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Name: People v. White
Case #: B166502
Court: CA Court of Appeal
District 2 DCA
Division: 4
Opinion Date: 10/14/2005

Appellant sexually assaulted a woman by holding a gun to her head and threatening to shoot her if she did not comply with his demands. He was convicted of forcible rape, forcible oral copulation through threats of future injury (Penal Code section 288 subdivision (c)(3)), and robbery. On appeal, he argued that the evidence was insufficient to support the charge of oral copulation through threat of future injury; that the threat made was for immediate injury. The appellate court affirmed, holding that only a reasonable possibility that the perpetrator would execute the threat must exist. Here, appellant pointed a gun at the victim and threatened to shoot. It was sufficient that the victim reasonably believed she would be shot if she did not comply. The possibility that the jury may have misunderstood whether the crime required the threat to occur immediately or in the future did not result in appellant being convicted of the wrong crime, or being otherwise prejudiced. Further, there was no sentencing error under Blakely because of the imposition of the upper term. Under People v. Black, the discretion to impose an upper term or consecutive terms does not implicate a defendant’s Sixth Amendment right to a jury trial. (The case was remanded for resentencing on another sentencing error.)