(Super. Ct. No. P08CRF0371)
The opinion of the court was delivered by: Butz, J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Before the start of trial testimony, defendant Clayton J. Webb entered guilty pleas to orally copulating a 14-year-old boy in 2007 (three counts), using him as a sex model, possessing child pornography, and violating a restraining order protecting the minor and defendant's now former girlfriend (three misdemeanor counts). At the conclusion of trial, a jury convicted him of forcible oral copulation with the minor, providing the minor with various controlled substances (four counts), making criminal threats and dissuading a witness (both involving the former girlfriend), an additional count of possessing child pornography, and six counts of molestation of a second victim (a 13-year-old boy). The trial court sentenced defendant to 35 years four months in state prison, limiting his pretrial conduct credits to 15 percent of his actual custody. (Pen. Code, §§ 2933.1*fn1  [imposing this limitation notwithstanding any other provision of law if conviction is for violent felony], 667.5, subd. (c)(5) & (6) [designating lewd acts with a child and forcible oral copulation as violent felonies].)
On appeal, defendant argues his convictions for molesting the second victim are insufficient as a matter of law because he did not himself touch the victim nor instigate a third party to touch the victim, and did not coerce the victim to touch himself. Regarding instructions, he contends the admonition that a victim of a sex crime does not need to be corroborated resulted in the jury according special deference to the victim's credibility because it appeared right after instructions on credibility; the jury could have interpreted the instruction on criminal threats to include his threats of suicide; and the lack of a unanimity instruction made it possible that the jury might have failed to agree on the acts underlying the drug convictions and the conviction for criminal threats. Finally, he maintains that a full consecutive sentence for forcible oral copulation was unauthorized. The People properly concede the latter point. We shall modify accordingly and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The parties give lengthy accounts of the trial testimony, including the extensive skein of events from the uncovering of defendant's wrongdoing to his arrest. We include only those facts essential to defendant's arguments and omit the remainder from the opinion.
Offenses Involving the First Minor Victim
Defendant was born in November 1987. The first minor victim, Stephen R. (hereafter Stephen), was born in January 1993. Defendant, a family friend, and Stephen first met in 1999 or 2000 when Stephen was six or seven, and defendant began to baby-sit him. In 2001 or 2002, defendant asked if he could "give [Stephen] a blow job." Stephen was not familiar with the term, but he could tell it had a sexual connotation and he declined. Nothing physical occurred between them. Defendant moved into his own apartment with his girlfriend in 2005, and Stephen lost contact with him.
In July 2007, defendant and his girlfriend moved to a house near defendant's mother. Around the time of a trip he took to Yosemite in September 2007, Stephen reestablished contact with defendant. Stephen soon felt that defendant had become his best friend.
Defendant began to urge Stephen repeatedly to join him in a masturbation "contest" to see who could ejaculate faster. Shortly after the Yosemite trip, Stephen eventually agreed because defendant would get mad at his repeated refusals. The first occasion was in the garage; Stephen recalled that B.W. (the second minor victim) was also present. The three sat next to each other on a platform watching heterosexual pornography on a television while they masturbated. Stephen noticed out of the corner of his eye that defendant was watching him rather than the television. After the first time, this activity took place every other day in various rooms in the house when defendant's girlfriend was away, or at defendant's place of business (Hemp Magic). B.W. joined them a few more times.
After a couple of months, defendant began asking again if Stephen would let defendant fellate him. Stephen kept declining the request until defendant offered him drugs as an inducement. The first time, defendant offered him a freezer bag's worth of marijuana, and Stephen allowed defendant to fellate him while he sat in a chair in the back room of Hemp Magic. The second time was a few weeks later, but ultimately there were more occasions than Stephen could count, every other week. In addition to marijuana, defendant gave him Ecstasy, "acid," methamphetamine, and maybe morphine. Although defendant also asked Stephen to fellate or sodomize him, Stephen refused to do so. On one occasion, defendant apparently videotaped one of their sexual encounters without Stephen's knowledge at Hemp Magic. Stephen believed this must have been just before Christmas 2007, based on the jacket he was wearing in the video.
In May 2008, Stephen moved in with defendant and the girlfriend. He did not think it was worth it any longer to accept drugs in exchange for being defendant's unwilling sex partner, and began to refuse defendant. Defendant accordingly started forcing Stephen to comply, yanking down the latter's pants, pushing him into a chair, and fellating him while pinning down his forearms. Stephen submitted because defendant was always physically dominating him, making him feel "small and worthless." He would feel ashamed afterward.
Offenses Involving the Second Minor Victim
B.W., the second minor victim, was born in July 1994, and is the younger brother of defendant's girlfriend. When defendant met his girlfriend, B.W. felt that defendant became the "[b]est friend [he] ever had." B.W. would visit defendant at his home once a week, watching television or playing games, and sometimes would stay for the weekend. In August 2007, defendant broached the subject of masturbation contests, telling B.W. that he had done this with a couple of friends in high school. They were in the defendant's living room, and masturbated while watching pornography. A couple of days later, defendant asked B.W. to join in another contest, and B.W. agreed. There were more of these incidents than he could count in various sites in the house and down by the river. They stopped in December 2007 because B.W. was ...