Filed 1/17/14 P. v. Williamson CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E055227

v.                                                                       (Super.Ct.No. SWF10000631)

DANIEL NATHAN WILLIAMSON,                                                OPINION

         Defendant and Appellant.


         APPEAL from the Superior Court of Riverside County. Alfred J. Wojcik, Judge.

Affirmed with directions.

         Mary Woodward Wells, under appointment by the Court of Appeal, for Defendant

and Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Melissa Mandel, and Laura A.

Glennon, Deputy Attorneys General, for Plaintiff and Respondent.




                                                             1
                                              I

                                     INTRODUCTION

       Defendant Daniel Nathan Williamson appeals from judgment entered following

jury convictions for aggravated sexual assault (forcible oral copulation) of a minor under

the age of 14 (count 3; Pen. Code, § 269, subd. (a)(4))1; lewd and lascivious conduct on a

child under age 14 (counts 5-9 and 11-13; § 288, subd. (a)); continuous sexual abuse of a

child (count 10; § 288.5); and battery (§ 242; count 18). The court also found true the

allegation as to counts 3 and 5 through 13, that the crimes were committed against

multiple victims (§ 667.61, subd. (e)(5)). The trial court sentenced defendant to 135

years to life in prison.

       Defendant contends the trial court erred in denying his motion to suppress his

post-arrest statement to the police, and there was insufficient evidence to support his

conviction for count 3. Defendant also argues the trial court violated his constitutional

rights by admitting evidence of his prior sexual offenses, and the multiple victim

allegations should be reversed because the trial court directed the jury to reconsider its

initial not true findings.

       We conclude that, as to count 3, there was insufficient evidence of force and

duress to support defendant’s conviction for violating section 269, subdivision (a)(4).

Therefore, the conviction on count 3 must be reduced to a conviction for the lesser

included offense of violating section 288a, subdivision (c)(1), and remanded for


       1   Unless otherwise noted, all statutory references are to the Penal Code.

                                              2
resentencing. In all other respects, we affirm the judgment, there being no other

prejudicial or cumulative error requiring reversal.

                                             II

                                          FACTS

       In 2006, defendant met Sarah W. They married in 2007, when Sarah was around

20 years old and defendant was 30. Sarah had three biological sisters, Does 1, 2, and 3,

and three stepsisters, Does 4, 5,2 and 6. Sarah’s six younger sisters lived with her father,

Ra.D., and stepmother, Ro.D. Ra.D. shared custody of Does, 1, 2, and 3 with his ex-wife,

K.D. From Christmas 2009, until Easter 2010, defendant sexually assaulted five of

Sarah’s sisters, four of whom were under the age of 14. At the time of trial in October

2011, Doe 1 was 14, Doe 2 was 10, Doe 3 was 12, Doe 4 was 15, and Doe 6 was 18.

       In September 2009, Sarah and defendant moved with their infant son into an

apartment with a pool and spa. K.D. and Does 1, 2, and 3 visited Sarah and defendant at

their apartment. Sarah noticed defendant spent a lot of time with her sisters and got too

close to them. K.D. noticed that defendant spent more time with Doe 1 than the other

girls. In March 2010, K.D. found Doe 1 and defendant lying under a blanket on the

living room floor.

       On Easter, April 4, 2010, Sarah and defendant visited K.D. and Ra.D. Defendant

sat next to Doe 4 in the TV room and touched her leg. When Doe 4 told him to stop,

defendant sat next to Doe 6. Doe 6 testified that, while she was playing a game on her

       2  Because defendant was found not guilty of charges involving Doe 5, only
limited facts regarding her are included in this opinion.

                                              3
laptop computer, defendant sat next to her, laid a blanket over her lap, and played with

her foot under the blanket. Then he rubbed her inner thigh, up to about two inches from

her “private area.” Doe 6 stopped playing her computer game and went upstairs because

defendant made her feel “[u]ncomfortable and creeped out.” Doe 4 also left the room.

After defendant and Sarah went home that day, Doe 4 and 6 told Ra.D. what defendant

had done to them. RaD. asked his other daughters whether defendant had done anything

to them. Each said he had. After calming down the girls, RaD. and K.D. called the

police and reported defendant’s conduct.

       On April 6, 2010, Katie Heibert of Riverside Child Assessment Team (RCAT)

interviewed each of the six girls. Two days later, Doe 6 made a pretext call to defendant.

During the call, defendant apologized to Doe 6 for rubbing her leg on Easter. That same

day, the police arrested defendant, advised him of his Miranda3 rights, and transported

him to the police station. The police also searched defendant’s home. About an hour

after defendant’s arrest, police detectives interviewed defendant at the police station.

Defendant acknowledged he had recently been advised of his Miranda rights and agreed

to waive them and talk to the officers. During his recorded interview, defendant admitted

sexually abusing his wife’s sisters. After the interview, defendant wrote a letter to Doe 1,

apologizing for touching her.




       3   Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).

                                              4
A. Doe 1 (Counts 1 through 10)

       According to Maria Hughes, the school psychologist who assessed Doe 1’s

cognitive abilities, Doe 1 had “mild mental retardation,” which qualified her for special

education. According to Hughes, this meant she had the least severe form of mental

retardation. Doe 1 was able to function in society and had been mainstreamed in some of

her classes. Doe 1 was identified as having a learning disability but not a developmental

disability. In some cognitive areas, Doe 1 showed mental development approaching that

of a normal child her age but in the majority of areas, she was less developed than a

normal child, particularly in the area of understanding requests made of her and the

ability to communicate her desires. Doe 1 qualified for special education services for

speech and language impairment but not for mental retardation or brain injury.

       On Easter 2010, and before then, when Doe 1 was 11 or 12 years old, defendant

touched Doe 1 in inappropriate places (“wrong spots”) numerous times, including in the

genital area several times and on her breasts three or four times.

       The following facts are from Doe 1’s recorded statement, taken on April 6, 2010,

and her trial testimony.

Counts 1 and 2

       Defendant inserted his penis in Doe 1’s vagina while she was sitting on his lap in a

Jacuzzi at defendant’s apartment. He forced her to do it even though she did not want to.

Defendant lifted Doe 1’s body up and down. Doe 1 was scared of defendant because he

was bigger than her, she was a child, and defendant was an adult.



                                             5
Counts 3 and 4 (Oral Copulation against Doe 1)

       The same day as the Jacuzzi incident, while Doe 1 and defendant were in his

apartment playing on the computer in the bedroom, defendant licked Doe 1’s genital area.

Doe 1 was scared when he did it. She did not try to push him away or object. Doe 1

testified that defendant forced her. She testified this meant she did not want to do it. She

also testified defendant did not physically force her or threaten her. Other than when she

eventually reported the incident, Doe 1 did not tell anyone about the incident because she

was afraid of defendant and afraid to tell anyone.

Count 5

       On Christmas 2009, Doe 1 and defendant played a video game upstairs, while the

rest of the family was downstairs. Defendant digitally penetrated Doe 1’s vagina with

one hand while playing the video game with his other hand. Defendant said to Doe 1,

“You feel so good.” Defendant told her not to tell anyone. Doe 1 did not tell anyone

until April 5, 2010, when she told her sisters, who told her parents. She did not tell

anyone before that because she was scared she would get in trouble.

Count 7

       Defendant penetrated Doe 1’s vagina when she was at defendant’s apartment,

sitting next to him on the couch under a blanket, while watching a movie. Doe 1 did not

tell defendant to stop because she was scared.

Count 8

       On another occasion at Doe 1’s mother’s house, defendant forced Doe 1 to sit on

his lap, on the couch. She did not want to do it. Defendant pulled her onto his lap and

                                             6
covered himself and Doe 1 with his jacket. Defendant then inserted his finger into Doe

1’s vagina.

Counts 6 and 9

       Doe 1 saw defendant’s penis twice. Both times she was at defendant’s apartment.

He made her hold it and squeeze it with her hand. Another time, defendant squeezed

white liquid out of his penis and rubbed the liquid on her lips.

B. Counts 11 through 18, involving Does 2, 3, 4, 5, and 6

       Because defendant is not challenging the sufficiency of evidence as to counts 11

through 18, the following is only a brief summary of evidence relating to the other

charges involving Does 2, 3, 4, and 5, and misdemeanor battery involving Doe 6.

Count 11 (Doe 2)

       While Doe 2 was at defendant’s apartment, sitting on the living room couch in her

bathing suit, playing a computer game, defendant suddenly touched her leg with his hand.

Doe 2 told defendant, “Don’t touch me right there.”

Count 12 (Doe 3)

       When Doe 3 was around 11 years old, defendant touched her “butt and [her]

private part.” Doe 3 was upstairs at Ra.D.’s home watching Doe 5 play video games.

Doe 3 was lying on her stomach on the floor and defendant was lying next to her. When

defendant touched her, Doe 3 told him to “stop it,” got up, and walked away.

Count 13 (Doe 4)

       On Christmas 2009, while defendant and Does 1 and 4 were in Ra.D.’s backyard,

defendant told Does 1 and 4 they were thin and his favorites. He placed his hand on Doe

                                              7
4’s back, underneath Doe 4’s shirt. Defendant moved his hand down Doe 4’s back and

swept his finger across her right buttocks, under her jeans. This made Doe 4 nervous.

She told him she was thirsty and left.

Counts 14, 15, 16 and 17 (Doe 5)

       While defendant and Doe 5 were at the park with the rest of the family on

Christmas 2009, defendant climbed up a tube slide behind Doe 5 and touched her

buttocks. Doe 5 was 13 years old.

       Several months later, on Easter, while Doe 5 and her sisters were playing Play

Station, Doe 5 saw defendant pull out his penis and show it to Doe 1. Later that day, Doe

5 put her legs up on the backyard patio table. Defendant started touching her hip. Doe 5

pushed defendant’s hand away but he put it back. Doe 5 then walked away. A little later,

when the family was in the kitchen saying grace with their eyes closed before dinner,

defendant touched the side of Doe 5’s breast. Doe 5 moved away from defendant.

Count 18 (Doe 6)

       While at Ra.D.’s home on Easter 2010, defendant sat next to Doe 6 while she was

playing a computer game on her laptop. Defendant placed a blanket over Doe 6 and

himself, rubbed the inner part of Doe 6’s thigh, within two inches of her genitalia. Doe 6

left the room because the touching made her feel uncomfortable.

                                            III

                              VALID MIRANDA WAIVER

       Defendant contends the trial court erred in denying his motion to suppress his

recorded statement made to the police. Defendant argues the police obtained his

                                            8
statement in violation of Miranda and his constitutional rights to counsel and due

process, and against self-incrimination. We conclude there was no error in denying

defendant’s motion.

A. Procedural Background

       When defendant was arrested for molesting his wife’s younger sisters in April

2010, Murrieta Police Detective Whittington read defendant his Miranda rights.

Whittington told defendant that Detective Dorcas, who was nearby on the telephone, was

in charge of investigating the criminal allegations against defendant and would be

contacting defendant to ask him questions. Whittington thereafter told Dorcas he had

advised defendant of his rights, defendant understood and waived his rights, and

defendant was willing to talk.

       Police Officers Stotts and Swearingen transported defendant to the police station.

Meanwhile Whittington and Dorcas went to defendant’s house. Dorcas spoke to

defendant’s wife and seized property. Defendant was not questioned until Dorcas and

Whittington interviewed him at the police station about an hour and a half after

defendant’s arrest. During the first 10 minutes of the interrogation, Dorcas, Whittington,

and defendant talked about defendant’s employment as a security guard, his military

career, and his arm injury. Before questioning defendant about the sexual abuse crimes,

Dorcas reminded defendant that Whittington had previously read him his Miranda rights.

Defendant said he remembered them. Thereafter the following recorded discourse took

place between defendant, Dorcas and Whittington:



                                            9
“[Dorcas]: So keeping your rights in mind, do you want to talk to us about what’s going

on?

“[Defendant]: Umm . . . is there a chance I could talk with legal representation? Because

I don’t know. I don’t know how this will play out.

“[Dorcas]: Yeah, if you want to. Is that what you’re asking for?

“[Defendant]: Umm, what is, what is that option? Is, when, when it comes to . . .

“[Dorcas]: Remember your rights? Your right to an attorney before, during and after

questioning.

“[Defendant]: Yes.

“[Unidentified speaker]: So it’s up to you.

“[Whittington]: Basically, we have a certain set of statements and the reason why we

want to talk to you is get your, your side of the story. But if, you know, and it’s

completely up to you but, if you decide to talk to an attorney first, we’re not gonna get

your side of the story and we just kinda go with what we have. ‘Cuz if you decide you

want an attorney we’re just, you just get transported and just gets played out from there

through court.

“[Dorcas]: So it’s really up to you. Like he said, we have their side. . .

“[Defendant]: But if I, I say anything and that could [be] used against me in a court of

law.

“[Dorcas]: Right.

“[Defendant]: So it won’t help me, it’ll actually go against me.

“[Dorcas]: Well, depends what you have to say.

                                              10
“[Whittington]: Yeah, a lot of it depends on how truthful you want to be.

“[Dorcas]: I mean, we know . . . we gotta get your side or we try to get your side,

otherwise we’ll just stay with what we know and we’ll go from there. It’s your chance to

clear the air and tell us your side of the story. But it’s up to you.

“[Defendant]: I want to be honest.

“[Dorcas]: Well, it’s good to be honest.

“[Defendant]: I just, I don’t . . . well, I guess I’ll just tell you then.

“[Dorcas]: Okay, so you’re willing to talk to us?

“[Defendant]: I would, I would assume that’s probably the best, best way to go.

“Dorcas]: Okay. Alright, well why do you think you’re here today?

“[Defendant]: Because I have, umm, I, I fondled one of my . . . I guess it’d be sister-in-

law, younger sister-in-law.”

       During the remainder of defendant’s recorded interview, which lasted over an

hour, he admitted to inappropriately touching all six of his victims. He denied, however,

committing lewd conduct against Doe 5. Defendant also denied penetrating Doe 1’s

vagina with his penis and orally copulating her in his apartment. Defendant, however,

admitted oral copulating Doe 1 in the pool. At the end of defendant’s interview,

defendant wrote an apology letter to Doe 1.

       On May 3, 2011, defendant filed a motion to suppress his recorded statement on

the grounds the interview violated his rights to remain silent and to an attorney.

Defendant argued Dorcas and Whittington improperly continued to question him after he

invoked his right to counsel. After hearing Whittington’s testimony and reviewing

                                                11
defendant’s recorded statement and transcription, the trial court denied defendant’s

motion to suppress on the ground defendant was properly advised of his Miranda rights

and waived them. The court also found that defendant did not make an unambiguous or

unequivocal request for counsel and, when defendant waived his rights to remain silent

and to an attorney, the police did not place defendant under duress or coerce him to waive

his rights.

B. Applicable Law and Analysis

       The Supreme Court held in Miranda, supra, 384 U.S. 436, that certain warnings

must be given before a suspect’s statement made during custodial interrogation can be

admitted in evidence in order to protect the privilege against self-incrimination. The

Supreme Court in Edwards v. Arizona (1981) 451 U.S. 477, 484-485, further held: “[A]n

accused, . . . having expressed his desire to deal with the police only through counsel, is

not subject to further interrogation by the authorities until counsel has been made

available to him, unless the accused himself initiates further communication, exchanges,

or conversations with the police.” “This ‘second layer of prophylaxis for the Miranda

right to counsel,’ [citation], is ‘designed to prevent police from badgering a defendant

into waiving his previously asserted Miranda rights,’ [citation ].” (Davis v. United States

(1994) 512 U.S. 452, 458 (Davis), quoting McNeil v. Wisconsin (1991) 501 U.S. 171, 176

and Michigan v. Harvey (1990) 494 U.S. 344, 350.)

       To make an effective invocation of the right to counsel, “the suspect must

unambiguously request counsel.” (Davis, supra, 512 U.S. at p. 459.) “[I]f a suspect

makes a reference to an attorney that is ambiguous or equivocal in that a reasonable

                                             12
officer in light of the circumstances would have understood only that the suspect might be

invoking the right to counsel, our precedents do not require the cessation of questioning.

[Citation.]” (Id. at p. 459.) “[W]hen a suspect makes an ambiguous or equivocal

statement it will often be good police practice for the interviewing officers to clarify

whether or not he actually wants an attorney.” (Id. at p. 461; see also People v. Williams

(2010) 49 Cal.4th 405, 428 (Williams).)

       “It is the function of the trial judge to determine whether the defendant did in fact

knowingly and voluntarily waive his right to remain silent and his right to have the

assistance of counsel. This determination is to be made based on the totality of the

circumstances surrounding the interrogation. [Citations.] The assertion of privilege or its

waiver constitutes a question of fact which can only be decided after taking into account

the special circumstances of each case. [Citation.]” (People v. Bestelmeyer (1985) 166

Cal.App.3d 520, 526 (Bestelmeyer).)

       Here, defendant does not dispute that, at the time of his arrest, Whittington

properly advised him of his Miranda rights and defendant waived them. Defendant

argues, however, that later at the police station, at the outset of his recorded interrogation,

he invoked his right to an attorney and therefore all subsequent questioning by the police

violated his rights to counsel and to remain silent. We disagree. Defendant did not

unequivocally request an attorney. He asked Dorcas, “is there a chance I could talk with

legal representation? Because I don’t know. I don’t know how this will play out.”

       Pondering whether or not to request an attorney and requesting clarification

regarding the right to an attorney is not an invocation of the right. (Bestelmeyer, supra,

                                              13
166 Cal.App.3d at pp. 526-527.) In response to defendant’s inquiry, Dorcas told

defendant he could speak to an attorney, and then asked for clarification: “Is that what

you’re asking for?” Dorcas reminded defendant that he had a “right to an attorney

before, during and after questioning.” Defendant confirmed that he remembered he had

this right and acknowledged that he was aware that if he said anything, it could be used

against him in court and would not help him. Defendant ultimately decided that he

wanted to be honest and tell the police his side of the story. Defendant then proceeded to

answer questions about the alleged crimes.

       Under these circumstances, Dorcas appropriately clarified defendant’s ambiguous

response in which defendant inquired whether it might be possible to talk to an attorney.

We conclude “. . . it does not appear that the officers were ‘badgering’ defendant into

waiving his rights; his response reasonably warranted clarification.” (Williams, supra, 49

Cal.4th at p. 429.) Although Dorcas clearly reiterated that defendant had a right to an

attorney and could speak to an attorney, defendant equivocated. When Dorcas asked

defendant if he wanted an attorney, defendant did not say yes. He ultimately said he had

decided it would be best to be honest and tell his side of the story. The transcript of

Dorcas, Whittington, and defendant’s discussion of defendant’s right to an attorney

shows that defendant considered requesting an attorney but ultimately, voluntarily

decided to proceed with giving a recorded statement without an attorney.

       We conclude there was substantial evidence to support the trial court’s findings

that defendant knowingly waived his right to counsel and voluntarily made the



                                             14
subsequent statements to the investigation officers. (Bestelmeyer, supra, 166 Cal.App.3d

at p. 528.)

                                             IV

                             SUFFICIENCY OF EVIDENCE

       Defendant contends there was insufficient evidence to support his conviction on

count 3 for aggravated sexual assault (forcible oral copulation; § 269, subd. (a)(4)).

A. Applicable Law

       We are limited in our review of a claim of insufficiency of the evidence. “‘In

assessing the sufficiency of the evidence, we review the entire record in the light most

favorable to the judgment to determine whether it discloses 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.] Reversal on this ground is unwarranted

unless it appears “that upon no hypothesis whatever is there sufficient substantial

evidence to support [the conviction].” [Citations.]’ [Citations.]” [¶] “Given this court’s

limited role on appeal, defendant bears an enormous burden in claiming there is

insufficient evidence to sustain his molestation convictions. If the verdict is supported by

substantial evidence, we are bound to give due deference to the trier of fact and not retry

the case ourselves. [Citation.]” (People v. Veale (2008) 160 Cal.App.4th 40, 45-46

[Fourth Dist., Div. Two] (Veale).) Applying this standard of review, we conclude there

was insufficient evidence to support defendant’s count 3 conviction.

       The elements of aggravated sexual assault of a child, as alleged in count 3, are:

(1) the defendant committed oral copulation in violation of section 288a, subdivision

                                             15
(c)(2) or (3), or subdivision (d); (2) the victim was under 14 years of age; and (3) the

alleged victim was seven or more years younger than the perpetrator. (§ 269, subd.

(a)(4).)

       The trial court instructed the jury on the elements of forcible oral copulation

(§ 288a) in relevant part as follows: “In order to prove this crime, each of the following

elements must be proved: [¶] 1. A person participated in an act of oral copulation with

an alleged victim; [and] [¶] 2. The act was accomplished against the alleged victim’s

will by means of force, violence, duress, menace or fear of immediate and unlawful

bodily injury on the alleged victim or any other person.” (CALJIC No. 10.10.)

B. Evidence of Force or Violence

       Defendant argues there was insufficient evidence he committed oral copulation

against Doe 1 through the use of “force, violence, duress, menace or fear.” (§ 288a, subd.

(c)(2)(B).) We agree.

       The trial court instructed the jury that “[t]he ‘force’ required as an element under

Counts 1 and 3 means physical force substantially different from, or substantially in

excess of, that required for the commission of the act of sexual intercourse and/or the act

of oral copulation.” Such physical force must be “substantially different from or

substantially greater than that necessary to accomplish the lewd act.” (People v.

Griffin (2004) 33 Cal.4th 1015, 1026; People v. Guido (2005) 125 Cal.App.4th 566, 575.)

“[O]ral copulation by force within the meaning of section 288a, subdivision (c)(2) is

proven when a jury finds beyond a reasonable doubt that defendant accomplished an act



                                             16
of oral copulation by the use of force sufficient to overcome the victim’s will.” (Guido,

at p. 576.)

       In the instant case, there was insufficient evidence of force or violence. Doe 1

testified at trial that, while Doe 1 and defendant were in his apartment playing on the

computer in the bedroom, defendant orally copulated Doe 1. Doe 1 was scared when he

did it. When asked during the trial if defendant did anything to get her to allow him to

commit oral copulation against her, Doe 1 testified: “He forced me.” Doe 1 said this

meant, “I didn’t want to do it,” “He made me do it.” When asked what Doe 1 meant

when she said he made her do it, Doe 1 replied, “Made me do something that I didn’t

want to do because it wasn’t the right thing to do.” Doe 1 was asked if defendant did

anything else physically to touch or hold her while he committed oral copulation against

her. Doe 1 replied, “I don’t know.” When later asked again if defendant physically did

anything to her to make her let him orally copulate her, Doe 1 said, “don’t think so.” Doe

1 also testified she did not tell defendant not to orally copulate her, push him away, or try

to prevent him from doing what he was doing.

       During cross-examination, Doe 1 acknowledged that when she used the word,

“force,” she was not referring to physical force. Rather, she meant defendant did

something she did not want him to do. She could have said “no” to defendant when he

committed oral copulation against her but she chose not to say anything or do anything.

She did not try to leave. Doe 1 further acknowledged that defendant did not threaten her.

He did not tell her he was going to hurt her and did not use any force or violence against

her.

                                             17
       Even though Doe 1 initially testified that defendant forced her to submit to oral

copulation, during cross-examination her testimony clarified that, what she meant was

that defendant did something to her that she did not want him to do but passively

complied with his unwanted acts. Doe 1’s testimony established that defendant did not

use any physical force or violence or verbal threats when orally copulating Doe 1.

C. Evidence of Duress

       The prosecution alternatively argued that defendant committed oral copulation

against Doe 1 through the use of duress. “‘“Duress” has been defined as “a direct or

implied threat of force, violence, danger, hardship or retribution sufficient to coerce a

reasonable person of ordinary susceptibilities to (1) perform an act which otherwise

would not have been performed or, (2) acquiesce in an act to which one otherwise would

not have submitted.” . . . [D]uress involves psychological coercion. Duress can arise

from various circumstances, including the relationship between the defendant and the

victim and their relative ages and sizes. . . . “Where the defendant is a family member

and the victim is young, . . . the position of dominance and authority of the defendant and

his continuous exploitation of the victim” [are] relevant to the existence of duress.’

[Citation.]” (People v. Espinoza (2002) 95 Cal.App.4th 1287, 1319-1320 (Espinoza),

quoting People v. Schulz (1992) 2 Cal.App.4th 999, 1005.) “‘Other relevant factors

include threats to harm the victim, physically controlling the victim when the victim

attempts to resist, and warnings to the victim that revealing the molestation would result

in jeopardizing the family.’ [Citations.]” (Veale, supra, 160 Cal.App.4th at p. 46,



                                             18
quoting People v. Cochran (2002) 103 Cal.App.4th 8, 14; see also People v. Senior

(1992) 3 Cal.App.4th 765, 775 and People v. Schulz, supra, 2 Cal.App.4th at p. 1005.)

       The People rely on this court’s decision in Veale, supra, 160 Cal.App.4th 40, for

the proposition there was sufficient evidence of force and duress to support the

defendant’s conviction. In Veale, the defendant committed numerous lewd acts upon his

seven-year-old stepdaughter. The victim said she was afraid of the defendant but could

not say why. She also feared that if she reported the defendant’s conduct, the defendant

would kill her or her mother, although the defendant never told her he would do so. A

couple of times the victim objected to the defendant molesting her. The defendant

relented and did not make the same requests again. The victim testified at trial that the

defendant did not threaten her or use physical force. The defendant in Veale argued on

appeal that there was no evidence he used force or duress.

       This court concluded in Veale that, based on evidence of these facts, there was

sufficient evidence of duress. (Veale, supra, 160 Cal.App.4th at p. 47.) We explained in

Veale, that “A reasonable inference could be made that defendant made an implied threat

sufficient to support a finding of duress, based on evidence that Brianna feared defendant

and was afraid that if she told anyone about the molestation, defendant would harm or kill

Brianna, her mother or someone else. Additional factors supporting a finding of duress

include Brianna’s young age when she was molested; the disparity between Brianna and

defendant’s age and size; and defendant’s position of authority in the family. The totality

of this evidence was sufficient to support a finding that defendant molested Brianna by

means of duress, in violation of section 288, subdivision (b).” (Veale, at p. 47.)

                                             19
         The instant case is distinguishable from Veale. Here there was no evidence

supporting a finding defendant committed forcible oral copulation by means of a direct or

implied threat. Although there was evidence that perhaps on another occasion Doe 1 told

defendant not to touch her in the future, there is no evidence that Doe 1 objected to or

resisted defendant’s act of molesting her when he committed the instant offense. There is

also no evidence Doe 1 feared that if she reported the molestation, defendant would kill

her, her mother, or another family member. In addition, Doe 1 was four years older than

the seven-year-old victim in Veale, although in the cognitive areas of speech and

language, Doe 1’s abilities may have been at about the same age level as those of the

victim in Veale.

         The evidence further demonstrates that, although Doe 1 had a learning disability

relating to speech and language, her disability was not severe. Doe 1 was capable of

comprehending that what defendant was doing to her was wrong. In addition, unlike in

Veale, the relationship between Doe 1 and defendant was not of a parental nature.

Defendant was Doe 1’s older brother-in-law. His relationship with Doe 1 was similar to

that of a visiting uncle and niece. Defendant did not live with Doe 1’s family. There is

no evidence that, as a visiting relative, he held a position of parental authority over

Doe 1.

         The instant case is more analogous to Espinoza, supra, 95 Cal.App.4th 1287,

relied on by defendant for the proposition that there was insufficient evidence of duress

because there was no evidence Doe 1’s participation was impelled by defendant making

direct or implied threats. (Id. at p. 1321.) In Espinoza, the defendant was convicted of

                                              20
forcible lewd conduct (§ 288, subd. (b)). The defendant began molesting his biological

daughter shortly after she moved in with him. The victim was 12 years old and in special

education classes. She was described as not as “bright” as her sisters and had difficulty

concentrating. The Espinoza court reversed the trial court conviction, finding there was

insufficient evidence of duress because of the lack of any direct or implied threat.

(Espinoza, at pp. 1321-1322.)

       Although the defendant in Espinoza was convicted of committing forcible lewd

conduct, whereas the instant case concerns forcible oral copulation, Espinoza is

instructive because both offenses require the same finding of force or duress. Here, as in

Espinoza, Doe 1 was molested by a relative who was much larger in size and older than

her. In addition, Doe 1 had limited mental ability, as did the victim in Espinoza, and both

victims said they were scared and did not resist.

       The Espinoza court explained there was insufficient evidence of duress: “The

only way that we could say that defendant’s lewd act on L. and attempt at intercourse

with L. were accomplished by duress is if the mere fact that he was L.’s father and larger

than her combined with her fear and limited intellectual level were sufficient to establish

that the acts were accomplished by duress. What is missing here is the ‘“direct or

implied threat of force, violence, danger, hardship or retribution sufficient to coerce a

reasonable person of ordinary susceptibilities to (1) perform an act which otherwise

would not have been performed or, (2) acquiesce in an act to which one otherwise would

not have submitted.”’ [Citation.] Duress cannot be established unless there is evidence

that ‘the victim[’s] participation was impelled, at least partly, by an implied threat . . . .’

                                               21
[Citation.] No evidence was adduced that defendant’s lewd act and attempt at intercourse

were accompanied by any ‘direct or implied threat’ of any kind. While it was clear that

L. was afraid of defendant, no evidence was introduced to show that this fear was based

on anything defendant had done other than to continue to molest her. It would be circular

reasoning to find that her fear of molestation established that the molestation was

accomplished by duress based on an implied threat of molestation.” (Espinoza, supra, 95

Cal.App.4th at p. 1321.)

       The Espinoza court noted that, “[T]he Legislature has recognized that all sex

crimes with children are inherently coercive.” (Espinoza, supra, 95 Cal.App.4th at p.

1321.) As with section 288, subdivision (b), the Legislature enacted subdivisions (c) and

(d) of section 288a, in recognition that “defendants who compound their commission of

such acts by the use of violence or threats of violence should be singled out for more

particularized deterrence.’ [Citation.]” (Espinoza, supra, 95 Cal.App.4th at p. 1321,

quoting People v. Hecker (1990) 219 Cal.App.3d 1238, 1250-1251.)

       Here, as in Espinoza, there was no evidence in the record that defendant used any

direct threats when committing oral copulation against Doe 1. The People argue the

following evidence, however, was sufficient to support a finding that defendant used

implied threats: Doe 1 suffered from mild mental retardation, making her more

susceptible to coercion through fear; defendant’s relationship with Doe 1 was like that of

an uncle, since defendant was 20 years older than Doe 1; Doe 1 was 11 years old;

Defendant was 6’6” and over 200 pounds; defendant sexually abused Doe 1 on numerous

occasions; on one occasion, defendant told Doe 1 not to tell anyone what he had just

                                            22
done; and Doe 1 testified that she was scared when defendant orally copulated her.

Defendant admitted knowing that when he sexually abused Doe 1, she did not want

defendant to touch her. We conclude there is no evidence establishing duress by implied

threat. There were no threats, direct or implied, that Doe 1 would suffer adverse

consequences if she did not acquiesce to defendant’s acts of sexually abusing Doe 1.

       When denying defendant’s motion for acquittal under section 1118.1, the trial

court stated it found there was sufficient evidence of force and duress to support a

conviction on count 3, based on evidence Doe 1’s mental disability affected her ability to

learn. Specifically, it prevented her from perceiving fully what was happening when

defendant molested her. She appeared to be slow mentally and did not have the degree of

understanding one would expect of someone her age. The court therefore concluded Doe

1 was unable to consent knowingly and voluntarily to defendant’s acts.

       But evidence of Doe 1’s mental disability, as described by the school psychologist,

was insufficient to establish duress. There must also be evidence of a direct or implied

threat, and there was no such evidence. Although the evidence established that Doe 1

was mentally slow for someone her age, the evidence also demonstrated she understood

that what defendant did was wrong and did not want him to do it. She nevertheless was

passive. Defendant did not resort to threats or physical force when committing count 3 or

the other offenses, other than using a limited amount of force required to commit the

sexual crimes in question.

       The People argue there was evidence of duress based on defendant molesting Doe

1 on numerous occasions and using force during several of the incidents, including an

                                            23
incident occurring before the oral copulation incident, on the same day, when defendant

and Doe 1 were in the Jacuzzi (counts 1 and 2). During this incident, defendant allegedly

inserted his penis in Doe 1’s vagina while she was sitting on his lap in a Jacuzzi at

defendant’s apartment. Defendant lifted Doe 1’s body up and down. The jury did not

find defendant guilty of this incident (counts 1 and 2), and the force used to commit the

offense was inherent in committing the sexual offense, rather than to overcome resistance

by Doe 1.

       The prosecution also argued there was evidence defendant used force when he

made Doe 1 hold his penis and squeeze it with her hand (counts 6 and 9; lewd and

lascivious conduct on a child under age 14). Again, this force was inherent in

committing the sexual offense, rather than to overcome resistance by Doe 1. Because

Doe 1 did not resist defendant’s sexual acts, the force used by defendant, if any, was

limited to that required to commit the sexual acts against Doe 1. As in Espinoza, the only

way that we could say that defendant’s act of orally copulating Doe 1 was accomplished

by duress is if the mere fact that defendant was a close relative and larger and older than

her, combined with her fear and limited intellectual level “were sufficient to establish that

the acts were accomplished by duress. What is missing here is the ‘“direct or implied

threat of force, violence, danger, hardship or retribution. (Espinoza, supra, 95

Cal.App.4th at p. 1321.)

       Here, no evidence was adduced that defendant’s oral copulation against Doe 1 was

accompanied by any direct or implied threat of any kind. Although Doe 1 said she was

scared when defendant sexually abused her, “no evidence was introduced to show that

                                             24
this fear was based on anything defendant had done other than to continue to molest her.

It would be circular reasoning to find that her fear of molestation established that the

molestation was accomplished by duress based on an implied threat of molestation.”

(Espinoza, supra, 95 Cal.App.4th at p. 1321.)

       Because there was insufficient evidence that defendant committed oral copulation

against Doe 1 by means of force, violence, duress, menace or fear of immediate, unlawful

bodily injury, defendant’s section 269, subdivision (a)(4), conviction for forcible oral

copulation must be reduced to reflect a conviction of the lesser included offense of

nonforcible oral copulation under section 288a, subdivision (c)(1). (Espinoza, supra, 95

Cal.App.4th at p. 1321; People v. Kelly (1992) 1 Cal.4th 495, 528.)

                                             V

                        PRIOR SEXUAL OFFENSE EVIDENCE

       Defendant contends the trial court committed prejudicial error by allowing

evidence of his prior uncharged sexual acts. He argues the prior acts did not qualify as

sexual offenses under Evidence Code section 1108 and therefore the evidence was

inadmissible character evidence under Evidence Code section 1101, subdivision (a). We

disagree.

A. Procedural Background

       The People filed a motion in limine to admit under Evidence Code section 1108

defendant’s recorded statement to the police admitting that he was involved in the

following four unreported prior sexual incidents: (1) In 1997, when defendant was 22

years old, he touched two young girls while he was on a missionary trip; (2) he had

                                             25
sexual relations with his sister when he was 15 years old; (3) he had sexual relations with

his cousin when he was 15 years old; and (4) he had sexual relations with his adult sister-

in-law, Christina. The People argued that evidence of these prior offenses demonstrated

that defendant had a substantial history of committing sexual assaults.

       Defendant filed a motion in limine requesting the court to exclude this evidence.

Defendant asserted that Christina would testify that he sexually assaulted her in Las

Vegas when she was 21 years old. The incident was never reported to law enforcement

and was not revealed until the prosecution of defendant in the instant case. During

defendant’s recorded statement to the police, he admitted to a consensual sexual

relationship with Christina prior to his marriage to Sarah. As to the other three incidents,

defendant argued that his admissions made in his recorded statement to the police did not

provide a sufficient basis for allowing evidence of the acts. There was no independent

evidence of the incidents and the “corpus delicti” of the offenses could not be proved by a

preponderance of the evidence.

       During the hearing on the motions in limine, defense counsel objected to the

evidence of the prior sexual acts on the ground there was insufficient evidence

establishing that the four incidents qualified as sex offenses under Evidence Code section

1108. The trial court concluded the evidence was admissible because the evidence

constituted admissions of the prior criminal acts. Defense counsel inquired as to what

sexual offenses were actually committed when defendant committed the four prior

offenses. The court said the acts might constitute lewd and lascivious acts but deferred

discussing the matter further until later, when the jury instructions were discussed.

                                             26
       At trial, Christina did not testify. Defendant’s recorded statement was admitted

under Evidence Code section 1108 and played for the jury. Defendant admitted in his

recorded statement that he “fooled around” with Christina but claimed it was mutually

consensual. When asked if defendant had committed inappropriate touchings of any girls

under 18, other than Does 1 through 6, defendant admitted “mess[ing] around” with his

sister and his cousin when he was 15 years old and had been taking sex education in high

school. He and his sister, and later his cousin, were receptive to “fooling around with one

another.” The next time “that something like this occurred” was when he was 22 years

old, on a church mission in the West Indies. He was staying at a home of missionaries

who had two young girls who ran around “smacking everybody on the butt constantly.”

When the oldest girl smacked defendant, he put her over his knee, pulled down her pants,

and “smack[ed] her butt a whole bunch of times. She freaked out.”

       At the end of the trial, during a discussion of the proposed jury instructions, the

trial court noted that there was no evidence establishing the age of the four females

involved in the prior touching incidents. The court therefore believed the jury could not

consider any of defendant’s admissions as prior uncharged acts of lewd and lascivious

conduct with a child under the age of 14. The court therefore suggested giving an

instruction admonishing the jury not to consider the evidence of defendant’s prior

uncharged misconduct.

       Defense counsel requested the court to give the following special instruction:

“The Prosecution introduced evidence that the defendant engaged in sexual conduct other

than that charged in this case. The Prosecution has the burden of proving that the

                                             27
defendant engaged in this other conduct by a preponderance of the evidence. The

Prosecution has not met this burden. Therefore, you must disregard any evidence that the

defendant engaged in sexual conduct other than that charged in this case. You must treat

it as though you had never heard of it and not consider this evidence for any purpose.”

       The trial court rejected defendant’s proposed instruction, and gave the following

instruction: “You must disregard any evidence that the defendant engaged in sexual

conduct other than that charged in this case. You must treat it as though you had never

heard of it and not consider this evidence for any purpose.”

B. Admissibility of Prior Acts Evidence

       As a general rule, evidence of a defendant’s conduct is not admissible to show

disposition or propensity, but is admissible to prove identity, plan, intent, knowledge, or

opportunity. (§ 1101.) Section 1108 provides a statutory exception, allowing propensity

evidence to be admitted in sex offense cases to show a defendant is more likely to have

committed the charged offense. (People v. Falsetta (1999) 21 Cal.4th 903, 911.) Section

1108, subdivision (d)(1), defines a sex offense as a crime under state or federal law that

involves certain enumerated sexual acts and crimes. If the uncharged conduct qualifies as

a sex offense, it is admissible subject to section 352. (People v. Crabtree (2009) 169

Cal.App.4th 1293, 1315.) The trial court weighs the probative value against the potential

risk of prejudice, confusion, and undue consumption of time. (Ibid.) On appeal, we

review the trial court’s ruling for an abuse of discretion. (Ibid.)

       In the instant case, after the parties submitted on the evidence, the trial court

correctly concluded that there was insufficient evidence establishing that defendant’s

                                              28
prior uncharged acts of touching four females qualified as sexual offenses under section

1108, since there was no evidence of the age of the females. The sexual offense of

committing a lewd act in violation of section 288, requires a finding that the victim was

under the age of 14 years. In addition, there was insufficient evidence the prior acts

qualified as sexual offenses, since defendant did not specify in his recorded statement the

nature of his acts as to his sister and cousin. Also, defendant claimed in his recorded

statement that his sexual activity with Christina was consensual, and Christina did not

testify to the contrary. The prior uncharged acts evidence therefore was inadmissible

under Evidence Code sections 1101 and 1108.

C. Harmless Error

       Defendant argues that allowing the inadmissible prior acts evidence constituted

prejudicial error because the evidence would have confused the issues and unfairly

distracted the jury from its consideration of the charged offenses. Defendant asserts that

the evidence was damaging to defendant because this was a close case, and the

propensity evidence showed that he was unfaithful to his wife and had a long history of

sexually “fooling around,” including with his own family members.

       We conclude it is not reasonably probable that, had the evidence of defendant’s

prior uncharged sexual acts been excluded, there would have been a more favorable

result. (People v. Watson (1956) 46 Cal.2d 818, 836.) The trial court appropriately

instructed the jury that the prior uncharged sexual acts evidence should be disregarded.

Under Evidence Code section 403, subdivision (c), “If the court admits the proffered

evidence under this section, the court: [¶] (1) May, and on request shall, instruct the jury

                                             29
to determine whether the preliminary fact exists and to disregard the proffered evidence

unless the jury finds that the preliminary fact does exist. [¶] (2) Shall instruct the jury to

disregard the proffered evidence if the court subsequently determines that a jury could

not reasonably find that the preliminary fact exists.”

        In accordance with Evidence Code section 403, subdivision (c)(2), the trial court

instructed the jury not to consider any evidence that “defendant engaged in sexual

conduct other than that charged in this case. You must treat it as though you had never

heard of it and not consider this evidence for any purpose.” It is presumed the jury

properly followed the court’s instructions. (People v. Sanchez (2001) 26 Cal.4th 834,

852.)

        In addition, there was overwhelming evidence supporting defendant’s convictions,

including the victims’ testimony, the victims’ RCAT statements, and defendant’s

recorded statement, admitting he had inappropriately touched Does 1, 2, 3, 4, and 6, and

committed lewd acts, oral copulation, and digital penetration. Also, the prior uncharged

acts were, in most instances, less egregious than the charged acts and, as a whole, were

not likely to have been inflammatory or changed the jury’s view of defendant, in light of

the evidence of the seriousness of the crimes defendant committed.

                                              VI

                     CONTINUATION OF JURY DELIBERATIONS

        Defendant contends the trial court improperly directed the jury to reconsider its

findings that the multiple victim enhancement allegations attached to counts 3 and 5

through 13, were untrue. We disagree.

                                              30
A. Procedural Background

       The jury found defendant guilty of committing lewd and lascivious acts against

Does 1, 2, 3, and 4, and also forcible oral copulation against Doe 1. After the court clerk

announced the jury verdicts and related allegation findings, the prosecutor asked the court

to poll the jury on its allegation findings rejecting the multiple victim allegations. The

prosecutor noted that the guilty verdicts involved multiple victims, and this was

inconsistent with the jury’s related allegation findings that there were not multiple

victims (§ 667.61, subd. (e)(5)).

       In response, the trial court reread to the jury the instruction for the multiple victim

allegation. The trial court further told the jury: “What the People . . . is suggesting [is]

that the verdicts seem to be inconsistent. In other words, you made a finding that there

was not more than one victim. And [the prosecutor] is taking the position that’s

inconsistent because that same exact crime – the 288, subparagraph (a) – we had guilty

verdicts on four Jane Does. So logic would seem to dictate there are more than one

victim. [¶] Now maybe there was something in the proof that you did not accept

regarding that.”

       The jury foreman told the court that the jury misunderstood the instruction: “The

way we understood it is that it was more than one person at the time of the incident

against Jane Doe. So I think all of us were under the impression that while Jane Doe was

being victimized, someone else was being victimized at the same time . . . .” The trial

court asked the jury foreman whether he would suggest that the jurors reconsider the

multiple victim findings. The jury foreman indicated that, because the jury misconstrued

                                              31
the instruction on the multiple victim allegations, the jury needed to reconsider its

decision.

         After noting that the trial court had not yet recorded the verdict, the court asked

several other jurors if they were confused about the multiple victim enhancement.

Several jurors stated that, as stated by the foreman, they misconstrued the enhancement

as requiring a finding of multiple victims during the commission of the particular charged

crime.

         After clarifying that the enhancement merely required a finding that defendant had

committed crimes against multiple victims, the trial court polled the jury as to whether

their findings on the multiple victim allegations were true and correct. All of the jurors

stated that their findings on the multiple victim allegations were not true and correct. The

court found the jury had made an honest error regarding the multiple victim allegations

and therefore sent the jury back to reconsider the allegations. Defense counsel objected

to the entire manner in which the trial court addressed the inconsistency between the

multiple victim allegations and verdicts. Later that same day, after reconsidering the

enhancements, the jury found true the multiple victim allegations, contrary to its previous

findings rejecting the allegations. The trial court denied defendant’s motion to dismiss

the judgment on the ground the trial court should have accepted the original not true

findings on the multiple victim allegations.

B. Applicable Law and Analysis

         Section 1161 provides that if there is a verdict of conviction and the court thinks

the jury may have mistaken the law, the court may explain its reasons to the jury and

                                               32
direct it to reconsider the verdict; “‘but when there is a verdict of acquittal, the Court

cannot require the jury to reconsider it.’” (Bigelow v. Superior Court (1989) 208

Cal.App.3d 1127, 1133 (Bigelow).) Although the jurors rendered not true verdicts on

enhancement allegations, rather than acquittal verdicts on charges of substantive offenses,

the two are equivalent for purposes of applying section 1161 to this case. (People v.

Guerra (2009) 176 Cal.App.4th 933, 941, fn. 2 (Guerra).)

       In Bigelow, supra, 208 Cal.App.3d at page 1129, the court held that the trial court

erred in sending the jury back to redeliberate after it entered a verdict acquitting the

defendant of first degree murder but finding true murder special circumstances. The

court in Bigelow explained the following basic principles: “First, once the jury submits a

verdict of acquittal to the trial court, the court may not order reconsideration of that

verdict but rather must order that judgment be entered on the verdict. [Citations.]

Second, a trial court may not coerce a jury by rejecting its verdict and requesting it to

continue deliberating. [Citations.]” (Id. at p. 1134.)

       In Bigelow, the finding of not guilty of murder was inconsistent with the special

circumstances findings. The court noted that, “if the initial verdict unequivocally

manifested the intent to acquit, it was a valid verdict regardless of its formal defects or

legal inconsistency.” (Bigelow, supra, 208 Cal.App.3d at p. 1136.) The Bigelow court

concluded, however, that the verdict was ambiguous because of the inconsistency of

acquittal of murder and findings that special circumstances existed. (Ibid.) Therefore,

the trial court had the following limited options: “The court could have either 1) granted

the motion to record the verdict of acquittal, 2) polled the jury to determine if there were

                                              33
12 votes for acquittal, or 3) informed the jury that the acquittal was not consistent with

findings of special circumstances and asked it to clarify its verdict to show its true

intent.” (Ibid.) The Bigelow court held the trial court erred because the trial court did not

proceed under any of these options. Instead, the trial court merely sent the jury back to

deliberate. (Bigelow, supra, 208 Cal.App.3d at p. 1136.)

       In Bigelow, the court explained that it was distinguishable from cases in which the

trial court properly resubmitted inconsistent verdicts to the jury. Cases upholding

resubmission “presented patent and necessary inconsistency, namely, findings of guilty

and not guilty on the same charge.” (Bigelow, supra, 208 Cal.App.3d at pp. 1137-1138.)

In addition, “the jury error was immediately corrected, with no lengthy further

deliberations.” (Id. at p. 1138.)

       We recognize the general principle that “an inherently inconsistent verdict is

allowed to stand; if an acquittal of one count is factually irreconcilable with a conviction

on another, or if a not true finding of an enhancement allegation is inconsistent with a

conviction of the substantive offense, effect is given to both.” (People v.

Santamaria (1994) 8 Cal.4th 903, 911; see also People v. Avila (2006) 38 Cal.4th 491,

600 and People v. Espiritu (2011) 199 Cal.App.4th 718, 727.) But, as explained in

Bigelow, when the verdict or enhancement has not yet been entered or recorded and a

verdict of acquittal is ambiguous due to blatant inconsistency, the trial court can properly

explain the inconsistency to the jurors, obtain clarification from the jury, and allow

reconsideration. (Bigelow, supra, 208 Cal.App.3d at p. 1136; People v. Caird (1998) 63

Cal.App.4th 578, 586-590; People v. Keating (1981) 118 Cal.App.3d 172, 181-182.)

                                             34
       Here, the jury’s rejection of the multiple victim allegations was patently

inconsistent with the jury’s finding defendant guilty of committing sexual offenses

against multiple victims. Because of this clear inconsistency, the trial court appropriately

exercised its options of polling the jury, informed the jury of the inconsistency, and

assessed the jury’s true intent, in accordance with Bigelow. After the jurors stated that

their not true findings on the multiple victim allegations were not their true and correct

findings and requested to reconsider their findings, the trial court appropriately allowed

the jury to redeliberate. (Bigelow, supra, 208 Cal.App.3d at p. 1136.) In raising the

inconsistency, “‘the trial court has broad latitude in fair commentary, so long as it does

not effectively control the verdict.’” (People v. Espiritu (2011) 199 Cal.App.4th 718,

728, quoting People v. Rodriguez (1986) 42 Cal.3d 730, 768.) Here, the trial court did

not effectively control the verdict or jury findings on the multiple victim allegations.

       Defendant’s reliance on Guerra, supra, 176 Cal.App.4th 933, for the proposition

that the trial court erred in refusing to accept the jury’s not true findings on the multiple

victim allegations, is misplaced. In Guerra, the jury found the defendant guilty of

committing sexual offenses against his daughter and another girl. The jury also initially

returned not true findings on the multiple victim allegations. (Id. at pp. 935-936.) The

trial court told the jury the verdicts appeared to be inconsistent with the allegation

findings. The jury foreman conceded that she and the jury must have misunderstood the

instruction on the multiple victim allegations. The court reread the instruction for the

multiple victim allegation and further instructed the jury: “‘The instructions and the

verdict form would indicate to the court that if in the case being tried before you there is

                                              35
more than one victim that the defendant has been convicted of sexually assaulting as

charged, that the answer to those allegation questions should be true.’” (Guerra, supra,

176 Cal.App.4th at p. 939.)

       The Guerra court held that the trial court improperly informed the jury that they

should find the multiple victim allegation true, and sent the jury back to deliberate,

without first discerning the jury’s true intent. (Guerra, supra, 176 Cal.App.4th at pp.

943-944.) The instant case is distinguishable from Guerra because the trial court

explained the inconsistency to the jury and polled the jury to determine each juror’s

intent. Upon the jurors stating that their allegation findings were not true and correct, the

court asked the jury if it wanted to reconsider its findings, and the jury said it wished to

do so. In this case, the trial court did not mandate that the jury redeliberate. The trial

court also did not direct the jury to change its findings on the multiple victim allegations

to “true.” The trial court told the jury, that upon redeliberation, it could still find the

allegations “not true.” The trial court allowed the jury to redeliberate and reach its own

result, without directing a particular outcome. Because the trial court properly addressed

the clear inconsistency between the verdicts and multiple victim allegations in

accordance with Bigelow, the trial court did not exceed its statutory or constitutional

authority by allowing the jury to reconsider its findings on the multiple victim

allegations.




                                               36
                                            VII

                                      DISPOSITION

       The conviction for violating section 269, subdivision (a)(4), (count 3) is reduced to

a conviction for the lesser included offense of violating section 288a, subdivision (c)(1),

due to the insufficiency of evidence of force, violence, duress, menace or fear of

immediate, unlawful bodily injury. As modified, the judgment of conviction is affirmed

as modified and remanded for resentencing on count 3.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                                CODRINGTON
                                                                                              J.

We concur:


HOLLENHORST
                 Acting P. J.


KING
                           J.




                                             37
