Opinion
A150114
01-12-2018
THE PEOPLE, Plaintiff and Respondent, v. DAMON HUGHEY, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Napa County Super. Ct. No. CR180413)
A jury convicted Damon Hughey of multiple crimes against Katie Doe: assault with intent to commit a sexual offense during the commission of a first degree burglary (Pen. Code, § 220, subd. (b)), first degree residential burglary (id., §§ 459, 460, subd. (a)), attempted forcible sexual penetration with a foreign object (id., §§ 289, subd. (a)(1)(A), 664), and sexual battery by restraint (id., § 243.4, subd. (a)). He was sentenced to a total term of eight years to life in state prison. Hughey appeals from the judgment, arguing (1) evidence of an uncharged sexual offense was erroneously admitted; (2) Evidence Code section 1108 and CALCRIM No. 1191 are unconstitutional; (3) evidence of his parole status was erroneously admitted; (4) the trial court erred by failing to instruct on jury unanimity; (5) cumulative error; (6) the evidence was insufficient to support his conviction for sexual battery by restraint; and (7) his conviction for first degree burglary must be reversed because the offense is a lesser included offense of assault with intent to commit a sex offense during the commission of first degree burglary. We reverse Hughey's burglary conviction, but otherwise affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
In August 2016, Hughey was charged by information with assault with intent to commit a sex offense during the commission of first degree burglary (Pen. Code, § 220, subd. (b); count one), assault with intent to commit a sex offense (id., § 220, subd. (a)(1); count two), first degree residential burglary (id., §§ 459, 460, subd. (a); count three), attempted forcible sexual penetration with a foreign object (id., §§ 289, subd. (a)(1)(A), 664; count four), and sexual battery by restraint (id., § 243.4, subd. (a); count five). The information further alleged a prior prison term enhancement (id., § 667.5, subd. (b)) and that the burglary charged in count three was a violent felony within the meaning of Penal Code section 667.5, subdivision (c)(21) because another person, not an accomplice, was present in the residence during the burglary. Hughey was allegedly ineligible for probation. (Id., §§ 1203.065, subd. (a), 1203.085, subd. (b).) A. Prosecution Case
1. Charged Crimes Against Katie Doe
On the night of July 13, 2016, Katie and her fiancé, K.K., were staying at the Napa River Inn in a ground-level room facing the river. When she initially checked into the room, Katie opened the patio door and viewed the area between the room and the river walk. She may have left the patio door unlocked. Katie and K.K. went out for dinner and drinks and returned to the room around 12:30 a.m. They turned on a "white noise" machine and fell asleep at about 1:00 a.m. Katie wore a t-shirt and shorts to bed, but no underwear.
Around 3:30 a.m., Katie was awakened. She felt someone touching her legs, manipulating her shorts, touching her vagina, and trying to put a finger in her vagina. Initially, Katie thought K.K. was trying to wake her up to initiate sex. But when she opened her eyes, she saw a male stranger, later identified as Hughey, crouched down on her side of bed. Hughey put his finger to his lips and said, "shhhh," and continued to touch Katie's vagina. Terrified, and not knowing whether Hughey had a weapon, Katie felt like she could not move or speak. After five to 30 seconds passed, she slowly backed up to K.K. and tried to wake him up. As Katie did so, Hughey hid from view on the floor.
Katie woke up K.K. and told him someone was in their room. K.K. walked towards the bathroom to investigate. As he approached, he noticed Hughey's silhouette. K.K. lunged at Hughey and briefly struggled with him before Hughey ran out of the room through the patio door. As K.K. chased him, Hughey leaped over the patio railing and landed in the bushes.
A security guard on the nearby river walk heard Katie screaming. As he approached, the security guard saw K.K. on the patio and Hughey in the bushes. The security guard detained Hughey until police arrived about five minutes later. When Hughey was arrested and searched, police found a "Crush" brand cigarette, an unopened condom, and a bottle of lotion from the hotel. Prior to transport to the police station, Hughey asked officers to retrieve his backpack from the bushes and his jacket from "the room." Hughey said he entered the room to use the restroom.
Further inspection of the hotel room showed no sign of forced entry, but it had been ransacked. Many of K.K.'s and Katie's belongings, including K.K.'s wallet and Katie's cell phone, were strewn about the room or placed in bags next to the patio door. K.K.'s backpack also contained items that did not belong to the couple, including copies of Hughey's social security card and birth certificate. A jacket that did not belong to either Katie or K.K. was found on the floor by the patio door. A backpack that did not belong to the couple, and which also contained Hughey's paperwork, was located outside, on the patio.
Katie's and K.K.'s toiletry items were found on the bathroom floor, as well as a partially smoked "Crush" brand cigarette. The cigarette did not belong to Katie or K.K., who did not smoke. Additionally, a partially unrolled but unused latex condom was found on the floor next to Katie's side of the bed. Katie brought condoms on the trip, but neither she nor K.K. had used or placed the condom on the floor. Based on the condition of the hotel room, the investigating police officer estimated Hughey must have been inside the room for at least 30 minutes.
The condom was not tested for DNA or fingerprints.
Later that day, Katie underwent a sexual assault response team (SART) exam. Swabs were taken from Katie's breast and vaginal area. No DNA matching Hughey's was found.
2. Uncharged Offenses Against Jamie Doe
Over defense counsel's objection, the prosecution introduced, under Evidence Code sections 1101, subdivision (b), and 1108, evidence of Hughey's prior felony sexual battery conviction from 2013. The victim in that case, Jamie Doe, testified that in June 2012, she had been 18 years old, transient, and struggling with alcohol abuse. She hitchhiked to Napa, from Santa Cruz, and stayed about a week.
Undesignated statutory references are to the Evidence Code.
On a Friday night during her stay in June 2012, she consumed a large amount of alcohol and spent the night at a camp by the river with Hughey. She went to sleep, with Hughey lying about five feet away. At approximately 6:00 a.m. the next day, another man awakened her to see if she wanted to go fishing. Although she had wanted to go, Jamie was groggy, and Hughey said Jamie did not want to go. She fell back asleep.
Later that morning, Jamie woke up while Hughey was penetrating her anus with his penis. She repeatedly pushed him away and told him to stop. Hughey persisted and inserted his penis into her anus twice more. At some point, he put a bandana in Jamie's mouth because she was screaming. He later used the bandana on her wrists and put his penis in her mouth.
When Hughey threatened to vaginally penetrate Jamie, she said she had to urinate and tried to run away. He caught her when she slipped. Hughey then got on top of her and aggressively penetrated her vagina with his penis. Jamie reached under her shirt and tried to pull out a knife she carried. Hughey grabbed the knife and held it to her forehead. After Hughey ejaculated, he threatened to kill Jamie if she told anyone. When Jamie left the camp, Hughey followed close behind until she had passed the police station. Jamie called the police later that same day, reported the attack, and underwent a SART examination. In 2013, Hughey pleaded guilty to felony sexual battery.
At the time of the currently charged offenses, Hughey was on parole and wearing a global positioning system (GPS) ankle monitor. Hughey's parole agent, Russell Gilbert, testified that Hughey was released on parole on November 3, 2014, and the GPS ankle monitor allowed Hughey's location to be tracked within 30 feet. Data downloaded from Hughey's ankle monitor, indicated Hughey was in downtown Napa between 11:00 p.m., on July 13, 2016, and 1:00 a.m. on July 14, 2016. At some point between 1:00 a.m. and 3:00 a.m., Hughey's GPS data showed he moved to the Napa River Inn property, staying primarily on the northeastern side of the property. Around 3:00 a.m., the GPS data showed Hughey moved to the southeastern portion of the hotel, where Katie's and K.K.'s room was located. Hughey remained there until he was arrested at 4:00 a.m. B. Defense Case
The defense rested without presenting any evidence. In closing argument, defense counsel argued Hughey, who was homeless at the time, entered the room to use the bathroom without any intent to commit a crime. Defense counsel also argued Hughey only accidentally touched Katie because it was dark, and he did not intend to rape her. C. Verdict and Sentence
The jury convicted Hughey on counts one, three, four, and five. Hughey admitted his prior felony conviction and the trial court found the special allegations true, except for the Penal Code section 1203.065 allegation, which was withdrawn by the People. Hughey was sentenced to a total term of eight years to life in state prison. The sentence was composed of a term of seven years to life for count one, plus a consecutive one-year term for the prior prison term enhancement. The court imposed sentence on the remaining counts, but the terms were stayed pursuant to Penal Code section 654. A timely notice of appeal followed.
Count two was treated as a lesser included offense of count one.
II. DISCUSSION
Hughey argues (1) evidence of the uncharged sexual offense against Jamie was erroneously admitted; (2) section 1108 and CALCRIM No. 1191 are unconstitutional; (3) evidence of his parole status was erroneously admitted; (4) the trial court erred by failing to instruct on jury unanimity; (5) cumulative error; (6) the evidence was insufficient to support his conviction for sexual battery by restraint; and (7) his conviction for first degree burglary must be reversed because the offense is a lesser included offense of assault with intent to commit a sex offense during the commission of first degree burglary. We agree with Hughey on his final point, but he otherwise fails to show prejudicial error. A. Admission of Hughey's Uncharged Offenses Against Jamie
Hughey contends the trial court abused its discretion and deprived him of due process by admitting, under sections 1101, subdivision (b) and 1108, evidence of the sexual assault against Jamie, over his section 352 objection.
Section 1108, subdivision (a), provides: "In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant's commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352." Section 352 provides: "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."
"Evidence of prior criminal acts is ordinarily inadmissible to show a defendant's disposition to commit such acts. ( . . . , § 1101.) However, the Legislature has created exceptions to this rule in cases involving sexual offenses ( . . . , § 1108) . . . ." (People v. Reyes (2008) 160 Cal.App.4th 246, 251.) Section 1108 "allows evidence of the defendant's uncharged sex crimes to be introduced in a sex offense prosecution to demonstrate the defendant's disposition to commit such crimes." (People v. Reliford (2003) 29 Cal.4th 1007, 1009 (Reliford).) "Evidence of prior criminal acts is [also] admissible 'when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge . . . ),' but not to prove the defendant carried out the charged crimes in conformity with a character trait. ( . . . , § 1101.) '. . . The least degree of similarity is required to establish relevance on the issue of intent. [Citation.] For this purpose, the uncharged crimes need only be "sufficiently similar [to the charged offenses] to support the inference that the defendant ' "probably harbored the same intent in each instance.' " ' " (People v. Lewis (2001) 25 Cal.4th 610, 636-637.)
" 'Section 1108 passes constitutional muster if and only if section 352 preserves the accused's right to be tried for the current offense.' [Citation.] 'Rather than admit[ting] or exclud[ing] every sex offense a defendant commits' pursuant to section 1108, trial judges 'must engage in a careful weighing process under section 352.' " (People v. Jandres (2014) 226 Cal.App.4th 340, 355, italics omitted.) "Under . . . section 352, the trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time." (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.) "We will only disturb the trial court's exercise of discretion under . . . section 352 'when the prejudicial effect of the evidence clearly outweighed its probative value.' " (People v. Hollie (2010) 180 Cal.App.4th 1262, 1274.) A trial court's exercise of its discretion under section 352 " 'must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.' " (Rodrigues, at pp. 1124-1125, italics omitted.)
1. Background
Before the jury was selected, the prosecutor moved to admit evidence of Hughey's prior conviction for felony sexual battery. Hughey opposed the prosecutor's motion, arguing the evidence was inflammatory, dissimilar, and unduly prejudicial.
The trial court admitted the evidence, pursuant to sections 1101, subdivision (b), and 1108. The trial court recognized there were differences between the charged and uncharged offenses and that the prior offense was more inflammatory. It nevertheless found the probative value of the evidence outweighed its potential for prejudice. It explained: "In the previous case, . . . the sexual assault was completed, in that there was oral, anal, and vaginal assault upon the victim in that case. So the similarity is not exactly the same, for sure. But there are some similarities, showing the intent, or there could be. The intent element is the major one . . . at issue in [the charged] case. [¶] So with that said, I would say that there is enough evidence of the prior case to make it relevant for this case. [¶] But then it is the 352 analysis that needs to be weighed. So there's the degree of similarity. And I wouldn't say it is one hundred percent similar, but I would not say that there's no similarity, because of the alleged sexual nature. [¶] The other factor is whether the prior incident was reported. And it was reported. That gives it more reliability, and more likely that it should be allowed in. [¶] Another factor that the Court needs to consider in the 352 analysis is whether there was prior punishment, and we know that there was. [¶] Next is the inflammatoriness [sic] of the previous case. And certainly because there was the threats with the knife, and the actual completion of the sexual assault, it is more inflammatory, but that doesn't mean that it is eliminated. [¶] And then lastly, the court needs to review how recent the prior incident was, and that was in 2012. Mr. Hughey was in prison for some period of time. I think, quite recent, as far as the weighing for this purpose. [¶] And therefore, under 352 analysis, I certainly think that the probative value outweighs the prejudicial effect, and the Court would allow the prior incident to be allowed in."
2. Analysis
Because the trial court found Jamie's testimony admissible under both sections 1101, subdivision (b), and 1108, "we would only find error in its admission if the testimony were inadmissible under both." (People v. Branch (2001) 91 Cal.App.4th 274, 280-281.) We begin with section 1108.
As note ante, section 1108 "allows evidence of the defendant's uncharged sex crimes to be introduced in a sex offense prosecution to demonstrate the defendant's disposition to commit such crimes." (Reliford, supra, 29 Cal.4th at p. 1009.) "The evidence is presumed admissible and is to be excluded only if its prejudicial effect substantially outweighs its probative value in showing the defendant's disposition to commit the charged sex offense or other relevant matters." (People v. Cordova (2015) 62 Cal.4th 104, 132.) The section reflects a legislative determination that " 'evidence of uncharged sexual offenses is so uniquely probative in sex crimes prosecutions it is presumed admissible without regard to the limitations of . . . section 1101.' " (People v. Britt (2002) 104 Cal.App.4th 500, 505-506, italics omitted.)
Hughey's main objection to the admission of Jamie's testimony appears to be based on the alleged dissimilarity of the crimes. He points out that "[t]he prior incident did not involve a burglary or penetration with a foreign object. It also did not occur while the victim's fiancé was . . . sleeping next to [her]." Similarity between sexual crimes increases the probative value of prior sexual offense evidence. (People v. Lewis (2009) 46 Cal.4th 1255, 1287.) However, unlike section 1101, subdivision (b), which requires a significant degree of similarity between charged and uncharged offenses, admissibility under section 1108 does not. (People v. Merriman (2014) 60 Cal.4th 1, 41.) Accordingly, "dissimilarity alone does not compel exclusion of the evidence. ' "[T]he charged and uncharged crimes need not be sufficiently similar that evidence of the latter would be admissible under . . . section 1101, otherwise . . . section 1108 would serve no purpose. It is enough the charged and uncharged offenses are sex offenses as defined in section 1108." ' " (People v. Cordova, supra, 62 Cal.4th at p. 133.) There is no dispute both the charged and uncharged offenses are sex offenses.
Furthermore, Jamie's testimony was not wholly dissimilar to Katie's. Both offenses occurred near the Napa River in the early morning hours when the victims were sleeping. In both instances, a certain amount of planning was used in order to overcome the victims' will. There were, of course, differences between the incidents. Most notably, Hughey and Katie were not acquaintances; Hughey did not rape, sodomize, or orally copulate Katie; no weapons were used in the attack on Katie; and another man was present at the time Katie's vagina was touched. However, as noted, strict similarity is not required. Considering each incident in its entirety, the trial court reasonably found the similarities sufficient to suggest predisposition under section 1108.
Hughey did not consummate a rape of Katie, but there is evidence suggesting he intended to rape her.
The dissimilarities here are not so stark as those presented in the authorities Hughey cites. (See, e.g., People v. Jandres, supra, 226 Cal.App.4th at p. 356 [evidence of defendant's prior attempt to kidnap a child, which involved him placing his finger in child's mouth, not sufficiently probative to infer predisposition to rape an adult], People v. Earle (2009) 172 Cal.App.4th 372, 396-398 [evidence of defendant's prior indecent exposure offense had no tendency to suggest predisposition to commit sexual assault]; People v. Harris (1998) 60 Cal.App.4th 727, 733-734, 740-741 [abuse of discretion to admit evidence of brutal rape that involved stabbing and occurred 23 years prior to the charged nonviolent breach of trust sex offenses].)
In fact, Hughey's prior offense against Jamie is probative not merely to show his disposition to commit sexual offenses, it is also highly probative to show intent under section 1101, subdivision (b). (See People v. Spicer (2015) 235 Cal.App.4th 1359, 1385; People v. Escudero (2010) 183 Cal.App.4th 302, 314; People v. Daniels (2009) 176 Cal.App.4th 304, 315.) Evidence showing that Hughey completed a rape, oral copulation, and sodomy against Jamie, when his attack was not interrupted by the presence of another man, tends to suggest his intent in touching Katie's vagina. (Daniels, at pp. 308-309, 315 [prior completed sex offense relevant to show defendant's intent when he moved unconscious victim from bar to motel room, placed her on bed, but victim fled before anything more occurred].) The fact that Hughey denied intending to rape Katie, and claimed to have touched her vagina accidently, only increased the probative value of Jamie's testimony. (Escudero, at pp. 306, 314 [other sex crimes evidence highly probative of defendant's intent, "dispelling any notion that the touching was the result of accident or mistake"].) Thus, Jamie's testimony was highly relevant to the key issue in the case—whether Hughey, in touching Katie's vagina, acted with intent to commit rape or sexual penetration.
Hughey also suggests the trial court abused its discretion by finding the probative value of Jamie's testimony outweighed the risk of undue prejudice from its admission. We disagree. In weighing prejudice against probative value under section 352, "five factors stand out as particularly significant in [a] . . . section 1108 case. These factors are (1) whether the propensity evidence has probative value, e.g., whether the uncharged conduct is similar enough to the charged behavior to tend to show the defendant did in fact commit the charged offense; (2) whether the propensity evidence is stronger and more inflammatory than evidence of the defendant's charged acts; (3) whether the uncharged conduct is remote or stale; (4) whether the propensity evidence is likely to confuse or distract the jurors from their main inquiry, e.g., whether the jury might be tempted to punish the defendant for his uncharged, unpunished conduct; and (5) whether admission of the propensity evidence will require an undue consumption of time. [Citation.] A trial court balances this first factor, i.e., the propensity evidence's probative value, against the evidence's prejudicial and time-consuming effects, as measured by the second through fifth factors." (People v. Nguyen (2010) 184 Cal.App.4th 1096, 1117.) "[T]he probative value of 'other crimes' evidence is increased by the relative similarity between the charged and uncharged offenses, the close proximity in time of the offenses, and the independent sources of evidence (the victims) in each offense. [Citation.] . . . [T]he prejudicial impact of the evidence is reduced if the uncharged offenses resulted in actual convictions and a prison term, ensuring that the jury would not be tempted to convict the defendant simply to punish him for the other offenses, and that the jury's attention would not be diverted by having to make a separate determination whether defendant committed the other offenses." (People v. Falsetta (1999) 21 Cal.4th 903, 917, italics omitted (Falsetta).)
In assessing prejudice, we must remember that "[t]he prejudice which exclusion of evidence under . . . section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence. '[A]ll evidence which tends to prove guilt is prejudicial or damaging to the defendant's case. The stronger the evidence, the more it is "prejudicial." The "prejudice" referred to in . . . section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues.' " (People v. Karis (1988) 46 Cal.3d 612, 638.) " 'In other words, evidence should be excluded as unduly prejudicial when it is of such nature as to inflame the emotions of the jury, motivating them to use the information, not to logically evaluate the point upon which it is relevant, but to reward or punish one side because of the jurors' emotional reaction. In such a circumstance, the evidence is unduly prejudicial because of the substantial likelihood the jury will use it for an illegitimate purpose.' " (People v. Doolin (2009) 45 Cal.4th 390, 439.)
As we stated above, Jamie's testimony had significant probative value. The probative value of Jamie's testimony was further heightened because she is a completely independent source of information and Hughey pleaded guilty to committing a sexual battery against her. (People v. Lewis, supra, 46 Cal.4th at p. 1287.) A reasonable trier of fact could certainly find it unlikely that two different women, who lived in separate states, would falsely accuse Hughey of committing similar crimes. The sexual assault of Jamie occurred within four years of the charged offenses, and was certainly not remote when considering Hughey spent much of the intervening time in prison. (See People v. Dejourney (2011) 192 Cal.App.4th 1091, 1106 [trial court "correctly dismissed any potential remoteness between the 2001 and 2008 acts during which [the defendant] had spent much time in prison"].)
Hughey argues the evidence was unduly prejudicial for two reasons. First, he asserts the details of Jamie's testimony were unduly inflammatory. The inflammatory nature of section 1108 evidence, as compared to the charged acts, may weigh in favor of exclusion. (People v. Harris, supra, 60 Cal.App.4th at p. 738.) Jamie testified to a number of forced sex acts, including rape and sodomy. Jamie also testified that Hughey used a knife, bound and gagged her with a bandana, and threatened her life. But we cannot say the evidence of Hughey's 2012 conduct was qualitatively different or "inflammatory in the extreme" when compared to the facts underlying the charged crimes. (Ibid., italics omitted.) Hughey attempts to minimize his offenses against Katie by characterizing his conduct as a mere "touching . . . with alleged sexual intent." (Italics added.) This is not a fair characterization. The evidence showed Katie awoke, in a hotel room, to a stranger touching her vagina and attempting to penetrate her with his finger. In any event, the trial court weighed the inflammatory nature of the prior crimes, which is not dispositive. (People v. Merriman, supra, 60 Cal.4th at p. 59; People v. Daniels, supra, 176 Cal.App.4th at p. 317.)
Hughey forfeited any argument the trial court erred in failing to sanitize the prior offense by excluding reference to the knife or death threat. (People v. Fuiava (2012) 53 Cal.4th 622, 670.)
The fact that Hughey was convicted of sexual battery, in 2013, both enhanced the probative value of the evidence (because it increased the certainty that he committed the crime), and reduced the danger that the jury would convict him of the charged crimes, regardless of guilt, in order to punish him for the uncharged ones. (See People v. Foster (2010) 50 Cal.4th 1301, 1332; People v. Jennings (2000) 81 Cal.App.4th 1301, 1315 [knowledge that the defendant pleaded no contest and had been punished "substantially mitigates the kind of prejudice usually associated with the introduction of prior bad act evidence"].) We are unpersuaded by Hughey's suggestion that evidence of his 2013 conviction, combined with the fact he was released on parole in November 2014, would lead the jury to conclude he was inadequately punished for the offenses against Jamie. The jury was not informed of Hughey's sentence for the prior conviction. Thus, it seems unlikely the jury would speculate about the punishment previously imposed.
Contrary to Hughey's assertion, the People did not attempt to capitalize on Hughey's parole status or suggest he "avoided" punishment for his prior crimes. Rather, in response to Hughey's argument that "[Hughey] didn't plead to a rape, . . . it was a simple sexual battery," the prosecutor asked the jury, in rebuttal, not to "speculate as to why it was that [the] plea bargain ended up being the way it was, [which] is not up to you to decide." (Italics added.)
In any event, the risk of prejudice was even further reduced by the court's instruction to the jury that the evidence of uncharged sexual offenses "is not sufficient by itself to prove that [Hughey] is guilty . . . . The People must still prove the charge beyond a reasonable doubt." Juries are presumed to follow the instructions given. (People v. Pinholster (1992) 1 Cal.4th 865, 919, disapproved on other grounds by People v. Williams (2010) 49 Cal.4th 405, 458-459.) Finally, the prior offense evidence was not unduly time consuming. (See People v. Branch, supra, 91 Cal.App.4th at pp. 285-286.) Jamie's direct testimony comprised only 22 pages of the record, her cross-examination comprised only four pages, and the evidence Hughey had pleaded guilty to sexual battery was very brief. Jamie's testimony was unlikely to have distracted the jury from its main inquiry.
In light of all of the circumstances, the trial court did not abuse its discretion when it concluded the probative value of Jamie's testimony was not outweighed by its risk of undue prejudice. Hughey fails to demonstrate the trial court abused its considerable discretion in admitting the evidence. Furthermore, admission of Jamie's testimony did not violate Hughey's right to due process under the Fourteenth Amendment to the United States Constitution. (See Falsetta, supra, 21 Cal.4th at p. 913.) B. Constitutionality of Section 1108 and CALCRIM No. 1191
Hughey also argues that section 1108 and CALCRIM No. 1191 are unconstitutional because they permit the use of propensity evidence in violation of a defendant's federal due process rights. In Falsetta, supra, 21 Cal.4th at page 922, our Supreme Court rejected a similar due process challenge to section 1108. Hughey acknowledges Falsetta forecloses his claim and the issue is raised only to preserve his rights for federal habeas corpus review.
The jury was instructed, pursuant to CALCRIM No. 1191A: "The People presented evidence that the defendant committed the crime of felony sexual battery that was not charged in this case. The crime is defined for you in these instructions. [¶] You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant in fact committed the uncharged offense. Proof by a preponderance of the evidence is a different burden of proof from proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true. [¶] If the People have not met this burden of proof, you must disregard this evidence entirely. [¶] If you decide that the defendant committed the uncharged offense, you may, but are not required to, conclude from that evidence that the defendant was disposed or inclined to commit sexual offenses, and based on that decision, also conclude that the defendant was likely to commit and did commit, as charged here. If you conclude that the defendant committed the uncharged offense, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty [of the charges]. The People must still prove the charge[s] beyond a reasonable doubt." (Italics added.)
Hughey also argues the jury instruction on consideration of uncharged sexual offense evidence, CALCRIM No. 1191, diluted the People's burden of proof and might have mislead the jury into believing it could convict him of the charged offenses based only on a preponderance of the evidence. This argument has also been addressed and rejected in binding Supreme Court precedent. (Reliford, supra, 29 Cal.4th at pp. 1012-1016 [addressing a substantively similar instruction, CALJIC No. 2.50.01]; see People v. Cromp (2007) 153 Cal.App.4th 476, 480 [addressing CALCRIM No. 1191]; People v. Schnabel (2007) 150 Cal.App.4th 83, 87 [same].)
In a related argument, Hughey contends Reliford is not controlling here because it did not "address the question of whether the rules governing circumstantial evidence required the other crime to be proved beyond a reasonable doubt, instead of preponderance of the evidence." He points to the general rule for the jury's use of circumstantial evidence to establish guilt, which provides: "Before you may rely on circumstantial evidence to conclude that a fact necessary to find the defendant guilty has been proved, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt. [¶] Also, before you may rely on circumstantial evidence to find the defendant guilty, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant is guilty. If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions points to innocence and another to guilt, you must accept the one that points to innocence. However, when considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable."
The jury was instructed with CALCRIM No. 225, which expresses the same rule for proving intent or mental state by circumstantial evidence.
Hughey's ultimate position—that the jury instructions on circumstantial evidence require uncharged offenses be proven beyond a reasonable doubt before they may be considered inferentially, with the other evidence, to establish any ultimate fact—is contrary to additional established Supreme Court precedent. (People v. Virgil (2011) 51 Cal.4th 1210 1259-1260; People v. Medina (1995) 11 Cal.4th 694, 763 ["we have long held that 'during the guilt trial evidence of other crimes may be proved by a preponderance of the evidence' "].) "When the People bear the burden of proof of a fact deemed to lie outside the direct chain of proof of an accused's guilt of the crime charged, they are not required to prove that fact beyond a reasonable doubt." (People v. Tewksbury (1976) 15 Cal.3d 953, 965, fn. 12.)
We are compelled to follow the directions of our Supreme Court and reject Hughey's constitutional arguments. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) We will presume that "jurors can grasp their duty—as stated in the instructions—to apply the preponderance-of-the-evidence standard to the preliminary fact identified in the instruction and to apply the reasonable-doubt standard for all other determinations." (Reliford, supra, 29 Cal.4th at p. 1016.) C. Parole Status/GPS Evidence
Hughey also argues the trial court should have excluded or limited the GPS evidence, under section 352, as unduly prejudicial. We review the trial court's decision for abuse of discretion. (People v. Fuiava, supra, 53 Cal.4th at p. 663.)
The prosecutor moved in limine to admit evidence from Hughey's GPS ankle monitor, arguing it was relevant to show when Hughey entered Katie's and K.K.'s room. Hughey opposed the motion, arguing under section 352 that the evidence was inflammatory, cumulative, and unduly prejudicial, given "[t]here's no dispute that he was there." Defense counsel offered to stipulate that Hughey was "around [the hotel] area from 1:54 to 4:04." Although the trial court was initially inclined to exclude the evidence from the People's case in chief as unduly prejudicial, the trial court ultimately admitted the evidence. At the conclusion of a section 402 hearing, the trial court explained: "A weighing of the probative value of this evidence and the prejudice to [Hughey] has been considered by me. There's no question the GPS evidence is relevant. It demonstrates [Hughey] was within 30 feet of the where the alleged assault took place for approximately 30 minutes prior to the alleged crimes. [¶] . . . The demonstrative of the exhibit certainly provides more information than a stipulation [Hughey] was in the area during the time period at issue. The issue of undue prejudice to [Hughey] by the jury being informed of [his] parole status is my main concern in admitting the GPS evidence, but since the jurors will already be receiving evidence of [his] prior conviction from 2013 for [sexual battery by restraint], the fact [Hughey] is on parole for said offense is a logical conclusion for the jurors to reach." In response to defense counsel's argument that it was unduly prejudicial to admit evidence that Gilbert supervised registered sex offenders, the trial court ordered the evidence "sanitized" to omit that information.
We agree with the People and trial court that the GPS evidence was relevant because it showed Hughey was the man in Katie's and K.K.'s room. Of course, other evidence also tended to show this fact. However, "evidence does not become irrelevant simply because other evidence may establish the same point." (People v. Smithey (1999) 20 Cal.4th 936, 973-974; accord, People v. McKinnon (2011) 52 Cal.4th 610, 669 [" '[e]vidence that is identical in subject matter to other evidence should not be excluded as "cumulative" when it has greater evidentiary weight or probative value' "].) The GPS evidence also corroborated other evidence that Hughey was in Katie's and K.K.'s room for 30 minutes before Katie awoke, contradicting Hughey's explanation that he only entered the room to use the restroom.
On appeal, Hughey concedes it was relevant "that GPS placed [Hughey] on the hotel property at the relevant times." However, he asserts the trial court should have excluded, as irrelevant, "the background information that [Hughey] was required to wear a GPS monitor as a result of his parole for the 2013 sex crime(s)." He asserts this latter evidence was "highly inflammatory" and more prejudicial than probative because it "implied he was a very dangerous sex offender, a sexual predator, and a person who had to be constantly monitored by law enforcement because of his dangerousness."
The fact Hughey was on parole for a 2013 sex crime may have been unduly prejudicial in a different case. But given the admission of Jamie's testimony under section 1108, the evidence can hardly be characterized as inflammatory here. We agree with the trial court that the jury could have logically inferred from the uncharged evidence alone that Hughey was on parole at the time of the charged offenses. Given that the jury would otherwise know Hughey had pleaded guilty to sexual battery, and would hear Jamie's testimony regarding Hughey's offenses against her, we are unpersuaded that any additional prejudice was risked by admitting the comparatively benign evidence that Hughey was on parole and being monitored by GPS in July 2016.
In People v. Fuiava, supra, 53 Cal.4th 622, our Supreme Court affirmed the trial court's decision to admit evidence the defendant was on parole at the time he shot a police officer, as it was highly relevant to motive. (Id. at pp. 666-669.) Because the trial court took actions to limit the undue prejudicial effect of the evidence—by instructing the jury it would be improper to consider for propensity—and the evidence had significant probative value, the trial court's ruling was not an abuse of its discretion. (Id. at pp. 669-670.)
Here, too, the trial court made efforts to sanitize the evidence. The jury was told Hughey wore the GPS ankle monitor solely as a result of his release on parole for his 2013 sexual battery conviction, from which it was already entitled to infer Hughey's disposition to commit sex offenses. Nothing in the record supports Hughey's assertion the jury would infer, from his parole status, that Hughey was a registered sex offender. The parole agent did not testify that Hughey was a registered sex offender, that the parole agent supervised such offenders, or suggest Hughey was at high risk for reoffending.
In any event, even if we were to assume the GPS evidence should have been excluded, Hughey has not established prejudicial error under People v. Watson (1956) 46 Cal.2d 818, 836. On this record, which shows the evidence of Hughey's guilt to be overwhelming, there is no reasonable probability the jury's verdict could have been affected by learning Hughey was on parole. D. Unanimity Instruction
Hughey maintains the trial court erred by failing to instruct on unanimity with respect to count one. His argument is premised on the fact the trial court instructed the jury, pursuant to CALCRIM Nos. 890, 1003, and 1048, that it could convict Hughey of count one if it found Hughey committed assault and "[w]hen [Hughey] acted, he intended to commit rape or sexual penetration with a foreign object." The jury returned a general verdict on count one that does not indicate which of the alternative theories the jury believed. Hughey complains the trial court was required to instruct the jury it must unanimously decide on one of the alternative theories.
Hughey's argument is contrary to established law. "Defendants in criminal cases have a constitutional right to a unanimous jury verdict. [Citation.] From this constitutional principle, courts have derived the requirement that if one criminal act is charged, but the evidence tends to show the commission of more than one such act, 'either the prosecution must elect the specific act relied upon to prove the charge to the jury, or the court must instruct the jury that it must unanimously agree that the defendant committed the same specific criminal act.' " (People v. Napoles (2002) 104 Cal.App.4th 108, 114, italics omitted; see Cal. Const., art. I, § 16.)
Even if a unanimity instruction is not requested, the trial court has a duty to give the instruction whenever the evidence warrants it. (People v. Riel (2000) 22 Cal.4th 1153, 1199; People v. Carrera (1989) 49 Cal.3d 291, 311, fn. 8.)
"On the other hand, where the evidence shows only a single discrete crime but leaves room for disagreement as to exactly how that crime was committed . . . , the jury need not unanimously agree on the basis or, as the cases often put it, the 'theory' whereby the defendant is guilty." (People v. Russo (2001) 25 Cal.4th 1124, 1132.) The unanimity requirement " 'is intended to eliminate the danger that the defendant will be convicted even though there is no single offense which all the jurors agree the defendant committed.' " (Ibid.) "But unanimity as to exactly how the crime was committed is not required. Thus, the unanimity instruction is appropriate ' when conviction on a single count could be based on two or more discrete criminal events,' but not 'where multiple theories or acts may form the basis of a guilty verdict on one discrete criminal event.' [Citation.] In deciding whether to give the instruction, the trial court must ask whether (1) there is a risk the jury may divide on two discrete crimes and not agree on any particular crime, or (2) the evidence merely presents the possibility the jury may divide, or be uncertain, as to the exact way the defendant is guilty of a single discrete crime. In the first situation, but not the second, it should give the unanimity instruction." (Id. at p. 1135.)
"The crime of burglary provides a good illustration of the difference between discrete crimes, which require a unanimity instruction, and theories of the case, which do not. Burglary requires an entry with a specified intent. (Pen. Code, § 459.) If the evidence showed two different entries with burglarious intent, for example, one of a house on Elm Street on Tuesday and another of a house on Maple Street on Wednesday, the jury would have to unanimously find the defendant guilty of at least one of those acts. If, however, the evidence showed a single entry, but possible uncertainty as to the exact burglarious intent, that uncertainty would involve only the theory of the case and not require the unanimity instruction. [Citation.] Other typical examples include the rule that, to convict a defendant of first degree murder, the jury must unanimously agree on guilt of a specific murder but need not agree on a theory of premeditation or felony murder [citation], and the rule that the jury need not agree on whether the defendant was guilty as the direct perpetrator or as an aider and abettor as long as it agreed on a specific crime [citation]." (People v. Russo, supra, 25 Cal.4th at pp. 1132-1133.)
We agree with the People that there was only a single discrete criminal event in this case—the assault of Katie on July 14, 2016—regardless of which sex act Hughey intended to commit. The jury was not required to agree unanimously on which precise sex act Hughey intended to commit against Katie. Whether he intended to rape Katie or sexually penetrate her only concerns "the exact way [Hughey] is guilty of a single discrete crime." (People v. Russo, supra, 25 Cal.4th at p. 1135.) No unanimity instruction is required " 'where multiple theories or acts may form the basis of a guilty verdict on one discrete criminal event.' " (Ibid.; People v. Datt (2010) 185 Cal.App.4th 942, 949-951.) The trial court did not err by omitting a unanimity instruction. E. Cumulative Error
Hughey also argues the cumulative effect of trial errors requires reversal of the judgment. "[A] series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error." (People v. Hill (1998) 17 Cal.4th 800, 844.) However, we have rejected all of Hughey's arguments on the merits. F. Substantial Evidence to Support Sexual Battery by Restraint Conviction
With respect to his conviction on count five (sexual battery by restraint), Hughey maintains insufficient evidence supports the "unlawful restraint" element. When faced with a substantial evidence challenge, we "must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578; accord, Jackson v. Virginia (1979) 443 U.S. 307, 318-319.) "A reviewing court must accept logical inferences the [fact finder] might have drawn from the circumstantial evidence. [Citation.] ' "A reasonable inference, however, 'may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work. [¶] . . . A finding of fact must be an inference drawn from evidence rather than . . . a mere speculation as to probabilities without evidence.' " ' " (People v. Sifuentes (2011) 195 Cal.App.4th 1410, 1416-1417.)
Nor is substantial evidence synonymous with any evidence. (People v. Superior Court (Jones) (1998) 18 Cal.4th 667, 681, fn. 3.) However, "the direct testimony of a single witness is sufficient to support a finding unless the testimony is physically impossible or its falsity is apparent 'without resorting to inferences or deductions.' [Citations.] Except in these rare instances of demonstrable falsity, doubts about the credibility of the in-court witness should be left for the [fact finder]'s resolution . . . ." (People v. Cudjo (1993) 6 Cal.4th 585, 608-609.) "Reversal on this ground is unwarranted unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].' " (People v. Bolin (1998) 18 Cal.4th 297, 331.)
Penal Code section 243.4, subdivision (a), provides, in relevant part: "Any person who touches an intimate part of another person while that person is unlawfully restrained by the accused or an accomplice, and if the touching is against the will of the person touched and is for the purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of sexual battery." (Italics added.) " 'Intimate part' means the sexual organ, anus, groin, or buttocks of any person, and the breast of a female." (Id., § 243.4, subd. (g)(1).)
"Prior to enactment of [Penal Code] section 243.4, sexually abusive conduct could only be prosecuted as a felony if the assailant assaulted the person with the specific intent to commit rape, sodomy, oral copulation, or any violation of section 264.1 (rape in concert with another), 288 (lascivious acts upon a child) or 289 (penetration of genitals or anus with foreign object). (§ 220.) Absent one of the specific intents, the crime was either misdemeanor assault or misdemeanor battery. (§§ 241 and 243.) The purpose of [section 243.4] was to provide appropriate punishment for sexually abusive conduct which falls short of a violation of section 220 but which is nonetheless 'physically traumatic and psychologically terrifying.' (Sen. Republican Caucus Bill Dig., Assem. Bill No. 2721 (Aug. 12, 1982).) Accordingly, the statute allows for felony prosecution when a touching occurs while the person is unlawfully restrained and against the person's will and is committed for a sexual purpose." (People v. Alford (1991) 235 Cal.App.3d 799, 803.)
Hughey contends substantial evidence does not support the jury's implicit finding he unlawfully restrained Katie while touching an intimate part of her body. Specifically, he asserts his conviction is unsupported because there is no evidence he "physically restrain[ed] Katie in any manner." (Italics added.) Unlawful restraint is not defined by the statute. (Pen. Code, § 243.4, subd. (g).) However, case law has made clear "a person is unlawfully restrained when his or her liberty is being controlled by words, acts or authority of the perpetrator aimed at depriving the person's liberty, and such restriction is against the person's will." (People v. Arnold (1992) 6 Cal.App.4th 18, 28 (Arnold).) The restraint must be something more than the exertion of physical effort necessary to accomplish the sexual act. (Ibid.; People v. Pahl (1991) 226 Cal.App.3d 1651, 1661, citing State v. Schenck (La. 1987) 513 So.2d 1159.) However, the courts have also recognized that this "something more" need not be physical in nature and " ' "may be accomplished by words or acts." ' " (People v. Grant (1992) 8 Cal.App.4th 1105, 1112 (Grant).)
It is helpful to begin by reviewing State v. Schenck, supra, 513 So.2d 1159, which examined a similar statute and was relied on by People v. Pahl, supra, 226 Cal.App.3d at page 1661, in defining the unlawful restraint required for a violation of section 243.4. In Schenck, the victim was leaving a Mardi Gras parade when the defendant jumped from behind a tree, grabbed her by the hips from behind, rubbed himself against her, and touched her between the legs. It was "a momentary event" that ended almost immediately because the victim threw her elbow into the defendant and cried out, "Pervert," which prompted the defendant to flee. (Schenck, at p. 1160.) The question before the Louisiana Supreme Court, like that presented here, was whether sufficient evidence existed to establish the victim's compelled submission to the proscribed sexual conduct. (Id. at pp. 1160, 1162.) The Schenck court concluded that "sexual battery requires something more than the simple forceful touching required to prove battery; [it requires] a showing that the victim was compelled to submit to the sexual touching." (Id. at p. 1163.) The evidence of compulsion was deemed insufficient in Schenck because, although the victim "may have frozen momentarily and been startled, . . . she did not submit. As soon as she could determine what to do, she elbowed the defendant and caused termination of the encounter." (Ibid., italics added.)
In Grant, the defendant approached a teenage girl and her boyfriend, who were in a car parked on private property. The defendant said he worked for the property owners and claimed to be investigating vandalism complaints. (Grant, supra, 8 Cal.App.4th at p. 1108.) He grabbed the victim by the arm and removed her from the car. He then released her arm, told her to accompany him to the back of his vehicle, while ordering the victim's boyfriend to remain in the other car. While she was separated from her boyfriend, the defendant made a number of sexual remarks, told her she "would get in trouble" if she did not cooperate, fondled her breasts, and placed his hands inside her pants. The girl felt unable to do anything because she believed the defendant was an authority figure. (Ibid.)
The reviewing court rejected the defendant's argument that physical restraint at the time of the touching was required to prove unlawful restraint. (Grant, supra, 8 Cal.App.4th at pp. 1109-1111.) "There are many situations where one is compelled, i.e., forced, to do something against one's will but the compulsion does not involve personal violence or threats of personal violence. This is especially true when the person involved in the compulsion is an authority figure or posing as a person in authority. The force is a psychological force compelling the victim to comply with the orders of the authority figure." (Id. at p. 1112.) The victim's liberty was unlawfully restrained because the defendant's words, acts, and apparent authority "forced [the victim] to remain where she did not voluntarily wish to be." (Id. at p. 1113.)
In Arnold, supra, 6 Cal.App.4th 18, the defendant was a high school teacher and coach. The victim was a 17-year-old student, who was infatuated with the defendant. On one occasion, charged as count six, the defendant called the victim into an unoccupied room, closed the door behind her, and braced the door with a mat so it could not be opened. Despite her obvious efforts to move away, the defendant directed the victim to come to him, and she complied. He then put his hands down her shirt, touching her breast underneath her bra. She pushed the defendant away and left through a different door. (Id. at pp. 22-23.)
On appeal, the reviewing court concluded the evidence on count six was sufficient to support the conviction for sexual battery by restraint. (Arnold, supra, 6 Cal.App.4th at p. 31.) Substantial evidence showed the defendant did "something more," beyond the restraint inherent in the acts necessary to accomplish the touching itself. The court concluded: "The combination of the exclusion of others and the blockage of a main avenue of escape certainly had a tendency to increase [the victim]'s isolation and feelings of isolation. While in this isolated area, [the victim] walked to the other side of the room, away from defendant. Defendant asked her why she was afraid of him. Thus, defendant was aware of [the victim's] fear. In addition, defendant was [the victim's] teacher, an authority figure, and [the victim] was a minor. Acting upon this authority, isolation and fear, defendant called [the victim] to him and engaged in the prohibited sexual touching. A reasonable jury could have concluded that the coercive atmosphere created by defendant was such that [the victim's] liberty was being controlled by defendant's words, acts and authority against her will and that she was unlawfully restrained." (Ibid.)
Hughey claims the facts regarding unlawful restraint in the present case are significantly weaker than those presented in Arnold or Grant. Unlike the circumstances presented in Arnold and Grant, Hughey had no actual or apparent authority as a teacher or as any other authority figure. However, the circumstances in which Hughey's touching of Katie occurred were nevertheless just as, if not more, psychologically coercive. The facts are not analogous to those presented in State v. Schenck, supra, 513 So.2d at page 1163. A reasonable jury could conclude Hughey's words and acts compelled Katie to submit to Hughey's touching against her will.
Contrary to Hughey's assertion, this case does not come down to a simple question of whether his act of "shushing" Katie was sufficient on its own to constitute restraint. Hughey's act of "shushing" Katie is critical because it is analogous to the teacher's question in Arnold regarding the victim's fear. It suggests Hughey knew Katie was awake and that she was afraid. (Arnold, supra, 6 Cal.App.4th at p. 29.) But the context created by Hughey's other actions is also important. Here, in addition to the shushing, Hughey, who was a stranger to Katie, had furtively entered her hotel room without permission in the middle of the night, rifled through her belongings, and then touched Katie's vagina and leg while she slept. We need not decide whether the initial touching of Katie's leg and vagina constituted sexual battery by restraint. It was after Hughey had begun touching Katie's vagina that she woke up, opened her eyes, and saw a stranger's face less than a foot away. At this point, Hughey told her to "be quiet" and "shushed" her, placing his finger to his lips. Katie testified that she froze (felt like she could not speak or move) and Hughey continued to touch her, for some period of time between five and 30 seconds, after he "shushed" her.
Hughey's acts and words, taken together, were psychologically coercive. We have no doubt Katie was rightfully terrified by the presence of an uninvited stranger in her hotel room in the middle of the night. It is reasonable to infer that Hughey's acts and words were aimed at restraining Katie from moving or screaming and they were, for some period of time, successful. It was only after five to 30 seconds had passed that Katie was able to move away from Hughey and wake her fiancé. A reasonable jury could infer that, during the intervening period, Katie was immobilized by Hughey's words and acts and this allowed Hughey to continue touching Katie's vagina against her will. Hughey's words and acts were "something more . . . than the mere exertion of physical effort necessary to commit the prohibited sexual act." (People v. Pahl, supra, 226 Cal.App.3d at p. 1661.) Substantial evidence supports the jury's implicit finding that Hughey used words and acts aimed at constraining Katie's freedom of movement so that he could touch her against her will. (Arnold, supra, 6 Cal.App.4th at p. 28 ["a person is unlawfully restrained when his or her liberty is being controlled by words, acts or authority of the perpetrator aimed at depriving the person's liberty, and such restriction is against the person's will"].)
We emphasize that our holding is limited to the totality of the facts before us. We do not mean to suggest that any one of Hughey's acts or words alone would necessarily be sufficient to establish unlawful restraint.
The evidence is sufficient to support Hughey's conviction for sexual battery by restraint. G. Count Three is a Lesser Included Offense of Count One
Finally, Hughey argues his conviction for first degree burglary (count three) must be reversed because it is a lesser included offense of assault with intent to commit a sex offense during the commission of first degree burglary (count one). The People concede that this point is well taken. We agree. (See People v. Reed (2006) 38 Cal.4th 1224, 1227 ["[a] judicially created exception to the general rule permitting multiple conviction 'prohibits multiple convictions based on necessarily included offenses' "].) "When a defendant is found guilty of both a greater and a necessarily lesser included offense arising out of the same act or course of conduct, and the evidence supports the verdict on the greater offense, that conviction is controlling, and the conviction of the lesser offense must be reversed." (People v. Sanders (2012) 55 Cal.4th 731, 736.)
Here, Penal Code section 220, subdivision (b), makes plain that all of the statutory elements of first degree burglary are contained within the greater offense. (Ibid. ["[a]ny person who, in the commission of a burglary of the first degree, as defined in subdivision (a) of Section 460, assaults another with intent to commit rape, sodomy, oral copulation, or any violation of Section 264.1, 288, or 289 shall be punished by imprisonment in the state prison for life with the possibility of parole" (italics added)]; People v. Dyser (2012) 202 Cal.App.4th 1015, 1021.) One cannot commit assault with intent to commit a sex offense during commission of first degree burglary without also committing first degree burglary. (Dyser, at p. 1021.) Thus, count three is necessarily included in count one. Hughey's conviction for first degree burglary (count three) must be reversed and dismissed.
III. DISPOSITION
The judgment is modified to dismiss count three as a lesser included offense of count one. As so modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment omitting count three. The trial court shall forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
/s/_________
BRUINIERS, J. WE CONCUR: /s/_________
JONES, P. J. /s/_________
SIMONS, J.