People v. Garcia

THE PEOPLE, Plaintiff and Respondent, v. STEVEN ANTHONY GARCIA, Defendant and Appellant.
No. F034831 (Super. Ct. No. 78633) California Court of Appeal Fifth Appellate District Filed April 15, 2002
CERTIFIED FOR PARTIAL PUBLICATION*
        APPEAL from a judgment of the Superior Court of Kern County. Stephen P. Gildner, Judge.

        Jerome P. Wallingford, under appointment by the Court of Appeal, for Defendant and Appellant.
        Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Robert R. Anderson, Assistant Attorney General, J. Robert Jibson and Janine R. Busch, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-         This court has recently experimented in selected cases with memorandum opinions -- that is, opinions with little or no reference to the evidence or the procedural history of the action and with an abbreviated discussion of the relevant legal issues and authorities. We take the opportunity presented by appellant Steven Anthony Garcia's petition for rehearing to confirm the propriety of memorandum opinions in unpublished cases and to signal the bar that it will likely see an increase in the frequency of such opinions, civil and criminal, from this court. ¹

DISCUSSION
I.         Review by the Courts of Appeal can serve three purposes -- the determination of the legal correctness of the challenged trial court action, the progressive development of the law, and, to some degree but less so than review by the Supreme Court, the uniformity of the law in the jurisdiction. (See People v. Rojas (1981) 118 Cal.App.3d 278, 289; Aldisert, Opinion Writing (1990), § 2.9, p. 21; Cal. Rules of Court, rule 976(b).) ² The publication of an opinion of the Court of Appeal is warranted only when one or both of the latter two goals are advanced. Thus, rule 976(b) authorizes publication of those opinions which establish a new rule of law, apply an existing rule to a set of facts significantly different from the facts involved in a published opinion, modify or criticize an existing rule of law, resolve or create an apparent conflict in the law, address a legal issue of continuing public interest, or make a significant contribution to the legal literature by reviewing either the development of a common law rule or the legislative or judicial history of a provision of a constitution, statute, or other written law. (See also the Rules of the United States Court of Appeals for the Ninth Circuit ("Ninth Circuit Rules"), rule 36-2.)
        An opinion which has none of these attributes furthers only the "review for correctness" function of the Court of Appeal, and, as such, does not merit extensive factual or legal statement. ³ (People v. Rojas, supra, 118 Cal.App.3d at p. 289.) A meticulously crafted but unpublished legal essay, replete with extended analyses of law and expositions of reasoning and which distinguishes authorities and responds to every nuance of argument in the parties briefs, requires the devotion of a share of the Court of Appeal's limited human and material resources far out of proportion to the utility of the effort. (See 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 682, pp. 715-716.) An unpublished opinion has a limited audience, for the most part only the parties, and, beyond the ultimate disposition, is of little worth even to the parties. The parties already know (or should know) the facts of the case and its procedural history, and it is likely the winner does not care about how the court arrived at the favorable result and the loser probably would not be convinced by the reasoning no matter how long or specific it is, or, more to the point, how persuasive the court might think it is.
        To the extent an unpublished opinion may have a lingering legal significance to the parties or other affected persons or entities (see rule 977(b)), a comprehensive decision is still unneeded. Whether a prior memorandum opinion establishes the law of the case can be resolved by reference to the issues and reasons expressed in the opinion as dispositive of the appeal; any unmentioned issues would arguably be unbinding dicta. (Kowis v. Howard (1992) 3 Cal.4th 888, 892-893; Olsen v. Cory (1983) 35 Cal.3d 390, 399 [applying doctrine to issues "implicitly decided" in prior case]; Quackenbush v. Superior Court (2000) 79 Cal.App.4th 867, 874 [doctrine does not apply to dicta]; Muktarian v. Barmby (1968) 264 Cal.App.2d 966, 968 [doctrine does not apply to facts]; see Ninth Circuit Rules, rule 36-3(b).) If more information is necessary, resort can be had to the trial and appellate records. (9 Witkin, Cal. Procedure, supra, Appeal, § 906, p. 942 [records in the two trial court proceedings may be compared]; see People v. Woodell (1998) 17 Cal.4th 448, 456 [the record of conviction for the purposes of determining whether a prior conviction qualifies as a serious felony includes but is not limited to the appellate opinion].) Substantially the same is true where the question involves the application of the principles of res judicata and collateral estoppel. (See 7 Witkin, Cal. Procedure (1997) Judgments, § 292, p. 837; Ninth Circuit Rules, rule 36-3(b).) When a memorandum opinion is "relevant to criminal or disciplinary action or proceeding because it states reasons for a decision affecting the same defendant or respondent in another such action or proceeding," either the opinion, if it includes the pertinent information, or the records underlying the opinion, can be consulted. (Rule 977(b); see People v. Woodell, supra, 17 Cal.4th at p. 456.)
        Whatever interest an appellate opinion may have to the parties or persons or entities legally affected by the decision, it has essentially no value beyond them, because it provides no useful -- or perhaps more accurately, no usable -- guidance to the bench, bar, or public. (Rule 977(a).)
        The late Bernie Witkin long ago said what is even more compelling today:

        "Why do appellate courts write opinions in nearly all the appeals that come before them? Judges and lawyers have been asking this question with increasing concern, and no one has come up with a satisfactory answer. We plow and replow the fields of precedent, burying leading cases in an incredible mass of repetitive churnings of settled law, exhausting the appellate justices and the appellate lawyers, because it has always been done this way. But we are now faced with the realization that the individually prepared legal essay, the product of countless hours of precious judicial time, is an impossible procedure for handling today's monstrous caseload, and in the majority of appeals it serves no useful social purpose. [¶] ... [¶]

        "This is the heart of the problem: There is no reason and no time for legal essays to be written on all appealed cases, whether the essays are long or short. The full-scale opinion, stating the nature of the action, the issues, the facts, the law, and the reasoning that leads to the decision, should be reserved for cases in which that opinion will add something of significance to the law -- new principles or rules, or new applications of old principles or rules." (Witkin, Manual on Appellate Court Opinions (1977) § 131, pp. 255-256.)

        The memorandum opinion is properly used in cases where the result is controlled by an admittedly constitutional statute and which presents no special question of interpretation or application, cases where the result is controlled by an opinion of the Supreme Court of the United States or the Supreme Court of California, or, in the absence of either, where the result is consistent with an intermediate federal or state appellate decision with which the court agrees, cases where the factual contentions are subject to the routine application of the substantial evidence rule, cases decided by applying the authority of a companion case, cases in which the result is mandated by the United States Supreme Court, and cases where the appeal is not maintainable. (9 Witkin, Cal. Procedure, supra, Appeal, § 684, pp. 717-718; Witkin, Manual on Appellate Court Opinions, supra, § 135.) ⁴ Memorandum opinions may vary in style, from a stereotyped checklist or "fill in the blanks" form to a tailored summary of the critical facts and the applicable law. (9 Witkin, Cal. Procedure, supra, Appeal, § 681, pp. 714-715; Witkin, Manual on Appellate Court Opinions, supra, §§ 142; 143, pp. 265-266; Aldisert, Opinion Writing, supra, § 2.8, p. 20.)
        A memorandum decision does not automatically violate the constitutional mandate that appellate opinions state the reasons for the disposition. (Cal. Const., art. VI, § 14; Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1264; People v. Rojas, supra, 118 Cal.App.3d at pp. 288-289; 9 Witkin, Cal. Procedure, supra, Appeal, § 681, p. 714; Witkin, Manual on Appellate Court Opinions, supra, § 132, p. 256.) "[A]n opinion sufficiently states 'reasons' if it sets forth the 'grounds' or 'principles' upon which the justices concur in the judgment." (Lewis v. Superior Court, supra, 19 Cal.4th at p. 1262.) An appellate court is not required to address all of the parties' respective arguments, discuss every case or fact relied upon by the parties, distinguish an opinion just because a party claims it is apposite, or express every ground for rejecting every contention advanced by every party. (Id. at pp. 1263-1264; People v. Rojas, supra, 118 Cal.App.3d at p. 288-289.) The California Supreme Court has not been reluctant to give short shrift to deserving issues. (See e.g., People v. Mendoza Tello (1997) 15 Cal.4th 264; Linhart v. Nelson (1976) 18 Cal.3d. 641, 645 ["having examined defendants' other contentions, we find them of insufficient merit to warrant discussion"]; County of Nevada v. Superior Court (1974) 10 Cal.3d 663; Alfred B. v. Superior Court (1970) 3 Cal.3d 718; In Re Chargin (1970) 2 Cal.3d 617; Bradshaw v. Superior Court (1970) 2 Cal.3d 332; Cline v. Credit Bureau Of Santa Clara Valley (1970) 1 Cal.3d 908; County Of San Diego v. Superior Court (1970) 1 Cal.3d 677; People v. Seals (1970) 1 Cal.3d 574.)
        Of course, an adequate abbreviated opinion must not mask an inadequate abbreviated appellate review. A memorandum opinion, no matter its format, should represent the end-product of an internal evaluation by the court and its staff sufficient to insure that the disposition reflects the correct legal result. Ordinarily, the process will include substantiation of the material facts cited by the parties and confirmation of the controlling law, whether or not cited by the parties, and a thorough analysis of the arguments of the parties based upon the material facts and the applicable law. (See 9 Witkin, Cal. Procedure, supra, Appeal, § 682, p. 716.) When appropriate, the court always has the option of requesting supplemental briefing on any issue, raised or not by the briefs, the court believes might be dispositive. (See Gov. Code, § 68081; Public Resources Protection Assn. v. Dept. of Forestry & Fire Protection (1994) 7 Cal.4th 111, 117, fn. 6.)
        Finally, a memorandum opinion does not impede a party's ability to secure review by the California Supreme Court. First, the Supreme Court generally acts only where necessary to secure uniformity of decision or to settle an important question of law in matters of statewide impact. (Cal. Rules of Court, rule 29(a); In re Marriage of Assemi (1994) 7 Cal.4th 896, 912, (dis. Opn. of Mosk, J.); Southern Cal. Ch. of Associated Builders etc. Com. v. California Apprenticeship Council (1992) 4 Cal.4th 422, 431, fn. 3.) Issues of this scale are not appropriate for memorandum dispositions, and thus likely will not be candidates for Supreme Court attention. (Lewis v. Superior Court, supra, 19 Cal.4th at p. 1264; People v. Groves (1935) 9 Cal.App.2d 317, 321-324.) Second, if a party disagrees with the Court of Appeal's selection of the material facts or identification of the applicable law, the party can petition for a rehearing and point out the deficiencies in the court's opinion. (Cal. Rules of Court, rule 29(b)(2); see Torres v. Parkhouse Tire Service, Inc. (2001) 26 Cal.4th 955, 1000, fn. 2; People v. Slayton (2001) 26 Cal.4th 1076, 1083, fn. 6; Lewis v. Superior Court, supra, 19 Cal.4th at p. 1264; Artiglio v. Corning, Inc. (1998) 18 Cal.4th 604, 608, fn. 2; People v. Groves, supra, 9 Cal.App.2d at pp. 321-324.) ⁵

[This Part Is Not Certified for Publication]
II.*
A.         On October 24, 1999, an information was filed in the Kern County Superior Court charging appellant Steven Anthony Garcia with six counts of forcible rape (Pen. Code, ⁶ § 261, subd. (a)(2); counts 1, 2, 4-7); continuous sexual abuse (§ 288.5, subd. (a); count 3); and, forcible oral copulation (§ 288a, subd. (c); count 8).
        On December 8, 1999, jury trial began.
        On December 10, 1999, appellant was convicted of all charges.
        On January 11, 2000, the trial court sentenced appellant to a 16-year upper limit for count 3, the principal term, and 6-year midterm sentences for each remaining count, all terms to run consecutively, for a total of 58 years.
        The trial court did not abuse its discretion under Evidence Code section 352 by ruling during trial that the prosecution would be permitted to impeach appellant, if he testified, with evidence of appellant's 16-year-old conviction for a violation of section 245, subdivision (a) (assault with a deadly weapon or with force likely to cause serious injury).

B.         First, appellant is incorrect that the trial court "failed to properly consider the factors relevant to the Evidence Code section 352 weighing process." To the contrary, the trial court expressly stated when it ruled on the motion that it had assessed the relevant considerations. Specifically, the trial court said:

"The case will come down to an issue of credibility more than anything else. ... So having in mind the criteria under 352 and balancing the relevance against any prejudicial impact on the fact finders in this case, I am of the view that the prior should be admitted for the sole purpose of impeaching [appellant], in the event he elects to take the stand. (Emphasis added.)

        The trial court need not undertake an on-the-record weighing of prejudice against probative value or even state that he or she has done so; the appellate court will infer, if supported by the record, that the relevant balancing process was engaged in. (People v. Williams (1997) 16 Cal.4th 153, 213; People v. Padilla (1995) 11 Cal.4th 891, 924.) Here, there is no reason to resort to any inference because the record reflects the trial court in fact did what Evidence Code section 352 required it to do.
        Second, the trial court's ruling was not an abuse of discretion. Only three of the four Beagle (People v. Beagle (1972) 6 Cal.3d 441, 453) factors are relevant here. ⁷ As to the first factor, a remote conviction is nonetheless admissible if the defendant has engaged in criminal activity during the intervening period. (Id. at p. 453 [remote prior admissible if the defendant has not led a "legally blameless life" in the interim]; People v. Green (1995) 34 Cal.App.4th 165, 183 [no abuse of discretion in admitting 20-year-old prior because, during the intervening years, the defendant was convicted of five separate crimes]; People v. Campbell (1994) 23 Cal.App.4th 1488, 1496 [no abuse of discretion in admitting a 10-year-old prior conviction because, during the intervening years, the defendant was convicted twice of driving under the influence and once of driving an unregistered vehicle].) Here, in the 16 years between Garcia's assault conviction and his trial on the underlying charges, he had been convicted of illegally possessing a firearm (§ 12020); twice driving under the influence (Veh. Code, § 23152, subd. (b)); and driving under the influence within seven years of a prior related conviction (former Veh. Code, § 23165). ⁸
        As to the next Beagle factor, though an assault conviction does not weigh as heavily with respect to relevance as does a crime based on dishonesty or lack of integrity, an assault conviction is entitled to some measurable weight. (People v. Castro (1985) 38 Cal.3d 301, 315.) ⁹
        As to the remaining Beagle factor, the two crimes were not the same or similar. (People v. Beagle, supra, 6 Cal.3d at p. 453.)
        Against these factors militating in favor of admission there was only the bare possibility of prejudice based upon the disclosure to the jury that appellant had a criminal record, but this potentiality is always present when a prior conviction is admitted to impeach a testifying defendant.
        At the core of this case was the jury's ultimate evaluation of the competing credibility of appellant and the victim, the only two witnesses to the crimes charged. Given the preponderance of the factors favoring admission of appellant's prior as relevant to his credibility, we cannot say the trial court erred as a matter of law in ruling as it did. Appellant's argument on appeal is founded upon nothing more than his different opinion about the weight to be given to the three relevant Beagle factors. Such a difference of opinion is not a basis for overturning the trial court's discretionary decision. (See People v. Rodrigues (1994) 8 Cal.4th 1060, 1124 [discretion is abused when the trial court acts in an "arbitrary, capricious or patently absurd manner"].)
        In any event, appellant was not prejudiced by any claimed error on the part of the trial court in light of the manner in which the prior conviction was actually treated during trial. (People v. Cudjo (1993) 6 Cal.4th 585, 611 [standard of People v. Watson (1956) 46 Cal.2d 818, 836 applies to claims of Evidence Code section 352 error].) Appellant, in an attempt -- a probably successful one -- to mitigate the damage that might accrue from the trial court's decision, brought out the existence of the 16-year-old prior on direct examination. The brief testimony on the subject was as follows:

        "Q. [DEFENSE COUNSEL] And you've had a felony conviction in 1983?

        "A. [APPELLANT] Yes.

        "Q. And does that have anything to do, as far as you're concerned, with this case?

        "A. No, sir, it doesn't."

        The prosecutor made no reference to the prior conviction at any time during trial.
        In effect, appellant's prior was sanitized fully and relegated to insignificance by his own testimony. Appellant's conclusory argument in his brief that the disclosure of the prior to the jury "improperly tilted the evidentiary balance in favor of the prosecution and caused the jury to reject appellant's testimony for the wrong reasons" is pure speculation.

C.         Any error on the part of the trial court in not referring to counts 5, 6, and 7 -- which charged a forcible rape against the victim as a minor -- when the trial court instructed on both the definition of consent (CALJIC No. 1.23.1) ¹⁰ and the defense of reasonable belief in consent (CALJIC No. 10.65) was harmless beyond a reasonable doubt. ¹¹ (People v. Flood (1998) 18 Cal.4th 470, 502-503.) ¹²
        The jury likely did not conclude, with respect to the three counts omitted from the two instructions, "that consent is not an issue if the alleged victim was a minor child when the act occurred" because other instructions on the omitted counts, set forth in CALJIC No. 10.00, expressly (1) explained to the jury that the crime of forcible rape charged in counts 5, 6 and 7 was "an act of sexual intercourse with another person who is not the spouse of the perpetrator accomplished against that person's will by means of force, violence, duress, or fear of immediate and unlawful bodily injury to that person" and (2) defined the meaning of "against that person's will" as being "without the consent of the alleged victim." (Emphasis added.) If anything, and particularly because the jury was also told that it was to "Consider the instructions as a whole and each in light of all the others" (CALJIC No. 1.01), had the jury had any question about the meaning of "consent" under CALJIC No. 10.00, the jury probably referred to CALJIC No. 1.23.1 for a definition of the word even though CALJIC No. 1.23.1 did not mention counts 5, 6 and 7.
        In addition, appellant at trial did not claim he had consensual sexual intercourse with the victim as a minor on the occasions referred to in counts 5, 6 and 7. Instead, he denied any such sexual contact with the victim as a minor. While it is true that the prosecution introduced pretrial statements by appellant admitting to sexual encounters with the victim during her minority and asserting they were all consensual, the presence of this evidence does not support a finding that appellant was harmed by the alleged instructional errors. The jury found appellant guilty of forcible rape under counts 1, 2 and 4 -- which charged rapes that occurred after the victim had attained majority -- despite appellant's trial testimony that he had had only two sexual encounters with the victim, both of which occurred when the victim was over 18 and both of which were consensual. The jury obviously disbelieved appellant's trial testimony with respect to the two incidents he admitted and disbelieved his assertion that only these two occurred after the victim had attained majority. In addition, by finding appellant guilty under counts 5, 6 and 7, the jury disbelieved his trial testimony that he had had no sexual encounters with the victim as a minor. The jury having discredited all of appellant's trial testimony which conflicted with the victim's, including appellant's claims of consent when the victim was of age, it is virtually impossible to conclude that the jury would have done a complete turn about and for some reason entirely undisclosed by this record credited only appellant's pretrial claim that all of his sexual encounters with the victim when she was under age were consensual.

D.         CALJIC Nos. 2.27 ¹³ and 10.60, ¹⁴ given in combination, did not lower the prosecution's burden of proving beyond a reasonable doubt that appellant committed the charged crimes. (People v. Gammage (1992) 2 Cal.4th 693, 700-701.) The contention having been decided adversely to appellant by the California Supreme Court, we are in no position to "write an opinion suggesting the need for reconsideration of this issue by" that court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Appellant if he wishes may take up the point directly with the Supreme Court.

E.         Remand for resentencing as to count 8 is required. The trial court sentenced appellant to the aggravated term of 16 years on count 3, which was designated as the principal term, and to seven full consecutive midterms of 6 years each on counts 1, 2, 4, 5, 6, 7, and 8, for a total sentence of 58 years. The oral record of the sentencing hearing reflects that the trial court believed the full midterm consecutive sentences on the subordinate counts were each mandated by section 667.6, subdivision (d), which prescribes such sentences when the specified sex crimes are committed against the same victim on separate occasions.
        While the trial court was correct with respect to counts 1, 2, 4, 5, 6, and 7, it was not correct with respect to count 8, the oral copulation charge, because the trial testimony of the victim established that the single charged act of oral copulation occurred during the period from March 31, 1999, to September 26, 1999, on the same occasion (at the same time) as one of the charged rapes. ¹⁵ The victim testified in relevant part:

        "Q. [Prosecutor] Okay. And on these instances where [appellant] would have intercourse with you, do you recall if any of them also involved him touching your vagina with his mouth?

        "A. [Victim] Yeah.

        "Q. Okay. But you don't remember which ones?

        "A. No, I don't remember which ones.

        "Q. But not all of [sic] time?

        "A. Not all the time.

        "Q. Okay. At least once?

        "A. Yeah. At least once.

        "Q. And would he place part of the -- well, what would he do with his mouth?

        "A. He would -- he would put his mouth into my vagina and lick it.

        "Q. And you don't know which one of these specific incidents he did that, but at least one of them?

        "A. It was at least one of them, yeah." (Italics added.)

        Though a little confusing, we read this testimony as establishing that the victim was orally copulated at least one time, and it occurred on the same occasion as one of the incidents of sexual intercourse forced upon the victim by appellant. Therefore, the mandatory full term consecutive sentencing provision of section 667.6, subdivision (d), did not apply to count 8. Instead, the discretionary full term consecutive sentencing provision of section 667.6, subdivision (c) did apply; this statute permits the court to elect not to impose full term consecutive sentences when the specified sex crimes are committed against the same victim on the same occasion.
        The People do not contest appellant's view of the law or any aspect of appellant's argument that his trial counsel was ineffective by failing at the sentencing hearing to timely object to the court's statement that full term consecutive sentencing was mandatory for count 8. (See Strickland v. Washington (1984) 466 U.S. 668; accord People v. Osband (1996) 13 Cal.4th 622, 664.) The People's only argument is based upon an interpretation of the victim's testimony to the effect that there were several oral copulations, at least one of which occurred on an occasion separate from any rape, thereby activating the mandatory full term consecutive mandate of section 667.6, subdivision (d). ¹⁶
        The victim's testimony cannot be so read and there is no basis in it for the conclusion she affirmatively identified a single oral copulation out of many which occurred separately from any rape. In the record extract set out above, the plural references in the prosecutor's questions and the victim's answers related to the rapes and the singular references referred to at least one oral copulation. If it were not so, the victim's testimony would be made nonsensical.

[End of Part Not Certified for Publication]
DISPOSITION         The sentence as to count 8 is vacated, and the matter is remanded for resentencing on that count alone. In all other respects, the judgment is affirmed.


We concur:
        ARDAIZ, P.J.
        HARRIS, J.


*        Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of Part II.

¹         In this case, our original opinion included a brief procedural history followed by a pointed discussion of four issues. We included the facts relevant to the issues as we resolved them, but omitted a comprehensive statement of all the evidentiary facts adduced at trial. Appellant's petition for rehearing questioned whether our limited factual references illegally hampered his right to petition for review in the California Supreme Court. In a subsequent letter brief, however, appellant acknowledged that our opinion did not prejudice his right to seek review because rule 29(b)(2) permitted him to point out, in a petition for rehearing in this court, any omitted fact he claimed was critical.

²         Unless otherwise stated, all subsequent citations to a "rule" shall be to the identified rule of the California Rules of Court.

³         What we say about unpublished cases applies equally to unpublished issues. (See Rule 976.1 [partial publication].)

⁴         One commentator has taken the position that a memorandum opinion is appropriate only where the trial court ruling is affirmed. (Aldisert, Opinion Writing, supra, §§ 2.8-2.9, pp. 20-21 ["[A] published opinion is necessary in every case where the judgment of the trial court is reversed or where a petition to review an administrative agency order is granted"], emphasis omitted.) We will not go nearly this far. The considerations which bear upon the decision to publish, at least in the California Courts of Appeal, do not include the nature of the disposition.

⁵         California Rules of Court, rule 29(b)(2) provides: "As a matter of policy, on petition for review the Supreme Court normally will not consider ... any material fact that was omitted from or misstated in the opinion of the Court of Appeal, unless the omission or misstatement was called to the attention of the Court of Appeal in a petition for rehearing."
⁶ *        See footnote, ante.

⁷         All further statutory references are to the Penal Code unless otherwise stated.

⁸         The last Beagle factor (the effect of the failure of the defendant to testify out of fear of impeachment with the prior) is not in issue because appellant did testify at trial.

⁹         Citing no authority, appellant asserts, "The record suggests that [he] developed an alcohol problem during the 1990's, but does not reveal the type of continuing criminality that would permit use of his 1983 prior conviction for impeachment purposes sixteen years after it occurred."

¹⁰         A violation of section 245, subdivision (a) is a crime of moral turpitude and therefore relevant for impeachment purposes. (People v. Elwell (1988) 206 Cal.App.3d 171, 177.) Appellant does not contend otherwise.

¹¹         The trial court stated in the written and oral instructions,

"As to counts 1, 2, 4, and 8, the word 'consent' means positive cooperation in an act or attitude as an exercise of free will. A person must act freely, voluntarily, and have knowledge of the nature of the act or transaction involved."

¹²         The trial court stated in the written and oral instructions,

"In the crimes charged in Counts 1, 2, 4, and 8, the criminal intent must exist at the time of the commissions of the crimes so charged. [¶] There is no criminal intent if the defendant had a reasonable and good faith belief that the other person voluntarily consented to engage in the conduct described in the counts. Therefore, a reasonable and good faith belief that there was voluntary consent is a defense to such charges. [¶] However, a belief that is based upon ambiguous conduct by an alleged victim that is the product of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person is not a reasonable and good faith belief. [¶] If, after consideration of all of the evidence you have a reasonable doubt that the defendant had a criminal intent required in those counts, you must find him not guilty of the counts charged in Counts 1, 2, 4, and 8."

¹³         We assume without deciding that the error is one which "improperly describes or omits an element of an offense" and therefore is one which requires review under the constitutional test of Chapman v. California (1967) 386 U.S. 18; see People v. Flood, supra, 18 Cal.4th at pp. 502-503; see Neder v. United States (1998) 527 U.S. 1, 9.)

¹⁴         CALJIC No. 2.27 states,

        "You should give the testimony of a single witness whatever weight you think it deserves. Testimony by one witness which you believe concerning any fact is sufficient for the proof of that fact. You should carefully review all the evidence upon which the proof of that fact depends."

¹⁵         CALJIC No. 10.60 states,

        "It is not essential to a finding of guilt on any crime charged that the testimony of the witness with whom sexual relations is alleged to have been committed be corroborated by other evidence."

¹⁶         In sentencing appellant on count 8, the trial court stated, "As to count 8, [appellant] is sentenced to the Department of Corrections for the mid term of six years; that sentence shall be served fully consecutively to the sentence imposed above, for a total fixed term of 58 years. Consecutive sentences are required as a matter of law." (Italics added.)

1        The People argue on appeal:

"Sarah was questioned specifically by the prosecutor concerning the time interval involved in the oral copulation charge. Sarah testified that during the time period of the charge...when [Garcia] forcibly orally copulated her, those crimes sometimes occurred in connection with a rape, and but [sic] 'not all the time.' Most importantly, when the prosecutor asked Sarah if the forcible oral copulations had occurred on a separate occasion from a rape, she responded that 'at least once' such a crime was separate." (Italics added.)