NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

GRIMES, J.

SUMMARY

Defendant was accused of rape and of two counts of oral copulation, and the prosecution alleged defendant committed these crimes during a residential burglary with intent to commit forcible rape and forcible oral copulation. At his first trial, defendant was convicted of rape, but the jury deadlocked on the attendant burglary allegations and also deadlocked on the oral copulation charges. At his second trial, the jury found that the rape had been committed during a residential burglary with the intent to commit forcible rape, and also convicted defendant of the oral copulation charges and found true both of the special allegations attached to those counts.

Defendant appeals. He contends that, although he made no objection below, the trial court should have bifurcated the oral copulation charges and tried them before trying the enhancements. He further contends that, if bifurcation was unwarranted, the trial court should have given a cautionary instruction (though one was not requested) as to the limited purpose for which the jury could consider defendant's rape conviction. We reject these contentions and affirm the judgment.

FACTS

Sherode Goodlow was charged in a third amended information with the forcible rape of S.P. (count 1) and with two counts of forcible oral copulation with the same victim (counts 2 and 3). (Pen. Code, §§ 261, subd. (a)(2) & 288a, subd. (c).))1 The information further alleged under section 667.61 that defendant committed all three offenses during a residential burglary with the intent to commit forcible rape and forcible oral copulation (§ 667.61, subds. (a) & (d)(4)) and during the commission of a residential burglary (§ 667.61, subds. (b) & (e)(2)).

At defendant's first trial, the jury convicted him of forcible rape. The jury could not agree on the special allegations as to that count and could not agree on the forcible oral copulation counts. A second trial followed eight months later on the mis-tried special allegations attached to the rape count and the forcible oral copulation counts and their respective enhancements.

The evidence at the second trial showed the following. On December 29, 1997, the victim was asleep in the bedroom of her Long Beach apartment with her two young children next to her. She awoke in the early morning hours to find defendant choking her. Defendant told her not to make any noise or he would hurt her and, holding her neck, told her to walk with him into the living room. In the living room, defendant checked the front door to be sure it was locked and told the victim to take her pants off. The victim was frightened and did as she was told. Defendant then licked the victim's vaginal area. The victim asked defendant not to hurt her. Defendant asked the victim to lie down on the sofa and placed his penis in her mouth. Then defendant vaginally raped the victim.

After defendant finished raping the victim, he asked her to take off her bracelet (which she did) and asked her to go into the bathroom to clean herself. As she was walking past the bedroom, defendant saw her telephone and disconnected it. The victim became more fearful and thought defendant would not let her go; she screamed. Defendant then pushed her back into the living room, and as she fell down on her face defendant used the telephone to hit her on the back of her neck. Then defendant ran out of the house through the kitchen door, taking the victim's bracelet and watch with him.

The victim called her younger sister, who lived nearby. The victim was crying and at first her sister did not realize who was calling. The victim told her sister that she had been raped. The victim's sister (and her parents) immediately went to the victim's apartment. The victim's sister saw a lamp tipped over in the bedroom, and the kitchen window was wide open. A box was right below the window. She saw the victim's purse on the sofa with the wallet out, and it looked like someone had gone through the purse. The victim was crying and gagging. After checking on the children, the victim's sister called the police.

When the police arrived, the victim described the defendant, and recalled that he was wearing gloves. She said she thought she could identify him if she saw him again. She told the police her purse was not where she had left it. She then went to the hospital, where a nurse conducted a sexual assault examination and took photographs. The nurse took oral and vaginal swabs and observed tears in the victim's labia and redness in her throat. No fingerprints were identified. Soon after the attack, the victim moved across the country because she did not want anything to remind her of the incident.

Years passed. In September 2005, detectives were informed of a "hit" in the CODIS national DNA database matching the vaginal sample taken from the victim. The match identified the defendant, who then lived in Chicago (but had lived in Long Beach). Chicago police obtained an oral swab from defendant in July 2006. Forensic testing comparing the victim's vaginal swab sample to defendant's genetic profile resulted in a genetic match (with odds of one in 201.2 quadrillion). An arrest warrant was issued in December 2007, and defendant was returned to California.

Defendant, who did not testify at the first trial, did so at the second trial. He said that he was returning from a friend's house when the victim approached him; they agreed to have sexual intercourse for $50 or he could pay $100 for "everything." They went to a hotel room where they engaged in consensual intercourse (no "other kinds" of sex), after which the victim wanted $100 instead of $50, so defendant refused to pay her anything and left.

Before closing arguments, the court stated to counsel:

The prosecutor responded, "So, in other words, Your Honor, can I say the issue of the rape is no longer before you or is not before you?" and the court replied, "That's right." The prosecutor said, "All — you do not have to determine is whether or not the victim was raped. Simply, you must determine if this rape occurred in the course of a residential burglary." The court replied, "You are right," and defense counsel said, "Yes."

In closing arguments, the prosecutor stated:

Immediately after closing arguments, the court gave the jury two special instructions. The court said:

The court then told the jury the elements necessary to prove the special allegation, and concluded, "The People have the burden of proving each allegation beyond a reasonable doubt. If the People have not met this burden, you must find that allegation has not been proved." The court gave a similar instruction with respect to the allegations that the crimes were committed during the commission of burglary.

The jury found true the allegations that the rape had been committed during a residential burglary with the intent to commit forcible rape (and that the offense was committed during a residential burglary). The jury also found defendant guilty of both counts of forcible oral copulation and found true both of the special allegations attached to those counts.

Defendant was sentenced to a total of 41 years to life. This consisted of 25 years to life as the base term on Count 2 (forcible oral copulation, committed during a residential burglary with intent to commit forcible oral copulation), plus the high term of eight years (consecutive) for the second count of forcible oral copulation, plus the high term of eight years (consecutive to the other two counts) for the forcible rape. Other fines were imposed and orders made that are not at issue in this appeal.

DISCUSSION

We precede our discussion of defendant's contentions with a brief explanation of the penalty enhancements in this case.

The penalty for rape and for forcible oral copulation, absent other allegations, is a term of three, six or eight years. (§ 264, subd. (a), § 288a, subd. (c)(2)(A).) Section 667.61, however, provides an alternative and harsher sentencing scheme for felony sex crimes committed under particular circumstances, and is sometimes called the "One Strike" law. (People v. Anderson (2009) 47 Cal.4th 92, 99, 107 (Anderson).) Under section 667.61, a defendant who is convicted of rape or oral copulation (or other listed sex crimes), and is also found to have committed that offense during the commission of a residential burglary with intent to commit the rape or oral copulation, must be sentenced to 25 years to life. (§ 667.61, subds. (a), (c) & (d)(4).) (Similarly, a defendant who is found to have committed the rape or oral copulation during the commission of a burglary must be sentenced to 15 years to life.) (§ 667.61, subds. (b), (c) & (e)(2).)

When, as happened at defendant's first trial, "the jury cannot agree whether the One Strike allegations have been proven, the conviction on the substantive offense stands and a mistrial of necessity is declared as to the factual sentencing allegations." (Anderson, supra, 47 Cal.4th at p. 103.) In those circumstances, Anderson held, the mis-tried penalty allegations may be retried, and the retrial need only encompass the mis-tried allegations, not the underlying substantive offense. (Id. at pp. 98, 123.)

Here, the retrial, without objection from defense counsel, encompassed both the mis-tried sentencing allegations attached to the rape conviction and the two mis-tried oral copulation counts with their One Strike sentencing allegations.

On appeal, defendant contends that the trial court should have bifurcated the second trial, so that the jury could first determine guilt on the forcible oral copulation charges, and thereafter determine the penalty enhancements. Assuming bifurcation was unnecessary, defendant says the trial court should have fashioned cautionary instructions expressly limiting the scope of the jury's consideration of the rape conviction. Neither claim has merit.

1. The Bifurcation Claim

Defendant argues the trial judge was obligated to bifurcate the trial on its own motion and that its failure to do so was prejudicial constitutional error that was structural, requiring reversal without assessment of prejudice. We disagree.

First, there was no "structural error." A constitutional error is structural if it is a "`defect[] in the constitution of the trial mechanism, which def[ies] analysis by "harmless-error" standards . . . .'" (Sullivan v. Louisiana (1993) 508 U.S. 275, 281.) Examples are the total deprivation of the right to counsel, trial by a biased judge, or "a misdescription of the burden of proof, which vitiates all the jury's findings." (Id. at pp. 281, 279.) A structural error, "with consequences that are necessarily unquantifiable and indeterminate" (id. at p. 282), contrasts with trial errors that occur during presentation of the case "`and which may therefore be quantitatively assessed in the context of other evidence presented.'" (Id. at p. 281.) No structural defect occurred here.

Second, defendant forfeited his claim of error by failing to raise it in the trial court. (See People v. Thornton (2007) 41 Cal.4th 391, 427 [defendant forfeited claim that evidentiary rulings violated confrontation clause of Sixth Amendment by failing to raise the claim before the trial court]; People v. Saunders (1993) 5 Cal.4th 580, 590 ["`"[n]o procedural principle is more familiar . . . than that a constitutional right" . . . "may be forfeited in criminal . . . cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it,"'" quoting United States v. Olano (1993) 507 U.S. 725, 731].)2

Third, even if the claim had not been forfeited, we would find no merit in it. The substance of defendant's argument is that the effect of the failure to bifurcate the trial on the oral copulation offenses from the penalty enhancements amounted to "a directed verdict of guilty on the offenses." This is because "two key elements of the forcible copulation counts were also critical elements of rape: force and lack of consent." Therefore, defendant tells us, when the jury was told the rape was "already established," the two elements of force and lack of consent were removed from the jury's consideration, resulting in a directed verdict. (See People v. Figueroa (1986) 41 Cal.3d 714, 724, 725 ["[t]he prohibition against directed verdicts `includes perforce situations in which the judge's instructions fall short of directing a guilty verdict but which nevertheless have the effect of so doing by eliminating other relevant considerations if the jury finds one fact to be true'"; "`a jury instruction which . . . [takes] an issue completely from the jury' is reversible error"].)

We reject defendant's claim. The jury was instructed that it was to consider each offense separately:

Each crime was a separate act and the jury was instructed as to the elements of each crime. The rape involved an act different from the acts of oral copulation, and the jury was instructed that the prosecution had to prove that the act of oral copulation "was accomplished against the alleged victim's will by means of force, violence, duress, menace or fear . . . ." The fact that the jury was told that the rape was "already established" did not "eliminat[e] other relevant considerations" with respect to the oral copulation claims — the instructions tell the jury exactly the contrary. The jury's knowledge that the rape occurred did not operate to relieve the jury of its duty to decide whether acts of oral copulation occurred and whether those acts — as opposed to the act of rape — occurred by force and without consent. In short, contrary to defendant's claim, nothing in the trial court's instructions, or in its "failure" to bifurcate the trial of the sex offenses from the penalty enhancements, "effectively prevent[ed] the jury from finding that the prosecution failed to prove a particular element of the crime beyond a reasonable doubt." (People v. Flood (1998) 18 Cal.4th 470, 491.)

Defendant insists that the Supreme Court in Anderson "recognized the potential for a directed verdict where retrial is ordered solely on a One Strike enhancement and the jury is told that the defendant was convicted of the underlying offense." This is wishful thinking on defendant's part; Anderson held that retrial on a penalty allegation on which the jury has deadlocked does not violate double jeopardy principles and may be limited to the deadlocked allegation alone (a situation in which the jury would necessarily know that the defendant was convicted of the underlying offense). The only support defendant can muster comes from Justice Moreno's concurring opinion in Anderson, which states in its entirety:

Defendant argues that the defendant's "`disadvantageous position'" will be "even greater" where, as here, the jury must assess both the truth of the enhancement on the rape conviction and whether the prosecution proved the commission of the oral copulation offenses beyond a reasonable doubt. This is because "jurors can — and they will — consider the fact that defendant was convicted of another sex offense, on the same evidence, when assessing whether the prosecution proved the offenses before them." This is just another version of the same argument we have just rejected: the jury was properly instructed that each count charged a distinct crime and each count was to be decided separately. We decline to assume that the jury was incapable of following these instructions simply because it was told the rape was already established.

Finally, even if we were to assume bifurcation is necessary when One Strike allegations are retried along with other mis-tried sex offenses, the assumed error in this case would be harmless beyond a reasonable doubt. The DNA evidence showed that defendant's semen was found in the victim's vagina; the victim testified to the acts of oral copulation and the circumstances — which clearly showed duress and lack of consent — under which those acts were accomplished; and the victim and her sister testified as to how it appeared defendant entered the apartment and to the removal of the victim's bracelet and watch from the apartment. On this record, defendant could not have been prejudiced by the fact that the oral copulation offenses were not tried separately from the sentencing enhancements.

2. The Cautionary Instruction Claim

Defendant also argues that, even if we find a bifurcated trial was unwarranted, the trial judge should have fashioned cautionary instructions "so that jurors would not misuse the rape conviction by receiving it as propensity evidence or as proof of the oral copulation charges." Specifically, the jury should have been told, defendant asserts, that defendant's rape conviction (1) should not be considered when assessing guilt on the oral copulation charges, (2) does not relieve the prosecution of its burden to prove every element of the charges and enhancements beyond a reasonable doubt, (3) may not be considered to prove defendant has a disposition to commit crimes, and (4) may be considered only "`for the limited purpose of determining if it tends to show that'" the rape was committed in the course of a burglary, and for no other purpose.

As with his bifurcation claim, defendant made no request for a cautionary instruction at trial, and therefore forfeited any such claim. (See People v. Hudson (2006) 38 Cal.4th 1002, 1011-1012 ["`[g]enerally, a party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language'"].) And, as with his other claim, and for the reasons previously stated, even if we posit an error in failing to give a cautionary instruction, the error would have been harmless beyond a reasonable doubt.

DISPOSITION

The judgment is affirmed.

WE CONCUR:

BIGELOW, P.J.

FLIER, J.