Opinion
D074579
12-21-2018
THE PEOPLE, Plaintiff and Respondent, v. WILLIAM HERNANDEZ, Defendant and Appellant.
Brett Harding Duxbury, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel and Meredith S. White, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 16CR002965) APPEAL from a judgment of the Superior Court of San Bernardino County, Ingrid A. Uhler, Judge. Reversed with directions. Brett Harding Duxbury, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel and Meredith S. White, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted William Hernandez of four counts of forcible oral copulation (Pen. Code, § 288a, subd. (c)(2)(A)), four counts of forcible rape (§ 261, subd. (a)(2)), one count of sodomy by force (§ 286, subd. (c)(2)(A)), and two counts of false imprisonment by violence (§ 236). As to two of the forcible oral copulation and forcible rape counts, the jury found true the allegation that Hernandez committed these offenses against more than one victim. (§ 667.61, subd. (e)(4).) As to the other two forcible oral copulation and forcible rape counts, and the sodomy by force count, the jury found true both the multiple victims allegation and the allegation that Hernandez committed the offenses during the commission of a burglary. (§ 667.61, subd. (e)(2), (4).) The trial court sentenced Hernandez to a total term of 185 years to life imprisonment.
Further statutory references are to the Penal Code.
Hernandez appeals. He contends the court erred by instructing the jury on the charged sex offenses. The court provided instructions based on the charged offenses of forcible rape, sodomy by force, and forcible oral copulation (§§ 261, subd. (a)(2), 286, subd. (c)(2)(A), 288a, subd. (c)(2)(A)), as well as the additional offenses of rape, sodomy, and oral copulation by threats of retaliation and threats of public authority (§§ 261, subd. (a)(6)-(7), 286, subds. (c)(3), (k), 288a, subds. (c)(3), (k)). The Attorney General concedes the court erred, but he argues the error was harmless beyond a reasonable doubt.
We conclude the error was not harmless. A reasonable juror could have found Hernandez guilty of the charged sex offenses based solely on a factual circumstance (e.g., threats of public authority) covered only by the uncharged sex offenses, not the charged offenses. We must therefore reverse the judgment and remand for a new trial, if the People so elect, on the sex offenses and their associated allegations. Hernandez does not challenge his convictions for false imprisonment, and they are unaffected by our disposition here. Following the new trial, or the expiration of the time to retry Hernandez, the trial court should resentence Hernandez on his convictions for false imprisonment and any additional convictions and true findings.
FACTS
For purposes of this section, we state the evidence in the light most favorable to the judgment. (See People v. Osband (1996) 13 Cal.4th 622, 690; People v. Dawkins (2014) 230 Cal.App.4th 991, 994.) Additional facts will be discussed where relevant in the following section.
On February 16, 2016, Hernandez responded to an internet solicitation posted by the first victim (Doe 1) offering oral and manual sex acts for money. After communicating by phone or email, they agreed to meet. Hernandez picked up Doe 1 near her house and suggested they go to a hotel. He agreed to pay her $60 for oral sex.
Doe 1 went into the hotel room first. When Hernandez entered, he told Doe 1 he was a police officer, pulled out what appeared to be a real gun, and attempted to show her a badge. (Hernandez is not a police officer.) He said Doe 1 could either perform oral sex for free or he would take her to jail and she would lose custody of her children. Doe 1 was "shocked" and "scared to death" because she did not want to go to jail and because she thought Hernandez might hurt her or kill her. Hernandez forced Doe 1 to perform oral sex on him twice and to have vaginal intercourse with him twice. Between sex acts, Doe 1 started to put her clothes back on, but Hernandez told her they were not done. Doe 1 pretended to enjoy having sex with Hernandez because she was afraid he would kill her if it seemed like she was struggling.
Afterward, Hernandez told Doe 1 that she had to answer his text messages if he contacted her in the future. Doe 1 considered his statement a threat. Hernandez asked if Doe 1 had any friends she could ask to join them. Doe 1 told him she had a friend, and Hernandez let her leave the hotel room to get her. Before she left, Hernandez asked Doe 1 whether he should pay her. Doe 1 said he could if he wanted. Hernandez gave her $10 and said she would get the rest when she returned.
Doe 1 did not return; she played along with Hernandez so that she could escape. Doe 1 was frantic and scared. She did not call police because she thought Hernandez was a police officer and she was worried about being prosecuted for prostitution. Hernandez contacted her, and she responded in a friendly manner because she did not want him to think anything was wrong.
Doe 1's sister eventually called police and reported the assaults. Doe 1 told Hernandez to expect a call from police, claiming that she had been arrested for prostitution. Doe 1 did not want Hernandez to know her sister had reported anything. She was afraid he would retaliate.
On March 3, 2016, Hernandez responded to a solicitation posted by the second victim (Doe 2). Hernandez agreed to pay $150 for an hour. That evening, he came to the motel room where Doe 2 was staying. At Doe 2's request, Hernandez brought food. He waited while Doe 2 ate. He put $150 on the table.
Doe 2 went to the bathroom. When she came out, Hernandez was holding what appeared to be a real gun. He said he was a police officer and took a picture of Doe 2's identification card. He said he would not hurt or arrest Doe 2 if she did what he asked. He flipped open his wallet as if to show a badge. Doe 2 believed he was a police officer. She was scared. Doe 2 reached for the money, but Hernandez took it and said it was fake. He forced Doe 2 to perform oral sex on him and have vaginal intercourse.
Hernandez asked Doe 2 if she had a friend she could invite over. Doe 2 said she had a friend, but she was busy. Hernandez insisted, so Doe 2 called the third victim (Doe 3). She did not tell Doe 3 that Hernandez had assaulted her because she was afraid he would shoot her.
Doe 3 had been staying at the motel with Doe 2. They were friends. The night before, they had discussed having a threesome with someone for $500. Doe 3 believed that Hernandez was paying for the threesome.
Doe 3 knocked on the door to the motel room, and Doe 2 answered. Doe 2 and Hernandez were wearing clothes. Doe 3 noticed that Doe 2 was acting scared, like something was wrong. Doe 3 changed her mind about having the threesome, and she said so. She told Hernandez he needed to leave. Hernandez stood up, and something dropped to the floor. Doe 3 thought it might be a gun, but she did not see anything. Doe 3 decided she would go instead, but she did not want to leave Doe 2 in the room with Hernandez. Doe 3 stood in the doorway and tried to coax Doe 2 out. Then Hernandez walked out the door, and Doe 3 went inside the room. She locked the door. She was scared and nervous.
After less than a minute, Hernandez knocked on the door and said he forgot his wallet. But Doe 3 had seen Hernandez take his wallet when he left. Doe 3 started putting furniture against the door and told Doe 2 not to let Hernandez in the room.
Doe 2 was scared and started to panic. Doe 2 unlocked the door, and Doe 3 ran into the bathroom. She put her feet against the door and her back to the bathtub. She heard Hernandez run to the bathroom door. He said he was a homicide detective and told Doe 3 she had to open the door. Doe 3 scoffed at his claim and tried to run out of the bathroom past him. Hernandez grabbed her arm and spun her around. He pulled out what appeared to be a real gun and cocked it. Doe 3 thought Hernandez was going to shoot her. (Doe 2 later said Doe 3 acted scared when she heard Hernandez was a police officer.)
Hernandez repeated his claim that he was a homicide detective and asked Doe 3 for her identification. Doe 3 handed her college identification card to him, and he took a picture of it with his phone. Hernandez told Doe 3 that she had to do what he wanted or he would take her to jail. Doe 3 said he could take her to jail; she said she would rather go to jail than do anything with Hernandez. Doe 2, however, was crying and scared. She did not want to lose custody of her son.
Hernandez told Doe 3 that he wanted her to perform oral sex on him. Doe 3 refused. She said Hernandez could take her to jail. Hernandez reached for his gun again, and he told Doe 3 that she could not leave until she did what he wanted. Hernandez said he could shoot Doe 2 and Doe 3, put their bodies in the motel room mattress, and no one would ever hear from them again. Doe 3 was scared for her life. Hernandez forced Doe 3 to perform oral sex on him and have vaginal intercourse. She began menstruating, but Hernandez did not care. Hernandez also forced Doe 3 to have anal intercourse. She was crying. It was extremely painful for her, and she remained in pain for days afterward. Doe 2 was sitting at a table looking at her phone. She did not call for help because she was afraid Hernandez would shoot her and Doe 3.
After the assault, Hernandez told Doe 3 not to tell anyone what happened. He said she had to answer if he called in the future. He put his initials and phone number in Doe 3's phone. He picked up his gun, put it in his pocket, and left. Doe 2 and Doe 3 packed their things and left as well.
In the days that followed, Hernandez called Doe 2 and asked how Doe 3 was doing. Doe 3 began sending Hernandez text messages. She told him he was the reason people hate the police. She said she wished Doe 2 had been smart enough to shoot him with his own gun. She said Hernandez was "the biggest sinner," a "pervert," and a "sick, sick man." Doe 3 eventually called police and reported the assault. In their initial conversations with police, Doe 2 and Doe 3 did not tell the truth about certain details to avoid implicating themselves in prostitution.
As part of their investigation, police searched Hernandez's truck. They found a pellet gun, condoms, testosterone pills, and various receipts. The pellet gun looked like a real gun.
Police detectives interviewed Hernandez. He admitted contacting Doe 2 for sex, but he claimed she demanded more money afterward and stole his identification card. Hernandez said he went to his car, retrieved his pellet gun, and demanded his identification card back. In the meantime, Doe 3 had arrived at the hotel room. He denied forcing Doe 2 to have sex, and he denied having sex with Doe 3 at all. Hernandez initially denied contacting any other prostitutes. When confronted, however, Hernandez admitted sexual contact with Doe 1. He denied using his gun in any way with Doe 1. He also repeatedly denied telling any of the victims that he was a police officer or threatening to arrest them.
After three hours of questioning, Hernandez admitted he identified himself as a police officer to Doe 2 and Doe 3, but he claimed he did it only to get his identification card back. He denied telling Doe 1 he was a police officer.
At trial, Hernandez testified in his own defense. He said he contacted Doe 1 through the internet. He picked her up in his truck, and they drove to the hotel. Hernandez had his pellet gun in the truck. (He admitted lying to police about this fact.) Hernandez and Doe 1 went into the hotel room, Hernandez paid her $60, and she performed oral sex on him. According to Hernandez, Doe 1 suggested they have vaginal sex. Afterward, Doe 1 asked for more money and began arguing with Hernandez. To stop the argument, Hernandez said he was a police officer. He gave her $10 more.
Hernandez testified that he also contacted Doe 2 through the internet. They agreed to meet up for $140. He went to her motel room with the food she requested. He brought his pellet gun with him because he did not feel safe. Hernandez gave Doe 2 the food and $133, which was the agreed-upon payment minus the cost of the food. Hernandez took off his jacket, wrapped his pellet gun inside, and put it in a closet. They had oral and vaginal sex. Hernandez claimed that while they were having vaginal sex, Doe 2 began menstruating. This upset Hernandez, and he asked for half his money back. Hernandez said Doe 2 suggested they call Doe 3 to "take care" of him. Doe 3 arrived but seemed suspicious and upset. She said Hernandez looked like he was a police officer. Hernandez left the room for a second, but Doe 2 told him to come back. Doe 3 agreed to perform oral sex on Hernandez. They also had vaginal sex. According to Hernandez, Doe 3 began menstruating as well.
Hernandez put on his clothes and started to leave the motel room. At that point, Hernandez claimed, Doe 3 demanded money. Hernandez refused, and again he started to leave. Hernandez testified that Doe 3 stopped him, showed him his identification card (which Hernandez claimed she had stolen from his wallet), and said he could not leave. Hernandez said he was a police officer and showed Doe 2 and Doe 3 his gun. Doe 3 ran into the bathroom with his identification card. Hernandez demanded his identification card back, and Doe 3 threw it at him. She told Doe 2 she was right that Hernandez was a police officer. Hernandez then demanded that Doe 2 and Doe 3 show him their identification cards, and he took pictures of them with his phone. Hernandez left. He denied forcing Doe 2 or Doe 3 to have sex with him.
DISCUSSION
I
Instructional Error
Hernandez contends the trial court erred by instructing the jury on uncharged forms of rape, unlawful oral copulation, and unlawful sodomy. " 'Errors in jury instructions are questions of law, which we review de novo.' " (People v. Fenderson (2010) 188 Cal.App.4th 625, 642.)
Hernandez was charged with four counts of forcible oral copulation under section 288a, subdivision (c)(2)(A), four counts of forcible rape under section 261, subdivision (a)(2), and one count of sodomy by force under section 286, subdivision (c)(2)(A). Each of these offenses requires a showing that the unlawful sex act was accomplished "by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the [victim/person] or another [person]." (§§ 261, subd. (a)(2), 286, subd. (c)(2)(A), 288a, subd. (c)(2)(A).) The statutes differ only in the bracketed descriptions of the victim or other person that might suffer injury.
The trial court's jury instructions on the charged sex offenses described this circumstance. But they also described two additional circumstances under which Hernandez could be convicted of the charged offenses. For example, in its instructions on forcible rape, the court told the jury it could convict the defendant if the unlawful sex act was accomplished by "threatening to retaliate in the future against the woman or someone else when there was a reasonable possibility that the defendant would carry out the threat" or by "threatening to use the authority of a public office to incarcerate, arrest, or deport someone." The court's instructions on forcible oral copulation and sodomy by force contained similar language. The two additional circumstances described by the instructions correspond to other, uncharged subdivisions of the rape, unlawful oral copulation, and unlawful sodomy statutes. (See §§ 261, subd. (a)(6), 286, subd. (c)(3), 288a, subd. (c)(3) [threats to retaliate in the future]; §§ 261, subd. (a)(7), 286, subd. (k), 288a, subd. (k) [threats of public authority].)
As the Attorney General concedes, the inclusion of these two additional circumstances in the court's jury instructions was error. They did not correctly state the applicable law regarding the charged sex offenses, which were limited to compulsion by "force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the [victim/person] or another [person]." (§§ 261, subd. (a)(2), 286, subd. (c)(2)(A), 288a, subd. (c)(2)(A).) The instructions allowed the jury to convict Hernandez of the charged sex offenses without making the findings required by the charged subdivisions. Instead, the jury could have made the findings required only by the other, uncharged subdivisions.
The trial court believed that the three circumstances described in its instructions (one charged, two uncharged) were different theories of forcible rape, forcible oral copulation, and sodomy by force. The court stated, "It's my belief under the statement of the law that the jurors just have to agree one of those apply, but they don't have to be unanimous as to which one. So I did modify it to include those in all three separate instructions to conform with the law." The court's instructions likewise told the jury that it was not necessary that the jurors unanimously agree on the basis for each sex offense, as long as each juror agrees that at least one basis applies.
Our Supreme Court has rejected this view. It has held that the various subdivisions of the rape statute (section 261) and the unlawful oral copulation statute (section 288a) reflect different substantive offenses, not different theories of the same offense. (People v. White (2017) 2 Cal.5th 349, 357-359 (White); People v. Gonzalez (2014) 60 Cal.4th 533, 539-540.) The same reasoning applies to the unlawful sodomy statute (section 286), which tracks the language of the unlawful oral copulation statute. (See White, at p. 357.) Moreover, in this case, Hernandez was charged with violating particular subdivisions of these statutes, specifically forcible rape (§ 261, subd. (a)(2)), sodomy by force (§ 286, subd. (c)(2)(A)), and forcible oral copulation (§ 288a, subd. (c)(2)(A)). He was not charged generically with the "umbrella" offenses of rape under section 261, unlawful sodomy under section 286, or unlawful oral copulation under section 288a. The trial court had no basis on which to expand the jury instructions beyond the specific circumstances and subdivisions charged by the prosecution.
The different subdivisions are not interchangeable. In addition to their differing factual circumstances, they carry different sentencing consequences. For example, the sex offenses involving force or fear and threats in the future are considered violent felonies, whereas the sex offenses involving threats of public authority are not. (§ 667.5, subd. (c)(3)-(5); see White, supra, 2 Cal.5th at p. 358.)
Because the jury was instructed on circumstances not covered by the charged offenses of forcible rape, forcible oral copulation, and sodomy by force, the instructions here provided the jury with legally incorrect theories of those offenses. We consider the consequences of these incorrect theories in the next part.
II
Prejudice
Hernandez and the Attorney General agree that the inclusion of incorrect legal theories in the jury instructions was federal constitutional error, which requires reversal of the judgment unless we conclude beyond a reasonable doubt that the error did not contribute to the verdict. (People v. Chun (2009) 45 Cal.4th 1172, 1201 (Chun).) "[O]nce [a defendant] has shown that the jury was instructed on correct and incorrect theories of liability, the presumption is that the error affected the judgment: ' "Jurors are not generally equipped to determine whether a particular theory of conviction submitted to them is contrary to law—whether, for example, the action . . . fails to come within the statutory definition of the crime. When, therefore, jurors have been left the option of relying upon a legally inadequate theory, there is no reason to think that their own intelligence and expertise will save them from that error." ' [Citation.] Of course, the presumption of error can be rebutted by a showing 'beyond a reasonable doubt that the jury based its verdict on the legally valid theory.' " (In re Martinez (2017) 3 Cal.5th 1216, 1224 (Martinez); accord, People v. Chiu (2014) 59 Cal.4th 155, 167 ["When a trial court instructs a jury on two theories of guilt, one of which was legally correct and one legally incorrect, reversal is required unless there is a basis in the record to find that the verdict was based on a valid ground."].)
Our Supreme Court has discussed different ways in which the People may meet their burden of demonstrating that the error did not contribute to the verdict. "One way of finding this kind of error harmless has long been recognized. Sometimes it is possible to determine from other portions of the verdict that the jury necessarily found the defendant guilty on a proper theory." (People v. Guiton (1993) 4 Cal.4th 1116, 1130.) Another way takes a more holistic approach: "If other aspects of the verdict or the evidence leave no reasonable doubt that the jury made the findings necessary for [the valid theory], the erroneous . . . instruction was harmless." (Chun, supra, 45 Cal.4th at p. 1205; accord, Martinez, supra, 3 Cal.5th at p. 1226.) For example, the error will be found harmless " 'if it is impossible, upon the evidence, to have found what the verdict did find without finding on this point as well.' " (Chun, at p. 1204.) In a related context, the Supreme Court expanded on this idea. "[A] demonstration of harmless error does not require proof that a particular jury 'actually rested its verdict on the proper ground [citation], but rather on proof beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error [citation]." (People v. Gonzalez (2012) 54 Cal.4th 643, 666 (Gonzalez); accord, In re Hansen (2014) 227 Cal.App.4th 906, 923.) To make such a determination, we must "exhaustively review[] the trial evidence to determine 'whether the record contains evidence' " that would have allowed a rational juror to rely on an improper theory, rather than a proper theory. (Gonzalez, at p. 666; accord, People v. Merritt (2017) 2 Cal.5th 819, 832.)
The Supreme Court may soon clarify the required test for harmless error in this context. In People v. Aledamat (2018) 20 Cal.App.5th 1149, 1153, review granted July 5, 2018, S248105, the Court of Appeal held that harmless error may be shown only where the record demonstrates that the jury actually based its verdict on a valid theory. In doing so, it explicitly noted that "the rules regarding prejudice that we apply . . . are arguably in tension with more recent cases, such as People v. Merritt . . . , providing that the failure to instruct on the elements of a crime does not require reversal if those omitted elements are 'uncontested' and supported by ' "overwhelming evidence." ' " (Aledamat, at p. 1154, review granted.) The issues presented to the Supreme Court in Aledamat appear to include the following: "Is error in instructing the jury on both a legally correct theory of guilt and a legally incorrect one harmless if an examination of the record permits a reviewing court to conclude beyond a reasonable doubt that the jury based its verdict on the valid theory, or is the error harmless only if the record affirmatively demonstrates that the jury actually rested its verdict on the legally correct theory?"
We need not wade into this controversy here, however, because the Attorney General has not met his burden of showing harmless error under any standard. He has not shown the jury actually rested its verdict on a valid theory, nor has he shown that a rational jury must have done so.
The valid theory here is the factual circumstance covered by the charged sex offenses, i.e., that the sex act was accomplished by "force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the [victim/person] or another [person]." (§§ 261, subd. (a)(2), 286, subd. (c)(2)(A), 288a, subd. (c)(2)(A).) The invalid theories are the erroneously-included circumstances of the uncharged offenses, i.e., threatening to retaliate in the future (§§ 261, subd. (a)(6), 286, subd. (c)(3), 288a, subd. (c)(3)) and threatening to use the authority of a public official to incarcerate, arrest, or deport the victim or another (§§ 261, subd. (a)(7), 286, subd. (k), 288a, subd. (k)).
The jury's verdicts on the charged sex offenses themselves do not shed any light on the theory or theories on which the jury relied. They are general verdicts that did not require any specific findings regarding the elements in question. The Attorney General argues that the jury's two false imprisonment verdicts show that the jury relied on the valid force or fear theory, rather than the alternatives. The jury convicted Hernandez of two counts of false imprisonment by violence, one count each for Doe 1 and Doe 3. The court's jury instructions told the jury that in order to convict Hernandez it must find that he "intentionally restrained, confined, or detained someone by violence or menace." Violence was defined as "using physical force that is greater than the force reasonably necessary to restrain someone." Menace was defined as "a verbal or physical threat of harm, including [the] use of a deadly weapon."
Although the charging document did not specify the act or acts comprising the false imprisonment offenses, the prosecutor articulated the factual basis for those offenses in her closing argument. For Doe 1, the prosecutor said the false imprisonment occurred between sex acts when Hernandez told her she could not leave. For Doe 3, the prosecutor said the false imprisonment occurred when Hernandez grabbed her arm as she fled her hiding place in the motel room bathroom.
We disagree that the jury's verdicts on the false imprisonment counts show beyond a reasonable doubt that the jury's verdicts on the sex offenses rested on a valid theory. The false imprisonment convictions involved discrete events that did not encompass the sex offenses at issue here. The reason each victim did not feel free to leave may have differed from the reason each victim felt compelled to submit to the unlawful sex acts. Even if the false imprisonment convictions "strongly suggest" that the jury based its verdict on a valid theory, it is insufficient to find harmlessness beyond a reasonable doubt. (See Chun, supra, 45 Cal.4th at p. 1204.) For reasons we describe in further detail below, the jury could reasonably have found that the false imprisonment was accomplished by violence or menace but believed the sex offenses were accomplished at least by threats of public authority.
The evidence supporting a finding that the sex offenses were accomplished by threats of public authority was strong. All three victims testified that Hernandez identified himself as a police officer, showed them a gun that appeared to be real, and threatened to arrest or jail them if they did not perform sex acts on him. Hernandez admitted telling the victims he was a police officer. Moreover, the jury could reasonably find that all three victims believed Hernandez was a police officer. Doe 1 and Doe 2 expressly said so, and Doe 3 wrote text messages to Hernandez that accepted he was a police officer. And Hernandez testified that Doe 3 told Doe 2, "I told you he was a cop," thereby supporting the inference that she believed he was a police officer at the time of the assaults.
Doe 1 and Doe 2 testified they were scared and motivated by Hernandez's threats of arrest. Doe 1 did not want to go to jail, and Doe 2 was concerned about losing custody of her children. Doe 3's testimony was more equivocal. She said she was willing to go to jail rather than perform sex acts on Hernandez. But, the jury was not required to accept this testimony. It could reasonably have focused on Hernandez's claim he was a police officer (which Hernandez admitted) and on his threats to jail Doe 3. On this basis, it could have found that Doe 3 was in fact compelled by Hernandez's threats of public authority to perform sex acts. It was not required to accept in full the testimony of any witness. "The jury may accept as true a portion of the testimony of a witness and disbelieve the remainder or have a reasonable doubt as to its correctness." (People v. Crooker (1956) 47 Cal.2d 348, 355 (Crooker); accord, People v. Ceja (1994) 26 Cal.App.4th 78, 86 (Ceja).) Indeed, in her closing arguments, the prosecutor asserted that all three theories were satisfied by the evidence. She repeatedly referenced Hernandez's claim he was a police officer and his threats to arrest or jail the victims.
The Attorney General contends the evidence supporting the valid force or fear theory was "overwhelming[]" and therefore any rational juror would have based his or her verdict on this theory in addition to any other theory. We disagree. To conclude that an error was harmless in this context, we must exhaustively review the record to determine whether the evidence would support a finding based on the invalid theory in light of all of the evidence. (See Gonzalez, supra, 54 Cal.4th at p. 666.) The question is not solely the strength of the evidence supporting the valid theory, it is whether any reasonable juror could have based his or her verdict on an invalid theory. The evidence described above is more than sufficient for a juror to have based his or her verdict on at least the invalid theory of threats of public authority. Such a juror may not have even reached the issue of whether Hernandez could also be convicted on a force or fear theory. We therefore cannot say beyond a reasonable doubt that the inclusion of invalid theories in the court's jury instructions did not contribute to the jury's verdict.
The Attorney General's contention largely rests on the premise that any reasonable juror would have believed all of each victim's testimony, or none of it. This premise is not correct. A juror may believe only part of a witness's testimony. (Crooker, supra, 47 Cal.2d at p. 355; Ceja, supra, 26 Cal.App.4th at p. 86.) This principle is especially applicable here, since Hernandez admitted impersonating a police officer but did not admit other aspects of the assaults. A reasonable juror could have synthesized this testimony and convicted Hernandez on the charged sex offenses based only on the invalid theory of threats of public authority, which shared some common facts from both the victims' and Hernandez's testimony. (See Stevens v. Parke, Davis & Co. (1973) 9 Cal.3d 51, 67-68 [" '[T]he jury properly may reject part of the testimony of a witness, though not directly contradicted, and combine the accepted portions with bits of testimony or inferences from the testimony of other witnesses thus weaving a cloth of truth out of selected available material.' "]; see also People v. Fuiava (2012) 53 Cal.4th 622, 715, fn. 34; People v. Rush (1960) 180 Cal.App.2d 885, 886-887.) The Attorney General has not shown beyond a reasonable doubt that the instructional error here did not contribute to the jury's verdict on the charged sex offenses. Even though the evidence supporting Hernandez's guilt was strong, his convictions for the charged sex offenses cannot stand.
DISPOSITION
The judgment is reversed with directions to conduct a new trial, if the People so elect, on counts 1, 3, 7, and 10 (forcible oral copulation); counts 2, 4, 8, and 11 (forcible rape); and count 12 (sodomy by force) and to resentence Hernandez.
GUERRERO, J. WE CONCUR: HUFFMAN, Acting P. J. DATO, J.