Defendant Theodore Soria appeals following jury verdicts finding him guilty of rape of an unconscious person (Pen. Code, § 261, subd. (a)(4) (count one)) and rape of an intoxicated person (§ 261, subd. (a)(3) (count two)). Defendant admitted habitual criminal prior serious felony and strike conviction allegations (§§667, subds. (a)-(i), 1170.12). Defendant was sentenced to a total aggregate term of 11 years. In sentencing defendant, the trial court imposed sentence on count two, but stayed execution of that sentence.
On appeal, defendant originally argued that conviction on one of the two counts must be stricken because both counts are based on a single act of intercourse with the victim. The People originally agreed that defendant could not be convicted of two counts, but argued the correct procedure is to consolidate the counts. We agreed. However, the People requested rehearing subsequent to the filing of our original opinion, contending that People v. Gonzalez (2014) 60 Cal.4th 533 [179 Cal.Rptr.3d 1, 335 P.3d 1083] (Gonzalez), compels a different result. The People now contend that defendant can be convicted of two counts and that the counts should not be consolidated or stricken. Defendant, on the other hand, agreed that the counts should be consolidated after we granted rehearing, but after the publication of People v. White (2015) 237 Cal.App.4th 1087 [188 Cal.Rptr.3d 594] (White), once again contends one count should be stricken.
Defendant also argues the DNA evidence was unreliable and should not have been admitted, trial counsel provided ineffective assistance of counsel by failing to object to the DNA evidence, the trial court erred in giving a jury instruction on adoptive admissions, and the court abused its discretion in denying his motion to strike the prior strike conviction (§ 1385, subd. (a)). The People ask that we modify the judgment to include $70 in mandatory fees and assessments not imposed at sentencing.
In the published portion of this opinion, we conclude that the trial court erred by staying the sentence on one of the rape counts, and hold that defendant’s convictions for rape of an intoxicated person and rape of an unconscious person must be consolidated into a single count reflecting rape under both subdivision (a)(3) and (4) of section 261.
In the unpublished portions of this opinion, we conclude that defendant forfeited his objection to the DNA evidence, and in any event that evidence was admissible and defense counsel did not provide ineffective assistance of counsel by not objecting to the DNA evidence. We further conclude that the trial court did not err in instructing on adoptive admissions and did not abuse its discretion when it refused to dismiss the strike allegation. We modify the judgment to order imposition of mandatory fees and assessments not imposed by the trial court.
We otherwise affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
A second amended information filed in August 2011 charged defendant with a count of rape of an unconscious person (§ 261, subd. (a)(4) (count one)), and a count of rape of an intoxicated person (§ 261, subd. (a)(3) (count two)). The pleading also alleged a prior conviction as a strike offense (§§ 667, subds. (b)-(i), 1170.12) and a five-year habitual criminal sentencing enhancement (§ 667, subd. (a)).
A first trial resulted in a mistrial when the jury deadlocked on both counts.
On Saturday, November 28, 2009, around 8:00 or 9:00 p.m., the 44-year-old defendant was home, drinking beer, and playing video games, when his son Theo brought home three friends and a large bottle of vodka. The group of fourall of whom were about 20 years oldconsisted of defendant’s son, the son’s new girlfriend, Karolyn Hawley, the son’s friend, Heriberto Corral (“Beto”), and Beto’s girlfriend, J.W., who is the victim. They planned to get drunk. They started drinking the vodka with juice or soda in the son’s bedroom. Defendant stayed in the living room, but someone brought him some vodka. The four young people mainly stayed in the son’s bedroom but came out on occasion. For example, the victim came out for ice and Karolyn smoked marijuana with defendant in the living room. The victim did not smoke any marijuana.
The victim, who liked to get drunk and had previously blacked out from binge-drinking, drank four or five drinks, got drunk and dizzy, and vomited in
the bathroom. Beto and Karolyn helped the victim to the bedroom of defendant’s daughter, Sophia, who had come home earlier but left to sleep at a friend’s house. The victim vomited in Sophia’s bedroom, perhaps in a garbage can. Karolyn testified that she asked defendant for a “ratty shirt that he didn’t really care about that she could sleep in.” The reason she asked for the shirt was because she thought it would be uncomfortable for the victim to sleep in her clothes, but she told defendant she wanted the shirt for the victim because “she was sick.” According to Karolyn, defendant went to his room, obtained a black shirt, and gave it to her. Karolyn brought the shirt to the victim in Sophia’s room, said to change into it, and left the room. The victim fell asleep or passed out on top of the bedcovers, fully clothed. Karolyn and defendant’s son fell asleep around midnight in the son’s room. Beto stayed up playing a video game with defendant.
Around 2:30 or 3:00 a.m., the victim awoke. Her vagina was sore and wet. She was under the bedcovers, wearing only her underwear. Her clothes were on the floor by the bed, as were defendant’s slippers. The victim did not see any other article of clothing that belonged to defendant in the room. The victim found Beto asleep on the living room couch. She woke him and asked if they had “messed around.” He said no. The victim became scared and said she thought defendant did something to her. The victim and Beto woke up Karolyn and defendant’s son, who said his father would not do anything sexual like that. The four talked and eventually fell asleep in the son’s room. They awoke around 11:00 a.m. and went out to eat. The victim went home and showered.
Later, the victim returned to defendant’s home to meet up with Beto. She saw defendant but did not interact with him. She saw Sophia, who was holding defendant’s shirt in her hand and asked the victim what happened. Sophia noticed hickeys on the victim’s neck. Beto said he was not responsible for the hickeys. Sophia revealed she had once been raped when drunk and that the victim should tell someone. At trial, the victim for the first time stated that Sophia said her father had “hit on” her friends in the past.
After Sophia and the victim spoke, Sophia asked defendant, in the victim’s presence, why his shirt was in her bedroom. The victim testified defendant replied he brought the shirt to the victim because she was cold. The victim had no recollection of him bringing her a shirt.
Later that night, November 29, 2009, the victim told her mother what happened after Beto said he would tell unless the victim told. The three went
to the hospital, where they spoke to a police officer who took them to UC Davis Medical Center, where the victim underwent a sexual assault examination.
The victim testified that after the night in question, she continued to visit defendant’s home until she and Beto broke up in February 2010. Defendant did not act any differently toward her during these visits.
Karolyn, who did not believe defendant would ever take advantage of a drunk woman for nonconsensual sex, testified that the defendant did not treat the victim any differently when the victim visited the house after the night in question, and the victim did not seem uncomfortable around defendant during that time. Karolyn, who had been 19 years old at the time, testified that on that night at defendant’s home, while she and defendant were smoking marijuana in the living room, she leaned over, exposing her breasts, and defendant said, “nice rack, ” which she took as a compliment. Defendant had told both the victim and Karolyn that they were pretty. Karolyn testified she broke up with defendant’s son in February 2010. She and defendant remained close platonic friends, going to the gym or lunch together or talking on the phone, but they did not talk about the case. Karolyn was not friends with the victim.
In April 2010, the victim, in the presence of a police detective, made a pretext phone call to defendant, which was tape-recorded and played for the jury. Defendant greeted her pleasantly, asked how she was, and said he had not seen her in a while. She said she was “pretty good” and wanted to ask him “[a]bout that night I was over at your house, and it was Theo, me, Beto  and Karolyn, and we were drinking within Theo’s room. I had somebody rape me, but I didn’t really know who and II mean, Iyour shirt and your slippers were in Sophia’s room, so I thoughtand I’m pretty sure that you had sex with me and I want to know why.” The following ensued:
“[Defendant]: Well, here let me sit down ‘cause this is the first I’ve heard of this. Hold on. Let me go in the other room. Hold on. Okay. I’m in shock right now. So, anyways, so what happened?
“[Victim]: WhyIwhy did you have sex with me while I was passed out?
“[Defendant]: You know, I don’t remember thatthat happening. I don’t remember that at all. And Ithis is the first I’ve heard of this, and it’sI don’t know what to say. I’m shocked and sorry to hear that.
“[Victim]: But your shirt was on the floor, on the bedroom floor by Sophia’s bed.
“[Defendant]: Is that the shirt that Sophia gave me? Because I remember Karolyn giving mecoming up to me and asking me for a shirt, and I gave her aaa black one. That’s all I remember.
“[Victim]: Oh, well, that’s the one that Ithat was on the floor as well as your slippers.
“[Defendant]: And I don’t know about my slippers and stuff. I don’t know what happened with that.
“[Victim]: I don’t know. I woke up and they were by the bed.
“[Defendant]: I don’t remember any of that. IIIall I remember is I was passed out in the living room, and Beto woke me up and he told me to get out of there, and so I went to my room and that’s all I remember.
“[Victim]: Well, I know someone had taken my clothes off because when I woke up, I didn’t have them on, and when I fell asleep, they were on.
“[Victim]: So I don’t --
“[Defendant]: I don’t know what to say other than I’m sorry. I don’t remember any of that.
“[Victim]: I don’t really remember. That’s why I was calling to ask.
“[Defendant]: I don’t remember either. I just feel bad now. I mean, I’ve always respected you and II always thought you were attractive, but I don’t remember ever carrying out anything like that.
“[Victim]: Well, I know I had sex, and I know it was you. It had to be.
“[Defendant]: I don’t remember. II would have to trust your word on that and say sorry ‘cause I don’t remember anything like that. I’m sorry, [J.]. And II really don’t remember anything like that. I justI just apologize. If I did that, then I’m sorry.”
The conversation continued in the same vein. The victim asked if defendant had used protection, and he said he did not remember any of that night, other than waking up around 5:00 or 6:00 a.m., when “you guys” left and later came back. The victim said Beto said it happened. Defendant expressed surprise and said Beto never mentioned a word to him.
The victim said she thought defendant was lying. Defendant said he was sorry she felt that way. He woke up with all his clothes on in his own bed and “I don’t know. Honestly I don’t know. I justIIif this all happened like you said, then II totally regret my actions, and I apologize whole-heartedly. I don’t remember any of that.” The conversation continued:
“[Victim]: Do you think I’m attractive?
“[Defendant]: I always have, yeah. I just wish I was more in shape and had money and stuff. I think probably I would think (unintelligible) might be a little bit different if I was to ever ask you out. But you were with Beto, so I never even thought of it. [¶] But, yeah, I’ve always thought you were attractive. Still do. I justI don’t remember anydoing anything stupid like that.”
“[Victim]: Well, why would you do that if I was passed out?
“[Defendant]: “I don’t know. I can’t explain my actions if that happened that night like that. I don’t remember. I don’t remember at all. I’m sorry. I just remember being hella drunk ‘cause I remember I was taking hits off that bottle besides drinking that beer. [¶] In fact, the last thing I remember is Beto waking me up when I was passed out on the living room floor still playing the video game. [¶]... [¶] I remember all of us drinking and stuff. And I remember Karolyn. I do remember Karolyn trying to make you smoke out of the bong. I remember that. And I remember saying, don’tyou know, don’t do it if you don’t want to. [¶] Let’s see what else I remember that night. I remember playing video games. I remember all you guys went inside Theodore’s room, and that’s about all I remember.”
The victim asked if defendant was sorry. He said, “of course I am. I don’t want it like that. I’ve always liked you and stuff, and, you know, I don’t want it to be like that. I wish I would have talked to you about this sooner. I didn’t know. I swear.” The victim asked about protection. He said he did not remember, but “if you’re worried about anything, ” he was tested in January when he got into “that other relationship” and was “totally clean.”
After more of the same equivocal apologies “if it happened, ” defendant asked why the victim was calling now. She said she had a nightmare about it. She asked:
“[Victim]: Why did you do this?
“[Defendant]: I honestly don’t know. I don’t know. Ithe only thing, like I said, is I’ve always thought you were pretty and attractive, and I’ve always liked you as a person. I’ve always respected you. I think you got your head on your shoulders, and I think Beto’s stupid. You know? That’s what I thoughtalways thought about you. I never thought about anything else like that.”
The victim said, “I need you to say you’re sorry.” Defendant said, “I am. I’m sorry. I’m sorry. I just don’t remember any of that....” The victim said she thought he was lying. Defendant said he was sorry she felt that way. The victim finally ended the call.
The victim testified she did not really remember defendant being on top of her, as she stated during the pretext call at the detective’s prompting. She was not attracted to defendant and felt “grossed out” when he said he was attracted to her.
A nurse testified she performed the sexual assault examination on the victim. The victim said she had not had intercourse within the previous five days. The nurse did not notice any bleeding, trauma, or other physical injury, but sexual assault victims commonly present without injury or trauma. Even unconscious, the body can lubricate and have a sexual response. The examination revealed nothing inconsistent with consensual sexual intercourse. The nurse did not observe any sperm on genital swabs under the microscope but forwarded them for DNA testing. However, the nurse did observe an approximately two-centimeter hickey on the victim’s neck.
A criminalist testified she detected sperm in the vaginal, cervical, and anal swabs taken from the victim. The vaginal and cervical swabs had high concentrations of sperm, while the anal swab had a low concentration, which led the criminalist to opine that the sperm from the anal swab was probably drainage from the vagina rather than evidence of sodomy.
Ryan Nickel, a criminalist with the Sacramento County District Attorney’s office, testified as a DNA expert. He analyzed a vaginal swab,  first separating a sperm fraction from the victim’s epithelial cells, which are the cells lining body cavities. Taking a small portion of the sperm fraction for DNA testing, Nickel obtained a DNA profile from it and compared it to buccal reference samples obtained from defendant, defendant’s son, and Beto. Nickel was able to exclude defendant’s son and Beto as the major profile contributor of the sperm fraction.
Nickel compared the sperm fraction with defendant’s buccal swab sample at the standard 15 locations and testified they matched at 14 locations. At one location, locus D-5, there were three alleles instead of the standard two. Two of these alleles were the same as defendant’s profile at the D-5 locus, as were the alleles at the other 14 locations. One allele at D-5 was not consistent with defendant’s profile. Thus, Nickel concluded, “[t]he major profile from the sperm fraction is the same as [defendant’s] reference profile. And the reason I said the major profile is because we have a location... at D-5 where a minor allele was detected. And I called this in my report as carryover from the [epithelial] cell fraction.... [The victim’s] profile is a 12, 12. And that is consistent with that minor allele being carried over to that sperm fraction.” Nickel explained that the differential extraction process “isn’t a 100 percent efficient process.” Carryover occurs when the sperm cells are not separated from all of the epithelial cells in the extraction process and, for example, some of the epithelial cells are in the sperm fragment. This kind of carryover is “pretty common” and Nickel had seen it on “multiple occasions.” The third allele was a 12, and the victim was a 12 at that location. Nickel opined that “the most likely explanation, which we see at the laboratory when we do differential extractions all of the time, is carryover.”
Nickel testified that there are two other possible explanations for the third allele at D-5. One is that the profile includes a tri-allele. A tri-allele is a very rare phenomenon, but Nickel has occasionally observed them. If the “12” allele at locus D-5 is part of a rare tri-allele, then the DNA profile for the sperm fraction does not match defendant’s DNA from the buccal swab, because defendant’s DNA from that swab has no tri-alleles at any locus. Nickel said the third allele could be explained by a mutation, though he found no mutation when working on the case, and his notes made no mention of a mutation. Nickel indicated there was no way of knowing if it were a tri-allele belonging to defendant without obtaining a semen sample from defendant for comparison. Nickel testified defendant’s semen sample could be different from his buccal sample by a tri-allele. Semen samples are not ordinarily collected by law enforcement, but the defense could have obtained a sample of defendant’s semen and tested it. Nickel said that characterizing the results as a tri-allele would not exclude defendant, despite the absence of a tri-allele in defendant’s DNA profile at locus D-5.
Another explanation for the third allele reading of “12” at locus D-5 could be that it came from an unknown male contributor or Beto. Beto has a “12” allele at D-5, so it was possible that it was a carryover from Beto. However, had the third allele been Beto’s, Nickel would have expected to see other
alleles matching Beto’s profile. Nevertheless, he could not include or exclude Beto as being the contributor of that allele.
On cross-examination, Nickel agreed there was “no scientific basis” for his opinion that the third allele was carryover from the non-sperm fraction. “I didn’t determine that it wasbut I’ve seen it in multiple occasions that this crossover does occur, so I decided to call it as a 12 from carryover.” Nickel was not aware of any cases documenting a 14-loci match in samples from different people.
Nickel acknowledged that laboratory protocol requires repeating the differential extraction process if epithelial cells are detected in a sperm fraction, but he did not do so because he saw no epithelial cells in the small representative sample from the extraction he examined under the microscope. When asked to explain how he could characterize the third allele at locus D-5 as carryover from the epithelial portion of the sample if the differential extraction process was properly performed, Nickel said, “I’m saying there’s no way to determine that minor allele at the D-5 location, there’s no scientific basis to determine if it’s carryover, triallele or another individual.” Nickel’s opinion that the third allele was carryover, was based on his professional wisdom gathered from his work, training, experience, and talking to colleagues.
Nickel provided several reasons why he decided to characterize the third allele as carryover from the nonsperm fraction. He said he had seen “in multiple occasions that this crossover does occur.” He would expect to see additional alleles at other locations if there was more than one sperm contributor to the vaginal sample. The absence of additional alleles at other locations led him to form the opinion that the additional allele was a carryover from the victim’s DNA profile. Thus, despite the other possibilities, based on his training and experience, Nickel opined that defendant was the major DNA contributor of the sperm fraction from the victim’s vaginal swab.
Using the FBI statistical program, Nickel testified the statistical frequency of occurrence of the same DNA profile as defendant, who does not have an identical twin, would be one in two sextillion African-Americans, one in nine quintillion Caucasians, and one in one quintillion Hispanics.
Michelle Okazaki testified she and defendant had been dating since 2007, exclusively, “[f]or the most part, ” seeing each other “at least once a month”
until 2010. She did not hear from him for a long time and assumed he lost interest. She later learned he had been arrested. Eventually, in 2011, he told her about the victim’s accusation. Although Okazaki did not know about the accusation until 2011, she testified she saw the victim and Beto at defendant’s home a couple of weeks after the night in question, and the victim was comfortable around defendant and even wanted to spend the night at his house rather than ride her bicycle or accept Okazaki’s offer to drive her home. Okazaki did not believe defendant would ever take advantage of an intoxicated woman and commit a nonconsensual sex act.
Melissa Tiner testified she and defendant knew each other for 14 or 15 years, were best friends, and dated on and off for several months. On the day after the night in question, she picked up defendant for lunch. She had never seen him more hung over. She did not think he would take advantage of a young intoxicated woman and commit a nonconsensual sex act.
Two of Sophia’s friends testified they had been around defendant when he was drunk and when he was sober and did not believe he would ever take advantage of a young intoxicated woman and commit a nonconsensual sex act.
Beto testified that he and the victim both got drunk that night. He had never seen her that drunk. However, he saw her drunk on many occasions, sometimes so drunk that she later had no memory of what she did. Beto checked on the victim after she went to Sophia’s room but did not recall whether her clothes were on, but he recalled that she was under the covers. Around midnight, Beto went out to get some food. When he returned, no one was awake. He woke up defendant, who was “passed out” asleep on the living room floor, and told him to go to bed. Defendant replied he was not sleeping and resumed playing video games. Beto watched defendant playing the video games until Beto fell asleep on the couch. At some point, Beto heard defendant walk toward his bedroom, which is on the opposite side of the house from Sophia’s room. At some point thereafter, the victim awakened Beto and asked if they had had sex. He said no. She kept asking if he was certain. Eventually, she asked if he thought defendant might have done something to her. When Beto asked why, she said she woke up naked and defendant’s slippers were by the bed.
After that night, Beto and the victim continued to hang out at defendant’s house, though the victim said she did not want to go there anymore. On one occasion, they rode bikes to defendant’s house, and defendant gave them a ride home. Beto did not recall the victim wanting to stay the night or Okazaki offering a ride home.
Sophia testified defendant was wearing socks on the night in question and did not usually wear slippers with socks. She said she remembered he was wearing socks because “he had a hole in them.” However, she also admitted she previously testified she had no reason to pay attention to what defendant had on his feet. When Sophia returned the next day, her bed was unmade and defendant’s shirt was on her floor. She asked her brother and Beto why, and they told her what the victim said about waking up with a sore vagina. When the victim returned, the victim confided the same thing to Sophia, who related that she had been raped in high school, and encouraged the victim to speak with someone. Sophia asked defendant why his shirt was in her room. He said Karolyn wanted the shirt because someone was vomiting. Sophia testified defendant did not remember who was vomiting. “He was kind of all over the place. Somebody needed a shirt kind of thing.” Sophia was concerned that defendant’s shirt and slippers had been in her room. She checked the bedding for secretions but did not see anything. She set aside the bedding in case the victim later remembered anything, but when the victim came over the next day, Sophia washed the bedding because she did not think the victim would come back if defendant had raped her. Sophia never asked defendant about what the victim had said. Sophia testified her father was respectful of her privacy. None of her friends ever complained about defendant hitting on them, and she did not believe he would ever take advantage of a young intoxicated woman and commit a nonconsensual sex act.
Defendant’s son did not testify.
Dr. Gregory Sokolov, a psychiatrist, testified as an expert witness on Ambien. He said Ambien is a sedative prescribed for insomnia. Most patients take it right before they go to bed. Patients with anticipatory anxiety about another sleepless night may take it earlier. It is not prescribed for depression, but some patients take both Ambien and an anti-depressant. Ambien is not recommended for anxiety, but some doctors prescribe “off label.” Ambien has a very rare side-effect in that it can cause a sedated hypnotic intoxicated state, during which the patient engages in complex behavior while unconscious of the act, with little or no memory of it later. The behavior includes sleepwalking, sleep-eating, sleep-sex, and sleep-driving. Mixing alcohol with Ambien increases the risk of this complex behavior. Around 2006 or 2007, the federal government required the drug maker to warn doctors of this side-effect. Responding to a hypothetical question involving nonconsensual sex imposed upon another person by a person who took Ambien, drank 60 ounces of beer and four to five vodka cocktails, smoked marijuana, and had no recollection of having sex, Dr. Sokolov opined that the conduct “could be consistent with a sedative hypnotic intoxication and/or complex behavior event, ” and from a psychiatric medical perspective, such conduct would be involuntary.
Defendant testified. He planned to spend the evening alone on his living room couch playing with his Xbox. He took an Ambien around 4:00 or 5:00 p.m., before he went to the store and bought a video game, a headset, and beer. Defendant testified he got a prescription in 2006 to take Ambien as needed to help with anxiety, stress, depression, and insomnia. He had taken Ambien for a couple of nights before this incident due to stress from being laid off from his job. Ambien sometimes puts him to sleep, but he did not care if he fell asleep because he bought the game rather than renting it and could play it whenever he wanted. Defendant did not learn of the potential rare side effect of Ambien until a prior hearing when the doctor testified.
As defendant was getting his game set up, he received a phone call from the victim and Beto, wanting to come over. He reluctantly agreed. His son came home with Karolyn, and the victim and Beto arrived with a large bottle of vodka and some mixers. The four young people mainly stayed in his son’s bedroom and went back and forth to the kitchen. Karolyn wanted to smoke marijuana, so she and defendant smoked marijuana in the living room. The two young men moved back and forth between the son’s room and the living room to check out the video game defendant was playing. The victim offered defendant vodka and orange juice, and he accepted. He accepted offers of refills and drank “around five-ish” vodka drinks that night.
The victim got drunk and loud. Defendant heard someone urging the victim to lie down. He heard sounds like someone was vomiting. He did not try to help, because it had happened before, and the girls usually take care of it. Defendant testified that he had a vague recollection of Karolyn asking him for a shirt, and he gave her one. He had previously testified that he had just washed clothes and obtained the shirt from the laundry.
The last thing defendant remembered from that night is Beto helping him up off the floor and into defendant’s bedroom, though Beto contradicts it. The next thing defendant remembered is getting a phone call the next morning around 11:00 a.m. from his friend Melissa about a planned lunch with her he had forgotten. He awoke with the worst hangover of his life. He did not have the burning sensation that he gets after sex and there was no other indication he had had sex the previous night. He was fully dressed as he had been dressed the night before. Defendant was wearing a T-shirt, hooded sweatshirt, sweat pants, and socks. That he awoke clothed was significant to him because he takes off his clothes when he has sex and he did not remember taking off his clothes that night. He keeps slippers out for going outside or for women who complain about his rule against wearing shoes in the house. He does not normally wear his slippers around the house but does so on occasion. He testified he does not know how his slippers got into Sophia’s room. Nor does he know how his sperm got into the victim’s vagina.
When defendant returned home from having lunch with Melissa, the victim and the others were playing a video game. The victim acted completely normal, continued to hang out at defendant’s home, continued to interact with him as usual, and never said anything about defendant having sex with her. On one of those visits, the victim told Michelle that she, the victim, did not want to go home. About four or five weeks after the night in question, the victim stopped coming to defendant’s home.
About three or four months after the night in question, defendant received the phone call from the victim accusing him of rape. He was shocked. He did not deny it, because she was a friend, he did not remember anything from that night, and he “had no reason to disbelieve her.” He apologized to be polite and let her know he was sensitive. His daughter went through something like that and he wanted to make sure the victim knew he was concerned about her well-being. He told her he was attracted to her to be kind. He testified, “I was in fear of what was going on as far as her saying that I raped her and so I thought it was the best thing to ease the situation. So being as polite as possible I said that as far as to pretty much defuse the situation because I was clueless on what was going on at that point in time because no one said anything.”
Defendant was angry with Beto for not alerting defendant to the victim’s allegation, but defendant and Beto later reconciled.
Defendant testified his ex-wife complained he had difficulty performing sex acts when drunk.
Defendant admitted complimenting Karolyn’s breasts. When she asked for marijuana, she leaned over, and one breast fell out in front of his face. He was uncomfortable and did not know what to say, so he paid her the compliment, and she laughed, put her breast back in her blouse, and they never spoke of it again. When asked if he would joke with women about sex, he said, “I’ve been inappropriate, but I wouldn’t cross the line and touch nobody.”
Defendant testified he does not believe he had sex with the victim. When asked on direct examination, “You heard the DNA evidence in the case?” defendant answered, “Yeah, I have to accept that.” He testified, “I have no memory of anything that night. Nothing. Anything of having sex. Nothing. I don’t remember nothing like that.” When asked if he believed himself capable of taking advantage of a young intoxicated woman without her consent, he said, “No, absolutely not. And all my daughters’ friends have partied with me, they’ve slept on the couch along side with me and there’s been no incidents ever since I was even in college ever, anything accusation [sic] like this. No.”
Before this incident, the victim stayed overnight on her first visit to defendant’s home; she and two of her girlfriends slept on defendant’s bed, and he slept on the couch.
Prosecution Rebuttal Case
Sacramento Police Department Officer James Sobodash spoke with Beto at the hospital when the victim was there for the sexual assault examination. Beto told Sobodash that he went to Taco Bell around 11:30 p.m. The victim had been put in Sophia’s room earlier. When Beto returned around midnight, he checked on the victim. She was covered by a blanket and was wearing her yellow and gray long-sleeved shirt. Beto woke up defendant and watched him play a video game until Beto fell asleep. Beto was awakened by the victim around 2:30 a.m., and she told him about her suspicions. She mentioned that defendant’s slippers were by the bed. Beto asked to see them and the victim went into Sophia’s room and came out with the slippers. Beto said he started to freak out at that point.
Later in the day, when Sophia was talking to the victim, Sophia asked defendant why his shirt was in her bedroom. According to Beto, defendant said the victim had asked for the shirt because she was sick. The victim whispered to Beto that she had never asked defendant for a shirt.
Beto told Sobodash that the first time defendant met Karolyn he told her, “Wow, you have a perfect pair of tits, you know that?”
Verdicts and Sentencing
On December 20, 2011, the jury found defendant guilty on both rape counts. Defendant admitted he had previously been convicted of assault with a deadly weapon in 1991, and later moved to dismiss the prior strike. The trial court denied the motion. On January 20, 2012, the court sentenced defendant to an aggregate term of 11 years calculated as follows: the low term of three years on count one, doubled for the prior strike conviction (§ 667, subd. (e)(1)), plus a consecutive term of five years for the habitual criminal serious felony enhancement. The court imposed the same sentence for count two but stayed execution pursuant to section 654.
I. Two Counts of Rape for a Single Act of Intercourse
A. Additional Procedural Background
Defendant originally argued he was erroneously convicted of two counts of rape based upon one act of intercourse with one victim. He asked that we strike the conviction on one of the rape counts. The People agreed that defendant could not be convicted of two counts, but argued the appropriate procedure is consolidation rather than striking one of the convictions as urged by defendant. We agreed with the People and issued an opinion in which we ordered the trial court to consolidate the counts.
After this court filed its original opinion, the People requested rehearing, indicating that it had changed its position in light of the recently filed California Supreme Court opinion in Gonzalez, supra, 60 Cal.4th 533. We had addressed Gonzalez in our original opinion, but granted the People’s request for rehearing and ordered supplemental briefing. Subsequently, Division 1 of the Fourth District published White in which the court held a defendant could not be convicted of both rape of an intoxicated person and rape of an unconscious person for a single act of intercourse. (White, supra, 227 Cal.App.4th at pp. 1090, 1097.) Instead of consolidating the counts, however, the White court struck the second count of rape. (Id. at pp. 1090, 1104.) At the rehearing oral argument, defendant asked us to follow White and strike one of the counts.
Adhering to the California Supreme Court’s decision in People v. Craig (1941) 17 Cal.2d 453 [110 P.2d 403] (Craig), we again conclude that defendant cannot be convicted of two counts of rape for a single act of intercourse and that the two counts must be consolidated.
Section 261 defines rape as sexual intercourse committed under seven different circumstances, all of which describe lack of consent. Defendant
was charged with section 261, subdivision (a)(3), intercourse with an intoxicated person, and section 261, subdivision (a)(4), intercourse with an unconscious person. Both counts related to the single act of intercourse.
In Craig, supra, 17 Cal.2d 453, the California Supreme Court held that under section 261, only “one punishable offense of rape results from a single act of intercourse, although that act may be accomplished under more than one of the conditions or circumstances specified in the... subdivisions. These subdivisions merely define the circumstances under which an act of intercourse may be deemed an act of rape; they are not to be construed as creating several offenses of rape based upon that single act.” (17 Cal.2d at p. 455.)
The defendant in Craig was convicted of two counts of rape based on a single act of intercourse committed without consent and against the will of the 16-year-old victim. (Craig, supra, 17 Cal.2d at p. 454.) The first count alleged rape by force and the second count alleged the victim was under the age of consent. (Ibid.) The Craig court held, “There has been a violation of but one statutesection 261 of the Penal Code. And, while the proof
necessarily varies with respect to the several subdivisions of that section under which the charge may be brought, the sole punishable offense under any and all of them is the unlawful intercourse with the victim.... [O]nly one punishable offense of rape results from a single act of intercourse, though it may be chargeable in separate counts when accomplished under the varying circumstances specified in the subdivisions of section 261 of the Penal Code.” (17 Cal.2d at p. 458.)
This view of section 261 was reaffirmed in Gonzalez, supra, 60 Cal.4th 533. In Gonzalez, our high court held a defendant could be convicted of both oral copulation of an unconscious person and oral copulation of an intoxicated person (§ 288a, subds. (f), (i)) based on a single act, although he could not be punished for both. (Gonzalez, at p. 535.) However, in so doing,
the court reaffirmed Craig and distinguished section 288a from section 261. (60 Cal.4th at pp. 538-540.) The court noted that in Craig it had “concluded, based on the wording and structure of the statute, that former section 261 set forth only one offense that could be committed under several different circumstances, as described in its several subdivisions.” (Id. at p. 539.) “Section 288a is textually and structurally different from former section 261. Subdivision (a) of section 288a defines what conduct constitutes the act of oral copulation. Thereafter, subdivisions (b) through (k) define various ways the act may be criminal. Each subdivision sets forth all the elements of a crime, and each prescribes a specific punishment. Not all of these punishments are the same. That each subdivision of section 288a was drafted to be self-contained supports the view that each describes an independent offense....” (Ibid., italics added.)
While textually different from the former section 261 analyzed in Craig, the former section 261 in effect and applicable to defendant and the current version are not structurally different from their predecessor,  and the current
rape statute remains textually and structurally different from section 288a. Like the former section 261, the current statute sets forth only one offense that can be committed under several different circumstances, as described in its several subdivisions. The current punishment for rape is set forth in a separate section, which specifies that all forms of rape have the same punishment except for rape by means of force, violence, duress or fear of injury perpetrated upon a minor under 14 or a minor over 14. (§ 264, subds. (a), (c)(1), (c)(2).)
Our high court in Craig established the appropriate procedure to be employed when a defendant is convicted of two counts of rape under separate subdivisions in section 261 for the same act of intercourse. “The ‘judgments’ entered by the trial court should be modified to the extent of consolidating them into a single judgment.” (Craig, supra, 17 Cal.2d at p. 458.) Thus, the Craig court modified the judgment to state that the defendant had been found guilty of rape “as defined and proscribed in subdivisions 1 and 3 of [former section 261], and as charged in counts 1 and 2..., being separate statements of the same offense....” (Id. at p. 459.)
Defendant here originally argued that we should pick out one count and strike it. We found his cited authorities to be inapposite. Neither case involves section 261 nor mentions Craig.
In People v. Shabtay (2006) 138 Cal.App.4th 1184 [42 Cal.Rptr.3d 227], a case originally relied upon by defendant, the defendant was convicted of two counts of grand theft by possession of access card numbers of 11 victims. The Shabtay court held that the plain language of section 484e, subdivision (b)defining an offense of grand theft where a person “within any consecutive 12-month period, acquires access cards issued in the names of four or more persons which he or she has reason to know were taken or retained” with intent to defraudprecluded multiple convictions where the prosecution alleged the defendant acquired all the access cards within a consecutive 12-month period. (138 Cal.App.4th at pp. 1189, 1191.) The Shabtay court reversed the conviction on one of the two counts. (Id. at p. 1192.)
Defendant’s other cited authority, People v. Packard (1982) 131 Cal.App.3d 622 [182 Cal.Rptr. 576], is also off point. There, the prosecution alleged three
counts of grand theft for taking money and personal property exceeding $200 in value from his employer. Each count alleged theft in a separate year1976, 1977, and 1978. The People did not contend the defendant had three separate yearly schemes but instead argued three counts were proper because section 487. former subdivision 1, stated that where the value of money or property taken by an employee from his employer totaled $200 or more in any 12-consecutive-month period, “ ‘then the same shall constitute grand theft.' " (131 Cal.App.3d at p. 626.) The appellate court reversed two of the counts, stating the only reasonable conclusion supported by the record was that the defendant had a single continuing plan or scheme for stealing from his employer and should have been convicted of only a single grand theft. (Id. at pp. 626-627.)
These court of appeal theft cases have no bearing on the appropriate procedure here, where the issue relates to a single act of intercourse committed under two statutory circumstances set forth in section 261, particularly where our high court has expressly spoken about the matter. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 [20 Cal.Rptr. 321. 369 P.2d 937] (Auto Equity).)
The People commendably acknowledged a case not cited by defendant in the original briefing, in which this court ordered a second count stricken where the defendant was convicted of rape of an intoxicated woman and rape of an unconscious woman based on a single act of intercourse. (People v. Smith (2010) 191 Cal.App.4th 199, 205 [120 Cal.Rptr.3d 52] (Smith).) However, the argument that the proper procedure is to consolidate was not addressed in Smith. Cases are not authority for propositions not therein considered. (People v. Scheid (1997) 16 Cal.4th 1,17 [65 Cal.Rptr.2d 348, 939 P.2d 748].)
Recently, in White, as we have noted, Division One of the Fourth Appellate District agreed that a defendant could not be convicted of two counts of rape charged under different subdivisions of section 261 for a single act of intercourse. Citing Smith without analysis and without reference to the consolidation procedure mandated in Craig, the White court struck the second count of rape. (White, supra, 237 Cal.App.4th at p. 1103.) Instead, we adhere to the procedure mandated by our high courtconsolidation.
Although rape is a unitary offense, violations of different subdivisions may have distinct penal consequences; therefore, it would be inappropriate to strike counts. For example, section 667.61, subdivision (c), calls for sentence enhancement for rape in violation of section 261, subdivision (a)(2) [force], or (a)(6) [threat of force]. Section 290.008 requires registration as a sex offender of a person discharged or paroled following confinement as a
juvenile delinquent for rape under section 261, subdivision (a), paragraphs (1) [mental or physical disability rendering victim incapable of consent], (2) [force], (3) [intoxicated victim], or (4) [unconscious victim]. Section 290.46 affords the public Internet Web site access to a list of sex offenders including rapists under section 261, subdivision (a)(2) [force] or (a)(6) [threat]. Section 1203.065, subdivision (a), prohibits probation for rapists who use force or threat of force, and subdivision (b), limits probation where rape is committed by a threat to arrest, incarcerate or deport the victim. Vehicle Code section 13377, subdivision (a)(2), prohibits issuance of a tow truck driver certificate to a person convicted of rape under Penal Code section 261, subdivision (a), paragraphs (1) [disabled victim], (2) [force], (3) [intoxicated victim], or (4) [unconscious victim]. In the future, there may be additional penal consequences for convictions of various subdivisions of the rape statute as a result of additional legislation or new enactments by the voters. For purposes of the application of such consequences, the record should reflect when a defendant has been convicted of multiple types of rape under section 261 for a single act of intercourse. The record will so reflect when those counts have been consolidated, but it will not when a count has been stricken.
Additionally, as pointed out by the dissent in White, an unintended consequence results if a rape count is stricken in the trial court, and on appellate or habeas corpus review, the remaining rape count is later reversed for reasons specific to that subdivision of section 261the defendant would stand convicted of nothing. (White, supra, 237 Cal.App.4th at p. 1112 (cone. & dis. opn. of Benke, J.).) When a jury has found a defendant guilty of rape under more than one circumstance, such a result should be avoided and can be avoided by consolidating the various counts of rape for which a defendant has been convicted. If consolidated and one of the statutory bases for the conviction is later reversed for reasons independent of the other, the other statutory basis would remain and the defendant would still stand convicted of rape.
Finally, we ask how is a court to decide which of the multiple counts of rape to strike? Does a court simply strike all but the first count? Does the court hear argument on which count to strike and if so, what criteria should be used to decide? No guidance can be found in the law to answer these questions, and none is required where the court simply consolidates the counts.
Accordingly, we apply the procedure our high court employed more than 70 years ago in Craig and modify the judgment by consolidating the two counts into a conviction for a single count of rape reflecting violations of section 261, subdivision (a)(3) and (4).
The People contend that our high court’s decision in Gonzalez, supra, 60 Cal.4th 533, supports a different conclusion. They contend a defendant can be convicted of multiple counts of rape under different subdivisions of section 261 for a single act of intercourse and the counts need not be consolidated. According to the People, we need not apply our high court’s consolidation procedure in Craig, because Craig’s holding and reasoning apply only to the version of the rape statutes in effect at the time of that decision.
In this regard, the People argue that a textual difference in the version of section 261 defendant violated here is significant. The version of section 261 under which defendant was convicted (and current version) reads, in pertinent part: “Rape is an act of sexual intercourse accomplished with a person not the spouse of the perpetrator, under any of the following circumstances....' (Id., subd. (a), italics added.) The version of section 261 of which the defendant in Craig was convicted defined rape as “ ‘ an act of sexual intercourse, accomplished with a female not the wife of the perpetrator, under either of the following circumstances....’ ” (Craig, supra, 17 Cal.2d at p. 455, italics added.) The People contend that the change from “either” to “any” makes clear that a defendant can be convicted of multiple offenses under section 261 based on a single act. We disagree.
We have reviewed the legislative history concerning the amendments to section 261 pertinent here. The change from “either” to “any” occurred in 1979. (Stats. 1979, ch. 994, § 1, p. 3383.) That legislation, among other things, added section 262 to change California law so that it would no longer be the case that, “as long as a man and woman [were] legally married, the man could not be prosecuted for rape.” (Cal. Governor’s Office, Enrolled Bill Rep. on Assem. Bill No. 546 (1979-1980 Reg. Sess.) Sept. 20, 1979.) With regard to section 261, the amendments served to render the language of that section more gender-neutral, and also replaced the word “either” with the word “any” as illustrated above (Stats. 1979, ch. 994, § 1, p. 3383). However, we have found nothing in the legislative history that provides an explanation why the Legislature made the change from “either” to “any, ” and the People point us to no such explanation.
We do not agree with the People that, by replacing the word “either” with the word “any, ” the Legislature intended to effect a wholesale change in the
manner in which section 261 functions and to legislatively overrule Craig. The People overreach in concluding, without any support for the proposition, that the “change of ‘any’ is significant because it confirms that there are and can be different rape offenses under section 261.” They would apparently have us ignore that the applicable case law from our highest court expressly held the opposite as to single acts of intercourse and that there is no legislative history indicating a legislative intent to abrogate that Supreme Court precedent.
The People also ...