator, testified about Child Sexual Abuse Accomm odation Syndrome (CSAAS). He testified that victims of sexual abuse are often fearful of what will happen if they disclose the abuse. A child may be scared that the fam ily situation will change ; the family may be dependent upon the abuser for support. Children commonly find a way to act like nothing is happening. Because of the “bu ilt in” fear component, it is uncommon for a child to seek help. Chil dren also often hold back details of sexual abuse. F. Charges and Verdicts Defendant was charged with six counts of committing a lewd or lascivious act on a child under the age of 14 dur ing the time period between Augu st 1, 2005 and July 31, 2008. (Counts 1-6; § 288, su bd. (a).) The prosecutor told the jury that counts 1 and 2 occurred when Monica was eight years old and in third grade (in 20 05), that counts 3 and 4 occurred when Monica was nine years old and in fourth grade (in 2006) , and that counts 5 and 6 occurred when Monica was 10 years old and in fifth grade (in 2007). The jury was unable to reach a verd ict as to counts 1 through 3 but found defendant guilty of counts 4 through 6. Defendant was charged with five counts of aggravated sexual assault of a child under the age of 14 and seven or more years younger than the defendant. (Counts 7, 8, 11, 12, & 15; § 269.) Rape (§ 261, subd. (a)) was alleged as the underlying crime in all five counts. Counts 7, 8, 11, and 12 were alleged to have occu rred between August 1, 2008 and December 31, 2010, while count 15 was alleged to have occurred between September 9, 2010 and December 31, 2010. Th e prosecutor specified that counts 7 and 8 occurred when Monica was in sixth grade (i n 2008 or 2009), that counts 11 and 12 occurred when Monica was in seventh grade (i n 2009 or 2010), and that count 15 related8 to the incident that occurred in December of 2010. The jury was unable to reach a verdict as to counts 7 and 8 but found defendant guilty of counts 11, 12, and 15. Defendant was charged w ith five counts of comm itting a forcible lewd or lascivious act on a child under the age of 14. (Counts 9, 10, 13, 14, & 16; § 288, subd. (b)(1).) Counts 9, 10, and 13 were a lleged to have occurred between August 1, 2008 and December 31, 2010. Count 14 was alleged to have occurred between August 1, 2008 and September 8, 2010. C ount 16 was alleged to have occurred between September 9, 2010 and December 31, 2010. Th e prosecutor stated th at counts 9 and 10 occurred when Monica was in sixth grade (i n 2008 or 2009), that counts 13 and 14 occurred when Monica was in seventh grad e (in 2009 or 2010 ), and that count 16 occurred “that last time” that Monica descri bed, “December of 2010.” The jury found defendant guilty of all five counts. Finally, defendant was charged with co mmitting a lewd or lascivious act on a child aged 14 or 15 on January 16, 2011—t he day that Maria saw defendant in the bedroom with Monica. (Count 17; § 288, subd. (c)(1).) Th e jury found defendant not guilty of that count, but it found him gu ilty of attempting to commit a lewd act (§§ 664/288, subd. (c)(1)). G. Sentencing The trial court imposed an aggregate inde terminate sentence of 45 years to life, consecutive to an aggregate determinate term of 38 years. The determinate sentence included a six year term for count 4, a c onsecutive eight year term for count 16, and four consecutive six year terms for counts 9, 10, 13, and 14. The in determinate sentence was comprised of consecutive terms of 15 ye ars to life for counts 11, 12, and 15. Concurrent terms were imposed for counts 5, 6, and 17. The fines and fees imposed at sentenci ng included an AIDS education fee plus penalty assessments. (See § 1463.23.)9 III. DISCUSSION A. Counts 9 Through 16: Evidence of Force, Fear, or Duress (§§ 269, 288, subd. (b)(1)) Defendant contends that counts 9 through 16—in which he was convicted of five counts of committing a forcible lewd or lascivious act on a child under th e age of 14 (§ 288, subd. (b)(1)) and three counts of aggr avated sexual assau lt of a child (§ 269)— must be reversed because there was no substa ntial evidence he accomplished any of the acts by means of force, fear, or duress. We evaluate defendant’s contention under a well-established standard of review: “In considering a challenge to the sufficiency of the evidence . . . we review the entire record in the light most fa vorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value— from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] We presume every fact in support of the judgment the trier of fact could have reasonably deduced from the ev idence. [Citation.] If the circumstances reasonably justify the trier of fact’s findings, reversal of the judgment is not warranted simply because the circumstan ces might also reasonably be reconciled with a contrary finding. [Citation.] ‘A reviewing court ne ither reweighs evidence nor reevaluates a witness’s credibility.’ [Citation.]” ( People v. Albillar (2010) 51 Cal.4th 47, 59-60 ( Albillar ).) 1. Proceedings Below Defendant was charged w ith five counts of comm itting a forcible lewd or lascivious act on a child under the age of 14 (counts 9, 10, 13, 14, & 16; § 288, subd. (b)(1)) and five counts of aggravated sexual assault of a child under the age of 14 and seven or more years younger than the de fendant (counts 7, 8, 11, 12, & 15; § 269). Counts 7 through 13 were alleged to ha ve occurred between August 1, 2008 and December 31, 2010. Count 14 was alleged to have occurred between August 1, 200810 and September 8, 2010. Counts 15 and 16 were alleged to have occurred between September 9, 2010 and December 31, 2010. The trial court instructed the jury that in order to convict de fendant of committing a forcible lewd or lascivious act on a child under age 14 in violation of section 288, subdivision (b)(1), it had to find that “[i]n committing the act, the defendant used force, violence, duress, menace or fear of immediate and unlawful bodily inju ry to the child or someone else.” (See CALCRIM No. 1111.) The trial court fu rther specified that “[t]he force used must be substantially different from or substantially gr eater than the force needed to accomplish the act itself.” (See ibid .) The trial court instructed the jury that in order to convict de fendant of committing aggravated sexual assault of a child in viol ation of section 269, it had to find that defendant “committed rape.” (See CALCRI M No. 1123) The tr ial court further specified that in order to find that defe ndant committed rape, it had to find that he “accomplished the intercourse by force, violence, duress, menace or fear of immediate and unlawful bodily injury.” (See CALCRIM No. 1000.) The trial court also explained, “Intercourse is accomplished by force if a person uses enough fo rce to overcome the woman’s will.” (See ibid. ) The trial court instructed th e jury that if it found defe ndant not guilty of forcible lewd or lascivious acts on a child under th e age of 14 (§ 288, subd. (b)(1)), it could convict defendant of five lesser included offens es: attempted forcible lewd or lascivious acts on a child under age 14 (§§ 664/288, subd . (b)(1)); non-forcible lewd or lascivious acts on a child under age 14 (§ 288, subd. (a)); attempted non-fo rcible lewd or lascivious act on a child under age 14 (§ § 664/288, subd. (a)); simp le battery (§§ 242, 243, subd. (a)); and simple assa ult (§§ 240, 241, subd. (a)). The trial court instructed the jury that if it foun d defendant not guilty of aggravated sexual assault of a child (§ 269), it could find defendant guilty of two lesser included offenses: rape (§ 261) and simple assault (§§ 240, 241, subd. (a)).11 The jury found defendant guilty of all five forcible lewd act counts. As to the sexual assault counts, the jury found defendant guilty of three counts but could not reach a verdict as to the other two counts. 2. Counts 9, 10, 13, 14, an d 16—Forcible Lewd or La scivious Acts (§ 288, subd. (b)(1)) Defendant contends there is no substantial evidence that he used force, fear, or duress to accomplish the forcible lewd acts charged in counts 9, 10, 13, 14, and 16. 2 Reviewing the entire record in the light most favorable to the judgment and presuming in support of the judgment ever y fact the jury could have reasonably deduced from the evidence, we find substantial evidence that defend ant used force to accomplish the lewd acts. Thus, we need not address whether th e record contains substantial evidence that defendant accomplished the lewd acts by means of fear or duress. The force used for a subdivision (b) convi ction must be “ ‘substantially different from or substantially greater than that ne cessary to accomplish the lewd act itself.’ [Citation.]” ( People v. Soto (2011) 51 Cal.4th 229, 242 ( Soto ).) “[T]his includes acts of grabbing, holding and restraining that occur in conjunction with the le wd acts themselves. [Citations.]” ( People v. Alvarez (2009) 178 Cal.App.4th 999, 1005.) For instance, in People v. Bolander (1994) 23 Cal.App.4th 155 ( Bolander ), disapproved on other grounds by Soto, supra, 51 Cal.4th at page 248, footnote 12, this court held that the defendant’s acts of “inhibiting [the victim] from pulling his shorts back up , bending [the victim] over, and pulling [the victim] towards him constitute force within the me aning of subdivision (b)” of section 288. ( Bolander, supra, at p. 159.) Here, Monica testified that defendant t ouched her every two to three days after they moved to the second apartment (in late 2007 or early 2008) an d that defendant had

2 As explained in part III-D, post , we find insufficient evidence to support count 16. We will therefore limit our di scussion to counts 9, 10, 13, and 14.12 sexual intercourse with her once or twice pe r week beginning in 2010 but possibly in 2009. He would “[s]ometimes” stop touching her when she told hi m to stop or pushed him away. Likewise, defendant would “some times” stop when she pulled her pants back up after defendant had pulled them down. He r testimony thus established that defendant sometimes would not stop molesting her when she tried to resist. Defendant’s acts were analogous to those this court found to constitute force in Bolander, supra, 23 Cal.App.4th 155, where the defendant pulled the victim to ward him, prevented the victim from pulling his shorts back up, and bent the victim over. The force that Monica described was “ ‘substantially different from or substantially greater than that necessary to accomplish the lewd act itself.’ [Citation.]” ( Soto, supra, 51 Cal.4th at p. 242.) Although Monica was not specific about the means by which de fendant accomplished the lewd acts on any particular occasion, the jury could reasonably infer that defe ndant used physical force to overcome her resistance to accomplis h the lewd acts. (See gen., People v. Jones (1990) 51 Cal.3d 294, 314-316 [approving use of generic testimony in child molestat ion cases].) In sum, Monica’s generic testimony about de fendant’s use of force to commit multiple lewd acts was sufficient to support the jury ’s determination that defendant violated section 288, subdivision (b)(1) as charged in counts 9, 10, 13, an d 14. (See fn. 2, ante .) 3. Counts 11, 12, and 15—Aggravated Se xual Assault of a Child (§ 269) Defendant contends there wa s no substantial evidence that he used force, fear, or duress in committing the aggravated sexual assa ults (i.e., the rapes). Again, after reviewing the entire record in the light most favorable to the judgment and presuming in support of the judgment ever y fact the jury could have reasonably deduced from the evidence, we find substantial ev idence that defendan t used force to ac complish the sexual intercourse that was the basis for the three sexual assaults. Thus, we need not address whether the record contains substantial ev idence to support a finding that defendant accomplished the sexual intercourse by means of fear or duress.13 “[F]orcible rape under section 261, subdivision (a)(2) is sexual intercourse accomplished against the victim’s will by fo rce or other listed coercive means. [Citations.]” ( In re Asencio (2008) 166 Cal.App. 4th 1195, 1205 ( Asencio ).) Force “is proven when a jury finds beyond a reasonable doubt that the defendant accomplished an act of sexual [intercourse] by the use of for ce sufficient to overcome the victim’s will.” ( Ibid. ) In a rape case, the “question for the ju ry” is “simply whether [the] defendant used force to accomplish intercourse with [the vic tim] against her will, not whether the force he used overcame [the victim’s] physical strength or ability to resist him.” ( People v. Griffin (2004) 33 Cal.4th 1015, 1028.) Here, Monica testified that she would wrap a blanket around herself when she slept next to defendant. Defendant would try to uncover her and turn her. She would try to turn away when defendant tried to have sexual intercourse with her, and he would only sometimes stop. Monica further testified that defendant held her arm “hard” when they had sex, that defendant would “grab” her before he put his penis into her vagina, and that on one occasion she tried to get away from defendant by going to the bathroom, but defendant “wouldn’t let [her] stop him.” A nd, as noted above, defendant would only sometimes stop when she pulled her pants up after defendant had pulled them down. This testimony, viewed together with Moni ca’s generic testimony about the frequency of the sexual intercourse, provided substantial ev idence to support the jury’s determination that defendant used “force sufficient to ov ercome [her] will” in accomplishing the sexual intercourse and thus to suppor t the jury’s verdicts on the th ree sexual assaults charged in counts 11, 12, and 15. (See Asencio, supra, 166 Cal.App.4th at p. 1205.) In his reply brief, defendant contends that Monica never testified that any of the forcible acts occurred “in connec tion with the commission of co unts 11, 12 or 15.” First, defendant notes that count 15 was based on the last time defendant engaged in sexual intercourse with Monica, and that Monica did not specifically state that defendant used force on that occasion. Second, defendant note s that the prosecutor suggested counts 1114 and 12 could be based on acts that defenda nt admitted committing, and that defendant did not describe using any force. 3 However, Monica testified th at she would wrap a blanket around herself when she slept next to defend ant, that defendant would try to uncover her and turn her, and that she would try to turn away. She also testified that he would hold her arm “hard” when they had sex. As Mo nica did not distinguish among the acts of sexual intercourse when she provided this ge neric testimony, the jury could reasonably infer that defendant used such force on the last occasion as well as during the sexual intercourse that defend ant admitted committing. B. Counts 11, 12, and 15: Aggravated Sexual Assault of a Child/Consent Defendant contends that counts 11, 12, and 15 (aggravated sexual assault of a child; § 269) must be reversed because the prosecution failed to prove, beyond a reasonable doubt, that defendant did no t actually and reasona bly believe Monica consented to intercourse. Alternatively, he contends these three counts must be reversed because the trial court did not instruct the jury on the defi nition of consent. 1. Proceedings Below The trial court instructed the jury on rape pursuant to CALCRIM No. 1000. The trial court instructed the jury that to prove defendant was guilty of rape, the People were required to prove that defendant had sexual intercourse with a woman who was not his wife and that the woman “did not consent to the intercourse.” The trial court also instructed the jury, “To cons ent, a woman must act freely and voluntarily and know the nature of the act.” Further, the trial court in structed, “The defendant is not guilty of rape if he actually and reasonably believed that the woman consented to the intercourse. [¶] The People have the bu rden of proving beyond a reasonable doubt that the defendant did

3 After stating that count 15 was base d on Monica’s testimony about the December of 2010 incident, the prosecutor stated, “The time the defendant also admits to. The two times that [defendant] also ad mits to in Counts 11 and 12, the two times he admits to even before then.”15 not actually and reasonably believe that th e woman consented. If the People have not met this burden, you must fi nd the defendant not guilty.” 2. Sufficiency of the Evidence Defendant first argues the prosecution faile d to prove that he did not actually and reasonably believe that Monica consented to the sexual intercourse. (See CALCRIM No. 1000; People v. Mayberry (1975) 15 Cal.3d 143, 155 [a defendant is not guilty of rape if he or she “entertains a reasonable and bona fide belief” that the woman engaged in sexual intercourse consensually].) Defendant claims the eviden ce supported a finding that he did actually and reasonably believe that Monica consented to the sexual intercourse. Defendant reiterates his argument that there was no evidence he used any force, fear or duress to accomplish the sexual intercourse. Defendant also asserts that Monica never told him to stop during intercourse, that she testified she could stop him, and that there was evidence she was affectionate with him. Defendant also points out that the statements he made during this police interview were consistent w ith an actual belief of consent. Under the well-established substantial ev idence standard of appellate review, we may not reverse the judgment “simply because the circumstances might also reasonably be reconciled with a contrary finding.” ( Albillar, supra, 51 Cal.4th at p. 60.) Here, Monica testified that she would tell defendant th at she “didn’t want him to be doing that” or to “stop doing that,” and th at in order to prevent the molestations, she would wrap herself up in a blanket, turn away, push defendant away, or pull her pants back up. Monica was a young girl—between 11 an d 13 years old—and defendant, an adult 29 years older than Monica, was her mother’s boyfriend. Even if defendant held an actual, subjective belief that Monica consented, on this record the ju ry could find that defendant’s belief was not reasonable. (See People v. Williams (1992) 4 Cal.4th 354, 361 [a defendant’s mistake regard ing consent must be “formed under circumstances society will tolerate as reasonable”].) Based on th is evidence, a reasonable jury could find,16 beyond a reasonable doubt, that defendant did not actually and reasonably believe that Monica was consenting to the intercourse. 3. Consent Instruction Defendant contends the tria l court erred by failing to de fine consent in the jury instructions. He claims the jury should have been inst ructed in the language of section 261.6, which provides: “In prosecu tions under Section 261, 262, 286, 288a, or 289, in which consent is at issue, ‘consent’ shall be defi ned to mean positive cooperation in act or attitude pursuant to an exercise of free will. The person must act freely and voluntarily and have knowledge of the natu re of the act or transaction involved.” As noted above, the trial court did instruct the jury, pursuant to CALCRIM No. 1000, in language reflecting the last se ntence of section 261.6: “To consent, a woman must act freely and voluntarily and know the nature of the act.” Thus, defendant’s argument focuses on the absence of an instruc tion incorporating the portion of section 261.6 that defines “ ‘consent’ ” as “positive cooperation in act or attitude pursuant to an exer cise of free will.” Defendant points out that in People v. Lee (2011) 51 Cal.4th 620 ( Lee ), the California Supreme Court stated that an instru ction tracking the language of section 261.6 “correctly expressed the law.” ( Id. at p. 638.) However, Lee did not address, and thus did not hold, that in all prosec utions for forcible rape a tria l court must instruct the jury that “ ‘consent’ ” means “positive cooperation in act or attitude pursuant to an exercise of free will.” (See § 261.6.) Here, the rape inst ruction given did define consent, although it did not fully track the language of section 261.6. “A trial court has no sua sponte duty to revise or improve upon an accurate statem ent of law without a request from counsel [citation], and failure to reques t clarification of an otherwis e correct instruction forfeits the claim of error for purposes of appeal. [Citations.]” ( Lee, supra, at p. 638.) Even assuming the trial court was required to instruct the jury th at “ ‘consent’ ” is defined as “positive cooperation in act or attitude pursuant to an exercise of free will,”17 any error was harmless beyond a r easonable doubt. (§ 261.6; see Chapman v. California (1967) 386 U.S. 18, 24 ( Chapman ); People v. Martinez (2010) 47 Cal.4th 911, 955 ( Martinez ) [applying Chapman standard to trial court’s failu re to supply a definition of consent].) First, the jury was instru cted that “[t]o consent, a woman must act freely and voluntarily and know the nature of the act.” An instructi on informing the jury that a woman must cooperate in the sexual intercours e “pursuant to an exercise of free will” (§ 261.6) would have added little to the in struction given. (See Martinez, supra, 47 Cal.4th at p. 955 [failure to supply a defi nition of consent harmless where the rape instruction stated “that the acts against the vi ctim must occur ‘against that person’s will’ ” and defined that phrase as “ ‘without th e consent of the alleged victim’ ”].) Most significantly, the eviden ce clearly established that Monica did not consent to the sexual intercourse and that defendant did not reasonably or actually believe that Monica consented to the sexual intercourse. Monica testified that she expressly told defendant that she “didn’t want him to be doi ng that” or to “stop doing that,” but that he “wouldn’t listen” to her. She testified that defendant would “grab” her before he put his penis into her vagina. She also testified that in order to prevent defendant from molesting her at night, she would wrap herself up in a bl anket. She would also try to prevent him from molesting her by turning away, pushing him away, or pulling her pants back up. Monica was between 11 and 13 years old, an d defendant was 29 years older than her. Defendant’s statement to the po lice, in which he described M onica as being curious about sexual intercourse and initiating intercourse w ith him at age 11, wh ile they slept in a bedroom with other family members, was not credible. Moreover, de fendant’s claim that Monica had willingly enga ged in the sexual intercourse wa s preceded by an officer’s suggestion that Monica “wanted it .” On this record, no reas onable jury would have found that Monica “positive[ly] cooperat[ed]” in the sexual intercourse “pursuant to an exercise of free will” (see § 261.6) or that defendant actually and reasonably believed that she did.18 Defendant points out that the jury fa iled to convict him of two counts of aggravated sexual assault of a child (counts 7 and 8) as well as three counts of nonforcible lewd acts (counts 1 through 3). Defe ndant claims the jury’s failure to reach a verdict as to some counts “sup ports a reversal” by demonstrati ng that the case was close. However, some jurors may simply have had a reasonable doubt about when the intercourse and molestations began. The jury failed to reach a verdict on counts 7 and 8 after the prosecutor stated that those coun ts were based on sexual intercourse that occurred when Monica was in sixt h grade, but the ju ry convicted defendant of counts 11, 12, and 15, which the prosecut or said were based on acts of sexual intercourse that occurred when Monica was in seventh and eighth grades. 4 Similarly, the jury failed to reach a verdict on counts 1 through 3 after th e prosecutor stated that those counts were based on lewd acts that occurred when Monica was in third and fourth grade, but the jury convicted defendant of counts 4 through 6, wh ich the prosecutor said were based on lewd acts that occurred when Monica was in fourth and fifth grade. Thus, the jury’s mixed verdicts do not necessarily demonstrate a wea kness in the evidence re lated to consent or defendant’s belief regarding consent. We likewise reject defendant’s claim that the length of the jury’s deliberations or its questions and requests for readback demo nstrate that the case was close regarding whether Monica consented or whether defenda nt actually and reasonably believed that Monica consented. First, the jury’s deliberati ons were not particularly lengthy. This was a 12-day jury trial, with ev idence presented from day 4 th rough day 9, with 17 charges and numerous lesser offenses to be considered. Further, the tim e that the jury spent going over the instructions and listening to readba ck “should not be included in the time calculated for deliberation.” ( People v. Walker (1995) 31 Cal.App.4th 432, 438.)

4 Monica would have been in sixth grade in 2008 or 2009. She testified that defendant began having interc ourse with her in 2010 and could not recall if they had sexual intercourse in 2009.19 Second, there is no indication that the jury’s questions and readback requests were related to the issues concerning consent. The ju ry’s notes reflect that the jury caught a typographical error in an instruction, reques ted additional definitions of force, menace, fear and duress, requested Maria’s test imony on direct regard ing the frequency of molestation after moving apartments, asked for clarification of the process of considering lesser offenses, and asked for readback of te stimony about defendant’s interview. Under the circumstances, neither the length of the deliberations nor the number of jury notes indicates the jury had any difficulty in reachi ng a decision as to issues concerning consent or defendant’s belief in consent. In sum, any error in faili ng to instruct the jury, pursuant to section 261.6, that “ ‘consent’ ” is defined as “positive cooperation in act or attitude pursuant to an exercise of free will” was harmless beyond a reasonable doubt. (See Chapman, supra, 386 U.S. at p. 24.) C. Counts 11, 12, and 15: Failure to Instruct on Lesser-Included Offense Defendant contends that counts 11, 12, and 15 (aggravated sexual assault of a child; § 269) must be reversed because the tr ial court failed to instruct the jury on the lesser-included offense of unlawful sexual intercourse with a minor. 5 (See § 261.5, subd. (a) [“Unlawful sexual intercourse is an act of sexual intercourse accomplished with a person who is not the spouse of the perpetrato r, if the person is a minor.”].) He claims the evidence “raised a question as to whether the charged fo rcible rapes were committed by force, violence and duress.” A trial court has a “duty to instruct on ‘all theories of a lesser included offense which find substantial suppor t in the evidence.’ ” ( People v. Rogers (2006) 39 Cal.4th 826, 866-867 ( Rogers ).) “Substantial evidence” is evid ence from which a jury composed

5 As noted ante , the trial court did instruct the ju ry on two included offenses as to the aggravated sexual assault counts: rape (§ 261) and simple assault (§§ 240, 241, subd. (a)).20 of reasonable persons could co nclude that the defendant co mmitted the lesser offense, but not the greater. ( People v. Breverman (1998) 19 Cal.4th 142, 162 ( Breverman ).) “In deciding whether evidence is ‘substantial’ in this context, a court determines only its bare legal sufficiency, not its weight.” ( Id. at p. 177.) However, th e “ ‘substantial evidence requirement is not satisfied by “ ‘ any evidence . . . no matter how weak,’ ” but rather by evidence from which a jury co mposed of reasonable persons could conclude “that the lesser offense, but not the greater, was committed.” [Citation.]’ ” ( People v. Verdugo (2010) 50 Cal.4th 263, 293.) When a trial court fails to instruct the jury sua sponte on a lesse r included offense, reversal is not required “unless an exam ination of the entire record establishes a reasonable probability that the error affected the out come. [Citations.]” ( Breverman,

supra, 19 Cal.4th at p. 165; see People v. Watson (1956) 46 Cal. 2d 818, 836 ( Watson ).) We will assume that unlawful sexual inte rcourse with a minor is a lesser included offense of aggravated sexual assault of a ch ild here under the accusa tory pleading test. (See People v. Montoya (2004) 33 Cal.4th 1031, 1036.) We will also assume that there was substantial evidence supporting an instruction on that offense. This was not a close case with respect to defendant’s use of force to accomplish the sexual intercourse. Monica testified that in order to prevent defendant from molesting her at night, she would wrap herself up in a blanket, but defendant would unwrap her. She would also try to prevent him from enga ging in sexual intercourse with her by turning away, pushing him away , or pulling her pants back up. Defendant would only sometimes stop. Thus, the evidence establishe d that on the occasions when defendant did not stop, he used force to overcome Monica’s will. The only evidence suggesting that Monica willingly engaged in th e sexual intercourse came from defendant’s statement to the police, in which defendant asserted that Monica bega n initiating sex with him when she was 11 years old, while they were sleeping on the floor w ith other family members in the bedroom. No reasonable jury could find defendant’s statement credible. On this21 record, there is no reasonable probability the jury would have reached a different result had it been given an instruction on unla wful sexual intercourse with a minor. ( Breverman, supra, 19 Cal.4th at p. 165; see Watson, supra, 46 Cal.2d at p. 836.) Contrary to defendant’s argument, nothing in the record dem onstrates the jury believed the evidence was close re garding force. As explained above, the jury’s failure to convict defendant of two counts of aggravated sexual assault of a child (counts 7 and 8) and three counts of non-forcible lewd acts (counts 1 through 3) suggests only that some jurors may have had a reasona ble doubt about when the in tercourse and molestations began. The mixed verdicts do not demonstr ate a weakness in the evidence related to force. Likewise, no prejudice is established by the length of the jury’s deliberations or the jury’s questions and requests for rea dback. Although the jury did ask a question related to the process of cons idering lesser offenses, there is no indication that the jury was concerned about having the option of co nvicting defendant of a nonforcible lesser offense to the aggravated sexual assault counts. We conclude that even if the trial cour t erred by failing to instruct the jury sua sponte on unlawful sexual intercourse with a minor as a lesser included offense of aggravated sexual assault of a child, reversal is not required because our “examination of the entire record establishes [no] reasonable probability th at the error affected the outcome. [Citations.]” ( Breverman, supra, 19 Cal.4th at p. 165; see Watson, supra, 46 Cal.2d at p. 836.) D. Count 16: Insufficient Eviden ce of Lewd or Lascivious Act Defendant contends count 16 (forcible le wd or lascivious act on a child under the age of 14; § 288, subd. (b)(1 )) must be reversed because there is no evidence he committed any lewd and lascivio us act on the victim during the incident that occurred in December of 2010. As noted above, count 16 was alleged to have occurred between September 9, 2010 and December 31, 2010. During argument to the jury, the pr osecutor stated that22 count 16 occurred “that last time” that Monica and de fendant engaged in sexual intercourse, in “December of 2010.” Defendant contends that the evidence at trial did not establish that defendant committed a forcible lewd act on the last occasion that he engaged in sexual intercourse with Monica. Defendant also contends there was no evidence that he typically committed a forcible lewd act when he en gaged in sexual intercourse with Monica, such that the jury could infer that he committed a forcible lewd act when he had sexual intercourse with Monica for the last time, in December of 2010. At trial, the prosecutor asked Monica wh ether defendant would touch her before he put his penis into her vagina. Monica responded, “Yeah.” The prosecutor asked, “Where did he touch you?” Monica replie d, “He would grab me from my – from my back over here or – yeah, that’s what I reme mber.” Thus, Monica did not testify that defendant typically committed a lewd touching before he had se xual intercourse with her. Regarding the specific incident that occurred around December of 2010, Monica told an officer that defendant had begun to uching her while she was sleeping. Monica did not specify where defend ant had touched her, however. The Attorney General does not argue th ere is any evidence defendant committed a forcible lewd act during the specific incident that Monica described, nor does the Attorney General contend there is any ev idence that defendant typically committed a forcible lewd act when he had sexual interc ourse with Monica. In stead, the Attorney General argues the jury may have convicte d defendant of count 16 based on Monica’s generic testimony about defendant’s forcible lewd acts during the charged time period of September 9, 2010 and December 31, 2010, ra ther than her specif ic testimony about the December 2010 incident. Defendant argues that the Attorney Ge neral’s argument is foreclosed by the prosecutor’s election of the December 2010 incident as the basis for count 16. We agree.23 The prosecutor told the jury that count 16 was “that last time that she described to you, December of 2010.” 6 We also agree with defendant that th ere is insufficient evidence defendant committed a forcible lewd act when he had sexual intercourse with Monica for the last time in December of 2010, and that there is insufficient eviden ce defendant typically committed a forcible lewd act when he had sexual intercour se with Monica. Because Monica did testify that defenda nt touched her before having sexual intercourse with her on the last occasion, however, we find it appropriate to reduc e count 16 to a misdemeanor battery—a lesser-included offense on which th e jury was instructed. (§§ 242, 243, subd. (a)); see People v. Bailey (2012) 54 Cal.4th 740, 748 [under sections 1181, subdivision 6, and 1260, “ ‘a n appellate court that finds that insufficient evidence supports the conviction for a greater offense ma y, in lieu of granting a new trial, modify the judgment of conviction to reflect a c onviction for a lesser included offense’ ”].) E. Deliberation Instruction Defendant contends counts 9, 10, 13, 14, and 16 (the fo rcible lewd act convictions; § 288, subd. (b)(1)) must be reve rsed because the trial court to ld the jury that it could not consider lesser offenses if it could not agree on the greater charges.

6 Although the prosecutor’s closing argumen t did not necessarily preclude the jury from finding defendant guilty of count 16 based on a forc ible lewd act committed on another date within the charged time period, the prosecutor did provide the jury with discrete time periods for each of the charges, and the jury appears to have followed the prosecutor’s suggestions. For instance, th e aggravated sexual assaults charged in counts 7 and 8 were alleged to have occurred between Augu st 1, 2008 and December 31, 2010. The jury failed to convict defendant of those counts after the pr osecutor stated that those counts occurred when Moni ca was in sixth grade, whic h would have been in 2008 or 2009, whereas Monica testified that defend ant began having sexual intercourse with her in 2010 and could not recall if th ey had sexual intercourse in 2009.24 1. Proceedings Below During deliberations, the jury submitte d a note that read: “Clarification on considering lesser charges = if we do not agre e on greater charges, can we consider lesser charges?” The trial court’s written response stated : “No, if you cannot agree on greater charges you may not go onto [ sic ] consider lesser charges, please refer to CALCRIM 3517 in that regard.” As given, CALCRIM No. 3517 informed th e jury: “If all of you find that the defendant is not guilty of a greater charged cr ime . . . , you may find him guilty of a lesser crime if you are convinced beyond a reasonable doubt that the defendant is guilty of that lesser crime.” That instruction further informed the jury: “I t is up to you to decide the order in which you consider each crime and th e relevant evidence, but . . . I can accept a verdict of guilty of a lesser crime only if yo u have found the defend ant not guilty of the corresponding greater crime.” Additionally, th at instruction specif ied how the jury was to fill out the verdict forms: (1) if the jurors agreed that defendant was guilty of a greater crime, they were to fill out that verdict form only; (2) if the jurors could not agree whether defendant wa s guilty of a greater crime, they we re to inform the trial court and write nothing on the verdict form ; (3) if the jurors agreed th at defendant was not guilty of the greater crime and agreed that defendant wa s guilty of a lesser crime, they were to write “not guilty” on the verdic t form for the greater crim e and “guilty” on the verdict form for the lesser crime; (4) if the jurors agreed that defenda nt was not guilty of both the greater crime and the lesser crime, they were to write “not guilty” on both verdict forms; and (5) if the jurors agreed that defendant was not guilty of the gr eater crime but could not agree on a verdict for the lesser crime, they were to write “not guilty” on the verdict form for the greater crime but write nothing on the verdict form for the lesser crime.25 2. Analysis Below, defendant did not object nor request the trial court answer the jury’s question differently. He contends that this court may still consider the issue because it affected his substantial rights. (See § 1259 .) The Attorney Genera l does not argue that this claim was forfeited. Thus, we will pro ceed to consider the merits of defendant’s claim. Defendant relies on People v. Kurtzman (1988) 46 Cal.3d 322 ( Kurtzman ), where the jury asked, “ ‘Can we find the defendantguilty of manslaughter without unanimously finding him not guilty of murder in the second degree?’ ” ( Id. at p. 328.) The trial court responded, “ ‘No, you must unanimously agree on the second degree murder offense before considering voluntary manslaughter.’ ” ( Ibid .) The California Supreme Court held that the trial court erred by giving that response. A jury “may consider charges in any order it wishes to facilitate ultimate agreement on a conviction or acquittal,” even though “it may not return a verdict on lesser offenses unless it has unanimously agreed on a disposition of the greater.” ( Id. at p. 332.) Under this rule, “a trial court should not tell the jury it must first unanimously acquit th e defendant of the greater offense before deliberating on or even considering a lesser offense. [Citation.]” ( People v. Dennis (1998) 17 Cal.4th 468, 536.) Here, even if the trial court erred under Kurtzman , the error was harmless. Defendant acknowledges that in Kurtzman , the California Supreme Court applied the
Watson standard for harmless error, but he neve rtheless urges this court to apply the Chapman standard. We decline to do so. As an intermediate court, we are bound to apply the law as interpreted by our Supreme Court. ( Auto Equity Sales, Inc. v. Superior
Court (1962) 57 Cal.2d 450, 455.) Defendant argues that it is reasonably prob able that the jury would have convicted him of nonforcible lewd acts rather than the charged forcible lewd acts in counts 9, 10, 13, 14, and 16 if the trial court had not inst ructed the jury it could not “consider” lesser26 offenses if it disagreed on the greater offens es. However, since the jury failed to reach verdicts as to counts 1 thro ugh 3 (nonforcible lewd acts) and counts 7 and 8 (aggravated sexual assault), the record indicates that th e jury’s disagreement concerned those counts, not the forcible lewd act charges. Had the jury’s disagreement concerned the forcible lewd act charges, the jury would have inform ed the trial court that it could not reach a verdict as to those counts, as required by the trial court’s response a nd as it did for counts 1 through 3 and counts 7 and 8. Instead, the jury reached unanimous ve rdicts as to all of the forcible lewd or lascivious act counts. Moreover, in its response, the trial referred the jury back to CALCRIM 3517, which stated that the jury could decide the order in which it considered each crime. On th is record, it is not reasonably probable that the jury was misled by the trial court’s response such thatabsent the error a different result would have occurred. (See Watson, supra, 46 Cal.2d at p. 836.) F. Cumulative Error Defendant contends that the cumulative e ffect of the alleged instructional errors requires reversal. (See People v. Hill (1998) 17 Cal.4th 800, 844 [“a series of trial errors, though independently ha rmless, may in some circumstance s rise by accretion to the level of reversible and prejudicial error”].) Two of the claimed instructional errors re lated to defendant’s three convictions of aggravated sexual assault of a minor. We as sumed that the trial court erred by failing to fully instruct the jury on the definition of consent contained in section 261.6 and that the trial court should have instru cted the jury on unl awful sexual intercourse with a minor as a lesser included offense. We found e ach error harmless because the evidence overwhelmingly established that Monica did not consent to the sexual intercourse and that defendant did not reasonabl y or actually believe that Monica consented to the sexual intercourse. Even considered together, thes e errors were harmless as to defendant’s convictions of aggravated sexual assa ult of a minor for the same reason.27 The other claimed instructional error rela ted to defendant’s five convictions of forcible lewd acts on a child un der the age of 14. As this claimed error was unrelated to the other claimed errors, it cannot have any cumulative effect. (See Rogers, supra, 39 Cal.4th at p. 890 [no cumulative prejud ice where errors were “independent”].) G. Count 16: Sentencing Defendant contends the trial court e rred by imposing a full-term consecutive sentence on count 16, in whic h he was convicted of forcib le lewd or lascivious acts with a minor under the age of 14. Defenda nt argues that the trial court erroneously found that full-term consecu tive sentences were mandatory pursuant to section 667.6, subdivision (d), which requires a “full, separate, and consecutive term” for certain sex offenses “if the crimes involve separate vict ims or involve the same victim on separate occasions.” We have determined that defendant’s c onviction of count 16 must be reduced to misdemeanor battery. We therefore need no t reach defendant’s argument concerning section 667.6, subdivision (d). Rather th an remand this matter for resentencing on count 16, we determine that section 654 re quires the term for that count be stayed. Subdivision (a) of section 654 provide s that “[a]n act or omission that is punishable in different ways by different pr ovisions of law shall be punished under the provision that provides for the longest pote ntial term of imprisonm ent, but in no case shall the act or omission be punished under mo re than one provision. . . .” The purpose of the statute is to ensure that the punish ment is commensurate with the defendant’s culpability. ( People v. Perez (1979) 23 Cal.3d 545, 550-55 1.) “The proscription against double punishment in section 654 is applicable where there is a course of conduct which violates more than one statute and comprises an indivisible transact ion punishable under more than one statute within th e meaning of section 654. Th e divisibility of a course of conduct depends upon the intent and objective of the actor, and if all the offenses are28 incident to one objective, the defendant may be punished for any one of them but not for more than one. [Citations.]” ( People v. Bauer (1969) 1 Cal.3d 368, 376.) Here, Monica testified that defendant touc hed her before having sexual intercourse with her in December of 2010 . The evidence provides a reasonable inference that defendant committed that touchi ng with the same intent and objective as he had in committing the aggravated sexual assault. Ther efore, the term for the battery must be stayed. H. AIDS Education Fine Defendant contends, and the Attorney Ge neral concedes, that the AIDS education fee and associated penalty assessments must be stricken. As defendant points out, he was not convicted of any offense for which the fee is authorized. (See § 1463.23. 7 )

7 Section 1463.23 provides: “Notwith standing Section 1463, out of the moneys deposited with the coun ty treasurer pursuant to Sec tion 1463, fifty dollars ($50) of each fine imposed pursuant to Section 4338 of the Business and Professions Code; subdivision (c) of Section 11350 , subdivision (c) of Section 11377, or subdivision (d) of Section 11550 of the Health and Safety Code; or subdiv ision (b) of Section 264, subdivision (m) of Section 286, subdivision (m) of Section 288a, or S ection 647.1 of this code, shall be deposited in a special account in the county treasury which shall be used exclusively to pay for the reasonable costs of establishing and providing for the county, or any city within the co unty, an AIDS (acquired i mmune deficiency syndrome) education program under the direction of th e county health depa rtment, in accordance with Chapter 2.71 (commencing with Section 1001.10) of Title 6, and for the costs of collecting and administering funds recei ved for purposes of this section.”29 IV. DISPOSITION The judgment is modified as follows. In count 16, defenda nt’s conviction of committing a lewd or lascivious act on a child under the age of 14 (§ 288, subd. (b)(1)) is reduced to a conviction of mi sdemeanor battery (§§ 242, 2 43, subd. (a)). The term for count 16 is stayed pursuant to section 654. The AIDS education fee and associated penalty assessments are st ricken. As modified, th e judgment is affirmed.

_____________ _______________ _______________ BAMATTRE-MANOUKIAN, ACTING P.J.

WE CONCUR:

_____________ _____________ MIHARA, J.

_____________ _____________ GROVER, J.