Filed 8/29/13 P. v. Myles CA3
                                           NOT TO BE PUBLISHED



California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.



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



THE PEOPLE,

                   Plaintiff and Respondent,                                                 C066505

         v.                                                                      (Super. Ct. No. 05F05593)

ORLINDO ANTONIO MYLES,

                   Defendant and Appellant.


THE PEOPLE,

                   Plaintiff and Respondent,                                                 C066506

         v.                                                                      (Super. Ct. No. 05F05593)

KRISTOPHER SPEIGHT,

                   Defendant and Appellant.




                                                             1
       Defendants Orlindo Antonio Myles and Kristopher Speight were tried together
with separate juries. A jury convicted Myles of first degree residential burglary; first
degree robbery; assault with intent to commit rape, oral copulation, sexual penetration or
sexual penetration in concert; sexual penetration; and sexual penetration in concert. The
jury also found true allegations that Myles committed the sexual offenses during a first
degree burglary and that he tied or bound the victim in the commission of the sexual
offenses, qualifying him for harsher punishment under the one strike law.
       A different jury convicted Speight of first degree residential burglary; first degree
robbery; sexual penetration; and sexual penetration in concert. The jury also found true
allegations that Speight committed the sexual offenses during a first degree burglary and
that he tied or bound the victim in the commission of the sexual offenses, qualifying him
for harsher punishment under the one strike law.
       The trial court sentenced Myles to a determinate term of seven years four months
in prison plus a consecutive indeterminate term of 25 years to life. It sentenced Speight
to a determinate term of three years in prison plus a consecutive indeterminate term of 25
years to life.
       In part I of this opinion we discuss the appellate contentions asserted by Myles.
Myles contends (A) his trial counsel provided ineffective assistance by not moving to
exclude Myles’s jury when Speight testified in his own defense and implicated Myles;
and (B) the trial court erred in instructing the jury with CALCRIM No. 335, because the
direction that Speight was an “accomplice” undermined Myles’s defense that Speight was
the primary offender.
       We will affirm the judgment against Myles, but we will direct the trial court to
correct the abstract of judgment to indicate that Myles was convicted on count five of
sexual penetration in concert, not rape in concert.
       In part II of this opinion we will discuss Speight’s appellate contentions. Speight
argues (A) there is insufficient evidence to sustain his conviction for sexual penetration in

                                             2
concert as an aider and abettor; (B) the trial court erred in instructing the jury on the
meaning of the words “in concert”; (C) if the conviction for sexual penetration in concert
(count five) is allowed to stand, the conviction for sexual penetration (count four) must
be stricken because it is a necessarily included offense; (D) the trial court erroneously
instructed the jury that Speight’s testimony required corroboration; (E) the trial court
gave an argumentative instruction on aiding and abetting; (F) the trial court erred in
failing to instruct sua sponte on the lesser included offenses of battery and sexual battery
in connection with the charge of sexual penetration; (G) because Speight did not commit
any sexual offense, the one strike finding that he committed a sexual offense during the
commission of a burglary is not supported by the evidence; (H) because Speight did not
commit any sexual offense, the one strike finding that he tied or bound the victim in the
commission of a sexual offense is not supported by the evidence; (I) the trial court
erroneously believed consecutive sentences were mandatory and hence did not exercise
informed discretion; (J) the sentence of 25 years to life constitutes cruel and/or unusual
punishment in this context; (K) Speight’s trial counsel provided ineffective assistance;
and (L) the abstract of judgment must be corrected to reflect that Speight was convicted
on count five of sexual penetration in concert, not rape in concert.
       We will dismiss the conviction on count four for sexual penetration, and lift the
stay of execution of sentence on the count five conviction for sexual penetration in
concert. We will remand the matter to the trial court to resentence Speight on count five.
We will affirm the judgment in all other respects. We will also direct the trial court to
amend and correct the abstract of judgment.




                                               3
                                     BACKGROUND
       On June 8, 2005, the 14-year-old victim was at home alone with her two-year-old
sister when Myles and Speight entered the home.1 The victim said Myles wore a red
sweatshirt and Speight wore a blue sweatshirt.
       Speight grabbed the victim’s arm and placed his arm around her neck, putting her
in a headlock. Myles later also grabbed the victim, holding her tightly around her torso.
While holding her, Myles groped the victim’s breasts and tried to put his hands down her
pants. The victim yanked Myles’s hand away and tried to grab his wrists to free herself
from his hold. Myles grabbed the victim’s wrists and pushed her toward her parents’
bedroom where Speight had gone.
       The victim’s sister was asleep on her parents’ bed. The victim told defendants not
to touch her sister. Myles responded, “As long as you cooperate, we wouldn’t do
anything [to her].” Speight was in the room when Myles made this threat “loud enough
to hear” and Speight repeated almost the same statement made by Myles. Speight then
rummaged through the things in the parents’ bedroom.
       Myles brought the victim to a bedroom across the hall. He took a digital camera
and gave it to Speight, who placed it in a backpack and then left the bedroom.
       Myles kissed the victim, lifted her shirt, and sucked on her nipples. He held the
victim’s hands above her head and tried to take off her pants and underwear. The victim
resisted, biting Myles on his right forearm and kicking him in the groin. Myles punched
the victim in the face and the top of her head three times with a closed fist, causing her
nose to bleed.
       Myles then took the victim to her brothers’ bedroom. Speight was not in that
room. Myles threw the victim onto the bottom bunk of the bunk bed in the room. He




1 All dates refer to 2005 unless otherwise indicated.


                                              4
took his penis out of his pants and told the victim to suck it. The victim refused. Myles
then ripped off the victim’s bra, pulled down her pants and underwear, grabbed, kissed
and sucked her breasts, tried to force himself on top of her and, using his hands, forced
her to open her legs. The victim resisted and tried to get Myles off her. Her pants and
underwear were around her ankles.
         At some point in time, Speight appeared at the doorway of the bedroom, looked
inside and said “Come on. We gotta go. Her brothers are going to be home soon.”
Speight did not do or say anything to stop Myles from harming the victim.
         Myles picked the victim up and took her into the hallway. The victim struggled to
get out of his hold. Her pants and underwear were around her ankles. Speight was also
in the hallway, in a position where he could see the victim struggling against Myles.
Myles threatened to hit the victim with a wooden CD (compact disc) rack as the victim
continued to struggle.
         Myles told Speight to get something to tie the victim up with. Speight left the
hallway and returned with a cord in his hands. The victim began to fight harder when she
saw the cord, but she fell to the floor and ended up on her stomach. Both defendants
were on top of her tying her down. The victim could not see which person actually tied
her up. Her hands were tied very tightly behind her back so that she could not move her
hands.
         After she was tied up, Myles pulled the victim to her feet. He put his fingers
inside the victim’s vagina and said, “Tell me it feels good.” Speight was not in the
hallway at that point. The victim was unable to stop Myles because her hands were
bound, and she felt completely helpless.
         After he digitally penetrated her, Myles brought the victim, still tied up, back to
her parents’ bedroom. The victim’s sister was still asleep. Speight took the victim’s
Playstation 2 console from her parents’ bedroom. He told Myles, “Leave her alone. We
gotta go.”

                                                5
       The victim managed to dial 911 after defendants left. The entire occurrence, from
the time defendants entered the victim’s home to the time they left, took about 10 to 15
minutes.
       That same day, child abuse evidence collector Ana Ross saw bruises on the
victim’s nose, dried blood under her nose, redness on her neck and arms, and ligature
marks on her wrists. Ross also observed redness on the victim’s hymen, which Ross
testified was consistent with a sexual assault.
       In Myles’s backpack, police found a camera taken from the victim’s house. Myles
also had what appeared to be a puncture mark on his right forearm. In DNA testing of a
saliva swab taken from the victim’s left breast, Myles was determined to be a contributor.
       Speight was eliminated as a contributor for the DNA sample taken from the
victim’s breast. But Speight resembled the composite sketch of one of the intruders that
was prepared based on the victim’s description.
       Police detectives interviewed Speight three times. Speight lied to police about his
whereabouts on June 8 during the first two interviews. On June 14, police detectives
interviewed Speight a third time. Speight told detectives that Myles came up with the
idea to “hit” the victim’s house but Speight agreed to go with Myles; Myles tricked the
victim into letting defendants into her house; Myles hit the victim; and Myles directed
Speight to take various items from the house. Speight also said he saw the victim’s pants
pulled down, heard Myles say “I’m about to fuck her,” and realized that Myles was
probably trying to rape the victim. According to Speight, he objected and told Myles to
leave the victim alone. But Speight admitted that Myles instructed him to tie the victim
up and Speight complied by wrapping a cord around her arms. Speight did not tell police
that he escorted the victim out of the room after Myles announced his intent to rape her.
       At two live lineups on June 18, the victim identified Speight and Myles as her
assailants. The victim was certain that Myles was the person who sexually assaulted her.



                                              6
       A second amended information charged defendants with first degree residential
burglary (Pen. Code, § 459 -- count one);2 first degree robbery (§ 211 -- count two);
assault with intent to commit rape, oral copulation, sexual penetration, or sexual
penetration in concert (§ 220, subd. (b) -- count three); sexual penetration (§ 289, subd.
(a)(1) -- count four); and sexual penetration in concert (§ 264.1 -- count five). It was
alleged in counts four and five that defendants committed the charged sexual offenses
during a first degree burglary and that defendants tied or bound the victim in the
commission of the sexual offenses (§ 667.61, former subd. (e)(6), now subd. (e)(5)).
       Defendants were tried together but with two juries. Speight testified at trial.
Myles did not testify.
       Speight provided the following account about what happened on June 8: Myles
asked Speight whether he knew of any houses to “hit” for a portable video game called
“PSP.” Speight showed Myles the victim’s house. Although he was initially reluctant,
Speight agreed to help Myles burglarize the house.
       Speight rang the doorbell of the house to check whether anyone was at home. He
was surprised when the victim answered the door. But Speight did not tell Myles that he
did not want to go forward with their plan to burglarize the house.
       Myles told Speight to find out whether anyone else was at home. Speight
complied when Myles said he would go with Speight. They returned to the house
together. Speight asked the victim if her parents were home. She responded that they
were at work. Speight and Myles then left.
       Myles told Speight they were going to “rush” into the house, grab the victim, and
“hit” the house. Speight refused, but Myles convinced him to go back once more.
Speight and Myles returned to the victim’s house and rang the doorbell again. They




2 Undesignated statutory references are to the Penal Code.


                                              7
asked the victim to call them if she saw Speight’s brother because they needed him to go
home. The victim invited Speight and Myles into the house.
       The victim was writing down a fake telephone number that Speight gave her when
Myles yelled “Grab her.” The victim hit Speight on the side of the head. Speight
grabbed the victim’s arms to stop her from hitting him and Myles hit the victim. Myles
grabbed the victim and placed his arm around her neck.
       When Speight saw Myles hit the victim, he “froze.” He did not expect that Myles
would hit the victim, but he wanted “to go along with it and just get it done” so that they
could leave the house. Speight was afraid because, even though Myles never threatened
him, he thought Myles might try to hit him.
       Pursuant to instruction from Myles, Speight took a camera that was on the kitchen
counter. Speight proceeded to the first bedroom he saw, the parents’ bedroom, and
looked around for the PSP. He then went across the hall to the next bedroom, thinking
the PSP would more likely be in a kid’s bedroom.
       In the second bedroom, Speight saw Myles, with his back to Speight, leaning over
the victim “like he was on top of her.” Speight saw the victim’s shirt pulled up and her
breasts were visible.
       Speight told Myles he did not think the PSP was in the parents’ bedroom. Myles
asked the victim if there were any guns or money in the house. The victim answered no.
Myles then picked the victim up and said he was going to a back room. The victim
struggled with Myles.
       Speight looked around the second bedroom for the PSP but did not find it. He
returned to the parents’ bedroom, where he looked around for money and other things.
The telephone rang and Speight noticed the victim’s sister on the bed. Speight denied
threatening to hurt the victim’s sister and denied hearing Myles threaten to hurt her.
Speight panicked when he saw the victim’s sister and went to search for Myles in the
back bedrooms.

                                              8
       Standing at the doorway of one of the back bedrooms, Speight saw the victim
sitting on a bunk bed with her pants around her legs and Myles kneeling in front of her.
Myles said he was about to “fuck her.” After Speight learned that Myles intended to rape
the victim, Speight tried to get out of the house as fast as he could; he told Myles to leave
the victim alone and they needed to leave the house. Speight entered the bedroom,
grabbed the victim by the shoulders and pants and pulled her up while trying to pull up
her pants. He pulled her into the hallway.
       Myles stopped Speight and said they needed something to tie up the victim so she
did not call the police. Speight grabbed an electrical cord. The victim struggled with
Myles and Myles hit her in the stomach, causing her to fall to the ground. The victim
continued to fight and Myles threatened to hit her with a CD rack. Speight instructed the
victim to stop struggling. He gave the cord to Myles and Myles used it to bind the
victim. Speight denied that he tied up the victim.
       After the victim was bound, Speight returned to the parents’ bedroom. He told
Myles to bring the victim to the parents’ bedroom and to put the victim on the bed.
Myles took a camera and asked Speight to take a Playstation 2 console. Speight and
Myles ran from the victim’s house together.
       Speight was not truthful with police when they interviewed him, and he tried to
downplay his role in the incident.
       The Myles jury found Myles guilty on all counts and found all of the one strike
allegations to be true. The Speight jury found Speight guilty on all counts except count
three, and it found all of the one strike allegations in counts four and five to be true.
       The trial court sentenced Myles as follows: the upper term of six years in prison
on count two (the principal term); a consecutive one year four months on count one; a
consecutive indeterminate term of 25 years to life on count four; a concurrent
indeterminate term of life with the possibility of parole on count three; and an



                                               9
indeterminate term of 25 years to life on count five, stayed pursuant to section 654; for a
total aggregate term of seven years four months plus 25 years to life in prison.
       The trial court sentenced Speight as follows: the lower term of three years in
prison on count two (the principal term); four years on count one, stayed pursuant to
section 654; a consecutive indeterminate term of 25 years to life on count four pursuant
to section 667.6, subdivision (d); and 25 years to life on count five, stayed pursuant to
section 654; for a total aggregate term of three years plus 25 years to life.
                                       DISCUSSION
                                     PART I -- MYLES
                                              A
       Myles contends his trial counsel provided ineffective assistance by not moving to
exclude Myles’s jury when Speight testified in his own defense and implicated Myles.
According to Myles, his primary defense was that he was not one of the intruders; his
alternate defense was that he was not the primary offender. But Speight’s defense was
that Myles was the primary offender. Speight testified accordingly in front of both
juries.3


3 Counsel for Myles moved to sever the trial or, in the alternative, empanel two juries.
The trial court ordered separate juries. Myles’s motion was made pursuant to People v.
Aranda (1965) 63 Cal.2d 518 and Bruton v. United States (1968) 391 U.S. 123 [20
L.Ed.2d 476], which stand for the proposition that a non-testifying codefendant’s
extrajudicial statement that inculpates defendant is generally inadmissible because it
violates defendant’s constitutional right of confrontation and cross-examination, even if a
limiting instruction is given. (People v. Jennings (2010) 50 Cal.4th 616, 652.) In his
reply brief on appeal, Myles agrees that any confrontation clause concern regarding
Speight’s pretrial statements was dispelled when Speight testified and Myles had an
opportunity to confront and cross-examine Speight. (People v. Dement (2011) 53 Cal.4th
1, 23-24; People v. Steger (1976) 16 Cal.3d 539, 551 [court did not err in admitting
pretrial statement of codefendant who testified at trial]; People v. Sosa (1972) 26
Cal.App.3d 514, 517-518 [admission of codefendant’s testimony about his pretrial
statements was not error where codefendant was available at trial for “full and effective”
cross-examination]; Crawford v. Washington (2004) 541 U.S. 36, 59, fn. 9 [158 L.Ed.2d

                                             10
       Myles cites “general authorities” for the proposition that “the failure to object to
damaging and inadmissible testimony or to make appropriate motions can be the basis for
a conclusion that counsel was incompetent.” But those general authorities are not
dispositive here because they do not involve a trial counsel’s failure to object to the
testimony of a codefendant before the jury of a jointly tried defendant.
       Myles claims People v. Wardlow (1981) 118 Cal.App.3d 375 (Wardlow)
illustrates how a dual jury trial should be conducted. But Myles concedes that the court
in Wardlow did not consider the precise issue presented here; Myles has been unable to
find a published California case on point. Thus, Myles turns to cases from other states.
He cites a Florida case, Watson v. State (Fla.Dist.Ct.App. 1994) 633 So.2d 525, which
involved defendants who were tried together with separate juries (id. at pp. 525-526), but
that case does not assist him. Although the Florida appellate court determined, without
explanation, that it was error to permit defendant Watson’s jury to remain in the
courtroom during eyewitness testimony exculpating codefendant Tomingo but
inculpating Watson (ibid.), the appellate court nonetheless affirmed the judgment against
Watson because his trial counsel did not ask that Watson’s jury be excused during
Tomingo’s case, and, in any event, the eyewitness testimony against Watson did not
render his trial illegal. (Id. at p. 526.)
       Myles also cites an Illinois case, People v. Rodriguez (Ill.Dist.Ct.App. 1997) 680
N.E.2d 757, 767, but that case is distinguishable. It involved the violation of a
defendant’s Sixth Amendment rights where a jointly tried codefendant cross-examined
defendant in the presence of defendant’s jury. Here, Myles did not testify and there is no
contention that Myles was precluded from presenting evidence in his case.




177, 197] [when codefendant/declarant appears at trial and is subject to cross-
examination by defendant, the confrontation clause places no constraints on the use of
codefendant’s prior testimonial statements].)

                                             11
       Ultimately, Myles fails to specify why Speight’s testimony was inadmissible
against Myles, and he fails to specify the particular grounds upon which his trial counsel
should have objected. This failure is fatal to his ineffective assistance claim. (People v.
Stankewitz (1990) 51 Cal.3d 72, 114 [no basis to conclude that counsel erred in failing to
object to admission of evidence where appellant offered no potential basis for objection
that counsel might have overlooked]; People v. Beasley (2003) 105 Cal.App.4th 1078,
1092 [failure to specify the grounds for objection and show its merits on appeal defeats
ineffective assistance claim].) Accordingly, we need not consider his other contentions
because he fails to demonstrate error by his trial counsel. (People v. Maury (2003) 30
Cal.4th 342, 389 [ineffective assistance of counsel claim requires proof that trial
counsel’s representation was deficient]; Strickland v. Washington (1984) 466 U.S. 668,
687 [80 L.Ed.2d 674, 693] [same].)
                                              B
       Myles also contends the trial court committed instructional error. According to
Myles, although his counsel argued that Speight was the primary offender, the trial court
nonetheless instructed the jury with CALCRIM No. 335, directing the jury that “[i]f any
of the crimes charged, or the lesser included crime, were committed, then defendant
Kristopher Speight was an accomplice to those crimes.”4 Myles says the instruction
undermined his defense that Speight was the primary actor.
       Myles’s premise -- that an accomplice is not a primary offender -- is incorrect.
For purposes of the CALCRIM No. 335 instruction, an accomplice is “one who is liable
to prosecution for the identical offense charged against the defendant.” (§ 1111; People
v. Avila (2006) 38 Cal.4th 491, 564; People v. Felton (2004) 122 Cal.App.4th 260, 268.)



4 Myles requested the CALCRIM No. 335 instruction during trial. But he argues his
contention on appeal is not forfeited because the error affected his substantial rights.
(§ 1259.)

                                             12
To be chargeable as an accomplice, a witness must directly commit the act constituting
the offense or aid and abet in its commission. (People v. Avila, supra, 38 Cal.4th at p.
564.) “Under Penal Code section 1111 . . . , ‘accomplice’ is not synonymous with aider
and abettor; a perpetrator can be an accomplice.” (People v. Felton, supra, 122
Cal.App.4th at p. 269; see People v. Belton (1979) 23 Cal.3d 516, 523 [perpetrator of a
crime is an accomplice].) Therefore, the instruction that Speight was an accomplice did
not require the jury to find that Myles was the primary offender. In fact, the trial court
instructed Myles’s jury on aiding and abetting, explaining that Myles may be guilty of a
crime as a direct perpetrator or an aider and abettor.
       Myles concedes in his reply brief that defendants can both be accomplices. He
nonetheless asserts that a reasonable jury would have assumed that the CALCRIM No.
335 instruction meant that Myles was not an accomplice but was the primary offender in
the crimes. But this speculation finds no evidence in the record.
       However, our review of the record discloses a clerical error in the abstract of
judgment.5 The abstract of judgment incorrectly states that Myles was convicted in count
five of rape in concert, rather than sexual penetration in concert. We will direct the trial
court to prepare a corrected abstract of judgment. (People v. Mitchell (2001) 26 Cal.4th
181, 185.)
                                    PART II -- SPEIGHT
                                               A
       Speight contends there is insufficient evidence to sustain his conviction for sexual
penetration in concert as an aider and abettor. He asserts there is no evidence that he




5 Although the parties did not raise this clerical error in their appellate briefs, the error
and the remedy appear to be clear. Any party aggrieved may petition for rehearing.
(Gov. Code, § 68081.)

                                              13
knew of Myles’s intent to commit sexual penetration, and no evidence that Speight
intended to encourage or facilitate the commission of that offense.
       In determining whether sufficient evidence supports a conviction, “ ‘we do not
determine the facts ourselves. Rather, we “examine the whole record in the light most
favorable to the judgment to determine whether it discloses substantial evidence --
evidence that is reasonable, credible and of solid value -- such that a reasonable trier of
fact could find the defendant guilty beyond a reasonable doubt.” [Citations.] We
presume in support of the judgment the existence of every fact the trier could reasonably
deduce from the evidence. [Citation.] [¶] The same standard of review applies to cases
in which the prosecution relies primarily on circumstantial evidence and to special
circumstance allegations. [Citation.] “[I]f the circumstances reasonably justify the jury’s
findings, the judgment may not be reversed simply because the circumstances might also
reasonably be reconciled with a contrary finding.” [Citation.]’ ” (People v. Nelson
(2011) 51 Cal.4th 198, 210.) We do not reweigh evidence or reevaluate a witness’s
credibility. (Ibid.)
       Section 264.1 provides in pertinent part that “in any case in which the defendant,
voluntarily acting in concert with another person, by force or violence and against the
will of the victim,” commits the offense of sexual penetration, as described in section 289
[defining sexual penetration], either personally or as an aider and abettor, the defendant
shall be sentenced to state prison. (§ 264.1, subd. (a).)
       A defendant is guilty of sexual penetration in concert as an aider and abettor if (1)
the direct perpetrator committed or attempted to commit the offense of sexual
penetration, (2) the aider and abettor knew of the direct perpetrator’s unlawful intent, (3)
the aider and abettor intended to encourage and bring about the direct perpetrator’s
unlawful ends, and (4) the aider and abettor engaged in conduct that in fact assisted the
achievement of the crime. (People v. Perez (2005) 35 Cal.4th 1219, 1225-1227; People
v. Keovilayphone (2005) 132 Cal.App.4th 491, 497.)

                                             14
       Whether a defendant aided and abetted the commission of a crime is a question of
fact which may be proved by circumstantial evidence. (People v. Beeman (1984) 35
Cal.3d 547, 559–560; People v. Pitts (1990) 223 Cal.App.3d 606, 892–893.) A number
of cases have discussed the evidence sufficient to support such a conviction. (See, e.g.,
People v. Pelayo (1999) 69 Cal.App.4th 115, 120-121 [sufficient evidence where
defendant facilitated the sexual penetration committed by cohort]; People v. Nguyen
(1993) 21 Cal.App.4th 518, 529-530, 533-534 [defendants aided and abetted the
perpetrators who actually committed the sexual offense]; People v. Lopez (1981) 116
Cal.App.3d 882, 884-885 [sufficient evidence where defendant’s actions prior to rape
showed he knew cohort’s intent to rape and he helped cohort carry out plan]; People v.
Villa (1957) 156 Cal.App.2d 128, 130-132, 135-137 [sufficient evidence where
defendant’s silence and lack of objection constituted tacit approval of sexual offense];
People v. Shevette (1950) 98 Cal.App.2d 782, 783-786 [sufficient evidence where
defendant aided and abetted cohort].)
       Here, the record establishes there was sufficient evidence from which the jury
could reasonably find that Speight committed sexual penetration in concert as an aider
and abettor. Acting together, Myles and Speight entered the victim’s home and grabbed
her. Myles groped the victim’s breasts and attempted to put his hands down her pants the
first time he grabbed her. To gain the victim’s cooperation, defendants threatened to
harm the victim’s sister. Thereafter, Speight saw Myles on top of the victim in one of the
bedrooms and saw that the victim’s shirt was pulled up. Speight did not object to
Myles’s treatment of the victim but instead continued to carry out their plan to search the
victim’s house for the PSP, leaving Myles alone with the victim.
       In one of the back bedrooms, Speight saw the victim with her pants pulled down
around her legs and Myles kneeling in front of her. Myles told Speight he was about to
“fuck her.” Speight knew at that point that Myles intended to rape the victim. According
to the victim, Speight did not pull Myles off her, did not object to what Myles said he

                                            15
intended to do, and did not tell Myles to leave her alone. Instead, when Myles announced
that he wanted to bind the victim, Speight gave Myles an electrical cord to use for that
purpose and, according to the victim, helped restrain and bind the victim. The victim’s
testimony that Speight helped bind her is consistent with Speight’s pretrial admission to
police that he wrapped a cord around the victim’s arms. After the victim’s hands were
bound, Myles digitally penetrated her vagina.
       Although Speight was not in the hallway when Myles committed the offense of
sexual penetration, the jury could reasonably conclude that Speight knew Myles intended
to rape the victim, Speight’s conduct evinced an intent to help Myles accomplish his
stated purpose, and Speight’s actions in fact helped Myles commit sexual penetration.
(People v. Pelayo, supra, 69 Cal.App.4th at p. 121 [presence when the crime occurred is
not required for aider and abettor liability]; People v. Nguyen, supra, 21 Cal.App.4th at
pp. 529-530 [failure to take action to prevent a crime is a factor the jury may consider in
assessing defendant’s criminal responsibility], 531-532 [a person may aid and abet a
criminal offense without prior agreement, and the primary offender need not expressly
communicate his criminal purpose to defendant because that purpose may be apparent
from the circumstances].)
       Speight testified that he tried to stop Myles from raping the victim. He also
testified that his reasons for helping Myles bind the victim did not include assisting
Myles with sexual assault. But the jury was not required to believe Speight’s testimony
in that regard, and it clearly did not believe it. (People v. Beeman, supra, 35 Cal.3d at pp.
559–560; People v. Villa, supra, 156 Cal.App.2d at p. 136.)
       Substantial evidence supports the jury’s finding that all of the elements of sexual
penetration in concert as an aider and abettor were established.
                                             B
       Speight next contends the trial court erred in instructing the jury on the meaning of
the words “in concert.” Convicted of sexual penetration in concert (§ 264.1 -- count

                                             16
five), he argues CALCRIM No. 1046 describes “acting ‘in concert’ ” in terms of “aiding
and abetting” and does not adequately convey the requirement that the codefendants must
act together in a concerted effort. Speight says the trial court’s answers to jury questions
on the subject merely reinforced the error. He claims the instructional error permitted the
jury to convict him without proof that he acted in a concerted effort with Myles to
commit the crime of sexual penetration.
       Section 264.1 describes acting in concert with another person as either committing
the offense personally, or aiding and abetting the other person. (§ 264.1; People v. Jones
(1989) 212 Cal.App.3d 966, 969.) The trial court instructed the jury with CALCRIM No.
1046, explaining that the People must prove (1) defendant personally committed sexual
penetration and voluntarily acted with someone else who aided and abetted its
commission; or (2) defendant voluntarily aided and abetted someone else who personally
committed sexual penetration.
       When the jury subsequently asked what “in concert” means, the trial court
responded that it means “together.” The trial court adequately explained to the jury that
in order to convict Speight of sexual penetration in concert, it must find that Speight and
Myles acted together. (People v. Jones, supra, 212 Cal.App.3d at p. 969; People v.
Calimee (1975) 49 Cal.App.3d 337, 341.) Consistent with the trial court’s explanation,
the prosecutor told the jury that the charge of sexual penetration in concert meant that
Speight and someone else committed sexual penetration.
       Speight nonetheless argues that proof of aiding and abetting does not necessarily
establish that defendants acted in concert. Although acting in concert is not necessarily
synonymous with “aiding and abetting” (People v. Jones, supra, 212 Cal.App.3d at p.
969), the evidence in this case supports the finding that Speight acted in concert with
Myles by aiding and abetting his sexual penetration of the victim. (People v. Wheeler
(1977) 71 Cal.App.3d 902, 906-907.) Speight was tried for sexual penetration in concert
as an aider and abettor. The trial court told the jury that Speight was guilty of sexual

                                             17
penetration in concert if the People proved that Speight voluntarily aided and abetted the
commission of sexual penetration. That instruction correctly stated the law in the context
of this case (§ 264.1, subds. (a), (b)(1) & (2) [defendant can be guilty of committing
sexual penetration in concert as an aider and abettor]; People v. Adams (1993) 19
Cal.App.4th 412, 446 [active participation in the commission of the sexual act is not
required for in concert finding]; People v. Lopez, supra, 116 Cal.App.3d at p. 884
[defendant need not personally participate in the physical act of the sexual offense for in
concert liability to attach]) and did not negate the other jury instructions that Speight
must act in concert or together with Myles in committing sexual penetration. (People v.
Fiu (2008) 165 Cal.App.4th 360, 370 [we consider the instructions as a whole in
determining a claim of instructional error].)
       Speight claims that when the jury asked whether “together” means “physically or
mentally,” the trial court erred in responding that “together” does not mean “physically
together.” Speight says section 264.1 requires some physical action to assist the
commission of the offense, not merely a “meeting of the minds” or “mental
togetherness.” But the trial court’s response was correct. A defendant can act in concert
without being physically present during the sexual act. (People v. Champion (1995) 9
Cal.4th 879, 933 [defendant committed a sexual offense in concert even though he was
not in the room when the rape was committed where the conduct by the group of
defendants helped in the commission of the rape], disapproved on another ground in
People v. Ray (1996) 13 Cal.4th 313, 369, fn. 2; People v. Lopez, supra, 116 Cal.App.3d
at p. 884 [defendant was properly convicted of forcible rape while acting in concert
although he was not in the bedroom when his co-defendant raped the victim].) The trial
court correctly told the jury that Speight did not have to be physically present in the
hallway when Myles committed the act of sexual penetration for the jury to find that
Speight acted in concert with Myles.



                                                18
       As for the requirement of some action by the aider and abettor to assist the
commission of the offense, the trial court told the jury that the People must prove that
Speight’s words or conduct did, in fact, aid and abet the perpetrator’s commission of
sexual penetration. In response to jury question No. three, the trial court reiterated that
someone aids or abets a crime if he “does, in fact, aid, facilitate, promote, encourage, or
instigate the perpetrator’s . . . commission of that crime.” Considering the instructions
together, as we must on appeal (People v. Fiu, supra, 165 Cal.App.4th at p. 370), we find
no reasonable likelihood the jury understood that it could convict Speight of sexual
penetration in concert without finding concerted action by Speight and Myles and
conduct by Speight which aided Myles in committing the crime of sexual penetration.6
       Speight appears to argue in his reply brief that the offense of sexual penetration in
concert requires a “gang sexual assault” or “group sexual attack.” But a “gang-type
sexual assault” is not required for an in concert sexual offense. (People v. Champion,
supra, 9 Cal.4th at pp. 932-933 [defendant Ross was properly convicted of rape in
concert even though none of his companions were in the bathroom when he raped the
victim]; People v. Green (1985) 166 Cal.App.3d 514, 516-517 [sufficient evidence
supported finding that defendant acted in concert in the commission of rape even though
defendant was the only person who had sexual intercourse with the victim]; People v.
Lopez, supra, 116 Cal.App.3d at p. 887 [“If the Legislature wanted to limit section 264.1
to gang rape with only the active participants being held culpable, it could easily have
done so”]; People v. Wheeler, supra, 71 Cal.App.3d at pp. 906-907 [defendant acted in




6 Speight was prosecuted as an aider and abettor on the count five charge of sexual
penetration in concert. In their appellate briefs, the parties discuss the fact that the jury
instructions pertaining to count five did not include an instruction on the natural and
probable consequences doctrine of aiding and abetting. But we need not address that
issue because Speight does not claim the omission was erroneous.

                                              19
concert in the commission of rape even though his companion was the only person who
had sexual intercourse with the victim].)
                                              C
       Speight further argues that if the conviction for sexual penetration in concert
(count five) is allowed to stand, the conviction for sexual penetration (count four) must
be stricken because it is a necessarily included offense. The Attorney General agrees that
counts four and five are based on the same conduct and that commission of sexual
penetration in concert necessarily includes the commission of sexual penetration.
       Although multiple convictions are generally allowed, there is an exception for
necessarily included offenses. (People v. Medina (2007) 41 Cal.4th 685, 701.) A lesser
offense is necessarily included in a greater offense if either the statutory elements of the
greater offense or the facts actually alleged in the accusatory pleading include all the
elements of the lesser offense, such that the greater cannot be committed without also
committing the lesser. (Ibid.) The logic behind the rule prohibiting convictions for both
a greater offense and a necessarily included offense is that “ ‘[i]f a defendant cannot
commit the greater offense without committing the lesser, conviction of the greater is also
conviction of the lesser. To permit conviction of both the greater and the lesser offense
“ ‘ “would be to convict twice of the lesser. ” ’ ” [Citation.] There is no reason to permit
two convictions for the lesser offense.’ [Citation.] There is also no prejudice to the
People if a court strikes, rather than stays, the conviction. If a greater offense is reversed
on appeal, the lesser included offense may be revived by operation of law. [Citations.]”
(Id. at p. 702, italics omitted.)
       Sexual penetration in concert pursuant to section 264.1 requires sexual penetration
as described in section 289. (§ 264.1, subd. (a).) Accordingly, the crime of sexual
penetration in concert necessarily includes the crime of sexual penetration. Because we
affirm the conviction for sexual penetration in concert (count five), we will dismiss the
conviction for sexual penetration (count four). (People v. Medina, supra, 41 Cal.4th at p.

                                              20
702.) And because we will dismiss the conviction in count four, we will lift the stay of
execution of sentence on count five, which the trial court ordered pursuant to section 654.
                                              D
       Speight next claims the trial court erroneously instructed the jury that his
testimony required corroboration. He says this was error because the trial court also
instructed the jury that it could convict Speight based solely on the victim’s
uncorroborated testimony. Speight argues those instructions undermined his
constitutional right to testify and to present evidence in his defense, and suggested his
testimony was entitled to less weight and should not be trusted. He claims the
instructional error was not harmless beyond a reasonable doubt under the standard
enunciated in Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705]. The
Attorney General does not dispute instructional error, but argues any error was harmless.
       The trial court instructed the jury pursuant to CALCRIM No. 301, stating:
“Except for the testimony of Defendant Kristopher Speight, which requires supporting
evidence, the testimony of only one witness can prove any fact. Before you conclude that
the testimony of one witness proves a fact, you should carefully review all the
evidence.”7
       Speight cites cases in which a trial court told the jury that a testifying defendant is
an accomplice whose testimony must be viewed with caution or distrust. (People v.
Coffman and Marlow (2004) 34 Cal.4th 1, 103-105; People v. Alvarez (1996) 14 Cal.4th
155, 217-219; People v. Fowler (1987) 196 Cal.App.3d 79, 85-88.) Those cases are




7 The trial court also instructed the jury with CALCRIM No. 1190, stating: “Conviction
of a sexual assault crime may be based on the testimony of a complaining witness alone.”
CALCRIM No. 1190 is a correct statement of law. (People v. Gammage (1992) 2
Cal.4th 693, 700 [construing CALJIC No. 10.60 which is similar to CALCRIM No.
1190].) It declares a substantive rule of law and does not give greater weight to the
victim’s testimony or dilute the prosecution’s burden of proof. (Ibid.)

                                              21
distinguishable. Here, the trial court did not instruct Speight’s jury that Speight was an
accomplice whose testimony must be viewed with caution or distrust; rather, it instructed
the jury that if any of the charged crimes were committed, Myles was an accomplice to
those crimes, and any statement by Myles that tended to incriminate Speight should be
viewed with caution.
       Nonetheless, even if it was error to instruct the jury pursuant to CALCRIM No.
301, we conclude the error was harmless beyond a reasonable doubt because the evidence
overwhelmingly established Speight’s guilt on count five, sexual penetration in concert.8
       Among other things, the trial court directed the jury to impartially compare and
consider all the evidence, and it instructed them that unless the evidence proved Speight
guilty beyond a reasonable doubt, the jury must find Speight not guilty. We presume the
jurors understood and followed the trial court’s instructions. (People v. Holt (1997) 15
Cal.4th 619, 662.)
       The victim testified to the following: two males entered her house and grabbed
her; Myles hit her and sexually assaulted her but she fought him off; Myles told Speight
to find something with which to tie the victim; Speight found a cord to use; the victim
was rendered helpless after her hands were bound; Speight left her in the hallway with
Myles after she was bound; and Myles then digitally penetrated her vagina.
       Speight’s testimony corroborated the victim’s testimony. Speight testified that he
and Myles, acting together, gained entry to the victim’s house by trickery with a plan to
steal a PSP; Myles hit the victim multiple times; in one of the bedrooms, Myles was on
top of the victim and the victim’s shirt was pulled up, revealing her breasts; in another
bedroom, the victim was on the bed with her pants around her legs and Myles knelt in



8 Because we will dismiss the conviction on count four for sexual penetration (as we
have already explained), we do not address Speight’s additional contentions pertaining to
that count.

                                             22
front of the victim; Myles said he was about to “fuck her”; the victim fought Myles;
Myles asked for something to use with which to tie the victim; Speight gave Myles an
electrical cord to use; and after the victim was bound, Speight left her in the hallway with
Myles. Speight acknowledged that binding the victim rendered her helpless against
Myles’s subsequent sexual assault.
       The victim’s testimony about the sexual assault was also corroborated by DNA
evidence, the puncture mark observed on Myles’s forearm on June 14, and the testimony
of Ana Ross regarding the victim’s injuries. The victim’s testimony was also
corroborated by the victim’s statements to Ross on June 8 that there were two assailants,
one of the assailants penetrated the victim’s vagina with his finger, and both assailants
threatened to hurt the victim’s sister.
       In addition, Speight’s pretrial statement to police corroborated the evidence that
Speight acted in concert with Myles and aided and abetted Myles in the commission of
sexual penetration. The trial court instructed the jury that if it decided that a witness
made a statement before trial, the jury could use the statement to evaluate whether the
witness’s testimony in court was believable and as evidence that the information in the
earlier statement was true. The trial court also instructed the jury that it must decide how
much importance to give pretrial statements and to consider such statements along with
all the other evidence in reaching its verdict.
       Speight told police that defendants entered the victim’s house together to steal a
game; they grabbed the victim; Myles hit the victim; Myles took the victim’s pants off;
Myles told Speight, “I’m about to fuck her” or “I’m about to rape this bitch” and the
victim responded “no” or “don’t”; Speight knew Myles was trying to rape the victim;
thereafter Speight got a cord and wrapped it around the victim’s arms when they were in
the hallway; and Speight and Myles ran from the victim’s house together.
       Although Speight denied at trial that he tied the victim, he repeatedly told police
that he did. The jury found that Speight engaged in the tying or binding of the victim.

                                              23
       The evidence overwhelmingly established Speight’s guilt on count five, sexual
penetration in concert. Based on the entire record, we conclude beyond a reasonable
doubt that any error in instructing the jury pursuant to CALCRIM No. 301 did not
contribute to the jury’s findings on count five.
                                              E
       Speight next contends the trial court gave an argumentative instruction on aiding
and abetting.
       Over Speight’s objection, the trial court gave the following special instruction to
the jury: “Among the factors which may be considered in making the determination of
aiding and abetting are: presence at the scene of the crime, companionship, flight, and
conduct before and after the offense.”
       Speight claims the special instruction was argumentative and invited the jury to
draw inferences favorable to the prosecution. He says the instruction implied that the
cited factors were to be accorded weight, thereby violating his federal due process right
to have the jury decide the issue of guilt or innocence.
       This court rejected a similar argument in People v. Battle (2011) 198 Cal.App.4th
50, 84-85 (Battle). The trial court in that case gave the same instruction as the one
challenged here. (Id. at p. 84.) One of the defendants argued that the instruction was
argumentative and invaded the province of the jury. (Ibid.) This court disagreed, holding
that the instruction merely listed factors which the jury could consider. (Id. at p. 85.) We
reach the same conclusion here.
       “ ‘An instruction is argumentative when it recites facts drawn from the evidence in
such a manner as to constitute argument to the jury in the guise of a statement of law.
[Citation.]’ [Citation.] An argumentative instruction is ‘ “an instruction ‘of such a
character as to invite the jury to draw inferences favorable to one of the parties from
specified items of evidence.’ ” [Citation.]’ [Citation.]” (Battle, supra, 198 Cal.App.4th
at p. 85.) The special instruction on aiding and abetting in this case is not argumentative

                                             24
because it merely listed factors in a neutral fashion, without referring to specific items of
evidence. The instruction stated that the jury “may” consider the listed factors and did
not suggest that any factor should be given any particular weight or that the jury should
apply any particular factor in favor of or against finding Speight an aider and abettor. An
instruction that lists relevant factors for the jury to consider in a neutral manner and that
does not “take a position as to the impact” of each of the factors listed is proper. (People
v. Martinez (1999) 20 Cal.4th 225, 237; People v. Wright (1988) 45 Cal.3d 1126, 1138-
1141, italics omitted; People v. Mitchell (1994) 30 Cal.App.4th 783, 805, 809-810.)
       Speight relies on People v. Mouton (1993) 15 Cal.App.4th 1313, but that case is
inapposite. Unlike here, the challenged instruction in that case listed the prosecution
evidence. (Id. at p. 1321.) Likewise, the instructions challenged in People v. Smith
(1977) 67 Cal.App.3d 45, 49-50, People v. Wright, supra, 45 Cal.3d at p. 1135 and
People v. Panah (2005) 35 Cal.4th 395, 485-486 are also distinguishable because they
focused on specific items of evidence, such as the testimony of particular witnesses, and
told the jury how such evidence should be considered.
       Although Speight argues otherwise, the special instruction challenged here did not
draw the jury’s attention away from the aiding and abetting elements set forth in
CALCRIM No. 401. The trial court instructed Speight’s jury that the People must prove
those elements. Nothing in the special instruction suggested that the listed factors
relieved the prosecution of its burden of proof. In fact, in his closing argument the
prosecutor reviewed the CALCRIM No. 401 elements, and did not argue that the factors
listed in the special instruction replaced those elements.
       Speight claims the special instruction was misleading because the cited factors
bear little relevance to determining whether he aided and abetted Myles in the
commission of the sexual offenses. We disagree. The factors listed in the challenged
instruction are relevant to whether defendant is an aider and abettor. (People v. Campbell
(1994) 25 Cal.App.4th 402, 409; People v. Chagolla (1983) 144 Cal.App.3d 422, 429;

                                              25
In re Lynette G. (1976) 54 Cal.App.3d 1087, 1094–1095.) Unlike the instruction
condemned in People v. Mouton, supra, 15 Cal.App.4th 1313, the instruction in this case
did not include irrelevant factors. (See Battle, supra, 198 Cal.App.4th at p. 85.) Based
on the evidence, Speight’s jury could rationally find that Speight aided and abetted the
commission of sexual penetration in concert. (See People v. Jones, supra, 212
Cal.App.3d at 970; People v. Lopez, supra, 116 Cal.App.3d at pp. 884-885; People v.
Wheeler, supra, 71 Cal.App.3d at p. 906.)
       Speight’s challenge to the special instruction lacks merit.
                                              F
       Speight claims the trial court erred in failing to instruct sua sponte on the lesser
included offenses of battery and sexual battery in connection with the charge of sexual
penetration. Although he did not request lesser included offense instructions for count
four (sexual penetration) or count five (sexual penetration in concert), he claims the trial
court nonetheless had a sua sponte duty to instruct on lesser included offenses because
the jury could have found, under the natural and probable consequences doctrine, that
battery and sexual battery were reasonably foreseeable consequences of first degree
burglary, while sexual penetration was not.
       Speight was prosecuted under the natural and probable consequences theory of
aiding and abetting on count four, but not on count five. Because the claim of
instructional error applies only to count four, and because we have already concluded that
the conviction on count four must be dismissed, we do not address this claim of
instructional error.
                                              G
       Speight further argues that because he did not commit any sexual offense, the one
strike finding that he committed a sexual offense during the commission of a burglary is
not supported by the evidence. He challenges the jury’s finding, made pursuant to
section 667.61, subdivision (e)(2) (section 667.61(e)(2)), that he committed the crimes of

                                              26
sexual penetration and sexual penetration in concert during the commission of a burglary.
He claims the finding must be reversed because section 667.61(e)(2) applies only to those
who personally commit an enumerated sexual offense, not to aiders and abettors, and
there is no evidence that he personally committed a sexual offense during a burglary.
       In construing a statute, our principal task is to ascertain the intent of the
Legislature so as to effectuate the statute’s purpose. (People v. Jones (1993) 5 Cal.4th
1142, 1146; People v. Overstreet (1986) 42 Cal.3d 891, 895.) We turn first to the
language of the statute because the words the Legislature chose are the best indicators of
its intent. (Jones, supra, 5 Cal.4th at p. 1146; Overstreet, supra, 42 Cal.3d at p. 895.)
We give the words of the statute their ordinary meaning and construe them in context,
harmonizing the various parts of the statute. (People v. Lawrence (2000) 24 Cal.4th 219,
230; People v. Hernandez (2009) 180 Cal.App.4th 337, 348.) If the language of the
statute is clear, we presume the Legislature meant what it said and apply the statute
according to its terms without further judicial construction. (Lawrence, supra, 24 Cal.4th
at pp. 230-231; People v. Alvarado (2001) 87 Cal.App.4th 178, 185-186.) Although the
defendant is entitled to the benefit of every reasonable doubt as to the interpretation of
words or the construction of language used in a statute, we must avoid interpretations that
would frustrate the purpose of the statute, render it nugatory, and lead to absurd results.
(People v. Alvarado, supra, 87 Cal.App.4th at p. 186.)
       Section 667.61 is an alternative and harsher sentencing scheme for certain sex
crimes, including sexual penetration in concert.9 (People v. Mancebo (2002) 27 Cal.4th




9 At the time of the offenses, section 667.61 provided, in relevant part:

 “(a) A person who is convicted of an offense specified in subdivision (c) under one or
more of the circumstances specified in subdivision (d) or under two or more of the
circumstances specified in subdivision (e) shall be punished by imprisonment in the state
prison for life and shall not be eligible for release on parole for 25 years . . . .

                                              27
 “(b) Except as provided in subdivision (a), a person who is convicted of an offense
specified in subdivision (c) under one of the circumstances specified in subdivision (e)
shall be punished by imprisonment in the state prison for life and shall not be eligible for
release on parole for 15 years . . . .

 “(c) This section shall apply to any of the following offenses: [¶] . . . [¶]

 “(3) A violation of Section 264.1. [¶] . . . [¶]

 “(5) A violation of subdivision (a) of Section 289. [¶] . . . [¶]

 “(d) The following circumstances shall apply to the offenses specified in
subdivision (c): [¶] . . . [¶]

 “(4) The defendant committed the present offense during the commission of a burglary,
as defined in subdivision (a) of Section 460, with intent to commit an offense specified in
subdivision (c).

 “(e) The following circumstances shall apply to the offenses specified in subdivision (c):
[¶] . . . [¶]

 “(2) Except as provided in paragraph (4) of subdivision (d), the defendant committed the
present offense during the commission of a burglary, as defined in subdivision (a) of
Section 460, or during the commission of a burglary of a building, including any
commercial establishment, which was then closed to the public, in violation of Section
459.

 “(3) The defendant personally inflicted great bodily injury on the victim or another
person in the commission of the present offense in violation of Section 12022.53,
12022.7, or 12022.8.

 “(4) The defendant personally used a dangerous or deadly weapon or firearm in the
commission of the present offense in violation of Section 12022, 12022.3, 12022.5, or
12022.53. [¶] . . . [¶]

 “(6) The defendant engaged in the tying or binding of the victim or another person in the
commission of the present offense.” (Stats. 1998, ch. 936, § 9, pp. 6874-6876.)

 Although section 667.61 has been amended since the time of Speight’s offenses
(Historical and Statutory Notes, 49 West’s Ann. Pen. Code (2013 supp.) foll. § 667.61,
p. 62), the amendments do not affect our analysis.



                                              28
735, 741-742.) It is denominated the one strike law because it imposes life imprisonment
as the punishment for certain sexual offenses committed under specified conditions, even
if the offender has no prior convictions. (People v. Estrada (1997) 57 Cal.App.4th 1270,
1274.) Section 667.61 mandates a sentence of 25 years to life in prison when a defendant
is convicted of a sexual offense such as sexual penetration in concert and the People have
pleaded and proved one of the circumstances listed in section 667.61, subdivision (d) or
at least two of the circumstances listed in section 667.61, subdivision (e). (Stats. 1998,
ch. 936, § 9, p. 6874; § 667.61, subds. (a) & (c).) Moreover, section 667.61 mandates a
sentence of 15 years to life in prison when a defendant is convicted of a sexual offense
such as sexual penetration in concert and the People have pleaded and proved only one
circumstance under section 667.61, subdivision (e). (Stats. 1998, ch. 936, § 9, p. 6874;
§ 667.61, subd. (b).) Among the circumstances identified in section 667.61, subdivision
(e) is the one described in subdivision (e)(2): “the defendant committed the present
offense during the commission of a burglary . . . .”10 (Stats. 1998, ch. 936, § 9, p. 6875;
§ 667.61(e)(2).)
       Section 667.61(e)(2) does not say that it only applies when a defendant personally
commits a sexual offense. (§ 667.61(e)(2).) By comparison, the Legislature used the
word “personally” in other subdivisions of section 667.61 to indicate that the defendant
must personally engage in the conduct described. Section 667.61, subdivisions (d)(6) and
(d)(7), for example, refer to circumstances where the defendant “personally inflicted”
injury or harm. In addition, section 667.61, subdivision (e)(3) refers to a circumstance
where the defendant “personally used a dangerous or deadly weapon or a firearm.” The




10 There was no evidence that Speight committed a burglary with the intent to commit a
sexual offense; therefore, the exception to section 667.61(e)(2) does not apply. (People
v. Hernandez, supra, 180 Cal.App.4th at p. 349 [section 667.61, subdivision (d)(4)
requires intent to commit a specified sex offense upon entry into a residence].)

                                             29
use of the word “personally” in subdivisions (d)(6), (d)(7) and (e)(3) limits the
application of these qualifying circumstances to direct perpetrators. The Legislature
knew how to articulate a circumstance limited to personal commission of an offense.
(People v. Murphy (2001) 25 Cal.4th 136, 159 [use of different language suggests a
different legislative intent]; Faulder v. Mendocino County Bd. of Supervisors (2006) 144
Cal.App.4th 1362, 1372 [“ ‘When the Legislature uses materially different language in
statutory provisions addressing the same subject or related subjects, the normal inference
is that the Legislature intended a difference in meaning’ ”].) The fact that the Legislature
did not use the word “personally” in section 667.61(e)(2) indicates that section
667.61(e)(2) applies to aiders and abettors and direct perpetrators. (People v. Calhoun
(2007) 40 Cal.4th 398, 402-405 [statute which provides enhanced penalty for those who
flee the scene of the crime “ ‘after committing a violation of’ ” the underlying crime
applies to an aider and abettor because statutory language is not limited to direct
perpetrators]; People v. Farr (1997) 54 Cal.App.4th 835, 845 (Farr).) We decline to read
section 667.61(e)(2) as requiring a defendant to personally commit an enumerated sexual
offense where the Legislature did not include such a limitation. (People v. Rodriguez
(1999) 69 Cal.App.4th 341, 350 [“ ‘ “[W]hen the Legislature has carefully employed a
term in one place and has excluded it in another, it should not be implied where
excluded.” ’ ”].)
       The statute is not ambiguous in this regard, but even if it was, legislative intent
supports the application of section 667.61(e)(2) to aiders and abettors. Section 667.61,
subdivision (e) describes circumstances that increase a victim’s vulnerability, such as the
use of a deadly weapon and tying or binding. (People v. Campbell (2000) 82
Cal.App.4th 71, 77-78 (Campbell).) Section 667.61 mandates lengthy prison sentences
where the nature or method of the sex offense placed the victim “in a position of elevated
vulnerability.” (People v. Palmore (2000) 79 Cal.App.4th 1290, 1296, italics omitted.)
Interpreting section 667.61(e)(2) to apply to aiders and abettors furthers the legislative

                                             30
purpose of deterring the commission of serious sexual offenses during residential
burglaries by punishing aiders and abettors whose conduct facilitates or encourages such
offenses. (People v. Alvarado, supra, 87 Cal.App.4th at p. 187 [purpose of section
667.61(e)(2) is to protect people in their homes and deter, by harsher punishment,
burglars from sexually preying on the people they encounter after entering residences].)
This is especially appropriate where the aider and abettor engaged in tying the victim,
thereby substantially increasing the risk of harm to the victim. (People v. Manners
(1986) 180 Cal.App.3d 826, 833 [culpability of aider and abettor whose conduct
compounds harm to victim is as great as that of perpetrator].) Given the Legislature’s
concern in section 667.61 over circumstances that increase the vulnerability of victims
and the words the Legislature chose to use in section 667.61(e)(2), we conclude that
section 667.61(e)(2) applies to aiders and abettors.
       Speight nonetheless notes that section 667.61(e)(2) applies if “the defendant
committed the present offense during the commission of a burglary . . . .” (§ 667.61,
subd. (e)(2); emphasis added.) Focusing on the word “committed,” he says he did not
commit sexual penetration in concert because he was not a direct perpetrator of that
offense. But courts have interpreted statutes requiring a defendant to “commit” an
offense or act to include aiders and abettors. (People v. Calhoun, supra, 40 Cal.4th at
pp. 402-405; Farr, supra, 54 Cal.App.4th at p. 845; People v. Manners, supra, 180
Cal.App.3d at p. 833.) And a defendant violates section 264.1 when he commits sexual
penetration as an aider and abettor. (§ 264.1, subd. (a); People v. Lopez, supra, 116
Cal.App.3d at pp. 884-885.)
       Speight argues that even if an aider and abettor can “commit” a sexual offense
within the meaning of section 667.61(e)(2), there was insufficient evidence to establish
his liability under a direct aiding and abetting theory. But as we have already explained,
substantial evidence supports the finding that Speight aided and abetted Myles in the
commission of sexual penetration in concert. We need not consider Speight’s contention

                                             31
that section 667.61(e)(2) does not apply to an aider and abettor convicted under a natural
and probable consequences doctrine because Speight was not convicted under the natural
and probable consequences doctrine on count five and we will dismiss the conviction on
count four.
       Speight relies on People v. Cole (1982) 31 Cal.3d 568, 570-571 (Cole), but that
case is distinguishable because section 12022.7, the statute examined in Cole, provided
an enhanced penalty for “[a]ny person who . . . personally inflicts great bodily injury.”
Here, the Legislature did not limit the section 667.61(e)(2) circumstance to those who
“personally” commit an enumerated sexual offense. (§ 667.61(e)(2).)
       Speight also relies on People v. Walker (1976) 18 Cal.3d 232 (Walker) and People
v. Piper (1986) 42 Cal.3d 471 (Piper). Those cases, like Cole, supra, 31 Cal.3d 568,
involved firearms-use enhancement statutes. The issue in Walker was whether section
12022.5 applied only to a defendant who personally used a firearm in the commission of
a charged felony. (Walker, supra, 18 Cal.3d at pp. 235-236.) Section 12022.5 was a
sentence enhancement statute that applied to any person who “uses a firearm” in the
commission or attempted commission of specified crimes. (Walker, supra, at p. 236,
fn. 1.) Citing People v. Hicks (1971) 4 Cal.3d 757, 765-766 (Hicks), superseded by
statute on another point as noted in People v. Coffman and Marlow, supra, 34 Cal.4th at
page 117, the Supreme Court in Walker noted that up to that time, it had construed
enhancement statutes for being armed as applying only to persons who were personally
armed, and the legislative history of section 12022.5 did not disclose any intent to apply
the statute differently. (Walker, supra, 18 Cal.3d at p. 241.) Hicks, in turn, cited People
v. Perkins (1951) 37 Cal.2d 62, 63-64 (Perkins) which held that section 1203, the statute
at issue in Perkins, required personal use of a firearm or deadly weapon and noted that
the Legislature had amended section 1203 to require personal use in response to judicial
decisions applying the statute to aiders and abettors. (Hicks, supra, 4 Cal.3d at pp. 765-
766.) In that context, the Walker court stated: “Generally, if a statute is intended to

                                             32
impose a derivative liability on some person other than the actor, there must be some
legislative direction that it is to be applied to persons who do not themselves commit the
proscribed act. Such a direction is found in section 31 which fixes responsibility on an
aider and abettor for a crime personally committed by a confederate. But the statute
which defines aiders and abettors as principals in the commission of a criminal offense
does not also purport to impose additional derivative punishment grounded on an
accomplice’s personal conduct, as those statutes which provide for such increased
punishment ‘ “do not define a crime or offense but relate to the penalty to be imposed
under certain circumstances.” ’ [Citations.] Hence the rules which make an accused
derivatively liable for a crime which he does not personally commit, do not at the same
time impose a derivatively increased punishment by reason of the manner in which a
confederate commits the crime.” (Walker, supra, 18 Cal.3d at pp. 241-242.) Following
long-established precedent and in the absence of contrary legislative intent, the court in
Walker held that section 12022.5 did not apply to persons who did not personally use a
firearm. (Walker, supra, 18 Cal.3d at p. 242.)
       Piper also involved the interpretation of a firearm use enhancement statute. The
question in Piper was whether defendant’s prior conviction for shooting at an occupied
vehicle constituted a “serious felony” within the meaning of section 1192.7, thereby
qualifying him for an enhanced sentence under section 667. (Piper, supra, 42 Cal.3d at
p. 473.) At that time, section 1192.7, subdivision (c)(8) provided that a “serious felony”
included “any felony in which the defendant uses a firearm.” (Piper, supra, at p. 476,
italics omitted.)
       The Supreme Court interpreted the phrase “uses a firearm” in section 1192.7,
subdivision (c)(8) to mean personally uses a firearm. (Piper, supra, 42 Cal.3d at p. 473.)
This holding was based on the syntax of section 1192.7, subdivision (c)(8) -- i.e., the use
of the phrase “in which the defendant uses a firearm” rather than “in which a firearm is
used” -- and prior decisions, such as Walker, supra, 18 Cal.3d 232 and Cole, supra, 31

                                             33
Cal.3d 568, which interpreted similar firearm use language to require a showing of
personal use. (Piper, supra, 42 Cal.3d at p. 476.)
       Outside the context of the firearm use statutes, however, the court in Farr, supra,
54 Cal.App.4th 835, held that a statute providing a separate sentencing scheme applied to
aiders and abettors where the statute did not condition its application to those who
personally commit the offense. (Id. at pp. 843-845.) The defendants in Farr were
convicted of eight felonies, including multiple sex crimes, committed during a home
invasion robbery. (Id. at pp. 838, 841-842.) As to the sex offenses, the trial court
imposed full term consecutive prison sentences pursuant to section 667.6, subdivision (d)
(section 667.6(d)). (Farr, supra, 54 Cal.App.4th at pp. 838, fn. 2, 842.) Relying on the
language of the statute and Walker, supra, 18 Cal.3d 232, the defendants in Farr argued
that section 667.6(d) did not apply to them because they did not personally commit all the
sexual assaults. (Farr, supra, 54 Cal.App.4th at pp. 842-843.)
       The appellate court rejected the argument. It noted that the language of section
667.6 did not explicitly require the defendant to personally commit an enumerated
offense. (Farr, supra, 54 Cal.App.4th at p. 845.) Additionally, the court found no
evidence that the Legislature intended to require a defendant to personally commit a
listed sexual offense in order to be subject to full term consecutive sentencing under
section 667.6. (Farr, supra, at pp. 845-846.) The court distinguished Walker because,
among other things, section 667.6(d) and other sentencing schemes have not been
construed to require an accused to personally commit the offense. (Farr, supra, at
pp. 843-845.)
       After Farr, supra, 54 Cal.App.4th 835 was decided in 1997, the Legislature
amended section 667.6(d), but did not limit the application of the statute to direct
perpetrators. (Historical and Statutory Notes, 49 West’s Ann. Pen. Code (2010 ed.) foll.
§ 667.6, pp. 378–380.)



                                             34
       We likewise conclude that Walker, supra, 18 Cal.3d 232, is distinguishable.
Walker is supported by the Legislature’s rejection of judicial decisions that applied
firearm use statutes to aiders and abettors and a long line of cases construing “use” to
mean “personal use.” (Walker, supra, at pp. 241-242; Perkins, supra, 37 Cal.2d at pp.
64-65.) But the legislative history and precedential decisions applicable to firearm use
statutes are not present with regard to section 667.61(e)(2). As we have stated, unlike the
other subdivisions in section 667.61, there is no indication of a legislative intent to limit
the application of section 667.61(e)(2) to direct perpetrators. Speight fails to demonstrate
a basis for reversing the section 667.61(e)(2) finding.
                                              H
       In addition, Speight argues that because he did not commit any sexual offense, the
one strike finding that he tied or bound the victim in the commission of a sexual offense
is not supported by the evidence.
       At the time of defendant’s conviction, section 667.61, subdivision (e)(6) (former
section 667.61(e)(6)) provided that a defendant qualifies for punishment under the one
strike law in the circumstance where “[t]he defendant engaged in the tying or binding of
the victim or another person in the commission of the present offense.” Speight claims
the jury’s former section 667.61(e)(6) finding must be reversed because there is no
evidence that he tied or bound the victim “in the commission of” a charged sexual
offense.11 For the reasons we have already explained, however, substantial evidence



11 Tying or binding the victim is done “in the commission of” a sexual offense when
tying or binding the victim aids the commission of the sexual offense. In People v.
Masbruch (1996) 13 Cal.4th 1001, the California Supreme Court held that the defendant
in that case utilized a gun “ ‘at least as an aid in completing an essential element of’ the
crimes of rape and sodomy” and thus the evidence was sufficient to support a finding
under section 12022.3, subdivision (a) that the defendant used a firearm in the
commission of the offenses. (Masbruch, supra, 13 Cal.4th at pp. 1011-1012.) Later, in
People v. Jones (2001) 25 Cal.4th 98, the Supreme Court said it is undisputed that the

                                              35
supports the jury finding that Speight committed the sexual offense as an aider and
abettor.
       Citing Campbell, supra, 82 Cal.App.4th 71, Speight claims his participation in
tying or binding the victim was not done “in the commission of” a sexual offense because
he did not exploit the victim’s vulnerability by digitally penetrating her. But the
argument repeats his prior contention regarding section 667.61(e)(2) that the word
“commit” means “personally commit.” We reject his current argument for the same
reasons we rejected his prior argument.
       Moreover, Campbell involved a defendant who, acting alone, committed a sexual
assault. (Campbell, supra, 82 Cal.App.4th at p. 74.) Campbell did not analyze the
application of former section 667.61(e)(6) to an aider and abettor. People v. Alvarado,
supra, 87 Cal.App.4th 178, which is cited in Speight’s reply brief, also involves a
defendant who acted alone. Contrary to Speight’s claim, neither Campbell nor People v.
Alvarado states or suggests that former section 667.61(e)(6) applies only where the
defendant personally exploited the victim’s vulnerability by sexually assaulting her after
she is tied or bound. As for Speight’s claim that his participation in the tying or binding
of the victim was not done “in the commission of” a sexual offense because he did not
intend the commission of a sexual offense, former section 667.61(e)(6) applies regardless
of Speight’s intent when he tied or bound the victim. (Campbell, supra, 82 Cal.App.4th
at p. 78 [“the statute does not refer at all to the attacker’s objective in performing
prohibited acts, and any such particular intention cannot be controlling”].) We reject
Speight’s former section 667.61(e)(6) claim.




phrase “in the commission of” has the same meaning under both section 667.61,
subdivision (e)(4), and section 12022.3, subdivision (a). (Jones, supra, 25 Cal.4th at
pp. 108, fn. 4, 109-110.)

                                              36
                                               I
       Speight says the trial court erroneously believed consecutive sentences were
mandatory under section 667.6, subdivision (d) and hence did not exercise informed
discretion in sentencing him on count four (sexual penetration). He urges us to remand
the matter so the trial court can exercise its discretion.
       Because we will dismiss the conviction on count four, we need not address the
contention as to that count. But because we will also lift the stay of execution of the
sentence on count five (sexual penetration in concert), we will remand the matter to the
trial court for resentencing on that count. On remand, the trial court should decide
whether consecutive sentencing is mandatory or discretionary under section 667.6 and
comply with the strictures in People v. Belmontes (1983) 34 Cal.3d 335.
                                               J
       Speight asserts that the sentence of 25 years to life in prison constitutes cruel
and/or unusual punishment in this context. He challenges the sentence he received on
count four under the California and federal Constitutions. Although we will dismiss the
conviction on count four, we address this claim because it applies to the 25-year-to-life
sentence imposed on count five.
       “ ‘Whether a punishment is cruel or unusual is a question of law for the appellate
court, but the underlying disputed facts must be viewed in the light most favorable to the
judgment.’ [Citations.]” (People v. Em (2009) 171 Cal.App.4th 964, 971.) Speight
bears a “ ‘considerable burden’ ” in showing that his sentence is unconstitutional. (Id. at
p. 972; Rummel v. Estelle (1980) 445 U.S. 263, 272 [63 L.Ed.2d 382, 390].)
                                               1
       The Attorney General states that Speight forfeited his claim of cruel and/or
unusual punishment by failing to raise it below. We agree that Speight’s failure to raise
his cruel and/or unusual punishment claim in the trial court forfeited any right to
appellate review of the claim. “Cruel and[/or] unusual punishment arguments, under the

                                              37
federal or California tests, require examination of the offense and the offender.” (People
v. Norman (2003) 109 Cal.App.4th 221, 229; People v. DeJesus (1995) 38 Cal.App.4th 1,
27 [challenge based on People v. Dillon (1983) 34 Cal.3d 441 (Dillon)12 is fact-
specific].) This fact-based inquiry must be raised in the trial court. (People v. DeJesus,
supra, 38 Cal.App.4th at p. 27.) If it is not, it is forfeited. (Ibid.; People v. Kelley (1997)
52 Cal.App.4th 568, 583.) However, because Speight also raises an ineffective assistance
of counsel claim, we discuss the merits of his constitutional claims.
                                               2
       We turn first to Speight’s state constitutional claim. Article I, section 17 of the
California Constitution prohibits the infliction of cruel or unusual punishment. A
sentence may violate this prohibition “ ‘if, although not cruel or unusual in its method, it
is so disproportionate to the crime for which it is inflicted that it shocks the conscience
and offends fundamental notions of human dignity.’ [Citation.]” (People v. Uecker
(2009) 172 Cal.App.4th 583, 600.)
       “Our Supreme Court has emphasized ‘the considerable burden a defendant must
overcome in challenging a penalty as cruel or unusual. The doctrine of separation of
powers is firmly entrenched in the law of California, and a court should not lightly
encroach on matters which are uniquely in the domain of the Legislature. Perhaps
foremost among these are the definition of crime and the determination of punishment.
While these intrinsically legislative functions are circumscribed by the constitutional
limits of article I, section 17 [of the California Constitution], the validity of enactments
will not be questioned “unless their unconstitutionality clearly, positively, and
unmistakably appears.” ’ [Citation.]” (People v. Kinsey (1995) 40 Cal.App.4th 1621,




12 Dillon was disapproved on another ground in People v. Chun (2009) 45 Cal.4th 1172,
1185-1186.

                                              38
1630.) “ ‘[F]indings of disproportionality have occurred with exquisite rarity in the case
law.’ [Citation.]” (People v. Em, supra, 171 Cal.App.4th at p. 972.)
       Speight’s 25-year-to-life sentence was imposed under section 667.61. That statute
reflects a legislative determination that certain sex crimes carried out under particular
circumstances warrant harsher punishment. (Campbell, supra, 82 Cal.App.4th at pp. 77-
79.) “The choice of fitting and proper penalties is not an exact science, but a legislative
skill involving an appraisal of the evils to be corrected, the weighing of practical
alternatives, consideration of relevant policy factors, and responsiveness to the public
will; in appropriate cases, some leeway for experimentation may also be permissible.
The judiciary, accordingly, should not interfere in this process unless a statute prescribes
a penalty ‘out of all proportion to the offense’ [citations], i.e., so severe in relation to the
crime as to violate the prohibition against cruel or unusual punishment.” (In re Lynch
(1972) 8 Cal.3d 410, 423–424 (Lynch).)
       We consider three areas of focus in assessing a penalty for disproportionality
under the California Constitution: (1) an examination of the nature of the offense and the
offender, with particular regard to the degree of danger both present to society; (2) a
comparison of the sentence with punishments for different offenses in the same
jurisdiction; and (3) a comparison of the sentence with punishments for the same offense
in other jurisdictions. (People v. Uecker, supra, 172 Cal.App.4th at p. 600 [Lynch, supra,
8 Cal.3d 410].)
       In examining the first area of focus -- the nature of the offense and the offender --
“ ‘we must consider not only the offense as defined by the Legislature but also “the facts
of the crime in question” (including its motive, its manner of commission, the extent of
the defendant’s involvement, and the consequences of his acts); we must also consider
the defendant’s individual culpability in light of his age, prior criminality, personal
characteristics, and state of mind.’ [Citation.]” (People v. Uecker, supra, 172
Cal.App.4th at p. 600.)

                                               39
       The California Supreme Court in Dillon, supra, 34 Cal.3d 441, after applying the
first area of focus, held that under the circumstances of that case, the life sentence the
defendant received for first degree murder under the felony-murder rule violated
California’s prohibition against cruel or unusual punishment. (Dillon, supra, 34 Cal.3d at
pp. 479-489.) The defendant was a 17-year-old high school student with no prior
criminal record at the time of the offenses. (Id. at pp. 451, 486, fn. 35.) He lived not far
from a secluded farm on which the victim and his brother illegally grew marijuana. The
defendant knew the victim and his brother guarded their property and carried firearms in
this endeavor. The defendant and a friend recruited six other classmates to steal
marijuana from the victim’s property. Some of the boys armed themselves with
shotguns, a baseball bat, and a knife. The defendant carried a .22 caliber semi-automatic
rifle. The boys split up into four pairs. (Id. at p. 451.) One of the boys accidentally
discharged his shotgun twice. (Id. at pp. 452, 482.) Believing that his friends had been
fired upon, hearing the victim approach his location where retreat and hiding were not
possible, and believing the victim was about to shoot him, the defendant fired his rifle at
the victim nine times, killing him. (Id. at pp. 482-483.) The jury and trial judge credited
the defendant’s testimony that he shot the victim out of fear for his life and panic. (Id. at
p. 482.) A psychologist testified at trial that the defendant was unusually immature for
his age. (Id. at p. 483.)
       The jury in Dillon was reluctant to convict the defendant of first degree murder but
was instructed that a verdict of first degree murder was required if the jury found that the
killing occurred during an attempted robbery. (Dillon, supra, 34 Cal.3d at p. 484.) The
trial judge sympathized with the jury’s reluctance to apply the felony-murder rule under
the facts of that case and commented that the evidence did not support a first degree
murder conviction under any theory other than the felony-murder rule, but “ ‘the law is
the law.’ ” (Ibid.) After it was determined that the defendant was ineligible for



                                              40
commitment to the California Youth Authority, the trial court was compelled to sentence
him to life in prison. (Id. at pp. 486-487.)
       Finding the defendant’s life sentence grossly disproportionate to the offense as
committed and to the defendant’s individual culpability, the California Supreme Court
modified the judgment to reduce the defendant’s conviction to second degree murder.
(Dillon, supra, 34 Cal.3d at p. 450, 488-489.) In so holding, the Court considered the
defendant’s lack of criminal record, unusual immaturity and resultant inability to
appreciate the risk he created or to extricate himself from the situation without panicking,
and the fact that his cohorts, who were aiders and abettors to the killing, were not
convicted of homicide or sentenced to state prison. (Id. at pp. 488-489.)
       Speight compares himself and the facts in this case to the defendant and the facts
in Dillon, supra, 34 Cal.3d 441, and argues the first area of focus weighs in his favor. He
points to his youth at the time of the offense and lack of a prior criminal record. He also
asserts that weapons were not involved in the charged offenses and he did not personally
commit sexual penetration but instead tried to stop Myles from committing the assault.
Speight says he is not the sort of perpetrator that the one strike law was intended to target
because he is not a “serious and dangerous sex offender.”
       It is true that Speight had no criminal record, but the seriousness of the offenses he
committed outweighs his lack of prior criminal history. (People v. Gonzales (2001) 87
Cal.App.4th 1, 17; People v. Alvarado, supra, 87 Cal.App.4th at pp. 199-201 [mandatory
one strike term of 15 years to life for defendant who was 18 years old at time of offense
and had no criminal record was not cruel or unusual].) And although Speight was only
17 years old at the time of the offenses, he was older than Myles and there is no evidence
that Speight was unusually immature for his age. Speight was not a mere passive
observer in the events leading to the commission of sexual penetration. Speight
identified the victim’s house to Myles as a house “to hit for PSP’s.” He led Myles to the
victim’s house. He agreed to “hit” the victim’s house with Myles even though he did not

                                               41
know Myles well and did not trust him. Speight took steps to determine that the 14-year-
old victim was at home alone and proceeded with the burglary after Myles expressed the
intent to “rush” into the house and grab the victim. Soon after gaining entry into the
victim’s house, Speight grabbed the victim’s arm and, according to the victim, placed his
arm around her neck, putting her in a headlock. Speight then saw Myles hit the victim
hard enough to cause the victim to come out of Speight’s arms, yet Speight thought he
would simply “go along with it and just get it done.” Speight said nothing, walked away
from the victim, and proceeded to search the house for things to take. According to the
victim, Speight threatened to hurt her sister if the victim did not cooperate. Speight saw
Myles assaulting the victim and heard Myles say he planned to rape the victim, but
Speight left the victim alone with Myles in the hallway. The victim testified that Speight
did nothing to stop Myles from harming her. Speight knew Myles intended to rape the
victim but nonetheless helped Myles restrain the victim, and either bound the victim
himself or helped Myles bind her. Although Speight told Myles to leave the victim
alone, that occurred after defendants bound the victim and after Myles digitally
penetrated her.
       Speight was an active participant in the planned burglary and his conduct
facilitated the commission of sexual penetration by Myles. (People v. Em, supra, 171
Cal.App.4th at pp. 966-967, 975-976 [two consecutive 25-year-to-life terms imposed on
defendant who was only 15 years old at time of offense was not cruel and/or unusual
where defendant actively participated in a robbery by gang members and one of the
participants shot and killed the victim]; People v. Gonzales, supra, 87 Cal.App.4th at
pp. 5-6, 16-19 [sentence of total of 50 years to life for first degree murder wherein a
principal personally used a firearm in the commission of the offense imposed against 16-
year-old defendants convicted as aider and abettors was not cruel or unusual where the
shooter openly carried a gun as defendants, who were gang members, advanced upon the
victims after a perceived act of disrespect]; People v. Ortiz (1997) 57 Cal.App.4th 480,

                                             42
486-487 [sentence of 26 years to life for 14-year-old defendant who participated in an
armed robbery and was convicted of first degree murder as an aider and abettor was not
cruel or unusual].) We do not agree with Speight’s assessment that his only offense was
burglary or robbery. The jury convicted Speight of “serious” and “violent” felonies
under the three strikes law and Speight was statutorily ineligible for probation.
(§§ 667.5, subd. (c), 667.61, subd. (h), 1170.12, 1192.7, subd. (c), 1203.065, subd. (a).)
Unlike in Dillon, there is no evidence of reluctance by the trial judge to impose a 25-
year-to-life sentence on count five, and there is no evidence of a disparity in sentencing
between defendants.
       In addition, the inherent danger of home invasion robberies and the harm caused to
victims cannot be overlooked. (People v. Alvarado, supra, 87 Cal.App.4th at p. 200 [the
double trauma of having one’s home invaded and then being sexually violated is
substantial]; People v. Estrada, supra, 57 Cal.App.4th at p. 1281; People v. Nguyen,
supra, 21 Cal.App.4th at pp. 532-533.) During the incident, the victim was placed in a
headlock, groped, threatened, punched, bound and sexually assaulted. Defendants left the
victim naked from the waist down next to her two-year-old sister, with the victim’s hands
tied behind her back and her face bloody and battered.
       As for the second area of focus -- a comparison of the sentence with punishments
for different offenses in the same jurisdiction -- Speight points out that his aggregate
sentence of 28 years to life exceeds the penalty for first degree murder, which is 25 years
to life. But the punishment for first degree murder may be greater than 25 years to life
because a person convicted of first degree murder may be subject to the death penalty or
life in prison without the possibility of parole. (§ 190, subd. (a).) Speight is eligible for
parole. In addition, Speight’s argument does not take into account the legislative purpose
of providing harsher punishment for serious sexual offenses committed under aggravated
circumstances that increase the victim’s vulnerability. (People v. Crooks (1997) 55
Cal.App.4th 797, 808.) Speight’s one strike sentence was based on his commission of

                                              43
multiple serious or violent offenses: first degree burglary and sexual penetration in
concert while binding the victim. (People v. Estrada, supra, 57 Cal.App.4th at p. 1282
[the penalty for a single offense cannot properly be compared to the one strike penalty for
committing multiple offenses]; People v. Crooks, supra, 55 Cal.App.4th at p. 807
[same].) Punishing these crimes with a 25-year-to-life sentence is not shocking or
outrageous. (People v. Alvarado, supra, 87 Cal.App.4th at p. 200; People v. Estrada,
supra, 57 Cal.App.4th at pp. 1280-1282.)
       Turning to the third area of focus -- a comparison of the sentence with
punishments for the same offense in other jurisdictions -- Speight does not make a
showing that the section 667.61 penalty he received is out of line with punishments
prescribed for the same offense in other states having identical or similar constitutional
provisions. (People v. Dougherty (1982) 138 Cal.App.3d 278, 282-283; People v.
Galambos (2002) 104 Cal.App.4th 1147, 1159 [appellate contentions must be supported
by analysis].) But even if California has taken a more aggressive approach than other
states in setting punishment under the one strike law, that fact alone would not
necessarily render Speight’s sentence unconstitutional. (People v. Uecker, supra, 172
Cal.App.4th at p. 601; People v. Alvarado, supra, 87 Cal.App.4th at pp. 200-201; accord,
Rummel v. Estelle, supra, 445 U.S. at pp. 281-282 [63 L.Ed.2d at pp. 395-396] [even if a
state’s statute is the most stringent in the nation, that severity does not render a
defendant’s sentence grossly disproportionate to his offenses].)
       Speight fails to show that, applying the three areas of focus to the circumstances of
this case, his sentence was so disproportionate that it shocks the conscience and offends
notions of human dignity.
                                               3
       Speight also contends the sentence he received violates the Eighth Amendment to
the United States Constitution. He claims, based on the same factors supporting his state
constitutional claim, that his “sentence should be declared cruel and unusual punishment

                                              44
as applied to him.” For the reasons we have explained, Speight’s cruel and unusual
punishment claim under the federal Constitution fails.
         The Eighth Amendment, which forbids cruel and unusual punishments, contains a
proportionality principle that applies to noncapital sentences. (Graham v. Florida (2010)
__ U.S. __ [176 L.Ed.2d 825, 835-836] (Graham); Ewing v. California (2003) 538 U.S.
11, 20 [155 L.Ed.2d 108, 117] (lead opn. of O’Connor, J.); cf. id. at pp. 32-33 [155
L.Ed.2d at p. 125] (dis. opn. of Stevens, J.) & id. at p. 35-36 [155 L.Ed.2d at p. 127] (dis.
opn. of Breyer, J.).) But the Eighth Amendment forbids only extreme sentences that are
grossly disproportionate to the crime. (Harmelin v. Michigan (1991) 501 U.S. 957, 1001
[115 L.Ed.2d 836, 869] (conc. opn. of Kennedy, J.).) Strict proportionality between the
crime and the sentence is not required. (Ibid.) “Outside the context of capital
punishment, successful challenges to the proportionality of particular sentences have
been exceedingly rare.” (Rummel v. Estelle, supra, 445 U.S. at p. 272 [63 L.Ed.2d at
390].)
         Proportionality analysis considers the gravity of the current offense compared with
the harshness of the penalty, in light of the state interests behind the sentencing statute.
(Ewing v. California, supra, 538 U.S. at pp. 28-30 [155 L.Ed.2d at pp. 122-123] (lead
opn. of O’Connor, J.).) Based on our examination of the entire record, we conclude the
one strike sentence imposed in this case is not grossly disproportionate to the offenses
committed. The conduct leading to the current offenses was not passive, harmless, or a
mere technical violation of the law. (Cf. Solem v. Helm (1983) 463 U.S. 277, 296 [77
L.Ed.2d 637, 653]; People v. Carmony (2005) 127 Cal.App.4th 1066, 1077.)
         Speight says that given his youth and immaturity, the penological goals set forth in
Graham, supra, ___ U.S. ___ [176 L.Ed.2d 825] militate against imposition of a life
sentence with a minimum term. But Graham is not on point. The Supreme Court held in
Graham that it is unconstitutional to impose a sentence of life in prison without the
possibility of parole against a juvenile for a nonhomicide offense. (Graham, supra, ___

                                              45
U.S. ___, ___, ___ [176 L.Ed.2d at pp. 832, 845, 850].) Here, however, Speight is
eligible for parole.
                                               K
       Speight contends his trial counsel provided ineffective assistance. He claims his
counsel failed to object to the erroneous instructions concerning “in concert,”
corroboration of his testimony, and the lesser included offenses on count four. He also
claims his counsel failed to seek relief from cruel and/or unusual punishment.
       To establish a claim of ineffective assistance of counsel, the defendant must prove
that (1) trial counsel’s representation was deficient because it fell below an objective
standard of reasonableness under prevailing professional norms, and (2) the deficiency
resulted in prejudice to the defendant. (People v. Maury, supra, 30 Cal.4th at p. 389;
Strickland v. Washington, supra, 466 U.S. at p. 687 [80 L.Ed.2d at p. 693].) We “need
not determine whether counsel’s performance was deficient before examining the
prejudice suffered by the defendant as a result of the alleged deficiencies. . . . If it is
easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice,
. . . that course should be followed.” (Strickland v. Washington, supra, 466 U.S. at p. 697
[80 L.Ed.2d at p. 699]; In re Cox (2003) 30 Cal.4th 974, 1019-1020.) We review trial
counsel’s performance with deferential scrutiny, indulging a strong presumption that
counsel’s conduct falls within the wide range of reasonable professional assistance and
recognizing the many choices that attorneys make in handling cases and the danger of
second-guessing an attorney’s decisions. (People v. Maury, supra, 30 Cal.4th at p. 389;
Strickland v. Washington, supra, 466 U.S. at p. 689 [80 L.Ed.2d at p. 694].)
       Regarding the meaning of the words “in concert,” we have concluded that the trial
court properly instructed the jury. And we have determined that the 25-year-to-life
sentence is not unconstitutionally cruel and/or unusual. Because there was no error in
connection with those matters, there was no meritorious basis for Speight’s trial counsel
to object. Speight cannot establish that his trial counsel was deficient on those issues.

                                               46
(People v. Weaver (2001) 26 Cal.4th 876, 931 [counsel is not ineffective for failing to
make a meritless objection or motion]; People v. Memro (1995) 11 Cal.4th 786, 834,
overruled on another ground in People v. Gaines (2009) 46 Cal.4th 172, 181, fn. 2;
People v. Maury, supra, 30 Cal.4th at p. 389 [defendant must establish deficiency in
counsel’s performance].)
       We need not address Speight’s contention pertaining to the lesser included
offenses on count four because we will dismiss that conviction.
       Speight’s remaining ineffective assistance claim -- that his trial counsel failed to
object to the erroneous instruction regarding corroboration of his testimony -- fails
because he has not demonstrated prejudice. (People v. Ledesma (1987) 43 Cal.3d 171,
217-218; Strickland v. Washington, supra, 466 U.S. at pp. 693-694 [80 L.Ed.2d at pp.
697-698.) “[P]rejudice must be affirmatively proved; the record must demonstrate ‘a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.’ [Citation.]” (People v. Maury,
supra, 30 Cal.4th at p. 389.) Defendant must show a reasonable probability of a more
favorable result. (People v. Ledesma, supra, 43 Cal.3d at pp. 217-218; Strickland v.
Washington, supra, 466 U.S. at pp. 693-694 [80 L.Ed.2d at pp. 697-698].) It is not
enough for defendant to show that errors had some conceivable effect on the outcome of
the case. (People v. Ledesma, supra, 43 Cal.3d at p. 217.)
       As we have explained in this opinion, the record establishes beyond a reasonable
doubt that any error in instructing the jury pursuant to CALCRIM No. 301 did not
contribute to the verdict on count five. Speight cannot show prejudice resulted from his
trial counsel’s alleged deficiency.




                                             47
                                              L
       Speight claims the abstract of judgment must be corrected to reflect that he was
convicted on count five of sexual penetration in concert, not rape in concert. The
Attorney General agrees, and so do we.
       The abstract of judgment incorrectly indicates that Speight was convicted on count
five of rape in concert. We will direct the trial court to prepare a corrected abstract of
judgment.
                                       DISPOSITION
       The judgment against Myles is affirmed. The trial court is directed to correct the
abstract of judgment to indicate that Myles was convicted on count five of sexual
penetration in concert, not rape in concert. The trial court shall forward a certified copy
of the corrected abstract of judgment to the California Department of Corrections and
Rehabilitation.
       In Speight’s case, the conviction for sexual penetration (count four) is dismissed,
and the stay of execution of sentence on the conviction for sexual penetration in concert
(count five) is lifted. The matter is remanded to the trial court with directions to
resentence Speight on count five in accordance with People v. Belmontes, supra, 34
Cal.3d 335. In all other respects the judgment is affirmed. The trial court is further
directed to amend the abstract of judgment to reflect dismissal of the conviction on count
four and the new sentence on count five, and to correct the abstract of judgment to
indicate that Speight was convicted on count five of sexual penetration in concert, not
rape in concert. The trial court shall forward a certified copy of the amended and




                                             48
corrected abstract of judgment to the California Department of Corrections and
Rehabilitation.



                                                            MAURO                , J.


We concur:


             ROBIE                  , Acting P. J.


             HOCH                   , J.




                                           49
