I respectfully dissent from that portion of the majority opinion which discusses counts one, three, five, nine and thirteen.
The present case is a difficult one, because the horror of child abuse, chronicled by the majority in what is essentially a sociological essay, overcomes reason with outrage at the despicable acts committed by the defend*191ant. No matter how justified the desire that defendant suffer a punishment commensurate with his repugnant conduct, however, we must not become so result-oriented that we abandon all distinctions among penal statutes in support of an overzealous prosecutor’s efforts to obtain the maximum possible period of incarceration.
In counts one, three, five, nine and thirteen, defendant was convicted of rape where the victims’ lack of consent was overcome by “threats of great and immediate bodily harm.” Yet in each of these instances, as testified to by the victims and recounted by the majority, the victim either feared being spanked or was hit or slapped unaccompanied by other threatening words or conduct. There was sufficient evidence under the substantial evidence test to establish that defendant committed some sexual crimes, but not the violent sexual offenses charged by the prosecution in an apparent (and successful) attempt to invoke the severe sentencing provisions of Penal Code1 section 667.6 which contributed to the defendant’s commitment to state prison for 57 years and 4 months.
No reported case has focused on the quality of the words or conduct necessary to constitute threats of great bodily harm as used in the former statute under which defendant was prosecuted.2 As pointed out by the majority, decisional law has established a subjective/objective analysis including consideration of the relative statuses of the perpetrator and victim with regard to physical attributes and circumstances. Yet none of these cases discussed the significance of the term “great bodily harm” as it bears upon the nature and quality of the threats, if any, made by the perpetrator. Our Supreme Court has undertaken at length an exegesis of the term “great bodily injury,” in People v. Caudillo (1978) 21 Cal.3d 562 [146 Cal.Rptr. 859, 580 P.2d 274], refined in People v. Wolcott (1983) 34 Cal.3d 92 [192 Cal.Rptr. 748, 665 P.2d 520], but except for one throwaway sentence noting that Caudillo did not construe the precise statute at issue, the majority makes no attempt to explain why an authoritative interpretation of almost identical statutory language (“great bodily injury” instead of “great bodily harm”) should not control the present case.
*192In Caudillo, supra, the Supreme Court held that the term “great bodily injury’’ as used in an enhancement provision of a burglary statute meant an injury that constituted “ ‘a significant or substantial physical injury.’” (Id., at p. 581.) The extreme discomfort associated with the violations inherent in rape, oral copulation and sodomy, including ancillary effects such as vomiting and diarrhea, were held to constitute “bodily harm,” a lesser form of injury not within the purview of “great bodily injury.” (Id., at pp. 582-583, 585, 587-588, italics added.) The high court specifically rejected an interpretation which would have equated “bodily harm” with “great bodily injury.” (See id., at p. 580.)
In People v. Wolcott, supra, 34 Cal.3d 92, the Supreme Court retreated marginally from the strong language of Caudillo in a situation where a jury which had convicted the defendant of robbery also found that he had inflicted “great bodily injury” within the meaning of section 12022.7. (Id., at pp. 96, 106.) During a struggle with the victim over the pistol used in the robbery, the defendant eventually gained control of the weapon and then shot the victim in the leg, with bullet fragments from this wound entering the victim’s arm in six or seven places. (Id., at p. 107.) In the course of holding that the victim’s injuries supported the jury’s finding of great bodily injury, the Supreme Court discussed with apparent approval other cases in which (1) genital tearing, trauma and pain, (2) multiple abrasions and lacerations, (3) bruising and swelling of hands, arms and buttocks, and (4) a broken nose, a knocked out tooth, and cuts requiring sutures were all held to have been great bodily injury. (Id., at pp. 107-109.)
In the present case, the two witnesses who testified as to threats other than those made after the sexual offenses had occurred3 (the latter intended to insure the victims’ silence, not coerce them into cooperation) both stated *193that they interpreted defendant’s words as portending a “whipping” if they did not comply with his wishes. On other occasions, the defendant actually hit or slapped the victims, and/or physically forced himself upon them. In each of these latter instances, there is an evident violation of former section 261, subdivision (2), which at the time of defendant’s conduct prohibited rape accomplished by means of “force or violence.” However, the prosecutor did not charge violation of subdivision (2), except in two counts (11 and 13), one of which was dismissed and one of which was amended to charge subdivision (3). Thus, the prosecution presented the jury with a choice of convicting defendant of rape by threat of great bodily harm, convicting him of statutory rape, or acquitting him.4 Since the defendant’s use of force was frequently described in the witnesses’ testimony relating to both charged and uncharged incidents of sexual abuse, it is not surprising that the jury convicted the defendant of rape by threat in nine of the twelve counts in which rape by threat was charged. It being evident that the victims had not consented to the sexual intercourse, the only alternative to a conviction of section 261.5 which did not involve complete acquittal was a conviction for violation of section 261, subdivision (3).
Apparently recognizing that the threatened “whippings” in counts one and nine did not rise to the level of great bodily harm, and conceding the absence of threatening behavior in counts three, five and thirteen, the majority embarks upon the most novel and disturbing portion of its opinion. Relying upon various works examining the elements and effects of sexual abuse of children, the majority concludes that “early and repeated threatened and actual punishment” (italics added) by defendant “conditioned” the victims to submit to defendant’s sexual abuse and somehow converted their fear of a “whipping” into fear of “great bodily harm.” (Majority opn., ante, at p. 173.) As to the counts where no threatening behavior or words were present—counts three, five and thirteen—this prior “conditioning” through “punishment” substitutes completely for actual fear of great bodily harm! Although none of the victims in the five counts at issue had ever been coerced into cooperation by threats of great bodily harm, and even though, as to three of the counts, no threats were made at all, defendant’s conduct from years past, none of which was charged or proven, is relied upon by the majority to support his conviction of a statutorily defined crime expressly requiring threats of great bodily harm, so that the five convictions could be used to impose a prison commitment of over twenty-five years.5
*194The courts have rightfully abandoned the “ ‘primitive rule that there must be resistance to the utmost’ ” in cases of forcible rape. (People v. Cassandras (1948) 83 Cal.App.2d 272, 278 [188 P.2d 546].) I recognize that the cases have given great latitude to the jury’s finding that implied threats were sufficient to violate the statute at issue in this case. Even so, the cases cited by the majority do not support the total abandonment of reference to the “great bodily harm” standard of former section 261, subdivision (3). In People v. Cassandras, supra, the victim was told “ ‘to keep still if [she] didn’t want to get hurt,’ ” and she testified that she was frightened of being “‘hurt.’” (Id., 83 Cal.App.2d at p. 278.) Where the rapist leaves it to the victim’s imagination what he will do if she resists, and she actually fears some serious injury, it is understandable, faced with the alternative of permitting the defendant’s conduct to go unpunished, that the appellate court would uphold a factual finding that the threat was of “great and immediate bodily harm.” In People v. La Salle (1980) 103 Cal.App.3d 139 [162 Cal.Rptr. 816], which relied upon Cassandras, the victim was coerced at least in part by the rapist’s seizure of the victim’s two- and one-half-year-old daughter, and the victim again testified that she was afraid that the defendant would hurt her, preventing her from returning to her daughter, whom the defendant had forced from the car. (Id., at pp. 143-144, 147.) “[B]ecause of defendant’s tone of voice, the way he spoke to [the victim], and the way he treated her daughter, [the victim] was afraid he would harm [the daughter] if [the victim] did not accede to his demands.” (Id., at p. 147.) Leaving a two- and one-half-year-old child unattended on a city street is tantamount to placing the child in danger of great bodily harm, and again, a determination that no sufficient threats occurred would have meant that the defendant’s unquestionably coercive rape would go unpunished.
*195In both People v. Hunt (1977) 72 Cal.App.3d 190 [139 Cal.Rptr. 675], and People v. St. Andrew (1980) 101 Cal.App.3d 450 [161 Cal.Rptr. 634], the defendants’ convictions for rape by threat were reversed. In St. Andrew, the appellate court reversed in what it described as a “close” case, because the prosecution had improperly introduced and emphasized in argument evidence of the defendant’s prior misconduct. (Id., at pp. 464-465.) For guidance on retrial, the court assessed the nature of the alleged threatening conduct: the defendant had made no overtly threatening words or gestures, but the victim, who was a patient in the psychiatric ward of the hospital where the defendant was an attendant, testified that she was afraid that the defendant would strike her or smother her, or that he would isolate her in a locked room. (Id., at p. 454.) Recognizing that the victim’s fears may have been entirely subjective, the court held that the jury should be given, on retrial, much more detailed instructions as to the nature of threat required to violate the rape statute. (Id., at pp. 465-466.) It further held that if the defendant was aware of the victim’s objectively unreasonable but subjectively real fear of great bodily harm, and took advantage of this knowledge to coerce a sex act, then he would be guilty of rape by threat. (Ibid.) The difference from the present case is evident—the victims here testified that they did not have a subjective fear of great bodily harm; they feared at most a spanking.
In People v. Hunt, supra, 72 Cal.App.3d 190, the appellate court had even greater doubts about the threatening nature of the defendant’s conduct. “Defendant did not use physical force to overpower a resisting female. Neither did he expressly utter any threats to inflict great bodily harm to the victim. It must be pointed out that, according to the victim’s testimony, except for defendant’s placing her hand on his privates and embracing her with his arm, the suggestions of engaging in sexual relations came from her. It was she who first mentioned going to a motel and it was she who initiated the proposal that she orally copulate the defendant. This undoubtedly explains the jury’s verdict of acquittal on the charge of forcible copulation.
“The People’s theory is that the acts of sexual intercourse, however, were the result of threats which could be implied from the circumstances. Central to that theory is the factor of the victim being inside a moving vehicle which was under the control of the defendant.
“[Defendant and victim met in broad daylight when victim was picked up at her solicitation by defendant driving a camper at 1:20 p.m. to traverse a distance which normally would take 40 minutes but was not delivered to *196her destination until 2 hours later, and all the time was spent on the freeways and highways in a busy area except for an approximate 30 minutes spent at a secluded spot; she saw pornographic pictures on the dashboard of the camper immediately after she seated herself; defendant told her he was a pornographic photographer; except for suggesting a motel as an alternative to using the camper, she never clearly articulated any lack of consent; she did not take the license number of the vehicle and she wrote out and handed to him her correct name, address and telephone number before she left. . . .
“Although we conclude that under the usual test on appeal the evidence was legally sufficient to support the conviction . . . [citing People v. Cassandras, supra] we hasten to observe that the case is a very close one indeed.” (People v. Hunt, supra, 72 Cal.App.3d at pp. 198-199.) Because the evidence was so close, the conviction was reversed for instructional error permitting the jury to consider “other crimes” evidence as substantive evidence of the defendant’s guilt. (Id., at pp. 203-204.)
The concurring opinion makes much of the fact that defendant testified that when he disciplined the children, he used a “switch” pulled from a tree in the back yard to “swat” them, suggesting that such evidence supports a finding of threat of great bodily harm pursuant to People v. Jaramillo (1979) 98 Cal.App.3d 830 [159 Cal.Rptr. 771]. This illustrates well the extent to which the majority and concurring opinions would warp interpretation of the statute at issue, equating threat of great bodily harm with any application of force or fear. In Jaramillo, a child abuse case not involving sexual conduct, the defendant “disciplined” her young daughter by striking her forcefully and repeatedly with a wooden stick 18 to 20 inches long and 1 inch in diameter. (Id., at pp. 833-834.) The daughter suffered (in the words of the Court of Appeal), “multiple contusions over various portions of her body and the injuries caused swelling and left severe discoloration on parts of her body. The injuries were visible the day after infliction to at least two lay persons .... Further, there was evidence that [the victim] suffered pain as a result of her injuries because a day later she had a ‘look of anguish’ on her face and she flinched or turned away from a simple guiding touch on the shoulder . . . and [the victim said] that ‘it hurt’ . . . .” (Id., at p. 836.) The appellate court went on to observe: “A fine line can divide an injury from being significant or substantial from an injury that does not quite meet the description. Clearly it is the trier of fact that must in most situations make the determination. Here, while the issue might be close it appears that there were sufficient facts upon which the court could base its finding of great bodily injury and such a finding therefore will not be disturbed on appeal.” (Ibid., italics added.) The stick used by the defendant to strike her child was found to be a deadly weapon within the meaning of Penal Code section 12022, subdivision (b). (Id., at p. 837.)
*197Jaramillo, approved in People v. Wolcott, supra, 34 Cal.3d at pages 107, 108, can only be taken as the extreme lower limit of the characterization “great bodily injury,” involving as it did bruises and swelling apparent one day after infliction. In the present case, Lisa testified that defendant would hit or slap her with his hand, or would make her stay in the house for a week if she resisted him, Lucienda stated that defendant hit her on one occasion—his first assault when she was six years old—with his open hand, and Rachel testified that defendant would hit her with his hand or make up some excuse so that he could discipline her a few days later. The majority and concurring opinions apparently hold that hitting or slapping with the open hand or swatting with a switch resulting in no nontransitory effects such as swelling or bruising is the equivalent of an attack with a deadly weapon, simply because the victims were so young. Yet the victim in Jaramillo, relied upon by the concurring opinion as supporting the majority, was also six years old when attacked with a deadly weapon. By the majority’s standard, any parent who used corporal punishment of any sort on a six year or older child (Lisa testified that she was nine years old when first attacked by defendant) would be guilty, if a jury so found, of inflicting great bodily injury upon the child.
Neither People v. Reyes (1984) 153 Cal.App.3d 803 [200 Cal.Rptr. 651], nor People v. Price (1984) 151 Cal.App.3d 803 [199 Cal.Rptr. 99], cited by the concurring opinion as somehow inconsistent with this dissent, support the complete abandonment of the distinction between great bodily injury and simple bodily harm accomplished by the majority and concurring opinions. In Reyes, we concluded that threats of force made to a young child were sufficient to create “fear of immediate and unlawful bodily injury” within the meaning of a statute specifically designed to punish lewd conduct with children. (People v. Reyes, supra, at pp. 808, 809-811.) Nothing could illustrate more effectively the concurring opinion’s misconception of the legal standard to be applied to the present case than the fact that it regards Reyes, involving threat of simple bodily injury, as authority for construing a statute requiring threats of great bodily injury.
In People v. Price, supra, involving multiple sexual assaults upon an adult female in violation of statutes prohibiting rape, sodomy and oral copulation by force (with which defendant should have been charged in the present case), we noted that courts should not shun the draconian penalties appropriate to such crimes merely because they are draconian. (Price, supra, 151 Cal.App.3d at p. 822.) Only one of the four sexual assaults in that case was challenged for sufficiency of evidence, and the defendant concededly used a knife and a broken bottle in committing the vicious and calculatedly humiliating attacks upon the victim. The concurring opinion applies the Legislature’s unmistakable condemnation of violent sexual assaults embodied in *198section 667.6, subdivisions (c) and (d) to uphold an improperly arrived at conviction—surely something even the most fervent advocate of lengthy sentences would abjure and undisputably prohibited by our constitutional guarantees of substantive and procedural due process. There is nothing contradictory in requiring that the prosecution comport with the protections of a democratic system of justice in convicting a defendant, while still being willing to follow the mandate of the Legislature after that defendant has been validly convicted.
Appellate justices are not logic machines; within the strictures of reason and jurisprudence, they strive to do substantial justice, punishing criminal conduct when it is reasonable to do so, as in Cassandras, supra, and La Salle, supra, but recognizing that even the “guilty” must be proven so according to the standards of procedural and substantive fairness which wisdom, experience and democratic ideals have laboriously built into our administration of justice. As I have repeatedly acknowledged, the conduct of the defendant in the present case was despicable and unforgivable. The prosecutor, perhaps understandably, fashioned her charging allegations to bring the ultimate convictions within the operation of penal statutes harking back to the extreme retributions of previous centuries. Defendant deserves to be punished, but if he is to spend the remainder of his life in prison,6 it should not be as the result of manipulation of a criminal statute inapplicable to his conduct.
For the above reasons, I cannot accept the majority’s unprecedented theory of constructive threats of great bodily harm arising from past, uncharged conduct falling short of the level of threatening conduct proscribed by the statute. My “preoccupation” with the length of the sentence imposed below arises from a desire that this court not approve what is effectively a life term for convictions achieved via legal subterfuge. It is not inappropriate to gauge one’s concern over the magnitude of an injustice by assessing the effect it will have upon the life of the person whose rights are violated. The concurring opinion justifies derogation of defendant’s right to procedural and substantive fairness by the magnitude of the wrong done to his victims—the latter a consideration appropriate only when accompanied by careful attention to the strictures of due process. I would reverse the convictions as to counts one, three, five, nine, and thirteen.
*199As to counts twelve, fourteen, sixteen and eighteen, which account for 32 years of defendant’s total sentence, and counts seven, eight and nineteen, as to which the sentences were stayed (see fn. 5, ante), I concur with the majority.
A petition for a rehearing was denied May 23, 1984. Andreen, J., was of the opinion that the petition should be granted. Appellant’s petition for a hearing by the Supreme Court was denied July 26, 1984. Kaus, J., was of the opinion that the petition should be granted.
All further statutory references are to the Penal Code, unless otherwise indicated.
In 1980, the language requiring threats of great bodily harm was deleted from the statute, and rape by threat was combined with rape by force into a single provision: “Rape is an act of sexual intercourse accomplished with a person not the spouse of the perpetrator, under any of the following circumstances: . . . [¶] 2. Where it is accomplished against a person’s will by means of force or fear of immediate and unlawful bodily injury on the person o[f] another.” (§ 261, subd. (2), as amended by Stats. 1980, ch. 587, § 1, p. 1595.) Note that great bodily harm is no longer an element of the threat required; fear of unlawful bodily injury is now sufficient to invoke the statute. All of defendant’s alleged conduct occurred prior to the effective date of the 1980 amendments.
As pointed out by the concurring opinion, Rachel testified that defendant kept a gun in a suitcase in his room, that she was frightened by the gun, and that defendant had threatened her with the gun “[a] couple of times.” When the prosecutor asked if the gun threats had anything to do with sex, Rachel answered, “Yes, he told me if I tell, he would kill us in our sleep." (Angela’s sole mention of a gun came in response to prosecution questions about why she did not leave a house where defendant had allegedly taken her in order to engage in sex: “I don’t know what the man might do. He probably pull a gun on me or something, hm-mm.”)
Threats made after a sexual attack designed to coerce the victim’s silence cannot form a basis for finding that the attack was made under threat of great bodily harm. I recognize that the concurring opinion adds these transitory references to a gun into what it views as the totality of circumstances constituting implied threatening conduct. However, there must come a point at which every aspect of a defendant’s existence is not grist for a jury’s finding of implied threat. Defendant undoubtedly had access to kitchen knives or could have run over his victims with his van, but the mere potentiality of these instruments does not convert defendant’s postattack threats into assaults with deadly weapons. I therefore do not regard the brief mention of a gun in Rachel’s or Angela’s (who was not a victim in the disputed convictions) testimony as determinative.
As to four of the incidents, defendant was charged with oral copulation in addition to sexual intercourse. The jury found him not guilty of each oral copulation charge.
The record on appeal is hopelessly contradictory with regard to the sentences imposed upon defendant for the various convictions. At the hearing on the report of the probation officer and judgment held on January 7, 1982, the reporter’s transcript indicates that the sentencing court imposed aggravated, eight-year terms for the first, “eleventh,” thirteenth, *194fourteenth, sixteenth and eighteenth counts, plus a four-year term (thirty-two months of which was stayed) for the third count, for a total of fifty-seven years, four months. The eleventh count of the information had been dismissed, however, and the court failed to state what term it was imposing for counts nine and twelve. Thereafter, the court recited that, “It is the further judgment of this Court and it is hereby ordered that the aggregate term of imprisonment imposed for the offenses charged in Counts 1, 3, 9, 12, 13, 14, 16, and 18 of the Information shall run consecutively to and commence upon completion of the terms of imprisonment imposed for the offenses charged in the fifth count of the Information . . .,” (italics added) thus omitting its previous reference to an “eleventh” count and referring to the missing counts nine and twelve. The abstract of judgment-commitment and minute order for the sentencing hearing make further modifications to the sentence: count nine, which the trial court failed to mention except in its recitation of consecutive terms, is listed as having a two-year term. Counts seven, eight and nineteen, all unlawful sexual intercourse convictions for which the trial court had imposed two-year terms which if then stayed, were listed by the abstract and minute order as having been imposed fully consecutively. Thus, although in error as to four of the convictions, the abstract still totaled fifty-seven years, four months, having subtracted six years from count nine and added six years for counts seven, eight and nineteen. It is apparent that the trial court intended to sentence defendant to the maximum possible term for the violent sex offenses, so it is reasonable to assume that it intended to impose eight-year sentences on counts nine and twelve.
At the time of trial, defendant was 48 years old; he was sentenced to 57-plus years in prison. Given maximum behavioral credits, defendant can expect to be released on parole when he is approximately 76 years old, if he is still alive.