Opinion
Introduction
Defendant Carter Terrell Moore appeals from a judgment of conviction entered after a jury trial. The jury found defendant guilty of one count of committing a lewd act upon a child under the age of 14 during which defendant engaged in substantial sexual conduct (Pen. Code, §§ 288, subd. (a), 1203.066, subd. (a)(8) & (9)), one count of attempted oral copulation with a person under the age of 14 (Pen. Code, §§ 664/288a, subd. (c)), five counts of rape (Pen. Code, § 261, subd. (2)), two counts of oral copulation with a person under the age of 14 (Pen. Code, § 288a, subd. (c)), one count of forcible oral copulation (ibid.) and three counts of sodomy (Pen. Code, § 286, subd. (c)). Thereafter, the trial court found defendant previously had been convicted of a felony within the meaning of Penal Code section 667, subdivision (a). Defendant was sentenced to state prison for a total of 45 years.
Statement of Facts
Defendant, M.’s father, returned home after a term of imprisonment when M. was nine or ten years old. Shortly before Christmas in 1983, when *1404 M. was in the third grade, she was on a bed with defendant in the apartment she shared in Pomona with her parents. Defendant put his toes between her legs. In January 1984, while relatives were visiting the apartment, M. slept on the floor with defendant. He asked her to perform an act of oral copulation, pushing her head in the direction of his penis, but M. bit his finger and defendant released her. He told her men in Africa had five or ten wives at one time. M. told her mother about this incident; her mother repeated this information to M.’s maternal grandmother, but neither of them took any steps as a result.
In approximately the middle of M.’s 1984-1985 fourth grade school year, M. moved with defendant to her grandparents’ home in Lynwood, where she and defendant shared a bedroom. Once, while M. was doing her homework, defendant came into the room and sat on the bed. He began tugging on her arm and told her he should have whipped her for some things she had done, then he told her to lie on the bed; M. complied. Defendant began pulling down her clothing. When M. attempted to stop him, he said he was going to whip her (meaning hit her with a belt or strap), so she stopped resisting. After defendant pulled down her underclothing, while she was lying on her side, defendant lay on the bed behind her and initiated an act of sexual intercourse. M. told him this hurt. Defendant had sexual intercourse with her on the following day and thereafter from two to three times a week during the remainder of her fourth grade year. To escape him, M. attempted to sleep with cousins who used another bedroom but defendant came and got her.
In May 1985, defendant quarrelled with M.’s uncle, after which he and M. resided in several hotels in Signal Hill throughout the summer of 1985. On M.’s 13th birthday, May 22, 1985, defendant bought her a birthday cake and ice cream. When they went to bed, he had sexual intercourse with her, even though she asked him not to do so because it was her birthday. While they were living in Signal Hill, defendant had sexual intercourse with her almost every night. Periodically, she would attempt to resist him. When she did so, defendant, who was trained in karate, would strike her in the stomach and rib cage with karate-type movements. During this same period, defendant asked M. to perform acts of oral copulation; she did this on three or four occasions.
In August 1985, defendant and M. moved to an apartment in Long Beach. Just before M. began her fifth grade school year, during her menstrual period, defendant again had sexual intercourse with her. This time he ejaculated, something he had promised her he would never do. Some time after school started that fall but before Thanksgiving, defendant performed an act of sodomy. He did this on three separate occasions. Later, M. told *1405 him this made her feel as if she were going to have a bowel movement and complained to him about the pain she felt. In response, defendant looked at her with great anger, as though he was going to “jump on” her. Defendant continued to have sexual relations with M. during the remainder of her fifth grade school year.
By the time M.’s sixth grade school year began, she and defendant had returned to live in her grandparents’ home in Lynwood. On one occasion during this time, defendant asked her to perform an act of oral copulation, asserting that M. did this better than a girlfriend would. Defendant placed a chair against the bedroom door and sat on it. They agreed she would perform an act of oral copulation for five minutes, but he insisted that she continue beyond that time. On a later occasion, defendant again had her perform an act of oral copulation; he ejaculated in the process, something he had said he would not do. During this period, M. told her paternal grandmother, her cousin Randi and Uncle Ronnie that defendant was “messing with” her, but no one took any steps to protect her.
Throughout this period, M. engaged in sexual relations with defendant against her will. She submitted because she was afraid of him. He threatened her and told her he would kill her if she ever told anyone about these incidents. M. was well aware of her father’s temper and violence. When she was four years old, she had seen him kill a man by stabbing; he spent five years in prison for this.
On October 26, 1986, defendant was having difficulty performing sexual intercourse and hence made M. perform an act of oral copulation. On the following day, she was crying in her classroom; this prompted her teacher, Ms. Williams, to. take her out into the hallway. Mrs. King walked by and asked whether M. wanted to talk to her. After some initial reluctance, M. told Mrs. King what had happened the previous night; M. then talked to the principal and a police officer who was called to the school. The police officer took her to a hospital for an examination. Dr. Dora Burchette discovered damage to M.’s hymen; there were old tears at three locations and four bands of scar tissue extending from the hymen to the interior vaginal lips. In addition, M.’s hymenal orifice was larger than normal; it had an irregular border, very scarred and torn, and there was redness at and inside of the vaginal lips. The scars were at least two weeks old, but Dr. Burchette could not date them with any greater precision. The scarring and old tears were consistent with repeated trauma, including sexual abuse. The redness indicated recent trauma. Dr. Burchette did not examine M.’s anal area.
Defense
Defendant denied ever touching M. in the vaginal area or asking her to perform oral copulation. He and M. had had a dispute over sleeping *1406 arrangements; M. wanted to sleep in the garage with her cousins, but defendant refused to permit this because his brother also shared the garage. This upset M. In defendant’s view, he was a good father; he was strict and would not permit M. to date. When she came to live with him, her grades improved. Shortly before defendant’s arrest, he and M. had other clashes of temperament. Defendant attributed these to M.’s jealousy of his girlfriend, from whom he ultimately separated because of the friction M. caused.
Two social workers who visited M. while she was living with her father observed no signs that she was being subjected to defendant’s sexual molestation. She never gave any indication this sort of thing was happening.
Contentions
I
Defendant contends the trial court erred prejudicially in failing to instruct the jury that penetration was an essential element of forcible sodomy.
II
Defendant asserts there is insufficient evidence to support more than one conviction of sodomy or to support the conviction of rape between June 1, 1985, and August 31, 1985, as charged in count 4.
III
Defendant further asserts the trial court erred prejudicially, as to the forcible rape charged in count 4, in failing to instruct the jury sua sponte with CALJIC No. 17.01.
IV
Defendant contends the trial court improperly imposed full consecutive sentences pursuant to Penal Code section 667.6, subdivision (d), on counts 5, 7, 8, 9, 10 and 12.
V
Finally, defendant contends the trial court erred in calculating the credit against his sentence to which he was entitled for time served in presentence custody.
*1407 Discussion
I
Defendant contends the trial court erred prejudicially in failing to instruct the jury that penetration was an essential element of forcible sodomy. We disagree.
The trial court has a duty, sua sponte, to instruct the jury correctly on all essential elements of the crimes charged.
(People
v.
McNiece
(1986)
Penetration is an essential element of the crime of forcible sodomy.
(People
v.
Martinez
(1986)
The sole defense proffered to any of the offenses in this case was denial, augmented by an attack on M.’s credibility. That denial, if believed, would be a complete defense to the charges of sodomy, but would not in any manner serve to negate solely the element of penetration.
In asserting there nonetheless was error here, defendant relies on
People
v.
McElrath, supra,
M. testified these offenses took place in 1985, after the beginning of her fifth grade school year but before the Thanksgiving holiday. Defendant tried to place his penis in her rectum; he had her get on her knees and approached her from the rear. He did not actually place his penis inside her rectum, but pushed against her anus. This triggered a defecation reaction and caused her some pain. Other than defendant’s denial that these events took place, there is no other evidence relating to the sodomy charges.
Defendant characterizes this evidence as substantially identical to that proffered in
People
v.
Martinez, supra,
The People note there is a difference, which they deem significant, between the evidence presented in Martinez and the evidence presented here. In the instant matter, there is M.’s testimony that the act triggered a defecation response, i.e., made her feel as if she were going to have a bowel movement. In the People’s view, this evidence compels a finding of at least slight penetration. We find merit in this view. While forceful pressure against the anus might cause some pain without actual penetration, nothing short of at least slight penetration would trigger a defecation reaction. Indeed, this theory was argued to the jury. 1 Since the evidence presented here is consistent only with a finding of at least slight penetration, the trial court did not err in failing to instruct the jury on necessity for penetration.
II
Defendant asserts there is insufficient evidence to support more than one conviction of sodomy or to support the conviction of rape *1409 between June 1, 1985, and August 31, 1985, as charged in count 4. Again, we disagree.
Defendant makes two claims of insufficiency as to the sodomy counts. First, he argues there simply is no substantial evidence there were
three
incidents of sodomy. After M. described the act, as delineated
ante,
the prosecutor asked her, “About how many times did he try that?” M. responded, “Three.” She had the same feelings, earlier described, each time he did this. Defendant focuses on the form of the prosecutor’s question, specifically the query,
“About
how many times . . . .” This, he asserts, provides no basis other than speculation or conjecture to support a conclusion there
were
three separate acts; thus, there is no substantial evidence, i.e., that which is solid and credible, to support three convictions.
(People
v.
Barnes
(1986)
To be sure, the form of the prosecutor’s question is regrettable. However, M. did not answer with an approximation or state she thought it was three times. Thus, there is a reasonable basis from which the jury could have concluded there were three separate acts.
Defendant’s next argument is aimed primarily at the forcible rape conviction on count 4. Count 4 of the information alleged that some time from June 1, 1985, to August 31, 1985, defendant accomplished an act of sexual intercourse with M. by means of force and fear of immediate and unlawful bodily injury to herself or to another. According to M., she and defendant moved to Signal Hill in the late spring of 1985, where they lived in a series of hotels until some time in August. No one else resided with them. While they were living in the Signal Hill hotels, defendant had sexual intercourse with her almost every night; whenever she attempted to resist defendant’s sexual advances, defendant, who had karate training, hit her in the stomach or rib cage with “karate-type” movements. M. was able to relate only one specific incident of sexual intercourse to a date or an event during this period, the one that occurred on her birthday, May 22, 1985. This incident was the subject of count 13.
In arguing count 4 must be reversed for insufficiency of the evidence, defendant relies on
People
v.
Atkins
(1988)
*1410 In Atkins, the Fifth District court considers for the second time the problem of the “resident child molester,” a category into which defendant falls inasmuch as he is M.’s father and all the charged offenses occurred while she was living with him. The court notes: “The ‘resident child molester’ cases pose perplexing questions. They involve two very important, yet somewhat conflicting, considerations. One overriding concern is that a child who has been molested on a regular basis and in a consistent manner might not have a meaningful reference point of time or detail by which to distinguish one specific act from another. The concern is that this problem will be exacerbated the more frequent and repetitive the molestation and the younger the victim. Thus, the prosecution’s ability to establish one or more specific acts via the testimony of the minor victim decreases. Since minor children are usually molested outside the presence of witnesses and many of these acts leave no permanent physical evidence, the testimony of the minor victim may be the only evidence on which the prosecution can base its case. To render such testimony inadequate as a matter of law under circumstances like those here under discussion could effectively insulate the most egregious child molesters from prosecution.
“The other consideration is predicated upon fundamental notions of due process .... ‘Emerging from recent cases dealing with the problems arising when a crime is charged and the evidence describes several acts, any one of which could constitute the crime charged, “is the so-called ‘either/or’ rule: . . .
either
the prosecution must select the specific act relied upon to prove the charge
or
the jury must be instructed in the words of CALJIC No. 17.01 ... or [the] equivalent that it must unanimously agree beyond a reasonable doubt that defendant committed the same specific criminal act. [Citations.]” [Citation.]’
(People
v.
Callan
(1985)
“While the ‘either/or’ rule as stated above will cure a failure of election by the prosecution in the usual case where evidence of several specific acts is presented, any one of which could constitute the crime charged, the rule can have no application to counts where there is a failure to present evidence of any specific act to support the charged crime. Where, as here, the evidence is that many of such acts were committed over an extended period of time yet there is no testimony of a specific act, it would be impossible for the prosecution to ‘select the specific act relied upon to prove the charge’ and equally impossible for the jury to ‘unanimously agree beyond a reasonable doubt that defendant committed the same specific criminal act.’ (Ibid.)” (People v. Atkins, supra, 203 Cal.App.3d at pp. 19-21, fn. omitted, italics original.) The court in Atkins continues: “Implicit in the cases requiring specificity of charges and the charges being supported by specific testimony given at trial is the fundamental due process rule, steeped in antiqui *1411 ty, that the prosecution must prove a specific act and the 12 jurors must agree on 1 specific act.” (Id. at p. 22.) Thus, in the absence of such proof, a conviction must be reversed.
The analysis employed in
Atkins
has its genesis in another Fifth District case, also authored by Justice Ballentyne,
People
v.
Van Hoek
(1988)
In
Van Hoek,
the court did not bar retrial on the reversed counts, but in
Atkins,
it did. After reiterating the due process rationale of
Van Hoek, Atkins
states: “Here, the prosecution neither charged an offense specific as to time, place or other particular, nor did it prove a specific offense with regard to counts II and V. . . . [T]here is not substantial evidence to prove the specific offenses in counts II and V.” (
The Fifth District court thereafter criticized this result in
People
v.
Vargas, supra,
“Through this unfortunate language in Atkins and Luna, Van Hoek’s requirement of evidence of a distinguishing characteristic has been transformed from a due process concern into a problem of insufficiency of the evidence. Neither opinion supports the conclusion that the failure to present evidence of a distinguishing characteristic renders the evidence insufficient to support a conviction. The conclusion that retrial is barred under double jeopardy principles can only be supported either by treating the distinguishing characteristic as an element of the crime or by concluding that in the absence of the distinguishing characteristic, the evidence is insubstantial as to the charged count. Neither alternative is legally supportable.” (People v. Vargas, supra, 206 Cal.App.3d at pp. 848-849.)
In
Vargas,
the court thus concludes that an analysis of a failure to produce evidence of a distinguishing characteristic as rendering the evidence insufficient, “has in effect added an element to the crime—‘the distinguishing characteristic fact’ element and has usurped a legislative prerogative.” (
The analysis set forth in Vargas clearly is correct. Accordingly, even if there are due process problems in the present case concerning count 4, the evidence relating thereto does not thus become insubstantial as a matter of law.
Prior to this line of 1988 cases, Division Three of this district considered the problem of a defendant’s right to know and defend against specific charges in the context of the “resident child molester” in
People
v.
Dunnahoo
(1984)
The
Dunnahoo
court notes: “Whether an accused has been adequately advised depends on the nature of the crime
and the available defenses thereto.
Following an indictment or information, a preliminary hearing, and criminal discovery, a defendant should be sufficiently advised of the charge or charges to be able to plan a defense. If a defense is to be alibi as to all or part, or misidentification, to charges as alleged here, a defendant can request, and force, an election at the outset of a trial or at some time prior to trial, and thereby be protected from surprise. The Supreme Court observed in the recent case of
People
v.
Beeman
(1984)
The court continues: “[Defendant] did not defend on the basis of alibi or identity. Under the circumstances, an alibi or identity defense would be unavailing . . . [Defendant] lived with the victims for an extensive, uninterrupted period, day and night. Such a living arrangement permitted continual access to the vulnerable youngsters, trusting as they were of [defendant] as a . . . parent. ... In reason, neither alibi nor wrongful identification would ever be offered as a defense. Credibility would be the only issue in these fact situations, and since the prosecution always has the burden of proving guilt beyond a reasonable doubt, an accused can stand mute and attack the credibility of complaining witnesses. [In contrast, w]here the accused is a stranger to the victim and/or the household and allegedly committed a single unlawful act, an alibi or identity defense might be crucial.” (
Division Six of this district recently turned its attention to the problem of a defendant’s right to a unanimous verdict in
People
v.
Obremski
(1989)
The court then concludes
Van Hoek
“wrongly chose the second consideration as the prevailing one. By holding that the prosecution’s failure to charge or prove the defendant committed a particular act on a particular occasion [is reversible error], the court’s decision, in its own words, ‘effectively insulate[s]’ resident child molesters from prosecution in circumstances similar to our own.” (
Following
the Dunnahoo
“fair notice” analysis, the
Obremski
court notes:
“Van Hoek
is incorrect because it attempts to fit the crime to the defense instead of fitting the defense to the crime. In cases where the child molester lived with the victim for an extensive, uninterrupted period and therefore had continual day and night access to the vulnerable child, neither alibi [n]or wrongful identification is likely to be a reasonable defense. [Citation.] If the victim of a resident [child] molester is able to testify only to a general sexual interaction with the molester, the molester himself is likely to be similarly handicapped in eliciting from his memory specific details concerning the date, time and place of his activities during the years of his residence with the victim. Forcing the prosecution to an election in this factual situation achieves the anomalous result of subjecting to prosecution only those defendants who select victims with better memories or who are one act offenders.” (
Moreover, since credibility is the true issue (
In our view,
People
v.
Obremski, supra,
III
Defendant further asserts the trial court erred prejudicially, as to the forcible rape charged in count 4, in failing to instruct the jury sua sponte with CALJIC No. 17.01. The assertion lacks merit.
CALJIC No. 17.01 provides in substantial part: “The defendant . . . may be found guilty if the proof shows beyond a reasonable doubt that he committed any one or more of the [acts constituting the crime with which he is charged], but in order to find the defendant guilty, all jurors must agree that he committed the same act or acts.” When there is evidence of more than one incident from any one of which the jury could conclude the defendant was guilty of a particular offense, it generally is error to fail to give the jury CALJIC No. 17.01 or to instruct it in equivalent language.
(People
v.
Diedrich
(1982)
The instruction serves two purposes: (1) it achieves unanimity among the jurors as to the act constituting the crime and (2) it resolves that question beyond a reasonable doubt.
(People
v.
Deletto
(1983)
There is a split of authority as to whether the instruction is
always
required and the failure to so instruct then is subject to harmless error beyond a reasonable doubt analysis or is
required
only when there is evidence from which the jury possibly could entertain a reasonable doubt as to some, but not all, of the acts.
People
v.
Deletto, supra,
147 Cal.App.3d at pages 471-473 employs the former analysis, while several cases, some of which emanate from this district, employ the latter analysis. In
People
v.
Winkle
(1988)
On the other hand, in an anomalous case and in the same context, the Fifth District not only finds the instruction essential where the evidence shows a long-continued course of conduct during a specified time period, but finds the failure to give it is prejudicial error.
(People
v.
Martinez
(1988)
IV
Defendant contends the trial court improperly imposed full consecutive sentences pursuant to Penal Code section 667.6, subdivision (d), on counts 5, 7, 8, 9, 10 and 12. We disagree.
Penal Code section 667.6, subdivision (d), presently provides in pertinent part: “A full, separate, and consecutive term shall be served for each violation of . . . committing sodomy or oral copulation in violation of Section *1417 286 or 288a by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person if the crimes involve separate victims or involve the same victim on separate occasions.” Prior to the amendment of section 667.6 by Statutes 1985, chapter 401, section 1 (urgency, effective July 30, 1985), subdivision (d) required the presence of “force, violence, duress, menace, or threat of great bodily injury ” (italics added) rather than the less coercive language, “fear of immediate and unlawful bodily injury on the victim or another person.” The distinction is crucial, for count 5 is a forcible oral copulation alleged to have occurred in the period from June 1, 1985, and August 31, 1985; since M. was unable to specify with any precision when during this period the offense occurred, it must be assumed the more coercive conduct required prior to the amendment is applicable to this count.
At that time, there was a dichotomy between the language of Penal Code sections 286, covering sodomy, and 288a, covering oral copulation, and subdivision (d) of section 667.6. Subdivision (c) of both sections 286 and 288a uses the language “fear of immediate and unlawful bodily injury on the victim or another person,” while subdivision (d) of section 667.6 still retained the language “threat of great bodily injury.” Since the 1985 amendment of section 667.6, the language of the statutes is congruent. Prior to amendment, however, a verdict finding a defendant guilty of a violation of subdivision (c) of sections 286 and 288a did not necessarily imply the findings necessary to invoke the sentencing provisions of section 667.6, subdivision (d), for fear of immediate and unlawful bodily injury “is a lesser level of coercion than threat of great bodily harm.”
(People
v.
Riffey
(1985)
In the instant matter, although count 5 was charged in the “great bodily injury” language, the sole instruction given the jury on this count of forcible oral copulation was couched in the “immediate and unlawful bodily injury” language. Hence, it cannot be said the jury’s conviction of defendant necessarily carried a finding of the requisite factual element for the imposition of a mandatory full consecutive sentence pursuant to subdivision (d) of Penal Code section 667.6.
People
v.
Riffey, supra,
People
v.
Ramirez
(1987)
The evidence here shows M. knew of defendant’s temper and prior acts of violence; when she was four years old, she saw him kill a man by stabbing, an offense for which he spent five years in prison. She testified she acquiesced in defendant’s sexual demands only because she was afraid of him; he threatened her and said that if she ever told anyone about these incidents, he would kill her. When she tried to resist him, defendant, who was trained in karate, hit her in the stomach and rib cage with “karate-type” movements. He threatened to whip her (hit her through her clothing with a strap or belt) and looked at her angrily as if he would “jump on” her. M. is a child; during this period, she was between the ages of 10 and 13. Taking this factor into account, the foregoing evidence is consistent only with a finding that M. submitted through force or fear of great bodily harm. Since the evidence compels the essential conclusion, the error is harmless beyond a reasonable doubt; thus, the full consecutive sentence imposed on count 5 need not be reversed.
There is a different problem with counts 7, 8, 9, 10 and 12. These counts were pleaded in language consistent with both subdivision (c) of Penal Code sections 286 and 288a and subdivision (d) of section 667.6. However, subdivision (c) of sections 286 and 288a provides an alternative basis for guilt. In each instance, the crime may be committed either because the victim is under the age of 14 and is more than 10 years younger than the perpetrator or because it is “accomplished against the victim’s will by means of force, violence, duress, menace or fear of immediate and unlawful bodily injury on the victim or another.” (Pen. Code, §§ 286, subd. (c), 288a, subd. (c).) Thus, these statutes do not predicate criminal liability solely upon coercive conduct. That a defendant engages in conduct with a minor under the age
*1419
of 14 does not necessarily imply the acts were coerced.
(People
v.
Riddle
(1987)
Counts 7, 8 and 9 allege acts of sodomy and are pleaded in terms of the age differential. Count 10 alleges an act of oral copulation and is pleaded in terms of the age differential. Conversely, count 12 alleges an act of oral copulation and, like count 5, is pleaded in terms of the use of force or fear. Because the counts were pleaded under different theories, the jury was instructed on alternative means of determining the defendant’s guilt via CALJIC Nos. 10.50.2 and 10.40.2 (1987 New). 3 In large part, the prosecutor stressed to the jury that each of these crimes was shown simply “by virtue of the relative ages.”
Ordinarily, in these circumstances, it cannot be assumed the jury based its verdict on one alternative rather than another; generally, the utilization of “implied findings” to resolve the issue is inappropriate. (See
People
v.
Johnson
(1986)
Hence, it is unequivocally clear the jury was aware there was a difference between this offense and those charged in counts 7 through 10 and, in this instance, it must find the offense to have been forcible. There is no evidence from which the jury could have based its verdict on the “threat of future retaliation” alternative; the sole such threat was directed at the consequences of the victim telling anyone about the sexual episodes, not at *1420 compelling her participation. As noted ante, the evidence compels the conclusion M. was subjected to coercion through force or fear not only of inmediate bodily injury, but of great bodily injury. Accordingly, any error as to count 12 is harmless beyond a reasonable doubt. (People v. Dyer, supra, 45 Cal.3d at pp. 62-64.)
The question is no less clear as to counts 7 through 10. As noted above, the verdict forms for these counts are couched in terms of the age differential, and the prosecutor stressed in argument that this was enough for conviction. Thus, we may deem the error harmless as to these counts only if the evidence of force or fear of immediate bodily injury is so strong that the jury could
only
have convicted defendant on this basis.
(People
v.
Ramirez, supra,
V
Finally, defendant contends the trial court erred in calculating the credit against his sentence to which he was entitled for time served in presentence custody. He is correct.
Penal Code section 2900.5, subdivision (a) provides in pertinent part: “In all felony . . . convictions, . . . when the defendant has been in custody, including but not limited to any time spent in a jail. . ., all days of custody of the defendant, . . . including days credited to the period of confinement pursuant to Section 4019, shall be credited upon his term of imprisonment . . . .” Accordingly, defendant is entitled not only to credit for days actually spent in custody but also to good time/work time credits computed at one-half the time he actually spent in presentence custody.
(In re Allen
(1980)
On October 27, 1986, defendant was arrested and taken into custody in relation to the offenses at issue here. He remained in custody from that date until his probation and sentencing hearing, which was held on November 25, 1987. The probation department calculated the amount of time served in presentence custody at 374 days, while the actual time he served is 395 days. Hence, rather than 187 days in conduct credits, defendant is entitled to 197 days. The total in presentence credits to which he is entitled thus comes to 592 days, rather than the 561 days with which the court credited *1421 him. The abstract of judgment must be corrected to rectify this error in calculation.
The judgment is affirmed. The Superior Court is directed to forward a corrected abstract of judgment, showing defendant’s entitlement to 561 days in presentence credits, to the Department of Corrections.
Hanson, J., and Ortega, J., concurred.
Appellant’s petition for review by the Supreme Court was denied September 27, 1989. Mosk, J., and Broussard, J., were of the opinion that the petition should be granted.
Notes
The prosecutor stated: “It amounted to partial penetration. . . . Clearly, you wouldn’t have had pain, or the defecation reaction at all, unless there had been considerable pressure applied.”
Defendant appears to be making the same argument concerning the sodomy counts as well. However, in those instances, the only due process concern would be defendant’s right to “fair notice.” The prosecution charged three counts of sodomy and M. testified an act of sodomy occurred on three separate occasions. Since the jury convicted defendant of each count of sodomy, it necessarily agreed unanimously that each of these acts occurred.
CALJIC No. 10.50.2 provides in pertinent part: “Any person who participates in an act of sodomy with another person [who is under 14 years of age and more than 10 years younger than he or she,] [or] [when the act is accomplished against the victim’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person,] [or] [when the act is accomplished against the victim’s will by threatening to retaliate in the future against the victim or any other person, and there is a reasonable possibility that the perpetrator will execute the threat] is guilty of . . . violating] . . . Section 286(c) of the Penal Code.” (Italics added.) CALJIC No. 10.40.2 uses identical language to state that “[a]ny person who participates in an act of oral copulation ... is guilty of. . . violating] . . . Section 288a(c) of the Penal Code.”