Filed 2/23/15
                         CERTIFIED FOR PARTIAL PUBLICATION*




                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                               THIRD APPELLATE DISTRICT
                                         (Sacramento)
                                              ----



THE PEOPLE,                                                          C070238

                  Plaintiff and Respondent,                 (Super. Ct. No. 10F05942)

        v.

THEODORE SORIA,

                  Defendant and Appellant.



      APPEAL from a judgment of the Superior Court of Sacramento County, Russell
L. Hom, Judge. Affirmed as modified.

      A.M. Weisman, under appointment by the Court of Appeal, for Defendant and
Appellant.

      Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman, Larenda R.
Delaini, Deputy Attorneys General, for Plaintiff and Respondent.




* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of parts II through VI of the Discussion.

                                               1
        Defendant Theodore Soria appeals following jury verdicts finding him guilty of
rape of an unconscious person (Pen. Code, § 261, subd. (a)(4)1 (count one)) and rape of
an intoxicated person (§ 261, subd. (a)(3) (count two)). Defendant admitted habitual
criminal prior serious felony and strike conviction allegations (§§ 667, subd. (a), 667,
subds. (b)-(i), 1170.12). Defendant was sentenced to a total aggregate term of 11 years.
In sentencing defendant, the trial court imposed sentence on count two, but stayed
execution of that sentence.
        On appeal, defendant argues conviction on one of the two counts must be stricken
because both counts are based on a single act of intercourse with the victim. The People
agree that defendant cannot be convicted of two counts, but argue the remedy is
consolidation. Defendant also argues the DNA evidence was unreliable and should not
have been admitted, trial counsel provided ineffective assistance of counsel by failing to
object to the DNA evidence, the trial court erred in giving a jury instruction on adoptive
admissions, and the court abused its discretion in denying his motion to strike the prior
strike conviction (§ 1385, subd. (a)). The People ask that we modify the judgment to
include $70 in mandatory fees and assessments not imposed at sentencing.
        In the published portion of this opinion, we conclude that the trial court erred by
staying the sentence on one of the rape counts, and hold that defendant’s convictions for
rape of an intoxicated person and rape of an unconscious person must be consolidated
into a single count reflecting rape under both subdivisions (a)(3) and (a)(4) of section
261.
        In the unpublished portions of this opinion, we conclude that defendant forfeited
his objection to the DNA evidence, and in any event that evidence was admissible and
defense counsel did not provide ineffective assistance of counsel by not objecting to the




1   Undesignated statutory references are to the Penal Code.

                                              2
DNA evidence. We further conclude that the trial court did not err in instructing on
adoptive admissions and did not abuse its discretion when it refused to dismiss the strike
allegation. We modify the judgment to order imposition of mandatory fees and
assessments not imposed by the trial court.
       We otherwise affirm the judgment.
                 FACTUAL AND PROCEDURAL BACKGROUND
       A second amended information filed in August 2011 charged defendant with a
count of rape of an unconscious person (§ 261, subd. (a)(4) (count one)), and a count of
rape of an intoxicated person (§ 261, subd. (a)(3) (count two)). The pleading also alleged
a prior conviction as a strike offense (§§ 667, subds. (b)-(i), 1170.12) and a five-year
habitual criminal sentencing enhancement (§ 667, subd. (a)).
       A first trial resulted in a mistrial when the jury deadlocked on both counts.
                               Prosecution’s Case-in-Chief
       On Saturday, November 28, 2009, around 8:00 or 9:00 p.m., the 44-year-old
defendant was home, drinking beer, and playing video games, when his son Theo brought
home three friends and a large bottle of vodka. The group of four -- all of whom were
about 20 years old -- consisted of defendant’s son, the son’s new girlfriend, Karolyn
Hawley, the son’s friend, Heriberto Corral (“Beto”), and Beto’s girlfriend, J.W., who is
the victim. They had a plan to get drunk. They started drinking the vodka with juice or
soda in the son’s bedroom. Defendant stayed in the living room, but someone brought
him some vodka. The four young people mainly stayed in the son’s bedroom but came
out on occasion. For example, the victim came out for ice and Karolyn smoked
marijuana with defendant in the living room. The victim did not smoke any marijuana.
       The victim, who liked to get drunk and had previously blacked out from binge-
drinking, drank four or five drinks, got drunk and dizzy, and vomited in the bathroom.
Beto and Karolyn helped the victim to the bedroom of defendant’s daughter, Sophia, who
had come home earlier but left to sleep at a friend’s house. The victim vomited in

                                              3
Sophia’s bedroom, perhaps in a garbage can. Karolyn testified that she asked defendant
for a “ratty shirt that he didn’t really care about that she could sleep in.” The reason she
asked for the shirt was because she thought it would be uncomfortable for the victim to
sleep in her clothes, but she told defendant she wanted the shirt for the victim because
“she was sick.” According to Karolyn, defendant went to his room, obtained a black
shirt, and gave it to her. Karolyn brought the shirt to the victim in Sophia’s room, said to
change into it, and left the room. The victim fell asleep or passed out on top of the
bedcovers, fully clothed. Karolyn and defendant’s son fell asleep around midnight in the
son’s room. Beto stayed up playing a video game with defendant.
       Around 2:30 or 3:00 a.m., the victim awoke. Her vagina was sore and wet. She
was under the bedcovers, wearing only her underwear. Her clothes were on the floor by
the bed, as were defendant’s slippers.2 The victim did not see any other article of
clothing that belonged to defendant in the room. The victim found Beto asleep on the
living room couch. She woke him and asked if they had “messed around.” He said no.
The victim became scared and said she thought defendant did something to her. The
victim and Beto woke up Karolyn and defendant’s son, who said his father would not do
anything sexual like that. The four talked and eventually fell asleep in the son’s room.
They awoke around 11:00 a.m. and went out to eat. The victim went home and
showered.
       Later, the victim returned to defendant’s home to meet up with Beto. She saw
defendant but did not interact with him. She saw Sophia, who was holding defendant’s
shirt in her hand and asked the victim what happened. Sophia noticed hickeys on the
victim’s neck. Beto said he was not responsible for the hickeys. Sophia revealed she had



2 Defendant did not allow people to wear shoes in the house. He kept his slippers by the
front door for anyone to wear, but the victim had never seen her friends wear the slippers,
and Karolyn recalled seeing defendant wearing the slippers earlier in the evening.

                                              4
once been raped when drunk and that the victim should tell someone. At trial, the victim
for the first time stated that Sophia said her father had “hit on” her friends in the past.
After Sophia and the victim spoke, Sophia asked defendant, in the victim’s presence, why
his shirt was in her bedroom. The victim testified defendant replied he brought the shirt
to the victim because she was cold. The victim had no recollection of him bringing her a
shirt.
         Later that night, November 29, 2009, the victim told her mother what happened
after Beto said he would tell unless the victim told. The three went to the hospital, where
they spoke to a police officer who took them to UC Davis Medical Center, where the
victim underwent a sexual assault examination.
         The victim testified that after the night in question, she continued to visit
defendant’s home until she and Beto broke up in February 2010. Defendant did not act
any differently toward her during these visits.
         Karolyn, who did not believe defendant would ever take advantage of a drunk
woman for nonconsensual sex, testified that the defendant did not treat the victim any
differently when the victim visited the house after the night in question, and the victim
did not seem uncomfortable around defendant during that time. Karolyn, who had been
19 years old at the time, testified that on that night at defendant’s home, while she and
defendant were smoking marijuana in the living room, she leaned over, exposing her
breasts, and defendant said, “nice rack,” which she took as a compliment. Defendant had
told both the victim and Karolyn that they were pretty. Karolyn testified she broke up
with defendant’s son in February 2010. She and defendant remained close platonic
friends, going to the gym or lunch together or talking on the phone, but they did not talk
about the case. Karolyn was not friends with the victim.
         In April 2010, the victim, in the presence of a police detective, made a pretext
phone call to defendant, which was tape recorded and played for the jury. Defendant
greeted her pleasantly, asked how she was, and said he had not seen her in awhile. She

                                                5
said she was “pretty good” and wanted to ask him “[a]bout that night I was over at your
house, and it was Theo, me, Beto [] and Karolyn, and we were drinking with -- in Theo’s
room. I had somebody rape me, but I didn’t really know who and I -- I mean, I -- your
shirt and your slippers were in Sophia’s room, so I thought -- and I’m pretty sure that you
had sex with me and I want to know why.” The following ensued:
       “[Defendant]: Real -- really?
       “[Victim]: Yeah.
       “[Defendant]: Well, here let me sit down ‘cause this is the first I’ve heard of this.
Hold on. Let me go in the other room. Hold on.[3] Okay. I’m in shock right now. So,
anyways, so what happened?
       “[Victim]: Why -- I -- why did you have sex with me while I was passed out?
       “[Defendant]: You know, I don’t remember that -- that happening. I don’t
remember that at all. And I -- this is the first I’ve heard of this, and it’s -- I don’t know
what to say. I’m shocked and sorry to hear that.
       “[Victim]: But your shirt was on the floor, on the bedroom floor by Sophia’s bed.
       “[Defendant]: Is that the shirt that Sophia gave me? Because I remember Karolyn
giving me -- coming up to me and asking me for a shirt, and I gave her a -- a -- a black
one. That’s all I remember.
       “[Victim]: Oh, well, that’s the one that I -- that was on the floor as well as your
slippers.
       “[Defendant]: And I don’t know about my slippers and stuff. I don’t know what
happened with that.
       “[Victim]: I don’t know. I woke up and they were by the bed.




3  We have listened to the audio of the call. There was a long pause of about 40 seconds
at this point before defendant resumed the conversation.

                                               6
       “[Defendant]: I don’t remember any of that. I -- I -- I -- all I remember is I was
passed out in the living room, and Beto woke me up and he told me to get out of there,
and so I went to my room and that’s all I remember.
       “[Victim]: Well, I know someone had taken my clothes off because when I woke
up, I didn’t have them on, and when I fell asleep, they were on.
       “[Defendant]: Hum.
       “[Victim]: So I don’t --
       “[Defendant]: I don’t know what to say other than I’m sorry. I don’t remember
any of that.
       “[Victim]: I don’t really remember. That’s why I was calling to ask.
       “[Defendant]: I don’t remember either. I just feel bad now. I mean, I’ve always
respected you and I -- I always thought you were attractive, but I don’t remember ever
carrying out anything like that.
       “[Victim]: Well, I know I had sex, and I know it was you. It had to be.
       “[Defendant]: I don’t remember. I -- I would have to trust your word on that and
say sorry ‘cause I don’t remember anything like that. I’m sorry, [J.]. And I -- I really
don’t remember anything like that. I just -- I just apologize. If I did that, then I’m sorry.”
       The conversation continued in the same vein. The victim asked if defendant had
used protection, and he said he did not remember any of that night, other than waking up
around 5:00 or 6:00 a.m., when “you guys” left and later came back. The victim said
Beto said it happened. Defendant expressed surprise and said Beto never mentioned a
word to him.
       The victim said she thought defendant way lying. Defendant said he was sorry she
felt that way. He woke up with all his clothes on in his own bed and “I don’t know.
Honestly I don’t know. I just -- I -- I -- if this all happened like you said, then I -- I
totally regret my actions, and I apologize whole-heartedly. I don’t remember any of
that.” The conversation continued:

                                                7
       “[Victim]: Do you think I’m attractive?
       “[Defendant]: I always have, yeah. I just wish I was more in shape and had
money and stuff. I think probably I would think (unintelligible) might be a little bit
different if I was to ever ask you out. But you were with Beto, so I never even thought of
it. [¶] But, yeah, I’ve always thought you were attractive. Still do. I just -- I don’t
remember any -- doing anything stupid like that.”
       “[Victim]: Well, why would you do that if I was passed out?
       “[Defendant]: “I don’t know. I can’t explain my actions if that happened that
night like that. I don’t remember. I don’t remember at all. I’m sorry. I just remember
being hella drunk ‘cause I remember I was taking hits off that bottle besides drinking that
beer. [¶] In fact, the last thing I remember is Beto waking me up when I was passed out
on the living room floor still playing the video game. [¶]…[¶] I remember all of us
drinking and stuff. And I remember Karolyn. I do remember Karolyn trying to make
you smoke out of the bong. I remember that. And I remember saying, don’t -- you
know, don’t do it if you don’t want to. [¶] Let’s see what else I remember that night. I
remember playing video games. I remember all you guys went inside Theodore’s room,
and that’s about all I remember.”
       The victim asked if defendant was sorry. He said, “of course I am. I don’t want it
like that. I’ve always liked you and stuff, and, you know, I don’t want it to be like that. I
wish I would have talked to you about this sooner. I didn’t know. I swear.” The victim
asked about protection. He said he did not remember, but “if you’re worried about
anything,” he was tested in January when he got into “that other relationship” and was
“totally clean.”
       After more of the same equivocal apologies “if it happened,” defendant asked why
the victim was calling now. She said she had a nightmare about it. She asked:
       “[Victim]: Why did you do this?



                                              8
        “[Defendant]: I honestly don’t know. I don’t know. I -- the only thing, like I
said, is I’ve always thought you were pretty and attractive, and I’ve always liked you as a
person. I’ve always respected you. I think you got your head on your shoulders, and I
think Beto’s stupid. You know? That’s what I thought -- always thought about you. I
never thought about anything else like that.”
        The victim said, “I need you to say you’re sorry.” Defendant said, “I am. I’m
sorry. I’m sorry. I just don’t remember any of that.…” The victim said she thought he
was lying. Defendant said he was sorry she felt that way. The victim finally ended the
call.
        The victim testified she did not really remember defendant being on top of her, as
she stated during the pretext call at the detective’s prompting. She was not attracted to
defendant and felt “grossed out” when he said he was attracted to her.
        A nurse testified she performed the sexual assault examination on the victim. The
victim said she had not had intercourse within the previous five days. The nurse did not
notice any bleeding, trauma, or other physical injury, but sexual assault victims
commonly present without injury or trauma. Even unconscious, the body can lubricate
and have a sexual response. The examination revealed nothing inconsistent with
consensual sexual intercourse. The nurse did not observe any sperm on genital swabs
under the microscope but forwarded them for DNA testing. However, the nurse did
observe an approximately two-centimeter hickey on the victim’s neck.
        A criminalist testified she detected sperm in the vaginal, cervical, and anal swabs
taken from the victim. The vaginal and cervical swabs had high concentrations of sperm,
while the anal swab had a low concentration, which led the criminalist to opine that the
sperm from the anal swab was probably drainage from the vagina rather than evidence of
sodomy.




                                                9
        Ryan Nickel, a criminalist with the Sacramento County District Attorney’s office,
testified as a DNA expert. He analyzed a vaginal swab,4 first separating a sperm fraction
from the victim’s epithelial cells, which are the cells lining body cavities. Taking a small
portion of the sperm fraction for DNA testing, Nickel obtained a DNA profile from it and
compared it to buccal reference samples obtained from defendant, defendant’s son, and
Beto. Nickel was able to exclude defendant’s son and Beto as the major profile
contributor of the sperm fraction.
        Nickel compared the sperm fraction with defendant’s buccal swab sample at the
standard 15 locations and testified they matched at 14 locations. At one location, locus
D-5, there were three alleles instead of the standard two. Two of these alleles were the
same as defendant’s profile at the D-5 locus, as were the alleles at the other 14 locations.
One allele at D-5 was not consistent with defendant’s profile. Thus, Nickel concluded,
“[t]he major profile from the sperm fraction is the same as [defendant’s] reference
profile. And the reason I said the major profile is because we have a location…at D-5
where a minor allele was detected. And I called this in my report as carryover from the
[epithelial] cell fraction. …[the victim’s] profile is a 12, 12. And that is consistent with
that minor allele being carried over to that sperm fraction.” Nickel explained that the
differential extraction process “isn’t a 100 percent efficient process.” Carryover occurs
when the sperm cells are not separated from all of the epithelial cells in the extraction
process and, for example, some of the epithelial cells are in the sperm fragment. This
kind of carryover is “pretty common” and Nickel had seen it on “multiple occasions.”
The third allele was a 12, and the victim was a 12 at that location. Nickel opined that
“the most likely explanation, which we see at the laboratory when we do differential
extractions all of the time, is carryover.”




4   Other vaginal swabs remained available for defense testing.

                                              10
       Nickel testified that there are two other possible explanations for the third allele at
D-5. One is that the profile includes a tri-allele. A tri-allele is a very rare phenomenon,
but Nickel has occasionally observed them. If the “12” allele at locus D-5 is part of a
rare tri-allele, then the DNA profile for the sperm fraction does not match defendant’s
DNA from the buccal swab, because defendant’s DNA from that swab has no tri-alleles
at any locus. Nickel said the third allele could be explained by a mutation, though he
found no mutation when working on the case, and his notes made no mention of a
mutation. Nickel indicated there was no way of knowing if it were a tri-allele belonging
to defendant without obtaining a semen sample from defendant for comparison.5 Nickel
testified defendant’s semen sample could be different from his buccal sample by a tri-
allele. Semen samples are not ordinarily collected by law enforcement, but the defense
could have obtained a sample of defendant’s semen and tested it. Nickel said that
characterizing the results as a tri-allele would not exclude defendant, despite the absence
of a tri-allele in defendant’s DNA profile at locus D-5.
       Another explanation for the third allele reading of “12” at locus D-5 could be that
it came from an unknown male contributor or Beto. Beto has a “12” allele at D-5, so it
was possible that it was a carryover from Beto. However, had the third allele been
Beto’s, Nickel would have expected to see other alleles matching Beto’s profile.
Nevertheless, he could not include or exclude Beto as being the contributor of that allele.
       On cross-examination, Nickel agreed there was “no scientific basis” for his
opinion that the third allele was carryover from the non-sperm fraction. “I didn’t
determine that it was -- but I’ve seen it in multiple occasions that this crossover does
occur, so I decided to call it as a 12 from carryover.” Nickel was not aware of any cases
documenting a 14-loci match in samples from different people.



5Defendant questions this, because Nickel had said that DNA from blood and saliva
would be the same.

                                             11
       Nickel acknowledged that laboratory protocol requires repeating the differential
extraction process if epithelial cells are detected in a sperm fraction, but he did not do so
because he saw no epithelial cells in the small representative sample from the extraction
that he examined under the microscope. When asked to explain how he could
characterize the third allele at locus D-5 as carryover from the epithelial portion of the
sample if the differential extraction process was properly performed, Nickel said, “I’m
saying there’s no way to determine that minor allele at the D-5 location, there’s no
scientific basis to determine if it’s carryover, triallele or another individual.” Nickel’s
opinion that the third allele was carryover, was based on his professional wisdom
gathered from his work, training, experience, and talking to colleagues.
       However, Nickel provided several reasons why he decided to characterize the third
allele as carryover from the nonsperm fraction. He said he had seen “in multiple
occasions that this crossover does occur.” He would expect to see additional alleles at
other locations if there was more than one sperm contributor to the vaginal sample. The
absence of additional alleles at other locations led him to form the opinion that the
additional allele was a carryover from the victim’s DNA profile. Thus, despite the other
possibilities, based on his training and experience, Nickel opined that defendant was the
major DNA contributor of the sperm fraction from the victim’s vaginal swab.
       Using the FBI statistical program, Nickel testified the statistical frequency of
occurrence of the same DNA profile as defendant, who does not have an identical twin,
would be one in two sextillion African-Americans, one in nine quintillion Caucasians,
and one in one quintillion Hispanics.6




6 As our high court has noted, the world’s population is only 7 billion. (People v. Nelson
(2008) 43 Cal.4th 1242, 1247.)

                                              12
                                       Defense Case
       Michelle Okazaki testified she and defendant had been dating since 2007,
exclusively, “[f]or the most part,” seeing each other “at least once a month” until 2010.
She did not hear from him for a long time and assumed he lost interest. She later learned
he had been arrested. Eventually, in 2011, he told her about the victim’s accusation.
Although Okazaki did not know about the accusation until 2011, she testified she saw the
victim and Beto at defendant’s home a couple of weeks after the night in question, and
the victim was comfortable around defendant and even wanted to spend the night at his
house rather than ride her bicycle or accept Okazaki’s offer to drive her home. Okazaki
did not believe defendant would ever take advantage of an intoxicated woman and
commit a nonconsensual sex act.
       Melissa Tiner testified she and defendant knew each other for 14 or 15 years, were
best friends, and dated on and off for several months. On the day after the night in
question, she picked up defendant for lunch. She had never seen him more hung over.
She did not think he would take advantage of a young intoxicated woman and commit a
nonconsensual sex act.
       Two of Sophia’s friends testified they had been around defendant when he was
drunk and when he was sober and did not believe he would ever take advantage of a
young intoxicated woman and commit a nonconsensual sex act.
       Beto testified that he and the victim, his girlfriend at the time in question, both got
drunk that night. He had never seen her that drunk. However, he saw her drunk on many
occasions, sometimes so drunk that she later had no memory of what she did. Beto
checked on the victim after she went to Sophia’s room but did not recall whether her
clothes were on, but he recalled that she was under the covers. Around midnight, Beto
went out to get some food. When he returned, no one was awake. He woke up
defendant, who was “passed out” asleep on the living room floor, and told him to go to
bed. Defendant replied he was not sleeping and resumed playing video games. Beto

                                             13
watched defendant playing the video games until Beto fell asleep on the couch. At some
point, Beto heard defendant walk toward his bedroom, which is on the opposite side of
the house from Sophia’s room. At some point thereafter, the victim awakened Beto and
asked if they had had sex. He said no. She kept asking if he was certain. Eventually, she
asked if he thought defendant might have done something to her. When Beto asked why,
she said she woke up naked and defendant’s slippers were by the bed.
      After that night, Beto and the victim continued to hang out at defendant’s house,
though the victim said she did not want to go there anymore. On one occasion, they rode
bikes to defendant’s house, and defendant gave them a ride home. Beto did not recall the
victim wanting to stay the night or Okazaki offering a ride home.
      Sophia testified defendant was wearing socks that night and did not usually wear
slippers with socks. She said she remembered he was wearing socks because “he had a
hole in them.” However, she also admitted she previously testified she had no reason to
pay attention to what defendant had on his feet. When Sophia returned the next day, her
bed was unmade and defendant’s shirt was on her floor. She asked her brother and Beto
why, and they told her what the victim said about waking up with a sore vagina. When
the victim returned, the victim confided the same thing to Sophia, who related that she
had been raped in high school, and encouraged the victim to speak with someone. Sophia
asked defendant why his shirt was in her room. He said Karolyn wanted the shirt because
someone was vomiting. Sophia testified defendant did not remember who was vomiting.
“He was kind of all over the place. Somebody needed a shirt kind of thing.” Sophia was
concerned that defendant’s shirt and slippers had been in her room. She checked the
bedding for secretions but did not see anything. She set aside the bedding in case the
victim later remembered anything, but when the victim came over the next day, Sophia
washed the bedding because she did not think the victim would come back if defendant
had raped her. Sophia never asked defendant about what the victim had said. Sophia
testified her father was respectful of her privacy. None of her friends ever complained

                                            14
about defendant hitting on them, and she did not believe he would ever take advantage of
a young intoxicated woman and commit a nonconsensual sex act.
       Defendant’s son did not testify.
       Dr. Gregory Sokolov, a psychiatrist, testified as an expert witness on Ambien. He
said Ambien is a sedative prescribed for insomnia. Most patients take it right before they
go to bed. Patients with anticipatory anxiety about another sleepless night may take it
earlier. It is not prescribed for depression, but some patients take both Ambien and an
anti-depressant. Ambien is not recommended for anxiety, but some doctors prescribe
“off label.” Ambien has a very rare side-effect in that it can cause a sedated hypnotic
intoxicated state, during which the patient engages in complex behavior while
unconscious of the act, with little or no memory of it later. The behavior includes
sleepwalking, sleep-eating, sleep-sex, and sleep-driving. Mixing alcohol with Ambien
increases the risk of this complex behavior. Around 2006 or 2007, the federal
government required the drug maker to warn doctors of this side-effect. Responding to a
hypothetical question involving nonconsensual sex imposed upon another person by a
person who took Ambien, drank 60 ounces of beer and four to five vodka cocktails,
smoked marijuana, and had no recollection of having sex, Dr. Sokolov opined that the
conduct “could be consistent with a sedative hypnotic intoxication and/or complex
behavior event,” and from a psychiatric medical perspective, such conduct would be
involuntary.
       Defendant testified. He planned to spend the evening alone on his living room
couch playing with his Xbox. He took an Ambien around 4:00 or 5:00 p.m., before he
went to the store and bought a video game, a headset, and beer. Defendant testified he
got a prescription in 2006 to take Ambien as needed to help with anxiety, stress,
depression, and insomnia. He had taken Ambien for a couple of nights before this
incident due to stress from being laid off from his job. Ambien sometimes puts him to
sleep, but he did not care if he fell asleep because he bought the game rather than renting

                                            15
it and could play it whenever he wanted. Defendant did not learn of the potential rare
side effect of Ambien until a prior hearing when the doctor testified.
       As defendant was getting his game set up, he received a phone call from the victim
and Beto, wanting to come over. He reluctantly agreed. His son came home with
Karolyn, and the victim and Beto arrived with a large bottle of vodka and some mixers.
The four young people mainly stayed in his son’s bedroom and went back and forth to the
kitchen. Karolyn wanted to smoke marijuana, so she and defendant smoked marijuana in
the living room. The two young men moved back and forth between the son’s room and
the living room to check out the video game defendant was playing. The victim offered
him vodka and orange juice, and he accepted. He accepted offers of refills and drank
“around five-ish” vodka drinks that night.
       The victim got drunk and loud. Defendant heard someone urging the victim to lie
down. He heard sounds like someone was vomiting. He did not try to help, because it
had happened before, and the girls usually take care of it. Defendant testified that he had
a vague recollection of Karolyn asking him for a shirt, and he gave her one. He had
previously testified that he had just washed clothes and obtained the shirt from the
laundry.
       The last thing defendant remembered from that night is Beto helping him up off
the floor and into defendant’s bedroom, though Beto contradicts it. The next thing
defendant remembered is getting a phone call the next morning around 11:00 a.m. from
his friend Melissa about a planned lunch with her he had forgotten. He awoke with the
worst hangover of his life. He did not have the burning sensation that he gets after sex
and there was no other indication he had had sex the previous night. He was fully
dressed as he had been dressed the night before. Defendant was wearing a T-shirt,
hooded sweatshirt, sweat pants, and socks. That he awoke clothed was significant to him
because he takes off his clothes when he has sex and he did not remember taking off his
clothes that night. He keeps slippers out for going outside or for women who complain

                                             16
about his rule against wearing shoes in the house. He does not normally wear his slippers
around the house but does so on occasion. He testified he does not know how his slippers
got into Sophia’s room. Nor does he know how his sperm got into the victim’s vagina.
       When defendant returned home from having lunch with Melissa, the victim and
the others were playing a video game. The victim acted completely normal, continued to
hang out at defendant’s home, continued to interact with him as usual, and never said
anything about defendant having sex with her. On one of those visits, the victim told
Michelle that she, the victim, did not want to go home. About four or five weeks after
the night in question, the victim stopped coming to defendant’s home.
       About three or four months after the night in question, defendant received the
phone call from the victim accusing him of rape. He was shocked. He did not deny it,
because she was a friend, he did not remember anything from that night, and he “had no
reason to disbelieve her.” He apologized to be polite and let her know he was sensitive.
His daughter went through something like that and he wanted to make sure the victim
knew he was concerned about her well-being. He told her he was attracted to her to be
kind. He testified, “I was in fear of what was going on as far as her saying that I raped
her and so I thought it was the best thing to ease the situation. So being as polite as
possible I said that as far as to pretty much defuse the situation because I was clueless on
what was going on at that point in time because no one said anything.”
       Defendant was angry with Beto for not alerting defendant to the victim’s
allegation, but defendant and Beto later reconciled.
       Defendant testified his ex-wife complained he had difficulty performing sex acts
when drunk.
       Defendant admitted complimenting Karolyn’s breasts. When she asked for
marijuana, she leaned over, and one breast fell out in front of his face. He was
uncomfortable and did not know what to say, so he paid her the compliment, and she
laughed, put her breast back in her blouse, and they never spoke of it again. When asked

                                             17
if he would joke with women about sex, he said, “I’ve been inappropriate, but I wouldn’t
cross the line and touch nobody.”
       Defendant testified he does not believe he had sex with the victim. When asked
on direct examination, “You heard the DNA evidence in the case?” defendant answered,
“Yeah, I have to accept that.” He testified, “I have no memory of anything that night.
Nothing. Anything of having sex. Nothing. I don’t remember nothing like that.” When
asked if he believed himself capable of taking advantage of a young intoxicated woman
without her consent, he said, “No, absolutely not. And all my daughters’ friends have
partied with me, they’ve slept on the couch along side with me and there’s been no
incidents ever since I was even in college ever, anything accusation [sic] like this. No.”
       Before this incident, the victim stayed overnight on her first visit to defendant’s
home; she and two of her girlfriends slept on defendant’s bed, and he slept on the couch.
                               Prosecution Rebuttal Case
       Sacramento Police Department Officer James Sobodash spoke with Beto at the
hospital when the victim was there for the sexual assault examination. Beto told
Sobodash that he went to Taco Bell around 11:30 p.m. The victim had been put in
Sophia’s room earlier. When Beto returned around midnight, he checked on the victim.
She was covered by a blanket and was wearing her yellow and gray long sleeved shirt.
Beto woke up defendant and watched him play a video game until Beto fell asleep. Beto
was awakened by the victim around 2:30 a.m., and she told him about her suspicions.
She mentioned that defendant’s slippers were by the bed. Beto asked to see them and the
victim went into Sophia’s room and came out with the slippers. Beto said he started to
freak out at that point.
       Later in the day, when Sophia was talking to the victim, Sophia asked defendant
why his shirt was in her bedroom. According to Beto, defendant said the victim had
asked for the shirt because she was sick. The victim whispered to Beto that she had never
asked defendant for a shirt.

                                             18
       Beto told Sobodash that the first time defendant met Karolyn he told her, “Wow,
you have a perfect pair of tits, you know that?”
                                 Verdicts and Sentencing
       On December 20, 2011, the jury found defendant guilty on both rape counts.
Defendant admitted he had previously been convicted of assault with a deadly weapon in
1991, and later moved to dismiss the prior strike. The trial court denied the motion. On
January 20, 2012, the court sentenced defendant to an aggregate term of 11 years
calculated as follows: the low term of three years on count one, doubled for the prior
strike conviction (§ 667, subd. (e)(1)), plus a consecutive term of five years for the
habitual criminal serious felony enhancement. The court imposed the same sentence for
count two but stayed execution pursuant to section 654.7
                                       DISCUSSION
                         I. Two Counts of Rape for a Single Act
       Defendant argues he was erroneously convicted of two counts of rape based upon
one act on one victim. The People agree but argue the remedy is consolidation rather
than striking one of the convictions as urged by defendant. We agree with the People.
       Defendant did not raise this issue in the trial court when the trial court stayed the
sentence on one of the rape counts, but a sentence unauthorized as a matter of law is
reviewable on appeal despite the defendant’s failure to object in the trial court. (People
v. Scott (1994) 9 Cal.4th 331, 354.)




7 Section 654 provides in pertinent part: “(a) An act or omission that is punishable in
different ways be different provisions of law shall be punished under the provision that
provides for the longest potential term of imprisonment, but in no case shall the act or
omission be punished under more than one provision.…”

                                             19
       Section 261 defines rape as sexual intercourse committed under seven different
circumstances.8 Defendant was charged with section 261, subdivision (a)(3), intercourse
with an intoxicated person, and section 261, subdivision (a)(4), intercourse with an
unconscious person. Both counts related to the single act of intercourse.
       In People v. Craig (1941) 17 Cal.2d 453 (Craig), our high court held that under
section 261, only “one punishable offense of rape results from a single act of intercourse,
although that act may be accomplished under more than one of the conditions or
circumstances specified in the…subdivisions. These subdivisions merely define the
circumstances under which an act of intercourse may be deemed an act of rape; they are




8  Former section 261 in effect at the time of the charged offenses provided in pertinent
part: “(a) Rape is an act of sexual intercourse accomplished with a person not the spouse
of the perpetrator, under any of the following circumstances: [¶] (1) Where a person is
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.… [¶] (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. [¶] (3) Where a person is prevented from resisting by any intoxicating or
anesthetic substance, or any controlled substance, and this condition was known, or
reasonably should have been known by the accused. [¶] (4) Where a person is at the
time unconscious of the nature of the act, and this is known to the accused.… [¶] (5)
Where a person submits under the belief that the person committing the act is the victim’s
spouse, and this belief is induced by any artifice, pretense, or concealment practiced by
the accused, with intent to induce the belief. [¶] (6) 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.… [¶] (7) Where the act is accomplished against the victim’s will by threatening
to use the authority of a public official to incarcerate, arrest, or deport the victim or
another, and the victim has a reasonable belief that the perpetrator is a public official.…”
(Italics added.) The current section 261 is not structurally different than the former
section. Textually, the only change of note from the former statute to the current statute
was to section (5) of section 261, rape by artifice, pretense, or concealment, where the
crime was expanded from the victim submitting under the belief that the person
committing the act was the victim’s spouse to the belief that the person was “someone
known to the victim other than the accused.”

                                             20
not to be construed as creating several offenses of rape based upon that single act.” (Id.
at p. 455.)
       The defendant in Craig was convicted of two counts of rape based on a single act
of intercourse committed without consent and against the will of the 16-year-old victim.
(Craig, supra, 17 Cal.2d at p. 454.) The first count alleged rape by force and the second
count alleged the victim was under the age of consent. (Ibid.) The Craig court held,
“There has been a violation of but one statute -- section 261 of the Penal Code.[9] And,
while the proof necessarily varies with respect to the several subdivisions of that section
under which the charge may be brought, the sole punishable offense under any and all of
them is the unlawful intercourse with the victim.… [O]nly one punishable offense of
rape results from a single act of intercourse, though it may be chargeable in separate
counts when accomplished under the varying circumstances specified in the subdivisions
of section 261 of the Penal Code.” (Id. at p. 458.)
       This view of section 261 was recently reaffirmed in Gonzalez, supra, 60 Cal.4th
533. In Gonzalez, our high court held a defendant could be convicted of both oral



9  Statutory rape, now commonly known as “unlawful sexual intercourse with a minor,”
is now separately defined under section 261.5. “At the time Craig was decided, former
section 261 read in full as follows: ‘Rape is an act of sexual intercourse, accomplished
with a female not the wife of the perpetrator, under either of the following circumstances:
[¶] 1. Where the female is under the age of eighteen years; [¶] 2. Where she is
incapable, through lunacy or other unsoundness of mind, whether temporary or
permanent, of giving legal consent; [¶] 3. Where she resists, but her resistance is
overcome by force or violence; [¶] 4. Where she is prevented from resisting by threats
of great and immediate bodily harm, accompanied by apparent power of execution, or by
any intoxicating narcotic, or anesthetic, substance, administered by or with the privity of
the accused; [¶] 5. Where she is at the time unconscious of the nature of the act, and this
is known to the accused; [¶] 6. Where she submits under the belief that the person
committing the act is her husband, and this belief is induced by any artifice, pretense, or
concealment [practiced] by the accused, with intent to induce such belief.’ (As amended
by Stats. 1913, ch. 122, § 1, p. 212.)” (People v. Gonzalez (2014) 60 Cal.4th 533, 539,
fn. 2 (Gonzalez).)

                                             21
copulation of an unconscious person and oral copulation of an intoxicated person (§ 288a,
subds. (f), (i)10) based on a single act. In so doing, the court reaffirmed Craig and



10  Former section 288a in effect and applicable in Gonzalez provided in pertinent part:
“(a) Oral copulation is the act of copulating the mouth of one person with the sexual
organ or anus of another person. [¶] (b)(1) 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. [¶] (2) Except as provided in Section 288, any
person over 21 years of age who participates in an act of oral copulation with another
person who is under 16 years of age is guilty of a felony. [¶] (c)(1) Any person who
participates in an act of oral copulation with another person who is under 14 years of age
and more than 10 years younger than he or she shall be punished by imprisonment in the
state prison for three, six, or eight years. [¶] (2) 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. [¶] (3) Any person who commits an act of oral copulation 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, shall be punished by imprisonment in the state prison for three, six, or
eight years. [¶] (d) 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 (1) 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
(2) 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 (3) 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.…
[¶] (e) Any person who participates in an act of oral copulation while confined in any
state prison, as defined in Section 4504 or in any local detention facility as defined in
Section 6031.4, shall be punished by imprisonment in the state prison, or in a county jail
for a period of not more than one year. [¶] (f) Any person who commits an act of oral
copulation, and the victim is at the time unconscious of the nature of the act and this is
known to the person committing the act, shall be punished by imprisonment in the state
prison for a period of three, six, or eight years.… [¶]…[¶] (g) Except as provided in
subdivision (h), any person who commits an act of oral copulation, and the victim is at
the time incapable, because of a mental disorder or developmental or physical disability,

                                             22
distinguished section 288a from section 261. (Gonzalez, at pp. 538-540.) The court
noted that in Craig it had “concluded, based on the wording and structure of the statute,
that former section 261 set forth only one offense that could be committed under several
different circumstances, as described in its several subdivisions.” (Id. at p. 539.)
“Section 288a is textually and structurally different from former section 261.
Subdivision (a) of section 288a defines what conduct constitutes the act of oral
copulation. Thereafter, subdivisions (b) through (k) define various ways the act may be
criminal. Each subdivision sets forth all the elements of a crime, and each prescribes a
specific punishment. Not all of these punishments are the same. That each subdivision
of section 288a was drafted to be self-contained supports the view that each describes an
independent offense….” (Id.)



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 three, six,
or eight years.… [¶] (h) Any person who commits an act of oral copulation, and 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, and both the defendant and the victim are at the time
confined in a state hospital for the care and treatment of the mentally disordered or in any
other public or private facility for the care and treatment of the mentally disordered
approved by a county mental health director, shall be punished by imprisonment in the
state prison, or in a county jail for a period of not more than one year.… [¶] (i) Any
person who commits an act of oral copulation, where the victim is prevented from
resisting by any intoxicating or anesthetic substance, or any controlled substance, and this
condition was known, or reasonably should have been known by the accused, shall be
punished by imprisonment in the state prison for a period of three, six, or eight years. [¶]
(j) Any person who commits an act of oral copulation, where the victim submits under
the belief that the person committing the act is the victim’s spouse, and this belief is
induced by any artifice, pretense, or concealment practiced by the accused, with intent to
induce the belief, shall be punished by imprisonment in the state prison for a period of
three, six, or eight years. [¶] (k) Any person who commits an act of oral copulation,
where the act is accomplished against the victim’s will by threatening to use the authority
of a public official to incarcerate, arrest, or deport the victim or another, and the victim
has a reasonable belief that the perpetrator is a public official, shall be punished by
imprisonment in the state prison for a period of three, six, or eight years.”

                                             23
        While textually different from the former section 261 analyzed in Craig, the
former section 261 in effect and applicable to defendant and the current version are not
structurally different from their predecessor,11 and the current rape statute remains
textually and structurally different from section 288a.12 Like the former section 261, the
current statute sets forth only one offense that can be committed under several different
circumstances, as described in its several subdivisions. The punishment for rape is set
forth in a separate section, which specifies that all forms of rape have the same
punishment except for rape by means of force, violence, duress or fear of injury
perpetrated upon a minor under 14 or a minor over 14. (§ 264, subds. (a), (c), (d).)
        While the parties agree defendant cannot stand convicted of two separate counts of
rape, they disagree on the remedy. Our high court in Craig established the appropriate
remedy. “The ‘judgments’ entered by the trial court should be modified to the extent of
consolidating them into a single judgment.” (Craig, supra, 17 Cal.2d at p. 458.) Thus,
the Craig court modified the judgment to state that the defendant had been found guilty
of rape “as defined and proscribed by the subdivisions 1 and 3 of [former section 261],
and as charged in counts 1 and 2…, being separate statements of the same offense….”
(Id. at p. 459.)13




11   See footnotes 8 and 9, ante.
12 See footnote 10, ante, for the former section 288a analyzed in Gonzalez, supra, 60
Cal.4th 533. There have since been two amendments to section 288a, the most recent
effective September 2013. While there have been textual changes not relevant here, the
current section 288a is not structurally different from its predecessors.
13 The same offense can be alleged in different counts, but as “different statements of the
same offense.” (§ 954; see also Craig, supra, 17 Cal.2d at p. 456.) Here, the information
erroneously alleged that count two was “a different offense of the same class of crimes
and offenses as the charges set forth in Count One….” (Italics added.)

                                             24
       Defendant argues that we should pick out one count and strike it. However, his
cited authorities are inapposite. Neither case involves section 261 nor mentions Craig.
       In People v. Shabtay (2006) 138 Cal.App.4th 1184, a case relied upon by
defendant, the defendant was convicted of two counts of grand theft by possession of
access card numbers of 11 victims. The Shabtay court held that the plain language of
section 484e, subdivision (b) -- defining an offense of grand theft where a person “within
any consecutive 12-month period, acquires access cards issued in the names of four or
more persons which he or she has reason to know were taken or retained” with intent to
defraud -- precluded multiple convictions where the prosecution alleged the defendant
acquired all the access cards within a consecutive 12-month period. (Id. at p. 1191.) The
Shabtay court reversed the conviction on one of the two counts. (Id. at p. 1192.)
       Defendant’s other cited authority, People v. Packard (1982) 131 Cal.App.3d 622,
is also off point. There, the prosecution alleged three counts of grand theft for taking
money and personal property exceeding $200 in value from his employer. Each count
alleged theft in a separate year -- 1976, 1977, and 1978. The People did not contend the
defendant had three separate yearly schemes but instead argued three counts were proper
because section 487, subdivision 1, stated that where the value of money or property
taken by an employee from his employer totaled $200 or more in any 12 consecutive
month period, “ ‘then the same shall constitute grand theft.’ ” (Id. at p. 626.) The
appellate court reversed two of the counts, stating the only reasonable conclusion
supported by the record was that the defendant had a single continuing plan or scheme for
stealing from his employer and should have been convicted of only a single grand theft.
(Id. at pp. 626-627.) These court of appeal theft cases have no bearing on the appropriate
remedy here, where the issue relates to a single act of intercourse committed under two
statutory circumstances set forth in section 261, particularly where our high court has
expressly spoken about the matter. (Auto Equity Sales, Inc. v. Superior Court (1962) 57
Cal.2d 450, 455.)

                                             25
       The People commendably acknowledge a case not cited by defendant, in which
this court ordered a second count stricken where the defendant was convicted of rape of
an intoxicated woman and rape of an unconscious woman based on a single act of
intercourse. (People v. Smith (2010) 191 Cal.App.4th 199, 205.) However, the argument
that the proper remedy is to consolidate raised by the People in this appeal was not
addressed in Smith. Cases are not authority for propositions not therein considered.
(People v. Scheid (1997) 16 Cal.4th 1, 17.)
       Here, the People argue that consolidation is appropriate, because properly
identifying all of the subdivisions under which a defendant violated the rape statute may
be important. Although rape is a unitary offense, violations of different subdivisions may
have distinct penal consequences. For example, rape of an intoxicated victim (§ 261,
subd. (a)(3)) subjects a defendant to consecutive sentencing, an enhancement, and a fine
under section 667.6, subdivision (e),14 but rape of an unconscious victim (§ 261,
subd. (a)(4)) does not. Violations of other subdivisions of section 261 also have distinct
consequences. For example, section 667.61, subdivision (c), calls for sentence
enhancement for rape in violation of section 261, subdivision (a)(2) [force] or (a)(6)
[threat of force]. Section 290.008 requires registration as a sex offender of a person
discharged or paroled following confinement as a juvenile delinquent for rape under
section 261, subdivision (a), paragraphs (1) [mental or physical disability rendering
victim incapable of consent], (2) [force], (3) [intoxicated victim], or (4) [unconscious
victim]. Section 290.46 affords the public Internet website access to a list of sex
offenders including rapists under section 261, subdivision (a)(2) [force] or (a)(6) [threat].



14  Section 667.6, subdivision (e), states, “This section shall apply to the following
offenses: [¶] (1) Rape, in violation of paragraph (2) [force], (3) [intoxicated victim
rendered unable to consent], (6) [threat to retaliate by kidnap, false imprisonment, or
infliction of pain, serious bodily injury, or death], or (7) [threat to use authority of public
official to arrest, incarcerate, or deport victim] of subdivision (a) of Section 261.…”

                                              26
Section 1203.065, subdivision (a), prohibits probation for rapists who use force or threat
of force, and in subdivision (b), limits probation where rape is committed by a threat to
arrest, incarcerate or deport the victim. Vehicle Code section 13377, subdivision (a)(2),
prohibits issuance of a tow truck driver certificate to a person convicted of rape under
section 261, subdivision (a), paragraphs (1) [disabled victim], (2) [force], (3) [intoxicated
victim], or (4) [unconscious victim]. In the future, there may be additional penal
consequences for convictions of various subdivisions of the rape statute as a result of
additional legislation or new enactments by the voters.
       A jury convicted defendant beyond a reasonable doubt of both forms of rape. We
decline to pick out one of the counts and strike it. Instead, we apply the remedy our high
court employed more than 70 years ago in Craig and modify the judgment by
consolidating the two counts to reflect a conviction for a single count of rape for
violations of section 261, subdivisions (a)(3) and (a)(4).
                                     II. DNA Evidence
       Defendant argues that the DNA evidence “was so flawed, unreliable, and unfairly
prejudicial” that its admission violated due process. Attempting to analogize the DNA
evidence to impermissibly suggestive identification procedures, defendant contends the
evidence should have been excluded and, without it, the evidence is insufficient to
support the judgment. We reject his claims.
                                       A. Forfeiture
       Defendant has forfeited his evidentiary challenge to the DNA evidence because in
the trial court he did not seek to exclude the DNA evidence on the grounds he asserts
here. (Evid. Code, § 353; McDaniel v. Brown (2010) 558 U.S. 120, 134-136 [175
L.Ed.2d 582, 591-593] (McDaniel) [claim that DNA evidence constituted impermissibly
suggestive identification evidence could not be raised for the first time in certiorari to the
United States Supreme Court]; People v. Medina (1995) 11 Cal.4th 694, 753 [defendant’s
failure to object in trial court forfeited claim that identification procedure was unduly

                                              27
suggestive and unreliable]; People v. Cua (2011) 191 Cal.App.4th 582, 591 (Cua) [failure
to object at trial to the scientific foundation for DNA evidence forfeited the claim for
appeal].)
       In Cua, the court of appeal observed that there is no categorical prohibition on
source attribution -- the expression of an opinion by a qualified expert that based on the
quantitative and qualitative correspondence between an evidentiary sample and a known
sample from the defendant that the defendant is the source of the DNA in the evidentiary
sample. The court held that an expert is not necessarily precluded from expressing such
an opinion, and the defendant failed to meet his burden to show that the trial court erred
in not excluding the evidence sua sponte. (Cua, supra, 191 Cal.App.4th at pp. 600-601.)
The court further stated that if the defendant had any factual or legal basis for objecting to
the expert testimony, it was his obligation to state the specific grounds for the objection.
(Id. at p. 601.) Had he done so, the prosecution could have elicited further evidence, and
the trial court would have had the opportunity to make a fully informed ruling. (Id.) The
same holds true here. Defendant had an obligation to object in the trial court on the
grounds he belatedly asserts on appeal if he wished to preserve his claim.
       Defendant notes reviewing courts have discretion to address substantial
constitutional issues despite the appellant’s failure to raise them in the trial court.
However, such discretion is generally exercised for good reason. (Hale v. Morgan (1978)
22 Cal.3d 388, 394 [considered on appeal a matter that presented a question of law on
undisputed facts]; People v. Blanco (1992) 10 Cal.App.4th 1167, 1172-1173 [matter of
significance likely to be raised in habeas corpus petition].) Defendant offers no reason to
excuse his forfeiture, which indeed appears to have been a tactical attempt to exploit a
weakness in the DNA evidence and avoid motivating the prosecution to attempt to
buttress its case by retesting, and defendant gives no reason why we should exercise
discretion in this case involving a factual dispute. Instead, he falls back on a claim of
ineffective assistance of counsel, which we reject, post.

                                              28
                         B. Admissibility of the DNA Evidence
       Even if we were to consider the appellate challenge to the DNA evidence, it lacks
merit. Defendant relies on cases discussing the exclusion of unreliable eyewitness
identification testimony tainted by improperly suggestive procedures that created a
substantial likelihood of misidentification by the eyewitness. (Perry v. New Hampshire
(2012) ___ U.S. __ [181 L.Ed.2d 694, 701]; Neil v. Biggers (1972) 409 U.S. 188, 198 [34
L.Ed.2d 401]; Simmons v. United States (1968) 390 U.S. 377, 384 [19 L.Ed.2d 1247],
criticized on other grounds in McGautha v. California (1971) 402 U.S. 183, 212 [28
L.Ed.2d 711]; Stovall v. Denno (1967) 388 U.S. 293, 301-302 [18 L.Ed.2d 1199]; Abdur
Raheem v. Kelly (2d Cir. 2001) 257 F.3d 122, 133.) However, such cases are inapposite.
They require exclusion of eyewitness identification in order “to deter police from rigging
identification procedures, for example, at a lineup, showup, or photograph array. When
no improper law enforcement activity is involved,…it suffices to test reliability through
the rights and opportunities generally designed for that purpose, notably, the presence of
counsel at postindictment lineups, vigorous cross-examination, protective rules of
evidence, and jury instructions on both the fallibility of eyewitness identification and the
requirement that guilt be proved beyond a reasonable doubt.” (Perry, at p. __ [181
L.Ed.2d at p. 703].) In determining the reliability of an in-court eyewitness identification
after an impermissibly suggestive out-of-court identification procedure, courts consider
the opportunity of the witness to view the suspect at the time of the offense, the witness’s
degree of attention at the time of the offense, the accuracy of his or her description of the
suspect, the level of certainty, and the lapse of time between the offense and the
identification. (Manson v. Brathwaite (1977) 432 U.S. 98, 114 [53 L.Ed.2d 140].) None
of these factors bears on the question whether a defendant’s DNA matches DNA from a
vaginal swab taken from a victim or the admissibility of DNA evidence or expert opinion
testimony regarding that evidence. And defendant has cited no other grounds supporting
his argument that the DNA evidence here should not have been admitted.

                                             29
       Nickel described the testing process, explained his observations, explained why he
thought the third allele at D-5 was carryover, and provided the jury with alternatives. He
agreed it was possible that the third allele came from an unknown male contributor or
Beto. And he agreed he had no “scientific basis” for his carryover conclusion, but relied
upon his background, training, and experience in opining that the most likely explanation
for the third allele at D-5 was carryover. The defense offered no contrary expert
testimony in trial or as part of a pretrial motion to exclude the evidence.15 Instead,
defense counsel cross-examined the witness to probe any weakness in the testimony and
then used the weaknesses in the DNA evidence to defendant’s advantage, by arguing to
the jury that the third allele created reasonable doubt of defendant’s guilt. As defense
counsel undoubtedly understood, any shortcomings related to the DNA evidence and the
expert interpretation of that evidence went to the weight of the evidence and expert
opinion, not to its admissibility. (See People v. Stevey (2012) 209 Cal.App.4th 1400,
1414, 1417-1419 [the fact that Y–STR DNA testing cannot positively identify an
individual does not mean the test is unreliable or that the results are not probative -- like a
shoeprint that could match the shoes of people other than the defendant, the probative
value of Y-STR testing is a question of weight, not admissibility; challenges to the
interpretation of whether peaks represent alleles based on the level of RFUs goes to the
weight of the evidence, not its admissibility]; People v. Henderson (2003) 107
Cal.App.4th 769, 788 [complications of analyzing multiple source DNA in an evidence
sample does not affect the admissibility of the DNA evidence, but instead is a
consideration for the jury in weighing the evidence and determining the credibility and
accuracy of the DNA test results; jurors can distinguish and assign weight based on the



15 We note that defendant was represented by “DNA counsel,” who filed motions,
conducted the cross-examination of witnesses, and gave closing argument related to the
DNA evidence.

                                              30
description of the results obtained from DNA testing]; People v. Smith (2003) 107
Cal.App.4th 646, 672 [challenges regarding errors in DNA analysis of mixed samples
should be directed to the weight of the evidence and not its admissibility].)
       We conclude the evidence was admissible and there was no due process violation.
                           C. Ineffective Assistance of Counsel
       We also reject defendant’s claim of ineffective assistance of counsel. To prevail
on such a claim, a defendant must show (1) counsel’s performance was below an
objective standard of reasonableness under prevailing professional norms, and (2) the
deficient performance prejudiced defendant. (Strickland v. Washington (1984) 466 U.S.
668, 688, 691-692 [80 L.Ed.2d 674] (Strickland); People v. Ledesma (1987) 43 Cal.3d
171, 216-217 (Ledesma).) “ ‘Surmounting Strickland’s high bar is never…easy.’ ”
(Harrington v. Richter (2011) 562 U.S. 86, __ [178 L.Ed.2d 624, 642] (Richter), quoting
Padilla v. Kentucky (2010) 559 U.S. 356, ___ [176 L.Ed.2d 284, 297].)
       The reason why Strickland’s bar is high is because “[a]n ineffective-assistance
claim can function as a way to escape rules of waiver and forfeiture and raise issues not
presented at trial, and so the Strickland standard must be applied with scrupulous care,
lest ‘intrusive post-trial inquiry’ threaten the integrity of the very adversary process the
right to counsel is meant to serve. [Citation.] … Unlike a later reviewing court, the
attorney observed the relevant proceedings, knew of materials outside the record, and
interacted with the client, with opposing counsel, and with the judge. It is ‘all too
tempting’ to ‘second-guess counsel’s assistance after conviction or adverse sentence.’
[Citations.]” (Richter, supra, 562 U.S. at p. __ [178 L.Ed.2d at pp. 642-643], italics
added.) If the record sheds no light on why counsel failed to raise a point in the trial
court, we reject the claim of ineffective assistance of counsel unless trial counsel failed to
provide an explanation at the trial court’s request, or unless there could be no satisfactory
explanation. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)



                                              31
       Here, defendant fails to meet his burden. He simply argues there can be no
rational reason for trial counsel not to preserve this substantial statutory and
constitutional issue. “A court considering a claim of ineffective assistance must apply a
‘strong presumption’ that counsel’s representation was within the ‘wide range’ of
reasonable professional assistance.” (Richter, supra, 562 U.S. at p. __ [178 L.Ed.2d at
p. 632.) Moreover, here there are obvious reasons for not objecting. The objection
defendant asserts on appeal would have been without merit as we have explained.
Furthermore, trial counsel’s obvious strategy was to exploit the perceived weakness of
the DNA evidence. In limine exclusion of the evidence would have forced the
prosecution to retest. Presumably trial counsel spoke with his client and obtained
confidential information that is not part of the record. Additionally, DNA counsel likely
understood the odds of someone other than defendant sharing 14 alleles out of 15 alleles
with defendant and differing by a tri-allele at the 15th allele. Given that information and
the prospect that a clean retest without carryover would show that all 15 alleles matched
defendant’s alleles, it made more sense to argue absence of a match based on the original
test. The same could be said for defense counsel’s decision not to obtain and present an
independent test. An attorney need not pursue a course of action that would be fruitless,
much less one that might be harmful to the defense. (Id. at p. 644.) Defendant fails to
show deficient performance by counsel.
       Furthermore, defendant also fails to show prejudice. To establish prejudice, “[i]t
is not enough ‘to show that the errors had some conceivable effect on the outcome of the
proceeding.’ ” (Richter, supra, 562 U.S. at p. __ [178 L.Ed.2d at p. 642].) To show
prejudice, defendant must show a reasonable probability that he would have received a
more favorable result had counsel’s performance not been deficient. (Strickland, supra,
466 U.S. at pp. 693-694; Ledesma, supra, 43 Cal.3d 171, at pp. 217-218.) Defendant has
not shown by his own independent test or any other evidence that the result of a retest
would have been favorable to him. Nor has he submitted expert opinion evidence

                                              32
contradicting Nickel’s opinion that the most likely explanation for the third allele at D-5
is carryover. Consequently, defendant has not carried his burden of showing a reasonable
probability he would have obtained a more favorable result.
       Defendant has not shown that counsel’s failure to object to the DNA evidence
based on the grounds he asserts on appeal amounted to constitutionally ineffective
assistance of counsel.
                              D. Sufficiency of the Evidence
       To the extent that defendant argues the evidence was insufficient to support the
judgment, we disagree. The DNA evidence was properly admitted and, once admitted, it
becomes a question of what weight the trier of fact gives to it. On review, the proper test
is whether a rational trier of fact could find on the entire record that the defendant was
guilty beyond a reasonable doubt. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) We
view the evidence in the light most favorable to the prosecution (Jackson v. Virginia
(1979) 443 U.S. 307, 319 [61 L.Ed.2d 560]; People v. Holt (1997) 15 Cal.4th 619, 667),
even if some of the evidence was called into question. (McDaniel, supra, 558 U.S. at
p. ___ [175 L.Ed.2d at p. 590].) Substantial evidence includes circumstantial evidence
and any reasonable inferences that can be drawn therefrom. (People v. Lopez (2013) 56
Cal.4th 1028, 1069-1070.) Here, the combination of the DNA evidence and other
circumstantial evidence was sufficient to support the judgment. The DNA testing of the
sperm fragment from the vaginal swab matched defendant at 14 loci. It is uncontroverted
that the major profile is not Beto and it is not defendant’s son. That leaves the only other
male in the house, defendant. Unless there was some unknown male at the house who
had intercourse with the victim who had the exact same profile at every location except
one, where a potential triallele is located, then it must have been defendant who was the




                                             33
perpetrator. Nickel was not aware of any cases documenting a 14-loci match in samples
from different people. Nor did defendant introduce any evidence indicating as much.16
       There was also non-DNA evidence. Defendant’s slippers were found next to the
bed, as were the victim’s clothes, and when the victim went to bed, she was fully clothed.
Defendant had no explanation for why his slippers were by the bed when confronted with
this assertion during the pretext call. His shirt was also found on the floor. When
confronted by Sophia about the shirt, the victim remembered that defendant said he
brought it to her because she was cold, and Beto said defendant claimed the victim had
asked him for a shirt. She had not. The jury was not required to accept the explanation
defendant gave for this evidence at trial. Moreover, even at trial, defendant never
expressly denied the rape. Instead, he just claimed he did not remember it, even though
during the pretext call, which came out of the blue months after the night in question, he
remembered other details of that night, e.g., that his son’s girlfriend purportedly asked
him for a shirt, that he provided her with a shirt, and that the shirt was black; that he took
hits off a bottle and also had beer; that he smoked from a bong with his son’s girlfriend;
that his son’s girlfriend tried to get the victim to smoke; that the victim declined the
marijuana; that he passed out in the living room while playing the video game; that Beto
woke him; that he went to bed in his bedroom; and that he woke up fully clothed.
       There is sufficient evidence to support defendant’s conviction.
                      III. Jury Instruction on Adoptive Admission
       Defendant argues the trial court erred in instructing the jury on adoptive
admissions over defense objection. We disagree.




16 See People v. Robinson (2010) 47 Cal.4th 1104, 1115 [defendant’s DNA was
analyzed at 13 loci and the prosecution expert testified that there had been no reported
cases of two people who are not identical twins matching at all 13 loci].

                                              34
                                       A. Background
       In discussing jury instructions, defense counsel objected to the court instructing
the jury with CALCRIM No. 357 on adoptive admissions, arguing there was no basis or
need for it. The prosecutor said he offered the instruction primarily to protect defendant
because he had made statements that the jury could construe as admissions. The trial
court cited (1) the pretext phone call and (2) Sophia confronting defendant, apparently
about his shirt being in her room. When the discussion turned to the “consciousness of
guilt: false statements” instruction (CALCRIM No. 36217) -- which was given to the jury
but not at issue on appeal -- the prosecutor noted the overlap between the two
instructions, in that the jury may believe defendant lied to the victim in the pretext call
when he said he did not remember having sex with her. The prosecutor added there was
evidence that defendant falsely said the victim asked him for the shirt.
       Regarding adoptive admissions, the trial court instructed the jury:
       “If you conclude that someone made a statement outside of court that accused the
defendant of the crime and the defendant did not deny it, you must decide whether each
of the following is true:
       “1. The statement was made to the defendant or made in his presence;
       “2. The defendant heard and understood the statement;
       “3. The defendant would, under all the circumstances, naturally have denied the
statement if he thought it was true;
       “AND




17  The court instructed the jury: “If the defendant made a false or misleading statement
before this trial relating to the charged crime, knowing the statement was false or
intending it to mislead, that conduct may show he was aware of his guilt of the crime and
you may consider it in determining his guilt. [¶] If you conclude that the defendant made
the statement, it is up to you to decide its meaning and importance. However, evidence
that the defendant made such a statement cannot prove guilt by itself.”

                                              35
       “4. The defendant could have denied it but did not.
       “If you decide that all of these requirements have been met, you may conclude that
the defendant admitted the statement was true.
       “If you decide that any of these requirements has not been met, you must not
consider either the statement or the defendant’s response for any purpose.”
                                            B. Analysis
       Defendant argues there were no adoptive admissions, and therefore it was error to
instruct on adoptive admissions. We find no error and, even assuming error, find no
prejudice.
       Evidence Code section 1221 provides, “Evidence of a statement offered against a
party is not made inadmissible by the hearsay rule if the statement is one of which the
party, with knowledge of the content thereof, has by words or other conduct manifested
his adoption or his belief in its truth.”
       This statute “contemplates either explicit acceptance of another’s statement or
acquiescence in its truth by silence or equivocal or evasive conduct.” (People v. Combs
(2004) 34 Cal.4th 821, 843 (Combs).) Admissibility of an adoptive admission is
appropriate when a person is accused of having committed a crime under circumstances
that fairly afford him an opportunity to hear, understand, and reply, and which do not
lend themselves to an inference that he was relying on his constitutional right to remain
silent, and he fails to speak or makes an evasive or equivocal reply. (People v. Riel
(2000) 22 Cal.4th 1153, 1189.) A direct accusation of crime is not essential. (Ibid.) The
evidence must show the defendant participated in a conversation in which a crime was
discussed and the circumstances offered him the opportunity to deny responsibility or
otherwise dissociate himself from the crime but that he did not do so. (People v. Davis
(2005) 36 Cal.4th 510, 539.)
       Here, in the pretext call, the victim opened the conversation by accusing defendant
of “rape,” a crime. Defendant discussed it with her, but never denied responsibility.

                                                36
Defendant argues his statements were not adoptive admissions because he repeatedly
qualified his apologies with “if it happened.” However, although he claimed he did not
remember having sex with her -- the truth of which was for the jury to decide -- he did
not denounce the possibility as outlandish. The jury could find that his purported lack of
recollection of a sexual encounter was “equivocal or evasive conduct” (Combs, supra, 34
Cal.4th at p. 843), particularly because he purported to remember so many other specifics
about that night, including what would have been an otherwise relatively inconsequential
request by Karolyn to borrow one of his shirts.
       The pretext call alone justified the instruction on adoptive admissions.
       As to defendant’s response to Sophia’s question why his shirt was in her room --
because Karolyn asked for or needed a shirt -- the People on appeal impliedly concede
this was not an adoptive admission. Sophia’s question was not an accusation of a crime
calling for a denial of responsibility or an attempt to otherwise dissociate himself. This
response to Sophia’s question was consistent with his statement during the pretext call,
his trial testimony, and Karolyn’s testimony.
       Even assuming for the sake of argument that there was instructional error, it would
not warrant reversal of the judgment. Defendant urges the prejudice standard of
Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705], but argues there is
prejudice even under People v. Watson (1956) 46 Cal.2d 818. The People argue there
was no prejudice under either standard. We agree with the People.
       Defendant does not explain how he was prejudiced by the adoptive admission
instruction. He merely makes a conclusory argument that this was a circumstantial
evidence case. He focuses on evidence favorable to his position, e.g., the victim herself
did not remember defendant doing anything to her; the victim often engaged in binge-
drinking causing blackouts or memory lapses; the victim continued to visit defendant’s
home after that night; there was a weakness in the DNA evidence; and witnesses testified
to defendant’s good character. Defendant adds that the jury at his first trial was unable to

                                             37
reach a verdict. He argues the jury in this second trial considered this a troubling case
because the jury deliberated for about five hours before arriving at a verdict. None of
these points hint at prejudice from the adoptive admission instruction.
       Defendant argues that, because no evidence qualified as an adoptive admission,
the instruction could have misled the jurors to think there was such evidence when in fact
there was none. However, the pretext call at a minimum qualified as implicit adoptive
admission subject to the jury’s findings. Permitting the jury to determine whether
defendant’s words admitted anything, as juries are regularly called upon to do, does not
compromise defendant’s constitutional right to silence. (People v. Castille (2005) 129
Cal.App.4th 863, 881.) The jury was not told that defendant’s statement to Sophia about
the shirt was an adoptive admission, and no one argued that point to the jury. The court
gave the jury the standard instruction that some instructions may not apply. It was for the
jury to decide whether defendant made an adoptive admission. The jury was not
mandated by the instruction to find an admission. Moreover, the adoptive admission
instruction told the jury not to use any of the statements for “any purpose” unless all of
the requirements were satisfied. The instruction thus protected defendant. Indeed, by
telling the jury it could not use the statements “for any purpose” if the predicates for an
adoptive admission were not met, the jury was, in effect, told it could not use the
statements as evidence of defendant’s consciousness of guilt either.
       The prosecutor in closing argument to the jury did not argue that defendant
admitted the rape. Instead, the prosecutor argued to the jury that the pretext call showed
motive in that defendant admitted he was attracted to the victim and knew he had no
chance with her. In rebuttal argument, the prosecutor noted defense counsel said his
client was genuine on that phone call, but “Even [defendant] said, I wasn’t genuine. I
was just trying to defuse the situation. So all that stuff I said, I didn’t really mean it. [¶]
And if it sounds bad, that’s what his own client said.” The prosecutor also noted in
rebuttal argument that defense counsel said defendant denied the rape, and “Of course, he

                                               38
denied it. There’s really only a couple of defenses in a sex case: I wasn’t there. It’s an
alibi. I am not there. You consented. And that’s generally about it. Or the other one,
that’s kind of ridiculous is, I don’t remember. [¶] That’s all he’s ever said. How hard is
it to say that? I don’t remember, I don’t know. [¶] That’s ridiculous, when you start
thinking about it in a sexual manner.”
       We conclude there was no instructional error and, even assuming error, it was not
prejudicial.
                                 IV. Cumulative Error
       In a single sentence, defendant argues the cumulative effect of trial errors rendered
his trial unfair. We disagree.
                         V. Failure to Strike Prior Conviction
       Defendant argues the trial court abused its discretion in denying his motion to
strike the prior conviction used as a strike. (§ 1385, subd. (a); People v. Superior Court
(Romero) (1996) 13 Cal.4th 497, 530 (Romero).) We disagree with this assertion as well.
                                     A. Background
       The prior serious felony conviction was a 1991 conviction for assault with a
deadly weapon. According to defendant’s memorandum of points and authorities
supporting his motion to strike the strike allegation, this crime occurred when he found
his then-wife cheating on him with another man, became enraged, and hit or threw
something at the man’s head. The probation report states defendant “burst into” the
house where the assault was committed. The prosecution’s sentencing brief states that
according to the police report, defendant forced his way into the residence of the
boyfriend of an ex-girlfriend, chased the boyfriend upstairs and struck him in the head
with a candleholder. A witness saw a hunting knife fall out of defendant’s pocket as he
ran up the stairs. The witness observed defendant repeatedly strike the victim with his
fist and a candleholder and had to pull defendant off the victim to stop the attack. The
victim sustained a bleeding gash on the side of his head and a large hematoma to his

                                            39
forehead. The knife was recovered from the scene. According to the prosecutor,
defendant was charged with violations of sections 459 and 245, subdivision (a)(1).
Defendant pleaded no contest and was placed on formal probation for five years and
ordered to serve 180 days of work furlough as a condition of probation. After he
successfully completed probation, the conviction was expunged. (§ 1203.4.)
        In 1989, defendant sustained a conviction for misdemeanor spousal battery
(§ 273.5), and received a sentence of 10 days in jail and three years of informal
probation. According to defendant’s motion, this crime occurred when defendant came
home to find his then-wife using methamphetamine with a male and female. Defendant
said he struck his wife as she tried to stop him from fighting with the male. The
probation report states that defendant struck his live-in girlfriend in the face several times
with his fists and then struck her in a face with a baton. The prosecution stated in its
sentencing brief that the police report stated defendant struck his girlfriend in the face
with his fists, threw her down on the floor, ripped her shirt off, and then struck a different
woman in the face with the baton.
        In 1992, defendant sustained a conviction for misdemeanor assault, and received a
sentence of 30 days in county jail plus one year of informal probation. According to
defendant’s motion, this crime occurred after he heard his estranged wife was going to
travel to Mexico to engage in drug trafficking. He called police to conduct a welfare
check on his wife and to get their children out of the home. As the police were leaving
after the welfare check, defendant assaulted his estranged wife’s lover and caused “minor
injuries” by bumping the lover’s head on the ground and biting him. However, the
probation report states that defendant was observed sitting on the victim with his arm
around the victim’s neck. Defendant “hit the victim’s head against the road surface while
biting [him] on the left side of his neck.” An officer noted “the victim had a considerably
deep injury and was bleeding.” The victim also had several cuts and abrasions over his
body.

                                             40
       In 1993, defendant sustained a conviction for misdemeanor driving under the
influence (Veh. Code, § 23152, subd. (a)) and received two days in county jail and three
years of informal probation. His blood alcohol level was 0.16.
       In 2000, defendant sustained a conviction for misdemeanor battery (§ 242) and
received 30 days in jail and three years of informal probation. According to defendant’s
motion, this crime occurred when defendant became frustrated by the lack of police
response to his son being physically bullied and vandalism to his house. Defendant broke
up an attack on his son and head-butted the boy who was beating defendant’s son.
According to the prosecution’s sentencing brief, defendant found the boy in a Taco Bell
restaurant, grabbed him by the shoulders, pushed him up against a door, and head-butted
the boy. The boy’s mother stated that defendant had threatened to kill her family,
threatened to have his gang-banging friends “ ‘get’ ” her family, and made sexual threats
towards her.
       Defendant had no criminal convictions between 2000 and the November 28, 2009
offenses charged in this case. He was gainfully employed since age 16 until he became
disabled at age 45.
       Defense counsel argued most of the prior convictions occurred during a time when
he had ongoing domestic problems. The ex-wife was subsequently arrested, avoided a
life sentence by becoming a police informant in another state, and defendant won full
custody of his children.
       A Static-99R risk assessment was performed on defendant by an expert he
retained. The test indicated defendant has less than a five percent chance of sexual
offense recidivism.
       The trial court in denying the motion said there were valid arguments on both
sides, but found it was not in the interest of justice to strike the strike allegation because:
the prior strike was a violent offense; although there may have been “reasons and
explanations,” the other prior convictions indicated defendant, “at least at that point,” had

                                              41
a propensity for violence; and there is “implicit violence in the commission of any type of
rape.”
                                          B. Analysis
         A trial court has the authority to dismiss a strike conviction in the interests of
justice under section 1385, subdivision (a). (Romero, supra, 13 Cal.4th at p. 504) We
review the trial court’s decision for abuse of discretion. (People v. Carmony (2004) 33
Cal.4th 367, 374 (Carmony).) “In reviewing for abuse of discretion, we are guided by
two fundamental precepts. First, ‘ “[t]he burden is on the party attacking the sentence to
clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the
absence of such a showing, the trial court is presumed to have acted to achieve legitimate
sentencing objectives, and its discretionary determination to impose a particular sentence
will not be set aside on review.” ’ [Citations.] Second, a ‘ “decision will not be reversed
merely because reasonable people might disagree. ‘An appellate tribunal is neither
authorized nor warranted in substituting its judgment for the judgment of the trial
judge.’ ” ’ [Citations.] Taken together, these precepts establish that a trial court does not
abuse its discretion unless its decision is so irrational or arbitrary that no reasonable
person could agree with it.” (Id. at pp. 376-377, italics added.)
         In deciding whether to exercise its discretion to dismiss strike allegations, courts
must determine whether the defendant should be deemed outside the spirit of the three
strikes law and hence should be treated as though he had not previously been convicted
of one or more serious and/or violent felonies. (People v. Williams (1998) 17 Cal.4th
148, 161.) In making this determination courts must consider three factors: (1) the
nature and circumstances of his present felonies; (2) the nature and circumstances of the
strike offense; and (3) the particulars of the defendant’s background, character, and
prospects for the future. (Id. at p. 161.)




                                                42
       1. The Nature and Circumstances of the Current Offenses
       The instant case, while not involving overt violence, did involve defendant
sexually taking advantage of a house guest whose ability to resist or consent was clearly
affected by her intoxication, a condition defendant facilitated by allowing the victim, who
was under the legal age for drinking alcohol, to use his home for that purpose.
       2. The Nature and Circumstances of the Strike Offense
       The 1991 incident could actually have resulted in two strikes -- residential
burglary for defendant’s forcing his way into the home of his ex-girlfriend’s new
boyfriend, and the assault with a deadly weapon. It also appears, based on the
prosecutor’s uncontroverted assertion in his sentencing brief, that defendant was armed
with a knife when he entered, but dropped the knife in his pursuit of the victim. It further
appears that defendant would not have stopped his assault with the candleholder if he had
not been pulled off the victim. The victim sustained a gash and large hematoma to his
forehead.
       3. Defendant’s Background, Character, and Prospects for the Future
       Defendant had four prior convictions involving violence. While he argues his own
version of events to mitigate the propensity for violence, the trial court was not required
to accept defendant’s mitigated version of the prior convictions as an excuse for his resort
to violence, just as the jury was not required to accept defendant’s mitigated version of
what happened in the instant case. Moreover, regardless of defendant’s reasons, the trial
court quite accurately found that defendant’s prior conduct evinced a propensity for
violence. Regarding the 1999 battery, police investigation revealed that the victim’s
mother said defendant had made sexual threats to her and threatened to kill her family
before defendant committed the battery.18 Finally, defendant’s prospects were not



18As we have noted, the assertion that defendant made sexual threats to the victim’s
mother appears in the prosecution’s sentencing brief. There was no supporting exhibit,

                                             43
encouraging due to his long history of alcohol and marijuana abuse -- including a history
of alcohol induced blackouts beginning at age 35 where “ ‘weekends would just
disappear’ ” -- and there was no indication defendant was willing to or had attempted to
address this problem.
       4. Abuse of Discretion
       Defendant fails to show abuse of discretion. He argues Romero requires
individualized consideration of a defendant’s particular circumstances, because every two
strikes defendant has at least one prior serious and/or violent felony conviction.
However, the trial court read and considered everything presented and gave consideration
to striking defendant’s strike allegation. And in any event, given the circumstances of the
strike prior, the circumstances of the current offense and defendant’s background,
character and prospects for the future, defendant has failed to show that the trial court’s
“decision is so irrational or arbitrary that no reasonable person could agree with it.”
(Carmony, supra, 33 Cal.4th at p. 377.)
       We conclude the trial court did not abuse its discretion in denying the Romero
motion.
              VI. People’s Request for Additional Fees and Assessment
       The People ask us to modify the judgment to include imposition of mandatory fees
and assessments which the trial court mistakenly failed to impose. They did not raise this
matter in the trial court, but mandatory fees that do not raise factual questions may be


but defendant did not dispute the assertion in his motion to dismiss the prior strike
conviction, during argument on the motion or here on appeal. At the hearing on the
motion, counsel argued, “And then the 242, as I outlined, his son was getting beat up by
this older boy. He called the police, they would come out, the boy was gone, boy would
come, throw rocks in the window, keep beating up his son. [Defendant], on his own,
called the cops three times that day. [¶] Did he handle it right in the end? Absolutely
not. But, again, I’m not saying what he did was right. I’m saying those were mitigating
circumstances that led to a 242 disposition that should be considered now by this Court as
well.”

                                             44
imposed on appeal despite the prosecution’s failure to bring them to the trial court’s
attention. (People v. Talibdeen (2002) 27 Cal.4th 1151, 1154; People v. Smith (2001) 24
Cal.4th 849, 853; People v. Turner (2002) 96 Cal.App.4th 1409, 1413.) Defendant does
not object in his reply brief; he merely says it appears that mandatory fines were not
imposed.
       Government Code section 70373, subdivision (a)(1), provides in part: “To ensure
and maintain adequate funding for court facilities, an assessment shall be imposed on
every conviction for a criminal offense…. The assessment shall be imposed in the
amount of thirty dollars ($30) for each…felony….”19
       Section 1465.8, subdivision (a)(1), provides, and provided at the time of
defendant’s conviction: “To assist in funding court operations, an assessment of forty
dollars ($40) shall be imposed on every conviction for a criminal offense….”
       Both of these provisions are mandatory. (People v. Robinson (2012) 209
Cal.App.4th 401, 405-406.)
       Accordingly, we order imposition of the $30 fee and $40 assessment.




19  The Attorney General’s appellate brief offers an immaterial argument about
retroactivity of the statute, which became effective January 1, 2009 -- before this offense
was committed in November 2009.

                                            45
                                     DISPOSITION
       The judgment is modified to: (1) consolidate count 2 into count 1 and reflect that
defendant was convicted of section 261, subdivisions (a)(3) and (a)(4), in count 1; (2) to
vacate the conviction on count 2, together with the sentence imposed but stayed on that
count; and (3) to impose the mandatory $30 court facilities fee (Gov. Code, § 70373,
subd. (a)(1)) and a $40 court operations assessment (§ 1465.8, subd. (a)(1)). The
judgment is otherwise affirmed. The trial court is directed to prepare an amended
abstract of judgment and minute order to reflect these modifications and forward a
certified copy to the Department of Corrections and Rehabilitation.



                                                       MURRAY                , J.



We concur:



      HULL                  , Acting P. J.



      DUARTE                , J.




                                             46
