People v. Johnson CA2/8 ( 2021 )

Filed 9/1/21 P. v. Johnson CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B301568
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA070386)
v.
JAMES E. JOHNSON et al.,
Defendants and Appellants.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Charles Chung, Judge. Affirmed in part and
remanded in part.
Randy S. Kravis, under appointment by the Court of
Appeal, for Defendant and Appellant James E. Johnson.
Nancy L. Tetreault, under appointment by the Court of
Appeal, for Defendant and Appellant Michael Alexander Mancha.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Paul M. Roadarmel, Jr. and John Yang,
Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
In 2012, James Johnson and Michael Mancha sexually
assaulted Stephine G. The men wanted Stephine, a prostitute
working for someone else, to work for them. Prosecution of the
assault was dropped after Stephine stopped cooperating after her
initial encounter with police. In 2015, Johnson criminally
threatened Ericka H. and snatched her two-year-old daughter
Kaylee away from her to persuade or force her into working for
him as a prostitute. After Ericka reported the crimes to law
enforcement, the police reconnected with Stephine and told her of
the threats made to Ericka. Stephine agreed to cooperate. In
2019, the two sets of charges were tried together.
Johnson was charged in counts 1, 2, 5, and 6 with criminal
threats against Ericka (Pen Code, § 422, subd. (a))1; kidnapping
Ericka’s daughter Kaylee, a child under 14 (§§ 207, subd. (a), 208,
subd. (b)); pandering by encouragement (§ 266i, subd. (a)(2)); and
possession of a firearm by a felon (§ 29800, subd. (a)(1)).2 The
jury convicted him of all counts and found true the allegations
that he personally used a firearm in the commission of the
criminal threats and kidnapping.
Johnson and Mancha were charged together in counts 7, 9,
10, and 11 with kidnapping Stephine (§ 207, subd. (a); forcible
rape and rape by foreign object in concert (§ 264.1, subd (a));
sodomy by acting with force in concert (§ 286, subd. (d)(1)); and
oral copulation by acting with force in concert (§288a, subd.
1 Undesignated statutory references are to the Penal Code.
2 Count 4 against Johnson only for assault with a semi-
automatic firearm was dismissed during trial. There was no
count 3.
2
(d)(1)).3 The jury was unable to reach a verdict on the kidnapping
charge as to either defendant. The jury found both men guilty of
rape in concert and sodomy in concert. The jury convicted
Johnson of the lesser included offense of forcible oral copulation
and entirely acquitted Mancha of oral copulation.
The jury found true allegations that (1) Johnson personally
used a firearm in the commission of the offenses involving
Stephine (§ 12022.53, subd. (b)); (2) the sexual offenses were
committed during the course of a kidnapping (§ 667.61, subd.
(e)(1)); (3) the movement of the victim Stephine substantially
increased the risk of harm to the victim (§ 667.61, subd. (d)(2));
and (4) Johnson used a deadly or dangerous weapon during the
commission of the sexual offenses (§ 667.61, subd. (e)(3).) The
jury did not find true the section 667.61 kidnapping, weapon, and
firearm allegations as to Mancha.
The trial court sentenced Johnson to 126 years to life in
prison, consisting of three consecutive 25-year-to-life terms for
the three sexual offenses against Stephine; three ten-year
enhancement terms for the use of a firearm in those offenses; an
eleven-year term for the kidnapping of Ericka’s daughter Kaylee;
a 10-year term for the firearm enhancement for kidnapping. The
trial court also imposed various fines and fees.
The trial court sentenced Mancha to 18 years in prison,
consisting of the upper term of nine years for forcible rape in
concert and a fully consecutive term of nine years for forcible
sodomy in concert. These terms were consecutive pursuant to
section 667.21, subdivision (d), which provides for fully
consecutive terms if the sexual offenses are committed against
3 There was no count 8.
3
the same victim on separate occasions. The trial court also
imposed various fines and fees.
Johnson appeals, contending 1) the evidence of asportation
is insufficient to support his conviction for kidnapping Ericka’s
daughter Kaylee; 2) the trial court erred in allowing his mother
Marion to testify that Ericka said she was “tricking” for Johnson;
3) the trial court abused its discretion in excluding Marion’s
testimony that Ericka “admitted to being coerced into making
false statements;” 4) the trial court impermissibly lowered the
People’s burden of proof when it instructed the jury it could find
the charges against Ericka true by a preponderance of the
evidence and then use them as evidence of Johnson’s intent and
absence of mistake as to the offenses involving Stephine; 5) the
jury’s true finding on the section 667.61 kidnapping allegations
related to Stephine must be reversed because they are
inconsistent with the jury’s failure to reach a verdict on the
substantive charge of kidnapping Stephine; 6) the prosecutor
committed prejudicial misconduct by commenting on the
defense’s failure to call as a witness a third man who was present
when Stephine was allegedly kidnapped; and 7) the trial court
abused its discretion in imposing consecutive sentences for the
rape and sodomy convictions.
Mancha joins in Johnson’s claim about the jury instruction
on the use of the charges involving Ericka as evidence on the
charges involving Stephine. He separately contends the same
instruction, CALCRIM 375, did not adequately tell the jury that
evidence of the charged offenses involving Ericka could not be
used against Mancha to show intent or absence of mistake for the
offenses involving Stephine. Mancha also contends 1) the trial
court erred in refusing to impose sanctions against the People for
4
the state’s failure to collect (and thereby preserve) exculpatory
evidence related to Stephine; 2) the trial court erred in giving a
flight instruction in the absence of evidence of flight; 3) the
prosecutor committed prejudicial misconduct in commenting on
the defense’s failure to call the third man who witnessed
appellants’ initial interactions with Stephine; and 4) the court
violated his right to due process and equal protection by imposing
certain fines and fees without holding an ability-to-pay hearing.
Johnson joins in Mancha’s arguments about the People’s failure
to collect evidence, the flight instruction, and the imposition of
certain fines and fees without an ability-to-pay hearing.
We affirm the judgment of conviction as to Mancha. We
agree there is insufficient evidence of asportation to support
Johnson’s conviction for kidnapping Kaylee and we reduce the
offense to felony false imprisonment by menace. We find the trial
court’s stated reasons for imposing consecutive sentences on
Johnson for the rape and sodomy charges to be unclear at best
and potentially unsupported by evidence. We remand this matter
as to Johnson to permit resentencing on the false imprisonment
charge and clarification of the court’s reasons for imposing
consecutive sentences and, if appropriate, resentencing. We
affirm the judgment of conviction in all other respects.
BACKGROUND
I. The Charges Involving Stephine
In 2011, when Stephine was 19 years old, she began
working as a prostitute for Robert Walker. She described Walker
as physically abusive with strict rules, including demanding that
she call him rather than 911 if she encountered trouble. Any
violation of his rules would result in physical punishment.
5
Stephine gave Walker all the money she earned from
prostitution.
On March 28, 2012, Walker dropped off Stephine and two
other prostitutes to work on Sepulveda Boulevard in Van Nuys.
Stephine noticed two men in a red SUV drive by repeatedly; they
yelled they were going to snatch her. Stephine called Walker,
then began walking up a side street to meet him. The red SUV
drove up and blocked her. Johnson got out with a gun, hit her on
the back of the head, and forced her into the SUV. Someone took
Stephine’s cell phone and threw it into the bushes. Mancha
drove off. Stephine was in the back seat with Johnson. A third
man (the “missing” witness) was in the front passenger seat.
The men drove to Lancaster. During the drive, Stephine
heard the men discussing the idea of her prostituting for them.
In Lancaster, Mancha and Johnson dropped off the third man.
They then drove to the house of Deandra Moore, the mother of
Mancha’s child, on Sancroft. Mancha went inside.
Johnson remained in the vehicle, pointed a gun at
Stephine, and demanded that she orally copulate him. She did so
briefly. Johnson hit her. Mancha came back to the SUV and said
he needed it to take Moore to work. Johnson and Stephine
walked around until Mancha left, returned, and picked them up
in the SUV. Johnson had his gun with him on the walk.
When they entered Moore’s house, no one appeared to be
home. Stephine gave slightly varying accounts of what happened
at the house. She testified the two men consumed drugs and
alcohol and then told her that it was time she was “broken in.”
Stephine asked Johnson if he was going to use a condom. He hit
her. Stephine bent over the couch and Johnson tried to insert his
penis into her anus. Mancha was holding her hands. Stephine
6
screamed in pain. Johnson hit her. Mancha told her to be quiet
because there were children in the house. Johnson then told her
to get on top of him. She asked him to put on a condom, but he
hit her instead. She complied with his demands. His penis was
in her vagina. Stephine did not want to have sex with Johnson
but did so because he was in control with a gun.
Initially Stephine told police Mancha also tried to engage in
anal sodomy with her. Stephine also told police that Mancha
simply switched with Johnson and had sex with Stephine in the
same location. At trial, however, Stephine testified that after
Johnson finished, Mancha directed her to go to a back room.
There, Mancha inserted his penis into Stephine’s vagina against
her will. He eventually ejaculated. At trial Stephine did not
repeat her claim that Mancha attempted to sodomize her.
Stephine returned to the living room and got dressed.
Johnson stayed in the living room with Stephine. Mancha slept
in the back room with his children. Johnson fell asleep.4
Stephine went into the bathroom and called 911. She then called
Walker twice, told him she had been abducted and raped, and
gave him the address of the house.
When Mancha and Johnson woke up, they handed Stephine
a cell phone and told her she was going to work for them on
Sierra Highway. She surreptitiously called Walker to tell him
where she would be. In the early afternoon they left the house,
drove to a liquor store where Mancha purchased condoms for
Stephine, and then drove to Sierra Highway where they dropped
4 Stephine initially told police Mancha slept in the living
room. She testified at trial that she never saw Mancha’s children
awake, but previously told police she did see one of the children
and waved to her.
7
her off and told her to walk up and down the street and text them
when she got a date. They threatened to shoot her if she did not
comply.
Stephine walked to the nearby Bonaire Motel. She asked
the motel clerk for a business card so she would be able to tell
Walker or the police where she was. She did not tell the clerk
about her situation or ask him to call 911. She went outside to
the parking lot, hid behind a car, and called 911. She told the
dispatcher she had been kidnapped at gunpoint in Compton and
brought to the area and her kidnappers were driving around
looking for her. She then called Walker, who told her he was
nearby.
Mancha called Stephine on the cell phone he had given her
and asked where she was. She said she was on a date. She later
told police Mancha found her, snatched her up, and took her back
to the house for two hours. She escaped and went to a Carl’s Jr.
In 2015, after Stephine agreed to cooperate with law
enforcement, Stephine admitted that in order to protect Walker,
she lied to police about what happened after the first 911 call.
She did not admit the full extent of her falsehoods until after the
preliminary hearing.5
At trial, Stephine testified that Walker arrived at the
Bonaire motel with two friends in response to her call and picked
her up. They tried to follow Mancha’s SUV but eventually gave
up. Walker dropped Stephine at a Carl’s Jr. restaurant and told
her to call police.
5 During trial, Stephine received immunity for the lies she
told under oath at the preliminary hearing.
8
Stephine did call 911. However, she also said she had
previously called 911 but had been snatched up by her
kidnappers while she was waiting for police to arrive. This was
not true. At some point thereafter she told police that after she
escaped she called a friend, Shea, who picked her up and took her
to the Carl’s Jr. At trial she admitted that this, too, was a lie.6
In response to the first 911 call by Stephine, sheriff’s
deputies stopped Mancha’s red Xterra on Sierra Highway about
one-half mile from the Bonaire Motel, at about 2:30 or 3:00 p.m.
Police found a gun on Johnson, who was in the passenger seat.
As they were booking Johnson for gun possession, the deputies
learned the kidnap victim had called again and was at the Carl’s
Jr. about a mile from the motel. Deputy Diego Andrade and his
partner went to the location and met Stephine.
Stephine was crying and she appeared to Deputy Andrade
to be in fear. Stephine gave the deputy a cell phone she said her
kidnappers had given to her. Stephine told Deputy Andrade that
she had been kidnapped and raped. Deputies took her to a
hospital for a sexual assault exam. DNA from Mancha was found
on her breasts and shoulders; DNA from Johnson was found in
her vagina, cervix, rectum, and on her shoulder.
Los Angeles County Sheriff’s Detective Sarah Gillis was
assigned to Stephine’s case. She recovered 911 calls from March
28, 2012, including the two in which Stephine spoke to deputies.
Gillis discovered deputies had responded to Moore’s house in
6 Stephine also testified that she lied and used Shea’s name
instead of Walker’s when telling police about her original
prostitution activities on Sepulveda. She also falsely told police
at one point that she called Shea (not Walker) from the landline
at Mancha’s house.
9
response to a call from a man who reported that a friend had
called him and said she had been kidnapped and raped.7
Detective Gillis requested surveillance video from the
Carl’s Jr. and the liquor store, but never picked up the Carl’s Jr.
video or followed up to see if the liquor store had video. Detective
Gillis spoked with the manager of the Bonaire Motel and
obtained a list of guest names. The manager was unwilling to
give Gillis more guest information without a subpoena. Detective
Gillis did not try to subpoena the information and did not try to
locate the guests using only their names. At some point the list
was lost. Detective Gillis did request and receive records for the
cell phones used in the incident, but later realized she had
inadvertently requested the records for the wrong date. By then,
it was too late to obtain correct records.
At trial, Detective Gillis explained Stephine soon became
an uncooperative witness and the district attorney’s policy was
not to prosecute sex offenses if the victim was uncooperative.
Detective Gillis exercised her discretion and concentrated on her
14 other cases rather than Stephine’s case. In July 2012, four
months after the events, the district attorney formally rejected
the case for prosecution.
II. The Charges Involving Ericka
In 2015 Ericka was working as a prostitute. She advertised
her services on Craigslist. In November 2015, Johnson called
7 The man gave the landline number his friend had called
from, and sheriff’s deputies were able to trace the number to
Moore’s house. Deputy Trojanowski had responded to the
address at about 9:00 a.m. on March 28, 2012 in response to a
“call for service” but received a higher priority call and left.
10
Ericka for her services. Ericka hung out with Johnson at his
house. There was no sexual activity. She began to spend time at
his house in Palmdale and take drugs with him. Other women
were present at the house. Johnson broached the idea of Ericka
working for him as a prostitute. He said if she gave him all her
earnings he would take care of her. Ericka refused, but Johnson
persisted in asking. One of the women took a photograph of
Ericka to use for advertising. Ericka went to a prostitution
appointment Johnson arranged for her. She gave him the
proceeds. Johnson told her to limit her time to 15 minutes.
On November 6, 2015, Johnson, his girlfriend Dana, his son
James, Ericka, and Ericka’s daughter Kaylee went together to a
grocery store where he met his mother Marion Johnson. The
purpose of the encounter was to buy food for Marion to cook for
Johnson and his family that night. The entire group drove to
Marion’s house. After the groceries were carried in, Johnson told
Marion he had to drop off Ericka in Lancaster.
Johnson had arranged for another sex transaction for
Ericka that night. Ericka left Kaylee with the women in
Johnson’s house. Ericka took longer than 15 minutes to complete
the transaction and did not obtain any extra money. Johnson
became angry, hit Ericka, and beat her with an extension cord.
Johnson made Ericka drive around with him. He then returned
to his house and told Ericka to get Kaylee and bring her to the
car. Ericka did not want to do so, but Johnson threatened her.
11
Johnson drove to the parking lot of the apartment complex
managed by his mother Marion. Another argument ensued,
which involved Johnson chasing Ericka around the car. She
became concerned that Johnson was going to try to grab Kaylee,
so she got into the back seat of the car and held Kaylee. Johnson,
in the front seat, produced a gun, demanded Kaylee, and then
grabbed Kaylee from Ericka. Ericka screamed and Kaylee cried.
Marion, who was awakened by the argument between
Johnson and Ericka, appeared at the SUV. This occurred around
4:00 a.m. Johnson was in the front seat holding Kaylee. Ericka
was in the back seat. When Marion opened the car door and saw
that Ericka was wearing a “slutty” dress, she asked Ericka if she
was “tricking” for Johnson. Ericka replied, “Yes.”
Marion took Kaylee from appellant and told Ericka to come
with her into her apartment. Ericka went with Marion and
Johnson followed. Marion testified that once inside the
apartment, appellant kept telling Ericka to come outside and get
her beating. He said that once Ericka left the apartment, his
friends were going to “get her.” After about an hour, Marion
threw Johnson out of her apartment. He returned and pointed a
gun at Ericka. Johnson finally left for good at about 7:00 a.m.
and Marion called 911.
Sheriff’s Deputy Joshua Paulson responded to the call.
Marion told the deputy Johnson was yelling and hitting Ericka
and she had to pull Ericka and Kaylee away from him. She also
said Johnson came inside the apartment with a gun and
threatened to shoot Ericka if she reported him to the police.
Sheriff’s Deputy Peter Schuerger later stopped Johnson in
his vehicle. The deputy found a loaded 9 mm handgun in the
glove compartment.
12
Sheriff’s Detective Mike Davis accessed the contents of
Johnson’s cell phone. He discovered text messages showing
attempts to arrange locations for paid sex, along with photos and
videos of women. The cell phone also contained provocative
photos of “women’s private parts,” including photos of Ericka.
III. The Defense
Deandra Moore, Mancha’s fiancée and the mother of his
three sons, testified on Mancha’s behalf. She testified that when
she returned home from her 13-hour work shift on the evening of
March 28, 2012, she did not notice anything unusual. The next
day, she discovered some of her high-end make-up and costume
jewelry was missing. That afternoon, she received a phone call
from a man who sounded African-American. The caller
identification showed it was a private caller. According to Moore,
the man said “we” owed him money. He threatened to harm her
family and shoot up her house if “we” did not pay up. As a result
Moore and her family moved away from Lancaster to Lake Los
Angeles.
Johnson’s defense focused on the evidence related to
Ericka. Marion’s sister Lawanda Hill testified she was with
Marion during a phone call between Marion and the prosecutor
Elena Yeh. In the portion of the conversation overheard by Hill,
Marion said a sentence of 25 years was excessive and she was
going to fight for Johnson and tell him not to take the plea deal.
Yeh said if Johnson did not take the deal, there would be more
charges and a longer sentence.
Johnson’s sister Laura Young testified she spoke with
Ericka on the phone at one point and asked her if Johnson had
her out “whoring.” Ericka said no, she was voluntarily working
as a prostitute to make extra money for her birthday.
13
Marion was recalled and testified as a witness for the
defense. She said she was an ordained minister and ministered
to Ericka for two hours after Johnson left the apartment. When
Marion made the 911 call she “was telling them pretty much kind
of what [Ericka] was telling [her].” Marion also testified Ericka
said Johnson did not force her to go into prostitution. She
wanted to make extra money for her birthday and she asked
Johnson how to do so. She voluntarily went into prostitution.
DISCUSSION
I. Charges Involving Ericka
A. There is Insufficient Evidence of Asportation to
Support Johnson’s Conviction for Kidnapping a
Child.
Johnson grabbed Kaylee from Ericka. The People charged
this act as a simple kidnapping of a child in violation of section
207. This charge required the People to prove that Johnson
asported Kaylee. Asportation requires a “substantial” movement
of the victim. Johnson contends the evidence of asportation is
insufficient to support the conviction. Johnson acknowledges
that generally the jury must consider the totality of the
circumstances to determine whether the movement was
substantial, but contends that when the distance is “very short,”
the movement cannot be substantial and no consideration of
other contextual factors is required. We do not agree that
distance, however short, can be considered alone. We agree,
however, with Johnson’s alternate contention that the contextual
factors in this case are not sufficient to find the “very short”
movement in this case substantial.
14
The California Supreme Court has explained that a simple
kidnapping charge requires movement that is substantial in
character, but the trier of fact may consider more than actual
distance. (People v. Martinez (1999) 20 Cal.4th 225, 235–236,
overruled on another ground by People v. Fontenot (2019)
8 Cal.5th 57.) In determining whether the movement is
substantial in character, “the jury should consider the totality of
the circumstances. Thus, in a case where the evidence permitted,
the jury might properly consider not only the actual distance the
victim is moved, but also such factors as whether that movement
increased the risk of harm above that which existed prior to the
asportation, decreased the likelihood of detection, and increased
both the danger inherent in a victim's foreseeable attempts to
escape and the attacker’s enhanced opportunity to commit
additional crimes.” (Martinez, at p. 237.) The Court has also
stated: “At the same time, we emphasize that contextual factors,
whether singly or in combination, will not suffice to establish
asportation if the movement is only a very short distance.” (Ibid.)
Johnson points to this reference to “only a very short
difference” to support his contention that when the distance is
“very short,” no further analysis is needed because no asportation
has occurred as a matter of law.
We read Martinez differently. The Court in Martinez
clearly abolished distance, whether short or long, as the sole
measure of whether movement is substantial. “[O]ur Supreme
Court has ‘repeatedly stated no minimum distance is required to
satisfy the asportation requirement.’ ” (People v. Robertson
(2012) 208 Cal.App.4th 965, 986.)
15
Another child kidnapping case, People v. Singh (2019)
42 Cal.App.5th 175, demonstrates why distance alone is a poor
measure. The record in that case did not contain evidence of the
precise distance the kidnapped child was moved, but “video
evidence show[ed] defendant removing the child from inside the
bus and taking about five steps away before Mother ran and
caught up.” (Id. at p. 187.) A mere five steps, considered,
without context, might seem to be a “very short” movement.
Considered in context, however, the movement is substantial. As
the Singh court explained, the movement took the child "from one
environment, the inside of the bus where his mother was, to
another environment, outside of the bus where no one knew the
child.” (Id. at p. 188.) As the court also explained “a bus is a
mode of public transportation that can shut its doors and take off
rapidly; had that occurred here, it would have substantially
increased the risk of harm to the child and enhanced defendant’s
opportunity to commit additional crimes.” (Ibid.) The Singh
court concluded: “Considering the totality of the circumstances, a
jury could readily and reasonably conclude that the distance
defendant moved the child was substantial as it increased the
risk of physical or psychological harm to the child above that
which existed prior to the asportation, and that the movement
enhanced defendant’s opportunity to flee with the child and
commit additional crimes.” (Ibid.)
Nevertheless, we agree with Johnson that the totality of
the circumstances in this case do not support a finding that his
movement of Kaylee was substantial. The distance was indeed
“very short”, from the back seat of the SUV to the front seat. The
movement took place inside the SUV and so did not change the
child’s environment. (Cf. People v. Shadden (2001)
16
93 Cal.App.4th 164, 169, [“Where movement changes the victim’s
environment, it does not have to be great in distance to be
substantial”].) Further, because Kaylee, Johnson and Ericka
were inside the close confines of the SUV, the movement within
the vehicle did not decrease the likelihood of detection or provide
Johnson with an enhanced ability to commit other crimes.
Johnson had a gun and was within arm’s reach of Kaylee before
he grabbed her, so moving Kaylee a few feet closer to Johnson
within the closed confines of the SUV did not increase the risk of
harm to her over that presented with Kaylee in the back seat and
Johnson in the front. The risk of harm from an escape attempt
by the victim was not changed, since Kaylee, a two-year-old, was
not likely capable of “escaping” on her own. Given the very short
distance involved, the other contextual factors in this case are not
sufficient to find Johnson’s movement of Kaylee was substantial.
We note respondent contends moving Kaylee from the back
seat to the front seat put her where Johnson “could readily
mistreat her so as [to] punish Ericka’s defiance.” The record does
not clearly show Johnson’s reasons for grabbing Kaylee. It is
possible that he intended to move her out of harm’s way before he
shot Ericka. It is also possible, as respondent suggests, that
Johnson intended to hold Kaylee as a hostage to coerce Ericka
into behaving as he wished. If that was the prosecution’s theory
of the case, however, a more appropriate charge would have been
kidnapping for ransom, extortion or reward in violation of section
209, subdivision (b), an offense that does not require asportation
of the victim.
17
Because we find insufficient evidence of asportation, we
reduce the kidnapping conviction to felony false imprisonment by
menace, a lesser included offense of simple kidnapping. Johnson
concedes there is sufficient evidence to support such a conviction.
B. Ericka’s Statement to Marion About Tricking
Explained the Parking Lot Incident and Was Properly
Admitted.
When Marion opened the door of Johnson’s car in the
parking lot, Marion asked Ericka if she was “tricking” for
Johnson. The trial court exercised its discretion and found that
Ericka’s out-of-court response to Marion was a spontaneous
statement within the meaning of Evidence Code section 1240, an
exception to the rule barring hearsay statements. Johnson
contends this was error. We disagree.
Evidence Code section 1200 provides that out-of-court
statements by a witness are not admissible to prove the truth of
the matter asserted in the statement, except as otherwise
provided by law. Evidence Code section 1240 provides:
“Evidence of a statement is not made inadmissible by the hearsay
rule if the statement: [¶] (a) Purports to narrate, describe, or
explain an act, condition, or event perceived by the declarant; and
[¶] (b) Was made spontaneously while the declarant was under
the stress of excitement caused by such perception.”
“Whether an out-of-court statement meets the statutory
requirements for admission as a spontaneous statement is
generally a question of fact for the trial court, the determination
of which involves an exercise of the court’s discretion. [Citation.]
We will uphold the trial court’s determination of facts when they
are supported by substantial evidence and review for abuse of
discretion its decision to admit evidence under the spontaneous
18
statement exception. [Citations.]” (People v. Merriman (2014)
60 Cal.4th 1, 65,)
Johnson contends Ericka’s statement did not meet two of
the three requirements for a spontaneous statement: Ericka was
not under “the stress of excitement” and her statement did not
“narrate, describe or explain” the event.
There is substantial evidence to support the trial court’s
finding that Ericka was under the stress of the incident in the
parking lot when she spoke to Marion. Marion testified she
heard arguing, went outside, walked up to the car, and observed
Ericka was “teary.” Marion asked the “tricking” question a
couple of times and it took Ericka a long time to reply. When
Ericka did reply, she “broke down” and gave a sobbing cry.
Ericka’s demeanor and behavior shows she was still under the
stress of nervous excitement when she answered Marion’s
question.8
There is also substantial evidence to support the trial
court’s implied finding that Ericka’s statement described or
explained the startling incident. When Marion called 911 after
the incident, she stated “he’s calling his self a little pimp. They
were out in my parking lot screaming and yelling, and I went out
8 Although Marion initially testified that all she heard when
she approached the car was the baby crying, Marion later
acknowledged testifying at the preliminary hearing that Ericka
was screaming when Marion arrived at the car, agreed that her
memory of events was better at the preliminary hearing, and also
agreed that she was not exaggerating at that hearing. Although
this particular testimony was not before the trial court when it
made its ruling, the prosecutor could have reinforced the evidence
of Ericka’s emotional state with this testimony, if necessary.
19
. . . [a]nd he was threatening her and her baby.”9 This suggests
that Johnson’s pimping was part of the dispute in the parking lot,
and so indicates that Ericka’s response to Marion’s question
about “tricking” for Johnson was closely connected to the
startling incident, which had just occurred and was arguably still
ongoing.
Johnson’s reliance on People v. Corella (2004)
122 Cal.App.4th 461 to show error is misplaced. There the
assault victim stated she hid the car keys to prevent her husband
from leaving home while intoxicated. The court found the
victim’s statements “were a description of the event that
culminated in [his] violent act and were closely connected with
the occurrence at issue. The statements were also an unreflective
explanation of her perception of the reasons why [he] hit her.”
(Id. at p. 466.) Only her statements indicating he was on
probation and was intoxicated due to much earlier marijuana use
did not qualify as descriptions or explanations of the offense. (Id.
at pp. 466–467.) Here, the evidence indicates that a dispute over
Ericka’s “tricking” for Johnson occurred during the parking lot
incident, even if the dispute might have begun earlier in the day.
9 Initially the prosecutor intended to play the 911 call during
Marion’s testimony and the trial court agreed the tape could be
played “after the break.” Johnson’s counsel objected only to
Marion’s references to Johnson’s probationary status and to a
warrant for his arrest. For reasons which are not clear from the
record, the tape does not appear to have been played for the jury
until Ericka testified. The trial court, however, was clearly
aware of the content of the tape before Marion testified.
20
In any event, assuming for the sake of argument the
statement was erroneously admitted, we would find harmless
error. Johnson contends the statement was prejudicial because it
is reasonably probable that the statement adversely impacted the
jury’s verdict on the pandering charge.10 (People v. Duarte (2000)
24 Cal.4th 603, 618–619 [applying Watson, supra, (1956) at
p. 836 to admission of hearsay in violation of state rules of
evidence].) He contends the evidence to support the pandering
charge was thin without Ericka’s statement.
A person commits the offense of pandering when “[b]y
promises, threats, violence, or by any device or scheme, [he]
causes, induces, persuades or encourages another person to
become a prostitute.” (§ 266i, subd. (a)(2).) “[T]he proscribed
activity of encouraging someone ‘to become a prostitute,’ as set
forth in section 266i, subdivision (a)(2), includes encouragement
of someone who is already an active prostitute.” (People v.
Zambia (2011) 51 Cal.4th 965, 981.) The statute is clear that the
crime of pandering is complete when the defendant “encourages
another person to become a prostitute” by “promises, threats,
violence, or by any device or scheme.” (§ 266i, subd. (a)(2).)
There is no requirement that defendant succeed. (Zambia, at
pp. 981-982, fn. 8.)
10 Johnson makes this argument for prejudice as an alternate
argument. His primary contention is that error should be
assessed under Chapman v. California (1967) 386 U.S. 18 as a
violation of his federal constitutional right to due process. He
cites no cases applying such a standard. As noted above, where,
as here, the Confrontation Clause is not implicated, the
California Supreme Court treats the erroneous admission of
hearsay as state law error to be assessed under People v. Watson
(1956) 46 Cal.2 818 (Watson).
21
Here, Ericka directly testified Johnson repeatedly
attempted to persuade her to work for him. She testified Johnson
would “try and convince” her to work for him by offering to
protect her and get her “whatever [she] needed” in exchange for
her earnings. Ericka went on one “call” after meeting Johnson
and the proceeds from that call were given to him. Photographs
of Ericka and text messages found on Johnson’s phone indicated
Ericka was engaging in prostitution in coordination with
Johnson. Marion told the 911 operator Johnson was “calling his
self a little pimp” and “he call himself pimping this young lady.”
This is extremely strong evidence that Johnson committed
pandering. It is not reasonably probable Johnson would have
received a more favorable verdict if Ericka’s out of court
statement that she was tricking for him had been excluded.
C. Ericka’s Statements to Marion About Being Pressured
to Lie Were Not Prior Inconsistent Statements and
Were Not Offered in Compliance with the
Requirements for Such Statements.
Johnson contends the trial court abused its discretion and
violated his right to present a defense when it excluded Marion’s
proposed testimony that Ericka admitted she was being forced to
say things that were not true. He claims Ericka’s admission was
highly relevant impeachment evidence.
There is no question that a witness’s admission of
untruthfulness is highly probative of the witness’s credibility.
(See, e.g., Evid. Code, § 780, subd. (k).) Not all relevant evidence
is admissible, however. Ericka’s out of court statement was
hearsay and was admissible only if it fell within one of the
exceptions to the hearsay rule (Evid. Code, § 1200.)
22
Evidence Code section 1235 provides one such exception,
permitting evidence of a hearsay statement by a witness “if the
statement is inconsistent with his testimony at the hearing and
is offered in compliance with Section 770.”
Ericka’s statement about being compelled to say untrue
things at the preliminary hearing was not inconsistent with
Ericka’s testimony at trial. Ericka swore to tell the truth at trial,
and stated she was telling the truth during her trial testimony.
Assuming for the sake of argument that Ericka gave essentially
the same testimony at trial as she gave at the preliminary
hearing, an admission that she lied at the preliminary hearing
would show her trial testimony was false as well. The admission
that she lied could be viewed as inconsistent with her claim at
trial that she was telling the truth. Johnson, however, has
overstated Ericka’s remarks: she did not admit she actually lied
during the preliminary hearing.
Initially, defense counsel proferred this scenario: Marion
told him that on the day of the preliminary hearing “she advised
Ericka to tell the truth and Ericka said, words to the effect, they
are making me say things that didn’t happen.” Counsel
attempted to obtain more details from Marion, but according to
counsel, Marion “did not ask her what she specifically said. Just
that she was being forced to be there and forced to say things
that weren’t true. And Marion said, don’t let that happen. You
don’t have to say things that aren’t true.” Marion eventually
testified outside the presence of the jury that Ericka told her she
did not want to be there, and Marion replied: “It’s going to be
okay, just tell the truth” and Ericka said, “but they are making
me say stuff that is not true.” Marion told Ericka “they can’t
make you say anything. Just tell the truth. Just say what it is.”
23
Significantly, Marion testified that this exchange took place
before Ericka testified. Thus, Marion’s statement does not show
that Ericka in fact lied at the preliminary hearing. Put
differently, Ericka’s statement before the preliminary hearing
that she was being pressured to lie at the hearing was not an
admission that she did lie at the hearing.11 Thus, it was not
inconsistent with her testimony at trial that she was telling the
truth.
Further, to be admissible, an inconsistent statement must
comply with the requirements of Evidence Code section 770:
“Unless the interests of justice otherwise require, extrinsic
evidence of a statement made by a witness that is inconsistent
with any part of his testimony at the hearing shall be excluded
unless: [¶] (a) The witness was so examined while testifying as to
give him an opportunity to explain or to deny the statement; or
[¶] (b) The witness has not been excused from giving further
testimony in the action.” (Evid. Code, § 770.)
Johnson was unable to show such compliance. Ericka was
not questioned about this statement when she testified, and it
appears the court had already excused her from testifying further
when Johnson brought her statement to the attention of the
11 There is no evidence Marion asked Ericka whether she was
planning to accede to the pressure and lie. Further, Marion was
not present for and did not hear Ericka’s preliminary hearing
testimony, and there is nothing in the record to indicate that the
two women subsequently discussed Ericka’s preliminary hearing
testimony. Ericka may have been persuaded by Marion’s
exhortations to tell the truth or by the oath she took before
testifying. Thus, there is nothing in Marion’s testimony to
support an inference that Ericka in fact lied during the
preliminary hearing.
24
court. Although the trial court agreed to a brief delay to permit
the defense to serve a subpoena on Ericka, Ericka did not appear
again at trial.12
We note Ericka’s statement is an excellent example of the
importance of Evidence Code section 770’s requirement that the
witness be given the opportunity to explain her statement when
testifying or that the opponent of the statement be given the
opportunity to recall her and question her about the statement.
We will assume for the sake of argument that a statement by a
declarant that she was being made to say untrue things in the
future could be construed as inconsistent with the declarant’s
later statement that she was telling the truth. As the trial court
recognized and Johnson has acknowledged, Marion was not clear
whether Ericka was claiming she was being pressured to make
false statements or simply to make statements she did not want
to make. Marion testified that after Ericka stated that they were
making her say things that were not true, Marion said, “they
can’t make you say anything. Just tell the truth. Just say what
it is. They can’t make you say anything against James [Johnson].
[Ericka] said they are making her say stuff because she did not
want to say.” Without further questioning of Ericka, a jury would
only be speculating as to what Ericka actually said to Marion,
and what she meant by her apparently contradictory statements.
To the extent Johnson contends that evidence of pressure
on Ericka to lie was relevant to impeach her credibility even
without a showing that the pressure was effective, Johnson
would still face admissibility issues. The only evidence of
12 On appeal, Johnson states that “counsel could not locate
Ericka.”
25
pressure was Ericka’s out of court statement. If that statement
were offered for the truth of the matter asserted, that is to show
that she was pressured, it would be hearsay. Johnson has not
identified an exception which would allow the statement to be
admitted for that purpose.
D. Error in Giving CALCRIM 375 Was Harmless as to
Johnson.
The trial court instructed the jury with CALCRIM 375,
which permitted the jury, in deciding whether Johnson was
guilty of the offenses involving Stephine, to consider evidence
that Johnson committed the offenses involving Ericka charged in
counts 1 through 5 but “only if the People have proved by a
preponderance of the evidence that the defendant in fact
committed those offenses.” The instruction further told the jury:
“If you decide that the defendant committed these offenses you
may, but are not required to, consider that evidence for the
limited purpose of deciding whether” the “defendant acted with
the intent to rape, sodomize, or orally copulate Stephine G.” or
“that the defendant’s alleged actions were not the result of
mistake or accident.” The instruction told the jury that the
evidence was “not sufficient by itself to prove that the defendant
is guilty of the charges and allegations alleged in counts 7-11.”
The court slightly modified the instruction to state: “Please
remember, that before the jury can vote guilty on any charge,
including but not limited to those alleged in counts 1-5, the
People must still prove (each) (charge/ [and] allegation) beyond a
reasonable doubt.”
26
Johnson contends this instruction lowered the burden of
proof and permitted the jury to convict him of counts 1-5 based on
evidence which the jury did not find true beyond a reasonable
doubt. Relying on People v. Cruz (2016) 2 Cal.App.5th 1178, he
contends the error is structural and therefore reversible per se.
Respondent argues Johnson has forfeited this claim by
agreeing to the wording of the instruction. We find Johnson’s
counsel did not object to the instruction, but we may review “any
instruction given, refused, or modified even though no objection
was made thereto in the lower court, if the substantial rights of
the defendant were affected thereby.” (§ 1259.) “Ascertaining
whether claimed instructional error affected the substantial
rights of the defendant necessarily requires an examination of
the merits of the claim—at least to the extent of ascertaining
whether the asserted error would result in prejudice if error it
was.” (People v. Andersen (1994) 26 Cal.App.4th 1241, 1249.)
It is well established that evidence of uncharged crimes
may be used for any of the purposes, such as intent, identified in
Evidence Code section 1101, subdivision (b). The jury need only
find the prosecutor has proved prior uncharged crimes or
misconduct by a preponderance of the evidence for the jury to
consider that evidence for those purposes. (People v. Virgil (2011)
51 Cal.4th 1210, 1259.)
Our Supreme Court has held that evidence of charged
crimes may be considered as propensity evidence pursuant to
Evidence Code section 1108. (People v. Villatoro (2012)
54 Cal.4th 1152, 1160 (Villatoro).) The jury in Villatoro was not
instructed on the standard of proof required for consideration of
the charged crimes for purposes of Evidence Code section 1108,
27
and the Supreme Court expressly declined to decide the required
standard of proof for such use. (Id. at p. 1169.)
As the court in People v. Jones (2018) 28 Cal.App.5th 316(Jones) noted, Justice Corrigan, in her concurring and dissenting
opinion in Villatoro, “pointed out that the California Supreme
Court has never approved the use of an instruction like the one
given here, that is, an instruction stating that evidence of a
charged offense could be used for a nonpropensity purpose (such
as finding intent or identity) in determining guilt as to other
charged offenses. . . . Justice Corrigan also suggested that
requiring the use of two different standards of proof for evidence
of a charged offense would likely confuse jurors.” (Id. at
pp. 330-331, second italics added.)
We agree with Justice Corrigan and the court in Jones that
an instruction which requires “ ‘the jury to apply two standards
of proof to evidence of the same crime’ ” has at least the potential
to be confusing. (Jones, supra, 28 Cal.App.5th at p. 331.) We
find Jones, which involves the use of evidence pursuant to
Evidence Code section 1101, more directly relevant and more
persuasive than Cruz, which involves the use of Evidence Code
section 1108 to prove propensity.
The court in Jones found it unnecessary to decide whether
the Chapman or Watson standard applied, because any error in
giving the instruction was harmless under the more stringent
Chapman standard. We find the Chapman standard applicable,
for two reasons. “In reviewing an ambiguous instruction, we
inquire whether there is a reasonable likelihood that the jury
misunderstood or misapplied the instruction in a manner that
violates the Constitution.” (People v. Covarrubias (2016)
1 Cal.5th 838, 906 (Covarrubias).) Further, we assess an error
28
that lowers the prosecution’s burden of proof for an element of a
charged offense under Chapman. (Rose v. Clark (1986) 478 U.S.
570, 580.)13
Here, the trial court modified CALCRIM 375 to emphasize
that evidence of the counts 1 through 5 offenses (those involving
Ericka) proved by a preponderance of the evidence “is only one
factor to consider along with all the other evidence. It is not
sufficient by itself to prove that the defendant is guilty of the
charges and allegations alleged in counts 7–11.” The court also
told the jury: “Please remember, that before the jury can vote
guilty on any charge, including but not limited to those alleged in
counts 1-5, the People must still prove (each) (charge/ [and]
allegation) beyond a reasonable doubt.” This is a slightly
stronger version of CALCRIM 375 than was used in Jones; the
Jones version told the jury: “ ‘The People must still prove every
charge beyond a reasonable doubt.’ ” (Jones, supra,
28 Cal.App.5th at p. 332, italics added.)
Like the trial court in Jones, the trial court in this case also
instructed the jury on reasonable doubt with CALCRIM No. 220,
which provided in part, “A defendant in a criminal case is
presumed to be innocent. This presumption requires that the
People prove a defendant guilty beyond a reasonable doubt.
Whenever I tell you the People must prove something, I mean
they must prove it beyond a reasonable doubt unless I specifically
13 The instruction permitted the use of conduct proved by a
preponderance of the evidence only to show intent or absence of
mistake. If we were to find the instruction ambiguous, we would
find the likely misreading involved the use of evidence proved by
a preponderance of the evidence to prove any required “intent”
element of the charged offenses involving Ericka.
29
instruct otherwise.” The court also gave CALCRIM No. 224 on
sufficiency of circumstantial evidence which provided in part,
“Before you may rely on circumstantial evidence to conclude that
a fact necessary to find the defendant guilty has been proved, you
must be convinced that the People have proved each fact
essential to that conclusion beyond a reasonable doubt.” (See
Jones, supra, 28 Cal.App.5th at pp. 332–333.) Here, the jury was
also reminded in CALCRIM No. 359 on the corpus delecti rule,
that “You may not convict the defendant unless the People have
proved (his) guilt beyond a reasonable doubt.”
The evidence on counts 1, 2 and 5 was very strong. Both
Ericka and Johnson’s mother Marion testified Johnson had a gun
and threatened to kill Ericka. Johnson’s claim that Marion was
simply repeating what Ericka told her is meritless. During the
911 call, Marion described going out to the parking lot and
Johnson “was threatening her and her baby.” More specifically,
Marion stated: “for my son to walk up in my house with a gun
and threatened to kill her with a gun up in my house.” Further,
when Johnson was arrested, he was in possession of a gun.
Ericka testified Johnson tried to persuade her to work for
him as a prostitute. Marion partially corroborated Ericka’s
testimony when Marion told the 911 operator that the “young
lady that he’s running—he’s calling his self a little pimp. They
were out in my parking lot screaming and yelling.” She also
stated: “But he call himself pimping this young lady. She’s in my
house now.” Both statements strongly suggest Marion heard the
statements herself. Marion described Johnson as making the
pimp statements about himself, which would be odd phrasing if,
as Johnson now argues, Marion was simply repeating what
Ericka told her. The pandering charges were further
30
corroborated by the photo of Ericka on Johnson’s phone, as well
as text messages on that phone consistent with arranging sex for
pay.
Ericka testified about Johnson grabbing Kaylee from her.
Marion also partially corroborated Ericka’s account of the
kidnapping (now false imprisonment) when she testified she
heard an argument in the parking lot and when she reached the
car Ericka was in the back seat and Johnson was in the front seat
holding Kaylee.
Given the numerous instructions on reasonable doubt and
the strength of the evidence on counts 1, 2 and 5, we see no
reasonable possibility that Johnson would have received a more
favorable outcome in the absence of CALCRIM 375.
II. Charges Involving Stephine
A. There Is No Reasonable Likelihood the Jury
Misunderstood CALCRIM 375 as Applying to
Mancha.
As we have just discussed, the trial court permitted
evidence of Johnson’s conduct involving Ericka to be used
pursuant to Evidence Code section 1101 to show Johnson’s intent
and absence of mistake as to the charges involving Stephine.
Mancha contends the trial court erred prejudicially in failing to
instruct the jury this evidence could not be used against Mancha
to prove Mancha’s intent or absence of mistake for the charge
involving Stephine. We find the trial court’s instructions
adequate on this issue.
Before the presentation of evidence about the offenses
against Ericka in the second half of the prosecution’s case, the
trial court instructed the jury: “So unless I say otherwise, the
31
next set of witnesses that are coming in all relate to counts 1
through 5. 1 through 6, I should say. What you need to
understand is that the counts 1 through 6 apply to defendant
Johnson only. So the evidence you are about to hear from this
point on, again, unless I mention otherwise, you can use only in
regard to defendant Johnson as it related to his case. [¶] And
actually I need to correct myself. It applies to counts 1 through 5.
You can use it for the entirety of the case against Mr. Johnson
but Mr. Johnson only.”
During closing instructions, the trial court instructed the
jury pursuant to CALCRIM 303 that “[d]uring the trial certain
evidence was admitted for a limited purpose. You may consider
that evidence only for that purpose and for no other.” The trial
court also used CALCRIM 304 to remind the jury “I instructed
you during the trial that certain evidence was admitted only
against a certain defendant. You must not consider that evidence
against any other defendant.”
Mancha contends these instructions are insufficient
because the court’s mid-trial instruction only limited the use of
the Erica evidence to Johnson’s guilt on the count 1 through 5
charges, and did not limit the use of the evidence on counts 9 and
10, the counts in which Mancha was also charged. CALCRIM
303 and 304 simply referred back to that mid-trial instruction.
Mancha contends that CALCRIM 375 was not sufficient to
overcome this omission.
The jury did not learn it could use the Ericka evidence for
counts 9 through 11 until the court gave the final jury
instructions after the presentation of evidence was complete.
Before that time, the jury knew only that the evidence was being
introduced to prove Johnson’s guilt of counts 1 through 5, and
32
their use of that evidence was limited to that purpose. Thus,
CALCRIM 375 both introduced the jury to the Evidence Code
section 1101 use of the evidence and limited that use. We will
treat Mancha’s argument as a claim that the instruction is
ambiguous. We see no reasonable likelihood the jury understood
or applied the instruction in the manner suggested by Mancha.
(See Covarrubias, supra, 1 Cal.5th at p. 906.)
“ ‘A single instruction is not viewed in isolation, and the
ultimate decision on whether a specific jury instruction is correct
and adequate is determined by consideration of the entire
instructions given to the jury.’ ” (Covarrubias, supra, 1 Cal.5th at
p. 906.) We may also “consider the arguments of counsel in
assessing the probable impact of the instruction on the jury.”
(People v. Young (2005) 34 Cal.4th 1149, 1202.)
As given, CALCRIM 375 begins “The People presented
evidence that defendant Johnson committed the offenses charged
in counts 1 through 5. [¶] You may consider this evidence only if
the People have proved by a preponderance of the evidence that
the defendant, in fact, committed those offenses. . . . [¶] . . . [¶] If
you decide that the defendant committed these offenses, you may,
but are not required to, consider that evidence for the limited
purpose of deciding whether: [¶] The defendant acted with the
intent to rape, sodomize or orally copulate Stephine G., or the
defendant’s actions were not the result of mistake or accident.”
(Italics added.)
After the initial use of the term “defendant Johnson,” the
instruction uses the term “the defendant.” The first two uses of
“the defendant” can only refer to one specific defendant, Johnson,
because that term refers to the person who committed the
offenses: “the defendant in fact committed those offenses” and
33
“the defendant committed these offenses.” It is not reasonably
likely that a juror would decide that the term then changed its
meaning in the middle of the instruction and thereafter could
refer to either defendant. It would be very unlikely given that
the third and fourth (and most critical) uses of the term would be
heard as part of one sentence which began by using term “the
defendant” in its specific sense of defendant Johnson: “If you
decide that the defendant committed these offenses, you may . . .
consider that for the limited purpose of deciding whether: [¶]
[t]he defendant acted with the intent to rape . . . or the
defendant’s actions were not the result of mistake or accident.”
(Italics added.)
Our conclusion is reinforced by the prosecutor’s closing
argument, which is consistent with this common-sense reading of
the instruction. She told the jury: “[Y]ou can use the two
incidents that we have alleged, the 2012 and the 2015 incident, in
terms of when you look at defendant Johnson. You see that in
2015 he was trying to get Ericka to prostitute for him and he was
being very forceful about it. You can use that incident to show
his intent to do the same thing for Stephine.”
Mancha’s attorney reminded the jury that “in the second
half of the charges none of those charges had anything to do at all
with Mr. Mancha at all. Period. I didn’t object. I didn’t ask any
questions. I didn’t do anything. Why? Because Mr. Mancha was
not involved, and you cannot let one bleed over into the other.”
We do not agree with Mancha’s contention that the aiding
and abetting instructions which immediately follow
CALCRIM 375 “allowed the jury to assume [Mancha] vicariously
shared Mr. Johnson’s intent and factual assumptions.” We see
nothing which permits such an assumption. CALCRIM 401
34
requires the People to prove the aiding and abetting defendant
knew of the perpetrator defendant’s intent and “before or during
the commission of the crime” intend to aid and abet the
perpetrator in committing the crime. Put differently, the
instruction required proof that Mancha knew in 2012 of
Johnson’s intent to sexually assault Stephine. Further, the
aiding and abetting instructions supported the three sexual
offense in concert charges against Mancha.14 The prosecutor’s
argument on the oral copulation in concert charge made it clear
that the jury could not assume Mancha shared Johnson’s intent
toward Stephine for “in concert” (and therefore aiding and
abetting) purposes, and the jury’s acquittal of Mancha on that
charge shows the jury correctly understood this. The prosecutor
told the jury she did not know “whether or not the two of them
making [Stephine] strip in the desert, Mancha driving and
providing the place with his van, is enough for [the] oral
copulation in concert. . . . I think we have a solid case of oral
copulation by force when it comes to Johnson. . . . I don’t think
the facts came out that Mancha knew that that was going to
occur when he stepped out of the van. I don’t know that, so I’m
not going to argue that.” The jury subsequently acquitted
Mancha on this charge.
Mancha contends in his reply brief that the court’s use of
CALCRIM 203 directed jurors to understand the singular use of
the term “defendant” to apply to both defendants. CALCRIM 203
14 The sexual offense instructions told the jury that a
defendant committed the offense in concert if he aided and
abetted someone else who personally committed the offense; the
instruction referred the jury to the separate instructions on
aiding and abetting for guidance on that issue.
35
told the jury: “Unless I tell you otherwise, all the instructions
apply to each defendant.” We do not consider arguments raised
for the first time in a reply brief. If we were to consider the
argument, we would find that a reasonable juror would
understand the use of Johnson’s name at the beginning of the
instruction meant the instruction applied only to him.
B. Error In Giving A Flight Instruction Was Harmless.
Mancha contends the trial court erred in giving CALCRIM
372 on flight because there was no evidence to show he acted to
avoid arrest or detection. Johnson joins in this contention.
CALCRIM 372 as given told the jury: “If the defendant fled
or tried to flee immediately after the crime was committed or
after he was accused of committing a crime, that conduct may
show that he was aware of his guilt. If you conclude that the
defendant fled or tried to flee, it is up to you to decide the
meaning and importance of the conduct. However, evidence that
the defendant fled or tried to flee cannot prove guilt by itself.”
Generally giving the flight instruction erroneously is
considered harmless because “the instruction [does] not assume
that flight was established, leaving that factual determination
and its significance to the jury.” (People v. Visciotti (1992)
2 Cal.4th 1, 61.) Here, the court also told the jury that “[s]ome of
these instructions may not apply” and “[d]o not assume just
because I give you a particular instruction that I’m suggesting
anything about the facts.”
Appellants have not suggested why we should depart from
this general rule. Although the prosecutor requested the flight
instruction, she did not mention the flight instruction during jury
argument or dwell on appellants’ movements after the crimes.
We see no reasonable probability of a more favorable outcome if
36
the flight instruction had not been given. (People v. Crandell
(1988) 46 Cal.3d 833, 870 overruled on another ground by People
v. Crayton (2002) 28 Cal.4th 346; People v. Clem (1980) 104
Cal.App.3d 337, 344–345 [applying Watson standard of review to
claim flight instruction was given erroneously].)
C. There Are No Inconsistent Verdicts.
Johnson contends the jury’s true findings on the
kidnapping enhancement allegations are inconsistent with the
jury’s inability to reach a verdict on the count 7 charge of
kidnapping Stephine: the essential elements of the two charges
are identical and so the true findings must be vacated.
As Johnson acknowledges, as a general rule, inconsistent
verdicts are permitted if the guilty verdict is supported by
substantial evidence. (See. e.g. People v. Bell (2020)
48 Cal.App.5th 1, 9–10; United States v. Powell (1984) 469 U.S.
57, 64–69.) “For example, ‘if an acquittal of one count is factually
irreconcilable with a conviction on another, or if a not true
finding of an enhancement allegation is inconsistent with a
conviction of the substantive offense, effect is given to both.’
[Citation.] Although ‘ “ error,” in the sense that the jury has not
followed the court’s instructions, most certainly has occurred’ in
such situations, ‘it is unclear whose ox has been gored.’
[Citation.] It is possible that the jury arrived at an inconsistent
conclusion through ‘mistake, compromise, or lenity.’ [Citation.]
Thus, if a defendant is given the benefit of an acquittal on the
count on which he was acquitted, ‘it is neither irrational nor
illogical’ to require him to accept the burden of conviction on the
count on which the jury convicted.” (People v. Avila (2006)
38 Cal.4th 491, 600.)
37
Johnson contends there is a “limited judicial exception” to
this rule set forth in People v. Hamilton (1978) 80 Cal.App.3d 124(Hamilton).15 This exception applies “where all of the essential
elements of the crime of which the defendant was acquitted are
identical to some or all of the essential elements of the crime of
which he was convicted, and proof of the crime of which the
defendant was acquitted is necessary to sustain a conviction of
the crime of which the defendant was found guilty.” (Id. at
p. 130.)
Respondent argues that Hamilton, and In re Johnston
(1935) 3 Cal.2d 32 upon which Hamilton is largely based, are no
longer good law or, if still valid, would only apply to conspiracy
cases. We need not decide the continuing viability of these cases
because we see an even more fundamental flaw in Johnson’s
argument. The Hamilton exception applies to a situation where a
defendant received a verdict of acquittal on one count and a
verdict of conviction on another count. Johnson did not receive a
verdict of acquittal on the count 7 kidnapping count. The jury
was not able to reach a verdict at all on that count.
Johnson contends our analysis should focus on the six not
guilty votes and in effect treat them as the jury’s verdict. He
contends: “The jury’s failure to reach a verdict on count 7 is just
as inconsistent with the unanimous true findings on the
[kidnapping] enhancements attached to counts 9, 10 and 11 as if
the jury fully acquitted Johnson. In either case, several jurors
who chose to vote ‘true’ . . . on the kidnapping enhancement
15 Overruled on another ground by People v. Flood (1998)
18 Cal.4th 470, 481.
38
allegations also voted not guilty on the kidnapping charge. That
is inconsistent.”
As the United States Supreme Court has explained, a
situation involving inconsistent verdicts and one “involving both
verdicts and seemingly inconsistent hung counts . . . are quite
dissimilar.” (Yeager v. U.S. (2009) 557 U.S. 110, 124 [considering
issue preclusion argument].) “[H]ung counts have never been
accorded respect as a matter of law or history, and are not similar
to jury verdicts in any relevant sense.” (Ibid.) “Because a jury
speaks only through its verdict, its failure to reach a verdict
cannot—by negative implication—yield a piece of information
that helps put together the trial puzzle.” (Id. at p. 121.) “[T]he
fact that a jury hangs is evidence of nothing—other than, of
course, that it has failed to decide anything.” (Id. at p. 125.)
“A host of reasons—sharp disagreement, confusion about the
issues, exhaustion after a long trial, to name but a few—could
work alone or in tandem to cause a jury to hang. To ascribe
meaning to a hung count would presume an ability to identify
which factor was at play in the jury room. But that is
not reasoned analysis; it is guesswork. Such conjecture about
possible reasons for a jury’s failure to reach a decision should
play no part in assessing the legal consequences of a unanimous
verdict that the jurors did return.” (Id. at pp. 121–122, fns.
omitted.) Put differently, a hung count cannot rationally be used
“to question the basis of the jury’s verdicts.” (Id. at p. 125.)
D. Appellants Have Forfeited Their Prosecutorial
Misconduct Claim.
There was evidence that a third man was in the car when
Johnson first forced Stephine into the car in Van Nuys. He was
not present during any of the alleged forcible sex acts. The third
39
man was not called as a witness by either side. Johnson and
Mancha contend the prosecutor committed misconduct during
rebuttal closing argument when she stated: “The witnesses they
called, they choose to call, were the ones that make my victims
seem like they are liars. But the one witness that they could
have called, the one logical witness to show what happened would
have been that third guy in the car. We didn’t see him. That
would have been a logical witness and if the defense is
claiming---” Defense counsel objected.
Respondent acknowledges appellants objected to the
argument but contends the claim is nevertheless forfeited by
their failure to request a curative admonition. We agree.
“It is well settled that making a timely and specific
objection at trial, and requesting the jury be admonished (if jury
is not waived), is a necessary prerequisite to preserve a claim of
prosecutorial misconduct for appeal. [Citations.] ‘The primary
purpose of the requirement that a defendant object at trial to
argument constituting prosecutorial misconduct is to give the
trial court an opportunity, through admonition of the jury, to
correct any error and mitigate any prejudice.’ ” (People v.
Seumanu (2015) 61 Cal.4th 1293, 1328 (Seumanu).)
After appellants objected, the court immediately stated at
sidebar: “So my understanding is he’s dead; right?” Johnson’s
counsel replied: “His name is Johnny Laney. We did investigate
his whereabouts. . . . [H]e was shot to death while walking his
daughter to school.” Counsel acknowledged he relied on
statements from Johnson and his family for the name of the man;
counsel verified that a man with this name who matched the
description of the third man moved to Las Vegas and was killed
in a shooting.
40
The prosecutor pointed out that there was no actual
evidence of the identity of the third man. She referred to a phone
(presumably found at the scene) as a source of evidence of the
third man’s identity which the defense failed to investigate, but
Mancha’s counsel reminded the court that the parties had
stipulated that the passage of time had rendered the records for
the phone unavailable.
The trial court asked: “In either case, is it correct that the
defense can’t call this third person because —my understanding
is if it’s not Laney and if the person is alive, we don’t know who
that is; is that correct?” Johnson’s counsel replied: “Right.” The
court then told the prosecutor that it agreed and was “not going
to let you argue along these lines because I think it puts you in
dangerous territory.”
Johnson’s counsel stated: “I will ask the court to strike that
portion of her argument.” Mancha’s counsel stated: “I would
join.” The trial court granted the request and told the jury “I am
going to strike that last line of argument.”
Both Mancha and Johnson attempt to avoid forfeiture by
characterizing this request to have the argument stricken as a
request for an admonition. We strongly question whether a bare
statement to the jury that an argument is stricken amounts to an
admonition. Although there is no uniform definition of the term,
most common definitions of “admonition” refer to the term as
advice or counsel that includes a warning. (See e.g.
[as of Aug. 27, 2021], archived at [“a piece of advice that is also a warning”];
[as of
Aug. 27, 2021], archived at
41
[“counsel or warning”].) Even if we were to treat appellants’
request as an admonition, however, it would not assist them.
Appellants’ primary contention on appeal is that the
“admonition” was ineffective to cure the prejudice from the
argument. Johnson argues that simply striking the argument
would not have “accomplished all that much.” Macha claims it
would be “unrealistic to expect that the court’s anemic
admonition purged from the jurors[’] minds the inference of
hidden, inculpatory evidence.” An “admonition” striking the
testimony was all appellants requested, and it was given as
requested. It would defeat the purpose of requiring that a
defendant request an admonition if he could request an
ineffective one and then complain about it on appeal. In addition,
the doctrine of invited error would bar appellants from raising a
claim of error after employing such tactics.
Macha impliedly contends that a request for an admonition
would have been futile. A defendant will be excused from
requesting an admonition if the objection or request would be
futile, either because an admonition could not cure the harm or
the trial court would not have granted the request. (Seumanu,
supra, 61 Cal.4th at p. 1328.) Mancha suggests both situations
are present here. We do not agree.
Mancha contends the prosecutor’s argument was “a bell
that could not be unrung,” which implies any admonition would
have been ineffective.16 Johnson, however, has shown exactly
16 Mancha takes this argument a step further contending that
the “error arose from the court’s refusal to order a mistrial based
on the appellants’ inability to eliminate the prejudice caused by
the prosecutor’s inaccurate comment.” We do not consider claims
42
how any potential prejudice from the argument could have been
mitigated. As he points out, the trial court could have
“explain[ed] to the jurors that the inference the prosecutor sought
to create—i.e. that the defense made a tactical choice not to call
the third man and that that choice was reflective of what the
third man might say had he been called as a witness—was
unfounded.” Thus, an admonition would not have been
ineffective.
Mancha also claims the trial court was sympathetic to the
prosecutor, claiming the court gave the prosecutor a “near
apology” for sustaining the objection and only gave a “half-
hearted” and “anemic” admonition to the jury. This too appears
to be an implied futility claim, more specifically that a request for
a more detailed or forcible admonition would have been futile
because the trial court would not have granted such a request.
We do not understand the trial court’s statement as
anything close to an apology. The court stated that it wished “to
protect everyone, including the D.A., including the integrity of
this case, [and so] I’m not going to let you argue along these lines
because I think it puts you in dangerous territory.” We
understand this as a warning to the prosecutor that her line of
argument could have serious consequences. As for the court’s
statement striking the argument, the trial court gave appellants
exactly what they asked for. We see nothing to suggest the trial
court would have refused some form of the admonition described
by Johnson’s counsel. Futility does not excuse appellants from
forfeiture.
raised for the first time in a reply brief, but we note appellants
did not move for a mistrial.
43
E. The Unrecovered and Lost Evidence Had No
Exculpatory Value.
During her investigation of the offenses against Stephine,
Detective Gillis failed to collect or preserve video from Carl’s Jr.
and the liquor store and telephone records from the cell phones of
Stephine and Mancha. She also failed to preserve the guest list
from the Bonaire Motel. Mancha asserted in pretrial motions
and his motion for a new trial that these failures violated his due
process rights to a fair trial and his presentation of a complete
defense under California v. Trombetta (1984) 467 U.S. 479(Trombetta) and Arizona v. Youngblood (1988) 488 U.S. 51(Youngblood); he sought discovery sanctions in the form of
dismissal or in the alternative an instruction advising the jury it
could infer that the discovery violations adversely impacted the
defense case. Mancha contends the trial court erred in denying
his motions. As he did in the trial court, Johnson joins in this
claim. Assuming due process concerns apply to the state’s failure
to collect evidence, we see no error in the trial court’s ruling that
the evidence was not apparently or potentially exculpatory and
that Detective Gillis did not act in bad faith.
1. Applicable law
The federal due process clause requires the state to
preserve “evidence that might be expected to play a significant
role in the suspect’s defense.” (Trombetta, supra, 467 U.S. at
p. 488.) The evidence “must both possess an exculpatory value
that was apparent before the evidence was destroyed, and be of
such a nature that the defendant would be unable to obtain
comparable evidence by other reasonably available means.” (Id.
at p. 489.) This same broad rule does not apply to evidence “of
which no more can be said than that it could have been subjected
44
to tests, the results of which might have exonerated the
defendant.” (Youngblood, supra, 488 U.S. at p. 57, italics added.)
A state’s failure to preserve such “potentially useful” evidence
violates due process only where the defendant shows bad faith on
the part of the prosecutor or police. (Id. at pp. 57–58.) The
presence or absence of bad faith on the part of the state is closely
related to law enforcement’s “knowledge of the exculpatory value
of the evidence at the time it was lost or destroyed.” (Id. at
pp. 56–57, fn. *.)
As appellants acknowledge, the holdings of Trombetta and
Youngblood apply to cases in which the state fails to preserve
evidence. The California Supreme Court has recognized that “[i]t
is not entirely clear that the failure to obtain evidence falls
within ‘ “what might loosely be called the area of constitutionally
guaranteed access to evidence.” ’ (Youngblood, supra, 488 U.S. at
p. 55 [109 S.Ct. at p. 336]; see id. at pp. 56–57 [109 S.Ct. at
pp. 336–337] [emphasizing high court’s unwillingness to read due
process clause as imposing on police absolute duty to retain and
preserve all material that might be of conceivable evidentiary
value].) Although this court has suggested that there might be
cases in which the failure to collect or obtain evidence would
justify sanctions against the prosecution at trial, we have
continued to recognize that, as a general matter, due process does
not require the police to collect particular items of evidence.”
(People v. Frye (1998) 18 Cal.4th 894, 943, disapproved on
another ground by People v. Doolin (2009) 45 Cal.4th 390, 421,
fn. 22.) “The police cannot be expected to ‘gather up everything
which might eventually prove useful to the defense.’ ” (People v.
Hogan (1982) 31 Cal.3d 815, 851 disapproved on another ground
by People v. Cooper (1991) 53 Cal.3d 771, 836.) “Even if the
45
failure to collect evidence comes within the scope of Trombetta
and Youngblood,” a defendant would be required to make the
requisite showing of materiality under Trombetta or bad faith
under Youngblood to show a due process violation. (Frye, at
p. 943.)
A trial court’s finding on whether the state violated due
process by failing to preserve evidence is a factual one. We
review that decision to determine whether it is supported by
substantial evidence. (People v. Carter (2005) 36 Cal.4th
1215, 1246.) The same standard of review applies to a trial
court’s finding on whether the state acted in bad faith in failing
to preserve evidence. (People v. Alvarez (2014) 229 Cal.App.4th
761, 776.) As a matter of logic, the same standard would apply to
decisions concerning the state’s failure to collect evidence.
2. Appellants’ motions for discovery sanctions
Appellants brought three motions seeking discovery
sanctions for the state’s failure to obtain and preserve evidence.
On March 11, 2019, Mancha filed a motion based on Detective
Gillis’s failure to pick up surveillance video from Carl’s Jr. and to
follow up her unanswered request for surveillance video at the
nearby liquor store. The trial court denied the motion, finding
both that the evidence had no exculpatory value and Gillis did
not act in bad faith. On March 18, 2019, Johnson filed a motion
based on the unrecovered videos and on the unrecovered or
unpreserved cell tower records. The trial court denied this
motion on “for the same reasons” as it had denied the previous
motion. On March 25, 2109, Mancha filed a motion based on the
state’s loss or destruction of the Bonaire Motel guest list and
Detective Gillis’s failure to retrieve phone records showing calls
in and out of the cell phones and Mancha’s landline. The trial
46
court denied this motion on the same grounds as it had the
previous motions.
Because the sanctions motions involve overlapping
evidence, we analyze the motions below by evidence category. We
do not consider any claims raised for the first time on appeal,
such as appellants’ claim that the videos might have shown
Stephine in possession of a makeup purse or bag which Mancha’s
fiancée discovered missing the day after the sexual assaults took
place. We also do not consider separately appellants’ complaints
about unrecovered and lost evidence raised in their October 2010
motion for new trial. They made the same arguments about the
same evidence as they had in their previous sanctions motions.
Since we find no error in the trial court’s ruling on those motions,
we find no err in the trial court’s denial of the new trial motion
made on the same grounds. Further, as the trial court pointed
out: “As far as the phone records and the wrong information, to
that, that was a legitimate mistake by the detective. And the
defense fully capitalized on that and did a good job. In fact, we
spent a decent amount of time and it was pointed out a number of
times that that error was made and that was used very well by
the defense.”
a. Carl’s Jr. and liquor store videos
In his March 11, 2019 motion, Mancha argued that the
Carl’s Jr. video “would likely have shown the complaining
witness being dropped off by her ‘pimp,’ that she was not in
danger and that she was not afraid.” The liquor store video
“would have also likely captured similar results.” Mancha
47
contended the exculpatory value of the evidence was apparent
and so no bad faith showing was required.17
At the hearing on the motion, the trial court stated that
nothing had been presented to lead the court to believe the videos
were exculpatory. Defense counsel summarized the defense
position: “[I]t would be exculpatory because initially you have one
story about how this lady ended up at Carl’s Jr. and then you
have a different story. And the video would supposedly show
which one of those was accurate. And based on which one of
those stories was accurate, it could be obviously exculpatory to
Mr. Mancha and it could help the case.” As defense counsel had
earlier acknowledged, Stephine gave one account to police at the
time of the incident and then changed her story “years later.”
The trial court was not persuaded it was exculpatory. There was
and is nothing to suggest the sexual assaults took place in or
near the Carl’s Jr. and liquor store area, or that the perpetrators
accompanied the victim to that location. Thus, the video had no
apparent exculpatory value.
There is substantial evidence to support the finding the
videos were not potentially exculpatory at the time Gillis
17 Johnson raised the issue of the videos in his March 18,
2019 motion seeking a jury instruction as sanctions, but did not
make any argument about the exculpatory value of those videos.
At the hearing on his motion, he repeated Mancha’s earlier
argument that Stephine originally claimed to have run alone to
the Carl’s Jr. but then stated later that she was picked up and
dropped off at the Carl’s Jr. by Walker, and the video would show
what really happened. The trial court, who had asked if Johnson
had “anything new that . . . would lead anyone to believe that the
evidence was exculpatory in nature,” denied the motion for “all
the reasons stated before.”
48
neglected to recover them. The evidence showed Stephine
changed her story years after the case was closed. Gillis could
not have been aware in 2012 that Stephine would change her
story years later when the case was reopened. She knew only
that Stephine claimed to have arrived in the area on her own.18
Thus, in 2012 the most that could be said of the video was that it
might in some unknown way have contradicted Stephine’s
account of her arrival at the Carl’s Jr. The possibility of
contradiction is pure speculation, however, and speculation is not
sufficient to make the tape potentially exculpatory. (See People v.
Alexander (2010) 49 Cal.4th 846, 878 (Alexander) [rejecting
contention that state had duty to preserve tape because
defendant’s “claim that the erased audio tape had exculpatory
value is based on speculation that something on it would have
contradicted the evidence and testimony tending to show that
[the subject] was not hypnotized”]; People v. Cook (2007)
40 Cal.4th 1334, 1349 (Cook) [rejecting as speculative defendant’s
bare claim that trash bag police found in his garage containing
bloody shoes and items of ordinary household trash was
18 Mancha contends Gillis requested the video because it
would have shown if Shea or Walker dropped off Stephine at the
Carl’s Jr. He does not provide a record cite to support this claim,
which seems unlikely. It is not our responsibility to search the
record. Gillis testified on direct examination that she considered
the video as “just corroborating evidence whether she was at the
location or not.” We note Gillis would have had no need to obtain
the video to document Stephine’s physical condition when she
arrived at the Carl’s Jr. Police took photographs of Stephine’s
face, which showed only some minor injuries. Stephine also
underwent a sexual assault exam.
49
potentially exculpatory because he “might” have discovered items
in the trash bag linking “other persons” to the shoes].)
We also find substantial evidence to support the trial
court’s ruling that Gillis did not act in bad faith in failing to
follow up and obtain copies of the video. Gillis testified that
shortly after April 4, 2012, Stephine stopped responding to
Gillis’s voicemail messages and Gillis could not contact her.
Gillis then considered Stephine an uncooperative victim. Gillis
was aware that the district attorney had a policy of not
prosecuting sexual assault cases where the victim is
uncooperative. Gillis explained that she had 14 other cases that
month and she used her discretion to put more time into those
other cases. The trial court found Gillis credible. This chain of
events does not show bad faith by Gillis, particularly since the
videos had no exculpatory potential under the facts of the case as
known at that time.
b. Bonaire Motel guest list
Stephine stated she asked “workers” in the parking lot of
the motel if she could use their phone to call police. At some
point she hid behind some cars. There is no evidence in the
record to suggest that anything else occurred in parking lot.
Gillis spoke with the manager, who remembered seeing Stephine.
Gillis obtained a list of names for motel guests. At some point
before the trial of this matter, the list was lost or destroyed.
In his March 25, 2019, motion, Mancha contended the
Bonaire Motel guest list was exculpatory because individuals on
that list “could have been witnesses and provided crucial
information.” He provided no details about what that
information would have been. The trial found the list had no
exculpatory value. Given that appellants were unable to offer
50
even speculation about what that crucial information might be,
the trial court correctly found there was nothing about the list
that had exculpatory value. (See Alexander, supra, 49 Cal.4th at
p. 878 ; Cook, supra, 40 Cal.4th at p. 1349.)
c. Phone records
In his March 25, 2019, motion, Mancha contended the cell
phone records would have shown that Stephine “was using Mr.
Mancha's phone, when and to whom her calls were made, the
location from which those calls were made geographically, from
whom and when were calls received and how many times and
from whom were calls made to support multiple defense
theories[,] including but not limited to that the caller on a
blocked number constantly was asking for money and making
threats.” He then contended the exculpatory value of the
evidence was apparent and so no bad faith showing was
required.)19
19 In his March 18, 2019 motion, Johnson similarly
complained of law enforcement’s failure to obtain or preserve the
“cell tower records” for the phone Mancha gave to Stephine,
Johnson’s phone, and Stephine’s phone. Johnson did not,
however, offer any arguments in his written motion about the
exculpatory nature of the records. The cell tower records were
not discussed at the hearing on the motion. The court stated that
everything it was being told was speculative. The court
overstated the strength of Mancha’s argument, which did not
even take a stab at what the records might show.
51
At the hearing on the motion, defense counsel emphasized
that call logs “would have shown potentially that a blocked
number was calling the phone and, also, that the calls coming
into the land line could have been from a blocked number and
could have corroborated what Mr. Mancha’s fianceé testified to.”
Counsel clarified the cell phones were the ones where Detective
Gillis requested extractions but put in the wrong date. The error
was not discovered until 2019, and by that time the records were
no longer available.
The court denied the motion, finding there was nothing
apparently exculpatory about the call logs. Substantial evidence
supports this finding. Stephine testified at trial that Mancha
gave her a cell phone before dropping her off to work on Serra
Highway. She admitted she used the phones to make calls, and
acknowledged receiving a call from appellants asking where she
was. It would be pure speculation that the phone might somehow
contradict her account. (See Alexander, supra, 49 Cal.4th at
p. 878 ; Cook, supra, 40 Cal.4th at p. 1349.)
The only specific example of possible exculpatory evidence
was appellants’ claim that the phone might have been used to
make the blocked call demanding money to Mancha’s fiancée.
However, there is no evidence that Detective Gillis would have
been aware in 2012 of appellants’ defense that Mancha’s fiancée
was receiving such calls (and that the calls showed that Stephine
voluntarily had sex with appellants for which the calls were
seeking payment).
The trial court also found that the detective’s error in
asking for the wrong dates “was totally inadvertent. She—I
think during cross her embarrassment came out. There was
52
nothing bad faith on her part.” We defer to the trial court’s
credibility findings.
3. Prejudice
Because we have found the evidence at issue was not
exculpatory, we need not address appellants’ claim of prejudice.
We note that their claims of prejudice focus on the centrality of
Stephine’s credibility to their defense. We agree that
undermining Stephine’s credibility was an important part of
appellants’ defense, particularly since DNA evidence showed
appellants engaged in sexual activity with Stephine, and one of
the 911 calls involving Stephine was linked to the Sancroft house.
Even without the unrecovered evidence or an instruction, the
jury was well aware that Stephine had been untruthful in the
past. She admitted it at trial. But while Stephine had a motive
to lie in the past, she no longer had such a motive by the time of
trial. Assuming the unrecovered evidence contained additional
evidence that Stephine had lied about her movements between
leaving the Sancroft house and speaking to sheriff’s deputies,
such evidence would have had minimal additional probative
value as to her honesty at trial. Thus, we see no reasonable
probability or possibility that appellants would have received a
more favorable verdict if Gillis had recovered and preserved the
evidence at issue or if the trial court had instructed the jury that
it could infer that the unrecovered or unpreserved evidence would
have shown that Stephine’s 2012 account of her movements after
leaving the Sancroft house were not true.
53
III. Sentencing Issues
A. Appellants Have Forfeited their Claims That the
Court Erred in Imposing Fines and Fees Without a
Hearing.
The trial court imposed a court operations fee of $40
(§ 1465.8, subd. (a)(1)) and a criminal conviction fee of $30 (Gov.
Code, § 70373) on each appellant, a $5,400 restitution fine
(§ 1202.4, subd. (b)) and matching parole violation fine
(§ 1202.45) on Mancha and a $10,000 restitution fine and
matching parole violation fine on Johnson. Mancha contends the
trial court violated his rights to due process and equal protection
under the U.S. and California constitutions by imposing the fines
and fees without determining if he had the ability to pay them.
He argues that under People v. Dueñas (2019) 30 Cal.App.5th
1157, we must strike the fines and fees until it is proven he has
the ability to pay them.20 Johnson joins in this contention.
Appellants did not object to the imposition of these fines
and fees in the trial court and so have forfeited their claims.
(People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153–1155; see
also People v. Avila (2009) 46 Cal.4th 680, 729 [finding forfeiture
where the defendant failed to object to imposition of restitution
fine under former § 1202.4 based on inability to pay].) We decline
20 The California Supreme Court has granted review on the
following two issues: “Must a court consider a defendant’s ability
to pay before imposing or executing fines, fees, and assessments?
If so, which party bears the burden of proof regarding defendant’s
inability to pay?” (People v. Kopp (2019) 38 Cal.App.5th 47,
review granted Nov. 13, 2019, S257844.)
54
appellants’ request that we exercise our discretion to consider
this claim.
Appellants contend if their claims were forfeited, their trial
counsel rendered ineffective assistance by not objecting.
Ineffective assistance of counsel may be shown on direct appeal
where counsel’s performance falls below an objective standard of
reasonableness. (People v. Sepulveda (2020) 47 Cal.App.5th
291, 301.) To prevail on an ineffective assistance of counsel
claim, an appellant must show a reasonable probability of a more
favorable outcome if counsel had objected. Specifically,
appellants bore the burden of establishing they would not be able
to pay the imposed amount of the fines and fees over time. Their
sole argument in this regard is that they qualified for court-
appointed counsel at trial and on appeal. This is not sufficient.
A. The Trial Court Must Clarify Its Rationale for
Imposing Consecutive Sentences
The prosecutor requested that the sentences for oral
copulation and rape be imposed consecutively because the
offenses had occurred at separate times and places – the oral
copulation in the vehicle first and then the rape inside the
residence much later. The prosecutor believed the sodomy
sentence should be imposed concurrently to the rape because they
involved “ ‘mere’ changes in position” and were part of the same
transaction. The trial court decided to sentence all three
convictions consecutively, explaining: “I know the D.A.’s office
said that one of those counts should run concurrent because it
arose out of the same course of conduct but I disagree. There
were three separate acts and in sex crimes we look at literally
things like what position was the victim in, was there a break in
the sexual activity, did the defendant harbor separate intents,
55
and I find that was true in each of these situations. The rape and
the sodomy, the positions were changed. She was moved from
one location to another. And I believe that the defendant
harbored separate intents in each of those. So I choose to run
each of those fully consecutive, which then gets us to 105 years to
life.”
Johnson contends the trial court abused its discretion in
imposing consecutive sentences on the rape and sodomy counts,
because either 1) the trial court mistakenly believed that the acts
occurred on separate occasions within the meaning of section
667.6, subdivision (d), and 667.61, subdivision (i), mandating
consecutive sentences, or 2) the trial court based the exercise of
its discretion on factual determinations that were not supported
by the record.
Respondent contends Johnson forfeited this claim by failing
to object in the trial court. Johnson contends he is excused from
forfeiture because an objection would have been futile or, in the
alternative, his counsel was constitutionally ineffective for failing
to object. We agree that an objection would have been futile
given the trial court’s stated intention to impose the sentence
over the prosecutor’s recommendation.
It appears the trial court did not find that consecutive
sentences were mandatory. The court stated: “I choose to run
each of those fully consecutive.” The court did not use the
phrases “separate occasions” or “opportunity to reflect” which are
the touchstones of mandatory consecutive sentencing.
Respondent contends the uncontradicted evidence that
Johnson had an opportunity to reflect between the sodomy and
the rape compelled consecutive sentences. (See e.g. People v. Lee
(1990) 219 Cal.App.3d 829, 836 [reviewing court will only find
56
entrapment as a matter of law if the evidence is “ ‘so compelling
and uncontradicted the jury could draw no other reasonable
inference’ ”].)
Section 667.61, subdivision (i) provides: “the court shall
impose a consecutive sentence for each offense that results in a
conviction under this section if the crimes involve separate
victims or involve the same victim on separate occasions as
defined in subdivision (d) of Section 667.6.”
Section 667.6, subdivision (d) provides: “In determining
whether crimes against a single victim were committed on
separate occasions under this subdivision, the court shall
consider whether, between the commission of one sex crime and
another, the defendant had a reasonable opportunity to reflect
upon his or her actions and nevertheless resumed sexually
assaultive behavior. Neither the duration of time between
crimes, nor whether or not the defendant lost or abandoned his or
her opportunity to attack, shall be, in and of itself, determinative
on the issue of whether the crimes in question occurred on
separate occasions.”
Here, Johnson’s act of sodomy was interrupted by
Stephine’s crying and screaming and by Mancha’s statement that
the noise would disturb his children. Johnson hit Stephine.
Then, when Johnson indicated his intention to switch to vaginal
intercourse, Stephine asked Johnson to use a condom. Johnson
hit Stephine again. Then he began the rape. These interactions
were a brief break in Johnson’s sexual activity. We do not find
the evidence so compelling that a reasonable trier of fact could
draw only an inference of reflection. (See People v. Dearborne
(2019) 34 Cal.App.5th 250, 255 [no opportunity to reflect where
defendant told victim to orally copulate him and she “told
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defendant she did not want to” and “was crying and gagging as
she orally copulated defendant. Defendant ordered [the victim]
to lay down on the backseat and he raped her.”].)
Turning to the trial court’s factual findings in support of its
exercise of discretion, we find substantial evidence to support two
of the factors identified by the court. It is undisputed that
Johnson changed the victim’s position between the sodomy and
the rape. It is also undisputed there was a brief break in the
form of Mancha objecting to the noise and Stephine asking
Johnson to use a condom. These are very weak reasons to impose
a consecutive sentence of 25 years to life.
The trial court did not identify what separate intents
Johnson might have harbored. Generally, a defendant who
commits multiple different sex crimes against a single victim has
a single criminal objective: to sexually assault the victim. (See
People v. Hicks (1993) 6 Cal.4th 784, 789 [defendant who entered
bakery and forcibly raped, sodomized and digitally penetrated the
victim had the single criminal objective of sexually assaulting the
victim].) Astonishingly, respondent claims that the “sadistic
intent associated with the sodomy was markedly different from
the intent to commit the intercourse as the former involved
infliction of much foreseeable pain upon the victim.” There is no
evidence that Johnson decided to sodomize Stephine because he
enjoyed the thought that it would cause pain, while believing that
vaginal rape would not. Johnson was violent with Stephine
throughout their time together. Surely respondent does not
believe that as a general rule victims of forcible vaginal
intercourse do not experience physical pain and rapists who
choose rape over sodomy are being gentler and more considerate?
At a minimum, respondent might wish to read Hicks, which
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involves both sodomy and rape and finds the same criminal
objective for both offenses.
The trial court also failed to identify the change in location
which occurred in connection with Johnson’s commission of the
sodomy and rape. Respondent points out there was evidence that
Mancha moved Stephine to another room to rape her and
suggests that the trial court could have considered this
movement because both men were convicted of rape in concert.
Johnson was convicted of only one count of rape in concert. In
the abstract, that conviction could have been either for Johnson’s
commission of the rape with Mancha’s assistance, or for
Johnson’s assistance of Mancha’s rape, but not both. Given that
the jury found true the allegation that Johnson personally used a
firearm in the commission of the rape and not true the allegation
that Mancha personally used a firearm, it seems virtually certain
that the jury based its conviction on Johnson’s commission of
rape with Mancha’s assistance and not the reverse. Thus,
Mancha’s subsequent movement of the victim was not a proper
consideration in sentencing Johnson.
An objection, however futile, might have prompted the trial
court to clarify its reasoning, which in turn might have provided
a more solid basis for the imposition of the consecutive term.
Accordingly, we remand this matter to the trial court to clarify its
reasons or to reconsider its imposition of consecutive sentences.
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DISPOSITION
The judgment of conviction is affirmed in its entirety as to
appellant Mancha. We order appellant Johnson’s conviction for
kidnapping reduced to the lesser included offense of felony false
imprisonment. We remand this matter as to appellant Johnson
to permit the trial court to resentence him on the false
imprisonment count and to clarify or reconsider its rationale for
imposing consecutive sentences on him for the rape and sodomy
convictions. We affirm the judgment of conviction as to appellant
Johnson in all other respects.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
STRATTON, J.
We concur:
GRIMES, Acting P. J.
WILEY, J
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