Opinion
BUTZ, J.—
While on patrol in his official capacity as a police officer in West Sacramento, defendant Sergio Alvarez induced five women he encountered to provide him sexual favors, often to avoid being taken to jail. A jury convicted defendant of multiple counts of aggravated kidnapping, oral copulation under threat of authority and by duress, and rape under threat of authority and by duress. The jury also sustained kidnapping, residential burglary, and multiple victim sentencing enhancements. He now appeals, asserting there is insufficient evidence to support a number of his convictions, and the trial court made various instructional and sentencing errors. In the published portion of the opinion (pts. 1.1, 1.1.1, 1.1.2, 1.1.3, and 1.1.5 of the Discussion, post) we address limitations on the lawful arrest defense to kidnapping. We will reverse the judgment as to several convictions, modify defendant’s sentence as to others, remand for retrial as to one count, and otherwise affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Terri G. (Counts 1-3)
Toward the end of August 2012, Terri G. was walking to her friend’s house at about 4:00 a.m. when she was stopped by a police officer in a patrol car. Terri G. had been carrying methamphetamine that morning, but dropped it at a telephone booth before the officer stopped her. The officer pulled his car in front of her, got out of the car, and began searching through her purse. He [993] begán looking through her phone, asking if she was “working” and whether the names in her phone were dates. She told him she was not a prostitute and that she was going to see her boyfriend. The officer informed her she had a warrant. He placed Terri G. in the backseat of the patrol car without handcuffing her, and he returned her purse to her before closing the door. She felt that something “was not right.”
The officer told her she did not have to go to jail, despite her warrant. He asked her again if she was a prostitute, and she responded that living on the street she had done things to survive that she was not proud of and that she would not want to do again. He told her that she “knew what to do and to lay down.” Not knowing what else to do, she complied. He began to drive; she was scared because he had a gun and she did not know what was going to happen. The car stopped in an alley, and defendant opened the car door and told her to get out. He instructed her to get down on her knees and to wipe off her lipstick. He exposed his penis, and she began to fellate him. The officer kept touching her back and head, complimenting her, and soliciting compliments from her. She repeated whatever he told her to say because she “just wanted to get out alive.” Eventually, he told her to get up, remove her pants, and lie facedown in the backseat of the patrol car. She complied because she did not feel she had any other choice. He had intercourse with her, and then instructed her to get on her knees again, outside the car. He inserted his penis in her mouth, held her by the neck and mouth, and ejaculated. She wiped the ejaculate on her jacket. She did what he told her to do without objection because she was scared that he would hurt her. She was not thinking about going to jail for the warrant; she did not realize she was not going to jail until after he told her to get dressed, to “lay low,” and that he would see her again.
She later talked to a friend, Kayla R., about the event. Based on their discussion about his physical description, she learned the officer was defendant. She reported the incident to another officer when she was arrested on the outstanding warrant about a week later. She identified defendant as the perpetrator in court and during an interview with detectives.
Defendant testified he encountered Terri G. one night as he was driving back to the police department. He asked if she had anything illegal on her person; she replied that she did not, but she was reaching into her pockets. She then consented to a search, which he conducted. Finding nothing, he let her go. Only later did he run a warrant check of her name. Defendant denied having any sexual contact with Terri G. and denied that she was in the backseat of his patrol car, despite the presence of her DNA.
The jury convicted defendant of kidnapping Terri G. to commit oral copulation, rape, or sexual penetration (count 1), committing oral copulation [994] against her will by threatening to use his authority as a public official (count 2), and of committing oral copulation against her will by means of duress (count 3). The jury also sustained the allegation that as to count 3, defendant had kidnapped the victim (enhancement 3a) and had committed the same crime against multiple victims.
Anna B. (Counts 8-10)
Anna B. is a heroin user and a self-professed “escort” who lives in Sacramento. In September 2012, she was in West Sacramento staying with a friend. In the middle of the night, she realized her cell phone battery was low and she did not have her phone charger with her. She walked from her motel room looking for somewhere to buy a charger. As she walked, a police officer in a patrol car (whom she identified at trial as defendant) pulled over, got out of the car, and began asking her questions. She explained she was trying to buy a cell phone charger and asked if he knew where she could purchase one. He indirectly asked whether she was prostituting, and she responded she was not. He asked her to get into the back of the patrol car so he could run her information. She asked if there was any way to avoid that. He responded she should get in for safety reasons, and that he would drive her to a store where she could purchase a charger. She got in and he shut the door.
He drove to another location, where he stopped and checked her information on the computer and with the dispatcher. It seemed to her that he was trying to find something to use as leverage against her, which made her nervous. At some point in their conversation, she volunteered that she was under the influence of heroin. He told her he could arrest her because she was under the influence. He insistently asked if she knew of any information to share with him, which made her feel she would have to divulge something to be set free. She began to panic; she tried to reason with him and when that did not work, she began pleading with him and crying. She felt helpless, trapped, and scared. She began to get angry and asked why he did not just take her to jail. She was scared and thought going to jail would be easier than dealing with him. He told her he could not let her go unless she gave him something. She offered to give him her phone number. He responded that he could take her somewhere more private. She told him she would rather not, and that she would rather be taken to jail or released. He repeated he would take her somewhere more private to discuss it. They drove somewhere dark and remote. While driving, he made comments that made her think he was trying to get her to solicit him or bribe him. He let her out of the car and implied he wanted sexual conduct from her; she was intimidated, and felt she had to comply with his orders. She did not necessarily think he would kill her, but she was frightened of more than just incarceration.
[995] He lifted her onto the trank of the car and made a comment about her breasts. When he was putting her back on the ground, she accidentally touched the button on the radio positioned on his shoulder, and he silenced her while he responded to someone asking if he was all right. He then placed her hand on his penis, and directed her to fellate him. She complied. For a short time, he handcuffed her because she said, “you are a police officer and you are making me do this, so you might as well put me in the handcuffs and ... do it right. . . .” However, he removed them because she was having a difficult time fellating him. He also felt her breasts, and may have touched her vagina. Afterward, when she commented about him ejaculating in her mouth, he gave her a piece of gum. He drove her to a gas station, let her go, and said he would “give [her] a call.” She went in, bought her cell phone charger, and walked back to her motel.
About a month later, in Sacramento, Anna B. was sleeping on the street with her boyfriend. A female police officer woke her up. Anna B. told her about the sexual encounter with defendant. The female officer had Anna B. speak to a sergeant and some detectives about the incident.
Defendant testified he met Anna B. when he saw a man walking down the street and Anna some distance behind him. When he approached, Anna B. walked toward his patrol car and said she was glad he stopped because the man was “creeping” her out. Defendant obtained Anna B.’s name and ran it through his system. He then got out of the car and talked to her; she did not appear to be intoxicated or under the influence at that time. As she was trying to find somewhere to buy a phone charger, he told her there was a store nearby that would probably have one and offered her a ride, which she accepted. She flirted with him while they drove, and he asked if she wanted to stop and talk. She agreed, so he parked and they talked for 10 to 15 minutes. She offered to give him her phone number, but another patrol car drove by, so defendant suggested they go somewhere more private. She assented, so he drove to an industrial area and got out of the car. He let her out and they began kissing. She said the situation was like a “fantasy.” She accidentally hit the lapel microphone to his radio as he helped her off the trunk of the car, and he heard the dispatcher. She asked if he was going to handcuff and frisk her, so he handcuffed her behind her back and groped her breasts as she groped his groin (he was standing behind her). It seemed to him that she was trying to unzip his pants, so he unzipped them and she began to perform oral sex. She told him the handcuffs were uncomfortable, so he removed them and she completed the act. After talking some more he dropped her at a store so she could purchase her phone charger.
The jury convicted defendant of kidnapping Anna B. to commit oral copulation or sexual penetration (count 8), committing oral copulation against [996] her will by threatening to use his authority as a public official (count 9), and of committing oral copulation against her will by means of duress (count 10). The jury also sustained the allegation that as to count 10, defendant had kidnapped the victim (enhancement 10a) and had committed the same crime against multiple victims.
Kayla R. (Counts 13, 15-16)
Kayla R. was first approached by defendant, who was driving his patrol car, in October 2011 at about 3:00 or 4:00 a.m. while she was sitting at a bus stop in front of a bar. She was high at the time and had a pipe and methamphetamine in her purse. (She was also under the influence of methamphetamine when she testified at trial.) She consented to defendant’s request to pat her down and search her purse. He found her pipe, handcuffed her, and placed her in the backseat of the patrol car. He left her there with the door closed while he spoke to other police officers. She was scared and thought she was going to jail. After the other officers left, defendant opened the door and asked why he should not take her to jail. He then repeatedly asked if she had something to offer him, left her in the backseat to think some more, and shut the door again.
When he returned, Kayla R. suggested sex. He did not respond, but shut the door, started to drive, and told her to duck down. He parked in an area near several industrial buildings. At the time she felt trapped and obligated to have sex with him, but did not mind because she did not want to go to jail. He removed her handcuffs, exposed his penis, and said it was his “first time doing . . . something like this,” and she fellated him twice. They then had intercourse without a condom. He ejaculated, but told her she would not get pregnant because he had had a vasectomy, so she did not mind.
Afterward, he asked if she wanted to see him again, and she said yes and gave him her phone number. She thought he was nice and it made her feel special or important to be wanted by him. They met on perhaps a dozen occasions while defendant was on duty, and had sex nearly every time they met. On these subsequent occasions, she did not feel pressured to have sex because she was not trying to avoid jail. She does not feel that she was a victim; however, she did testify that she felt he was taking advantage of his position as an officer.
Defendant testified he met Kayla R. in late 2011 when he conducted a stop of two known probationers who were with her on the street at the time. When her name did not register any record in his warrant check, he challenged whether she was providing accurate information, and she told him her family lived nearby and could verify its accuracy. He drove her there, and denied [997] any sexual contact took place. A couple of weeks later, he saw her on the street wrapped in a blanket, so he stopped to speak with her. She sat in the back of the patrol car, with the door open, while they talked because it was cold. During that encounter, he found a methamphetamine pipe on her, so he counseled her about the dangers of drugs. After they talked, he drove her to her friend’s house. She gave him her phone number and told him to “call her sometime.” He denied there was any sexual contact on that occasion. Their third encounter was initiated by his phone call to her, which resulted in a consensual oral copulation. They continued to meet for approximately eight months, always while he was on duty, and mostly involving an act of oral copulation. He stopped calling her when it became apparent she was telling others about their relationship, she started asking to see him when he was not working, and she started asking him to rent a room for her. He denied arresting her, denied that she pleaded with him to not take her to jail, and denied asking what she could give him so that he would not take her to jail.
The jury convicted defendant of kidnapping Kayla R. to commit oral copulation, rape, or sexual penetration (count 13), committing oral copulation against her will by threatening to use his authority as a public official (count 15), and of committing rape against her will by threatening to use his authority as a public official (count 16).
Karen N. (Counts 19-24)
Karen N. testified that she had four interactions with defendant. On the first occasion, in either December 2011 or January 2012, defendant and another officer responded to a call about her disruptive behavior at her friend’s apartment. She was intoxicated, screaming, and hitting the walls. Karen N. left the apartment voluntarily, and the friend gave defendant Karen’s hat to return to her. After she left the apartment, either with defendant or on her own, Karen N. found herself in an unknown location, possibly handcuffed, in the back of a patrol car with defendant directing her to crawl out of the backseat, get on her knees, close her eyes, and turn around. When she complied, she found she was facing the officer’s exposed penis. Finding herself “caught between a rock and a hard place,” not wanting him to kill or to hurt her and wanting to be set free, she performed oral copulation on the officer. Afterwards, as she stood up and looked at his name tag, he said to her, “now everything Mr. Alvarez does is a secret.”
A few months later, when she was almost at her door after a night of recycling, she heard a car approach her from behind. She ran into her motel room, but before she could close the door, defendant entered and followed her into her bathroom. He ordered her onto her knees, unzipped his pants, asked if she “want[ed] to do something,” and then forced her to fellate him. She was frightened. When he was finished, he left.
[998] On the third occasion, Karen N. had just forced her boyfriend to leave her motel room when defendant knocked on the door. Though she sat in her room with the lights off without making any noise, defendant kept knocking on the door. She was nervous. Defendant said, “Karen, if you don’t open the door, I have to go get a key and open it.” Realizing he was not going to leave, she opened the door. He came into the room, closed her window, asked her if she “wanted to do something,” exposed his penis, and directed her to get on her knees. She became ill and vomited in the garbage can, but he did not care. She did not want to have sex with defendant but, to make him leave, she orally copulated him, and briefly had intercourse with him.
Their fourth interaction occurred when he approached her in his patrol car around 2:00 or 3:00 a.m. as she was walking out of a motel. On this occasion, she was “a little bit high” on methamphetamine. He asked if she wanted a ride. She asked if he was going to drive her home and got in the backseat of the car. Instead of taking her home, he drove to a nearby alley. He looked at her, told her they could not have sex, though she had not asked him to have sex with her, asked her if she “want[ed] to do something,” unzipped his pants, and directed her to get on her knees. In an attempt to make it easier for herself, she “played with him . . . and started kissing him and told him he was cute.” Not knowing what else she could do, she complied and orally copulated him for “a second,” and then she got up and ran away.
Defendant testified he first met Karen N. long ago when he arrested her on a domestic violence charge or warrant. He did recall escorting her from her friend’s apartment one night when she was intoxicated and causing a disturbance. The friend found a hat belonging to Karen N. after she had left, and defendant agreed to take it to her. He found her walking nearby, returned her hat to her, and offered her a ride. Not handcuffed, she got into the backseat and told defendant her friend was upset with her because she “would not give it up to him.” But, she implied she would engage in sexual conduct with defendant. He asked if she wanted to go somewhere to talk about it more, and she said she did. He drove to a vacant area, parked, and let her out of the car. She began to undress. Defendant told her he did not want that, but asked if she would give him oral sex. She fellated him. About a month later, he saw Karen N. walk past his parked patrol car. He greeted her and asked “if she remembered what happened last time.” She responded that she did, that “it was kind of crazy, but she liked it.” He asked if she would be willing to do it again. She assented, and he unlocked the door so she could get into the backseat. They drove to an alley, where he let her out of the car and she performed oral sex. They had another sexual encounter at her motel after she waved him over when he was patrolling the area. He entered her room, and she showed him lingerie she had hanging in her closet. He asked if there was something she “wanted to do.” She said “yeah,” and she fellated and had intercourse with him. He recorded this encounter on a camera he [999] carried on his person. She was intoxicated during each of these encounters. He denied that the fourth incident Karen N. recounted ever took place, and denied he had any sexual contact with her in her bathroom.
The jury convicted defendant of committing oral copulation against the will of Karen N. by means of duress on four separate occasions (counts 19, 20, 22 and 24), of raping her by means of duress (count 21), and of kidnapping her to commit oral copulation (count 23). The jury also sustained the allegations that, as to count 24, he had kidnapped the victim (enhancement 24a), as to counts 20, 21 and 22, defendant had committed the acts of oral copulation and rape during the course of a residential burglary (enhancements 20a, 21a, 22a), and as to counts 19, 20, 22, and 24, he had committed the same crime against multiple victims.1
Rochelle G. (Counts 25-27)
In late September 2012, Rochelle G. was approached by an officer in a patrol car at approximately 4:00 a.m. while she was walking in a shopping center parking lot. (In subsequent questioning with detectives, she identified defendant as the officer in a photographic lineup and recalled that his name began with the -letter A.) Defendant, who was in uniform and wearing his gun, got out of the patrol car, shone the car’s spotlight on Rochelle G., and asked her why she was on the street at that time of night. Rochelle G. informed him that she was going to use the pay phone by the grocery store located in that shopping center to call a friend. He asked if she was prostituting. After conducting a field sobriety test, defendant stated that it appeared Rochelle G. was under the influence, which she denied. He searched her, feeling inside her bra and patting her vaginal area and buttocks while she had her hands behind her head. He then placed her in the back of the patrol car and closed the door, without handcuffing her. Rochelle G. felt very uncomfortable, nervous, scared, and “stuck.” Defendant ran Rochelle G.’s name through the computer in the car to check for outstanding warrants and an arrest record. He then told her she was under arrest for'being under the influence of a controlled substance.
He asked her what she could do for him to let her go. She said she would not “snitch” on anyone or provide any information but promised he would not see her on the streets again at that time of night. He responded that was [1000] not what he wanted. She told him she would not proposition him because it was illegal and he was a police officer. He told her it was only illegal if she “g[o]t paid for it.” She asked him to drop her at a relative’s house, which he declined, stating he was “not a taxi service.” They remained parked at the shopping center for a while, until she finally agreed to fellate him so that she could be released. She felt she “had to do it” because she was in the back of the patrol car and it appeared to be “the only thing that [she] could do to not go to jail.”
He drove her to an alley off a nearby street, obtained her assurance that this would remain between them, and then stopped the car. He opened the back door, directed her to remain seated but to move her feet out of the car and to wipe off her lipstick. He moved closer, sought further reassurance the encounter would stay between them, unzipped his pants, and exposed his penis. Defendant said something akin to “you know you want to,” to which she replied, “I don’t want to.” Rochelle G. was feeling “real uncomfortable,” and she “wanted to run,” but she knew if she did, he would take her to jail, so she proceeded to fellate him. While she was performing the oral copulation, he alternately placed his hands inside her bra and used his hands to move her head back and forth. He asked if she liked it, and she responded negatively. He ejaculated in her mouth, zipped up his pants, sought further reassurances of her confidentiality, and then he left her in the alley.
Defendant testified he did not recognize Rochelle G. and did not recall any contact with her. Additionally, he denied having any sexual contact with Rochelle G.
The jury convicted defendant of kidnapping Rochelle G. to commit oral copulation (count 25), committing oral copulation against her will by threatening to use his authority as a public official (count 26), and of committing oral copulation against her will by means of duress (count 27). The jury also sustained the allegations that as to count 27, defendant had kidnapped the victim (enhancement 27a) and had committed the same crime against multiple victims.
Sentencing
The trial court sentenced defendant to an aggregate state prison term of 205 years to life. It imposed consecutive 25-year-to-life sentences for counts 3, 10, 20, 21, 22,2 24, and 27, a consecutive 15-year-to-life sentence for count 19, consecutive seven-year-to-life sentences for counts 1, 8, 13, 23, and 25 [1001] (with the terms for counts 1, 8, 23, and 25 stayed pursuant to § 654), consecutive six-year determinate sentences for counts 2, 9, 15, and 26 (with the terms for counts 2, 9, and 26 stayed pursuant to § 654), and a consecutive two-year determinate sentence (one-third the middle term) for count 16.
DISCUSSION