Jeff

On October 20, 1986, the Madera County District Attorney filed an information in superior court charging defendant as follows: counts I, II, III, XII, XIII, XIV, XXIII, XXIV and XXV—rape (Pen. Code, § 261, subd. (2)); 1 counts IV, V, VI, XV, XVI, XVII, XXVI, XXVII and XXVIII—sodomy (§ 286, subd. (c)); counts VII, VIII, XVIII, XIX, XXIX and XXX—oral copulation (§ 288a, subd. (c)); and counts IX, X, XI, XX, XXI, XXII, XXXI, XXXII and XXXIII—lewd and lascivious conduct with a child under age 14 (§ 288, subd. (a)). The district attorney further alleged in the commission of the offenses defendant engaged in substantial sexual conduct (§ 1203.066, subd. (a)(8)), occupied a position of *314 special trust (§ 1203.066, subd. (a)(9)), and committed carnal abuse upon a female under age 10 (§ 645).

After trial, the jury returned verdicts finding defendant guilty on all counts and finding the special allegations to be true. At the sentencing hearing, the trial court denied defendant probation and sentenced him to 27 years in state prison. The court imposed the lower term of three years on counts I, II, III, XII, XIII, XIV, XXIII, XXIV and XXV (rape), with each count to be fully…

I dissent from part I of Justice Martin’s opinion holding there was insufficient evidence to support the jury’s finding that defendant was guilty of nine counts of rape of Gypsy. This holding follows from the lead opinion’s conclusion that “there is no substantial evidence that defendant accomplished the acts of sexual intercourse by means of fear of immediate and unlawful bodily injury.” (Ante, p. 328.) The majority could properly have arrived at that conclusion as to all the rape charges only if it deemed the unequivocal testimony of the victim to be not reasonable in nature, credible and of solid value when considered in light of the totality of the circumstances. (People v. Barnes (1986) 42 Cal.3d 284, 303-307 [ 228 Cal.Rptr. 228 , 721 P.2d 110 ].)

In this case, the victim testified unequivocally she followed defendant’s directions and submitted to his sexual acts because she was afraid not to do so. She explained she feared what might happen to her mother, her stepfather or her. That testimony was necessarily evaluated by the jury in light of *345 the testimony of the victim, defendant and others that defendant and the victim’s stepfather Karl had a fistfight in 1983. A…

I dissent from that portion of part III of Justice Martin’s lead opinion holding that the prosecution presented evidence sufficient to prove each of the nine acts of sodomy charged in counts IV, V, VI, XV, XVI, XVII, XXVI, XXVII, and XXVIII; each of the six acts of oral copulation charged in counts VII, VIH, XVIII, XIX, XXIX, and XXX; and each of the nine acts of lewd and lascivious conduct with a child under age fourteen charged in counts IX, X, XI, XX, XXI, XXII, XXXI, XXXII, and XXXIII. For reasons set forth in this court’s opinions in People v. Van Hoek (1988) 200 Cal.App.3d 811 [ 246 Cal.Rptr. 352 ], review denied August 18, 1988, and People v. Atkins (1988) 203 Cal.App.3d 15 [ 249 Cal.Rptr. 863 ], I would hold that, except for two acts of sexual intercourse in 1984 *346 and one act of sodomy in 1981, the People failed to meet their burden of proving a specific offense for each of the charged offenses.

In Van Hoek and Atkins, after a discussion of People v. Castro (1901) 133 Cal. 11 [ 65 P. 13 ] and People v. Williams (1901) 133 Cal. 165 [ 65 P. 323 ], we stated, “Implicit in the cases requiring specificity of charges and the charges being supported by specific testimony…

MARTIN, Acting P.J.

On October 20, 1986, the Madera County District Attorney filed an information in superior court charging defendant as follows: counts I, II, III, XII, XIII, XIV, XXIII, XXIV and XXV — rape (Pen. Code, § 261, subd. (2)); [1] counts IV, V, VI, XV, XVI, XVII, XXVI, XXVII and XXVIII — sodomy (§ 286, subd. (c)); counts VII, VIII, XVIII, XIX, XXIX and XXX — oral copulation (§ 288a, subd. (c)); and counts IX, X, XI, XX, XXI, XXII, XXXI, XXXII and XXXIII — lewd and lascivious conduct with a child under age 14 (§ 288, subd. (a)). The district attorney further alleged in the commission of the offenses defendant engaged in substantial sexual conduct (§ 1203.066, subd. (a)(8)), occupied a position of special trust (§ 1203.066, subd. (a)(9)), and committed carnal abuse upon a female under age 10 (§ 645).

After trial, the jury returned verdicts finding defendant guilty on all counts and finding the special allegations to be true. At the sentencing hearing, the trial court denied defendant probation and sentenced him to 27 years in state prison. The court imposed the lower term of three years on counts I, II, III, XII, XIII, XIV, XXIII, XXIV and XXV (rape), with…