APPEAL from a judgment of the Superior Court of San Diego County, Margie G. Woods, Judge. Affirmed. (Super. Ct. No. SCD208191).
The opinion of the court was delivered by: McINTYRE, J.
CERTIFIED FOR PUBLICATION
A jury convicted 21-year-old Carlos Morales Hernandez of sodomy and rape, and as to both counts found true the special allegations that he: (1) committed the crimes during the commission of a burglary with the intent to commit a sex crime; (2) personally used a dangerous and deadly weapon; and (3) used a deadly weapon. The trial court sentenced Hernandez to 50 years to life, plus a consecutive 8-year term.
Hernandez argues that he is entitled to a new trial because the court erred in failing to instruct the jury on his theory of the defense, specifically, his reasonable but mistaken belief that the victim consented, and that the jury was required to unanimously agree on the elements triggering the life sentences under the One Strike Law, Penal Code section 667.61. (Undesignated statutory references are to the Penal Code.) Following oral argument, we requested and received supplemental briefing on the requirements for pleading the burglary circumstance under section 667.61, subdivisions (a) and (d)(4). We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The victim was the main witness for the prosecution. She lived in a one-bedroom cottage with her two-year-old daughter. The victim had seen Hernandez two or three times at church where he was introduced as "Carlos." She had also seen Hernandez in her neighborhood, but had no direct contact with him.
On August 4, 2007, the victim returned home from work around 7:00 p.m. and began cooking dinner for her daughter's father, Rufino Perez. After dinner, Perez stayed to talk. The victim fell asleep on the bed with her daughter. She testified that Perez always locked the outside door when he left.
A noise awakened the victim early the following morning. She saw a shadow and demanded, "Who's there?" A person moved toward her saying, "Be quiet. I'm Carlos." She recognized the voice and face as belonging to Hernandez. The victim reached for her cellular and land-line phones which were on a table next to the bed. Hernandez grabbed the phones and threw them aside saying, "Don't try it."
Hernandez told the victim "that he had killed and he was fleeing . . . from the police because he had killed a policeman." Thinking that Hernandez wanted help, the victim indicated that he could stay on the sofa in the living room. However, Hernandez said that he "wanted to be with" her. The victim was unsure what Hernandez wanted until he started to touch her feet and legs. At that point, she realized that Hernandez was trying to talk her into having sex with him. Hernandez was carrying a two-foot-long metal object later described by Hernandez as an exercise bar. She also testified that Hernandez stunk of alcohol. The victim was afraid for herself and her daughter.
Hernandez repeated his demand that the victim let him be with her "just once," and she asked him to respect her. She attempted to cover herself with the blankets and cross her feet, which angered Hernandez. He gave her ten minutes to give in and let him have sex with her or "something bad was going to happen." Hernandez held the metal object near his chest. Meanwhile, the victim's daughter woke up and moved toward the victim to nurse. She covered her daughter so she could not see Hernandez.
The victim's daughter began to cry. Hernandez initially refused to let the victim prepare a bottle for the child, then grabbed the victim and took her to the kitchen. Hernandez repeatedly told the victim to keep her daughter quiet. Finally the victim said, "Let me give her a bottle and then do whatever you want with me." The victim thought that Hernandez was going to hurt her or her daughter and therefore believed she had no choice.
They returned to the bedroom and the victim gave her daughter the bottle. Hernandez would not leave her alone, played with her body and took off her panties. While the victim tried to quiet the child, Hernandez sodomized her.
Hernandez turned the victim on her back, but she got on the floor so her daughter could not see what was happening. The victim felt the metal rod on the floor and pushed it farther under the bed. Hernandez lost his erection and was unable to penetrate the victim's vagina. In frustration, he hit the floor next to the victim's face. Hernandez tried to suck the victim's breasts, but she asked him not to do it because her daughter was still breastfeeding. At trial, the victim had trouble remembering whether Hernandez was able to penetrate her vagina or ejaculated in her genital area, but testified that "yes, he did put it in."
After ejaculating, Hernandez got off the victim and said, "Forgive me. Forgive me. . . . I don't know why I came here to do that." He also told her that something bad would happen if she called ...