Filed 4/29/16 P. v. Cooks CA2/3
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION THREE

THE PEOPLE,                                                              B256577

         Plaintiff and Respondent,                                       (Los Angeles County
                                                                         Super. Ct. No. BA369808)
         v.

CHARLES REGINALD COOKS,

      Defendant and Appellant.
_____________________________________
In re                                                                    B263093 & B264307

         CHARLES REGINALD COOKS,

         on

         Habeas Corpus.


         APPEAL from a judgment of the Superior Court of Los Angeles County,
Craig J. Mitchell, Judge. Convictions affirmed. Remanded for resentencing. Habeas
corpus petitions denied.
         David M. Thompson, under appointment by the Court of Appeal, for Defendant
and Appellant.
         Charles Reginald Cooks, in pro. per., for Defendant and Appellant on Habeas
Corpus.
       Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Mary Sanchez and David Zarmi,
Deputy Attorneys General, for Plaintiff and Respondent.

                               _________________________

       Following his conviction of sexually assaulting two women in separate incidents,
defendant and appellant Charles Reginald Cooks has filed an appeal, in which he is
represented by appointed counsel, raising contentions of insufficient evidence and
instructional, evidentiary and sentencing error. Cooks has also filed two pro se habeas
corpus petitions raising a variety of other issues.
       For the reasons discussed below, Cooks’s convictions are affirmed, but his
sentence is vacated and the matter is remanded to the trial court for resentencing.
Cooks’s habeas corpus petitions are denied.
                                     BACKGROUND
       At Cooks’s trial, three women testified they had been sexually assaulted by Cooks
in three separate incidents. The women were M.T., Luisa R., and R.L. Cooks was
convicted for his assaults on M.T. and Luisa. Cooks’s assault on R.L. was admitted as
evidence of prior, uncharged acts tending to prove that Cooks was guilty of having
assaulted M.T. and Luisa.
       Viewed in accordance with the usual rules of appellate review (People v. Ochoa
(1993) 6 Cal.4th 1199, 1206), the evidence established the following.
       1. Prosecution evidence.
              a. The assault on R.L.
       R.L. testified that on the night of September 25, 2004, when she was 14 years old,
she was waiting for a bus when Cooks drove up and offered her a ride. R.L. accepted.
She told him where she lived and, after driving for a while, Cooks said he knew a
shortcut.
       R.L. testified Cooks then suddenly parked the car, pulled out a gun, pointed it at
her side, told her to pull her underpants down and said: “ ‘Show me the pussy.’ ” R.L.


                                              2
testified she “start[ed] crying and telling him, no, I’m Christian, I’m still a virgin. I asked
him like, ‘What if you had a daughter, how would this make you feel?’ [¶] He told me to
shut up, he don’t have a daughter so he don’t care. And I kept crying. [¶] He told me to
shut up . . . before he takes me to his house for three days.” Cooks then ordered R.L. to
suck his penis. After that, he put on a condom and raped her. Then he took the condom
off and raped her again.
       Cooks then began driving again, but R.L. was afraid that he was taking her to his
house so she jumped out of the car at a red light. Cooks drove off. R.L. ran into a boy
she knew from school; his mother called the police and R.L.’s mother. Initially
interviewed by the police in front of her mother, R.L. lied by saying she had been
abducted from the bus stop. She did this because she did not want her mother to know
that she had accepted a ride from a stranger. At a hospital, a nurse took oral and vaginal
swabs from R.L.
       In 2010, the police contacted R.L. and asked if she could identify her attacker
from a photo array. R.L. testified she believed that she had accurately picked out
Cooks’s picture.
              b. The assault on M.T.
       M.T. testified that on the afternoon of January 29, 2006, she was waiting at a bus
stop when Cooks drove up and offered her a ride. M.T. told him she was going home.
Cooks said he would take her, but that he had to stop at a friend’s house first. They
stopped at someone’s house for a few minutes while Cooks went inside. When he
returned and resumed driving, M.T. realized that he was not driving toward her house.
She tried to open the car door and jump out, but Cooks had locked it from his side.
       Cooks drove to a wooded area, pulled out a gun, pressed it to M.T.’s head and told
her to disrobe. M.T. took her pants off. Cooks ordered her to perform oral sex on him,
which she did. Cooks then put on a condom and raped her. Afterward, he took off the
condom and rubbed his penis around M.T.’s face. Then he put his penis into her mouth
and ejaculated.



                                              3
         M.T. testified Cooks drove to another location and stopped: “He told me to get
the fuck out of his car, and that I should be glad that I’m walking out instead of him
carrying me out.” M.T. began walking and then flagged down a police car. She was
taken to a clinic where rape kit samples were collected, including vaginal, oral and facial
swabs.
         On May 24, 2010, M.T. was shown a photo array by the police in which she
identified Cooks’s picture.
                c. The assault on Luisa R.
         Luisa R. testified that at 1:30 a.m. on April 3, 2010, she left her parents’ house to
go visit her partner, Evelyn, who lived in Hollywood. Luisa had to sneak out of the
house to meet Evelyn because her parents would not have given her permission to leave.
         A friend dropped Luisa off at a bus stop where she intended to catch a bus for
Hollywood. But after waiting 20 minutes, Luisa decided to hitchhike. Cooks, who was
driving a van, stopped and picked her up. Luisa told him she was going to Hollywood.
Cooks said he was going that way but he had to make a stop first. When Cooks said he
knew someone who sold alcohol after 2:00 a.m., Luisa told him that if he bought alcohol
for her and Evelyn, she would pay for it.
         Cooks then made a series of turns and parked the van. He told Luisa that when he
first saw her hitchhiking he had put on a condom and then offered her the ride. He tried
to disrobe her, but she pushed him away. Cooks said he would not penetrate her, that he
just wanted to get an erection. After Luisa refused to take her pants off, Cooks got on top
of her and pulled her pants down while she tried to fight him off. Luisa testified she is 5
feet 1 or 2 inches tall and, at the time this happened, she weighed 110 pounds. When
Cooks testified, he described himself as 5 feet 9 inches tall, and said that in 2010 he
weighed about 200 pounds. Luisa testified that although Cooks’s penis was never erect,
he penetrated her vagina three times.
         After being raped, Luisa managed to get hold of her cell phone. She pressed the
call button just to redial the last number she had called. She was holding the phone
behind her back so Cooks could not see what she was doing. When the call was


                                                4
answered, Luisa screamed that she was being raped. Cooks told her to shut up, and then
he grabbed her phone and threw it into the back of the van. He told Luisa to stay off the
phone. Then he picked her up in order to continue raping her, but Luisa fought with him,
pushed him away and reached for her phone because it had started ringing. It was Evelyn
calling back. Luisa told Evelyn she was being raped. Cooks again grabbed the phone
away from Luisa. Meanwhile, Evelyn called 9-1-1.
      Cooks was still on top of Luisa, and she was trying to fight him off. She punched
him in the face at least three times. Cooks punched her back all over her head. He told
her “that [she] wasn’t going to get out of it.” Then, bleeding from Luisa’s punches,
Cooks sat back in the driver’s seat and announced that he had a gun. Luisa told him she
did not care if he did, she was leaving. She got out of the van. As Cooks was driving
away, she memorized his license plate number. Luisa testified she never saw a gun.
      Luisa ran to a gas station, called 9-1-1, and gave the operator Cooks’s license
number. She also called Evelyn. When the police arrived, one officer asked Luisa if she
was a prostitute, which she denied. The officer asked if she needed an ambulance, which
she declined. Luisa testified she felt the officer was being disrespectful. When Evelyn
showed up a short while later, Luisa said she needed medical attention. They went to a
hospital where a doctor determined that Luisa had sustained a concussion. Then the
police transported Luisa to a clinic where rape kit swabs were taken.
      Luisa testified that she never agreed to have consensual sex with Cooks.
      Evelyn testified she had known Luisa for 16 years and that they were dating at the
time of this incident. When Luisa did not show up in Hollywood that night, Evelyn
started calling Luisa’s cell phone: “[A]t first she wasn’t picking up. I thought maybe her
phone died or something or she had it on silence to save the battery. [¶] That’s when she
called me back and that’s when I heard her screaming. [¶] Q. And when you said you
heard her screaming, what could you hear? [¶] A. I heard her saying, ‘Baby, Baby, call
the cops, call the cops. I’m being raped right now. Call the cops.’ ” When Evelyn later
met up with Luisa she “looked traumatized. She was crying. I’d never seen her so



                                            5
afraid. . . . She was shaking. When I saw her, I just ran to her and I hugged her. She just
broke down in my arms.”
              d. The DNA evidence.
       Forensic analysis determined that DNA recovered from M.T.’s facial swab
matched Cooks’s DNA profile; the odds that any other unrelated individual in the
population would have matching DNA was one in 120 billion. Forensic analysis
determined that DNA recovered from R.L.’s vaginal swab matched Cooks; the odds that
any other unrelated individual in the population would have matching DNA was one in
17 quadrillion. Forensic analysis determined that DNA recovered from Luisa’s vaginal
swab matched Cooks; the odds that any other unrelated individual in the population
would have matching DNA was one in 1.8 quadrillion.
       2. Defense evidence.
       Cooks represented himself at trial. He presented his own testimony in a narrative
fashion and put on testimony from a forensic DNA expert and from Jose Campos, the
police officer who spoke to Luisa at the gas station after she called 9-1-1.
              a. Cooks’s testimony.
       Cooks testified he had been working as a longshoreman in April 2010 and that
April 2 was payday. At 1:45 a.m. on April 3, he left home “on [his] way to after hours
[sic].” Luisa flagged him down at a bus stop and got into his van. After he started
driving, she asked if he knew any place to get alcohol. He told her it was too late at
night. They “discussed a date.” Cooks parked the van, got a condom from his glove
compartment and put it on.
       Cooks testified Luisa “pulled her pants down,” but then he could not get an
erection: “And . . . that became a problem. [¶] And so . . . she told me to hurry up. And
then she offered . . . to give me a hand job. [¶] And she grew more impatient. And I
never was actually able to reach any type of erection. [¶] And so I told her that I wasn’t
going to pay her. Because we didn’t . . . do anything. Meaning that we never engaged in
any sexual activity so, you know, why should I pay. [¶] And, so, Luisa got angry and
she punched me in the nose three times.”


                                              6
       Cooks testified he tried to punch Luisa back, but she blocked his punch and
grabbed his arms. At that point, Cooks ordered her out of his van. When Luisa
threatened to call the police if he did not pay, Cooks told her he did not care. Cooks
thought Luisa was calling 9-1-1, but – when he discovered that she was talking to Evelyn
– he kicked her out of the van. Luisa left her cell phone, car keys and driver’s license in
his van. He never returned those items.
       On cross-examination, Cooks testified that Luisa had agreed to have sex with him
for money. He testified that although his penis had been “somewhere in the area of
[Luisa’s] vagina,” he never had an erection, “[h]er pants were never completely taken
off,” and he “[a]bsolutely did not go inside her vagina.” In fact, his penis did not even
touch the outside of Luisa’s vagina.
       Asked if his penis had ever touched M.T.’s face, Cooks testified that the first time
in his entire life he saw M.T. was at the preliminary hearing. Cooks similarly testified
that he had never seen R.L. before she testified at trial.
              b. Other defense evidence.
       Marc Taylor, a forensic DNA expert, testified that his laboratory received swab
samples relating to Luisa and M.T. Taylor’s laboratory found no sperm cells on M.T.’s
oral swab. The parties stipulated that analysis of M.T.’s vaginal swab eliminated Cooks
as a possible DNA donor. Taylor’s laboratory had only been asked to analyze M.T.’s
oral and vaginal swabs; he was not asked any questions about DNA results relating to
M.T.’s facial swab.
       Officer Campos testified that, after interviewing Luisa, he concluded that what had
happened was not a sexual assault, but rather “a grand theft and a battery.” Luisa did not
tell him that she had been raped, but only that Cooks tried “to kiss her or something to
that effect,” and that when Luisa told Cooks to stop he punched her in the face. She told
Campos that her cell phone had dropped out of her pants and Cooks drove off with it.
Luisa admitted she had been drunk. Campos thought it was possible Luisa might be a
prostitute.



                                               7
       3. Trial outcome.
       As to Luisa, Cooks was convicted of three counts of rape (counts 1-3) and one
count of assault with intent to commit rape (count 4). (§§ 261, subd. (a)(2), 220,
subd. (a)).1 As to M.T., Cooks was convicted of forcible oral copulation (count 8) and
rape (count 9). (Pen. Code, §§ 288a, subd. (c)(2), 261, subd. (a)(2).) The jury found that
the One Strike sentencing scheme (§ 667.61) was applicable to counts 1 through 3 and
counts 8 and 9, and that in violation of section 12022.53, subdivision (b), Cooks had used
a firearm in the commission of counts 8 and 9. Cooks was sentenced to a prison term of
60 years to life, consisting of 25 years to life for count 1, a consecutive 25 years to life
for count 8, and a consecutive 10 years for the count 8 firearm enhancement. In addition,
Cooks was sentenced to the following concurrent prison terms: 15 years to life on
count 2; 15 years to life on count 3; six years on count 4; and 25 years to life on count 9.
                                      CONTENTIONS
       On appeal (in which he is represented by appointed counsel), Cooks contends:
(1) the trial court erred by admitting evidence of the uncharged sexual assault against
R.L.; (2) the trial court erred by failing to instruct the jury on several lesser included
offenses to the Luisa assault; (3) the trial court erred by failing to instruct on false
imprisonment in connection with the One Strike sentences (§ 667.61); (4) the trial court
erred by convicting him for both rape and assault with intent to commit rape in
connection with the assault against Luisa; and (5) the trial court’s 25-years-to-life One
Strike sentence on count 8 was erroneous.
       Cooks raises various other claims in his accompanying pro se habeas corpus
petitions.
                                        DISCUSSION
       1. Evidence of the uncharged sexual assault on R.L. was properly admitted.
       Cooks contends the trial court erred by admitting the evidence of his assault on
R.L. There is no merit to this claim.


1
       All further statutory references are to the Penal Code unless otherwise specified.

                                               8
              a. Legal principles.
       “Subdivision (a) of [Evidence Coe] section 1101 prohibits admission of evidence
of a person’s character, including evidence of character in the form of specific instances
of uncharged misconduct, to prove the conduct of that person on a specified occasion.
Subdivision (b) of section 1101 clarifies, however, that this rule does not prohibit
admission of evidence of uncharged misconduct when such evidence is relevant to
establish some fact other than the person’s character or disposition.” (People v. Ewoldt
(1994) 7 Cal.4th 380, 393, fn. omitted.) Subdivision (b) allows admission of evidence
of a person’s uncharged misconduct “when relevant to prove some fact (such as motive,
opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or
accident . . .) other than his or her disposition to commit such an act.” (Evid. Code,
§ 1101, subd. (b).)
       Evidence Code section 1108 allows such disposition evidence “to assure that the
trier of fact would be made aware of the defendant’s other sex offenses in evaluating the
victim’s and the defendant’s credibility.” (People v. Falsetta (1999) 21 Cal.4th 903,
911.) “In a case in which a defendant is accused of a sexual offense, Evidence Code
section 1108 authorizes the admission of evidence of a prior sexual offense to establish
the defendant’s propensity to commit a sexual offense, subject to exclusion under
Evidence Code section 352.”2 (People v. Lewis (2009) 46 Cal.4th 1255, 1286.)
Section 1108 permits “ ‘ “consideration of the other sexual offenses as evidence of the
defendant’s disposition to commit such crimes, and for its bearing on the probability or
improbability that the defendant has been falsely or mistakenly accused of such an
offense.” ’ [Citation.]” (People v. Soto (1998) 64 Cal.App.4th 966, 984.) “[T]he clear
purpose of section 1108 is to permit the jury’s consideration of evidence of a defendant’s




2
      Evidence Code section 352 provides: “The court in its discretion may exclude
evidence if its probative value is substantially outweighed by the probability that its
admission will (a) necessitate undue consumption of time or (b) create substantial danger
of undue prejudice, of confusing the issues, or of misleading the jury.”

                                             9
propensity to commit sexual offenses.” (People v. Villatoro (2012) 54 Cal.4th 1152,
1164.)
         “A trial court’s ruling admitting evidence of other crimes is reviewable for abuse
of discretion.” (People v. Hayes (1990) 52 Cal.3d 577, 617.) Under Evidence Code
section 1108, “ ‘[t]he principal factor affecting the probative value of an uncharged act is
its similarity to the charged offense. Other factors affecting the probative value include
the extent to which the source of the evidence is independent of the charged offense, and
the amount of time between the uncharged acts and the charged offense. The factors
affecting the prejudicial effect of uncharged acts include whether the uncharged acts
resulted in criminal convictions and whether the evidence of uncharged acts is stronger or
more inflammatory than the evidence of the charged offenses.’ [Citation.] ‘The
weighing process under [Evidence Code] section 352 depends upon the trial court’s
consideration of the unique facts and issues of each case, rather than upon the mechanical
application of automatic rules.’ [Citation.] [¶] We will only disturb the trial court’s
exercise of discretion under Evidence Code section 352 ‘when the prejudicial effect of
the evidence clearly outweighed its probative value.’ [Citation.]” (People v. Hollie
(2010) 180 Cal.App.4th 1262, 1274.)
                b. Discussion.
         Cooks argues R.L.’s testimony should have been excluded under Evidence Code
section 352 because it was highly inflammatory and there was a danger the jury would
use the current prosecution to punish him for having assaulted R.L. We are not
persuaded.
         R.L.’s sexual assault furnished extremely probative evidence regarding a crucial
credibility issue: were Cooks’s sexual acts with Luisa consensual, as he claimed? Cooks
testified Luisa consented to have sex with him for money, and that a dispute arose only
after Cooks refused to pay because he could not get an erection. Cooks put Officer
Campos on the stand to testify that he, the officer, believed Luisa might be a prostitute.
Luisa, on the other hand, testified that after Cooks picked her up hitchhiking he forced
himself on her. Hence, “[e]vidence of the uncharged sexual assault committed by


                                              10
[Cooks] was vital to the jury’s effort to evaluate the credibility of [Luisa] and determine
if her account of a forcible sexual assault was accurate. [Citations.]” (People v. Hollie,
supra, 180 Cal.App.4th at pp. 1275-1276.) In addition, evidence of R.L.’s assault
corroborated M.T.’s testimony that Cooks sexually assaulted her, contrary to Cooks’s
testimony that he had never seen her before.
       The uncharged misconduct bore significant similarities to the charged offenses.
All three women were offered rides by Cooks while they were waiting at bus stops. In
each instance, Cooks promised to take them where they wanted to go, but then drove to a
different location where he parked and then proceeded to assault them inside his vehicle.
Cooks pointed a gun at both M.T. and R.L. Cooks threatened Luisa with a gun but he
never showed it to her. The probative value of this other crimes evidence “is increased
by . . . the independent sources of the evidence (the victims) in each offense. [Citation.]”
(People v. Falsetta, supra, 21 Cal.4th at p. 917.)
       Notwithstanding the significant probative value of the Evidence Code
section 1108 other crimes evidence demonstrating he had a propensity to commit sexual
assault, Cooks argues the evidence should have been excluded because it was
inflammatory and gave rise to the danger of the jury punishing him for having assaulted
R.L. As discussed below, we are not persuaded by either argument.
                     (1) The propensity evidence was not overly inflammatory.
       Cooks argues R.L.’s testimony was inflammatory because it described an assault
that was much more horrific than the charged assaults.
       Citing People v. Harris (1998) 60 Cal.App.4th 727, 737-738 (Harris), Cooks
argues: “Hearing that appellant sexually assaulted a 14 year old virgin who begged for
mercy while threatening her with a firearm would likely inflame the passions of the jury.
[¶] Neither of the two other complaining witnesses, Luisa R. or [M.T.], were minors and
neither claimed to be ‘Christian’ or virgins. Moreover, while appellant told Luisa he had
a gun, it was never produced. All told, the R.L. evidence was ‘inflammatory in the
extreme’ and ‘weigh[ed] sharply in favor of exclusion.’ ” We disagree.



                                             11
       In Harris, there was a gross disparity between the essential qualities of the charged
and uncharged acts. The uncharged offense – a particularly violent and vicious sexual
assault – was extremely inflammatory compared to the charges Harris faced: sexual
assaults involving only non-violent breaches of trust with acquaintances.3 Here, on the
other hand, both the charged and the uncharged offenses involved violent sexual assaults
of women who were complete strangers to Cooks. Cooks did not show a gun to Luisa,
but he did threaten her with it, and he certainly showed a gun to M.T. Indeed, by
pressing his gun against M.T.’s head he committed an act even more inflammatory than
what he did to R.L., which was pointing a gun at her side.4
                     (2) Danger of misplaced surrogate punishment.
       Cooks argues: “Apparently, appellant was charged with the R.L. incident, she
failed to appear at the preliminary hearing, and the charges were dropped. In such case, it
is quite possible the jury consciously, or unconsciously, found appellant guilty out of a
desire to punish him for his prior acts.”
       Cooks’s jurors were instructed with both CALCRIM No. 375 and 1191, which
clearly restricted their use of the Evidence Code section 1108 evidence to the charges


3
       As Harris explained: “The trial court found the evidence was ‘inflammatory.’
We agree, but clarify that the evidence was inflammatory in the extreme. Without
minimizing the trauma suffered by each victim, at worst defendant licked and fondled an
incapacitated woman and a former sexual partner, both of whom were thereafter on
speaking terms with him. Although the assaults described by Tracy and Brenda are
criminal, involving a breach of trust by a caregiver, the abuse the victims suffered is,
unfortunately, not unusual or shocking. On the other hand, the evidence of the 1972
incident described a viciously beaten and bloody victim who as far as the jury knew was
a stranger to the defendant.” (People v. Harris, supra, 60 Cal.App.4th at p. 738.)
4
        Cooks also complains that R.L. turned out to be an aggressively hostile witness
when he cross-examined her. He has not, however, cited any case law demonstrating that
the trial court’s handling of R.L.’s conduct on the witness stand denied him a fair trial.
Here, Cooks did not move to strike R.L.’s testimony, nor did he move for a mistrial. (See
generally, 5 Witkin, Cal. Crim. Law (4th ed. 2012) Crim. Trial, § 647, p. 1001.) This
 case illustrates the principle that self-representation “usually increases the likelihood of a
trial outcome unfavorable to the defendant.” (McKaskle v. Wiggins (1984) 465 U.S. 168,
177, fn. 8.)

                                              12
being currently prosecuted. CALCRIM No. 375 instructed they could consider the
evidence that Cooks had committed other offenses not charged in this case “for the
limited purpose of deciding whether or not . . . [Cooks] was the person who committed
the offenses alleged in this case,” or that Cooks “acted with the intent to engage in
forcible sexual conduct in this case,” or that Cooks “had a motive to commit the offenses
alleged in this case.” (Italics added.) CALCRIM No. 1191 instructed that the evidence
showing Cooks had committed acts of rape and forcible oral copulation against R.L.
could be used to conclude that he was “likely to commit forcible rape, forcible oral
copulation, and assault with the intent to commit a felony, as charged here. [¶] . . . [¶]
Do not consider this evidence for any other purpose.” (Italics added.) The given
instructions duly advised the jury of the limited use they could make of the evidence
relating to R.L.
                      (3) Conclusion.
       “We will only disturb the trial court’s exercise of discretion under Evidence Code
section 352 ‘when the prejudicial effect of the evidence clearly outweighed its probative
value.’ [Citation.] A trial court abuses its discretion when its ruling ‘falls outside the
bounds of reason.’ [Citation.]” (People v. Hollie (2010) 180 Cal.App.4th 1262, 1274.)
We are satisfied that the trial court’s ruling here must be affirmed. “We find nothing
arbitrary, capricious, or patently absurd in the trial court’s ruling that evidence of
[Cooks’s] prior offense was admissible to prove his propensity to commit the charged
sexual offense[s].” (People v. Lewis, supra, 46 Cal.4th at p. 1286.)
       2. Instructions on assault, battery and attempted rape were not required as lesser
included offenses.
       With respect to the counts relating to victim Luisa, Cooks contends the trial court
erred by failing to instruct, sua sponte, on simple assault and battery as lesser included
offenses to the crimes charged in counts 1, 2, 3 and 4, and on attempted rape as a lesser
included offense to the crimes charged in counts 1, 2 and 3. We disagree.




                                              13
              a. Legal principles.
       “When there is substantial evidence that an element of the charged offense is
missing, but that the accused is guilty of a lesser included offense, the court must instruct
upon the lesser included offense, and must allow the jury to return the lesser conviction,
even if not requested to do so.” (People v. Webster (1991) 54 Cal.3d 411, 443.)
“An offense is necessarily included within a charged offense ‘if under the statutory
definition of the charged offense it cannot be committed without committing the lesser
offense, or if the charging allegations of the accusatory pleading include language
describing the offense in such a way that if committed as specified the lesser offense is
necessarily committed.’ [Citation.]” (People v. Toro (1989) 47 Cal.3d 966, 972,
disapproved on other grounds by People v. Guiuan (1998) 18 Cal.4th 558, 568, fn. 3.)
       “[A] trial court errs if it fails to instruct, sua sponte, on all theories of a lesser
included offense which find substantial support in the evidence. On the other hand, the
court is not obliged to instruct on theories that have no such evidentiary support.”
(People v. Breverman (1998) 19 Cal.4th 142, 162 (Breverman).) “[T]he existence of
‘any evidence, no matter how weak’ will not justify instructions on a lesser included
offense, but such instructions are required whenever evidence that the defendant is guilty
only of the lesser offense is ‘substantial enough to merit consideration’ by the jury.
[Citations.] ‘Substantial evidence’ in this context is ‘ “evidence from which a jury
composed of reasonable [persons] could . . . conclude[ ]” ’ that the lesser offense, but not
the greater, was committed. [Citations.] [¶] In deciding whether there is substantial
evidence of a lesser offense, courts should not evaluate the credibility of witnesses, a task
for the jury.” (Ibid.)
       “[O]n appeal we employ a de novo standard of review and independently
determine whether an instruction on the lesser included offense . . . should have been
given.” (People v. Manriquez (2005) 37 Cal.4th 547, 584.)
              b. Discussion.
       Citing the statutory definition test (People v. Toro, supra, 47 Cal.3d at p. 972),
Cooks contends the trial court should have instructed on assault, battery and attempted


                                                14
rape in connection with the alleged crimes committed against Luisa. We are not
persuaded.
                     (1) Assault and battery instructions were not required.
       Relying on irrelevant5 and inconsequential peripheral details (e.g., that Luisa and
Cooks agreed she had voluntarily entered his van and discussed buying alcohol), Cooks
argues that because their stories were not fatally inconsistent with his narrative, the jury
needed to be instructed on a possible “middle-ground” verdict of assault and battery. In
fact, however, their stories were entirely contradictory on all crucial points. Luisa
testified Cooks told her that he was going to give her a ride to Hollywood, but then he
stopped on a side street and committed a sexual assault during which he punched her in
the head and threatened her with a gun. In stark contrast, Cook’s story was that he
initially agreed to pay her for sex, but then refused because he could not become erect, at
which point she became violent.
       Hence, as to whether or not Cooks was guilty of having sexually assaulted Luisa
as charged in counts 1, 2 and 3, there was no substantial “middle ground” evidence the
jury could have relied on to find that Cooks was guilty of mere assault and battery: R.L.
testified Cooks sexually assaulted her, but Cooks testified they had been engaged in an
entirely consensual act of prostitution. This state of the evidence did not warrant
instructions on lesser included offenses under Breverman.
       As to count 4, although there was arguably a simple assault and battery involved—
because Luisa testified that after she punched Cooks he punched her back, whereas
Cooks testified he tried to punch her back but she blocked his effort—Cooks could not

5
        For example, Cooks asserts, “The DNA evidence does seem to indicate that
appellant’s penis may have entered Luisa’s vagina, which would be consistent with her
testimony. However, Luisa also testified that appellant never became erect and that when
she saw his penis, he was wearing a condom. This was consistent with appellant’s
testimony.” But these assertions do nothing to contradict Luisa’s testimony that Cooks
tried to have forcible sexual intercourse with her and, in doing so, at least slightly
penetrated her vagina. (See § 263 [“The essential guilt of rape consists in the outrage to
the person and feelings of the victim of the rape. Any sexual penetration, however slight,
is sufficient to complete the crime.”].)

                                             15
have been prejudiced by the lack of a lesser included offense instruction. By finding
Cooks guilty on counts 1 through 3, the jury necessarily determined that his prostitution
story was a lie, and therefore would have concluded Luisa was trying to prevent Cooks
from raping her a fourth time. (See People v. Rogers (2006) 39 Cal.4th 826, 867-868,
fn. omitted [“The erroneous failure to instruct on a lesser included offense generally is
subject to harmless error review under the standard of People v. Watson (1956) 46 Cal.2d
818, [836-837] . . . . Reversal is required only if it is reasonably probable the jury would
have returned a different verdict absent the error or errors complained of.”].) We do not
find it is reasonably probable the jury would have returned a different verdict had the
court instructed on assault and battery.
                     (2) Attempted rape instruction was not required.
       To the extent Cooks is merely asserting that there was an evidentiary dispute as to
whether or not he penetrated Luisa’s vagina – and thereby committed rape – his problem
is that attempted rape is not a lesser included offense of rape. “Rape is a general intent
crime. [Citation.]” (People v. Osband (1996) 13 Cal.4th 622, 685.) Section 21a
provides: “An attempt to commit a crime consists of two elements: a specific intent to
commit the crime, and a direct but ineffectual act done toward its commission.” (Italics
added.) Because attempting to commit rape has this additional specific intent element, it
is not a lesser included offense of the crime of rape. “[W]hile it might seem an attempt
would naturally be a lesser included offense, this is not necessarily so. Attempts are only
lesser included offenses if the sole distinction between the attempt and the completed
offense is completion of the act constituting the crime. [Citation.] If the attempt requires
a heightened mental state, as is the case with attempts of many general intent crimes, the
attempt requires proof of an additional element and is therefore not a lesser included
offense. [Citations.]” (People v. Braslaw (2015) 233 Cal.App.4th 1239, 1248 [attempted
rape of intoxicated person is not lesser included offense of rape of intoxicated person].)
Similarly, People v. Mendoza (2015) 240 Cal.App.4th 72, states: “Attempted sexual
intercourse, attempted sodomy and attempted oral copulation with a child 10 years of age
or younger are all specific intent crimes. (§ 21a.) Thus, under the elements test, they are


                                             16
not lesser included offenses of the charged general intent crimes. [Citation.] Because of
the different mental states required, a defendant could be guilty of the completed offense
but not the attempt.” (Id. at p. 83.) Thus, the trial court did not err by failing to instruct
on attempted rape as a lesser included offense of the rapes charged in counts 1, 2 and 3.
       3. Instruction on false imprisonment was not required.
       Cooks contends that, as to counts 1 and 9, the trial court erred by failing, sua
sponte, to instruct the jury on false imprisonment as a lesser included offense of
kidnapping. There is no merit to Cooks’s claim.
       While it is true that false imprisonment (§ 236) is a lesser included offense of
kidnapping (§ 207), Cooks was not charged with kidnapping in this case. Rather, the
kidnapping allegation was pled as an aggravating circumstance that triggered the
application of the One Strike alternative sentencing statute. (§ 667.61.) A One Strike
sentence is triggered when the defendant commits an enumerated sexual offense in
certain aggravating circumstances that are set forth in the One Strike statute. Kidnapping
is one of the One Strike triggering circumstances (see § 667.61, subd. (d)(2), (e)(1)).
False imprisonment is not mentioned in the One Strike Statute.
       Cooks asserts that because Luisa and M.T. voluntarily got into his vehicle, his jury
should have been given an alternative false imprisonment instruction because it “could
have resulted in a guilty verdict on the lesser offense, and non-aggravating factor in
section 667.61, of false imprisonment.” This claim is predicated on a fundamental
misunderstanding of the One Strike statute.
       Section 667.61 is not a substantive offense or an enhancement; it is an alternative
sentencing scheme that comes into play only if certain triggering circumstances are pled
and proved. “[T]he One Strike law does not establish an enhancement, but ‘sets forth an
alternative and harsher sentencing scheme for certain enumerated sex crimes’ when a
defendant commits one of those crimes under specified circumstances. [Citations.]”
(People v. Acosta (2002) 29 Cal.4th 105, 118-119.) Section 667.61 refers only to
kidnapping, not false imprisonment. (See § 667.61, subds. (d) & (e).) Cooks has cited no
authority that the trial court was required to give an instruction letting the jury find false


                                              17
imprisonment as an alternative aggravating factor which is not enumerated in the statute.
Accordingly, there was no error in failing to instruct as to false imprisonment.
       4. Cooks was properly convicted of assault with intent to commit rape (count 4).
       Cooks contends that as to Luisa he was improperly convicted of both rape and
assault with intent to commit rape because the latter is a lesser included offense of the
former and both were based on his commission of the same act. We are not persuaded.
       Multiple convictions may not be based on necessarily included offenses.
(People v. Montoya (2004) 33 Cal.4th 1031, 1034.) “In most cases ‘this court
has . . . affirmed multiple convictions for a single act or indivisible course of conduct,’
leaving it to the sentencing court to determine whether to stay execution of sentence on
one or more convictions pursuant to section 654 in order to avoid multiple punishment
for the same act. [Citation.] A defendant, however, cannot be convicted of both an
offense and a lesser offense necessarily included within that offense, based upon his or
her commission of the identical act. [Citation.]” (People v. Sanchez (2001)
24 Cal.4th 983, 987, disapproved on other grounds by People v. Reed (2006) 38 Cal.4th
1224, 1228.)
       Cooks is correct that assault with intent to commit rape is a lesser included offense
of rape. “Every act of rape, of course, necessarily includes an assault.” (In re Jose M.
(1994) 21 Cal.App.4th 1470, 1477.) However, the rule he cites is that “[a] defendant . . .
cannot be convicted of both an offense and a lesser offense necessarily included within
that offense, based upon his or her commission of the identical act. [Citation.]” (People
v. Sanchez, supra, 24 Cal.4th at p. 987, italics added.) The People correctly point out that
Cooks’s sexual assault on Luisa took place in two stages. During his initial attack, Cooks
raped Luisa three times while she was trying to fight him off. Thereafter, Luisa managed
to grab her cell phone and make the distress call to Evelyn. Cooks then grabbed the
phone from Luisa, threw it into the back seat of the van, told her to stay off the phone,
and then continued his sexual assault.
       As Luisa testified: after Cooks threw her phone into the back of the van, “He
picked me up to continue raping me . . . and I pushed myself up even more and I was able


                                              18
to reach to the back to grab my phone because it was ringing.” When Luisa answered the
phone, she realized it was Evelyn. She told Evelyn that she was being raped, after which
Cooks took her phone away again. Luisa testified:
       “Q. And after you were on the phone with Evelyn, was the defendant still on top
of you at that point?
       “A. Yes.
       “Q. And what were you doing?
       “A. I was trying to fight him off.
       “Q. When you say trying to fight him off, what were you doing?
       “A. I was literally trying to fight him off. I punched him.
       “Q. Do you know where you punched him?
       “A. I punched him on his face.
       “Q. Did he strike you at all?
       “A. He did, yes.
       “Q. Where?
       “A. All over my head. On the back part of my head, the side of my head, the
front part of my head. I covered my face.
       “Q. And when he was hitting you, was he saying anything?
       “A. He was telling me to just . . . let it be, that – that I wasn’t going to get out of
it.” (Italics added.)
       Hence, the evidence clearly showed that after having raped Luisa three times,
Cooks tried to rape her again but he was stymied because she managed to fight him off.
Cooks was not convicted of both rape and assault with intent to commit rape for the same
act.
       5. Sentencing error on count 8 requires a remand for resentencing.
       Cooks contends the One Strike sentence imposed on his count 8 conviction for the
forcible oral copulation of M.T. must be vacated because it was based on a triggering
circumstance that was not charged in the information. The People concede the error, but
contends it can be remedied without affecting Cooks’s sentence because the information


                                              19
also alleged two other triggering circumstances which could be substituted in order to
impose the same 25-years-to-life sentence on count 8. However, as Cooks rightly notes,
his overall sentence would be affected by this proposed remedy because a separately-
imposed 10-year firearm use enhancement under section 12022.53 would have to be
vacated. As a result, we shall remand the case to the trial court for resentencing.
       “Section 667.61 requires the trial court to impose a life sentence when the
defendant is convicted of an enumerated sexual offense and the People plead and prove
one or more of the specified aggravating circumstances. [Citations.] When the People
prove a single circumstance listed under section 667.61, subdivision (d) or at least 2 of
the circumstances listed under subdivision (e), the term is 25 years to life; when only a
single circumstance under subdivision (e) is proved, the term is 15 years to life.
[Citation.] [¶] . . . A life sentence thus may be imposed for each current count to which
an offense-related circumstance attaches, subject to the rules for consecutive sentencing
set forth in section 667.61, subdivision (g).” (People v. DeSimone (1998) 62 Cal.App.4th
693, 696-697.)
       Cooks’s jury returned a verdict form for count 8 finding that, during his forcible
oral copulation of M.T., he was guilty of aggravated kidnapping, a single circumstance
listed in section 667.61, subdivision (d), which thereby triggered a One Strike sentence of
25 years to life. Cooks contends this finding was erroneous because the amended
information does not contain a kidnapping allegation in connection with count 8, and
therefore he was not given proper notice of the allegation. Cooks asserts that due to this
error, his count 8 sentence should be reduced from 25 years to life to 15 years to life.
       The People acknowledge this error, conceding that “our Supreme Court,
interpreting section 667.61, subdivision (f), has held that where the information did not
make a specific section 667.61 allegation, any later true finding must be stricken. This is
especially true here, where there is no indication in the record if appellant ever had notice
of the kidnapping allegation as to count 8 specifically before the jury read its verdict.
(See People v. Mancebo (2002) 27 Cal.4th 735, 740-754.)” However, although
conceding that Cooks “is correct that the kidnapping allegation finding as to count 8 must


                                             20
be stricken,” the People go on to assert that this will not affect his ultimate sentence
because two other triggering circumstances under subdivision (e) of section 667.61 were
properly pled and proved as to count 8—that Cooks used a firearm and that there were
multiple victims. (§ 667.61, subds. (e)(3) & (e)(4).) “Consequently, [the People
conclude,] even with the striking of the kidnapping allegation [Cooks’s] sentence remains
unchanged.”
       But, as Cooks properly points out in his reply brief, the People are mistaken. If
the gun use circumstance were combined with the multiple victim circumstance to trigger
a 25-years-to-life One Strike sentence under section 667.61, subdivision (a), then the gun
use would not be available for imposition of a 10-year enhancement under
section 12022.53, subdivision (b). That is because the “One Strike law provides that
where, as here, ‘only the minimum number of circumstances specified in subdivision (d)
or (e) that are required for’ an enhanced One Strike law sentence ‘have been pled and
proved, . . . those circumstances shall be used as the basis for imposing’ the One Strike
law sentence ‘rather than being used to impose the punishment authorized under any
other provision of law, unless [the other] provision . . . provides for a greater penalty. . . .’
(§ 667.61, subd. (f); Mancebo, supra, 27 Cal.4th at pp. 738, 740 [use of gun enhancement
not permitted when same allegation was necessary to support the 25-years-to-life One
Strike law sentence]; People v. Rodriguez (2012) 207 Cal.App.4th 204, 214-215 . . . [use
of deadly weapon enhancement not permitted when allegation was necessary to support
the 25-year-to-life One Strike law sentence].) Because the deadly weapon circumstance
is necessary to support the One Strike law sentence, we vacate the . . . enhancement for
use of a deadly weapon . . . .” (People v. Perez (2015) 240 Cal.App.4th 1218, 1224.)
       Given this situation, we deem it appropriate to remand this matter so the trial court
may consider restructuring Cooks’s sentence. (See People v. Burbine (2003)
106 Cal.App.4th 1250, 1256 [“the trial judge’s original sentencing choices did not
constrain him or her from imposing any sentence permitted under the applicable statutes
and rules on remand, subject only to the limitation that the aggregate prison term could
not be increased”]; People v. Castaneda (1999) 75 Cal.App.4th 611, 614 [remand for


                                               21
resentencing proper where original sentence contained unauthorized enhancement];
People v. Stevens (1988) 205 Cal.App.3d 1452, 1455-1458 [remand for resentencing
proper where original sentence violated “double-the-base-term” rule].)
         In sum, we shall vacate Cooks’s sentence because of the sentencing error on
count 8 and remand to the trial court for resentencing.
         6. Cooks’s pro se habeas corpus petition claims are denied.
         In addition to the direct appeal filed by appointed counsel (B256577), Cooks has
also filed two pro se habeas corpus petitions in this matter. We address those claims
below.
                a. Habeas corpus petition B263093.
         In habeas corpus petition B263093, Cooks asserts that Judge Craig J. Mitchell,
who presided over the trial, should be recused from taking any part in reviewing Cooks’s
direct appeal, apparently on the ground that he has named Judge Mitchell as a defendant
in an unspecified civil lawsuit pending in federal court.6 However, Judge Mitchell does
not sit on the Court of Appeal and he has had no role whatsoever in our determination of
Cooks’s appellate and habeas claims.
         Cooks’s habeas corpus petition B263093 is therefore denied.
                b. Habeas corpus petition B264307.
         In habeas corpus petition B264307, Cooks makes a series of claims.
                       (1) Sufficiency of the evidence claims.
         Cooks appears to claim there was insufficient evidence supporting his convictions
for sexually assaulting M.T. because: she was shown a suggestive photo array; she gave
police a physical description which did not accurately match Cooks; and, there was
“DNA exoneration evidence excluding him from being a possible suspect.” In
connection with the assault on Luisa, Cooks asserts that because she testified he merely
rubbed against her, and because there was evidence he did not have an erection, the jury




6
         Cooks gives no detail about the nature of the federal lawsuit.

                                              22
“should have only been allowed to consider” a charge of sexual battery under
section 243.4.
       However, “claims of the insufficiency of evidence to support a conviction are not
cognizable in a habeas corpus proceeding. [Citation.]” (In re Reno (2012) 55 Cal.4th
428, 505.) In any event, although M.T.’s vaginal and oral DNA swabs were negative for
Cooks’s DNA, M.T.’s facial swab indisputably proved that he was the man who attacked
her. Hence, any suggestiveness in a photo array shown to M.T. could not have mattered
to the jury’s verdict. As to the attack on Luisa, she testified that – erection or no erection
– Cooks penetrated her vagina three times. Section 263 states that “[a]ny sexual
penetration, however slight, is sufficient to complete the crime [or rape].”
                     (2) Denial of continuance motion.
       Cooks contends the trial court erred by denying his request to continue his
sentencing hearing. The following colloquy occurred at sentencing:
       “The court: Mr. Cooks, you have had in excess of a year. I have granted you one
continuance after the next, and I will be pronouncing sentence today.
       “The defendant: Sir, and I haven’t had time to complete my sentencing [sic].
       “The court: I am mindful of your representations. The court does not find that
there is any legal justification to delay sentencing further. The court will now pronounce
sentence.”
       As acknowledged by appellate counsel’s supplemental letter brief (filed July 21,
2015) Cooks was convicted on May 10, 2013, and sentencing was originally set for two
weeks later, on May 28. Thereafter, however, sentencing was continued 11 times (the
last time over the People’s objection) and then Cooks again requested a continuance on
May 23, 2014.
       “A continuance will be granted for good cause ([Evid. Code] § 1050, subd. (e)),
and the trial court has broad discretion to grant or deny the request. [Citations.] In
determining whether a denial was so arbitrary as to deny due process, the appellate court
looks to the circumstances of each case and to the reasons presented for the request.
[Citations.]” (People v. Frye (1998) 18 Cal.4th 894, 1012-1013, disapproved on another


                                              23
ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) “A showing of good
cause requires a demonstration that counsel and the defendant have prepared for trial with
due diligence.” (People v. Jenkins (2000) 22 Cal.4th 900, 1037.) On appeal, the
defendant must demonstrate a clear abuse of discretion in order to challenge the trial
court’s denial of a motion for continuance. (People v. Froehlig (1991) 1 Cal.App.4th
260, 265 [“Discretion is abused only when the court exceeds the bounds of reason, all
circumstances being considered.”].)
       After a dozen continuances, the trial court refused to delay the matter any further.
The trial court acted well within its discretion in denying yet another continuance after
sentencing had already been continued for nearly a year.
                     (3) Lack of probation report.
       Cooks complains that he never received a copy of a presentence probation report,
and he apparently contends that the trial court erred by sentencing him without having
obtained a presentence probation report.
       In general, “a probation report is not necessarily required if defendant is statutorily
ineligible for probation . . . . [Citations.] This is consistent with section 1203,
subdivision (b)(1), which provides in pertinent part that the trial court shall order a
probation report ‘before judgment is pronounced’ for persons ‘convicted of a felony’ who
are ‘eligible for probation.’ ” (People v. Dobbins (2005) 127 Cal.App.4th 176, 180.)
Cooks was not statutorily eligible for probation because he was subject to sentencing
under the One Strike scheme. (See § 667.61, subd. (h) [“Notwithstanding any other
provision of law, probation shall not be granted to, nor shall the execution or imposition
of sentence be suspended for, any person who is subject to punishment under this
section.”].)
       Nevertheless, even where a defendant is statutorily ineligible for probation, a trial
court has discretion to order a presentence probation report under section 1203.10:
“[U]nder section 1203.10, at the time of a verdict of guilty, the probation officer, ‘when
so directed by the court,’ must ‘inquire into the antecedents, character, history, family
environment, and offense of such person, and must report the same to the court and file


                                              24
his report in writing . . . .’ If the court has requested a probation report under section
1203.10, the court may not pronounce judgment upon the defendant ‘unless a copy of the
probation report has been made available to the court, the prosecuting attorney, and the
defendant or his or her attorney, at least two days or, upon the request of the defendant,
five days prior to the time fixed by the court for consideration of the report with respect
to pronouncement of judgment.’ (§ 1203d.) The report is then filed with the clerk at the
time the court considers it.” (People v. Conners (2008) 168 Cal.App.4th 443, 456.)
       In this case, the record on appeal contains a “probation and sentencing report,” but
this report has no date stamp. It does, however, indicate a “hearing date” of March 27,
2014, which – according to Cooks’s appellate counsel – was one of the dates from which
sentencing had been continued. Inasmuch as we are remanding this matter for
resentencing, we will direct the trial court to furnish Cooks with any probation report to
be used for resentencing.




                                              25
                                     DISPOSITION
       The convictions are affirmed. The sentence is vacated and the matter is remanded
to the trial court for resentencing in accordance with the terms of this opinion. The
petitions for habeas corpus are denied.


       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                 EDMON, P. J.


We concur:




              ALDRICH, J.




              JONES, J.*




*
        Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.



                                            26
