Filed 7/24/14 P. v. Iniguez CA6 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS 

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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 conviction, 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 assault of a child under the age of 14 

(§ 269), five counts of committing a forcible lewd or lascivious act 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 commit the aggravated sexual assaults or the forcible lewd or 

lascivious acts; (2) the prosecution failed to prove he did not reasonably 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 consent; (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 the victim on one occasion; (5) the trial court 

erroneously told the jury that it could not consider lesser offenses 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 find insufficient evidence to support one 

count of committing a forcible lewd and lascivious 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 strike the AIDS education fee and associated 

penalty assessments. We will affirm 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 was 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 family 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 2008, Monica and her family shared an 

apartment with extended family (the first apartment). Monica 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, defendant, and defendant’s daughter all shared a room. 

Sometimes Maria and defendant would sleep on the bed, with the girls sleeping on the 
3

floor. Sometimes the girls would sleep on the bed, with Maria and defendant sleeping on 

the floor. 

 The family then moved to a three-bedroom apartment with defendant (the second 

apartment). Monica and her half-sibling initially 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 daughter 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 younger daughter in December of 2008, Maria and 

the baby slept on the bed while defendant, Monica, 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 Monica’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. Monica 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 since they had lived in the first apartment. 

Maria called the police a few days later. 

B. Medical Exam 

 Mary Ritter, a physician assistant at Valley Medical Center’s Sexual Assault 

Response Team (SART), performed a SART examination on Monica on February 3, 

2011. Monica told Ritter that defendant had touched her in her front and back private 

areas starting at age eight. At age 11, defendant began putting his penis into her vagina. 

Sometimes this was painful. Monica bled once, and sometimes she had pain when she 

urinated. Defendant also put his penis into her anus, which caused her to have a painful 
4

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 penetrating injuries, which had healed. Ritter 

could not tell what caused the injuries and whether 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 trial. Defendant began inappropriately 

touching her when the family lived in the first apartment—sometime between 2005 and 

2008, when Monica was eight to 10 or 11 years old. Defendant initially touched her less 

than once a month. Defendant began touching her more often—“like every three days, 

two days”—when the family moved to the second 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 put Monica’s mouth on his penis. 

 Monica did not remember how old she was 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 began living in the second apartment. Monica 

could not remember if it also occurred in 2009 (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 intercourse occurred in December of 2010, 

when Monica was 13 years old. This was the last time that they had sexual intercourse. 

Defendant had begun touching her when she was sleeping on the floor. Monica 
5

submitted when defendant put his penis inside of her and did not try 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 Monica, she was not afraid of him. 

Defendant had never slapped her, held her arms down, or threatened her. However, he 

did hold her arm “hard” when they had sexual intercourse. Defendant would “grab” her 

before he put his penis into her vagina. 

 Monica did not want defendant to touch her. She believed defendant knew that 

she did not want to engage in sexual intercourse 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 vagina, and sometimes, defendant would stop. 

Monica would also push defendant away from her, or pull her pants up after defendant 

had pulled them down. Defendant would “[s]ometimes” stop after 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 doing. He told her 

that if her mother ever asked “if there was 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 through 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 eight or nine years old. Usually, he touched her vagina 

and breasts, but on one occasion he put his penis into her vagina. Defendant saw that 
6

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 mother had observed, defendant initially said 

he had only touched Monica’s stomach area while playing with her. Defendant 

eventually admitted touching Monica’s vagina over her clothing, but he continued to 

claim he had just been “playing around with her.” 

 Defendant admitted that he had begun touching Monica when she was 11 or 

12 years old. He had touched her breast, over her bra, and 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 beginning 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 happened 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 that Monica had pulled her pants down and 

leaned against him, saying she wanted to know “ ‘what it feels like.’ ” 

 Defendant described how he and Monica would usually have sex at night when 

they were sleeping on the floor. He would face Monica while she had her back to him. 

Monica would pull her pants down and push her buttocks against 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 into Monica’s vagina several times, claiming her vagina had 

been wet. Defendant described putting his hand on Monica’s shoulder during sex. 

 At the end of his interview, defendant wrote apology letters to Monica and Maria. 

He asked Maria to forgive him “for all the damage[] I have done” and swore he would 
7

never do “this” again. In his letter to Monica, he similarly acknowledged that he “did so 

much damage” to her. He apologized and asked for her forgiveness. 

E. CSAAS Expert 

 Carl Lewis, a trainer on child abuse issues and a licensed private investigator, 

testified about Child Sexual Abuse Accommodation 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 family 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 “built in” fear component, it is uncommon for a 

child to seek help. Children 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 during the time period between August 1, 2005 and July 31, 

2008. (Counts 1-6; § 288, subd. (a).) The prosecutor told the jury that counts 1 and 2 

occurred when Monica was eight years old and in third grade (in 2005), 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 verdict 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 occurred between August 1, 

2008 and December 31, 2010, while count 15 was alleged to have occurred between 

September 9, 2010 and December 31, 2010. The prosecutor specified that counts 7 and 8 

occurred when Monica was in sixth grade (in 2008 or 2009), that counts 11 and 12 

occurred when Monica was in seventh grade (in 2009 or 2010), and that count 15 related 
8

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 with five counts of committing 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 alleged 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. Count 16 was alleged to have occurred between 

September 9, 2010 and December 31, 2010. The prosecutor stated that counts 9 and 10 

occurred when Monica was in sixth grade (in 2008 or 2009), that counts 13 and 14 

occurred when Monica was in seventh grade (in 2009 or 2010), and that count 16 

occurred “that last time” that Monica described, “December of 2010.” The jury found 

defendant guilty of all five counts. 

 Finally, defendant was charged with committing a lewd or lascivious act on a 

child aged 14 or 15 on January 16, 2011—the day that Maria saw defendant in the 

bedroom with Monica. (Count 17; § 288, subd. (c)(1).) The jury found defendant not 

guilty of that count, but it found him guilty of attempting to commit a lewd act 

(§§ 664/288, subd. (c)(1)). 

G. Sentencing 

 The trial court imposed an aggregate indeterminate 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 consecutive eight year term for count 16, and 

four consecutive six year terms for counts 9, 10, 13, and 14. The indeterminate sentence 

was comprised of consecutive terms of 15 years to life for counts 11, 12, and 15. 

Concurrent terms were imposed for counts 5, 6, and 17. 

 The fines and fees imposed at sentencing 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 the age of 14 

(§ 288, subd. (b)(1)) and three counts of aggravated sexual assault of a child (§ 269)—

must be reversed because there was no substantial 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 favorable to the judgment to determine whether it contains 

substantial evidence—that is, evidence that is reasonable, credible, and of solid value—

from which a reasonable trier of fact could find the defendant guilty beyond a reasonable 

doubt. [Citation.] We presume every fact in support of the judgment the trier of fact 

could have reasonably deduced from the evidence. [Citation.] If the circumstances 

reasonably justify the trier of fact’s findings, reversal of the judgment is not warranted 

simply because the circumstances might also reasonably be reconciled with a contrary 

finding. [Citation.] ‘A reviewing court neither 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 with five counts of committing 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 defendant (counts 7, 8, 11, 12, & 15; § 269). 

Counts 7 through 13 were alleged to have occurred between August 1, 2008 and 

December 31, 2010. Count 14 was alleged to have occurred between August 1, 2008 
10

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 defendant 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 injury to the child or 

someone else.” (See CALCRIM No. 1111.) The trial court further specified that “[t]he 

force used must be substantially different from or substantially greater than the force 

needed to accomplish the act itself.” (See ibid.) 

 The trial court instructed the jury that in order to convict defendant of committing 

aggravated sexual assault of a child in violation of section 269, it had to find that 

defendant “committed rape.” (See CALCRIM No. 1123) The trial court further 

specified that in order to find that defendant 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 force to overcome the 

woman’s will.” (See ibid.) 

 The trial court instructed the jury that if it found defendant not guilty of forcible 

lewd or lascivious acts on a child under the age of 14 (§ 288, subd. (b)(1)), it could 

convict defendant of five lesser included offenses: 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-forcible lewd or lascivious 

act on a child under age 14 (§§ 664/288, subd. (a)); simple battery (§§ 242, 243, 

subd. (a)); and simple assault (§§ 240, 241, subd. (a)). 

 The trial court instructed the jury that if it found 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, and 16—Forcible Lewd or Lascivious 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 every fact the jury could have reasonably deduced from the 

evidence, we find substantial evidence that defendant used force to accomplish the lewd 

acts. Thus, we need not address whether the record contains substantial evidence that 

defendant accomplished the lewd acts by means of fear or duress. 

 The force used for a subdivision (b) conviction must be “ ‘substantially different 

from or substantially greater than that necessary 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 lewd 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 meaning of subdivision 

(b)” of section 288. (Bolander, supra, at p. 159.) 

 Here, Monica testified that defendant touched her every two to three days after 

they moved to the second apartment (in late 2007 or early 2008) and that defendant had 

 2

 As explained in part III-D, post, we find insufficient evidence to support 

count 16. We will therefore limit our discussion to counts 9, 10, 13, and 14. 
12

sexual intercourse with her once or twice per week beginning in 2010 but possibly in 

2009. He would “[s]ometimes” stop touching her when she told him to stop or pushed 

him away. Likewise, defendant would “sometimes” stop when she pulled her pants back 

up after defendant had pulled them down. Her 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 toward 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 defendant accomplished the lewd acts on any 

particular occasion, the jury could reasonably infer that defendant used physical force to 

overcome her resistance to accomplish the lewd acts. (See gen., People v. Jones (1990) 

51 Cal.3d 294, 314-316 [approving use of generic testimony in child molestation cases].) 

In sum, Monica’s generic testimony about defendant’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, and 14. (See fn. 2, ante.) 

3. Counts 11, 12, and 15—Aggravated Sexual Assault of a Child (§ 269) 

 Defendant contends there was no substantial evidence that he used force, fear, or 

duress in committing the aggravated sexual assaults (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 every fact the jury could have reasonably deduced from the 

evidence, we find substantial evidence that defendant used force to accomplish the sexual 

intercourse that was the basis for the three sexual assaults. Thus, we need not address 

whether the record contains substantial evidence 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 force 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 force sufficient to overcome the victim’s will.” 

(Ibid.) In a rape case, the “question for the jury” is “simply whether [the] defendant used 

force to accomplish intercourse with [the victim] 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.” And, 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 Monica’s generic testimony about the frequency of 

the sexual intercourse, provided substantial evidence to support the jury’s determination 

that defendant used “force sufficient to overcome [her] will” in accomplishing the sexual 

intercourse and thus to support the jury’s verdicts on the three 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 connection with the commission of counts 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 notes that the prosecutor suggested counts 11 
14

and 12 could be based on acts that defendant admitted committing, and that defendant did 

not describe using any force.3

 However, Monica testified that she would wrap a blanket 

around herself when she slept next to defendant, 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 Monica did not distinguish among the acts of 

sexual intercourse when she provided this generic testimony, the jury could reasonably 

infer that defendant used such force on the last occasion as well as during the sexual 

intercourse that defendant 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 not actually and reasonably 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 definition 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 consent, a woman must act freely and voluntarily and know the 

nature of the act.” Further, the trial court instructed, “The defendant is not guilty of rape 

if he actually and reasonably believed that the woman consented to the intercourse. [¶] 

The People have the burden of proving beyond a reasonable doubt that the defendant did 

 3

 After stating that count 15 was based 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 admits to in Counts 11 and 12, the two times he admits to 

even before then.” 
15

not actually and reasonably believe that the woman consented. If the People have not 

met this burden, you must find the defendant not guilty.” 

2. Sufficiency of the Evidence 

 Defendant first argues the prosecution failed 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 evidence 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 with an actual belief of consent. 

 Under the well-established substantial evidence 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 that she “didn’t want him to be doing that” 

or to “stop doing that,” and that 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 and 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 jury could find that 

defendant’s belief was not reasonable. (See People v. Williams (1992) 4 Cal.4th 354, 361 

[a defendant’s mistake regarding consent must be “formed under circumstances society 

will tolerate as reasonable”].) Based on this 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 trial court erred by failing to define consent in the jury 

instructions. He claims the jury should have been instructed in the language of 

section 261.6, which provides: “In prosecutions under Section 261, 262, 286, 288a, or 

289, in which consent is at issue, ‘consent’ shall be defined 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 nature 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 sentence 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 instruction incorporating the portion 

of section 261.6 that defines “ ‘consent’ ” as “positive cooperation in act or attitude 

pursuant to an exercise of free will.” 

 Defendant points out that in People v. Lee (2011) 51 Cal.4th 620 (Lee), the 

California Supreme Court stated that an instruction 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 prosecutions for forcible rape a trial 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 instruction 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 statement of law without a request from counsel 

[citation], and failure to request clarification of an otherwise 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 that “ ‘consent’ ” is 

defined as “positive cooperation in act or attitude pursuant to an exercise of free will,” 
17

any error was harmless beyond a reasonable 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 failure to supply a definition of 

consent].) 

 First, the jury was instructed that “[t]o consent, a woman must act freely and 

voluntarily and know the nature of the act.” An instruction informing the jury that a 

woman must cooperate in the sexual intercourse “pursuant to an exercise of free will” 

(§ 261.6) would have added little to the instruction given. (See Martinez, supra, 47 

Cal.4th at p. 955 [failure to supply a definition of consent harmless where the rape 

instruction stated “that the acts against the victim must occur ‘against that person’s will’ ” 

and defined that phrase as “ ‘without the consent of the alleged victim’ ”].) 

 Most significantly, the evidence 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 doing 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 blanket. 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, and defendant was 29 years older than her. 

Defendant’s statement to the police, in which he described Monica as being curious about 

sexual intercourse and initiating intercourse with him at age 11, while they slept in a 

bedroom with other family members, was not credible. Moreover, defendant’s claim that 

Monica had willingly engaged in the sexual intercourse was preceded by an officer’s 

suggestion that Monica “wanted it.” On this record, no reasonable 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 failed 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). Defendant claims the jury’s failure to reach a 

verdict as to some counts “supports a reversal” by demonstrating 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 counts were based on sexual intercourse that 

occurred when Monica was in sixth grade, but the jury convicted defendant of counts 11, 

12, and 15, which the prosecutor 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 the 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, which 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 weakness in the evidence related 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 demonstrate that the case was close regarding 

whether Monica consented or whether defendant actually and reasonably believed that 

Monica consented. First, the jury’s deliberations were not particularly lengthy. This was 

a 12-day jury trial, with evidence presented from day 4 through day 9, with 17 charges 

and numerous lesser offenses to be considered. Further, the time that the jury spent going 

over the instructions and listening to readback “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 intercourse 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 jury’s notes reflect that the jury caught a 

typographical error in an instruction, requested additional definitions of force, menace, 

fear and duress, requested Maria’s testimony on direct regarding the frequency of 

molestation after moving apartments, asked for clarification of the process of considering 

lesser offenses, and asked for readback of testimony 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 reaching a decision as to issues concerning consent 

or defendant’s belief in consent. 

 In sum, any error in failing 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 trial 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 perpetrator, if the person is a minor.”].) He claims 

the evidence “raised a question as to whether the charged forcible 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 support in the evidence.’ ” (People v. Rogers (2006) 39 Cal.4th 

826, 866-867 (Rogers).) “Substantial evidence” is evidence from which a jury composed 

 5

 As noted ante, the trial court did instruct the jury 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 conclude that the defendant committed 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, the “ ‘substantial evidence 

requirement is not satisfied by “ ‘any evidence . . . no matter how weak,’ ” but rather by 

evidence from which a jury composed 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 lesser included offense, 

reversal is not required “unless an examination of the entire record establishes a 

reasonable probability that the error affected the outcome. [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 intercourse with a minor is a lesser included 

offense of aggravated sexual assault of a child here under the accusatory 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 engaging 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 established 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 the sexual intercourse came from defendant’s statement to 

the police, in which defendant asserted that Monica began initiating sex with him when 

she was 11 years old, while they were sleeping on the floor with other family members in 

the bedroom. No reasonable jury could find defendant’s statement credible. On this 
21

record, there is no reasonable probability the jury would have reached a different result 

had it been given an instruction on unlawful 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 demonstrates the jury 

believed the evidence was close regarding 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 reasonable doubt about when the intercourse and molestations 

began. The mixed verdicts do not demonstrate 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 readback. Although the jury did ask a question 

related to the process of considering lesser offenses, there is no indication that the jury 

was concerned about having the option of convicting defendant of a nonforcible lesser 

offense to the aggravated sexual assault counts. 

 We conclude that even if the trial court 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 that 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 Evidence of Lewd or Lascivious Act 

 Defendant contends count 16 (forcible lewd 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 lascivious 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 prosecutor stated that 
22

count 16 occurred “that last time” that Monica and defendant 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 engaged 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 whether defendant would touch her before 

he put his penis into her vagina. Monica responded, “Yeah.” The prosecutor asked, 

“Where did he touch you?” Monica replied, “He would grab me from my – from my 

back over here or – yeah, that’s what I remember.” Thus, Monica did not testify that 

defendant typically committed a lewd touching before he had sexual intercourse with her. 

 Regarding the specific incident that occurred around December of 2010, Monica 

told an officer that defendant had begun touching her while she was sleeping. Monica 

did not specify where defendant had touched her, however. 

 The Attorney General does not argue there 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 evidence that defendant typically committed a 

forcible lewd act when he had sexual intercourse with Monica. Instead, the Attorney 

General argues the jury may have convicted 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, rather than her specific testimony about the 

December 2010 incident. 

 Defendant argues that the Attorney General’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 there 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 evidence defendant typically 

committed a forcible lewd act when he had sexual intercourse with Monica. Because 

Monica did testify that defendant touched her before having sexual intercourse with her 

on the last occasion, however, we find it appropriate to reduce count 16 to a misdemeanor 

battery—a lesser-included offense on which the jury was instructed. (§§ 242, 243, 

subd. (a)); see People v. Bailey (2012) 54 Cal.4th 740, 748 [under sections 1181, 

subdivision 6, and 1260, “ ‘an appellate court that finds that insufficient evidence 

supports the conviction for a greater offense may, in lieu of granting a new trial, modify 

the judgment of conviction to reflect a conviction for a lesser included offense’ ”].) 

E. Deliberation Instruction 

 Defendant contends counts 9, 10, 13, 14, and 16 (the forcible lewd act convictions; 

§ 288, subd. (b)(1)) must be reversed because the trial court told the jury that it could not 

consider lesser offenses if it could not agree on the greater charges. 

 6

 Although the prosecutor’s closing argument did not necessarily preclude the jury 

from finding defendant guilty of count 16 based on a forcible 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, the aggravated sexual assaults charged in 

counts 7 and 8 were alleged to have occurred between August 1, 2008 and December 31, 

2010. The jury failed to convict defendant of those counts after the prosecutor stated that 

those counts occurred when Monica was in sixth grade, which would have been in 2008 

or 2009, whereas Monica testified that defendant began having sexual intercourse with 

her in 2010 and could not recall if they had sexual intercourse in 2009. 
24

1. Proceedings Below 

 During deliberations, the jury submitted a note that read: “Clarification on 

considering lesser charges = if we do not agree 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 the jury: “If all of you find that the 

defendant is not guilty of a greater charged crime . . . , 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: “It is up to you to decide the 

order in which you consider each crime and the relevant evidence, but . . . I can accept a 

verdict of guilty of a lesser crime only if you have found the defendant not guilty of the 

corresponding greater crime.” Additionally, that instruction specified 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 was guilty of a greater crime, they were to inform the trial court and 

write nothing on the verdict form; (3) if the jurors agreed that defendant was not guilty of 

the greater crime and agreed that defendant was guilty of a lesser crime, they were to 

write “not guilty” on the verdict form for the greater crime and “guilty” on the verdict 

form for the lesser crime; (4) if the jurors agreed that defendant 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 greater 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 General does not argue that 

this claim was forfeited. Thus, we will proceed 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 defendant guilty 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 the 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 nevertheless 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 probable 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 instructed the jury it could not “consider” lesser 
26

offenses if it disagreed on the greater offenses. However, since the jury failed to reach 

verdicts as to counts 1 through 3 (nonforcible lewd acts) and counts 7 and 8 (aggravated 

sexual assault), the record indicates that the 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 informed the trial court that it could not reach a 

verdict as to those counts, as required by the trial court’s response and as it did for counts 

1 through 3 and counts 7 and 8. Instead, the jury reached unanimous verdicts 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 this record, it is not reasonably probable that the jury was 

misled by the trial court’s response such that absent 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 effect of the alleged instructional errors 

requires reversal. (See People v. Hill (1998) 17 Cal.4th 800, 844 [“a series of trial errors, 

though independently harmless, may in some circumstances rise by accretion to the level 

of reversible and prejudicial error”].) 

 Two of the claimed instructional errors related to defendant’s three convictions of 

aggravated sexual assault of a minor. We assumed 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 instructed the jury on unlawful sexual intercourse with a minor as 

a lesser included offense. We found each error harmless because the evidence 

overwhelmingly 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. Even considered together, these errors were harmless as to defendant’s 

convictions of aggravated sexual assault of a minor for the same reason. 
27

 The other claimed instructional error related to defendant’s five convictions of 

forcible lewd acts on a child under 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 prejudice where errors were “independent”].) 

G. Count 16: Sentencing 

 Defendant contends the trial court erred by imposing a full-term consecutive 

sentence on count 16, in which he was convicted of forcible lewd or lascivious acts 

with a minor under the age of 14. Defendant argues that the trial court erroneously 

found that full-term consecutive 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 victims or involve the same victim on separate 

occasions.” 

 We have determined that defendant’s conviction of count 16 must be reduced to 

misdemeanor battery. We therefore need not reach defendant’s argument concerning 

section 667.6, subdivision (d). Rather than remand this matter for resentencing on 

count 16, we determine that section 654 requires the term for that count be stayed. 

 Subdivision (a) of section 654 provides that “[a]n act or omission that is 

punishable in different ways by different provisions of law shall be punished under the 

provision that provides for the longest potential term of imprisonment, but in no case 

shall the act or omission be punished under more than one provision. . . .” The purpose 

of the statute is to ensure that the punishment is commensurate with the defendant’s 

culpability. (People v. Perez (1979) 23 Cal.3d 545, 550-551.) “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 transaction punishable under 

more than one statute within the meaning of section 654. The divisibility of a course of 

conduct depends upon the intent and objective of the actor, and if all the offenses are 
28

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 touched her before having sexual intercourse 

with her in December of 2010. The evidence provides a reasonable inference that 

defendant committed that touching with the same intent and objective as he had in 

committing the aggravated sexual assault. Therefore, the term for the battery must be 

stayed. 

H. AIDS Education Fine 

 Defendant contends, and the Attorney General 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: “Notwithstanding Section 1463, out of the 

moneys deposited with the county treasurer pursuant to Section 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 subdivision (b) of Section 264, 

subdivision (m) of Section 286, subdivision (m) of Section 288a, or Section 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 county, an AIDS (acquired immune deficiency syndrome) 

education program under the direction of the county health department, in accordance 

with Chapter 2.71 (commencing with Section 1001.10) of Title 6, and for the costs of 

collecting and administering funds received for purposes of this section.” 
29

IV. DISPOSITION 

 The judgment is modified as follows. In count 16, defendant’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 misdemeanor battery (§§ 242, 243, subd. (a)). The term for 

count 16 is stayed pursuant to section 654. The AIDS education fee and associated 

penalty assessments are stricken. As modified, the judgment is affirmed. 

 ___________________________________________ 

 BAMATTRE-MANOUKIAN, ACTING P.J. 

WE CONCUR: 

__________________________ 

MIHARA, J. 

__________________________ 

GROVER, J.