1 

Filed 5/27/15 P. v. Enloe CA3 

NOT TO BE PUBLISHED 

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

THIRD APPELLATE DISTRICT 

(Sacramento) 

---- 

THE PEOPLE, 

 Plaintiff and Respondent, 

 v. 

PATRICK THOMAS ENLOE, 

 Defendant and Appellant. 

C071987 

(Super. Ct. No. 11F06420) 

 Four very young prostitutes, who did not know each other, testified to a 

remarkably similar modus operandi: defendant Patrick Thomas Enloe picked them up in 

his car or van; drove them to a dark and secluded location against their will; verbally 

demeaned and threatened them; forcibly raped them, sodomized them, and/or digitally 

penetrated their vaginas, maybe with a weapon; refused to use a condom; and did not pay 

them. His defense was consent. He was charged with 18 counts and various weapons 

enhancements against the four victims for sexual assaults in 2008, 2009, and 2011. A 

discriminating jury convicted him of 12 counts against three of the victims, acquitted him 

of 3 counts but found him guilty of a lesser included offense on one of the acquitted 
2 

counts, and hung on 3 counts against one of the victims. The trial court sentenced him to 

state prison for a six-year determinate term to be served consecutively to a 175-year 

indeterminate term. Defendant asserts instructional error, insufficiency of the evidence, 

prosecutorial misconduct, ineffective assistance of counsel, and sentencing error. 

Finding no reversible error, we affirm the judgment. 

FACTS 

 Sadly, defendant preyed on young prostitutes. Not surprisingly, these young girls 

lied to the police, afraid that their children would be taken from them, they would be 

prosecuted for prostitution, or that the man who raped them would escape punishment. 

All but one had drugs in their systems when he raped them. The prosecutor explained to 

the jury that he could not choose his victims and he acknowledged their shortcomings. 

Nevertheless, each victim had a painfully disturbing story to tell the jury. We describe 

their ordeals chronologically. 

A.D.—February 7, 2008 

 Sixteen-year-old A.D. placed an ad for her services as a prostitute on 

craigslist.com. On February 7, 2008, defendant responded by phone, offering her $100 

for a “car date.” A car date, according to A.D., meant he wanted to have sex in his car. 

Although she preferred a safer venue, she agreed but insisted that sex would be 

“covered,” that is, he needed to use a condom. They agreed to meet at the intersection of 

Bell and Austin for a car date. 

 Defendant picked her up at the assigned intersection in a red car. Although their 

encounter seemed amiable at first, defendant’s demeanor changed abruptly once he 

parked in a gated area between two buildings. According to A.D., defendant appeared 

angry and told her, “We can do it the easy way or the hard way.” He reached for 

something in the backseat that was covered in a blanket and appeared to A.D. to be a bat. 

Then he climbed over the console and kneeled on the floorboard between her legs. He 

told her he was not going to pay her and she had to do what he told her to do. 
3 

 Defendant pulled out his penis and demanded that A.D. remove her pants. As he 

started to pull them down, she stated, “[W]hoa, whoa, let me get the condom.” He 

refused to use the condom and said, “[D]on’t make me hurt you.” He was playing with 

his penis with one hand and playing with her vagina with other. He put his fingers into 

his mouth to produce some kind of green spit or mucus on his fingers and then reinserted 

his fingers into her vagina. 

 Defendant told A.D. to suck his penis, but she refused. She explained she did not 

“suck dick.” He became frustrated when he could not get an erection and demanded that 

she show him her breasts. He groped one of her breasts while he masturbated. He then 

inserted his penis into her vagina and, after five or six thrusts, removed his penis and 

ejaculated on his hand, the car seat, and A.D.’s leg. He got out of the car and put 

whatever was in the backseat into the trunk. He drove out of the complex and dropped 

her off. 

 A.D. walked home. On the way, she called the police. She candidly admitted at 

trial that many of the initial statements she made to the responding officers were lies. 

She did not admit she was a prostitute for fear that her assailant would not get into 

trouble for raping her. And she told a series of lies about how defendant got her number, 

the directions she gave him, how he entered the car from the passenger side after they 

parked, and that she had accepted cash for sex only from friends. 

 While performing a sexual assault examination, a nurse practitioner observed a 

four- to five-millimeter tear to the vaginal opening that was consistent with vaginal 

penetration. 

Ashley D.—February 17, 2009 

 Twenty-year-old Ashley D. worked as a prostitute out of the Tradewinds Motel. 

She lived in a room at the motel with her child and the child’s father, and needed money 

to pay for the room. They would leave the room when she was working. Shortly after 

5:00 a.m. on a cold and rainy February morning in 2009, she walked out of a convenience 
4 

store and saw defendant in the driver’s seat of a red car parked in front of the store. He 

rolled down the window and asked her if she wanted a ride. Hoping that he was going to 

be a customer, she got into his car. 

 Ashley gave defendant directions to her motel room, but he ignored them, pointed 

a semiautomatic handgun at her, and said, “[S]hut the fuck up, do what the fuck I say, 

and I’ll let you go, I’m gonna fuck you.” He pulled into a secluded area behind some 

industrial buildings and parked in the loading dock behind a Tough Shed business. He 

parked so close to the wall that Ashley could not get out of the car when she tried to open 

the door. 

 Defendant instructed Ashley to take off her pants and to put her legs up on the 

dashboard. He climbed over to the passenger side and situated himself between her 

knees. He fumbled with his penis but was unable to put it into her vagina because he was 

not erect. He told her, “I’m going to fuck you, you little dirty black bitch.” He 

penetrated her vagina with his penis for three to five minutes, but his semiflaccid penis 

fell out three or four times. He ejaculated and then put the barrel of the gun partially 

inside her vagina, far enough to make it hurt. He said, “You know you like it, you dirty 

little black bitch.” 

 Defendant got back into the driver’s seat, and when asked why he had raped her, 

he responded, “[B]ecause I can.” As a garbage truck approached, defendant pulled out of 

the loading dock, stopped the car, and told Ashley to get out. She ran to the garbage 

truck after defendant drove away and told the truck driver she had been raped, asked for a 

pen and paper, and wrote down what she could remember of defendant’s license plate 

number. She was anxious to get back to her room, and she called the father of her baby 

from a pay phone while en route to the motel. After meeting him, she used his cell phone 

to call the police. She reported the rape, but although she told the responding officers she 

was a prostitute, she lied to them about not working that morning and made up a story 
5 

about whom she was with. She was afraid the police would think that her baby’s father 

was her pimp. 

 The garbage truck driver corroborated Ashley’s testimony that she had approached 

him, told him she had been raped, and asked for a pen and paper or cell phone to record 

the license plate number. A nurse practitioner testified that during a sexual assault 

examination, Ashley told her that defendant held the muzzle of the gun to her vagina but 

it did not go into the vaginal canal. A deputy sheriff found a knife in defendant’s car, but 

he did not find a gun either in his car or at his house. A detective, executing a search 

warrant at the home of defendant’s parents, found a semiautomatic pistol in a locked 

cabinet with a bill of sale dated January 22, 2009. 

 Ashley admitted that she did not stop prostituting after defendant raped her. She 

explained that she needed to continue prostitution in order to survive. She also admitted 

she had used marijuana, methamphetamine, and amphetamine prior to the rape. 

Amanda D.—August 29, 2011 

The mother of three young children, 22-year-old Amanda D. was prostituting 

herself to buy diapers on the night of August 29, 2011. Her husband had just been 

incarcerated. Defendant pulled into the parking lot where Amanda was advertising her 

availability and told her he was willing to pay $100 for vaginal and oral sex. She got into 

his van expecting to have sex with him for money. 

 Defendant started driving, but when Amanda told him she wanted to go in a 

different direction, he took out a knife and held it to her neck. Pulling into a business 

complex, he threatened, “Bitch, I’m going to fucking kill you. You’re going to have sex 

with me. You’re going to do this and everything I fucking say.” They encountered a 

large yellow dog, barking loudly. Defendant appeared angry and threatened to kill the 

dog. Amanda was crying, explaining that she had three children and asking why he was 

doing this. 
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 After parking, defendant ordered Amanda to the back of the van. He refused to 

use the condom Amanda offered. He grabbed her hair, told her to take off her black 

leggings, and demanded that she orally copulate him. She was crying, and continued to 

cry, as he forced his penis into her mouth and then into her vagina. Amanda estimated 

that during the initial rape, defendant’s penis fell out about five times and he had to 

reinsert it. 

 After sexual intercourse, defendant announced that he would “fuck [her] in [the] 

ass.” He put his penis into her anus, but because she was screaming and crying in pain, 

he put it back into her vagina and ejaculated. Defendant took her cell phone, refused to 

return it, and forced her out of the van before she could put her shoes on. He threw her 

boots out of the window and sped away. 

 Hysterical, Amanda approached another driver, who had parked in a driveway 

across the street, and asked to borrow a phone. The driver called 911 as Amanda curled 

up in a fetal position on the driveway. Like A.D. and Ashley, Amanda denied she was 

working as a prostitute and concocted an elaborate, but false, story about how she had 

ended up in such a dangerous predicament. She testified that she told these lies because 

she was afraid child protective services would take her children if she were to admit she 

was a prostitute. At trial, she admitted to smoking marijuana the day of the rape and to 

having used cocaine two days earlier. 

 During an interview a few days later, Amanda agreed to tell the truth. She told the 

detective that defendant forced her to orally copulate him, put his fingers into her vagina, 

put his penis into her vagina, put his penis into her anus, and then put his penis back into 

her vagina. She also reported that during the rape, defendant forced her to expose one of 

her breasts and he grabbed it. At trial, she could not remember if he had put his finger 

into her vagina or grabbed her breast. The detective went to the scene and saw a dog in a 

trailer in the far corner of the complex. Surveillance video taken on the night of the 
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attack provided additional corroboration—a van driving to the end of the complex and, 

after the van made a U-turn, a dog chasing the vehicle. 

 A sexual assault nurse examiner testified that Amanda told her defendant had, 

among other things, put his finger into her vagina. The examiner did not see any injuries 

to Amanda’s vagina or anus. 

 An expert in DNA analysis testified that the major contributor to the sperm 

fractions found on the vaginal swabs taken from Ashley and Amanda matched 

defendant’s DNA profile. 

India H.—September 16, 2011 

India H., a 16-year-old prostitute, advertised her services on an Internet site. She 

testified that defendant responded to her ad, breached the terms of their agreement, and 

forced her to orally copulate him and to have sexual intercourse. Defendant was charged 

with sexual battery, oral copulation, and raping India. The jury was unable to reach a 

verdict on those counts and the trial court declared a mistrial. 

The Defense 

The defense was consent. Defendant did not testify. His lawyer vigorously crossexamined each of the victims, exposing their drug use, their prior inconsistent statements, 

their involvement with prostitution before and after the alleged attacks, and their 

duplicity with the police. A criminalist testified about the adverse effects marijuana and 

cocaine can have on perception and memory. Defendant’s father testified that he stored 

his handgun in a locked cabinet, and although he had shown it to defendant and defendant 

had been living at his parents’ house, he had moved out by March 6, 2009. 

 Defendant appeals. 
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DISCUSSION 

I 

Sufficiency of the Evidence 

 Lack of consent is an element of sexual crimes, including rape, forcible sexual 

penetration, and sexual battery. (People v. McCoy (2013) 215 Cal.App.4th 1510, 1535; 

People v. Ireland (2010) 188 Cal.App.4th 328, 336 (Ireland); People v. Babaali (2009) 

171 Cal.App.4th 982, 995-996.) Even when a woman initially consents to engage in sex, 

her consent may be vitiated or withdrawn. Defendant insists there is insufficient 

evidence that two of the prostitutes, A.D. and Amanda, effectively communicated the 

withdrawal of their consent to have sex with him before he engaged in the sexual conduct 

to which they had agreed. While the evidence may have been susceptible to the 

inferences defendant urges on appeal, we disagree that the record is devoid of evidence 

that is reasonable, credible, and of solid value such that a rational trier of fact could have 

found a lack of consent beyond a reasonable doubt. 

 In rearguing the evidence, defendant fails to abide by the limited scope of 

appellate review. Although we must review the entire record to determine if the evidence 

supporting the verdict is substantial in light of other facts (People v. Holt (1997) 

15 Cal.4th 619, 667), we must view the evidence in the light most favorable to the 

prosecution and presume “in support of the judgment the existence of every fact the trier 

could reasonably deduce from the evidence” (People v. Kraft (2000) 23 Cal.4th 978, 

1053). “ ‘Conflicts and even testimony [that] is subject to justifiable suspicion do not 

justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury 

to determine the credibility of a witness and the truth or falsity of the facts upon which a 

determination depends. [Citation.]’ ” (People v. Zamudio (2008) 43 Cal.4th 327, 357.) 

 A similar challenge to the sufficiency of the evidence was raised and rejected in 

Ireland, supra, 188 Cal.App.4th at pages 335-338. In Ireland, as here, the defendant was 

charged with raping four prostitutes, each of whom had consented to engage in sex acts in 
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return for money. (Id. at pp. 330-333.) He too contended there was insufficient evidence 

to establish that each woman withdrew her consent and communicated that withdrawal of 

consent to him. The court found otherwise. 

 The court reviewed the contours of consent. CALCRIM No. 1000, as given here 

and in Ireland, instructs that “ ‘[t]o consent, a woman must act freely and voluntarily and 

know the nature of the act.’ ” (Ireland, supra, 188 Cal.App.4th at p. 336.) But “ ‘[a]ctual 

consent must be distinguished from submission. [A] victim’s decision to submit to an 

attacker’s sexual demands out of fear of bodily injury is not consent [citations] because 

the decision is not freely and voluntarily made ([Pen. Code,] § 261.6). A selection by the 

victim of the lesser of two evils—rape versus the violence threatened by the attacker if 

the victim resists—is hardly an exercise of free will. [Citation.]’ [Citation.]” (Ireland, at 

p. 336.) 

 If, however, the woman fails to communicate her lack of consent and it could not 

reasonably be detected, the court reminded us the accused might not be guilty of rape. 

(Ireland, supra, 188 Cal.App.4th at p. 336.) Indeed, it is a defense if the accused 

reasonably and in good faith believed the woman engaged in the act consensually. (Ibid.) 

It is important to note, particularly when the victims are prostitutes, however, that 

withdrawal of consent can occur at any time. (Ibid.) 

 Despite the frightening fact that the defendant held a knife to the neck of each of 

his victims, he argued his use of the knife did not automatically negate their consent. 

Instead, he contended that each victim was required not only to withdraw her consent but 

also to communicate that withdrawal to him, if not expressly, then at least by implication. 

The court rejected that notion as a matter of law. “When appellant used the knife and 

expressly or impliedly threatened his victims, and in the absence of any conduct by the 

victims indicating that they continued to consent, the previously given consent no longer 

existed, either in fact or in law.” (Ireland, supra, 188 Cal.App.4th at p. 338, fn. omitted.) 
10 

Moreover, even if the victims were required to communicate the withdrawal of their 

consent, the court found ample evidence they had. (Ibid.) 

 Defendant insists that the court’s rationale in Ireland depends on the use of a 

deadly weapon. He argues that he did not use a weapon at all during his sexual encounter 

with A.D., and he touched Amanda’s breasts before he displayed a knife. Thus, in his 

view, in the absence of a weapon to vitiate a woman’s consent, she must affirmatively 

withdraw her consent and communicate her withdrawal to her customer. Not so. 

 We reject the notion that Ireland applies only when a man threatens his victim 

with a deadly weapon. While it is true that factually the defendant in Ireland used a 

knife, we do not believe that fact alone was dispositive and the case should be read so 

narrowly. The focus in Ireland, as here, is whether the sexual acts were consensual, and 

that issue is necessarily more complicated when prostitution is involved. But prostitutes 

do not forfeit the right to withdraw their consent by virtue of their line of work, and they 

retain that right whether or not a deadly weapon is displayed. To resolve an insufficiency 

challenge, we must look at all of the facts to determine whether there is evidence of 

credible, solid value that A.D. and Amanda had consented to engage in the sexual acts at 

the time they occurred. The absence of a deadly weapon is but one fact to consider, but it 

does not render Ireland irrelevant to our analysis. 

A. A.D. 

 Sixteen-year-old A.D. conditioned her consent on defendant’s willingness to use a 

condom and to pay her $100. She testified that although she and defendant initially had a 

lighthearted conversation, his mood changed dramatically as soon as they arrived in a 

secluded location, and he appeared angry. Before they engaged in any sexual acts, he 

reached for something in the backseat of the car that she believed to be a bat and told her 

he would not pay her. He threatened, “We can do it the easy way or the hard way.” She 

testified he was bigger than she was, and she was too afraid to risk pulling out the knife 

she kept concealed in her purse. He told her to remove her pants, and when she failed to 
11 

comply, he pulled them down. He also refused to use the condom as promised and again 

threatened to hurt her. 

 Defendant contends that these facts fall woefully short of what is necessary for a 

prostitute to withdraw the consent she previously gave to engage in sex acts. He 

emphasizes that he did not wield a knife, as in Ireland, or a gun, or, for that matter, any 

deadly weapon. His remarks at best were ambiguous. He also suggests that A.D.’s 

request for him to use a condom was a “reaffirmation of the consent to sexual relations 

previously given.” And, he emphasizes that when asked to orally copulate him, A.D. 

refused and they proceeded to engage in other sexual acts. He argues that her resistance 

is evidence that she was able to successfully communicate her boundaries and to refuse to 

engage in certain sex acts when they offended her. In his view, therefore, there is 

insufficient evidence she withdrew her consent and communicated that fact to him. 

 It is true that the facts of Ireland present a much clearer case. Once a weapon is 

drawn it is nearly impossible to imagine a scenario where a woman’s consent could be 

said to be free and voluntary. Here it was certainly the jury’s prerogative to accept the 

inference urged by defendant that A.D.’s gutsy refusal to engage in oral copulation on 

demand indicated a willingness to voluntarily participate in other sexual acts. But the 

jury rejected that inference and, presumably following a litany of instructions explaining 

the meaning of consent, concluded that once she was taken to a secluded location, 

threatened by a big, angry stranger that she would be hurt, possibly with a bat she 

believed was in the backseat, and was restrained by him on the floor between her legs, 

she withdrew her consent to have sex as previously agreed. 

 We believe this evidence constitutes substantial evidence to support the jury’s 

findings that A.D. did not consent to defendant’s putting his fingers into her vagina, 

touching her breast, or putting his penis into her vagina, particularly when taken with her 

direct testimony that she told defendant she did not want to have sex after he told her he 

would not pay her as agreed. Additionally, the jurors could have reasonably concluded 
12 

that in those harrowing circumstances, A.D. simply could not freely and voluntarily 

consent to have sex with defendant, and the withdrawal of her consent could be implied 

once he threatened her and refused to honor the terms of their agreement. 

 Alternatively, a rational juror could conclude that A.D. was not required to 

communicate her lack of consent because defendant induced her cooperation through 

force and fear. Although defendant contends his remarks were ambiguous, the jurors 

could have found statements like “do it the easy way or the hard way” and “don’t make 

me hurt you” to constitute threats and her subsequent submission obtained through fear. 

He did not sexually penetrate her until after he had issued those threats. Consent given 

“out of fear of bodily injury is not consent . . . because the decision is not freely and 

voluntarily made.” (Ireland, supra, 188 Cal.App.4th at p. 336.) A withdrawal of consent 

could have been seen by defendant as a refusal to submit and could have caused him to 

inflict injury on A.D. In other words, defendant placed his victim in a situation where 

she could not have withdrawn consent without risking bodily harm. Thus, any advance 

consent was vitiated by his explicit or implicit threats. 

 Defendant pays particular attention to the sexual battery conviction, arguing on 

appeal that there is no evidence A.D. was unlawfully restrained against her will when he 

touched her breast. “[A] person is unlawfully restrained when his or her liberty is being 

controlled by words, acts or authority of the perpetrator aimed at depriving the person’s 

liberty, and such restriction is against the person’s will . . . .” (People v. Arnold (1992) 

6 Cal.App.4th 18, 28.) Although unlawful restraint requires more than the exertion of the 

physical force needed to commit the battery, it may be accomplished by words or acts. 

(People v. Pahl (1991) 226 Cal.App.3d 1651, 1661; People v. Grant (1992) 

8 Cal.App.4th 1105, 1112.) 

 But this argument is yet another variant of the same theme, and defendant would 

have us usurp the role of the jury. Defendant rejects the inference a rational juror might 

have drawn that by the time he angrily threatened her in close proximity to what she 
13 

believed to be a bat and positioned himself between her legs, he had unlawfully 

restrained her by both his words and his actions. While it is also true the jury could have 

found the circumstances did not constitute the requisite unlawful restraint, we cannot say 

there is insufficient evidence to support the jury finding. 

B. Amanda 

If the opening brief were closing argument and if, instead of appellate justices, we 

were jurors, we might be persuaded there was a reasonable doubt that defendant had 

brandished the knife before touching Amanda’s breast. But, of course, it is not our role 

to second-guess the jury, only to insure that there is credible evidence of solid value to 

support the jury’s finding. Evidence far less than compelling can be sufficient to uphold 

a jury verdict. Although the evidence of sexual battery consists of Amanda’s secondhand 

account to an investigating police officer and the inferences drawn from the officer’s 

testimony, as well as that officer’s examination of Amanda about her initial fabricated 

account, we conclude it constitutes the quantum of evidence necessary to sustain the 

judgment. 

 We acknowledge there are inherent weaknesses in the evidence of sexual battery. 

At trial, Amanda testified that she did not remember if defendant ordered her to lift her 

bra or if he touched her breast. As a result, the prosecution relied on Amanda’s hearsay 

statement to Detective Michelle Hendricks. Adding to the lack of clarity in the trial 

transcript, Detective Hendricks testified that she was relying, in part, on an earlier 

statement Amanda had given to Deputy Warren. But that initial statement was fraught 

with lies. We distill the following pertinent testimony from the record, focused as 

defendant insists we must on the chronology of what transpired after Amanda got into 

defendant’s van. 

 Detective Hendricks interviewed Amanda the day after defendant sexually 

assaulted her and again two days later. During the latter interview, Amanda agreed to tell 

the truth. In her first two statements, she had admittedly lied to conceal from the police 
14 

that she was engaged in prostitution on the night defendant sexually assaulted her. Thus, 

Detective Hendricks asked a series of questions about what transpired in the van and how 

her current description varied from her earlier accounts. 

 During her various renditions of what happened on the night of August 29, 2011, 

and at trial, Amanda consistently reported that defendant pulled out a knife as soon as 

they passed a blue Adopt-a-Highway sign on Roseville Road. Holding the knife to her 

neck, defendant told her “he was going to have sex with her, and she was going to do 

everything he wanted.” She described how they proceeded to a business complex, 

encountered a barking dog defendant threatened to kill, and how he backed up against a 

fence at the end of a building. 

 The prosecutor asked Detective Hendricks to recount what Amanda said had 

occurred once defendant parked the van. Amanda told Hendricks defendant ordered her 

to the rear of the vehicle. The prosecutor then asked, “What were the sexual acts that 

Amanda described occurring inside the van?” The detective described, “[i]n order of 

occurrence,” oral copulation, digital penetration, rape, sodomy, and another rape, all of 

which were without Amanda’s consent. Amanda recounted that “she was crying 

constantly and crying hysterically.” 

 In this context, the prosecutor asked, “Did Amanda tell you whether or not the 

man, the suspect, ever touched her breasts?” Responding affirmatively, Detective 

Hendricks said, “She stated at one point he had her lift one of the cups of her bra, 

exposing one of the breasts and grabbed that breast.” 

 Seizing on the detective’s use of the phrase “at one point,” defendant broadens the 

potential time horizon to which she was referring from the sex acts that occurred after 

defendant parked to encompass the entire time they were in the van. We agree with the 

Attorney General that a rational juror might have inferred that the detective was 

describing what occurred only after defendant parked in a secluded area, after he 

threatened her with the knife, and after he threatened to kill the dog. While defendant 
15 

might have made a plausible argument to the contrary, the jurors were not compelled to 

accept it and clearly they did not. 

 But by dissecting the record further and extracting bits and pieces from here and 

there, defendant goes further in speculating that any touching of Amanda’s breast 

occurred before, and not after, he pulled out the knife. He relies on another part of 

Detective Hendricks’s testimony. Whereas in the interrogation recited above the 

prosecutor had specifically asked Hendricks to describe what Amanda reported happened 

after they had parked, defendant now relies on questions the prosecutor asked about 

Amanda’s cell phone. He cleverly pieces together another possible scenario, as follows. 

 In her initial statement, Amanda told Deputy Warren that her cell phone fell out 

when defendant ordered her to lift up her bra. In her later interrogation with Detective 

Hendricks, she said she took it out when she received a call and defendant took it from 

her once they passed the blue sign. Thus, based on when Amanda turned over her cell 

phone, defendant posits that the evidence shows he grabbed Amanda’s breast “around the 

time that the phone fell out,” and he concludes “[b]ecause the knife was pulled after they 

passed the blue sign, the evidence shows that the breast was grabbed before the knife was 

deployed.” The jury might have accepted that version of what transpired, but it did not. 

 The question thus posed is whether a rational juror could draw a contrary 

inference based on the evidence before it. The answer is yes because the inference is 

reliant upon a statement that is fraught with lies. Amanda admitted that she lied 

repeatedly during her first two statements to the police. Yet defendant’s argument is 

premised on the account Amanda gave to Deputy Warren that the cell phone fell out 

when defendant told her to lift up her bra and her later statement to Detective Hendricks 

that she gave the cell phone to defendant just after they passed the blue sign. The jury 

was certainly free to disregard the contents of her first statement since it was littered with 

lies and to credit the chronology recounted by Detective Hendricks when Amanda 

represented that she was telling the truth. If that account is to be believed, then the sexual 
16 

battery occurred after defendant threatened her with the knife and consent is no longer a 

viable issue. While we agree with defendant the evidence is not a model of certitude, 

there is sufficient evidence to support the jury’s verdict. 

II 

Instructional Error 

A. Withdrawal of Consent 

The court instructed the jury on consent as an essential element of each of the 

relevant charged offenses against A.D. As to sexual battery, the court explained, in the 

language of CALCRIM No. 935, that the jury needed to find the “touching was done 

against [A.D.’s] will.” The instruction further provided: “An act is done against a 

person’s will if that person does not consent to the act. In order to consent, a person must 

act freely and voluntarily and know the nature of the act.” (Ibid.) 

 Similarly, the court instructed the jury that defendant was guilty of sexual 

penetration only if the “other person did not consent to the act.” (CALCRIM No. 1045.) 

The court also explained: “The defendant is not guilty of forcible sexual penetration if he 

actually and reasonably believed that the other person consented to the act. The People 

have the burden of proving beyond a reasonable doubt that the defendant did not actually 

and reasonably believe that the other person consented. If the People have not met this 

burden, you must find the defendant not guilty.” (Ibid.) 

 And, of course, to convict defendant of rape, the jury was required to find that 

“[t]he woman did not consent to the intercourse.” (CALCRIM No. 1000.) The rape 

instruction further explains, “To consent, a woman must act freely and voluntarily and 

know the nature of the act.” (Ibid.) “Evidence that the woman requested that the 

defendant use a condom or other birth control device is not enough by itself to constitute 

consent.” (Ibid.) 

 “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 
17 

reasonable doubt that the defendant did not actually and reasonably believe that the 

woman consented. If the People have not met this burden, you must find the defendant 

not guilty.” (CALCRIM No. 1000.) 

 The jurors were therefore instructed on the principles of law closely and openly 

connected with the issue of consent as applied to each of the charged offenses. (People v. 

Sedeno (1974) 10 Cal.3d 703, 715.) But the evolution of the law can trigger some 

unintended consequences. Here defendant contends that the attempt to clarify the 

parameters of withdrawing consent during a rape leads to a mistaken implication that the 

same rules regarding the withdrawal of consent during penetration do not apply before

penetration and before a sexual battery or forcible sexual penetration. We examine the 

evolution of the instructions given, assess how a reasonable juror would construe the 

instructions when taken as a whole, determine whether defendant’s attorney should have 

requested a clarification and, if so, whether the failure to do so was harmless beyond a 

reasonable doubt. 

 Defendant identifies CALCRIM No. 1000 as the culprit. The instruction reads, in 

pertinent part: “A woman who initially consents to an act of intercourse may change her 

mind during the act. If she does so, under the law, the act of intercourse is then 

committed without her consent if: 

 “1. She communicated to the defendant that she objected to the act of intercourse 

and attempted to stop the act; 

 “2. She communicated her objection through words or acts that a reasonable 

person would have understood as showing her lack of consent; 

 “AND 

 “3. The defendant forcibly continued the act of intercourse despite her objection.” 

 In People v. Vela (1985) 172 Cal.App.3d 237 (Vela), the court held that “a victim 

may give consent during preparatory acts all the way up to the moment of penetration, 

but the victim may withdraw that consent immediately before penetration and if 
18 

communicated to the perpetrator, the act of intercourse that follows will be a rape no 

matter how much consent was given prior to penetration.” (Id. at p. 242.) But in In re 

John Z. (2003) 29 Cal.4th 756, 761 (John Z.), the Supreme Court rejected the apparent 

rule of Vela that penetration creates a boundary line changing the rules governing 

withdrawal of consent. The court held that a woman could withdraw her consent to 

sexual intercourse at any time, even during copulation, as long as that withdrawal was 

clearly communicated. (John Z., at p. 763.) These cases recognize that the essence of 

consent is the exercise of free will at the time the sexual act is perpetrated. Because what 

begins as a consensual encounter can disintegrate into an unwelcome intrusion at any 

time, the courts have clarified that consent may be withdrawn, which is but another way 

to say that the victim’s participation no longer remains an exercise of free will. 

 CALCRIM No. 1000 attempts to embody the nuances of consent based on the 

facts of the cases in which the rules evolved. Vela and John Z. both involved rapes. 

Moreover, the precise issue in those cases was whether consent could be withdrawn after 

penetration. Defendant insists that the standardized instruction is incomplete as applied 

to rape when A.D. arguably withdrew her consent before, and not during, the rape and 

simply does not address other sexual crimes, including sexual battery and forcible 

penetration. As a result, he contends the trial court had a sua sponte obligation to instruct 

the jury as follows: 

 “A woman who initially consents to an act of intercourse [or other charged sexual 

act] may change her mind at any time before or during the act. If she does so, under the 

law, the act of intercourse is then committed without her consent if: 

 “1. She communicated to the defendant that she objected to the act of intercourse 

[or other charged sexual act] and attempted to prevent or stop the act; 

 “2. She communicated her objection through words or acts that a reasonable 

person would have understood as showing her lack of consent; AND 
19 

 “3. The defendant forcibly initiated or continued the act of intercourse [or other 

charged sexual act] despite her objection.” 

 In the absence of these modifications, defendant contends CALCRIM No. 1000 

would have misled the jurors by failing to inform them that if a victim changed her mind 

before intercourse, touching, or penetration, she must have communicated her objection 

to him. He argues the court’s dereliction of duty to instruct the jury on all of the essential 

elements of the crimes requires reversal of the counts involving A.D. He points out that 

the court in Ireland recognized the instruction could have been confusing. (Ireland, 

supra, 188 Cal.App.4th at p. 340.) 

 But a “party may not complain on appeal that an instruction correct in law and 

responsive to the evidence was too general or incomplete unless the party has requested 

appropriate amplifying, clarifying, or limiting language.” (People v. Farley (1996) 

45 Cal.App.4th 1697, 1711.) As described above, the court presented a panoply of 

instructions explaining consent as it related to each of the charges involving A.D. Those 

instructions were a correct description of the law. If, as defendant urges on appeal, the 

instruction was incomplete, he should have requested the amplifying language he now 

deems helpful. 

 Defendant insists that forfeiture is trumped by the court’s sua sponte obligation to 

instruct and his lawyer’s incompetence in failing to request the amplifying instruction. 

But defendant’s argument fails on the merits as well. We return to the guidance provided 

by the court in Ireland. 

 In Ireland, the court held that where a woman’s cooperation is induced by force or 

fear, she is not required to communicate her lack of consent. (Ireland, supra, 

188 Cal.App.4th at pp. 337-338.) Here, after parking the car, defendant made it clear that 

he planned to rape A.D. He angrily told her they “could do it the easy way or the hard 

way.” Refusing to wear a condom, he threatened: “I’m not gonna [sic] get you pregnant, 

don’t make me hurt you.” The jury heard A.D. recount that defendant’s mood changed, 
20 

he threatened her, and he reneged on their agreement. She saw what she thought was a 

baseball bat. 

 Thus the evidence showed that as in Ireland, A.D. submitted to defendant’s 

demands, but her submission, induced by force or fear, did not constitute consent. The 

jury in Ireland was also instructed with CALCRIM No. 1000, which contained the 

identical language defendant challenges here. (Ireland, supra, 188 Cal.App.4th at 

p. 339.) And the defendant in Ireland also argued that the instruction failed to explain 

that a woman must communicate her withdrawal of consent prior to penetration. (Ibid.) 

The court found the defendant’s hair splitting between pre- and postpenetration 

withdrawal of consent immaterial given that the force or fear he used vitiated any need 

for his victim to communicate the withdrawal of consent. (Id. at pp. 339-340.) 

 We agree. Whether or not his victim is a prostitute, a defendant who employs 

force or fear to obtain submission is not entitled to a sua sponte instruction on a victim’s 

responsibility to communicate her withdrawal of consent. As the court in Ireland pointed 

out, the timing of the withdrawal of consent is immaterial. What is material is the means 

the defendant uses to obtain submission, and when the means involves force or fear, 

whether or not he wields a deadly weapon, the victim does not consent and she need not 

communicate any withdrawal of consent previously given. 

B. Concurrence of Sexual Acts and Specific Intent 

 The court gave the pattern jury instruction, CALCRIM No. 252, on the required 

union of act and specific intent when the defendant is charged with a combination of 

general intent and specific intent crimes, but there was a clerical error in the written 

instruction and an omission of sexual penetration in the oral version. Defendant argues 

the errors require reversal. The Attorney General concedes the error but contends the 

error is harmless. We agree. 

 The trial court read CALCRIM No. 252 to the jury twice. In both readings, the 

court instructed the jury on the crimes requiring specific intent as follows, with a few 
21 

minor and insignificant transcription differences between the two: “The following crimes 

require specific intent or mental state: Willfully and unlawfully touch a person’s breasts 

while unlawfully restraining that person for the purpose of sexual arousal, gratification or 

abuse, in violation of Penal Code Section 243.4(a), as charged in Counts 1, 6 and 15; 

kidnapping with the intent to commit rape, in violation of Penal Code Section 209(b)(1), 

as charged in Count 10; aggravated kidnapping, in violation of Penal Code 

Section 667.61(d)(2), as alleged in Counts 11, 12, 13 and/or 14; kidnapping, in violation 

of Penal Code Section 667.61(e)(1), as alleged in Counts 11, 12, 13 and/or 14; unlawfully 

and forcibly penetrating a person’s genital opening by a foreign object, instrument or 

device for the purpose of sexual arousal, gratification or abuse, in violation of Penal Code 

Section 289(a)(1), as charged in Counts 5, 16 and 17. 

 “For you to find a person guilty of these crimes, that person must not only 

intentionally commit the prohibited act but must do so with the specific intent and/or 

mental state. The act and the specific intent and/or mental state required are explained in 

the instruction for that crime.” 

 These oral renditions did not identify either sexual penetration against Ashley as 

charged in count fourteen or attempted sexual penetration as specific intent crimes. The 

written version contained a more glaring error. The general intent crimes were repeated 

twice and the specific intent crimes were missing. No one noticed the error at trial. The 

jurors were given the erroneous version of CALCRIM No. 252 to assist them with their 

deliberations. They did not ask any questions about it. 

 Defendant insists the error is of constitutional magnitude requiring a heightened 

scrutiny of harmlessness that simply cannot be met. He acknowledges there is no federal 

or state constitutional right to written jury instructions (People v. Samayoa (1997) 

15 Cal.4th 795, 845 (Samayoa)), but that is not the issue. The error is not that the jurors 

were deprived of written instructions, but that the written version of CALCRIM No. 252 

they were given incorrectly describes an element of the offense, and when a jury receives 
22 

both written and oral versions of the same instruction, the written version is deemed 

controlling. (People v. Wilson (2008) 44 Cal.4th 758, 803 (Wilson).) 

 Although no one disputes the written instruction contained a technical error, the 

error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 

18, 24 [17 L.Ed.2d 705] (Chapman).) “First, the court orally instructed the jury with the 

correct instruction. Although this court gives priority to the written version of an 

instruction when a conflict exists between the written and oral versions, the jury is not 

informed of this rule. It is thus possible the jury followed the oral instruction. Second, 

there is no indication the jury was aware of the slight difference between the written and 

oral versions of the instructions, as it asked no questions about this point.” (Wilson, 

supra, 44 Cal.4th at p. 804.) Third, the evidence was overwhelming that defendant 

engaged in a repeated pattern with each of the prostitutes he lured into his car with false 

pretenses: he promised to pay them and to use a condom, but as soon as he had them 

under his control he turned mean and violent, threatened them, refused to either use a 

condom or to pay them, forced them to commit a variety of sexual acts against their will, 

and ordered them out of the car when he finished with them. Finally, considering the 

other instructions the jury was given with respect to each offense, there is no reasonable 

likelihood the jury applied the challenged instruction in an impermissible manner. 

(People v. Jablonski (2006) 37 Cal.4th 774, 831-832; People v. Slaughter (2002) 

27 Cal.4th 1187, 1216.) 

 For each of the specific intent crimes, including sexual battery, sexual penetration, 

and kidnapping, the jury was instructed that defendant must have committed the 

prohibited act with the specified intent. Defendant critiques each of those instructions, 

maintaining they do not cure the deficiency created by the erroneous written instruction. 

His critique is to no avail. 

 As to sexual battery, the jury was instructed with CALCRIM No. 935, which 

required the jury to find that “[t]he touching was done for the specific purpose of sexual 
23 

arousal, sexual gratification, or sexual abuse.” Defendant argues that CALCRIM 

No. 935, standing alone, says nothing to require the jury to find that he touched the 

breasts of the complaining witnesses with the wrongful intent. However, the use of the 

phrase “for the purpose of” typically denotes a specific intent crime. (People v. Atkins

(2001) 25 Cal.4th 76, 86.) We conclude there is no reasonable likelihood a juror would 

fail to understand that touching breasts “for the purpose” of sexual arousal, sexual 

gratification, or sexual abuse was a specific and wrongful intent and that the instruction 

required the union of act and intent. 

 As to sexual penetration, CALCRIM No. 1045 defines sexual penetration as 

follows: “Sexual penetration means penetration, however slight, of the genital or anal 

opening of the other person for the purpose of sexual abuse, arousal, or gratification.” 

Because the jurors were instructed that defendant must have committed the act of sexual 

penetration by using a foreign object without consent by force, violence, duress, menace, 

or fear “for the purpose” of sexual abuse, arousal, or gratification, we conclude they were 

adequately instructed on the requisite union of act and specific intent. Nothing more was 

required. 

 CALCRIM No. 1203 explained the elements of kidnapping with the intent to 

commit rape. The Attorney General suggests that CALCRIM No. 1203 adequately 

instructed the jury on the requisite union of act and specific intent by requiring the jury to 

find that defendant intended to commit rape, and “[a]cting with that intent, the defendant 

took, held, or detained another person by using force or by instilling a reasonable fear.” 

Arguing the evidence more than the law, defendant complains that the instruction did not 

state that he needed to harbor the intent to rape at the precise moment his victims 

withdrew their consent. He finds the flaw particularly troublesome because the 

prostitutes had all freely jumped into defendant’s vehicle and therefore the asportation 

began consensually. While his argument would have been great fodder for his closing 

statement, we do not believe the court was obligated to instruct with such specificity in 
24 

the absence of a request from defendant. The instruction quite clearly embodies the 

crucial element that the jury had to find he intended to rape his victim at the time he was 

taking, holding, or detaining her. Again, the instruction conveyed what the mistaken 

written instruction listing the offenses did not—that there must be a union of the criminal 

act with the specific intent required. 

 CALCRIM No. 460, concerning attempted sexual penetration, compels the jury to 

find that “[t]he defendant intended to commit an unlawful sexual penetration with a 

foreign object.” As he argued with respect to CALCRIM No. 1203, defendant complains 

that CALCRIM No. 460 does not state when that intent must exist. However, no rational 

juror could fail to understand from the language quoted that there must be a concurrence 

of the act and the requisite intent. 

 In sum, the jurors were properly instructed twice from the bench, they expressed 

no confusion, and other instructions informed them of the necessity for a concurrence of 

specific intent and the various criminal acts. Thus, on this record, we conclude the 

clerical error was harmless beyond a reasonable doubt under the more rigorous Chapman

standard defendant urges we employ. 

C. Specific Intent for Sexual Penetration 

 Defendant offers an additional challenge to CALCRIM No. 1045, with a slightly 

different twist. Whereas, as discussed earlier, he complained the pattern instruction did 

not require a union of act and specific intent, in an attempt to reframe his argument he 

claims the instruction fails to describe the specific intent “to gain sexual arousal or 

gratification or to inflict abuse on the victim.” In his view, CALCRIM No. 1045, taken 

alone, does not satisfy the intent requirement we announced in People v. McCoy (2013) 

215 Cal.App.4th 1510 (McCoy). He suggests that the passive language in the instruction, 

“for the purpose of sexual abuse, arousal, or gratification,” does not describe a specific 

intent because it does not include the active descriptors we employed in McCoy—“to 
25 

gain” or “to inflict.” Defendant misunderstands McCoy and how jurors would reasonably 

interpret the instruction. 

 In McCoy, we held that sexual penetration is a specific intent crime and we 

approved the language of CALCRIM No. 1045. It is true, as defendant points out, that 

the trial court in McCoy also identified sexual penetration as a specific intent crime in 

delivering CALCRIM No. 252. But there is nothing in the language or rationale of 

McCoy to suggest that CALCRIM No. 1045, standing alone, does not describe the 

specific intent necessary to commit the crime of sexual penetration. 

 We observed in McCoy that the definition of sexual penetration “refers to the 

defendant’s intent to achieve an ‘additional consequence,’ i.e., arousal, gratification or 

abuse. [Citation.] Thus, in drafting [Penal Code] section 289, the Legislature required 

the act of penetration to be committed with the specific intent to gain sexual arousal or 

gratification or to inflict abuse on the victim.” (McCoy, supra, 215 Cal.App.4th at p. 

1540.) Because CALCRIM No. 1045 incorporates the section 289 definition of 

penetration for the purpose of arousal, gratification, or abuse, it encompasses the specific 

intent necessary to commit the crime. 

 As for the reasonable likelihood a juror would misconstrue or misunderstand the 

instruction because it employs the passive tense and does not include the verbs “to gain” 

and “to inflict,” we find the argument totally implausible. If a juror found that defendant 

either penetrated or attempted to penetrate his victim’s vagina or anus for the purpose of 

sexual gratification, abuse, or arousal, he or she found the requisite specific intent we 

described in McCoy and there is absolutely no reasonable likelihood he or she 

misunderstood the instruction. We reject defendant’s claim that the instruction misstated 

the law. 

 Defendant also complains that the forcible sexual penetration count against 

Amanda (count five) was left off the list of counts when the jury was instructed on the 

crime. He argues the jury was left ignorant about the elements of the crime constituting 
26 

count five. We agree with defendant there was error, but we find it was harmless beyond 

a reasonable doubt. 

 Although CALCRIM No. 1045 failed to list count five, the information and the 

verdict form for count five identified the crime as forcible sexual penetration in violation 

of Penal Code section 289, subdivision (a)(1). The prosecutor also cued the jury: “In 

Count 4, he is charged with forcing [Amanda] to orally copulate him; Count 5, he is 

charged with penetrating her with his finger.” And again he stated, “Count 16, 17 on 

[A.D.], Count 14 on Ashley, and then Count No. 5 regarding Amanda. What are the 

elements of this crime?” The prosecutor then listed the elements of forcible sexual 

penetration. 

 We reject defendant’s argument that the minor mistake in failing to include 

count five in one list of the forcible sexual penetration counts requires reversal. The 

record demonstrates the jury was adequately informed that defendant was charged with 

forcible sexual penetration, it was adequately instructed on the elements of forcible 

sexual penetration, and the correlation between the two was obvious. We therefore 

conclude beyond a reasonable doubt that the jury would not have reached a different 

result had CALCRIM No. 1045 explicitly stated that defendant was charged with forcible 

sexual penetration in count five. 

D. Mayberry Defense 

 A defendant’s reasonable and good faith mistake of fact that a person has 

consented to sexual intercourse is a defense to rape. (People v. Mayberry (1975) 

15 Cal.3d 143, 155 (Mayberry).) The so-called Mayberry defense has been extended to 

assault, battery, and unlawful touching. (People v. Rivera (1984) 157 Cal.App.3d 736, 

742-743 & fns. 7, 8.) Although the trial court instructed the jury on the Mayberry

defense as it related to the other charged sexual crimes, it failed to instruct sua sponte that 

the defense applied to sexual battery. Defendant contends the court’s failure to instruct 

sua sponte constitutes reversible error. 
27 

 A sua sponte duty to give a Mayberry defense instruction arises “ ‘ “only if it 

appears that the defendant is relying on such a defense, or if there is substantial evidence 

supportive of such a defense and the defense is not inconsistent with the defendant’s 

theory of the case.” ’ [Citations.]” (People v. Maury (2003) 30 Cal.4th 342, 424.) 

“Thus, because the Mayberry instruction is premised on mistake of fact, the instruction 

should not be given absent substantial evidence of equivocal conduct that would have led 

a defendant to reasonably and in good faith believe consent existed where it did not.” 

(People v. Williams (1992) 4 Cal.4th 354, 362 (Williams).) In fact, the Supreme Court 

expressly rejected the notion that the Mayberry instruction should be given in every case 

in which consent is offered as a defense. (Williams, at p. 362, fn. 7.) 

 The jury found defendant was a serial rapist. Yet by parsing the timing of his 

various exploitations of very young prostitutes, he claims there is substantial evidence he 

actually had a reasonable and good faith belief that they had consented to the touching of 

their breasts. His machinations are similar to those rejected by the Supreme Court in 

Williams. 

 In Williams, the defendant testified that his homeless victim initiated sexual 

contact, fondled him to overcome his impotence, and inserted his penis inside her vagina. 

(Williams, supra, 4 Cal.4th at p. 362.) The victim, however, testified that the sexual 

encounter occurred only after the defendant punched her, pushed her onto the bed, 

ordered her to take off her clothes, and threatened her. (Ibid.) The defendant insisted 

there was substantial evidence to support the Mayberry instruction given that consent was 

at issue, including evidence that the victim willingly accompanied him to the hotel, his 

testimony regarding the sexual encounter, and the fact that no one heard any screams or 

other indications of physical violence. (Williams, at pp. 361-363.) The Supreme Court, 

overturning the Court of Appeal’s finding to the contrary, held that this evidence was not 

sufficient to trigger a duty to deliver a Mayberry instruction. (Williams, at pp. 362-363.) 
28 

 The court differentiated evidence of actual consent from evidence of a reasonable 

and good faith mistake as to consent. If believed, the defendant’s testimony would have 

established that his victim actually consented to the sexual encounter, not that her 

equivocal conduct gave rise to the defendant’s reasonable belief that she had. (Williams, 

supra, 4 Cal.4th at p. 362.) The court also observed that the homeless victim’s consent to 

accompany the defendant into a quiet and comfortable room was not evidence she 

consented to have intercourse, and to credit her willingness to accompany him was “to 

‘revive the obsolete and repugnant idea that a woman loses her right to refuse sexual 

consent if she accompanies a man alone to a private place.’ ” (Id. at p. 363.) 

 Defendant did not testify. But as in Williams, he too asserts there was substantial 

evidence to support a Mayberry instruction. Ignoring the recurring pattern and 

overwhelming evidence that he lured young girls into his car with false promises he 

would pay them and use a condom, only to turn abusive and violent, he dissects the 

timing of the sexual encounters with Amanda and A.D. and insists there is evidence he 

may have touched their breasts before he turned violent. He maintains the evidence 

leaves open the possibility that he may have touched Amanda’s breast before he put the 

knife to her neck, and he may have touched A.D.’s breast before he refused to wear a 

condom. Whether or not the victims later withdrew their consent when he became 

violent, he asserts he could have reasonably believed that they willingly allowed him to 

touch their breasts early in the sexual encounters. 

 We conclude, as the Supreme Court did in Williams, there is not substantial 

evidence to compel a Mayberry instruction. His victims all testified to the relatively 

abrupt change in defendant’s demeanor once they got into his car, the fear they 

experienced, and the force he used to compel their submission. Whether or not the 

victims had withdrawn their consent at the moment he touched their breasts is not 

determinative. For as the court instructed in Williams, it is the accused’s reasonable and 

good faith belief whether she consented, not whether she had actually consented, that is 
29 

determinative. And it is offensive to suggest, as defendant does here, that a serial rapist 

entertained an honest and good faith belief his young victims freely assented to the 

touching when he knew he was engaged in a repeated pattern of violent domination and 

exploitation. There simply was no substantial evidence he could have entertained any 

reasonable or good faith belief that these vulnerable young girls continued to consent to 

the sexual acts he perpetrated, including the touching of their breasts. 

E. Misdemeanor Sexual Battery 

 Defendant was charged with and convicted of felony sexual battery. He contends 

the trial court erred by failing to instruct on the lesser included offense of misdemeanor 

sexual battery. The Attorney General does not dispute that misdemeanor sexual battery is 

a lesser included offense, but she does dispute there is substantial evidence that A.D. and 

Amanda were not unlawfully restrained when he touched their breasts. Unlawful 

restraint marks the biggest distinction between the two crimes. Defendant reminds us 

that we must view the evidence in his favor in determining whether it is sufficient to 

trigger a sua sponte obligation to instruct on the lesser included offense. 

 To support his argument, defendant treads over well-worn terrain. He begins with 

the same indisputable fact that each victim was a prostitute who initially consented to get 

into his car to have sex with him. Then he picks apart the chronology and fills in any 

possible gaps with an inference in his favor. Without reiterating the same facts we have 

recited before, the essence of his argument is that it is possible he touched Amanda’s 

breast before he pulled out the knife, and it is possible that he touched A.D.’s breast 

before he got between her legs and threatened her. In these factual scenarios he contends 

the prostitutes were not unlawfully restrained when he committed the sexual batteries and 

the jury should have been aware of the option to convict him of misdemeanor, rather than 

felony, sexual battery. 

 To say that we must view the evidence in the light most favorable to defendant is 

not to say we must engage in speculation or accept far-fetched inferences from the 
30 

evidence before us. A.D. testified that defendant’s demeanor changed as they were 

driving to a secluded place, and by the time he touched her breast he had threatened her 

by declaring he could do it the hard way or the easy way. Given his size advantage, his 

angry demeanor, his threats, and A.D.’s belief that there was a bat in the backseat, the 

overwhelming evidence is that defendant had unlawfully restrained her by the time he 

touched her breast. Even a police officer’s account that A.D. had told him the touching 

was the first sexual act did not establish that the touching took place before he began 

threatening her. The officer also testified that defendant had pulled her pants down 

before he demanded to see her breasts. Defendant’s argument is predicated, therefore, 

not on the victim’s testimony, but on a rather tenuous inference to be drawn from a 

hearsay statement. We do not believe this possible inference constitutes substantial 

evidence necessitating a lesser included offense instruction. 

 Nor was the evidence any more substantial with respect to Amanda. Again, 

defendant pieces together a hypothetical sequence of events at odds with the victim’s 

testimony. It is true that Amanda did not even remember the touching. But she was quite 

definite that defendant pulled out a knife as they passed a blue sign, well before the 

sexual assault began. Defendant spins Detective Hendricks’s testimony in his favor, but 

as we recounted above, he misread the record and urges an interpretation of her testimony 

at odds with the context in which it was provided. A fair reading of the record suggests 

that the battery occurred along with all the other sexual offenses once defendant parked 

the van and raped, sodomized, and digitally penetrated her. To aggrandize the mere 

mention that her cell phone fell out when she lifted her bra as enough evidence that 

Amanda had not been unlawfully restrained until a few minutes later is to enlarge the 

duty to instruct sua sponte on lesser included offenses when there is any evidence rather 

than substantial evidence. In our view, there simply is no substantial evidence to support 

the rather outlandish claim that defendant had not controlled these young girls by words, 
31 

acts, or authority and deprived them of their liberty when he touched their breasts. Thus, 

there was no duty to instruct on misdemeanor sexual battery. 

III 

Prosecutorial Misconduct 

A. Rebuttal Argument on Beyond a Reasonable Doubt 

 Defendant accuses the prosecutor of misconduct by distorting the beyond a 

reasonable doubt standard in his rebuttal argument. Prosecutorial misconduct deprives a 

defendant of due process under the federal Constitution when it comprises a pattern so 

egregious that it infects the trial with fundamental unfairness. Conduct that does not 

render the trial fundamentally unfair constitutes prosecutorial misconduct under state law 

if it involves the use of “ ‘ “ ‘deceptive or reprehensible methods.’ ” ’ ” (Samayoa, 

supra, 15 Cal.4th at p. 841.) While a prosecutor is accorded considerable latitude in 

arguing the legal and factual merits of his or her case, it is improper to misstate the law. 

(People v. Katzenberger (2009) 178 Cal.App.4th 1260, 1266.) “In particular, it is 

misconduct for counsel to attempt to absolve the prosecution from its prima facie 

obligation to overcome reasonable doubt on all elements.” (Ibid.) “Additionally, when 

the claim focuses upon comments made by the prosecutor before the jury, the question is 

whether there is a reasonable likelihood that the jury construed or applied any of the 

complained-of remarks in an objectionable fashion.” (Samayoa, at p. 841.) 

 Before counsel delivered their closing arguments the trial court instructed the jury 

on the intricacies of proof beyond a reasonable doubt. The court stated, in pertinent part: 

“A defendant in a criminal case is presumed to be innocent. This presumption requires 

that the People prove a defendant guilty beyond a reasonable doubt. Whenever I tell you 

the People must prove something, I mean they must prove it beyond a reasonable doubt. 

 “Proof beyond a reasonable doubt is proof that leaves you with an abiding 

conviction that the charge is true. The evidence need not eliminate all possible doubt 

because everything in life is open to some possible or imaginary doubt. 
32 

 “In deciding whether the People have proved their case beyond a reasonable 

doubt, you must impartially compare and consider all the evidence that was received 

throughout the entire trial. 

 “Unless the evidence proves the defendant guilty beyond a reasonable doubt, he is 

entitled to an acquittal, and you must find him not guilty.” 

 The prosecutor gave an impassioned opening argument synthesizing the theme of 

his case. He told the jury: “. . . Patrick Enloe is a predator on the prowl. He’s not going 

to go after the soccer mom from Carmichael. He is not going to go after the CEO of a 

Fortune 500. No, he is going to go after the weak and the vulnerable, those who reside in 

the underbelly and the fringes of society, the weak and the prostitutes, those that don’t 

like law enforcement and don’t deal with law enforcement, that don’t have credibility in 

[the] eyes of the common man. They are prostitutes; they are whores; and streetwalkers. 

Those are the people he is going to prey upon because they are easy targets. He is a wolf 

in sheep’s clothing, and he is a predator on the prowl, and that’s what he did in this case.” 

 Without a mention of the beyond a reasonable doubt burden of proof, the 

prosecutor concluded: “And so now at the end of this trial, after you have seen all the 

evidence in the case, I propose to you this: Patrick Enloe is a serial rapist who raped not 

one, not two, not three, but four different women. He preyed upon their weaknesses. He 

preyed upon their vulnerability. And I pray that you find the truth in this case and render 

justice.” 

 Defense counsel, however, discussed the prosecution’s burden of proof at some 

length. She explained to the jurors: “The burden that the district attorney has to meet 

here is the highest burden we have in the law. It’s higher than the probable cause which 

law enforcement needs to arrest somebody. It’s higher than sort of a preponderance of 

the evidence, if we were talking about money or a contract legal dispute, that would be 

the -- what the prosecution would have to meet. It’s not even what CPS would need, the 
33 

level that CPS would need to take Amanda’s kids, for example. They would need clear 

and convincing proof. That is not even as high as reasonable doubt. 

 “Reasonable doubt is higher than that because we are talking about a person’s life 

and liberty. And it’s important when charges like this are made; it’s significant because it 

impacts them for the rest of their lives, and you have to take it seriously. And there may 

be a few of you going, gosh, you know, they lied, but I just can’t decide; I don’t know. I 

think there’s too much evidence kind of going both ways. I don’t really know. Well, that 

means not guilty. If it’s sort of a wash, that’s a not guilty. If there’s a few of you who go 

and say, well, I think he probably did this, some version of what the girls are saying, 

that’s not guilty, too. And if you think, well, maybe he did it or it’s likely he did it, that’s 

still not guilty. That is not proof beyond a reasonable doubt.” 

 In rebuttal, the prosecutor tiptoed into territory populated with landmines. 

Responding to defense counsel’s suggestion that proof beyond a reasonable doubt is so 

high as to be rarely attainable, the prosecutor began by parroting the instruction the court 

had already given: “Reasonable doubt. Let’s discuss that a little bit because the defense 

brought it up. It is proof that leaves you with an abiding conviction that the charges are 

true. The evidence need not eliminate all possible doubt, because everything in life is 

opened [sic] to some possible or imaginary doubt.” 

 He then attempted to make the illusive standard more concrete. Defendant asserts 

the prosecutor misstated the law and improperly denigrated the beyond a reasonable 

doubt standard of proof. The prosecutor explained: “You must impartially and fairly 

consider all the evidence received throughout the trial. A reasonable doubt is a doubt 

based upon reason, logic and common sense. That is reasonable doubt. Let me give you 

an example of what it is and what it isn’t. You see a pen in my hands, for you folks in the 

box. You saw the pen leave my hand. You saw it tumble through the air and heard it hit 

the floor. Now, it’s possible that there is a crack in the floor and the pen is sitting on the 

third floor of this courthouse. It’s possible that somebody crawled out from underneath 
34 

the table and grabbed the pen and crawled back. These are all possibilities. But are these 

based upon reason, logic and common sense? Or is it beyond a reasonable doubt that the 

pen is sitting where it left my hand and is on the floor and that’s where it is.” 

 After the court overruled a defense objection to his argument, the prosecutor 

concluded his discussion of reasonable doubt as follows: “In every state across our land 

people are convicted of the same standard. It is the highest standard of the land and 

rightfully so, but it is a standard that is not unobtainable. It is based upon reason, logic 

and common sense. If you go back into the jury room, and you are sitting there, and 

you’re thinking there, you know, I just got this funny feeling in the pit of my belly, and I 

can’t put it into words. I can’t pin it to a particular piece of evidence or articulate, but I 

have a funny feeling in the pit of my belly, you know what I’m going to ask you to do? 

I’m going to ask you to share that funny feeling with your fellow jurors. You have an 

obligation to deliberate and obligation to talk. Share that funny feeling with your fellow 

jurors. 

 “And I tell you this: If you are unable to articulate that funny feeling and not able 

to point to certain evidence, logical evidence, then that funny feeling is not a reasonable 

doubt because if it was based upon reason, logic and common sense, you would be able 

to articulate, you would be able to put it into words and be able to point to certain 

evidence. 

 “Now, there are things in life that we do not have answers to. When we look at 

our spreadsheet or a spec, we expect all the numbers -- the numbers to line up and expect 

everything to be perfect, whether you be [sic] an engineer or accountant or whatever. But 

in life not everything is perfect. 

 “If you look at this, we don’t have all the letters up here. We don’t have certain 

letters. We don’t have all the answers in this case, why somebody did this or that. But 

the fact of the matter is, even though we don’t have certain letters and certain answers, is 
35 

there any reasonable doubt that what this spells is the defendant is guilty? And that’s the 

same thing in this case.” 

 The question thus posed is whether it is reasonably likely that the jurors construed 

the prosecutor’s rebuttal remarks in a way that impermissibly redefined or denigrated the 

burden of proof. Defendant raises two objections to the prosecutor’s argument: 1) the 

prosecutor improperly suggested that a reasonable doubt can only be based on reason, 

logic, and common sense, and 2) he trivialized the burden of proof with his pen-dropping 

analogy and his comment that the reasonable doubt standard is used to convict defendants 

on a daily basis. We conclude there is no reasonable likelihood the prosecutor’s remarks, 

when taken in context, including the fact the jury was properly instructed by the court and 

defense counsel, misled or were construed by the jury in an improper manner. 

 The prosecutor did encourage the jury to base its verdict on a reasoned evaluation 

of the evidence, but he did not misstate the beyond a reasonable doubt standard when he 

urged the jury to utilize “reason, logic and common sense” during deliberations. Indeed, 

we expect them to do nothing less. (People v. Venegas (1998) 18 Cal.4th 47, 80 [jurors 

will “rely on their own common sense and good judgment in evaluating the weight of the 

evidence presented to them.”].) We reject defendant’s tortured construction of the 

argument. The prosecutor did not, as defendant suggests, remove the subjective element 

of the reasonable doubt standard or prohibit the jurors from factoring in how they felt. 

Rather, in context, he warned them not to rely on a “funny feeling” alone. To the 

contrary, he drew attention to the possibility of a gut feeling that a juror should bring into 

the deliberations and discuss with the other jurors. Nor did he convey the false notion 

that a reasonable doubt must be based on affirmative evidence. Again, in context, the 

prosecutor argued that a juror should be able to articulate doubts based on the state of the 

evidence, whether that is based on a complete lack of evidence or the unconvincing 

nature of the evidence presented. We agree with the Attorney General that it is not 

reasonably likely the jury interpreted the prosecutor’s remarks to mean that defendant had 
36 

the burden of producing evidence to prove his innocence, which would have been at odds 

with everything else they had been told. 

 Defendant offers examples where a prosecutor trivializes the reasonable doubt 

standard by analogizing them to everyday decisions like changing lanes or getting 

married. (People v. Nguyen (1995) 40 Cal.App.4th 28, 35-36.) But that is not what the 

prosecutor did during his rebuttal. The prosecutor acknowledged that the beyond a 

reasonable doubt standard is rightfully the highest standard of proof in the country. But 

to demonstrate that the standard is not unobtainable, he simply pointed out the true fact 

that people are convicted in every state in the nation under this rigorous standard of 

proof. Thus, rather than trivializing the standard, he actually paid homage to its rigor, 

while at the same time tempering the impression the jury might have derived from 

defense counsel’s closing argument that proof beyond a reasonable doubt was nearly 

impossible to achieve. His argument in no way implied that convicting a defendant of 

crimes beyond a reasonable doubt was comparable to “every day” decisions (ibid.) or in 

any other way improperly trivialized the standard of proof. 

 The pen-dropping analogy may or may not have been clear, apt, or effective, but 

again we conclude it did not denigrate the standard of proof. At a minimum, it is subject 

to different interpretations. The Attorney General asserts the prosecutor was attempting 

to coach the jurors on their ability to use circumstantial evidence to reach the requisite 

standard of proof. Defendant insists the analogy had nothing to do with circumstantial 

evidence but with the prosecutor’s admonition to the jurors to articulate the basis for their 

doubts and, using “reason, logic and common sense,” point to specific evidence to 

support their doubts. 

 We do not believe defendant’s argument is a fair representation of the meaning of 

the simple pen-dropping stunt. In context, the prosecutor was reiterating the point that 

there are always going to be remote, highly unlikely possibilities that could conceivably 

happen, but the mere existence of those possibilities does not constitute reasonable doubt. 
37 

Rather, according to the prosecutor, if jurors employ reason, logic, and common sense, 

they can find guilt beyond a reasonable doubt even in the face of hypothetical 

counterpossibilities. Thus, the argument does not trivialize the reasonable doubt 

standard; it merely provides a simplistic application of a well-worn principle. 

B. Prostitutes as Victims and Witnesses 

 As he pointed out in his closing argument, prosecutors do not choose their victims, 

and when the victims are prostitutes, they can be flawed witnesses. That was certainly 

the case here. Four very young prostitutes, three of whom had drugs in their systems 

when tested and all of whom lied repeatedly to the police, accused defendant of a wide 

array of sexual offenses. Yet they were the only witnesses to the crimes, and the 

prosecution’s case depended on their credibility and the jury’s willingness to believe their 

eyewitness accounts despite the false and inconsistent statements they provided police 

when reporting the crimes. As expected, the prosecutor spent considerable energy 

attempting to rehabilitate his witnesses and urging the jurors to suspend their biases 

against those who resided in the underbelly of society. 

 Defendant asserts the prosecutor went too far and crossed the outermost boundary 

for permissible advocacy by implying that the jury instructions prohibited jurors from 

devaluing the testimony of prostitutes on account of their profession and by vouching for 

their credibility based on evidence that does not appear in the record. A fair reading of 

the record belies these claims. 

 The prosecutor did not imply the jury instructions prohibited jurors from using 

prostitution as a factor in assessing credibility. Rather, the prosecutor alerted the jurors to 

the possibility that they might be biased against the victims solely on the basis of the kind 

of work they did. He expressed his grave concern that he could find 12 unbiased jurors 

who would carefully consider the content of the victims’ testimony and not discard the 

testimony entirely because the victims had chosen a “dirty” lifestyle. He argued: “But at 

some point in your life you have to just give in and trust. You have to trust that a group 
38 

of 12 ordinary people are going to evaluate the testimony of a witness in the context of 

the entire case, that you’re going to take that testimony and see if what is stated is 

corroborated by other evidence; trust that you’re not going to just discard a human being 

because of the profession that they chose; trust that the human spirit and the human 

wisdom will rise above our prejudices, our biases. And so I trust you folks to do that, to 

find the truth.” There was nothing improper about highlighting the potential for bias, and 

there was nothing implicit in that warning to prevent the jurors from examining all 

aspects of the witnesses’ credibility, including their involvement with prostitution both 

before and after defendant raped them. 

 Finally, defendant complains that the prosecutor relied on facts not in evidence to 

rehabilitate his witnesses. He is right on the law and wrong on his characterization of the 

argument. It is true that a “ ‘prosecutor is prohibited from vouching for the credibility of 

witnesses or otherwise bolstering the veracity of their testimony by referring to evidence 

outside the record.’ [Citation.]” (People v. Turner (2004) 34 Cal.4th 406, 432-433.) But 

prosecutors have wide latitude in discussing the veracity of the testimony based on the 

evidence at trial and, more importantly, to draw reasonable inferences from that evidence. 

(Id. at p. 432; People v. Lucas (1995) 12 Cal.4th 415, 473.) The prosecutor did nothing 

more than point out the obvious inferences the evidence suggests. 

 Defendant objects to arguments such as, “These prostitutes, they weren’t born 

with much. They weren’t given much, and, frankly, they don’t even have much. They 

sell their body over and over again and their dignity for what? Money.” Defense counsel 

chastised the prostitutes for their profession and for all the lies they told, and urged the 

jury to disregard their testimony. Thus, in rebuttal, the prosecutor tried once again to 

rehabilitate his witnesses. He argued: “What about a new profession? Yes, these 

women continued to prostitute themselves. Amanda continued to prostitute herself. 

Ashley continued to do it. [A.D.] continued to do it. Yes, [A.D.] did say it was easy 

money, but they left out the other part of what she said. It’s easy money; I got to support 
39 

my children. I’ve got to. These women, they weren’t born with much. Amanda was in 

foster care. They weren’t given much. They don’t have much. They weren’t born with a 

father playing golf at the country club. They didn’t go to a private school. They weren’t 

at a UC school. They don’t have a whole lot of skills and, yes, they have choices. 

Nobody made them prostitute themselves. They made those choices. But they made 

those choices that were the best choices for their children and their family, and it 

shouldn’t be held against them.” 

 Indeed, all three prostitutes testified they continued to prostitute themselves to 

survive or to take care of their children after defendant raped them. Amanda testified she 

had been in foster care. All of them, as the prosecutor argued, were willing to sell their 

bodies for small sums of money to buy diapers, pay for a room, or just survive. Because 

a prosecutor is accorded wide latitude in arguing the evidence, we cannot say he 

committed misconduct by inferring these young prostitutes had not been born with many 

financial resources and that they lacked skills, education, and privileges accorded those of 

a higher socioeconomic class. These were all fair inferences to be drawn from their 

testimony, their appearance, and their vocabularies. The evidence supported the 

prosecutor’s argument, and we reject defendant’s accusation that it was improper. 

IV 

Inadequacy of Counsel 

 Defendant was found guilty of digital touching and sexual battery based on 

Amanda’s prior statement to Detective Hendricks. Although at trial she was able to 

describe the details of the rape, oral copulation, and sodomy, Amanda did not recall 

specifically whether or not defendant had touched her breast or digitally penetrated her. 

Defendant contends he was denied his constitutional right to effective assistance of 

counsel because his lawyer failed to object to the admission of the hearsay evidence. His 

burden to establish ineffective assistance of counsel is a heavy one. 
40 

 “[D]efendant must affirmatively show that the omissions of defense counsel 

involved a critical issue, and that the omissions cannot be explained on the basis of any 

knowledgeable choice of tactics.” (People v. Floyd (1970) 1 Cal.3d 694, 709, 

disapproved on another point in People v. Wheeler (1978) 22 Cal.3d 258, 287, fn. 36..) A 

claim of ineffective assistance of counsel is cognizable on direct appeal only if “ ‘there 

simply could be no satisfactory explanation’ [citation] . . . .” (People v. Haskett (1990) 

52 Cal.3d 210, 248.) Defendant argues that there could not be a solid tactical reason for 

failing to object to the hearsay testimony, particularly when, as here, the prior statement 

constituted the only evidence to support the charges. 

 Defendant assumes that a hearsay objection would have been sustained. If, as the 

Attorney General argues, the prior statement was admissible as a past recollection 

recorded pursuant to Evidence Code section 1237, it was certainly reasonable for defense 

counsel to refrain from objecting. Section 1237 provides: “(a) Evidence of a statement 

previously made by a witness is not made inadmissible by the hearsay rule if the 

statement would have been admissible if made by him while testifying, the statement 

concerns a matter as to which the witness has insufficient present recollection to enable 

him to testify fully and accurately, and the statement is contained in a writing which: 

 “(1) Was made at a time when the fact recorded in the writing actually occurred or 

was fresh in the witness’ memory; 

 “(2) Was made (i) by the witness himself or under his direction or (ii) by some 

other person for the purpose of recording the witness’ statement at the time it was made; 

 “(3) Is offered after the witness testifies that the statement he made was a true 

statement of such fact; and 

 “(4) Is offered after the writing is authenticated as an accurate record of the 

statement. 

 “(b) The writing may be read into evidence, but the writing itself may not be 

received in evidence unless offered by an adverse party.” 
41 

 Defendant argues in reply that Amanda’s prior statement was not admissible 

pursuant to Evidence Code section 1237 because Amanda had lied to Detective 

Hendricks. People v. Cowan (2010) 50 Cal.4th 401 (Cowan) provides otherwise. 

 In Cowan, a witness who was in custody at the time he gave his statement to a 

police officer and hoped it would help him “get out of jail” told the officer about his 

personal involvement in the trade of a weapon. (Cowan, supra, 50 Cal.4th at p. 466.) 

But he later admitted that he might have lied about his involvement. (Ibid.) The 

defendant argued the statement was inadmissible pursuant to Evidence Code section 1237 

because the witness could not reliably vouch for its truthfulness. (Cowan, at p. 466.) The 

Supreme Court held in effect that lack of truthfulness regarding one part of a statement 

did not automatically render the entire statement inadmissible. The court pointed out that 

the only subject about which the witness might have lied was “his involvement in the gun 

transaction, which was not the subject of the portion of [the witness’s] statement the 

prosecution sought to introduce, and when confronted with the inconsistency between his 

1984 and 1994 statements on the subject [the witness] forthrightly admitted he might 

have lied in 1984.” (Id. at p. 467.) 

 In nearly copycat fashion, defendant makes the same claim. Amanda, like the incustody witness in Cowan, admittedly lied to Detective Hendricks. But her lies, like 

those the witness told in Cowan, did not pervade her statement. Not surprisingly, she hid 

the fact that she was engaged in prostitution at the time she got into defendant’s van, and 

to do so, she concocted a fable about a phantom person and the reason she was on the 

street. But those deceptions, like the lie told in Cowan, did not render the entire 

statement inherently unreliable and untrustworthy. While her motive to hide her 

involvement in prostitution is obvious, there is no reason to disbelieve her description of 

the events that transpired inside the van. Thus, the fact that a part of the statement was 

untruthful does not disqualify the entire statement as a prior recorded statement under 

Evidence Code section 1237. 
42 

 Moreover, the statement met the other parameters established by the statute. 

Having given the statement three days after the sexual assault, the writing was made at a 

time when the events were fresh in the witness’s memory. (Evid. Code, § 1237, 

subd. (a)(1).) Amanda made the statement for the purpose of Detective Hendricks 

recording it. (§ 1237, subd. (a)(2)(ii).) She testified that she told Detective Hendricks the 

truth, despite the fact that she no longer remembered whether defendant had touched her 

breast or digitally penetrated her. (§ 1237, subd. (a)(3).) And the detective authenticated 

the statement at trial. (§ 1237, subd. (a)(4).) Because it apparently qualifies under the 

prior recorded statement exception to the hearsay ban, trial counsel reasonably concluded 

an objection would be futile. Or, at a minimum, she might have decided that such a 

facially weak objection would be tactically inadvisable. Either way, defendant cannot 

sustain his burden of demonstrating there could be no satisfactory explanation for 

foregoing an objection to the evidence. As a result, his ineffective assistance of counsel 

claim fails. 

V 

Sentencing 

 Defendant argues that his convictions for sexual battery and forcible sexual 

penetration against A.D. and for oral copulation and forcible sexual penetration against 

Amanda must be stayed pursuant to Penal Code section 654 because those offenses were 

the means of, facilitated the commission of, or were merely incidental to the commission 

of rape. We disagree. 

 “[S]ection 654 does not apply to sexual misconduct that is ‘preparatory’ in the 

general sense that it is designed to sexually arouse the perpetrator or the victim. 

(People v. Madera [(1991)] 231 Cal.App.3d [845,] 855 [(Madera)].) That makes 

section 654 of limited utility to defendants who commit multiple sex crimes against a 

single victim on a single occasion. As our Supreme Court has stated, ‘[M]ultiple sex acts 

committed on a single occasion can result in multiple statutory violations. Such offenses 
43 

are generally “divisible” from one another under section 654, and separate punishment is 

usually allowed. [Citations.]’ (People v. Scott (1994) 9 Cal.4th 331, 344, fn. 6 

[36 Cal.Rptr.2d 627, 885 P.2d 1040] [(Scott)].) If the rule were otherwise, ‘the clever 

molester could violate his victim in numerous lewd ways, safe in the knowledge that he 

could not be convicted and punished for every act.’ (Id. at p. 347.) Particularly with 

regard to underage victims, it is inconceivable the Legislature would have intended this 

result. (Ibid.)” (People v. Alvarez (2009) 178 Cal.App.4th 999, 1006 (Alvarez).) 

 Our focus is whether the evidence demonstrates the defendant “independently 

sought sexual gratification each time he committed an unlawful act.” (Scott, supra, 

9 Cal.4th at pp. 347-348, fn. 9.) Because this determination is ultimately a question of 

fact, we review the record to determine whether there is substantial evidence to support 

the trial court’s implied findings that defendant sought sexual gratification as he 

committed each offense. (People v. Arndt (1999) 76 Cal.App.4th 387, 397.) 

 There is substantial evidence to support the trial court’s implied factual finding 

that defendant was seeking sexual gratification when he put mucus on his finger and 

digitally penetrated A.D. He did not merely use the mucus as lubricant and immediately 

rape her as dicta in Madera, supra, 231 Cal.App.3d at pp. 854-855 hypothesizes. Rather, 

he digitally penetrated her and then masturbated. Similarly, he demanded that she show 

him her breasts, and he groped a breast while masturbating. Thus, the discrete and 

independent acts of forcible sexual penetration and sexual battery were designed to 

gratify his sexual desires separate and apart from his ultimate act of gratification—the 

rape. 

 In the same way, the oral copulation of Amanda was not incidental to the rape 

despite defendant’s demand “to suck his private area until [she] got him hard.” As noted 

above, Penal Code section 654 does not apply to preparatory conduct that is designed to 

sexually arouse the perpetrator. (Alvarez, supra, 178 Cal.App.4th at p. 1006.) Amanda’s 

testimony suggests that defendant forced her to orally copulate him to achieve sexual 
44 

arousal, and thus section 654 does not preclude punishment for oral copulation and rape. 

Additionally, he proceeded to put his fingers into her vagina, then put his penis into her 

vagina, then into her anus, and finally back into her vagina. The court could reasonably 

infer that each act escalated his gratification and he was willing to perform separate 

independent acts until he was ultimately satisfied. There is substantial evidence to 

support the trial court’s implied finding that he achieved sexual gratification from each 

independent act, and section 654 presents no bar to sentencing for each count. 

DISPOSITION 

 The judgment is affirmed. 

 RAYE , P. J. 

We concur: 

 HULL , J. 

 MURRAY , J.