People v. Evans CA2/5 ( 2021 )

Filed 6/30/21 P. v. Evans CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on
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8.1115(b). This opinion has not been certified for publication or ordered published for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B302308
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA144389)
v.
MARQUES TERREL EVANS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Allen J. Webster, Jr., Judge. Affirmed in part,
reversed in part, and remanded.
Brad Kaiserman, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Michael R. Johnsen, Supervising
Deputy Attorney General, and Yun K. Lee, Deputy Attorney
General, for Plaintiff and Respondent.
A jury convicted Marques Terrel Evans (defendant) of
numerous sexual-assault-related offenses and making criminal
threats. Charges leading to four of the convictions, which
ultimately had no impact on his aggregate prison sentence, were
added during trial with the permission of the trial court. With
respect to the jury’s verdicts, we are principally asked to decide
whether the trial court erred in permitting the additional charges
and whether substantial evidence supports an assault with a
firearm conviction and true findings on great bodily injury
enhancements imposed in connection with forced oral copulation
convictions. As to the aggregate 155 years to life prison sentence
imposed, defendant argues the trial court made various errors
and the Attorney General in many respects agrees. We will
affirm the convictions and remand for resentencing.
I. BACKGROUND
A. The Crimes as Established by the Evidence at Trial
1. July 2017: Abigail S.
At approximately 10:23 p.m. on July 13, 2017, Abigail S.
(Abigail) parked her car in front of defendant’s house. Abigail
had met defendant several months earlier, exchanged phone
numbers, and began a telephone relationship with defendant that
was both friendly and flirtatious. When Abigail let defendant
know that she would be visiting her parents who lived near
defendant’s home, they arranged to meet.
As Abigail approached the house, defendant appeared and
invited her into his partially furnished garage. After defendant
closed the garage door, they talked and eventually had
consensual sex, both oral and vaginal.
2
Defendant then took Abigail’s clothes, purse, car keys, and
phone and placed them out of her reach. Defendant repeatedly
asked Abigail if she “wanted to do a line” of what appeared to be
cocaine, and when she refused, he became “angry and upset.”
Abigail told defendant she wanted to go home, but he refused to
return her clothes and effects—telling her she could not go until
she performed more oral sex and he was “finished.”
Over the course of the next several hours, defendant
repeatedly forced Abigail to engage in vaginal and oral sex
against her will. Once defendant ejaculated, he returned her
clothes and possessions and let her leave.
As Abigail was driving home, defendant called her and
texted her, but she did not respond. Once she got home, she
texted him once, telling him that he had “traumatized” her. After
sending him that one text, Abigail never responded to any of his
subsequent texts, including one in which he apologized to her.
2. October 2017: Frank V. and Ariel R.
a. Frank V.
In the early hours of October 1, 2017, Frank V. (Frank)
parked his car near defendant’s house. At the time, Frank
worked as a driver/bodyguard for Angel Entertainment, an
agency which provided exotic dancers and masseuses to clients
for private “shows.” Frank’s job required him to pick up a
dancer/masseuse, drive her to the client’s address, wait for her
inside his car, and then drive her home or to another show.
Throughout the show, Frank would remain in constant contact
with the performer through text messages.
On the evening of October 1, Frank was driving and
providing security for Ariel R. (Ariel), a woman he had worked
3
with on several prior occasions. Frank watched Ariel enter
defendant’s home through the garage and waited for Ariel’s first
confirming text that all was well. When that text never arrived,
Frank tried texting Ariel. Eventually, Frank received a one-word
text from Ariel that said “Paid.” Frank remained concerned,
however, due to the length of time that had elapsed since Ariel
entered defendant’s garage. Over the course of the next twenty
minutes, Frank sent several more texts to Ariel, including one
asking her to send him a photograph of herself confirming she
was “okay.” After not receiving a response from Ariel and after
hearing a woman’s scream, Frank left his vehicle and approached
defendant’s home.
Frank knocked on the garage door, but when there was no
reply, he knocked repeatedly on the house’s front door.
Answering the door, defendant told Frank he had the wrong
house because “there was no girl [ ]here.” Frank insisted he had
the right house because he saw Ariel walk into the garage. In
response, defendant advanced on Frank, who backed up. As
Frank retreated back toward the street while still maintaining he
was at the right house, defendant raised a pistol he was holding,
pointed the weapon at Frank, and told him he “better leave”
before defendant shot him. Frank, who previously served in the
United States Marine Corps and was familiar with weapons,
believed the pistol was not a replica but a real firearm, possibly a
Glock model. Frank believed that if he stayed, he could be shot
and, as a result, he returned to his car and drove away.1
1
As we will later discuss when confronting defendant’s
argument that the trial court wrongly permitted the prosecution,
mid-trial, to add a charge of criminally threatening Frank, Frank
also testified about his interaction with defendant during
4
Frank parked around the corner from defendant’s house
and called his employer and then 911, telling both he believed
Ariel was being held against her will by an armed man. When
later interviewed at the scene by Los Angeles County Deputy
Sheriffs, Frank said defendant had told him he had better leave
before defendant “popped off,” a statement Frank interpreted to
mean that defendant would shoot him if he did not leave. The
deputy who questioned Frank at the scene subsequently testified
Frank told him defendant “produced a firearm and pointed it at
the lower portion of [Frank’s body] and told him to leave.”
b. Ariel R.
Shortly after Ariel entered defendant’s garage, he offered
her what she believed to be cocaine. She declined and then
explained that the price for an hour of erotic dance or massage
was $200. In response, defendant told her, “you’re going to take
off your clothes and I’m going to have sex with you and I’m going
defendant’s preliminary hearing. His testimony was generally
consistent with his trial testimony. Frank testified he got out of
his car when he heard a scream, eventually knocked on
defendant’s front door, and told defendant he needed “the girl”
back. Frank further testified that defendant advanced on him
(Frank) after telling him he had the wrong house and there was
no girl there, that defendant was holding a handgun in his right
hand, and that defendant started raising his hand with the gun
while telling Frank he “better get out of there.” Frank then got
back in his vehicle, drove around the corner, and called 911.
During the preliminary hearing, Frank did not testify defendant
said he would shoot Frank, and when asked if defendant said
anything about “being popped off,” Frank said he could not
remember.
5
to pay you afterwards.” Ariel explained that she did not offer
sexual services.
Defendant then grabbed a pistol, pointed the weapon at
Ariel’s face, and told her to take off her clothes. When Ariel
refused to undress and asked to leave, defendant snatched her
phone from her hand, causing her to yell out. In response,
defendant struck Ariel with his gun, opening up a wound on her
head that bled and caused her to scream.2 As Ariel curled up in a
fetal position on the couch, defendant beat her with his fists,
before choking her until she passed out.
When Ariel regained consciousness, she found defendant
had taped her mouth and hands. Defendant—still holding the
gun—ordered her to strip; when she complied, defendant directed
her to lie on a couch and then digitally penetrated her vagina and
anus. Defendant then directed Ariel at gunpoint to kneel on the
floor of the garage, where he repeatedly forced her to orally
copulate him.
The forced oral sex was interrupted on several occasions as
defendant got up from the couch to check a computer monitor
that displayed a video feed from several external security
cameras. After police began to arrive outside his home,
defendant “started panicking” and “really freaking out.”
Defendant dragged Ariel (still naked) from one room in his house
to another.3 In the bathroom, defendant forced Ariel into the
2
At trial, the parties stipulated Ariel was the source of blood
evidence found on the shirt and shorts defendant was wearing at
the time of his arrest.
3
At trial, the parties stipulated that Ariel was the source of
blood evidence found in various rooms in defendant’s house.
6
shower, told her not to move, and turned the water on. Later,
after defendant left Ariel in a child’s bedroom, she went to the
window, spied a police officer, and tapped on the window,
attracting the officer’s attention. Shortly thereafter, defendant
returned Ariel’s clothes to her and allowed her to leave the house.
When Ariel walked out of the house, she was still bleeding
from the top of her head and appeared “dazed.” The paramedics
treated Ariel for a head laceration and then transported her to
the closest hospital, where she received two staples in her scalp.
Defendant was taken into custody shortly after Ariel left
his house. He agreed to speak with the arresting officers and
said he did not know why he was being arrested. Defendant
claimed he did not know Ariel and did not know why she walked
out of his home shortly before he did. After defendant was
arrested, deputies conducted a protective sweep of the house
looking for things in plain sight, such as defendant’s pistol.
During the sweep, the deputies did not locate defendant’s gun.4
Two days after defendant assaulted Ariel, she went to a
hospital to be tested for sexually transmitted diseases and to seek
treatment for pain where defendant had digitally penetrated her.
A sexual assault nurse examined Ariel and found (in addition to
her head laceration and various bruises) injuries consistent with
strangulation, forced oral copulation, and penetration of her
4
Approximately 24 hours later, deputies returned to the
house to conduct a more thorough search of the premises
pursuant to a search warrant. In performing their search, the
deputies were aided by a K-9 unit trained to detect and locate
gunpowder, ammunition, or explosives. No firearms or
ammunition were discovered in or around defendant’s home.
7
vagina and anus with a foreign object. Specifically, as to Ariel’s
mouth, the nurse observed broken capillaries on the roof of her
mouth and at the back of her throat, as well as bruising on the
inside of her left check. The nurse found the injuries to Ariel’s
mouth and genital area to be “significant,” because they were still
present days after the assault.
B. The Addition of Charges During Trial
Outside the presence of the jury, and before the close of the
prosecution’s case-in-chief during trial, the prosecution informed
the court and the defense that it was going to move to amend the
information against defendant to add counts based on the
testimony up to that point during trial. The trial court deferred
taking up any such motion at that time.
Later, immediately after the prosecution rested its case-in-
chief and before the defense completed its case,5 the prosecution
made a motion to add charges that would become counts 19-22 of
the amended information, i.e., charges for assault with intent to
commit a felony (as to Ariel), battery with serious bodily injury
5
The trial court permitted the defense to call five witnesses
out of order during the prosecution’s case: a former Los Angeles
County Sheriff’s deputy who interviewed Ariel and defendant, a
Los Angeles County firefighter who was present when Ariel was
interviewed at the scene, another firefighter who treated Ariel at
the scene, an emergency room triage nurse, and the emergency
room physician who treated Ariel. When it came time for the
defense case after the trial court permitted adding the
aforementioned four charges, the defense offered a stipulation in
evidence but otherwise rested without presenting any additional
testimony or exhibits.
8
(Ariel), criminal threats against Frank, and false imprisonment
of a hostage (Ariel).6
The defense objected to the proposed additional charges,
arguing it would have no opportunity to make a section 995
motion to dismiss the charges before the case went to the jury.7
The prosecution countered there was no basis to dismiss the new
charges because they were based not on new information but
rather information that had been in the defense’s possession for
“quite some time.” The defense did not contest that assertion or
request a continuance in light of the proposed new charges. The
trial court, citing appellate authority and Penal Code section
1009,8 granted the prosecution’s request to amend the
6
The false imprisonment of a hostage count was previously
charged as count ten of the information but later withdrawn,
possibly in error, by the prosecution. The prosecution proposed to
add it back in as count 22. In addition to asking to add charges,
the prosecution also moved to dismiss count 13 (charging a
second instance of sexual penetration by a foreign object) because
it was not supported by the evidence. The trial court granted the
motion.
7
After the court made its ruling, the defense added a
perfunctory “Sixth Amendment objection” with no further
elaboration. The court overruled that objection as well.
8
Penal Code section 1009 (undesignated statutory references
that follow are to the Penal Code) provides, in relevant part:
“The court in which an action is pending may order or permit an
amendment of an indictment, accusation or information . . . for
any defect or insufficiency, at any stage of the
proceedings . . . . The defendant shall be required to plead to such
amendment or amended pleading forthwith, or, at the time fixed
for pleading, if the defendant has not yet pleaded and the trial or
9
information to add the four charges and found the amendments
“were covered in the evidence in the presentation of the case” and
the defense had not “been substantially prejudiced by these
particular amendments.”
Thus, as finally amended, the charges presented to the jury
for decision were: count 1, assault with a firearm on Ariel (§ 245,
subd. (a)(2)); count 2, assault with a firearm on Frank (§ 245,
subd. (a)(2)); count 3, false imprisonment by violence of Ariel
(§ 236); counts 6 and 11, forcible oral copulation as to Ariel
(former § 288a, subd. (c)(2)(A)); count 7, sexual penetration by
foreign object of Ariel (§ 289, subd. (a)(1)(A)); count 9, criminal
threats against Ariel (§ 422, subd. (a)); count 14, forcible rape of
Abigail (§ 261, subd. (a)(2)); count 15, forcible oral copulation of
Abigail (former § 288a, subd. (c)(2)(A)); count 16, misdemeanor
false imprisonment of Abigail (§ 236); count 19, assault with
intent to commit a felony against Ariel (§ 289) (§ 220, subd. (a)(1);
count 20, battery of Ariel with serious bodily injury (§ 243, subd.
(d)); count 21, criminal threats against Frank (§ 422, subd. (a));
and count 22, false imprisonment of a hostage (Ariel) (§ 210.5).
As to the criminal threats and certain of the assault and
false imprisonment charges pertaining to Ariel (counts 3, 9, 19,
21 and 22), the information against defendant alleged he
other proceeding shall continue as if the pleading had been
originally filed as amended, unless the substantial rights of the
defendant would be prejudiced thereby, in which event a
reasonable postponement, not longer than the ends of justice
require, may be granted. An indictment or accusation cannot be
amended so as to change the offense charged, nor an information
so as to charge an offense not shown by the evidence taken at the
preliminary examination.”
10
personally used a firearm within the meaning of section 12022.5,
subdivision (a). As to the forcible oral copulation and sexual
penetration charges (counts 6, 7, and 11), the information alleged
defendant used a handgun within the meaning of section
12022.53, subdivision (b). As to these same three offenses, the
information further alleged defendant personally inflicted great
bodily harm within the meaning of section 667.61, subdivisions
(a) and (d), and (1) personally used a firearm, (2) engaged in tying
and binding of a victim (Ariel), and (3) committed the offense
against more than one victim, all within the meaning of section
667.61, subdivisions (a) and (e).9 Finally, as to the forced oral
copulation, sexual penetration, and rape counts (counts 6, 7, 14,
and 15) the information alleged defendant committed those
offenses against more than one victim within the meaning of
section 667.61, subdivisions (b) and (e).
The jury found defendant guilty of all charges and found
true all of the sentencing enhancement allegations.
C. Sentencing
On November 6, 2019, the trial court sentenced defendant
to an aggregate term of 155 years to life. We describe how the
trial court arrived at that result (which, as we have already said,
is erroneous in some respects).
On the count 6 forced oral copulation conviction, which the
trial court designated as the principal term, the court sentenced
9
As we will discuss, section 667.61, often called the “one-
strike law,” provides for alternative, increased penalties for
certain sex offenses where aggravating factors described in the
statute are proven.
11
defendant to 43 years to life: eight years for the offense, plus ten
years for the firearm enhancement, plus an additional 25 years to
life for the section 667.61 findings. In addition, the court imposed
concurrent terms of 25 years to life and 15 years to life for the
section 667.61 great bodily harm and multiple victim findings.
The court then imposed the following prison terms to run
concurrent with the 43 years to life sentence on count 6—
including sentences for convictions on all four of the charges
added during trial: three years on count 1, three years on count 2,
two years on count 3, two years on count 9, one year on count 16,
six years on count 19, three years on count 20, two years on count
21, and eight years on count 22.
On counts 7 and 11 (sexual penetration and forced oral
copulation as to Ariel), the trial court sentenced defendant to 33
years to life: eight years for each offense plus 25 years to life for
the section 667.61 findings. The sentences on both counts were
ordered to run consecutive to the sentence for count 6. On counts
7 and 11, the court additionally ordered defendant to serve
concurrent terms of 25 years to life for the great bodily harm
section 667.61 finding, 15 years to life for the multiple victim
section 667.61 finding, and 10 years to life for the firearm
enhancement (§ 12022.53, subd. (b)). As to count 7, the court,
pursuant to section 654, imposed but stayed a three-year term for
great bodily injury (§12022.7, subd. (a)).
On counts 14 and 15 (rape and forced oral copulation as to
Abigail), the trial court sentenced defendant to 23 years to life
(eight years for each offense, plus 15 years to life for the section
667.61 finding on each offense. The sentences for both counts
were to run consecutive to the sentence imposed on count 6.
12
The trial court also ordered defendant to pay a restitution
fine and court assessments. As to the financial obligations, the
court recognized its calculations might be mistaken.
II. DISCUSSION
Defendant’s arguments regarding trial court error at
sentencing are well-taken in several respects, but we reject his
attack on his convictions and aspects of the jury’s sentencing
enhancement findings.
The trial court did not abuse its discretion when permitting
the prosecution to allege four additional charges to conform to the
evidence as presented during the prosecution’s case at trial.10
Each of the counts the court gave the prosecution permission to
add was supported by evidence presented at the preliminary
hearing and there is nothing suggesting defendant suffered any
significant prejudice from the addition of counts during trial—
which never triggered a request for a continuance from the
defense and came at a time when the defense was still entitled to
present evidence. Next, there is substantial circumstantial
evidence defendant’s gun was a loaded, operable firearm, the only
basis on which defendant contends there is insufficient evidence
supporting his conviction for assault with a firearm (count 2). As
to the great bodily injury allegations for forced oral copulation
10
We reject defendant’s assertion that de novo review
arguably applies. Abuse of discretion is the applicable standard
of review. (See, e.g., People v. Birks (1998) 19 Cal.4th 108, 129;
People v. Hamernik (2016) 1 Cal.App.5th 412, 424; People v.
Arevalo-Iraheta (2011) 193 Cal.App.4th 1574, 1581; People v.
Bolden (1996) 44 Cal.App.4th 707, 716.)
13
there is substantial evidence that Ariel suffered two different
injuries at two different times—again, the only point defendant
raises (there is no argument that the injuries were too minor to
constitute great bodily injury). Finally, defendant’s argument
that the prosecutor misstated the law during closing argument is
forfeited and trial counsel cannot be faulted for not making a
meritless objection.
Defendant’s sentencing, however, is a different story.
Although the trial court did not err when deciding against
staying punishment pursuant to section 654, the trial court did
repeatedly misapply section 667.61—treating the law not as an
alternative sentencing scheme, which it is, but as a law requiring
enhancement of an otherwise applicable base term. That error
alone requires a full resentencing, and we therefore need not
discuss the various other sentencing errors defendant raises. We
will make some brief, general comments to guide the parties and
the trial court at resentencing, however.
A. The Trial Court Did Not Err in Permitting the
Prosecution to Add Four Charges During Trial
As we noted when reproducing section 1009 in the margin
earlier, an accusatory pleading can be amended with leave of
court “at any stage of the proceedings” so long as the amendment
does not “charge an offense not shown by the evidence taken at
the preliminary examination.” (§ 1009; People v. Goolsby (2015)
62 Cal.4th 360, 367; see also People v. Jones (1990) 51 Cal.3d 294,
317 [“[A]t a minimum, a defendant must be prepared to defend
against all offenses of the kind alleged in the information as are
shown by evidence at the preliminary hearing to have occurred
within the timeframe pleaded in the information”] (Jones);
14
Hoffman v. Superior Court (2017) 16 Cal.App.5th 1086, 1092 [the
preliminary hearing is “‘the touchstone of due process notice to a
defendant’”].) If there is no prejudice to the defendant, “an
amendment may be granted ‘up to and including the close of
trial.’ [Citations.]” (People v. Goolsby, supra, at 368.)
Three of the counts the prosecution was permitted to add
concerned Ariel: count 19 (assault with intent to commit a
felony), count 20 (battery with serious bodily injury), and count
22 (false imprisonment of a hostage). There was evidence (Ariel’s
testimony) at the preliminary hearing of all three of those
charges. She testified that prior to being digitally penetrated and
being forced to perform oral sex, defendant conveyed an intent
and an ability to use force by striking her with a gun (which
caused a bleeding head laceration that later had to be closed by
medical personnel with staples), by hitting her with his fists, by
choking her until she lost consciousness, and by threatening to
shoot her. Ariel also testified defendant held her in his house
and dragged her to different rooms when the police arrived and
defendant knew he may be facing an imminent risk of arrest.
The remaining count added by amendment, count 21,
alleged defendant criminally threatened Frank in violation of
section 422. That statute requires a defendant to make a
threatening statement “verbally, in writing, or by means of
electronic communication device.” (§ 422, subd. (a).) Our
Supreme Court has held that a threat made solely through
nonaudible behavior falls outside the scope of section 422.
(People v. Gonzalez (2017) 2 Cal.5th 1138, 1147-1148 [the
defendant made a gang sign and a gun-to-the-sky gesture, but
this did not constitute a verbal communication merely because he
intended to convey an idea through his conduct] (Gonzalez).) But
15
assessment of whether a statement qualifies as a criminal threat
considers “all the surrounding circumstances and not just the
words alone” (People v. Mendoza (1997) 59 Cal.App.4th 1333,
1340; accord, People v. Butler (2000) 85 Cal.App.4th 745, 753),
and courts have repeatedly upheld criminal threats convictions
under section 422 by relying on an assessment of a defendant’s
verbal and nonverbal conduct taken together. (See, e.g., People v.
Franz (2001) 88 Cal.App.4th 1426, 1446 [a “shushing” noise
combined with a throat slashing gesture “constitute[d]
substantial evidence of a verbal ‘statement’ . . . [threatening] to
kill if the victim talked to the police”]; People v. Martinez (1997)
53 Cal.App.4th 1212, 1218, 1220 [defendant’s statements to
victim, including “I’m going to get you,” and “I’ll get you,” were
sufficient to convey a threat where defendant also approached the
victim “quickly, . . . yelled and cursed at him, . . . got within very
close proximity to his face, and . . . displayed very angry
behavior”]; see also Gonzalez, supra, at 1149 (conc. opn. of
Werdegar, J.) [“nothing in the court’s opinion prevents the People
from arguing in a future case, should the facts support the
argument and the People choose to make it, that conduct actually
intended and understood to convey verbal information violates
section 422”].)
Here, the threatening behavior as described by Frank at
the preliminary hearing was not confined to defendant’s
nonverbal conduct of advancing on Frank as he retreated and
raised his handgun at Frank. Defendant also spoke to Frank,
telling him repeatedly he was at the wrong house, and rather
ominously warning Frank he “better” leave as defendant was
starting to raise his handgun in Frank’s direction. That
testimony was sufficient to show the basis for a criminal threats
16
charge (Jones, supra, 51 Cal.3d 294 at 317) and, under settled
law, put defendant on notice of the possible need to defend
against such a charge.
Defendant offers little other than legal platitudes in
support of the argument that he was nevertheless somehow
prejudiced by the mid-trial addition of these charges. He cannot
complain about any sentencing impact, of course, as the added
charges were less serious than others he was already facing and
had no practical impact on his sentence—the terms for the added
offenses were all ordered to run concurrently. Rather, defendant
suggests he had no ability to rebut the charges at trial because,
as he puts it, “the defense had presented their case[ ] and all that
remained for the evidentiary portion of the trial was the
prosecution’s single rebuttal witness[ ] when the prosecution
elected to add four new offenses.” There are two problems with
this.
First, the defense did not request a continuance, or an
opportunity to reopen the presentation of evidence, in light of the
proposed additional charges; without such a request, a post-
verdict complaint about an inability to defend obviously rings
hollow. Second, there is a reason the defense did not request to
reopen the presentation of evidence: contrary to what defense
counsel now implies, the trial court granted permission to add the
charges before the defense case was complete. Defendant does
not claim his examination of the witnesses he called out of order
was in any way undercut by the later addition of charges, and if
defendant wanted to mount some separate or additional defense
at the time the trial court permitted amendment of the
information, he was free to do just that.
17
There was no abuse of discretion in permitting the
prosecution to allege the four additional charges during trial.
B. Substantial Evidence Supports Defendant’s Assault
with a Firearm Conviction and the True Findings on
the Great Bodily Injury Allegations
Defendant contests the sufficiency of the evidence at trial
in two respects: one as to his conviction for assault with a firearm
against Frank and two as to the jury’s finding that he inflicted
great bodily injury in connection with the forced oral copulation
offenses against Ariel. “In evaluating a claim regarding the
sufficiency of the evidence, we review the record ‘in the light most
favorable to the judgment below to determine whether it discloses
substantial evidence—that is, evidence which is reasonable,
credible, and of solid value—such that a reasonable trier of fact
could find the defendant guilty beyond a reasonable doubt.’
[Citation.] [¶] . . . [¶] ‘The standard of review is the same in
cases in which the prosecution relies mainly on circumstantial
evidence.’ [Citations.] ‘We presume in support of the judgment
the existence of every fact the trier of fact reasonably could infer
from the evidence. [Citation.] If the circumstances reasonably
justify the trier of fact’s findings, reversal of the judgment is not
warranted simply because the circumstances might also
reasonably be reconciled with a contrary finding.’ [Citation.]
(People v. Westerfield (2019) 6 Cal.5th 632, 713-714.)
1. The assault with a firearm conviction
Defendant argues “no evidence was presented that the
firearm was loaded.” That overstates the matter. There was
circumstantial evidence defendant’s gun was loaded and,
18
following long-established precedent, we hold the evidence was
sufficient under the applicable standard of review. (See, e.g.,
People v. Rodriguez (1999) 20 Cal.4th 1, 13 (Rodriguez); accord,
People v. Penunuri (2018) 5 Cal.5th 126, 147 [“the fact that the
gun was loaded may be inferred from circumstantial evidence,
and we will uphold an assault conviction if the inference is
reasonable”].)
There was no direct evidence the gun used in the offense at
issue in People v. Montgomery (1911) 15 Cal.App. 315 was loaded;
indeed, the defendant testified it was not. (Id. at 317.) Yet the
Court of Appeal held the jury was entitled to reject that
testimony and find, based on the circumstances, the gun was
loaded. (Id. at 317-319 [the defendant was enraged when he left
a fight, returned with a gun he pointed at the victim, and
declared, “‘I have got you now,’” which the court thought would
have been meaningless unless the weapon was loaded].) In
another case, People v. Mearse (1949) 93 Cal.App.2d 834, the
Court of Appeal rejected a sufficiency of evidence challenge to an
assault conviction and held the defendant’s command to the
victim to halt or “I’ll shoot” indicated the gun was then loaded.
(Id. at 836-838 [explaining “[t]he acts and language used by an
accused person while carrying a gun may constitute an admission
by conduct that the gun is loaded”].) More recently, our Supreme
Court in Rodriguez affirmed an assault with a firearm conviction
where there was again no direct proof the gun was loaded but
there was evidence the defendant displayed a gun to the victim,
placed the barrel of the weapon just under the victim’s chin, and
told the victim to keep quiet because “I could do to you what I did
to” the victim of a shooting on the previous day. (Rodriguez,
supra, 20 Cal.4th at 6-7, 13 [holding a “defendant’s own words
19
and conduct in the course of an offense may support a rational
fact finder’s determination that he used a loaded weapon” and
reasoning “the jury could reasonably have interpreted the
warning as an admission by defendant of his present ability to
harm [the victim]”].)
Here, the evidence at trial established defendant flatly
denied any knowledge of Ariel to Frank even though Frank saw
Ariel enter defendant’s garage and told defendant so. Defendant
then advanced on Frank as the latter retreated toward the street,
raised his Glock-type handgun toward Frank—which Frank
believed based on his military service was not a replica but a real
firearm—and told him he better leave before defendant shot him.
That is good circumstantial evidence the jury could use to infer
the weapon was loaded. Under the circumstances (Frank’s
knowledge that Ariel was inside defendant’s home and not
answering his texts in accordance with the agreed-upon safety
procedures), defendant’s threats against Frank would have been
meaningless if the gun were not loaded.
2. The great bodily injury enhancements
In connection with its findings that defendant forced Ariel
to orally copulate him (counts 6 and 11), the jury found true an
allegation that defendant inflicted great bodily harm on Ariel.
Defendant articulates his sole challenge to these true findings as
follows: “The great bodily injury enhancement on both, or at
least one, of the forced oral copulation convictions must be
reversed as insufficient evidence was presented to establish
which act of forcible oral copulation caused the great bodily
injury or whether they both contributed to the great bodily
injury.” On this score, we believe the evidence is sufficient.
20
Ariel’s testimony, the testimony of the sexual assault
nurse, and medical records documenting the results of the nurse’s
examination established Ariel endured separate instances of
forcible oral copulation causing her to suffer broken capillaries
and bruising in different areas of the roof of her mouth, back of
her throat, and inside her left cheek. From this evidence, the
jury could reasonably have concluded the two charged acts of
forced oral copulation caused different but equally significant
injuries. Indeed, the jury was instructed they could do precisely
that. On the great bodily injury allegation for counts 6 and 11,
the jurors were instructed as follows: “The People have
presented evidence of more than one injury constituting Great
Bodily Injury. You must not find the defendant caused Great
Bodily Injury unless you all agree on which injury constitutes
Great Bodily Injury and that the defendant caused that injury.
[¶] The injury can be different in different allegations, so long as
you all agree on which injury he caused.”11 Defendant apparently
speculates the jury may have concluded both charged acts of
forced oral copulation contributed to all of Ariel’s mouth injuries,
but engaging in this sort of speculation is inconsistent with the
governing standard of review.
The facts here are also unlike the scenario in People v.
Botello (2010) 183 Cal.App.4th 1014, the only authority
defendant cites in his opening brief in attacking the great bodily
injury true findings. In that case, a witness could not say which
defendant fired a rifle that was used to shoot the victim and a
different division of this court held, as conceded by the Attorney
11
Defendant did not object to this instruction at trial and
does not challenge its correctness on appeal.
21
General, the evidence was insufficient to support a finding the
defendants personally discharged a firearm causing great bodily
injury. (Id. at 1018, 1022.) Here, by contrast, there is no dispute
about who caused Ariel’s oral injuries or their severity and the
Attorney General does not concede the evidence was insufficient
to support the great bodily injury allegation for counts 6 and 11.
C. Defendant Has Not Shown His Trial Attorney Was
Ineffective by Not Objecting to the Prosecution’s
Discussion of the Elements of Assault with a Firearm
During closing argument, the prosecution explained the
elements of assault with a firearm to the jury in the following
manner: “So in order to prove that assault with a firearm—that
the defendant assaulted [Frank] with a firearm, I have to prove
that the defendant, he did an act with a firearm; by its virtue, it
would directly and probably result in the application of force to a
person; he did that act willfully—‘willfully means on purpose’—
he was aware of facts that would lead a reasonable person to
realize his act, by its nature, would directly and probably result
in the application of force; and he had the present ability to apply
force with the firearm to a person. Okay. I have to prove to you
these four things for [section] 245(a)(2). That’s count 2.” After
reviewing the evidence regarding Frank’s encounter with
defendant and stressing that “an actual touching” by defendant
on Frank’s person was not required, the prosecution then argued:
“The raising and pointing—right. Although [defendant] did not
touch [Frank], [the raising and pointing] is enough for [section]
245(a)(2), assault with a firearm. If you raise and point a gun at
somebody, that is enough. That is assault with a firearm.” It is
22
this second, “raise and point” statement which defendant now
argues was a misstatement of the law.
The defense raised no contemporaneous objection to this
aspect of the prosecution’s closing argument. The point is
accordingly forfeited. (People v. Williams (2013) 56 Cal.4th 630,
671-672; see also People v. Winbush (2017) 2 Cal.5th 402, 482.)
Defendant rather perfunctorily argues, however, that the absence
of an objection constitutes ineffective assistance of counsel. Our
discussion of the argument will be commensurate with the depth
of defendant’s presentation of it. Defense counsel may have
appropriately refrained from objecting because, considered in its
full context, the prosecution’s argument did not misstate the law;
the prosecution expressly informed the jury that there must be
proof defendant had the present ability to apply force with the
firearm to a person, which was obviously not possible if
defendant’s gun were not loaded. The existence of legitimate
reasons for not objecting defeats an ineffective assistance of
counsel claim on direct appeal. (People v. Carter (2005) 36
Cal.4th 1114, 1189; People v. Young (2005) 34 Cal.4th 1149, 1192
[courts will not “lightly infer” a jury would draw the most
damaging meaning from statements during closing argument];
People v. Bradley (2012) 208 Cal.App.4th 64, 90 [“Failure to raise
a meritless objection is not ineffective assistance of counsel”].)
23
D. Substantial Evidence Supports the Trial Court’s
Decision Not to Stay Punishment on Certain Counts
Pursuant to Section 654, but a Full Resentencing Is
Still Required
Section 654, in pertinent part, provides as follows: “An act
or omission that is punishable in different ways by different
provisions of law shall be punished under the provision that
provides for the longest potential term of imprisonment, but in no
case shall the act or omission be punished under more than one
provision.” (§ 654, subd. (a); see also People v. Jones (2012) 54
Cal.4th 350, 353 (Jones).) Our Supreme Court has held that
when different charged crimes “were completed by a ‘single
physical act,’” section 654 bars punishment for more than one of
the charged offenses. (People v. Corpening (2016) 2 Cal.5th 307,
311 (Corpening).) Prohibited double punishment is what
defendant claims occurred here. He argues all three of counts 1
(assault with a firearm on Ariel), 3 (false imprisonment of Ariel
by violence), and 19 (assault with intent to commit a felony on
Ariel) “rely on the same act of [defendant] hitting Ariel on the
head with a gun . . . .”12 That, however, is not how we see the
record.
The question is whether defendant hitting Ariel on the
head “separately completes the actus reus for each of the relevant
criminal offenses.” (Corpening, supra, 2 Cal.5th at 313.) It does
12
The prison terms for each of these three counts were
ordered to run concurrent to the 43 years to life sentence on the
count 6 forced oral copulation offense. Imposition of concurrent
sentences, however, does not moot the section 654 question. (See
generally Jones, supra, at 353, 360.)
24
not. Defendant’s false imprisonment of Ariel was accomplished
by violence—by acts—apart from just hitting her on the head
with his gun; the most significant of these was his strangulation
of her into unconsciousness, but he also dragged her from room to
room in the house. As for assault with intent to commit a felony,
much the same can be said. Defendant hit Ariel on the head with
the gun before forcing her to engage in sex acts, but he also
choked her and hit her with his fists. He also bound her hands
with tape and threatened her at gunpoint. In other words, there
was a proper basis on which the trial court could find no single
act completed the actus reus for each of the offenses in question.
Other aspects of the trial court’s sentencing decisions are
defective, however, as the Attorney General agrees. Perhaps
most significant is the trial court’s error in applying section
667.61.
Section 667.61 is “an alternative sentencing scheme [that]
applies only to certain felony sex offenses. [Citation.] It
mandates an indeterminate sentence of 15 or 25 years to life in
prison when the jury has convicted the defendant of a specified
felony sex crime (§ 667.61 [listing applicable crimes]) and has
also found certain factual allegations to be true (§ 667.61, subds.
(d), (e)).” (People v. Anderson (2009) 47 Cal.4th 92, 102.)
“Because the One Strike law constitutes a separate sentencing
scheme for offenses within its scope, punishment for such
offenses is not subject to other sentencing schemes, except where
the One Strike law so provides.” (People v. Rodriguez (2012) 207
Cal.App.4th 204, 214.) Thus, a One Strike sentence must be
imposed as the principal term, not as an enhancement to the
principal term. (People v. Acosta (2002) 29 Cal.4th 105, 118 [“the
One Strike law does not establish an enhancement, but ‘sets forth
25
an alternative and harsher sentencing scheme for certain
enumerated sex crimes’”]; People v. Fuller (2006) 135 Cal.App.4th
1336, 1343 [“the trial court erred in sentencing [defendant] under
both the one strike and the determinate sentencing laws for each
rape count because the former is an alternative, harsher
sentencing scheme for those to whom it applies, not an
enhancement under the latter”].)
Here, the trial court erred in precisely the same manner as
described in People v. Acosta, supra, 29 Cal.4th 105 and People v.
Fuller, supra, 135 Cal.App.4th 1336. The court imposed
determinate terms on counts 6, 7, 11, 14, and 15 and tacked on
indeterminate section 667.61 sentences as if that statute provides
for a consecutive enhancement rather than an alternative
sentencing scheme. That was error, and the Attorney General
agrees this error alone requires a remand for a full resentencing.
(See, e.g., People v. Buycks (2018) 5 Cal.5th 857, 893 [“when part
of a sentence is stricken on review, on remand for resentencing ‘a
full resentencing as to all counts is appropriate, so the trial court
can exercise its sentencing discretion in light of the changed
circumstances’”].)
We shall therefore vacate the sentence imposed with
directions to resentence the defendant. In conducting the
resentencing, the trial court should be mindful of the other
concessions the Attorney General makes in this appeal
concerning the propriety of the concurrent life sentences and gun
use allegations on counts 6, 7, and 11 and the description of count
3 in the abstract of judgment. The trial court should also exercise
renewed care in calculating and imposing criminal fines and
assessments, including consideration of any objections the
defense may make to those financial obligations.
26
DISPOSITION
Defendant’s convictions are affirmed. The case is
remanded for resentencing consistent with the views we have
expressed in this opinion.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, Acting P. J.
We concur:
MOOR, J.
KIM, J.
27