Filed 11/2/15 (unmodified opn. attached)

                                 CERTIFIED FOR PUBLICATION

                  COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                           DIVISION ONE

                                       STATE OF CALIFORNIA

THE PEOPLE,                                           D066741

        Plaintiff and Respondent,

        v.                                            (Super. Ct. No. SCE331081)

GREY DAVID WOODS,                                     ORDER DENYING REHEARING
                                                      AND MODIFYING OPINION
        Defendant and Appellant.
                                                      CHANGE IN JUDGMENT


THE COURT:

        It is ordered that the opinion filed herein on October 20, 2015, be modified as

follows:

        On page 42, in the disposition section, the first two full paragraphs are deleted in

their entirety and the following paragraphs are inserted in their place:

             "The judgment is reversed. Woods's convictions for forcible oral
             copulation of a minor 14 or older and forcible oral copulation of a
             minor 14 or older in concert in counts 3, 4, 5, 6, 8, 10, 11, 13, and 15
             are reversed, and his sentences as to these counts are vacated.
             Woods's remaining convictions are affirmed.

             "The People may retry Woods on the charges of forcible oral
             copulation of a minor 14 or older and forcible oral copulation of a
             minor 14 or older in concert within the applicable time period. If the
             People do not bring Woods to retrial on counts 3, 4, 5, 6, 8, 10, 11,
   13, and 15 within the applicable time, the trial court shall proceed as
   if the remittitur constituted a modification of the judgment to reflect
   convictions for nonforcible oral copulation of a minor under section
   288a, subdivision (b)(1), on those counts, and shall resentence
   Woods with respect to all of the counts on which he stands
   convicted, including the counts affirmed in this opinion. In the event
   that Woods is retried on these charges and convicted on some or all
   of the charges, the court shall resentence Woods with respect to all
   of the counts on which he stands convicted, including the counts
   affirmed in this opinion."

This modification changes the judgment.

The petitions for rehearing are denied.



                                                        McCONNELL, P. J.

Copies to: All parties




                                      2
Filed 10/20/15 (unmodified version)

                                 CERTIFIED FOR PUBLICATION

                  COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                         DIVISION ONE

                                      STATE OF CALIFORNIA


THE PEOPLE,                                       D066741

        Plaintiff and Respondent,

        v.                                        (Super. Ct. No. SCE331081)

GREY DAVID WOODS,

        Defendant and Appellant.


        APPEAL from a judgment of the Superior Court of San Diego County, John M.

Thompson, Judge. Judgment reversed; convictions reversed in part, affirmed in part;

remanded for further proceedings.


        Eric R. Larson, under appointment by the Court of Appeal, for Defendant and

Appellant.

        Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Scott Taylor

and Paige B. Hazard, Deputy Attorneys General, for Plaintiff and Respondent.
                                              I.

                                     INTRODUCTION

        Defendant Grey David Woods appeals from a judgment of conviction entered after

a jury convicted him of 16 counts related to sexual misconduct involving his girlfriend's

underage daughter.1

        On appeal, Woods contends that his convictions on counts 1 through 15 should be

reversed on either of two grounds. First, Woods contends that the trial court failed to

instruct the jury sua sponte on lesser included offenses to the charged offenses of forcible

rape, forcible oral copulation of a minor over the age of 14, and forcible oral copulation

in concert of a minor over the age of 14. Second, Woods contends that the trial court

prejudicially erred in instructing the jury on the meaning of "consent" as it relates to his

case.

        Woods also makes two arguments with respect to the jury's findings regarding

great bodily injury as to counts 1 and 16. Woods challenges the sufficiency of the

evidence to support the jury's finding of great bodily injury, arguing that the victim's

pregnancy and subsequent abortion do not constitute sufficient evidence that he inflicted

great bodily injury on the victim. Woods also contends that the trial court prejudicially

erred in instructing the jury with respect to the meaning of great bodily injury when it


1     Woods pled guilty to a 17th count, for possession of child pornography (Pen.
Code, § 311.11, subd. (a)), prior to trial.
                                            2
modified the instruction to state that "causing a woman to become pregnant can be the

infliction of great bodily injury." Finally, Woods contends that the cumulative effect of

the errors that he alleges requires reversal.2

       The People concede, and we agree, that the trial court had a duty to instruct the

jury regarding the lesser included offense of nonforcible oral copulation with a minor

with respect to the charges of forcible oral copulation of a minor over the age of 14 and

forcible oral copulation in concert of a minor over the age of 14. The People urge that

the error was harmless. However, under the circumstances of this case, we cannot

conclude that there is no reasonable probability that Woods would have received a more

favorable result if the court had provided the instructions on the lesser included offense.

       We disagree with Woods that the trial court had a duty to instruct the jury

regarding the offense of statutory rape as a lesser included offense of the offense of

forcible rape. We conclude that the statutory rape offense that Woods identifies is not a

lesser included offense of the substantive offense of forcible rape, even under the

accusatory pleading test. We reject the remainder of Woods's arguments for reversal.

       We reverse Woods's convictions on counts 3, 4, 5, 6, 8, 10, 11, 13, and 15. Woods

may be retried on these counts. We affirm Woods's convictions on the remaining counts.


2       Woods initially raised an additional argument on appeal, claiming that the trial
court had a sua sponte duty to instruct the jury with CALCRIM No. 358, which instructs
the jury to view the defendant's out-of-court statements with caution. After Woods filed
his opening brief, the Supreme Court concluded that a trial court need not give this
cautionary instruction sua sponte. (See People v. Diaz (2015) 60 Cal.4th 1176, 1190.) In
light of Diaz, Woods abandoned this argument in his reply brief.
                                              3
                                            II.

                    FACTUAL AND PROCEDURAL BACKGROUND

A.    Factual background

      A.C. met Woods in 2007 while playing World of Warcraft, an online "fantasy

role-playing game." A.C. was living in Rhode Island with her husband and their three

young boys, as well as A.C.'s then 12-year-old daughter from a previous relationship,

C.C. A.C. spent many hours each night playing the game. C.C. also played for many

hours each night.

      A.C.'s marriage eventually failed, and she and C.C. left the family home and

moved in with A.C.'s parents. The marriage ended in large part because A.C.'s husband

was unhappy that A.C. was spending so much time online, to the detriment of the family.

      In June 2008, then 31-year-old A.C. decided to pursue a romantic relationship

with Woods, who was 19 years old at the time. A.C. invited Woods to come to Rhode

Island. Woods drove to Rhode Island from California and stayed in a hotel. A.C.

brought 12-year-old C.C. with her to meet Woods at the hotel. The three of them shared

a bed that night, with C.C. in the middle. Sometime during the night, Woods touched

C.C.'s vagina and breasts, and asked her to touch his penis. C.C. felt "not good" about

what Woods had done. At a later point that night, Woods again touched C.C.'s vagina.

She told him to stop, and he did. The next morning C.C. told her mother "that [she]

didn't want to do that." A.C. "ignored" C.C., which made C.C. feel "sad."

                                            4
       After this visit with Woods, A.C. decided that she was in love with Woods. In

July 2008, Woods came to Rhode Island and moved into A.C.'s parents' home, with A.C.

and C.C. A.C. and Woods shared a room in the basement of the home, and C.C. had a

room upstairs. Within two months of arriving in Rhode Island, Woods became

physically abusive toward A.C.

       During this time, Woods continued to sexually abuse C.C. The first time Woods

sexually abused C.C. after he had moved to Rhode Island was at C.C.'s grandparents'

house. Woods entered C.C.'s room, locked the door behind him, and touched her vagina

under her clothes. C.C. complained to her mother, who responded, "deal with it."

Woods then began to expect C.C. to perform oral sex on him "[d]aily." She did not want

to do it, but she "couldn't say no." When C.C. told her mother about what Woods was

doing to her, A.C. got "mad" at C.C., "[b]ecause she was jealous that [C.C.] got more

attention than her." While in her grandparents' house, C.C. did not feel that she had a

choice to stop performing oral sex on Woods.

       At some point, Woods, A.C. and C.C. moved into an apartment together, where

they lived for a year and a half. Woods began having intercourse with C.C. every day,

and she continued to perform oral sex on him. C.C. did not want to have sex with

Woods, but he told her "it's something [she] ha[d] to do," and she did not feel she had a

choice. C.C. told A.C. that Woods was demanding sex from her, but A.C. did nothing to

try to stop the abuse. C.C. witnessed Woods being physically abusive toward A.C. C.C.



                                             5
believed that if she did not comply with Woods's demands for sex, Woods would hurt her

or her mother.

       In July 2010, Woods, A.C. and C.C. moved to San Diego where they lived with

Woods's father, stepmother and grandmother. C.C. was 14 years old at the time of the

move. By this point in time, A.C. and C.C. were financially dependent on Woods.

       While in San Diego, Woods had "daily" intercourse and "almost daily" oral sex

with C.C., and he sometimes, though rarely, would engage in anal sex with her.

       A.C. would occasionally participate in the sexual encounters between C.C. and

Woods, but C.C. did not "want that to happen." She felt "gross" when it happened. C.C.

was afraid to say no and feared that Woods would hurt her or A.C. if C.C. did not "[do]

what [Woods] demanded." Woods was, in fact, physically abusing A.C. during this time,

on approximately a monthly basis, according to C.C. On one occasion, he knocked A.C.

unconscious. Woods put his hands on C.C.'s shoulders and "kind of push[ed] [her], not

so much that it would hurt [her], but more to scare [her]."

       At some point, Woods began taking pornographic photographs and videos of

himself, C.C., and A.C. engaged in various sex acts.

       In the fall of 2010, C.C., who was 15 years old, learned that she was pregnant.

Woods and A.C. told her to get an abortion. In mid-January 2011, A.C. drove C.C. to a

Planned Parenthood facility to undergo an abortion procedure.3 A.C. told the staff at

Planned Parenthood that an unnamed boy had gotten C.C. pregnant. C.C. did not tell the

3      Because C.C. was in her second trimester, a two-day procedure was required.
                                           6
truth about what had happened because she was concerned that she would get in trouble,

and/or that her mother would get in trouble. Less than two weeks after C.C. had the

abortion, Wood resumed having sex with her.

       Woods insisted that A.C. homeschool C.C. He insisted that C.C. and A.C. call

him "daddy," and he introduced C.C. to his coworkers as his daughter. A.C. would not

let C.C. talk to her brothers, stepfather, or father on the telephone, even though they tried

to call to speak with her.

       C.C. testified that at some point in time, as early as when the three were living in

Rhode Island, she developed romantic feelings for Woods and began to regard him as her

boyfriend. She started to act "like a girlfriend." C.C. testified that she believed she

"should make [herself] like him and it will make it easier." She also testified that once

she began regarding Woods as her boyfriend, she and Woods went out on dates, and she

occasionally initiated sex with him. C.C. told Woods that she loved him on a daily basis,

and made plans for a future with Woods.

       In March 2011, the three moved to Ramona to live with Woods's grandmother and

her husband. Although C.C. had her own bedroom at the house, A.C. and Woods told her

to sleep with them in their room and share their bed. Woods continued to have

intercourse and oral sex with C.C. while they were living at the Ramona residence.

       In November 2011, Woods, A.C. and C.C. moved into their own home. At the

new house, C.C. slept in the bedroom with Woods, and A.C. slept in a different room

C.C. would hear Woods engaging in violence against A.C. during this period. In early

                                              7
January 2012, A.C. called the police after Woods was violent toward her and C.C.

Woods had pushed A.C. down to the floor and had thrown C.C. onto the bed so hard that

the bed broke. After A.C. and C.C. left the house, Woods sent A.C. threatening text

messages. In the first, he said, "I'm going to find you and kill anyone you're with."

Another said, "I'm killing myself and all the animals with me. Fuck you guys." A.C. was

concerned that he would follow through on his threats.

         The law enforcement officer who investigated the incident noted that Woods was

six feet tall, and weighed 245 pounds. C.C. was "much smaller." C.C. did not mention

the sexual abuse to the officer because her mother had told her not to say anything about

it, and she feared she would "get taken away" from her mother.

         Shortly after this incident, C.C. went to West Virginia to live with a "friend."

         In early March 2012, Woods met Brittany M. online and they began a romantic

relationship. Later that month, Brittany moved in with Woods at his father's home in

Ramona. On August 9, 2012, Brittany called the sheriff's department to report that

Woods possessed child pornography. Woods had given Brittany two computer memory

sticks and asked her to destroy them. Brittany eventually discovered that the memory

sticks and Woods's computer contained explicit pornographic images and videos

involving C.C., whom Brittany knew was the daughter of Woods's ex-girlfriend, and a

minor.

         A few weeks after Brittany contacted the authorities, police executed a search

warrant and seized Woods's computer, cellular telephones and a computer tower. A

                                               8
forensic examiner found "thousands" of pornographic pictures and videos depicting C.C.,

Woods, and A.C. on these devices.

       Woods and A.C. were arrested. A.C. cooperated with police and eventually pled

guilty to committing lewd acts with a minor, felony child abuse, and felony accessory

after the fact. A.C. testified for the prosecution at Woods's trial.

B.     Procedural background

       By amended information, Woods was charged with six counts of forcible rape

(Pen. Code,4 § 261, subd. (a)(2); counts 1, 2, 7, 9, 12, 14); eight counts of forcible oral

copulation of a minor aged 14 or older (§ 288a, subd. (c)(2)(C); counts 3, 4, 5, 6, 8, 10,

13, 15); one count of forcible oral copulation of a minor aged 14 or older in concert with

another (§ 288a, subd. (d)(3); count 11); one count of felony child abuse (§ 273a, subd.

(a); count 16); and one count of possession of child pornography (§ 311.11, subd. (a);

count 17).5 The information further alleged that Woods was subject to the One Strike



4      Further statutory references are to the Penal Code unless otherwise indicated.

5      With respect to counts 3, 4, 5, 6, 8, 10, 13, 15 (forcible oral copulation of a minor
14 or older) and 11 (forcible oral copulation of a minor 14 or older in concert), the
charging document initially set out the basic offenses of forcible oral copulation (§ 288a,
subd. (c)(2)(A)) and forcible oral copulation in concert (§ 288a, subd. (d)(1))—neither of
which involve allegations that the victim is a minor; a separate paragraph included in
each count alleged that C.C. was a minor aged 14 years or older and that Woods violated
the specific subdivisions of section 288a that set forth the substantive offenses of forcible
oral copulation of a minor 14 years or older (§ 288a, subd. (c)(2)(C)) and forcible oral
copulation of a minor 14 years or older in concert (§ 288a, subd. (d)(3)). As we discuss
further in part III.A.3.a., post, the People acknowledge that this method of pleading was,
at a minimum, unusual, and possibly erroneous, in that these allegations were pled as if
                                                9
law in that he committed multiple offenses on separate occasions against the same victim,

who was a minor 14 years or older, pursuant to section 667.61, subdivision (l) and (m).

The information also alleged that as to counts 1 and 16, Woods inflicted great bodily

injury on the victim, by causing her to become pregnant, pursuant to sections 12022.7,

subdivision (a), 667.61, subdivision (l).

       Woods pled guilty to count 17, possession of child pornography (§ 311.11,

subd. (a)), prior to trial.

       A jury convicted Woods on all of the remaining counts, and found true all of the

allegations against him.

       The trial court sentenced Woods to life in prison without the possibility of parole,

plus an additional 53 years in prison.6


they were sentencing "enhancements" and/or additional allegations to the violations of
section 288a, subdivision (c)(2)(A) and section 288a, subdivision (d)(1), despite the fact
that violations of section 288a, subdivision (c)(2)(C) and section 288a, subdivision (d)(3)
are themselves substantive offenses, and not enhancements or separate sentencing scheme
allegations.

6      The sentence included an indeterminate term of life without the possibility of
parole as to count 1, as a result of the jury's One Strike law true finding pursuant to
section 667.61, subdivision (l). The court stayed a three-year prison term enhancement
pursuant to section 12022.7, subdivision (a) with respect to that count. With respect to
count 11, the court imposed the middle term of 10 years, plus three additional middle
terms of nine years each as to counts 2, 12, and 14. On counts 5 and 6, the court imposed
consecutive middle terms of eight years. On counts 3, 4, 8, 10, 13 and 15, the court
imposed concurrent middle terms of eight years, and on counts 7 and 9, the court
imposed concurrent middle terms of nine years. With respect to count 16, the court
imposed a concurrent term of four years, and stayed the section 12022.7, subdivision (a)
enhancement sentence pursuant to section 654. With respect to count 17, the court
imposed a concurrent term of two years.
                                                10
       Woods filed a timely notice of appeal.

                                                     III.

                                              DISCUSSION

A.     The trial court prejudicially erred in failing to instruct on the lesser included
       offense of nonforcible oral copulation of a minor with respect to the charged
       counts of forcible oral copulation of a minor and forcible oral copulation of a
       minor in concert, but did not err in declining to instruct on unlawful sexual
       intercourse with a minor as a lesser included offense of forcible rape

       Woods contends that the trial court prejudicially erred in failing to instruct the jury

on lesser included offenses to the charged counts of (a) forcible oral copulation of a

minor aged 14 or older (counts 3, 4, 5, 6, 8, 10, 13, and 15), (b) forcible oral copulation

of a minor aged 14 or older in concert (count 11), and (c) forcible rape (counts 1, 2, 7, 9,

12, and 14).

       1.       Additional background

       The information charged Woods with eight counts of forcible oral copulation in

violation of section 288a, subdivision (c)(2)(A),7 and purported to allege as an

enhancement "that in the commission and attempted commission of the above offense

that the victim was a minor fourteen years of age and older, within the meaning of

PENAL CODE SECTION 288a(c)(2)(C)."8 The information also charged Woods with


7      Section 288a, subdivision (c)(2)(A) provides:
            "Any person who commits an act of oral copulation when the act is accomplished against
            the victim's will by means of force, violence, duress, menace, or fear of immediate and
            unlawful bodily injury on the victim or another person shall be punished by
            imprisonment in the state prison for three, six, or eight years."

8      Section 288a, subdivision (c)(2)(C) provides:
                                            11
one count of forcible oral copulation in concert, in violation of section 288a, subdivision

(d)(1),9 and purported to allege as an enhancement "that the victim was a minor fourteen

years of age and older, within the meaning of PENAL CODE SECTION 288a(d)(3)."10

In addition, as relevant to Woods's argument on appeal, the information charged Woods

with six counts of forcible rape, in violation of section 261, subdivision (a)(2).11 With

respect to these charges, the information further alleged that Woods was subject to the

One Strike law on the forcible rape counts, based on the allegation that the victim was a


          "Any person who commits an act of oral copulation upon a minor who is 14 years of age
          or older, when the act is accomplished against the victim's will by means of force,
          violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim
          or another person, shall be punished by imprisonment in the state prison for 6, 8, or 10
          years."

9      Section 288a, subdivision (d)(1) provides in relevant part:
          "Any person who, while voluntarily acting in concert with another person, either
          personally or by aiding and abetting that other person, commits an act of oral copulation
          (A) when the act is accomplished against the victim's will by means of force or fear of
          immediate and unlawful bodily injury on the victim or another person, or (B) where the
          act is accomplished against the victim's will by threatening to retaliate in the future
          against the victim or any other person, and there is a reasonable possibility that the
          perpetrator will execute the threat, or (C) where the victim is at the time incapable,
          because of a mental disorder or developmental or physical disability, of giving legal
          consent, and this is known or reasonably should be known to the person committing the
          act, shall be punished by imprisonment in the state prison for five, seven, or nine years."

10     Section 288a, subdivision (d)(3) provides:
          "Any person who, while voluntarily acting in concert with another person, either
          personally or aiding and abetting that other person, commits an act of oral copulation
          upon a victim who is a minor 14 years of age or older, when the act is accomplished
          against the victim's will by means of force or fear of immediate and unlawful bodily
          injury on the victim or another person, shall be punished by imprisonment in the state
          prison for 8, 10, or 12 years."
11     Section 261, subdivision (a)(2) provides:
          "(a) Rape is an act of sexual intercourse accomplished with a person not the spouse of the
          perpetrator, under any of the following circumstances: [¶] . . . [¶]

          "(2) Where it is accomplished against a person's will by means of force, violence, duress,
          menace, or fear of immediate and unlawful bodily injury on the person or another."

                                                      12
minor over 14 years of age, within the meaning of section 667.61, subdivisions (l) and

(m).12

         During discussions regarding the jury instructions, defense counsel requested that

the trial court instruct the jury on the lesser included offense of unlawful nonforcible oral

copulation of a minor, in violation of section 288a, subdivision (b)(1),13 with respect to

the charged offenses of forcible oral copulation of a minor aged 14 or older, in violation

of section 288a, subdivision (c)(2)(C), and forcible oral copulation of a minor aged 14 or

older in concert, in violation of section 288a, subdivision (d)(3). Defense counsel also

requested that the court instruct on unlawful sexual intercourse with a minor, in violation

of section 261.5, subdivisions (a) & (c), as a lesser included offense to the forcible rape

charges (§§ 261, subd. (a)(2)).

         The prosecutor objected to the court instructing on these offenses, arguing that

"[t]here are no lessers that apply" in this case. He asserted that "the proposed lessers


12       Section 667.61, subdivisions (l) and (m) provide:
            "(l) Any person who is convicted of an offense specified in subdivision (n) under one or
            more of the circumstances specified in subdivision (d) or under two or more of the
            circumstances specified in subdivision (e), upon a victim who is a minor 14 years of age
            or older shall be punished by imprisonment in the state prison for life without the
            possibility of parole. If the person who was convicted was under 18 years of age at the
            time of the offense, he or she shall be punished by imprisonment in the state prison for 25
            years to life.

            "(m) Any person who is convicted of an offense specified in subdivision (n) under one of
            the circumstances specified in subdivision (e) against a minor 14 years of age or older
            shall be punished by imprisonment in the state prison for 25 years to life."

13       Section 288a, subdivision (b)(1) provides:
            "Except as provided in Section 288, any person who participates in an act of oral
            copulation with another person who is under 18 years of age shall be punished by
            imprisonment in the state prison, or in a county jail for a period of not more than one
            year."
                                                        13
from the defense, all of them, contain elements that are in addition to the elements

contained in the charged crimes. [¶] The elements are various age determinations. The

charged crimes do not contain any age determinations at all in any of the elements. It is

the enhancements that contain the age determinations." (Italics added.) Later, the

prosecutor restated his position in a slightly different way: "The proposed lesser

includeds from the defense are in fact different crimes with different elements, containing

age determination elements that are not present at all in the charged crimes; in effect,

additional proof requirements beyond those in the charged crimes."

       The trial court stated, "Based upon the case law submitted by [the prosecutor], it

would appear that the case—the Court would have to act contrary to that case law to

instruct on any type of lesser included or lesser related." The court ultimately denied

defense counsel's request for instructions on the offenses of unlawful but nonforcible oral

copulation of a minor (§ 288a, subd. (b)(1)) and unlawful sexual intercourse with a minor

(§ 261.5, subds. (a) & (c)).

       2.     Legal standards pertaining to instructing on lesser included offenses

       "For purposes of determining a trial court's instructional duties, [the Supreme

Court has] said that 'a lesser offense is necessarily included in a greater offense if either

the statutory elements of the greater offense, or the facts actually alleged in the

accusatory pleading, include all the elements of the lesser offense, such that the greater

cannot be committed without also committing the lesser.' " (People v. Smith (2013) 57

Cal.4th 232, 240.) "Under the [legal] elements test, if the statutory elements of the

                                              14
greater offense include all of the statutory elements of the lesser offense, the latter is

necessarily included in the former. Under the accusatory pleading test, if the facts

actually alleged in the accusatory pleading include all of the elements of the lesser

offense, the latter is necessarily included in the former." (People v. Reed (2006) 38

Cal.4th 1224, 1227-1228.)

       When applying the accusatory pleading test, "[t]he trial court need only examine

the accusatory pleading." (Smith, supra, 57 Cal.4th at p. 244.) "[S]o long as the

prosecution has chosen to allege a way of committing the greater offense that necessarily

subsumes a lesser offense, and so long as there is substantial evidence that the defendant

committed the lesser offense without also committing the greater, the trial court must

instruct on the lesser included offense." (Ibid.) However, enhancements may not be

considered as part of an accusatory pleading for purposes of identifying lesser included

offenses. (People v. Wolcott (1983) 34 Cal.3d 92, 96, 100-101.)

       "In criminal cases, even absent a request, a trial court must instruct on the general

principles of law relevant to the issues the evidence raises. [Citation.] ' "That obligation

has been held to include giving instructions on lesser included offenses when the

evidence raises a question as to whether all of the elements of the charged offense were

present [citation], but not when there is no evidence that the offense was less than that

charged. [Citations.]" ' [Citation.] '[T]he existence of "any evidence, no matter how

weak" will not justify instructions on a lesser included offense, but such instructions are

required whenever evidence that the defendant is guilty only of the lesser offense is

                                              15
"substantial enough to merit consideration" by the jury.' " (People v. Taylor (2010) 48

Cal.4th 574, 623.)

       Any error in failing to instruct on a lesser included offense does not warrant

reversal unless an examination of the entire cause, including the evidence, discloses that

"it appears 'reasonably probable' the defendant would have achieved a more favorable

result had the error not occurred." (People v. Breverman (1998) 19 Cal.4th 142, 149; see

People v. Watson (1956) 46 Cal.2d 818, 836.) A reasonable probability in this context

does not mean more likely than not; it means a reasonable chance and not merely a

theoretical or abstract possibility. (See People v. Blakeley (2000) 23 Cal.4th 82, 94;

Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 800.)

       3.     Analysis

              a.     Nonforcible oral copulation of a minor as a lesser included offense
                     of both forcible oral copulation of a minor aged 14 or older and
                     forcible oral copulation of a minor aged 14 or older in concert

       Woods contends that nonforcible oral copulation of a minor, a violation of section

288a, subdivision (b)(1), is a lesser included offense of forcible oral copulation of a

minor aged 14 or older, in violation of section 288a, subdivision (c)(2)(C), as well as a

lesser included offense of forcible oral copulation of a minor aged 14 or older in concert,

in violation of section 288a, subdivision (d)(3). He asserts that the trial court therefore

had a sua sponte duty to instruct the jury with respect to section 288a, subdivision (b)(1),

given the state of the evidence in this case, and further contends that the court's failure to

so instruct was prejudicial.

                                              16
       The People concede that nonforcible oral copulation of a minor under section

288a, subdivision (b)(1) is a lesser included offense of forcible oral copulation of a minor

under section 288a, subdivision (c)(2)(C), as well as a lesser included offense of forcible

oral copulation of a minor in concert under section 288a, subdivision (d)(3). The People

acknowledge that the prosecutor was incorrect in asserting at trial that the allegations as

to C.C.'s age/minority with respect to the charged offenses of forcible oral copulation of a

minor aged 14 or older were "enhancements." Rather, although the charging document in

this case attempted to allege the violation of section 288a, subdivision (c)(2)(C) as a

sentencing "enhancement" as to each applicable count, the People agree with Woods's

position on appeal that section 288a, subdivision (c)(2)(C) (forcible oral copulation of a

minor aged 14 or older) is itself a substantive offense, and not simply an enhancement

allegation to the separate offense of violating section 288a, subdivision (c)(2)(A)

(forcible oral copulation). The People similarly concede that section 288a, subdivision

(d)(3) (forcible oral copulation of a minor aged 14 or older in concert) is an independent

substantive offense, and is not simply an enhancement allegation to the separate offense

of violating section 288a, subdivision (d)(1) (forcible oral copulation in concert).

       Although the People concede that nonforcible oral copulation of a minor pursuant

to section 288a, subdivision (b)(1) is a lesser included offense of both forcible oral

copulation of a minor aged 14 or older under section 288a, subdivision (c)(2)(C) and

forcible oral copulation of a minor aged 14 or older in concert, under section 288a,

subdivision (d)(3), the People nevertheless contend that the trial court did not err in

                                             17
declining to instruct the jury on this lesser included offense because, they argue, the

evidence did not support an instruction on the lesser included offense.

       We review de novo the trial court's failure to instruct on a lesser included offense

(see People v. Licas (2007) 41 Cal.4th 362, 367; People v. Manriquez (2005) 37 Cal.4th

547, 581), and in doing so we consider the evidence in the light most favorable to the

defendant (People v. Millbrook (2014) 222 Cal.App.4th 1122, 1137; People v. Turk

(2008) 164 Cal.App.4th 1361, 1368, fn. 5). Thus, the question is not whether substantial

evidence supports Woods's conviction on the greater offenses of forcible oral copulation

of a minor aged 14 or older and forcible oral copulation of a minor aged 14 or older in

concert—a conclusion that we would readily reach. Rather, the question is whether, in

assessing and weighing the evidence independently, the jury could have reasonably

concluded that Woods committed nonforcible oral copulation of C.C., a minor, but not

forcible oral copulation. Giving the record in this case a fair reading, we are compelled

to conclude that there is evidence from which a reasonable jury could find that some or

all of the charged acts of oral copulation with C.C., all of which were alleged to have

occurred after the three had moved to California, and therefore, after the time that C.C.

testified she began to regard Woods as her boyfriend, may not have been accomplished

against C.C.'s will "by means of force, violence, duress, menace, or fear of immediate

and unlawful bodily injury on the victim or another person."

       As is required for purposes of determining whether the trial court erred in failing

to instruct on a lesser included offense, we view the evidence in the light most favorable

                                             18
to Woods. The evidence on which a fact finder could rely in concluding that Woods did

not commit forcible oral copulation on C.C., but rather, engaged only in nonforcible

unlawful oral copulation with her as a minor, includes C.C.'s testimony that at some point

as early as when she and A.C. and Woods were living in Rhode Island, she began to

regard Woods as her boyfriend. She acknowledged trying to look sexy for Woods, and

said that they did enjoyable things together like playing video games, going shopping,

going out to dinner, driving around in Woods's Jeep, and listening to music. C.C.

testified that after she started regarding Woods as her boyfriend, with respect to their

sexual encounters, she did not say "no" to Woods, she never asked him to stop, and never

told him that it hurt her. C.C. also acknowledged that she initiated some of the sexual

conduct between them. She told Woods things "that would turn [her] on," and he did

those things. C.C. testified that Woods never "threatened to hurt [her] or kill [her] if

[she] didn't have sex with him . . . ." She responded, "Yes" when asked whether "many

times" she "found the sex to be fun," and said that it was "fulfilling."

       In addition, when C.C. spoke with the counselors at Planned Parenthood, she told

them that she was in a consensual sexual relationship. There was also evidence that C.C.

and Woods made plans for a future together, and that C.C. told Woods daily that she

loved him. She testified that during this period, she never told Woods that she did not

want to have sex with him. This evidence is sufficient to support a finding that, as to one

or more of the oral copulation counts, the oral copulation was not accomplished against



                                             19
C.C.'s will "by means of force, violence, duress, menace, or fear of immediate and

unlawful bodily injury on the victim or another person."

       We are not convinced that the failure to instruct on the lesser included offense

was, as the People maintain, harmless. Rather, given the state of the record, it appears

reasonably probable that the trial court's failure to instruct the jury on the lesser included

offense of nonforcible oral copulation of a minor affected the outcome of the trial on the

counts involving forcible oral copulation and forcible oral copulation in concert. (See

People v. Breverman, supra, 19 Cal.4th at p. 149, citing People v. Watson, supra, 46

Cal.2d at p. 836.) We therefore reverse Woods convictions on counts 3, 4, 5, 6, 8, 10, 11,

13, and 15.

                b.          Unlawful intercourse with a minor as a lesser included offense of
                            forcible rape

       Woods contends that a violation of section 261.5, subdivision (a), unlawful sexual

intercourse with a minor, is a lesser included offense of the six counts of forcible rape of

which he was convicted (counts 1, 2, 7, 9, 12, 14), and that the trial court committed

reversible error in failing to instruct the jury as to this lesser offense.

       Forcible rape as alleged against Woods in this case is set forth in section 261,

subdivision (a)(2), which provides:

           "(a) Rape is an act of sexual intercourse accomplished with a person not the spouse of the
           perpetrator, under any of the following circumstances:

           "[¶] . . . [¶]

           "(2) Where it is accomplished against a person's will by means of force, violence, duress,
           menace, or fear of immediate and unlawful bodily injury on the person or another."


                                                      20
       Section 261.5, which Woods maintains is a lesser included offense of the offense

of forcible rape alleged against him, provides in relevant part:

          "(a) Unlawful sexual intercourse is an act of sexual intercourse accomplished with a
          person who is not the spouse of the perpetrator, if the person is a minor. For the purposes
          of this section, a 'minor' is a person under the age of 18 years and an 'adult' is a person
          who is at least 18 years of age.

          "(b) Any person who engages in an act of unlawful sexual intercourse with a minor who
          is not more than three years older or three years younger than the perpetrator, is guilty of
          a misdemeanor.

          "(c) Any person who engages in an act of unlawful sexual intercourse with a minor who
          is more than three years younger than the perpetrator is guilty of either a misdemeanor or
          a felony, and shall be punished by imprisonment in a county jail not exceeding one year,
          or by imprisonment pursuant to subdivision (h) of Section 1170.

          "(d) Any person 21 years of age or older who engages in an act of unlawful sexual
          intercourse with a minor who is under 16 years of age is guilty of either a misdemeanor
          or a felony, and shall be punished by imprisonment in a county jail not exceeding one
          year, or by imprisonment pursuant to subdivision (h) of Section 1170 for two, three, or
          four years."

       As an initial matter, the People contend that Woods is incorrect in asserting that

section 261.5, subdivision (a) is a lesser included offense of forcible rape because section

261.5, subdivision (a) is not itself a substantive offense. The People maintain that

subdivision (a) provides definitions with respect to the unlawful conduct that is

proscribed in section 261.5 generally, but that it does not itself delineate the elements of a

crime and/or prescribe punishment. We agree with the People that when considered in

relation to the other provisions of section 261.5, subdivision (a) provides the definition of

"unlawful sexual intercourse" (i.e., "an act of sexual intercourse accomplished with a

person who is not the spouse of the perpetrator, if the person is a minor"), as well as the

definition of a "minor" (i.e., "a person under the age of 18 years") and an "adult" (i.e., "a

person who is at least 18 years of age") for purposes of understanding the other

                                                      21
subdivisions of the section. We therefore agree with the People that subdivision (a) of

section 261.5 does not by itself set forth a substantive offense. Rather, subdivision (a)

acts in concert with the other subdivisions (subds. (b), (c), or (d)), to set out a substantive

offense. (See CALCRIM No. 1070 [instruction for unlawful sexual intercourse when

defendant was 21 or older and victim was under 16 years old at the time of the

intercourse, pursuant to § 261.5, subds. (a) & (d)]; CALCRIM No. 1071 [instruction for

unlawful sexual intercourse when defendant is more than three years older than the

victim and the victim was under the age of 18 at the time of the intercourse, pursuant to

§ 261.5, subds. (a) & (c)]; and CALCRIM No. 1072 [instruction for unlawful sexual

intercourse when defendant is not more than three years older or younger than the victim

and the victim was under the age of 18 at the time of the intercourse, pursuant to § 261.5,

subds. (a) & (b)].)

       As a result, proving the offense of unlawful intercourse with a minor requires

evidence that (1) the defendant had sexual intercourse with another person, (2) the

defendant and the other person were not married to each other at the time of the

intercourse, and (3) at the time of the intercourse, one of the following factual scenarios

existed: (a) the defendant was 21 years of age or older and the victim was under the age

of 16 (for a violation of subd. (d)); (b) the defendant was more than three years older than

the victim and the victim was under the age of 18 (for a violation of subd. (c)); or (c) the

defendant was not more than three years older or younger than the victim and the victim



                                              22
was under the age of 18 (for a violation of subd. (b)). (See CALCRIM Nos. 1070, 1071,

and 1072.)

       On the other hand, to prove that a defendant committed forcible rape requires

evidence that (1) the defendant had sexual intercourse with a woman, (2) he and the

woman were not married to each other at the time of the intercourse, (3) the woman did

not consent to the intercourse, and (4) the defendant accomplished the intercourse by

force, violence, duress, menace or fear of immediate and unlawful bodily injury. (See

CALCRIM No. 1000.)

       Woods concedes that " 'unlawful sexual intercourse under section 261.5 is not, as a

matter of statutory definition, an offense necessarily included within the offense of rape

proscribed by section 261.' " (People v. Chapman (1975) 47 Cal.App.3d 597, 603.) He

asserts, however, that unlawful sexual intercourse with a minor is a lesser included

offense of forcible rape under the accusatory pleading test in this case because the

information "specifically alleged within each of the forcible oral copulation charges that

the victim was younger than 18 years old," and alleged that "all of the acts of forcible

rape . . . were committed . . . while C.C. was a minor."

       After careful consideration, we disagree. We are not convinced that even under

the accusatory pleading test any of the three potential offenses of unlawful sexual

intercourse with a minor (§ 261.5, subds. (a) & (b); (a) & (c); and (a) & (d)) could be a

lesser included offense of the charged offense of forcible rape (§ 261, subd. (a)(2)), in

this case.

                                             23
         Each forcible rape charge against Woods contained the following language: "On

or about . . . , GREY DAVID WOODS did unlawfully have and accomplish an act of

sexual intercourse with C.C., a person not his/her spouse, against said person's will, by

means of force, violence, duress, menace and fear of immediate and unlawful bodily

injury on said person and another, in violation of PENAL CODE SECTION 261(a)(2); to

wit: . . . ."   Each count also contained specific information about a location or event to

distinguish the various counts from each other. The allegation as to the substantive

offense of forcible rape in each of these counts does not include the allegation that C.C.

was a minor, her age or Woods's age at the time of the intercourse.

         In arguing that unlawful sexual intercourse with a minor is a lesser included

offense of the forcible rape charges, Woods looks to the separate allegations, also

included as to each forcible rape count, alleging that Woods is eligible to be sentenced

under the One Strike law, an alternative sentencing scheme,14 for the necessary factual

allegation that C.C. was a minor at the time of the intercourse. Indeed, with respect to

each of the six counts of forcible rape against Woods, the information additionally

contains the following language:


14      The One Strike law has been referred to as an "alternative sentencing scheme"
and/or a "penalty provision" (see, e.g., People v. Carbajal (2013) 56 Cal.4th 521, 534
[" 'the One Strike law is an alternative sentencing scheme' "]; People v. Rodriguez (2012)
207 Cal.App.4th 204, 211 ["the One Strike law . . . 'sets forth an alternative and harsher
sentencing scheme for certain enumerated sex crimes' "]); People v. Jones (1997) 58
Cal.App.4th 693, 709 and fn. 9 ["We agree the one strike law is a 'penalty provision' "
"even better, an 'alternative sentencing scheme.' "].)

                                               24
          "And it is further alleged that in the commission and attempted commission of the above
          offense that the victim was a minor over fourteen years of age, and that said defendant
          has been convicted in the present case and cases of committing an offense specified in
          subdivision (c) against the same victim on multiple separate occasions, pursuant to
          People v. Valdez (2011) 193 Cal.App.4th 1515, within the meaning of PENAL CODE
          SECTION 667.61 (m)."15

       Whether an allegation made pursuant to the One Strike sentencing scheme may be

considered together with the substantive charge to allege a single offense for purposes of

the accusatory pleading test, as Woods suggests, is an open question. The parties agree

that courts are not to look to enhancement allegations for purposes of determining

whether an accusatory pleading describes the offense in such a way that if the offense is

committed as specified, then a lesser offense is necessarily also committed. (See People

v. Wolcott (1983) 34 Cal.3d 92, 96, 100-101 (Wolcott); see also People v. Bragg (2008)

161 Cal.App.4th 1385, 1398.) The parties disagree, however, as to how an allegation

made pursuant to the One Strike law is to be treated for purposes of applying the

accusatory pleading test, i.e., whether it should be considered as part of the accusatory

pleading as a whole, as Woods urges, or rather, whether it should be regarded as akin to

an "enhancement" allegation, and therefore, not be considered for purposes of

determining lesser included offenses, as the People urge.


15      It is not immediately apparent from the pleading to what it is referring when it
discusses "committing an offense specified in subdivision (c)." This may be a reference
to subdivision (c) of section 667.61, which establishes that section 667.61 applies to a
number of offenses, including "Rape, in violation of paragraph (2) or (6) of subdivision
(a) of Section 261." (§ 667.61, subd. (c)(1).) Count 1 also included an additional One
Strike allegation as follows:
          "And it is further alleged that in the commission of the above offense that the victim was
          a minor over fourteen years of age, and that said defendant personally inflicted great
          bodily injury, TO WIT: PREGNANCY, on the victim and another person in violation of
          Section 12022.7, within the meaning of PENAL CODE SECTION 667.61(l).
                                                      25
       We conclude that the People's argument is more persuasive. Although technically

not an "enhancement" allegation, an allegation of specific facts that would place the

defendant on notice that he is subject to the alternative sentencing scheme of the One

Strike law is similar to an "enhancement" in ways that are significant for purposes of

making determinations as to whether an instruction on a lesser included offense is

required.

       In Wolcott, supra, 34 Cal.3d at page 101, the Supreme Court explained its reasons

for adopting the rule that enhancement allegations should not be considered to be part of

the "accusatory pleading" for purposes of defining lesser included offenses. First, a

majority of appellate courts had relied on language that the enhancement provision at

issue in Wolcott " 'does not prescribe a new offense but merely additional punishment for

an offense in which a firearm is used' " in reaching the conclusion that an " 'allegation of

firearm use for purposes of Penal Code section 12022.5 is not to be considered in

determining whether the accusation encompasses a lesser included offense.' " The

Wolcott court questioned two appellate decisions that had reached a different conclusion

concerning the use of the personal use enhancement allegations for determining lesser

included offenses, suggesting that a defendant might not actually be on notice that he

should "nevertheless controvert a 'use' enhancement to protect against conviction for a

lesser offense of assault with a deadly weapon" where that defendant has a "good defense

to a robbery charge." (Wolcott, supra, at p. 101.) The Wolcott court also concluded that

the use of enhancement allegations for purposes of determining lesser included offenses

                                             26
is unworkable in a practical sense, "even if California could constitutionally consider

enhancement allegations as part of the accusatory pleading for the purpose of defining

lesser included offenses." (Ibid.) The Wolcott court reasoned:

          "Not only is the weight of authority against [a rule allowing consideration of
          enhancement allegations as part of the accusatory pleading for the purpose of defining
          lesser included offenses], but the result would be to confuse the criminal trial. Present
          procedure contemplates that the trier of fact first determines whether the defendant is
          guilty of the charged offense or a lesser included offense, and only then decides the truth
          of any enhancements. (See CALJIC No. 17.19.) The sentencing judge then decides
          whether to use the fact found as an enhancement to impose the upper term of the
          sentence, or to enhance the sentence. (Cal. Rules of Court, rule 441.) This orderly, step-
          by-step procedure would become muddled if evidence of the enhancement must be
          considered in determining guilt of a lesser offense." (Wolcott, supra, at p. 101, italics
          added.)

       The Supreme Court has noted the similarity between the factual allegations

necessary for application of the One Strike law and the factual allegations necessary for

statutory sentencing enhancements. In People v. Anderson (2009) 47 Cal.4th 92, 102-103

(Anderson), the Supreme Court compared the operation of the One Strike law with the

operation of other "sentencing allegations" (such as the Three Strikes law and statutory

enhancements) as follows:

          "[The One Strike law (§ 667.61)] mandates an indeterminate sentence of 15 or 25 years
          to life in prison when the jury has convicted the defendant of a specified felony sex crime
          (§ 667.61 [listing applicable crimes]) and has also found certain factual allegations to be
          true (§ 667.61, subds. (d), (e)). Most of these factual allegations concern the manner in
          which the underlying substantive offense was committed. As with the Three Strikes law
          and statutory sentencing enhancements, the jury must first decide whether all the
          elements of the underlying substantive crime have been proven. If not, it returns an
          acquittal and the case is over. If the jury convicts on the substantive crime, it then
          independently determines whether the factual allegations that would bring the defendant
          under the One Strike sentencing scheme have also been proven. Because the sentencing
          allegations have the potential to increase punishment, the defendant has a Sixth
          Amendment right to have their truth decided by a jury. (Apprendi v. New Jersey (2000)
          530 U.S. 466, 490.)" (Anderson, supra, 47 Cal.4th at pp. 102-103, italics added.)

       In this case, the One Strike allegations against Woods operated in the same way

that the enhancement allegation operated in Wolcott, as a review of the verdict forms
                                           27
confirms. The verdict forms demonstrate that the jury first determined Woods's guilt on

the substantive offense of forcible rape, which did not involve any determination as to the

victim's age. Only after the jury determined that Woods was guilty as to each count of

forcible rape did the jury then answer the separate question whether it found "that in the

commission of the above offense the victim was a minor over fourteen years of age or

older and that said defendant has been convicted in the present case of committing a

separate violation of PC 261(a)(2), 288a(c)(2)(A), or PC 288a(d)(1) against the same

victim (C.C.) on a separate occasion, within the meaning of PC 667.61 (m)." Thus, the

jury did not consider the evidence as to the One Strike allegation in determining Woods's

guilt as to the forcible rape charge; as in Wolcott, the "orderly, step-by-step procedure"

would have "become muddled" if the jury had been required to consider evidence of the

One Strike law allegation "in determining guilt of a lesser offense." (Wolcott, supra, 34

Cal.3d at p. 101.)

       Because of the similarity between statutory sentencing enhancement allegations

and One Strike law allegations, we conclude that the rule announced in Wolcott regarding

enhancement allegations should also apply to One Strike law allegations. Under this rule,

we do not consider the sentencing allegations for purposes of determining whether the

accusatory pleading describes a greater offense in such a way that all the elements of a

lesser offense are included.

       Absent the One Strike law allegations set forth with respect to each forcible rape

count alleged in the information, the forcible rape counts do not encompass the lesser

                                             28
offense of unlawful intercourse with a minor.16 We therefore conclude that the trial

court did not err in failing to instruct the jury regarding the offense of unlawful

intercourse with a minor with respect to the charged counts of forcible rape.

B.     The trial court did not err in instructing the jury on the definition of consent
       consistent with section 261.6

       Woods contends that his convictions on counts 1 through 15 should be reversed

because the trial court prejudicially erred in instructing the jury on the definition of

"consent."17 Specifically, he maintains that the definition that the court provided to the

jury was "improperly argumentative, it [was] misleading, it eased the prosecution's

burden of proof, it undermined appellant's defense, and it came dangerously close to

directing a verdict in favor of the prosecution."

       During discussions among the attorneys and the court regarding jury instructions,

the prosecutor requested that the court provide the jury with the definition of consent as

set forth in section 261.6.18 The prosecutor argued, "I do not believe consent is



16     The three iterations of the offense of unlawful intercourse with a minor include not
only the element of the victim's minority, but also require that the People prove the age of
the perpetrator (either on its own or relative to the age of the victim) at the time of the
intercourse. The information did not allege Woods's age, or his age relative to C.C.'s,
with respect to the forcible rape counts.

17    Because we are reversing Woods's convictions on counts 3, 4, 5, 6, 8, 10, 11, 13,
and 15, we consider this argument only with respect to counts 1, 2, 7, 9, 12, and 14.

18     Section 261.6 provides:
           "In prosecutions under Section 261, 262, 286, 288a, or 289, in which consent is at issue,
           'consent' shall be defined to mean positive cooperation in act or attitude pursuant to an
                                                      29
adequately defined for this case." Defense counsel did not object to the court giving the

definition of consent set forth in section 261.1, but to the contrary, stated "It's an accurate

statement of the law." The court granted the prosecutor's request.

       The trial court subsequently instructed the jury on consent as follows: "Consent

means positive cooperation in an act or attitude pursuant to an exercise of free will. The

person must act freely and voluntarily and have knowledge of the nature of the act or

transaction involved. A current or previous dating or marital relationship shall not be

sufficient to constitute consent where consent is at issue."

       The jury was also instructed that the burden is on the prosecution to prove the lack

of consent for each count of forcible rape and forcible oral copulation with a minor. With

respect to those offenses, specifically, the jury was again told, "In order to consent, a

person must act freely and voluntarily and know the nature of the act."

       The parties disagree as to whether Woods's failure to object to the instruction

amounts to forfeiture of this argument. The People assert that Woods has forfeited the

argument, and Woods contends that because the issue of consent was a principle of law

necessary to the jury's understanding of the case, the court was required to provide a

correct instruction even in the absence of an objection by defense counsel. In any event,

           exercise of free will. The person must act freely and voluntarily and have knowledge of
           the nature of the act or transaction involved.

           "A current or previous dating or marital relationship shall not be sufficient to constitute
           consent where consent is at issue in a prosecution under Section 261, 262, 286, 288a, or
           289.

           "Nothing in this section shall affect the admissibility of evidence or the burden of proof
           on the issue of consent."
                                                       30
however, both parties agree that Woods may raise this instructional claim in the context

of a claim of ineffective assistance of counsel, and that on that basis, we may review the

merits of Woods's contention. (See People v. Williams (1998) 61 Cal.App.4th 649, 657

[addressing the merits of a claim, despite its forfeiture, to preclude a claim of ineffective

assistance of counsel].) We conclude that Woods's claim is without merit.

       Woods contends that "[t]he problem with the special instruction given appellant's

jury is that it is improperly argumentative, it is misleading, it eased the prosecution's

burden of proof, it undermined appellant's defense, and it came dangerously close to

directing a verdict in favor of the prosecution by providing that a current or previous

dating relationship 'shall not be sufficient to constitute consent.' " He argues that the

standard modifications provided in CALCRIM Nos. 1000 and 1015 are "appropriately

neutral, and they appropriately direct the jury to consider the evidence of a prior dating

relationship in determining whether there was consent, while also advising the jury that

evidence of such a prior relationship is not by itself enough to constitute consent."

       The relevant portion of the standard instruction that may be given when warranted

as provided in CALCRIM No. 1000 regarding forcible rape is as follows: "Evidence that

the defendant and the woman (dated/were married/had been married) is not enough by

itself to constitute consent." Similarly, the relevant portion of the standard instruction

that may be given when warranted as provided in CALCRIM No. 1015 regarding forcible

oral copulation is as follows: "Evidence that the defendant and the person (dated/were

married/had been married) is not enough by itself to constitute consent." Woods focuses

                                              31
on the "is not enough by itself" language of these standard instructions to suggest that the

instruction that the court provided in this case, which tracks the language of section 261.6

and does not include "is not enough by itself" language, was improper. He also

distinguishes the instruction given in this case from the instruction approved in People v.

Gonzalez (1995) 33 Cal.App.4th 1440, 1443 (Gonzalez), on which the People rely.

       In Gonzalez, the trial court instructed the jury with a modified version of former

CALJIC No. 1.23.1, which was based on section 261.6, as follows: " 'In prosecutions

under Penal Code section 288a, the word 'consent' means positive cooperation in an act or

attitude as an exercise of free will. The person must act freely and voluntarily and must

have knowledge of the nature of the act or transaction involved. [¶] The fact, if

established, that the defendant and Diane [A.] engaged in a current or previous dating

relationship does not by itself constitute consent.' " (Gonzalez, supra, 33 Cal.App.4th at

p. 1443, fn. 1.) The Gonzalez court rejected the defendant's contention that the trial court

had erred in giving CALJIC No. 1.23.1, concluding that the instruction "did not shift the

burden of proof on consent to the defense or create a presumption of lack of consent,"

and stating that "[t]he instruction merely defined consent." (Gonzalez, supra, at p. 1444.)

Woods challenges the People's reliance on Gonzalez, arguing that Gonzalez is not on

point because "there is a significant difference between instructing a jury that evidence of

a dating relationship 'is not by itself sufficient to constitute consent,' and instructing a jury

such evidence 'shall not be sufficient.' "



                                               32
       We are unconvinced that the differences between the instruction provided by the

trial court in this case and the standard modifications provided for in CALCRIM Nos.

1000 and 1015 and/or the instruction provided in Gonzalez, supra, 33 Cal.App.4th at

page 1443, footnote 1, are significant in the manner that Woods contends. The trial court

instructed the jury with a proper statement of the law, which is that "[a] current or

previous dating or marital relationship shall not be sufficient to constitute consent where

consent is at issue." (§ 261.6.) The fact that the court instructed the jury that such

evidence "shall not be sufficient," without expressly adding "in and of itself," or without

stating "is not enough by itself," or "is not by itself sufficient," does not mean that the

court's instruction was argumentative or that it directed a verdict in favor of the

prosecution, nor does it mean that the instruction as given lessened the prosecution's

burden to prove a lack of consent. Implicit in the phrase "shall not be sufficient" is the

concept that evidence of the existence of a current or previous dating relationship, alone,

is not enough to demonstrate that the victim gave consent. The instruction did not tell the

jury that evidence of a dating relationship was irrelevant to the question of consent, or

that the jury was not to consider such evidence. Rather, the instruction simply informed

the jury that evidence of a dating relationship was not enough to establish consent. This

is a correct statement of the law. We conclude that the trial court did not err in

instructing the jury as to the law regarding consent in this manner.




                                              33
C.     There is substantial evidence to support the jury's great bodily injury finding

       Woods challenges the sufficiency of the evidence to support the jury's "true"

findings on the great bodily injury enhancement allegations related to counts 1 and 16.

We conclude that there was sufficient evidence to support these findings.

       "In reviewing a sufficiency of evidence claim, the reviewing court's role is a

limited one. ' "The proper test for determining a claim of insufficiency of evidence in a

criminal case is whether, on the entire record, a rational trier of fact could find the

defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the

evidence in the light most favorable to the People and must presume in support of the

judgment the existence of every fact the trier could reasonably deduce from the evidence.

[Citation.]" ' [Citations.] [¶] ' "Although we must ensure the evidence is reasonable,

credible, and of solid value, nonetheless 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 on which

that determination depends. [Citation.] Thus, if the verdict is supported by substantial

evidence, we must accord due deference to the trier of fact and not substitute our

evaluation of a witness's credibility for that of the fact finder." ' " (People v. Smith (2005)

37 Cal.4th 733, 738-739.)

       The determination whether a particular victim has suffered physical harm that

amounts to "great bodily injury" is typically a question of fact to be resolved by the jury.

(People v. Cross (2008) 45 Cal.4th 58, 63 (Cross).) Great bodily injury is defined in

section 12022.7, subdivision (f), as "significant or substantial physical injury." However,

                                              34
"the injury need not be so grave as to cause the victim 'permanent,' 'prolonged,' or

'protracted' bodily damage." (Cross, supra, at p. 64) "Proof that a victim's bodily injury

is 'great' . . . is commonly established by evidence of the severity of the victim's physical

injury, the resulting pain, or the medical care required to treat or repair the injury." (Id. at

p. 66.)

          In Cross, supra, 45 Cal.4th at pages 65-66, the Supreme Court rejected the idea

that a pregnancy without medical complications that resulted from a defendant's

unlawful, though not forcible, intercourse with a minor could never be sufficient to

support a finding of great bodily injury. The Cross court concluded that evidence that a

13-year-old who had never been pregnant before carried a fetus for 22 weeks before

undergoing an abortion was sufficient to support the jury's great bodily injury finding.

(Id. at p. 66.)

          Similarly, the appellate court in People v. Meneses (2011) 193 Cal.App.4th 1087

affirmed a jury's great bodily injury finding on the ground that the victim was

impregnated at age 12, and delivered a baby at age 13. (Id. at p. 1091.) The court

considered evidence of the length of her labor, and the fact that the victim had stated that

the delivery "hurt 'a lot,' " in concluding that the evidence was sufficient to support the

finding. (Ibid.) The Meneses court rejected the defendant's contention that the lack of

evidence of the size of the fetus or the fact that the victim did not immediately realize she

was pregnant demonstrated that there was insufficient evidence of great bodily injury as a

result of the pregnancy. (Ibid.)

                                              35
       In this case, the fact that C.C. was 15 years old, not 13 or 12 years old like the

victims in Cross and Meneses, is not determinative. Rather, it was one fact, among

many, for the jury to weigh. C.C.'s minority, and the fact that she had never been

pregnant before and underwent a second-trimester abortion,19 supports the jury's

determination that her pregnancy constituted great bodily injury.

       Woods asks this court to reweigh the evidence and reach a result different from the

result reached by the jury in this case. We decline to do so. The Supreme Court in Cross

very clearly concluded that impregnation alone may be sufficient to support a finding of

great bodily injury. Although the Cross court declined to create a bright line rule that a

pregnancy will always constitute great bodily injury, it is clear that a jury may, in a

particular case, decide that the defendant inflicted great bodily injury on a victim based

on evidence of a pregnancy caused by the defendant's unlawful intercourse with the

victim. We conclude that substantial evidence supports the jury's finding that Woods

inflicted great bodily injury on 15-year-old C.C. by causing her to become pregnant.

D.     The trial court did not err in giving the jury a modified great bodily injury
       instruction

       Woods further contends that the trial court prejudicially erred in instructing the

jury with respect to the meaning of "great bodily injury." Woods asserts that the trial




19     C.C.'s abortion procedure took two days to perform, required local anesthesia, and
involved "conscious sedation" that was required because the procedure would have
otherwise been "extremely painful."
                                           36
court instructed the jury with a potentially misleading, argumentative and improper

pinpoint instruction.

         At the prosecutor's request, and over a defense objection, the trial court instructed

the jury with respect to great bodily injury as follows:

            "If you find the defendant guilty of the crimes charged in Counts 1 and 16, you have to
            decide whether or not the People have proven the additional allegation that the defendant
            personally inflicted great bodily injury on C.C. during the commission of the crime. You
            must decide whether the People have proved this allegation for each crime, and return a
            separate finding for each crime.

            "Great bodily injury again means significant or substantial physical injury. It is injury
            that is greater than minor or moderate harm.

            "Committing the crime of forcible rape is not by itself the infliction of great bodily
            injury. Depending on your findings about the evidence of this case, causing a woman to
            become pregnant can be the infliction of great bodily injury.

            "The People have the burden of proving each allegation beyond a reasonable doubt. If
            they fail to meet that burden, you must find that the allegation has not been proven."
            (Italics added.)

         Woods takes issue with the italicized portion of the instruction. Woods contends

that this portion of the instruction pinpointed particular evidence, as opposed to the

prosecution's theory of the case, and "invited the jury to draw an inference of great bodily

injury in favor of the prosecution based on the specific evidence of the pregnancy in this

case."

         "A trial court must instruct on the law applicable to the facts of the case." (People

v. Mincey (1992) 2 Cal.4th 408, 437.) "[L]egally correct and factually warranted pinpoint

instructions designed to elaborate and clarify other instructions should be delivered upon

request." (People v. Hughes (2002) 27 Cal.4th 287, 362, italics omitted.) However, a

court must avoid giving an argumentative instruction, i.e., "an instruction 'of such a


                                                        37
character as to invite the jury to draw inferences favorable to one of the parties from

specified items of evidence.' " (Mincey, supra, at p. 437; see also People v. Wright

(1988) 45 Cal.3d 1126, 1135 [an argumentative instruction "invite[s] the jury to draw

inferences favorable to [a party] from specified items of evidence on a disputed question

of fact, and therefore properly belongs . . . in the arguments of counsel to the jury"].)

       We disagree with Woods's contention that the trial court erred in providing the

jury the instruction regarding pregnancy and great bodily injury. The instruction is a

correct statement of the law, since it is clear that a pregnancy can provide the basis for a

great bodily injury finding. (See Cross, supra, 45 Cal.4th at pp. 67-68.) Further, this was

not an improper or argumentative pinpoint instruction. The instruction did not imply that

the jury should draw any particular conclusion. Rather, the instruction merely informed

the jury that the law permits a finding of great bodily injury on the basis of a pregnancy.

The instruction did not suggest to the jury that it would have to find that Woods inflicted

great bodily injury on C.C. if it found that he had caused her to become pregnant. Rather,

it told the jury that it could make such a finding if it concluded that the pregnancy in this

case constituted a "significant or substantial physical injury."

       Importantly, there is no meaningful difference between the instruction given in

this case and the instruction given by the trial court in Cross, supra, 45 Cal.4th at page

66. Here, the court instructed the jury that a pregnancy "can" constitute the infliction of

great bodily injury. In Cross, the court instructed the jury that a pregnancy or an abortion

"may constitute great bodily injury." (Ibid.) Given the nature of the defendant's claims

                                             38
in that case, the Supreme Court considered whether the trial court erred in instructing the

jury that an abortion "may constitute great bodily injury." (Id. at pp. 66-69.) The Cross

court concluded that the abortion aspect of the instruction was technically a correct

statement of the law, but further concluded that it was inapplicable to the case because

there was no allegation that the defendant had himself performed the abortion. (Ibid.)

Although the defendant in Cross apparently did not argue that the trial court's instruction

that a pregnancy "may constitute great bodily injury" was an improper pinpoint

instruction, it is worthwhile to note that the Cross court nevertheless appears to have

generally accepted that the portion of the trial court's instruction informing the jury that a

pregnancy "may constitute great bodily injury" was a correct statement of the law. (Ibid.)

The Supreme Court's analysis suggests that, apart from the instruction's reference to an

abortion, which was not relevant under the facts of that case, the instruction informing the

jury that a pregnancy may constitute great bodily injury was otherwise accurate and

appropriate.

       In this case, as in Cross, a jury would have understood that it could find that a

pregnancy constituted great bodily injury, but that it need not do so. The juries in both

this case and in Cross were free to consider the testimony and the other evidence, and to

reach a reasoned conclusion based on that evidence. It is not reasonable to conclude that

the instruction that the trial court gave suggested to the jury that it must, or even should,

find that Woods inflicted great bodily injury if it found that he caused C.C. to become



                                              39
pregnant. We conclude that the trial court's modification of the great bodily injury

instruction was not error.

E.     There is no cumulative error

       Woods contends that the cumulative effect of the errors that he alleges requires

reversal. "Under the 'cumulative error' doctrine, errors that are individually harmless may

nevertheless have a cumulative effect that is prejudicial." (In re Avena (1996) 12 Cal.4th

694, 772, fn. 32.) We have concluded that only one of Woods's asserted claims of error

has merit, and we are reversing the convictions that are implicated as to that claim of

error. We conclude that his other claims of error are without merit. As a result, there are

no additional errors as to which the cumulative effect would require reversal of any other

counts.

                                            IV.

                                      DISPOSITION

       The judgment is reversed. Woods's convictions on counts 3, 4, 5, 6, 8, 10, 11, 13,

and 15 are reversed, and his sentences as to these counts are vacated. Woods's remaining

convictions are affirmed.

       The People may retry Woods on the charges of forcible oral copulation of a minor

14 or older and forcible oral copulation of a minor 14 or older in concert within the

applicable time period. In the event that Woods is retried on these charges and convicted

on some or all of the charges, the court shall resentence Woods with respect to all of the

counts on which he stands convicted, including the counts affirmed in this opinion.

                                            40
       In the event that the People elect not to retry Woods on the reversed counts, the

trial court shall resentence Woods with respect to the counts that we have affirmed in this

opinion.

       The trial court may conduct any necessary ancillary proceedings consistent with

this opinion.

                                                                               AARON, J.
WE CONCUR:


McCONNELL, P. J.


McDONALD, J.




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