Filed 8/26/20 P. v. Badio CA2/8
   NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                         SECOND APPELLATE DISTRICT

                                      DIVISION EIGHT

THE PEOPLE,                                                    B298367

         Plaintiff and Respondent,                             (Los Angeles County
                                                               Super. Ct. No. LA086982)
         v.

ALEXANDER BADIO,

         Defendant and Appellant.



      APPEAL from a judgment of the Superior Court of Los
Angeles County, Martin L. Herscovitz, Judge. Affirmed in part
and remanded with direction.
      Jean Ballantine, under appointment by the Court of
Appeal, for Defendant and Appellant.
      Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Steven D. Matthews and Gary A. Lieberman,
Deputy Attorneys General, for Plaintiff and Respondent.
                    _______________________
       Appellant Alexander Badio was convicted of multiple
crimes after sexually assaulting two women. On appeal, he
contends 1) the evidence was insufficient to support his
conviction on one count of sexual penetration by a foreign object
(Pen. Code,1 § 289, subd. (a)(1)(A)); 2) the court should have
instructed the jury on two sexual battery offenses (§ 243.4, subds.
(a) & (e) (1)) as lesser included offenses of sexual penetration by a
foreign object; 3) the trial court erred by instructing the jury with
CALCRIM No. 1191B; and 4) his indeterminate sentence of 30
years to life constitutes cruel and unusual punishment in
violation of the Eighth Amendment to the United States
Constitution and the California Constitution. The Attorney
General urges the court to reject Badio’s arguments but argues
the matter must be remanded for resentencing because the trial
court erroneously sentenced Badio under the “One Strike” law,
section 667.61, subdivisions (b) and (e)(4), for an offense that is
not eligible for sentencing under that statute. We remand for
resentencing but otherwise affirm.

      FACTUAL AND PROCEDURAL BACKGROUND

      On two separate occasions in early 2017, Badio approached
a vulnerable woman and offered her assistance, then sexually
assaulted her. With respect to M.A., Badio was charged with
sexual penetration by a foreign object (count 1); rape of an
unconscious person (§ 261, subd. (a)(4)) (count 2); and assault
with intent to commit a felony (§ 220, subd. (a)(1)) (count 3). As
to D.O., Badio was charged with sexual penetration by a foreign

1    Unless otherwise indicated, all further references are to the
Penal Code.




                                  2
object (count 5); sexual battery by restraint (§ 243.4, subd. (a))
(count 6); false imprisonment by violence (§ 236) (count 7); rape
(§ 261, subd. (a)(2)) (count 8); attempted sodomy by use of force
(§§ 664/286, subd. (c)(2)(A)) (count 9); and dissuading a witness
from reporting a crime (§ 136.1, subd. (b)(1)) (count 10). Badio
was convicted by a jury of all counts except count 9 (attempted
sodomy by use of force).

I.    Prosecution’s Case-in-Chief
       A.    D.O.
       D.O. testified that in February 2017, she was an 18-year-
old student staying in Los Angeles without family or close friends
nearby. Badio approached her while she was waiting for her bus
near the North Hollywood train station. He said he was a
personal trainer and promised to give her a membership to his
gym so that she could work out with him.
       D.O. and Badio scheduled a workout for February 24, 2017.
That night, he picked her up at a convenience store. She believed
they were going to go to a gym. He drove around for
approximately one hour, then parked the car and told her that he
would give her a massage before their workout. D.O. did not
agree to a massage. Badio pulled out massage oil or lotion and
began touching D.O.’s breasts and vagina underneath her
clothing. He kissed her, but she did not kiss him back. Badio
inserted his fingers into her vagina, causing her pain. D.O. told
him to stop several times before he stopped. She tried to get out
of the car, but the doors were locked and Badio told her it was not
safe outside.




                                 3
       Badio drove for another 30 minutes. More than once D.O.
tried to get out of the car when they stopped at a red light, but
Badio grabbed her arm and prevented her from leaving. It was
late at night when Badio parked the car and angrily told her to
get out of the car. D.O. was afraid, but she did not try to run
because she was unfamiliar with the area.
       Badio took D.O. into a house. She thought they were going
to pass through the house and then go to the gym. Badio brought
her into a bedroom, took her phone, dragged her onto a bed, and
began touching her. He held her down on the bed with one arm
and inserted the fingers of his other hand into her vagina. D.O.
was crying and telling him no, but he did not stop.
       Badio undressed D.O. and himself. He yelled at her and
called her obscene names. He touched her all over her body,
including her breasts, buttocks, and vagina. He placed his erect
penis in D.O.’s vagina and thrust his body against hers while
holding her down with his legs and hands. Badio unsuccessfully
attempted to insert his penis into her anus, and then he
reinserted it in her vagina. D.O. continued to cry and to tell him
to stop, but he did not stop.
       Badio instructed D.O. to fellate him, pulled her face toward
his penis, and pulled her hair. D.O. turned her head away, but
he pulled her back. Badio tried twice more to place his penis in
her mouth but was unsuccessful. He inserted his fingers into
D.O.’s vagina a third time, then placed his penis inside her
vagina again. He held her down and painfully pushed his body
against hers. Next, Badio removed his penis from D.O.’s vagina
and briefly forced her to put her mouth on it. He inserted his
penis in D.O.’s vagina a fourth time, and he slapped her, hard, on
her back.




                                 4
       Badio forced D.O. to lie on the bed while he touched her.
He would not allow her to dress and claimed not to know where
her phone and purse were. D.O. told him she wanted to leave,
but Badio told her it was too late at night and held her tightly so
she could not leave the bed.
       At some point, D.O. dressed and tried to leave. Badio
blocked the door at first, but she was able to leave when he
stepped away from the door to prevent her from finding her purse
and phone. Badio followed D.O., called her names, told her not to
call the police, and threatened he would find her if she reported
him to the police. D.O. feared Badio would harm her.
       D.O. eventually reported the incident to the police and
underwent a limited sexual assault examination. The forensic
nurse examiner who examined her testified that D.O. had
redness, bruising, and abrasions in the genital area consistent
with repeated nonconsensual digital and penile penetration.
D.O. complained of tenderness, and the pelvic examination was
so painful for her that the examiner could not insert a speculum
to perform an internal examination.

       B.     M.A.
       M.A. testified that as of early 2017 she was a college
student without stable housing: she showered at a gym and slept
on the Red Line train, at a North Hollywood fast food restaurant,
or in the gym. She did her homework at the school library until
it closed for the night, at which time she studied at a coffee shop.
She had no money, and she carried her possessions in a rolling
suitcase.
       In February 2017 M.A. met Badio while she was on her
way to the coffee shop after the library closed. She accepted his
offer of a ride because she was encumbered by her suitcase.




                                 5
Badio also offered to buy M.A. a meal. M.A. thought Badio was
“okay at first.” He bought her coffee and told her about himself.
M.A. thought, “[T]his is okay. This is safe enough.” M.A. never
told anyone that she was homeless, but she told Badio that she
was “in between places” to live.
       Badio offered to let M.A. sleep in his car, and he drove them
to a park. She awoke around 4:00 a.m. to the feeling of Badio
touching her back. M.A. angrily demanded he drive her to the
coffee shop. Angered by M.A.’s reaction, Badio called her a
profane name. He drove her to the train station.
       A few weeks later, Badio saw M.A. on the train and invited
her to come home with him; she declined the offer.
       On the night of March 12, 2017, M.A. had a lot of
homework. She was headed to the coffee shop when Badio
approached her and suggested that she come to his house, “no
strings attached.” The offer appealed to M.A., because, she
explained, “I needed to do my homework. I needed a place to
sleep. I was hungry, and . . . I didn’t have the expectation he was
violent. Maybe rude, but not violent.” They collected her
belongings, purchased food, and walked to Badio’s home. There,
M.A. did her homework on Badio’s bed while he cooked.
       Later that night, after they ate, M.A. dozed off while doing
her homework. She awoke to find her clothing unfastened and
Badio over her, trying to push her legs open. M.A. testified that
he was “easing into my, you know, pelvis area. My legs were
open, and he didn’t have . . . really any clothes on. Him trying to,
like, push his self on me.” Badio tried to put his erect penis into
her vagina. M.A. testified, “[H]e pushed my legs open and I could
not close them.” Her movement was restricted when Badio held
her legs open.




                                 6
        M.A. testified that she recalled telling the police on the
night of the incident that Badio had digitally penetrated her, but
by the time of trial she could not “see it in [her] mind.” She had a
clear visual memory of Badio pushing her legs open and trying to
enter her vagina, and she remembered that Badio “tried to touch
[her] vagina with his hand.” M.A. could not remember if Badio
put his hand on her vagina before or after he attempted to insert
his penis, and she struggled to remember exactly what he did
with his hand: “I—I somewhat remember him trying to—grazing
at my—his hand against my thigh and my vagina and—but I
don’t completely remember. I have to be honest. Maybe because
I’m nervous, but I really don’t—.”
        M.A. demanded that Badio stop, and he complied after
approximately two minutes. Badio told M.A. in an aggressive
tone to stop playing; he dressed and left the room. M.A. resumed
her homework.
        Later, Badio and his roommate came into the bedroom to go
to sleep. M.A. kept her clothes on and positioned her body so that
her head was near Badio’s feet to discourage him from any
further sexual advances. Badio became angry and instructed her
to lie in the other direction. M.A. felt uncomfortable but did not
leave because she did not want to be outside in the middle of the
night. She told Badio repeatedly that she did not want to have
sex with him. Each time, he responded that she should stop
playing.
        M.A. fell asleep. When she awoke, her dress was pulled up
and Badio’s penis was inside her vagina. M.A. pulled away,
dislodging his penis. Badio became aggressive, called her a
“bitch,” told her a number of times to “stop playing,” and pulled
her hair. He balled up his fist and moved toward her as though




                                 7
he was going to hit her. Badio’s roommate intervened and told
Badio not to force M.A. to have sex.
       Badio tossed his two cell phones on his bed, then carried
M.A.’s suitcase outside and left it at the side of the road. M.A.
took Badio’s phones so she could call the police and to prevent
Badio from calling someone to help him or hurt her. She left the
home and retrieved her suitcase.
       After he noticed his phones were missing, Badio chased
M.A. down the street. She tossed the phone she believed to be
more functional over a fence and returned the other phone to
him. M.A. asked people on the street to call the police. Badio
told them not to call the police and accused her of taking his
phone.
       M.A. reported the incident to the police and underwent a
sexual assault examination. The sexual assault nurse who
examined M.A., Sandra Wilkinson, testified at trial that during
the examination, M.A. said she had met a man on the street who
offered her a meal and a place to do homework. M.A. reported to
Wilkinson that the man touched her vagina, penetrated her
vagina with his hand, and placed his penis inside her vagina.
M.A. had no physical injuries and reported no pain. On cross-
examination, Wilkinson testified she had made a notation in her
report that M.A. said the second time she was digitally
penetrated, she said, “No, stop,” and then “Okay. Whatever.”
Wilkinson did not interpret this remark as consent but as
wanting “it over with.”




                                8
       Spouses Evelin and Ernesto Palomar testified at trial. In
the early morning on March 13, 2017, Evelin2 was sitting in her
minivan, waiting for her husband, when she saw Badio chase a
screaming M.A. down the street and put his hands on her
shoulders. Evelin called 911 when M.A. approached and said she
needed help. M.A. backed away from the car and onto the
sidewalk, looking frightened, when Badio approached. Evelin
could see Badio was agitated; as he came closer, he was peering
into the windows of parked cars and trying to open the doors.
Evelin became concerned for her own safety, afraid Badio might
try to open her minivan’s door.
       Ernesto testified he returned to the minivan from parking
another of his vehicles while M.A. was asking Evelin to call the
police. M.A. was wearing a coat and shoes; Badio was clad in
shorts and wearing no shoes or socks. It seemed to Ernesto that
Badio and M.A. had been in a confrontation. Badio was enraged
and Ernesto did not feel safe.
       M.A. told Ernesto Badio had “molested” her. Badio accused
her of stealing his phone and insisted that Ernesto not call the
police; Ernesto called the police anyway. Badio left. He returned
wearing pants and shoes.
       Los Angeles Police Department (LAPD) officer Neil Reyes
testified he and his partner were the first officers to arrive at the
scene. Reyes spoke with Badio’s roommate, Jason Wrighten.
Wrighten told Reyes that earlier that night, while he was sitting
outside the bedroom he shared with Badio, he heard M.A.
repeatedly saying “no” for an hour and a half. When Wrighten

2      As the Palomars share a surname, we refer to them by
their first names for clarity.




                                  9
later entered the bedroom, he saw Badio rubbing M.A.’s vaginal
area with his hand and heard M.A. say to Badio, “Stop. I’m not
fucking you.”
        According to Reyes, Wrighten reported Badio accused M.A.
of being a “tease” and told her, “I’m going to take that pussy,
bitch.” Badio turned off the bedroom lights, and Wrighten heard
M.A. again tell Badio to stop. “I was already inside you,” Badio
said to M.A. M.A. replied, “Yeah, but I don’t want you inside me,
so stop.”
        Sergeant Maricela Vargas testified she interviewed
Wrighten a few days after the incident. Wrighten told her he and
Badio had only been roommates for about a week when he
brought M.A. home. Badio asked Wrighten to leave him alone
with M.A. While Wrighten waited outside the bedroom, he sent
text messages to a friend in which he described the sounds he
heard coming from inside. At 10:59 p.m., Wrighten texted, “She’s
saying nothing but ‘stop.’ ” In a 11:13 p.m., text, he wrote that he
could hear Badio and M.A. arguing. At 11:18 p.m., Wrighten sent
a message saying, “Bitch is damn near yelling ‘Stop. Don’t touch
me.’ ” After midnight, at 12:25 a.m., Wrighten sent a text
message that Badio was “getting crazy back there. He continues
to touch on the girl.”
        Wrighten told Vargas that M.A. was not the first woman
Badio had brought home during the short time they had roomed
together. Earlier in the week, a woman who looked young,
homeless, and hungry came to the house. Wrighten heard the
woman say to Badio, “You promised me food,” and Badio said,
“It’ll come in time.” It appeared to Wrighten that the woman
realized she was not going to be fed until she had sex with Badio.
The two had sex and then Badio gave her food.




                                10
      Wrighten testified at trial unwillingly. He denied being
concerned about his safety but admitted “people on the street”
had discussed the case and the charges with him. Wrighten no
longer recalled much of what he had told Vargas. He testified on
the night of the incident he heard “a man trying to do his thing,
which is—it wasn’t anything out of character,” and a woman
saying “no” a number of times. Wrighten said the woman was
not screaming and did not sound terrified. He said he had been
“clowning” when he sent the text messages describing what he
had heard, and he exaggerated when he spoke with the police.
Wrighten testified M.A. had told him Badio put his penis inside
her and she had not wanted him to, but Wrighten thought M.A.
was just angry Badio placed her suitcase outside. Wrighten had
used crystal methamphetamine in the days before the incident.

II.   Defense Evidence
      Badio testified in his own defense. He acknowledged he
knew D.O., M.A., and the unnamed woman mentioned by
Wrighten; all three had come to his room in a sober living house.
Badio testified he was not a violent person, and although he did
get angry from time to time, he did not strike out physically. He
respected and appreciated women.
      According to Badio, D.O. approached him at the bus stop;
when he said he was a personal trainer, she asked him to train
her. Training D.O. was “a favor.” Their relationship, he testified,
“really wasn’t a professional relationship because she wasn’t
really paying me.” D.O. sent him a photograph of herself. Badio
thought this was flirtatious, and told D.O. so; but “[a]t another
point, I realized that because she had . . . said she wanted . . . a
tune up [through personal training], I realized she was sending




                                11
me a picture to show me how she looked, so I could see how she
looked.”
       After D.O. twice failed to meet him for scheduled sessions,
Badio told her he would not be able to train her. Several days
later, D.O. telephoned him late at night. She was frantic,
screamed that she was having problems with her mother, and
begged Badio to pick her up. He took a taxi to the place D.O.
wanted him to meet her, but she never appeared.
       Two days later an agitated and screaming D.O. called
Badio and again asked him to pick her up. He initially refused
but relented when she begged. When Badio met up with D.O.,
she suggested they go to Badio’s house. Despite the rules against
female overnight guests, Badio took D.O. home because she had
no friends to help her. It was a five- or 10-minute drive, and he
did not stop anywhere on the way. They had a flirtatious
conversation in the car; both were laughing. The windows of the
car were rolled down, and the doors were not locked.
       D.O. accompanied Badio inside voluntarily and exhibited
no fear or apprehension. D.O. wanted water but would not drink
tap water, so he decided to go the store to buy mineral water for
her. D.O. told Badio to purchase condoms as well.
       When Badio returned, he found D.O. had taken a shower
and was sitting on his bed wearing only her underpants. To
Badio, “[s]he looked like she was ready to have sex.” They kissed
and “romantically touched each other[’s] private parts.” D.O. told
him she was going to remove her underwear and he should put
on a condom.
       Badio testified their sexual encounter lasted 45 minutes to
an hour; his penis was inside her vagina for approximately
30 minutes. At first, they were side by side; he later moved on




                               12
top of her. He never pinned her down, held her down, or
restrained her movement. He did not have sex with her against
her will. Badio denied attempting to have anal sex with D.O.,
digitally penetrating her, or placing his penis in her mouth.
According to Badio, D.O. enjoyed their sexual activity; she never
said no, resisted, or acted upset.
       D.O. spent the night with Badio and left with him in the
morning. He dropped her off at the train station and never saw
her again.
       M.A. also approached Badio at the train station and flirted
with him. She accepted his offer of a ride, and they stopped for
coffee. He asked if she was homeless and she said she was
between homes. He refused M.A.’s request to go to his house to
do her homework but told her she could do her homework in his
car. Badio drove them to a park, and M.A. did her homework
while he dozed in his seat. They never touched each other or
spoke in a romantic manner.
       The next time Badio saw M.A., she greeted him at the bus
stop and asked for money for coffee. Badio gave her money and
offered that she could do her homework at his house in exchange
for a massage and sex. M.A. agreed.
       Badio paid Wrighten to leave so he and M.A. could have
privacy. Wrighten left the house for an hour or two, perhaps less.
       M.A. did her homework in Badio’s bedroom while Badio
cooked. They ate together in the bedroom, and when they
finished, he asked, “So, what’s up with the deal?” M.A. wanted
Badio to massage her. At first, Badio massaged her back,
buttocks, and legs; then she stopped him, rolled over, and
directed him to massage her leg. Badio began massaging her leg,
and she told him several times to move his hands higher.




                               13
Eventually at her request he was massaging her near her groin.
M.A. placed Badio’s left hand on her vagina, and he massaged,
caressed, and digitally penetrated her. M.A. did not say no. At
no time did he place his finger in M.A.’s vagina without her
consent.
       Badio had an erection and was about to remove his shorts
when M.A. told him not to because she did not want to have sex.
Badio reminded her of their agreement, but she refused to have
sex with him. Badio was irritated but stopped. According to
Badio, “When I stopped, I put my pants on and I put my shorts on
and I kept asking her, ‘Why [are] you not complying with the
deal?’ ” M.A. did not respond, and he became “really upset”
because they “had a deal and she wasn’t living up to the deal.”
Badio repeatedly asked her to leave, but she refused.
       After about 45 minutes of telling M.A. to leave, Badio told
Wrighten he could enter the bedroom and go to sleep because “the
deal wasn’t going to go down.” Badio said he had asked M.A. to
leave, but Wrighten thought he should keep her there so both he
and Badio could have sex with her.
       M.A. only left the house when Badio took her suitcase
outside to the street. Badio soon noticed his phone was missing,
and he ran after M.A. to get it back. They argued for 15 to 20
minutes, during which time M.A. gave him the older of his two
phones and denied having the other.
       At some point, Badio noticed Ernesto watching them and
tried to explain to Ernesto what was happening. Ernesto said he
was going to call the police, but Badio told him not to call the
police until he recovered his phone. Badio did not want the police
summoned because he did not want to call attention to himself.
Ernesto called the police.




                               14
       Badio was cold, so while waiting for the police he went back
to his house and put on sweat pants and shoes. He waved down
the police when they arrived so that he could tell them his phone
had been taken. He tried to explain the situation to the police,
but he was arrested.
       Cari Caruso, a certified sexual assault examiner who had
reviewed the reports of the examinations of M.A. and D.O.,
testified as an expert witness that Wilkinson, the examiner who
examined M.A., was incorrect when she testified that the light
used during an examination would only fluoresce when shining
upon bodily fluids; in fact it detects a wide variety of substances.
Caruso also testified that quotations in a report, such as the
“Okay, whatever,” in Wilkinson’s report, reflect statements of the
patient and typically relate to the history related by the patient.
With respect to D.O.’s sexual assault exam, Caruso testified
redness and bruising, such as that found around D.O.’s hymen,
can result from sexual acts or non-sexual causes. The report did
not note any bruises on D.O.’s wrists or thighs, or any physical
signs that she had been restrained by force. Findings consistent
with a patient’s history, Caruso stated, may also be consistent
with something other than the given history.
       Badio’s younger brother testified Badio was a peaceful,
nonviolent person who had no problems in his relationships with
women.

III.  Conviction and Sentencing
      The jury convicted Badio as charged with respect to M.A.,
finding him guilty of sexual penetration with a foreign object
(count 1), rape of an unconscious person (count 2), and assault
with the intent to commit a felony (count 3). As to D.O., the jury
convicted Badio of sexual penetration by a foreign object (count




                                15
5), sexual battery with restraint (count 6), false imprisonment by
violence (count 7), rape (count 8), and dissuading a witness from
reporting a crime (count 10). The jury found Badio not guilty on
count 9, attempted sodomy of D.O. by use of force. Additionally,
the jury found true the special allegation that counts 1, 5, and 8
were committed against more than one victim.
       At sentencing, the court imposed a determinate sentence of
four years eight months: four years for count 3 and a consecutive
eight-month term on count 10. The court imposed a concurrent
sentence of three years on count 6, and it imposed but stayed a
two-year sentence on count 7 under section 654. Under the One
Strike law, the court imposed indeterminate sentences of 15
years to life on counts 1, 2, 5, and 8. The court designated the
two rape sentences (counts 2 and 8) as consecutive and ordered
the two sentences for sexual penetration by a foreign object
(counts 1 and 5) to run concurrently. Badio’s total sentence was
30 years to life plus four years eight months in state prison.
       Badio appeals.
                           DISCUSSION

I.      Count 1: Sexual Penetration by a Foreign Object
        (M.A.)
        Under section 289, subdivision (a)(1)(A), it is a crime to
commit “an act of sexual penetration 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.” The force required for sexual
penetration in violation of section 289, subdivision (a)(1)(A), is
“ ‘sufficient force to overcome [the victim’s] will.’ ” (People v.
McCann (2019) 41 Cal.App.5th 149, 156; see also CALCRIM
No. 1045.) It “includes circumstances where the victim did not




                                16
want to engage in the act and did not positively cooperate with
it,” (People v. Aguilar (2019) 41 Cal.App.5th 1023, 1026
(Aguilar)), as well as “the force used to accomplish ‘the
penetration and the physical movement and positioning of [the
victim’s] body in accomplishing the act.’ ” (People v. Thomas
(2017) 15 Cal.App.5th 1063, 1071 (Thomas).)
       Badio contends the evidence is insufficient to support his
conviction in count 1 for sexual penetration by a foreign object of
M.A. because there was no evidence that the penetration was
accomplished by force, violence, duress, menace, or fear of
immediate and unlawful bodily injury. “ ‘When considering a
challenge to the sufficiency of the evidence to support a
conviction, we review the entire record in the light most favorable
to the judgment to determine whether it contains substantial
evidence—that is, evidence that is reasonable, credible, and of
solid value—from which a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.’ [Citation.] We
determine ‘whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable
doubt.’ [Citation.] In so doing, a reviewing court ‘presumes in
support of the judgment the existence of every fact the trier could
reasonably deduce from the evidence.’ [Citation.] ‘This standard
applies whether direct or circumstantial evidence is involved.’ ”
(People v. Avila (2009) 46 Cal.4th 680, 701.)
       The evidence of digital penetration by force was sufficient
to support the conviction. It was undisputed Badio’s hand had
penetrated M.A.’s vagina—he testified his fingers were inside her
vagina during their time alone in the bedroom, although he
asserted this was consensual and initiated by M.A. While M.A.




                                17
could not clearly remember the digital penetration by the time of
trial, she vividly recalled Badio’s use of force during the incident.
She awakened to find Badio over her. He unfastened her
clothing. He pushed her legs open, and she was unable to close
them. Badio’s physical movement and positioning of M.A.’s body,
as well as the restriction on her movement when he pushed and
held her legs open, constituted the requisite force for a violation
of section 289, subdivision (a)(1)(A). (Thomas, supra,
15 Cal.App.5th at p. 1071.) Moreover, there was evidence that
M.A. did not want to engage in this act: M.A. reported to the
sexual assault examiner that she told Badio to stop when he put
his finger inside her, and Wrighten, listening from outside the
room, heard her say “no” over and over. Based on this evidence, a
reasonable jury could conclude the digital penetration was
committed under “circumstances where the victim did not want
to engage in the act and did not positively cooperate with it.”
(Aguilar, supra, 41 Cal.App.5th at p. 1026.)
       Nevertheless, Badio contends that because M.A. never in
her testimony specifically “related the action of pushing her legs
open so that she could not close them to the digital penetration,”
there may have been evidence he used force when attempting to
insert his penis into M.A.’s vagina but there was no evidence he
used force in conjunction with penetrating her with his hand.
This argument depends on an artificial division of
contemporaneous events. M.A. testified to a course of conduct in
which Badio opened her legs to gain access to her vaginal area,
restricted her movement by holding her legs apart, and subjected
her to unwanted sexual contact. From the evidence presented at
trial, a reasonable jury could conclude this forcible sexual contact
included both an attempted penile penetration and a completed




                                 18
digital penetration. The evidence of force was sufficient to
support the conviction on count 1.

II.    Counts 1 and 5: Failure to Instruct Sua Sponte on
       Sexual Battery Offenses as Lesser Included Offenses
       Generally, the trial court must instruct the jury on any
lesser included offenses supported by the evidence. (People v.
Breverman (1998) 19 Cal.4th 142, 154.) Badio contends the trial
court erred when it failed to instruct the jury sua sponte on
sexual battery by restraint (§ 243.4, subd. (a)) and misdemeanor
sexual battery (§ 243.4, subd. (e)(1)) as lesser included offenses of
sexual penetration by a foreign object as charged in counts 1
and 5. We independently review whether the court erred by
failing to instruct on a lesser included offense. (People v. Souza
(2012) 54 Cal.4th 90, 113.)
       Courts apply two tests in determining whether an
uncharged offense is necessarily included within a charged
offense: the “elements” test and the “accusatory pleading” test.
“Under the elements test, a court determines whether, as a
matter of law, the statutory definition of the greater offense
necessarily includes the lesser offense.” (People v. Parson (2008)
44 Cal.4th 332, 349.) This test is satisfied if “ ‘all legal elements
of the lesser offense are also elements of the greater.’ ” (People v.
Robinson (2016) 63 Cal.4th 200, 207.) “Under the accusatory
pleading test, a court reviews the accusatory pleading to
determine whether the facts actually alleged include all of the
elements of the uncharged lesser offense; if it does, then the
latter is necessarily included in the former.” (Parson, at p. 349.)
However, when “the accusatory pleading incorporates the
statutory definition of the charged offense without referring to
the particular facts, a reviewing court must rely on the statutory




                                 19
elements to determine if there is a lesser included offense.”
(Robinson, at p. 207.)
       Here, as in Robinson, because Badio was charged with
sexual penetration by a foreign object in language that
corresponded to the statutory definition for the offense rather
than referring to particular facts, we apply the statutory
elements test. Sexual penetration by a foreign object occurs
when a person causes “the penetration, however slight, of the
genital or anal opening of any person or caus[es] another person
to so penetrate the defendant’s or another person’s genital or anal
opening for the purpose of sexual arousal, gratification, or abuse
by any foreign object, substance, instrument, or device, or by any
unknown object,” 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.” (§ 289, subds.
(a)(1)(A), (k)(1).) A “foreign object” is “any part of the body,
except a sexual organ,” and an “unknown object” is “any foreign
object, substance, instrument, or device, or any part of the body,
including a penis, when it is not known whether penetration was
by a penis or by a foreign object, substance, instrument, or device,
or by any other part of the body.” (§ 289, subds. (k)(2) & (k)(3).)
       Sexual battery by restraint is the touching of “an intimate
part of another person while that person is unlawfully
restrained,” against the person’s will or for purposes of sexual
arousal, gratification, or sexual abuse. (§ 243.4, subd. (a).)
“Touching” means “physical contact with the skin of another
person whether accomplished directly or through the clothing of
the person committing the offense.” (§ 243.4, subd. (f).)
       Misdemeanor sexual battery, as defined by section 243.4,
subdivision (e)(1), is the crime of touching “an intimate part of




                                20
another person, if the touching is against the will of the person
touched, and is for the specific purpose of sexual arousal, sexual
gratification, or sexual abuse.” For the purposes of this offense,
“touching” is “physical contact with another person, whether
accomplished directly, through the clothing of the person
committing the offense, or through the clothing of the victim.”
(§ 243.4, subd. (e)(2).)
       Under the statutory elements test, sexual battery is not a
lesser included offense of sexual penetration by a foreign object.
(People v. Ortega (2015) 240 Cal.App.4th 956, 967 (Ortega).) “The
sexual battery statute does not encompass touching by a foreign
object other than the offender’s body. In contrast, sexual
penetration by force is not limited to physical contact and can be
broader: Penetration may be caused ‘by any foreign object,
substance, instrument, or device, or by any unknown object.’
(§ 289, subd. (k)(1).) Because the forcible sexual penetration
statute encompasses different types of contact than the sexual
battery statute, it is possible to commit the greater without
committing the lesser (e.g., where penetration is accomplished by
means other than a part of the perpetrator’s body[]).” (Ortega, at
p. 967.)
       Badio argues that we should instead apply the “expanded
accusatory pleading test” set forth in Ortega and determine that
in this particular case sexual battery is a lesser included offense
of sexual penetration with a foreign object. In Ortega, the court
held that “[t]he evidence adduced at the preliminary hearing
must be considered in applying the accusatory pleading test when
the specific conduct supporting a holding order establishes that
the charged offense necessarily encompasses a lesser offense.”
(Ortega, supra, 240 Cal.App.4th at p. 967.) Because the evidence




                                21
at the preliminary hearing was that Badio’s hand was the only
foreign object to penetrate D.O. and M.A., Badio contends that in
this particular case, it was not possible to commit sexual
penetration with a foreign object without also committing sexual
battery.
       The expanded accusatory pleading test in Ortega is
inconsistent with the California Supreme Court’s decision in
People v. Montoya (2004) 33 Cal.4th 1031 (Montoya), which
requires courts to “consider only the [accusatory] pleading” in
determining whether a charged offense includes a lesser included
offense under the accusatory pleading test. (Id. at p. 1036.)
In Montoya, the Supreme Court disapproved People v. Rush
(1993) 16 Cal.App.4th 20, which considered evidence at the
preliminary hearing in applying the accusatory pleading test.
(Montoya, at p. 1036, fn. 4.) Courts since Montoya have declined
to follow Ortega and have continued to apply the rule excluding
evidence at the preliminary hearing in applying the accusatory
pleading test. (See, e.g., People v. Alvarez (2019) 32 Cal.App.5th
781, 787–790 (Alvarez); People v. Munoz (2019) 31 Cal.App.5th
143, 156–158 (Munoz); People v. Macias (2018) 26 Cal.App.5th
957, 963–965.) As the court in Munoz explained: “The Supreme
Court has indicated repeatedly . . . that when applying the
accusatory pleading test to determine whether one offense is
necessarily included in another, courts do not look to evidence
beyond the actual pleading and its allegations regarding the
purported greater offense.” (Munoz, at p. 156; see also People v.
Smith (2013) 57 Cal.4th 232, 244 [“[t]he trial court need only
examine the accusatory pleading”].)
       Badio contends Montoya is not dispositive here because
Montoya involved multiple convictions rather than lesser




                                22
included offenses, but the Montoya “court articulated the general
standard for the accusatory pleading test before considering its
application in a multiple conviction case,” indicating that it
“ ‘intended its rule not only to apply in the context of multiple
convictions, but also in the context of determining whether
instructions on a lesser offense were warranted.’ (Munoz, supra,
31 CalApp.5th at p. 158.)” (Alvarez, supra, 32 Cal.App.5th at pp.
788–789.) Badio also distinguishes Montoya on the ground that
the Supreme Court later held in People v. Sloan (2007) 42 Cal.4th
110 that courts should use the statutory elements test rather
than the accusatory pleadings test to determine whether a
defendant suffered impermissible multiple convictions, but Badio
does not describe, nor can we identify, any respect in which the
ruling in Sloan undermines the Supreme Court’s articulation of
the accusatory pleading test in Montoya or its prohibition on
consulting evidence from the preliminary hearing when applying
that test.
       We therefore follow the Supreme Court’s decision in
Montoya and decline to apply the expanded accusatory pleading
test here. The trial court did not have a sua sponte duty to
instruct on sexual battery as a lesser included offense of sexual
penetration by a foreign object.

III.  CALCRIM No. 1191B
      CALCRIM No. 1191B provides, “The People presented
evidence that the defendant committed multiple sex offenses in
counts 1 though 6, 8, and 9. [¶] If the People have proved beyond
a reasonable doubt that the defendant committed one or more of
these crimes, you may, but are not required to, conclude from
that evidence that the defendant was disposed or inclined to
commit sexual offenses, and based on that decision, also conclude




                               23
that the defendant was likely to commit and did commit the other
sex offenses. [¶] If you find that the defendant committed one or
more of these crimes, that conclusion is only one factor to
consider along with all the other evidence. It is not sufficient by
itself to prove that the defendant is guilty of another crime. The
People must still prove each crime beyond a reasonable doubt.”
       Badio argues CALCRIM No. 1191B improperly permitted
D.O. and M.A. to corroborate their own accusations in violation of
state law and principles of due process. Although he did not
object to the instruction at trial, we address his argument
because he alleges the instruction lowered the prosecution’s
burden of proof and violated his due process rights. (§ 1259
[appellate court may review jury instructions even if no objection
was made in the trial court if the substantial rights of the
defendant were affected].)
       Generally, “evidence of a person’s character or a trait of his
or her character (whether in the form of an opinion, evidence of
reputation, or evidence of specific instances of his or her conduct)
is inadmissible when offered to prove his or her conduct on a
specified occasion.” (Evid. Code, § 1101, subd. (a).) However,
Evidence Code section 1108 modifies this rule in criminal cases
involving a sexual offense. In such cases, “evidence of the
defendant’s commission of another sexual offense or offenses is
not made inadmissible by [Evidence Code] Section 1101,”
provided that the evidence is admissible under Evidence Code
section 352. (Evid. Code, § 1108, subd. (a)). Evidence Code
section 1108, enacted in 1995, “was intended in sex offense cases
to relax the evidentiary restraints [Evidence Code] section 1101,
subdivision (a), imposed, to assure that the trier of fact would be
made aware of the defendant’s other sex offenses in evaluating




                                 24
the victim’s and the defendant’s credibility.” (People v. Falsetta
(1999) 21 Cal.4th 903, 911 (Falsetta).)
       Evidence Code section 1108 is not limited to testimony
provided by third parties (People v. Gonzales (2017)
16 Cal.App.5th 494, 502 (Gonzales)), nor is it restricted to
uncharged offenses.3 (People v. Villatoro (2012) 54 Cal.4th
1152, 1164 (Villatoro).) The California Supreme Court has
explained, “[T]he clear purpose of [Evidence Code] section 1108 is
to permit the jury’s consideration of evidence of a defendant’s
propensity to commit sexual offenses. ‘The propensity to commit
sexual offenses is not a common attribute among the general
public. Therefore, evidence that a particular defendant has such
a propensity is especially probative and should be considered by
the trier of fact when determining the credibility of a victim’s
testimony.’ [Citations.] ‘[C]ase law clearly shows that evidence
that [a defendant] committed other sex offenses is at least
circumstantially relevant to the issue of his disposition or
propensity to commit these offenses.’ [Citations.] In light of this
clear purpose, we perceive no reason why the Legislature would
exclude charged sexual offenses from [Evidence Code] section
1108’s purview, and no indication that it did so in either the text
of [Evidence Code] section 1108 or its legislative history.
Whether an offense is charged or uncharged in the current
prosecution does not affect in any way its relevance as propensity
evidence.” (Villatoro, at p. 1164.)


3     CALCRIM No. 1191A is given to the jury when uncharged
offenses are offered as propensity evidence, and CALCRIM
No. 1191B is used when charged offenses are offered for that
purpose. (Gonzales, supra, 16 Cal.App.5th at p. 496, fn. 1.)




                                25
       Badio acknowledges that under Evidence Code section 1108
if the jury found one or more of the specified offenses involving
M.A. to be proven beyond a reasonable doubt, it was entitled to
conclude Badio was disposed to and did commit one or more of
the offenses charged involving D.O. (Evid. Code, § 1108.) But
Badio contends CALCRIM No. 1191B also allows “each alleged
victim’s accusations on one of the charges relating to her to
support an inference that he ‘was likely to commit and did
commit’ the remaining counts relating to her,” in violation of
California law. His argument rests on People v. Stanley (1967)
67 Cal.2d 812 (Stanley) and People v. Scott (1978) 21 Cal.3d 284
(Scott).
       In Stanley, the California Supreme Court stated, “[W]here
the basic issue of the case is the veracity of the prosecuting
witness and the defendant as to the commission of the acts
charged, the trier of fact is not aided by evidence of other offenses
where that evidence is limited to the uncorroborated testimony of
the prosecuting witness.” (Stanley, supra, 67 Cal.2d at p. 817.)
The Supreme Court, however, refused to adopt a rigid rule for the
admission or exclusion of victim-witnesses’ testimony of
uncharged crimes, ruling that admission of such evidence should
be determined by “ ‘a weighing of the probative value of the
evidence offered against the harm it is likely to cause.’ ” (Id. at
p. 818.) In Scott, the court cited Stanley, without discussion, to
advise the trial court on remand that evidence of uncharged
sexual conduct by the testimony of the victim was inadmissible.
(Scott, supra, 21 Cal.3d at p. 297.)
       Neither Stanley nor Scott is helpful in assessing the
admission of evidence under Evidence Code section 1108,
subdivision (a) because both were decided before the provision




                                 26
was enacted, profoundly altering the rules concerning propensity
evidence in sexual offense cases. Moreover, Stanley and Scott
concern the situation in which the sole evidence of a crime is the
prosecuting witness’s uncorroborated testimony. (Stanley, supra,
67 Cal.2d at p. 819 [witness’s testimony about other offenses “was
not corroborated by any other evidence”]; Scott, supra, 21 Cal.3d
at p. 297 [“[w]here the sole evidence of uncharged sexual conduct
is the uncorroborated testimony of the prosecutrix”].) That is not
the case here. D.O.’s testimony was corroborated by the evidence
of injuries to her genital area observed during the sexual assault
examination. With respect to M.A., Badio’s roommate not only
heard the sexual assault, he sent contemporaneous text messages
documenting M.A.’s lack of consent, her prolonged and unavailing
protests against being touched, and Badio’s disregard of her
express instructions to stop. Wrighten told the police he saw
Badio touch M.A.’s vagina, and he heard Badio both admit he had
penetrated M.A. (“I was already inside you,”) and tell her he was
going to do it again (“I’m going to take that pussy, bitch.”)
       Badio also argues CALCRIM No. 1191B violates due
process because the inference it permits is irrational. Because
“proof of rape . . . does not prove forcible digital penetration,” he
argues, CALCRIM No. 1191B “violated due process by lowering
the prosecution’s burden of proof.” The inference permitted by
CALCRIM No. 1191B is not irrational. Proof of rape may not
prove other sexual offenses, but a propensity to rape is
nonetheless probative with respect to the other charged offenses.
“[E]vidence of a defendant’s other sex offenses constitutes
relevant circumstantial evidence that he committed the charged
sex offenses.” (Falsetta, supra, 21 Cal.4th at p. 920.) As the court
observed in Gonzales, supra, 16 Cal.App.5th at page 502, in the




                                 27
context of a victim’s testimony concerning uncharged sexual
offenses, “[T]here is nothing irrational about a victim supporting
her testimony with testimony of uncharged sexual offenses.”
This “testimony is not as probative as similar testimony from a
third party,” but it “is still probative.” (Ibid.)
       Finally, contrary to Badio’s assertion, CALCRIM No. 1191B
does not lessen the prosecution’s burden of proof: it expressly
states that every offense must be proven beyond a reasonable
doubt, even those used to draw an inference of propensity. In
this respect, CALCRIM No. 1191B is essentially identical to the
instruction approved in Villatoro, supra, 54 Cal.4th at pages 1167
through 1168. Both instructions “clearly told the jury that all
offenses must be proven beyond a reasonable doubt, even those
used to draw an inference of propensity. Thus, there was no risk
the jury would apply an impermissibly low standard of proof.”
(Id. at p. 1168.) Nothing in the instruction expressed or implied
to the jury that Badio’s guilt on any count could be based on less
than proof beyond a reasonable doubt.

IV.    Sentencing Issues
       Pursuant to the One Strike law, the trial court imposed a
15-year-to-life sentence for the rape of M.A. while she was
unconscious (count 2). As the Attorney General points out, rape
of an unconscious person, set forth in section 261, subdivision
(a)(4), is not an offense falling within the scope of the One Strike
law. (§ 667.61, subd. (c)(1) [listing rape in violation of section
261, subds. (a)(2) & (a)(6)]; People v. Estrada (1997)
57 Cal.App.4th 1270, 1276, fn. 6.) Because the sentence on count
2 was not authorized by law, the matter must be remanded for
resentencing. (People v. Buycks (2018) 5 Cal.5th 857, 893 [“when
part of a sentence is stricken on review, on remand for




                                 28
resentencing ‘a full resentencing as to all counts is appropriate,
so the trial court can exercise its sentencing discretion in light of
the changed circumstances’ ”].)
       Badio contends the two indeterminate 15-years-to-life
sentences constitute cruel and unusual punishment within the
meaning of the state and federal constitutions. Because the
matter must be remanded for resentencing, Badio’s cruel and
unusual punishment argument is moot, and we do not address it
here. A case “ ‘ “becomes moot when a court ruling can have no
practical impact or cannot provide the parties with effective
relief.” ’ ” (In re Arroyo (2019) 37 Cal.App.5th 727, 732.)

                          DISPOSITION
      The judgment of conviction is affirmed; the sentence is
vacated; and the matter remanded for the limited purpose of
allowing the trial court to resentence Badio in accordance with
the principles expressed in this opinion.

      NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                      STRATTON, J.

We concur:




             GRIMES, Acting P. J.




             WILEY, J.




                                 29
