People v. Govan ( 2023 )

Filed 5/22/23
CERTIFIED FOR PARTIAL PUBLICATION *
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B316245
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. VA149784)
v.
DEANTHONY TYQUAN
GOVAN,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Andrew C. Kim, Judge. Affirmed in part;
reversed in part; and remanded with directions.
Edward J. Haggerty, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
* Pursuant to California Rules of Court, rules 8.1100 and
8.1110, this opinion is certified for publication with the exception
of parts A.1 through A.7 of the Factual and Procedural
Background and parts C through F of the Discussion.
Attorney General, Steven D. Matthews and Michael J. Wise,
Deputy Attorneys General, for Plaintiff and Respondent.
_______________________
DeAnthony Tyquan Govan appeals from a judgment of
conviction after the jury found him guilty with respect to four
victims of three counts of false imprisonment by violence; three
counts of forcible oral copulation; three counts of forcible rape;
and one count of attempted forcible rape. The trial in this case
took place during the COVID-19 pandemic. In the published
portion of the opinion, we address Govan’s contention the trial
court abused its discretion and deprived him of due process by
ordering him to wear a restraint belt during jury selection, which
was held in an unsecured jury assembly room instead of a
courtroom because of the pandemic. We agree the trial court
abused its discretion in requiring Govan to wear a restraint belt
without making an individualized finding at the time of jury
selection that Govan posed a safety or flight risk or that he was
likely to disrupt the proceedings; however, the error was
harmless. We also address Govan’s contention the court violated
his constitutional and statutory rights by receiving the jury
verdicts in his absence. Govan was quarantined as a result of
exposure to the COVID-19 virus while in the county jail, which
would have resulted in a two-week delay in receiving the
verdicts. Because Govan’s absence during the reading of the
verdicts did not interfere with his ability to defend against the
charges, there was no constitutional or statutory violation.
We also address in the published portion of the opinion
Govan’s contention his sentence must be vacated and remanded
for the trial court to exercise its discretion under recent
2
amendments to Penal Code section 654 1 made by Assembly Bill
No. 518 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 441) (Assembly
Bill 518), effective January 1, 2022. Govan contends, the People
concede, and we agree Assembly Bill 518’s changes to section 654
are ameliorative changes that apply retroactively to nonfinal
judgments under In re Estrada (1965) 63 Cal.2d 740, 744.
However, the People argue section 654, notwithstanding
changes to the law, does not apply to sentences imposed under
the one strike law (§ 667.61). The People point to language in
section 667.61, subdivision (h), which bars a trial court from
placing a one-strike offender on probation or suspending
execution or imposition of a one-strike sentence. The People
argue a stay imposed under section 654 should be treated the
same as a probationary sentence, relying on People v. Caparaz
(2022) 80 Cal.App.5th 669, 689-690 (Caparaz), in which
Division Two of the First Appellate District concluded on this
basis that section 654 does not apply to one-strike sentences.
We disagree with our colleagues in Caparaz. Reasonably
read, section 667.61, subdivision (h), prohibits only probation and
not a stay under section 654. The language in subdivision (h) is
unique to a grant of probation. Moreover, section 667.61,
subdivision (h), is intended to increase the punishment for
forcible sex offenses, whereas section 654 is intended to ensure
the punishment for an offense is commensurate with a
defendant’s culpability where two crimes arise from a single,
indivisible course of conduct. Because the one strike law does not
1 Further undesignated statutory references are to the Penal
Code.
3
preclude a stay under section 654, Govan is entitled to
resentencing under amended section 654. 2
Govan also contends, the People concede, and we agree the
trial court erred in awarding Govan 1,008 days of presentence
custody credit instead of 1,020 days. However, Govan is not
entitled to any conduct credit because the one strike law bars an
award of conduct credit to a one-strike offender.
In the unpublished portion of the opinion we consider
Govan’s contentions the trial court abused its discretion in
admitting evidence that victim Kenyetta F. was forced into
prostitution; the court erred in finding victim Soraya G. was an
unavailable witness and allowing her preliminary hearing
testimony to be read to the jury; and the court committed
prejudicial error in instructing the jury with CALCRIM No. 315
on the certainty factor for witness identification in light of People
v. Lemcke (2021) 11 Cal.5th 644 (Lemcke). There was no
prejudicial error.
We affirm Govan’s convictions, vacate the sentence, and
remand for resentencing.
2 As we discuss in the unpublished portion of the opinion, we
also agree with Govan’s contention that Senate Bill No. 567
(2021-2022 Reg. Sess.) (Stats. 2021, ch. 731, § 1.3) (Senate
Bill 567) applies retroactively to the case, requiring a remand for
the trial court to comply with the amendments to section 1170,
subdivision (b). Under the amendments, the trial court must
impose a sentence that does not exceed the middle term unless
the defendant stipulates to the facts supporting the
circumstances in aggravation, a jury or a judge in a court trial
finds the aggravating facts true beyond a reasonable doubt, or a
prior conviction supports imposition of the upper term.
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FACTUAL AND PROCEDURAL BACKGROUND
A. The Evidence at Trial
Three victims testified at trial: Markita L., Breauhna B.,
and Kenyetta. In addition, the preliminary hearing testimony of
a fourth victim, Soraya, was read to the jury because the trial
court found she was an unavailable witness.
Markita, Kenyetta, and Soraya testified that they were sex
workers. According to the women’s testimony, Govan arranged
for them to meet him at his apartment complex on different days.
Govan brought the women to the complex’s laundry room, where
he forced them to orally copulate him, and then he raped or
attempted to rape them while holding an Airsoft gun. 3 Breauhna
testified she met Govan through a dating website and invited him
to her home for a lunch date. While at her home, Govan forcibly
raped her.
Govan admitted in his testimony that he met Markita,
Kenyetta, and Soraya and took them to the laundry room to have
sex. But he testified he had consensual sex with each of the
women, he did not use a weapon, and he fled after each sexual
encounter to avoid paying for the services. Govan claimed he
never met Breauhna.
After Govan’s arrest, he made a jail call to his girlfriend,
codefendant Krishanna Wheeler. The prosecution played the jail
3 “An ‘airsoft’ gun is a toy weapon that uses air to propel
plastic pellets at a nonlethal velocity.” (Equinox Holdings, Inc. v.
National Labor Relations Board (D.C. Cir. 2018) 883 F.3d 935,
937, fn. 1.) It is clear from the testimony and statements by the
trial court at sentencing that the Airsoft gun used by Govan was
not a “real gun” but resembled one.
5
call for the jury, in which Govan asked Wheeler to obtain contact
information for Soraya and Kenyetta and told Wheeler the “‘game
plan’” was “‘to make sure they don’t come to court.’”
1. Markita—September 2017 incident
In September 2017 Markita was engaged in sex work and
worked on her own without a pimp. She posted an advertisement
on Craigslist with a phone number customers could use to contact
her. Govan contacted Markita using the phone number in her
advertisement. Through text messages and calls, Markita agreed
to meet Govan at an apartment complex in Lakewood for a “15-
minute quick session.” Govan told Markita his family was at
home, so they would have to use the laundry room.
On the morning of September 3, 2017 Markita arrived at
the apartment complex and met Govan in front of the building.
They greeted each other, and Govan guided her to the nearby
laundry room. Govan opened the door of the laundry room with a
key, and Markita followed him into the room. Govan told
Markita he would be right back, and she turned her back to him
to look for a condom in her wallet.
Within 10 seconds Govan returned, and in an aggressive
tone he directed Markita to “‘turn the fuck around.’” Markita
turned around and saw Govan pointing a gun at her face. The
gun was black with a long ammunition clip extended from it.
Markita asked Govan, “‘Why are you doing this?’” Govan
responded by asking the same question. Markita replied, “‘This
is just, like, what I do, you know, what do you want? I have a
child. I want to go back home to my child.” Govan then opened
Markita’s wallet and saw it was empty.
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Govan ordered Markita to get on her knees and suck his
penis. When Markita told Govan she did not want to do it and
tried to stall, he started counting while still pointing the gun
“very close” to her head. Markita reluctantly engaged in oral
copulation, and Govan lost patience with how she was performing
the act. He told Markita to turn around and pull down her pants.
Markita complied, but she told Govan to get a condom from her
wallet. When Govan put his gun down to put on the condom,
Markita slid her cell phone off the washer. Markita and Govan
struggled over the cell phone before Govan grabbed his gun from
the floor. Markita then screamed and charged at Govan. She
fought him and “eventually he got scared and he just ran out the
door.” During the fight, the gun clip fell out. Markita suffered a
bloody lip, scratches on the base of her neck, and scrapes on her
knuckles and knees.
After Govan left the laundry room, Markita ran upstairs.
She banged on an apartment door, and Leah McClain and her
husband opened the door and let Markita come inside. McClain
observed Markita was crying and holding a black metal clip in
her hands. Markita disclosed she met a man in the laundry
room, he “pulled a gun on her to rob her,” and he “made her give
him oral sex at gunpoint.” Markita said the clip had come from
the attacker’s gun and she had grabbed it from the floor when she
ran out of the laundry room. McClain and her husband called the
police and assisted Markita with her injuries.
2. Breauhna—June 2018 incident
In June 2018 Breauhna met Govan on a dating website
called Plenty of Fish. After Breauhna and Govan exchanged text
messages three or four times, they met by video chat and then in
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person. When Govan arrived at Breauhna’s apartment in Long
Beach, she let him inside, and he gave her a hug. They then sat
on the couch and talked. Because Govan had agreed to bring
lunch, Breauhna inquired where the food was. Govan responded
by asking if she still wanted the food. Breauhna replied, “‘No, it’s
okay.’” Govan then became “really aggressive” and put his hands
roughly on her. Breauhna asked, “‘What’s wrong [with] you?
Why [are] you, you know, so aggressive?’” When Breauhna stood
up from the couch to go to the balcony, Govan came from behind
and placed her in a choke hold. Breauhna said, “‘What are you
doing? I can’t breathe.’” Govan responded, “‘What do you mean?
This is just who I am.’” Breauhna told Govan to leave and
“budged away from him.” Govan pulled her backward toward the
kitchen area. Govan said he wanted to have sex, and Breauhna
replied, “‘No, I want you to just leave.’”
Govan next pushed Breauhna into her bedroom and told
her to lie on her back. She exclaimed, “‘I don’t want to. I don’t
want to do this. I don’t know you.’” Govan pushed Breauhna on
the bed, pulled on a condom, and put his penis in her vagina.
When Govan finished, he got up and said “bye” before walking
out of her home. Breauhna did not initially contact the police
because she “was in denial” of what happened and only knew
Govan’s cell phone number. She did not know his name or any
other information about him. A few weeks after the incident,
Breauhna sent a text message to Govan stating “he was a
scammer, an abuser, and a rapist.” Breauhna later reached out
to the police after she saw a crime bulletin about Govan.
Detective Tifani Stonich of the Los Angeles County Sheriff’s
Department Special Victims Bureau, in the course of her
investigation into the sex crimes believed to be committed by
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Govan, obtained the messages sent by Breauhna to Govan and
the telephone number of the cell phone Govan used to
communicate with Breauhna. Detective Stonich contacted
Breauhna, who explained she had generated a different
telephone number from her cell phone to text Govan because “she
was scared of him.” She sent a message to Govan after the
incident because “she wanted him to know what he had done, and
hopefully that would scare him to not do it to somebody else.”
Breauhna identified Govan in court as the perpetrator.
3. Soraya—November 2018 incident
On November 30, 2018 Govan contacted Soraya through a
website called Backpage, which is a website that is used to “meet
people . . . to get money.” He sent her a photograph, but of
someone else. Govan asked Soraya to meet him at an apartment
complex in Lakewood to provide sexual services in exchange for
money. At approximately 10:00 p.m. Soraya arrived at the
apartment complex and met Govan by the front gate. Soraya
confirmed Govan was the person she had communicated with
earlier. Govan led Soraya to the laundry room, and he opened
the door with a keycard. Once they were inside the laundry
room, Soraya was talking on her cell phone with her head down
when she felt a gun pointed at the back of her head. She turned
around, and Govan said, “‘Don’t look at me.’”
Govan then told Soraya to take off her clothes and get on
the floor. Soraya kneeled on the floor, and her cell phone fell out
of her pocket. Govan directed her to turn off her phone, which
she did. Govan told Soraya to “suck his dick” as he pressed a
black gun to the back of her head, and she complied. Govan then
penetrated Soraya vaginally from behind while continuing to
9
press the gun to the back of her head. During the vaginal
intercourse, Soraya repeatedly pleaded with Govan not to kill her
because she had a baby, and he told her to “‘shut up.’” Govan
recorded the vaginal intercourse on his cell phone. After Govan
finished, he told Soraya to count to 10, and he left. Soraya went
to the hospital, where she contacted the police. When Soraya told
Govan by text that she was going to the police, he responded, “‘I
don’t care.’”
4. Kenyetta—December 2018 incident
In December 2018 Kenyetta worked as a sex worker. Most
of Kenyetta’s appointments with customers were arranged by her
pimp who communicated with her by cell phone. At some point
the pimp arranged for Kenyetta to meet with a customer (Govan)
in Lakewood. Kenyetta communicated with Govan by text
messages, and he asked her to meet him at an apartment
building during the daytime on December 31, 2018.
Kenyetta met Govan at the apartment building and
confirmed he was the person who had contacted her for services.
She followed Govan to a laundry room, and he opened the door.
Govan then pulled out a black gun from his waistband and
pointed it at Kenyetta’s face. Govan ordered, “‘Get on your knees,
bitch.” Kenyetta pleaded, “‘[P]lease,’” and Govan replied, “‘Shut
the fuck up.’” Govan then unzipped his pants while continuing to
hold the gun and stated, “‘Suck my dick, bitch.’” Kenyetta orally
copulated Govan and observed he was wearing “a gray-and-black
Gucci belt.” At this point, Kenyetta was on her knees, and Govan
directed her to turn around. She complied, and he inserted his
penis into her vagina. He said, “‘If you do as I say, I won’t shoot
you.’” Less than 10 minutes later, Govan jumped up, and
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Kenyetta stood up and looked at him. Govan demanded, “‘Bitch,
don’t look at me.” He then ran out of the laundry room with his
gun.
Kenyetta called 911. In the call, which was played to the
jury, Kenyetta stated she was at an apartment complex in
Lakewood to meet her sister when a man approached her, asked
for directions to the laundry room, and “pulled a gun out on
[her].” Kenyetta added that the man told her, “‘Now, bitch, you
need to suck my dick,’” and Kenyetta responded, “‘I’m not gonna
suck anything.’” Kenyetta called the police, and about
20 minutes later two or three deputy sheriffs arrived. One
deputy directed Kenyetta to call Govan using her cell phone.
Govan answered and told Kenyetta that law enforcement would
not do anything because Kenyetta “was out there working the
streets.” He added that he lived in Los Angeles, not Lakewood.
5. The investigation
Detective Stonich testified she determined in her
investigation that Govan lived in an apartment within the
Lakewood apartment complex that contained the laundry room in
which the incidents with Markita, Kenyetta, and Soraya
occurred. Detective Stonich conducted a search of Govan’s
residence and recovered a black Airsoft gun and a multi-colored
Gucci belt.
The prosecutor also played a jail call Govan made to
Wheeler, in which he provided Wheeler with the full names for
Soraya and Kenyetta (and a third woman, Jasmine T.), 4 and
4 During the trial, the court granted the prosecutor’s motion
to dismiss (§ 1383) counts 4, 5, 6, and 19 for false imprisonment,
11
Govan and Wheeler discussed a contact at the Department of
Motor Vehicles who could help obtain contact information about
the three women. Govan told Wheeler the “game plan” was to
“[m]ake sure [the three women] are out of sight, out of mind.” He
added, “It’s just to make sure they don’t come to court.”
6. Govan’s testimony
Govan testified he met Markita through a website called
Backpage, “where you locate prostitutes” and exchange sex for
money. He texted Markita, and they agreed he would pay her
approximately $150 for 30 minutes of sex. Govan gave Markita
an address in Lakewood, and she met him there. Govan told her
that his wife was at home, and he asked if they could “do the date
in the laundry room.” Govan suggested the laundry room
because in the past, when he had sex with prostitutes without
paying them in his home, they came back with their pimps and
vandalized his residence.
Govan saw Markita place her black clutch on top of the
washer, but he denied touching it. Govan and Markita had sex
for 25 to 27 minutes in the laundry room. Govan then asked
Markita to save his contact information as a regular customer,
and he attempted to run out of the laundry room. Markita
grabbed the back of Govan’s shirt and screamed, “‘Daddy. Daddy,
he’s trying to run off with the money. Daddy. Daddy.’” Govan
had an empty ammunition magazine in his pocket, which fell out
during his struggle with Markita. Govan then ran from the
laundry room to his apartment, which was approximately
forcible oral copulation, and forcible rape of Jasmine, as well as
dissuading Jasmine from prosecuting a crime.
12
100 feet away. From his apartment window, Govan saw Markita
run up to a young man who was on the phone. Govan heard the
man say, “‘Bitch, where my money?’” Markita responded,
“‘Daddy, he ran that way.’” The man then slapped her. The man
called Govan on his cell phone and said, “‘You playing with
pimpin’ money. You ran off with my money. Come out pig.’”
Govan responded, “‘Look, man. Your girl got scammed. I ran off
with the money. She seen the money. She didn’t take it. I ran
home.’” Approximately 10 to 15 minutes later, Govan received a
text message that read, “‘Where your bitch ass at? Where my
money? Where my money? Pull up. Come out.’” Govan texted a
fake address, and Markita sent him a photograph of the location
and demanded that he meet her and pay the money. Govan did
not reply.
Govan also met Kenyetta through Backpage, and he agreed
to pay her for sex. Govan and Kenyetta went to the same
laundry room, and he showed her a stack of cash before they
engaged in sex acts. After they finished, Govan suggested
Kenyetta keep his phone number as a regular customer. When
Kenyetta reached for her cell phone to save his number, he ran
out of the laundry room. Kenyetta chased Govan, who ran up the
stairs and down the street before losing her. Once Govan reached
his home, Kenyetta called and said, “‘Oh, bring your punk ass
outside. My husband is here. We’ve got big bullets.’”
Govan similarly met Soraya on Backpage. They agreed to
meet at an address that was directly behind Govan’s apartment
building. Later that night Govan met Soraya and opened the
gate for her. He told her that his family was upstairs, and he
asked whether she minded using the laundry room. She
responded, “‘That’s no problem.’” Once Govan and Soraya arrived
13
at the laundry room, he showed her some cash. They negotiated
a price for her services and engaged in oral sex and unprotected
vaginal intercourse. After they finished, Govan asked Soraya to
save his phone number as a regular customer. When Soraya
reached for her cell phone, Govan ran out of the laundry room.
Govan ran home and then received a text from Soraya that said,
“‘Oh, I’m a 15-year-old girl. I’m going to call the police. Why
would you do that to me?’” Govan replied, “‘Well, go ahead and
do what you have to do. Call the police, because I didn’t rape
you.’” Soraya repeated in her text messages that she was
15 years old, Govan had raped her, and she would call the police.
Govan then received a text message from another phone number
with a photograph of a girl, reading, “‘Hey, I’m outside.’” Govan
believed Soraya had someone else send him the text message.
Govan denied ever knowing or seeing Breauhna. He
acknowledged he met someone through the Plenty of Fish dating
site, but it was not Breauhna. On cross-examination, he
admitted he had received a text message that read, “You’re a
rapist, abuser, and a scammer. I’m reporting you.” He believed
the message was from Wheeler. Govan reiterated as to Breauhna
that he had “never seen the lady a day in my life.”
On cross-examination, Govan denied he ever raped or
forced any of the four women to orally copulate him. But Govan
admitted he solicited at least 20 prostitutes to come to the
Lakewood location, and he scammed some of them out of money
after the sexual encounters. Govan also acknowledged Detective
Stonich found an Airsoft gun in his home and that he had “a
whole bunch of Air Soft equipment.”
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7. Detective Stonich’s testimony
On rebuttal, Detective Stonich testified that she and her
partner had previously interviewed Govan as part of their
investigation. Govan told Detective Stonich that Markita
sustained injuries when they fought over the money Govan had
brought to the laundry room because Govan said he was not
going to pay her. Govan did not tell Detective Stonich that he
saw Markita with a pimp. Nor did Govan say that he saw the
pimp hit Markita.
B. The Verdicts and Sentencing
On October 25, 2021 the jury found Govan guilty of false
imprisonment by violence of Soraya, Kenyetta, and Markita
(counts 1, 7 & 10; § 236); forcible oral copulation of Soraya,
Kenyetta, and Markita (counts 2, 8 & 12; § 288a, subd. (c)(2)(A));
forcible rape of Soraya, Kenyetta, and Breauhna (counts 3, 9
& 16; § 261, subd. (a)(2)); and attempted forcible rape of Markita
(count 13; §§ 261, subd. (a)(2), 664). The jury also found true as
to counts 2, 3, 8, 9, 12, 13, and 16 the special allegation under
section 667.61, subdivisions (b) and (e)(4), that Govan committed
the offenses against more than one victim. 5
5 At the end of the prosecution’s case, the trial court granted
Govan’s motion for judgment of acquittal (§ 1118.1) on counts 17,
18, and 20 for dissuading witnesses Soraya, Kenyetta, and
Markita from prosecuting a crime (§ 136.1, subd. (b)(2)) and count
21 for conspiracy to dissuade a witness (§ 136.1, subd. (c)(2)). The
court likewise granted the motion of codefendant Wheeler under
section 1118.1 to dismiss counts 17 (dissuading Soraya from
prosecuting a crime) and count 21 (conspiracy to dissuade a
witness). The jury found Govan not guilty of assault by means of
force likely to produce great bodily injury on Markita (count 15;
15
Govan waived his right to a jury trial on the prior
conviction allegation in the amended information. The trial court
found true that in 2012 Govan suffered a sustained juvenile
petition for rape in concert (§ 264.1, subd. (a)), and the prior
adjudication was a strike within the meaning of the three strikes
law (§§ 667, subds. (b)-(i); 1170.12) and a violent felony under
section 667.5, subdivision (c). However, the court granted
Govan’s Romero 6 motion to strike the prior felony conviction
allegation, and it dismissed the allegation under section 1385.
At the November 8, 2021 sentencing, the trial court
imposed under section 667.61, subdivisions (b) and (e)(4), six
consecutive sentences of 15 years to life on the forcible oral
copulation and rape counts (counts 2, 3, 8, 9, 12 & 16) for an
aggregate indeterminate term of 90 years to life. The court
imposed a consecutive term of four years (the upper term) on
count 13 for attempted forcible rape. The court also imposed and
stayed under section 654 the upper terms of three years on each
false imprisonment count (counts 1, 7, 10). The court awarded
Govan 1,008 days of presentence custody credit and 151 days of
conduct credit (15 percent of 1,008 days) for a total of 1,159 days.
Govan timely appealed.
§ 245, subd. (a)(4)). The jury deadlocked on the charge of
attempted second degree robbery of Markita (count 14; §§ 211,
664), and the trial court declared a mistrial on that count.
6 People v. Romero (1996) 13 Cal.4th 497, 504.
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DISCUSSION
A. The Trial Court Erred in Physically Restraining Govan
During Jury Selection, but the Error Was Not Prejudicial
1. Trial court proceedings
The trial took place in October 2021. Prior to jury
selection, the trial court noted for the record that Govan was
“physically restrained by way of a restraint belt that is around
his waist and connected to the back of his chair.” The court
explained, “[G]iven that we are trying this case in extraordinary
times during a global pandemic, we are conducting jury selection
in a room which is normally used for jury assembly
purposes. . . . This room is an unsecured room. It has multiple
exits. It has a window. Mr. Govan and Ms. Wheeler are facing
extremely serious charges, and so for that reason this court has
made a decision to have Mr. Govan, who is in custody, restrained
to a chair. I also want to make note that we are using foldable
tables as counsel tables and as the judge’s bench. Mr. Govan and
Ms. Wheeler are, you know, some 15, 20 feet away from the
closest juror in this case, and we don’t have access to a lockup
like we typically would in a courtroom.” The court added, “I also
want to note that Mr. Govan is seated at a table, along with
Ms. Wheeler and counsel, that is covered by a shroud; the front
part is covered by a shroud. No juror will know Mr. Govan is
restrained. Mr. Govan’s belt is covered by his white dress shirt.
There will be no mention of Mr. Govan being restrained, and
there will be no request by counsel or another party to ask
Mr. Govan to stand up or to have Ms. Wheeler stand up, and so
for all those foregoing reasons the court does find a manifest need
to have Mr. Govan restrained in that manner.”
17
Govan’s attorney argued in response to the court’s
comments, “Your honor, I’m going to object to my client being
restrained in this fashion. There’s social distancing that has
been relaxed in the entire [Los Angeles] County for courtrooms.
There has been a trial in this building where jury selection took
place in the courtroom just like we did before COVID. The courts
are open to the public now. I believe that the choosing of the jury
in this room is to accommodate the court, and that the court has
made it seem like it is necessary to restrain my client in such
fashion; however, there has been no individualized showing of
need to restrain my client in this way, and I’ll submit.”
At that point the court stated for the record, “Let me
. . . add that the restraint here, that’s been used here, is only
while we are in this particular room, not for the duration of the
trial. And secondly, I do want to incorporate all of the findings,
and all of the executive orders, and all of the orders, general
orders, issued not only by the chief justice of the California
Supreme Court but by the presiding judge of Los Angeles
County.”
2. Governing law and standard of review
“‘In general, the “court has broad power to maintain
courtroom security and orderly proceedings” [citation], and its
decisions on these matters are reviewed for abuse of discretion.
[Citation.] However, the court’s discretion to impose physical
restraints is constrained by constitutional principles. Under
California law, “a defendant cannot be subjected to physical
restraints of any kind in the courtroom while in the jury’s
presence, unless there is a showing of a manifest need for such
restraints.” [Citation.] Similarly, the federal “Constitution
18
forbids the use of visible shackles . . . unless that use is ‘justified
by an essential state interest’—such as the interest in courtroom
security—specific to the defendant on trial.”’” (People v. Poore
(2022) 13 Cal.5th 266, 285 (Poore); accord, People v. Bracamontes
(2022) 12 Cal.5th 977, 991 (Bracamontes); People v. Young (2019)
7 Cal.5th 905, 934 (Young).)
“‘“In deciding whether restraints are justified, the trial
court may ‘take into account the factors that courts have
traditionally relied on in gauging potential security problems and
the risk of escape at trial.’ [Citation.] These factors include
evidence establishing that a defendant poses a safety risk, a
flight risk, or is likely to disrupt the proceedings or otherwise
engage in nonconforming behavior.”’” (Bracamontes, supra,
12 Cal.5th at p. 991; accord, Young, supra, 7 Cal.5th at pp. 934-
935.) “[W]hen the evidence establishes a manifest need for
restraints, the court should impose the least obtrusive or
restrictive restraint that would be effective under the
circumstances.” (Poore, supra, 13 Cal.5th at p. 285; accord,
People v. Simon (2016) 1 Cal.5th 98, 115.)
“‘“[W]e will not overturn a trial court’s decision to restrain a
defendant absent ‘a showing of a manifest abuse of discretion.’”
[Citation.] To establish an abuse of discretion, defendants must
demonstrate that the trial court’s decision was so erroneous that
it “falls outside the bounds of reason.”’” (People v. Miracle (2018)
6 Cal.5th 318, 346; accord, People v. Bryant, Smith and Wheeler
(2014) 60 Cal.4th 335, 390.)
19
3. The trial court abused its discretion in restraining
Govan, but the error was harmless
Govan contends the use of a lap belt to restrain him during
jury selection was an abuse of discretion and violated his federal
constitutional right to due process. The People argue the use of a
lap belt was justified by the necessity of selecting the jury in the
unsecured jury assembly room as a result of the COVID-19
pandemic given Govan’s violent history culminating in the
alleged violent rape of three victims and attempted rape of a
fourth victim. The People further assert any error was not
prejudicial because there was no evidence the jury could see the
restraints. We agree with Govan that the trial court abused its
discretion in restraining Govan during jury selection; however,
the error was not prejudicial.
As discussed, the trial court held voir dire in the jury
assembly room as a result of the COVID-19 pandemic to enable
the jurors to sit distanced from each other and others during jury
selection. Although we do not question the need to conduct jury
selection in a larger room than a typical courtroom, the court
failed to justify restraining Govan “on an individualized basis,”
with evidence showing Govan’s conduct in custody or in the
courtroom demonstrated a present safety or flight risk or that he
was likely to disrupt the proceedings. (Bracamontes, supra,
12 Cal.5th at pp. 991, 993 [trial court abused its discretion in
requiring defendant to wear leg chains during trial where
defendant had attempted to evade capture before his arrest, but
“there was no evidence that defendant harbored a present intent
to escape from custody or otherwise disrupt court proceedings”].)
The court focused on the nature of the jury assembly room
(with the defendants seated within 15 to 20 feet of the closest
20
juror) and the “extremely serious charges” against Govan.
Although Govan faced multiple counts of forcible oral copulation,
forcible rape, and false imprisonment, as well as one count of
attempted forcible rape (unlike codefendant Wheeler, who was
not restrained in the jury assembly room), the fact Govan was
charged with serious offenses was insufficient to support a
finding of manifest need to restrain him. (Id. at p. 991 [“‘The
mere facts that the defendant is an unsavory character and
charged with a violent crime are not sufficient to support a
finding of manifest need.’”]; People v. Bryant, Smith and Wheeler,
supra, 60 Cal.4th at pp. 389-390 [same].)
Given the lack of evidence that Govan had acted violently
in custody or in court, disrupted the court proceedings, or
harbored an intent to escape, the trial court abused its discretion
in ordering the use of a lap belt to restrain him. (Bracamontes,
supra, 12 Cal.5th at p. 991 [“‘The imposition of physical
restraints in the absence of a record showing of violence or a
threat of violence or other nonconforming conduct will be deemed
to constitute an abuse of discretion.’”]; People v. Ervine (2009)
47 Cal.4th 745, 773 [same].)
Although it was an abuse of discretion to physically
restrain Govan during jury selection, he was not prejudiced by
the error. 7 There is no evidence the jury saw the lap belt
7 Govan argues the People have the burden of establishing
the error was harmless beyond a reasonable doubt under
Chapman v. California (1967) 386 U.S. 18, 24 because the use of
the restraint belt violated his federal constitutional right to due
process. However, the United States and California Supreme
courts have only applied the Chapman standard for harmless
error “where a court improperly orders the use of visible physical
restraints.” (Bracamontes, supra, 12 Cal.5th at p. 994 [“where a
21
because, as the trial court found (and Govan does not dispute),
the belt was hidden by Govan’s shirt and the covering on the
front of his table. “It is settled ‘that courtroom shackling, even if
error, [is] harmless if there is no evidence that the jury saw the
restraints, or that the shackles impaired or prejudiced the
defendant’s right to testify or participate in his defense.’” (Poore,
supra, 13 Cal.5th at pp. 288-289; accord, Young, supra, 7 Cal.5th
at p. 935.)
Govan contends he was prejudiced because the restraint
belt likely caused discomfort and impeded his ability to confer
and consult with his attorney during jury selection. A physical
restraint has “the potential to impair an accused’s ability to
communicate with counsel or participate in the defense,” but the
error is harmless where the record “does not reveal any such
court improperly orders the use of visible physical restraints,
‘[t]he State must prove “beyond a reasonable doubt that the
[shackling] error complained of did not contribute to the verdict
obtained.”’”]; accord, People v. Ervine, supra, 47 Cal.4th at p. 774
[shackling error only prejudices defendant’s right to a fair trial
where the jury can see the shackles in the courtroom, in which
case the harmless-beyond-a-reasonable-doubt standard applies];
see Deck v. Missouri (2005) 544 U.S. 622, 635 [“where a court,
without adequate justification, orders the defendant to wear
shackles that will be seen by the jury, . . . [t]he State must prove
‘beyond a reasonable doubt that the [shackling] error complained
of did not contribute to the verdict obtained’”].) Because there is
no evidence the lap belt was visible to the jury, any error was not
federal constitutional error, and we analyze prejudice under
People v. Watson (1956) 46 Cal.2d 818, 837, considering whether
it is “reasonably probable that a result more favorable to [the
appealing party] would have been reached in the absence of the
error.”
22
impairment occurred.” (People v. Ervine, supra, 47 Cal.4th at
pp. 773-774; accord, Poore, supra, 13 Cal.5th at pp. 290-291 [use
of security chair that defendant claimed caused him back pain
and resulted in his voluntary absence during part of jury
selection was not prejudicial where his claim of back pain was
uncorroborated, there was no evidence the jury saw the restraints
or “the restraints hampered the defendant’s ability to participate
in trial,” and there was no showing that defendant’s “absence was
due to continuing pain from one day of sitting in a lowered
chair”]; People v. Letner and Tobin (2010) 50 Cal.4th 99, 155 [use
of leg brace was harmless error where it was not visible to
prospective jurors and there was “no evidence in the record that
the leg brace was so physically restrictive or uncomfortable that
[defendant’s] ability to assist his attorney in conducting voir dire
of the prospective jurors was impaired”].) There is no evidence in
the record of any impairment to Govan’s ability to assist his
counsel with jury selection, and the restraints were not used
during the remainder of the trial. Therefore, the error was
harmless.
B. The Trial Court Did Not Violate Govan’s Statutory and
Constitutional Rights by Receiving the Verdicts in His
Absence
1. Trial court proceedings
On October 25, 2021, outside the presence of the jury, the
trial court informed the attorneys that the jury had reached
verdicts on all counts except for count 14. The court stated, “I
anticipate the court will declare a mistrial as to count 14 but take
the verdicts as to the remaining counts. The complication is that
the defendant is not here, and the defendant needs to be here.”
23
The court explained Govan was not in court because he was
“quarantined due to COVID-19” after he came “in contact with
someone who did test positive.” Noting “how contagious COVID-
19 is, [and] how deadly this virus is,” the court added, “The
Sheriff’s Department under no circumstances will transport
someone who is under quarantine, and so it doesn’t appear there
is . . . anything else that can be done to try to get the defendant in
court.” The court stated the earliest Govan could be in court was
November 8, “and that timeframe surpasses what the court had
advised the jury.” The court found under section 1148 that “no
amount of reasonable diligence is going to procure the presence of
the defendant” and “it is in the interest of justice that the verdict
be received in his absence.” 8
Govan’s attorney objected on the grounds that Govan’s
absence was not his fault; Govan could be present in court on
November 8; Govan “was very clear about not waiving his
presence for any sort of hearing or essential part of the
proceedings”; and “this is an essential part of the proceeding.”
The trial court responded, “I can understand counsel’s position,
but . . . if we do set this case out to November 8th . . . we’re going
to lose jurors either by . . . plans they have, someone getting—
God forbid—sick. There are just so many factors that are
involved between now and November 8th that I do believe it’s in
the interest of justice to take the verdict now.”
8 Section 1148 provides, “If charged with a felony the
defendant must, before the verdict is received, appear in person,
unless, after the exercise of reasonable diligence to procure the
presence of the defendant, the court shall find that it will be in
the interest of justice that the verdict be received in his absence.”
24
The court called in the jurors, declared a mistrial on count
14, and received the jury’s verdicts on the other counts in Govan’s
absence.
2. Governing law and standard of review
A criminal defendant has a right to be personally present
at trial under the confrontation clause of the Sixth Amendment
and the due process clause of the Fourteenth Amendment to the
United States Constitution, section 15 of article I of the
California Constitution, and sections 977 and 1043. 9 (People v.
Suarez (2020) 10 Cal.5th 116, 145-146 (Suarez); People v. Clark
(2011) 52 Cal.4th 865, 1003-1004.)
However, “‘[u]nder the Sixth Amendment’s confrontation
clause, a criminal defendant does not have a right to be
personally present at a particular proceeding unless his
appearance is necessary to prevent “interference with [his]
opportunity for effective cross-examination.’” (People v. Lewis
9 Former section 977, subdivision (b)(1), in effect at the time
of Govan’s trial, provided that a defendant charged with a felony
“shall be personally present at the arraignment, at the time of
plea, during the preliminary hearing, during those portions of the
trial when evidence is taken before the trier of fact, and at the
time of the imposition of sentence. The accused shall be
personally present at all other proceedings unless he or she shall,
with leave of court, execute in open court, a written waiver of his
or her right to be personally present, as provided by paragraph
(2).” Section 1043, subdivision (a), likewise requires “the
defendant in a felony case be personally present at the trial.” As
discussed, however, section 1148 provides an exception for
receiving the verdicts in a defendant’s absence in specified
circumstances where it is in the interest of justice.
25
and Oliver (2006) 39 Cal.4th 970, 1039 (Lewis and Oliver);
accord, People v. Clark, supra, 52 Cal.4th at p. 1004.) “Similarly,
under the Fourteenth Amendment’s due process clause, a
criminal defendant does not have a right to be personally present
at a particular proceeding unless he finds himself at a
“stage . . . that is critical to [the] outcome” and “his presence
would contribute to the fairness of the procedure.”’” (Lewis and
Oliver, at p. 1039; accord, Clark, at p. 1004.) “‘Under section 15
of article I of the California Constitution, a criminal defendant
does not have a right to be personally present “either in chambers
or at bench discussions that occur outside of the jury’s presence
on questions of law or other matters as to which [his] presence
does not bear a ‘“‘reasonably substantial relation to the fullness of
his opportunity to defend against the charge.’”’”’” (Lewis and
Oliver, at p. 1039; accord, Suarez, supra, 10 Cal.5th at p. 146.)
We review de novo “‘a trial court’s exclusion of a criminal
defendant from pretrial and trial proceedings, either in whole or
in part, “insofar as the trial court’s decision entails a
measurement of the facts against the law.”’” (People v. Virgil
(2011) 51 Cal.4th 1210, 1235; accord, People v. Cole (2004)
33 Cal.4th 1158, 1230.) The “‘“[d]efendant has the burden of
demonstrating that his absence prejudiced his case or denied him
a fair trial.”’” (Suarez, supra, 10 Cal.5th at p. 146; accord, People
v. Blacksher (2011) 52 Cal.4th 769, 799.) “[W]e evaluate federal
constitutional error for harmlessness under the Chapman beyond
a reasonable doubt standard, and state law error under the
Watson reasonably probable standard.” (People v. Perez (2018)
4 Cal.5th 421, 438; accord, People v. Mendoza (2016)
62 Cal.4th 856, 901.)
26
3. The trial court did not violate Govan’s statutory or
constitutional rights
Govan contends the trial court committed prejudicial error
and violated his constitutional rights by receiving the verdicts in
his absence. There was no error.
Lewis and Oliver is instructive. There, defendant Anthony
Oliver was hospitalized after he was stabbed by another jail
inmate and was absent from court when the jury announced it
had reached a verdict. (Lewis and Oliver, supra, 39 Cal.4th at
pp. 1039-1040.) The Supreme Court upheld the trial court’s
finding under section 1148 that it was in the interest of justice to
have the verdict read in Oliver’s absence. (Lewis and Oliver, at
p. 1040.) The Supreme Court explained there was no state law
violation because at the time the jury announced it had reached a
verdict, Oliver was in the intensive care unit for treatment of his
stab wounds for an unknown duration and “a delay in
announcing the verdict might have disrupted the proceedings or
resulted in the loss of jurors.” (Ibid.) The court continued,
“Assuming without deciding that there is a constitutional right to
presence at the reading of the guilt verdict, none of the cases
cited by Oliver addresses whether such right is subject to an
interest-of-justice exception analogous to the one applied here
under section 1148. [Citation.] Consistent with due process
principles, we conclude that the trial court properly determined
that any constitutional right to presence was not absolute, and
that—in the interest of justice—the verdict could be read while
Oliver was physically incapacitated and unable to attend court
following a third party assault.” (Ibid.)
Here, Govan was absent from court when the jury rendered
its guilty verdicts on October 25, 2021 because he was
27
quarantined following contact with someone who had tested
positive for COVID-19. The sheriff’s department refused to
transport Govan to court until November 8, which was 14 days
later. As the trial court reasoned, having the jury return in
14 days to read the verdicts in Govan’s presence would extend the
trial past the timeframe “the court had advised the jury,” and the
jurors could have other commitments or become sick due to the
“deadly virus” during the intervening time. Although the court
had impaneled two alternate jurors who were available as of
October 25, there was a risk more than two jurors would become
unavailable 14 days later to render their verdicts on November 8,
especially in the middle of a global pandemic. Thus, the trial
court did not err in finding under section 1148 that despite
reasonable diligence the court was unable to obtain Govan’s
presence for the reading of the verdicts, and it was therefore in
the interest of justice to receive the verdicts in his absence.
Nor did the trial court violate Govan’s constitutional rights
or statutory rights under sections 977 and 1043 by receiving the
verdicts in his absence. As the Supreme Court explained in
Suarez, supra, 10 Cal.5th at page 146, “‘“Neither the state nor
the federal Constitution, nor the statutory requirements of
sections 977 and 1043, require the defendant’s personal
appearance at proceedings where his presence bears no
reasonable, substantial relation to his opportunity to defend the
charges against him.”’” (Accord, People v. Blacksher, supra,52 Cal.4th at p. 799.) Govan’s inability to appear for the reading
of the verdicts did not interfere with his ability to defend against
the charges. The jury had reached its verdicts (except for count
14), and all that remained was for the verdicts to be read in the
courtroom. Govan argues he was prejudiced because had he been
28
present, there was the “potential for compelling each of the jurors
to psychologically confront the decision he or she had made
concerning Govan’s guilt.” However, Govan has failed to meet his
burden to show that his absence prejudiced his case or resulted in
an unfair trial other than the speculative possibility that one
juror would have changed his or her vote from guilty to not guilty
after seeing Govan in the courtroom. (See Blacksher, at pp. 799-
800 [no constitutional violation where defendant was absent
17 times during trial, including during discussion of objections to
exercise of peremptory challenges, replacement of a juror, and
discussion of penalty phase instructions and withdrawal of
request for allocution, but “[h]is absence did not deprive him of
the full opportunity to defend against the charges”].)
C. The Trial Court Did Not Abuse Its Discretion in Admitting
Evidence Kenyetta Was Forced into Prostitution
1. Trial court proceedings
During the direct examination of Kenyetta, the prosecutor
asked Kenyetta why she was a prostitute. Govan’s attorney
objected on speculation and relevance grounds, but the trial court
overruled the objection. Kenyetta answered, “I was forced. I was
human trafficked.” Govan’s attorney again objected, “Calls for
legal conclusion. Motion to strike. Speculation. Foundation.”
The court ruled, “As to ‘human trafficking’ it’s sustained. That
portion of the answer will be stricken.”
In response to the prosecutor’s questioning of Kenyetta
about why she did not in her 911 call disclose all the details of
what had happened, Kenyetta answered that she was a victim of
a crime and had been “trafficked.” Defense counsel again
objected, and the trial court struck the answer as nonresponsive.
29
When the prosecutor asked Kenyetta whether she disclosed
Govan’s rape to the responding sheriff’s deputies, Kenyetta
reiterated she “was trafficked at that time.” The court again
struck her answer as nonresponsive. The prosecutor then
inquired, “[I]s there a reason why you would not want to talk
about being raped to the deputies on that day when they
responded to the location, your reason?” Kenyetta answered, “I
have a pimp. You are ordered not to do certain things. There’s
certain things you just don’t do.” The prosecutor then asked, “So
did you believe something negative would happen if you told
them?” Kenyetta responded, “Oh, no, I didn’t believe it. I knew.
I knew.”
2. Governing law and standard of review
“‘No evidence is admissible except relevant evidence.’
(Evid. Code, § 350.) ‘Relevant evidence is evidence “having any
tendency in reason to prove or disprove any disputed fact that is
of consequence to the determination of the action.”’” (People v.
Hardy (2018) 5 Cal.5th 56, 87; accord, People v. Daveggio and
Michaud (2018) 4 Cal.5th 790, 822.) “‘The court in its discretion
may exclude evidence if its probative value is substantially
outweighed by the probability that its admission will
(a) necessitate undue consumption of time or (b) create
substantial danger of undue prejudice, of confusing the issues, or
of misleading the jury.’ (Evid. Code, § 352.)” (Hardy, at p. 87;
accord, People v. Bell (2019) 7 Cal.5th 70, 105.) Evidence “may
have a lower probative value if it is merely cumulative of other
evidence [citations] and there is a substantial danger of confusing
or misleading the jury or a substantial danger of necessitating an
undue consumption of time.” (People v. Holford (2012)
30
203 Cal.App.4th 155, 178, fn. 14; see People v. Pride (1992)
3 Cal.4th 195, 235 [under section 352 “a trial court has broad
discretion to exclude evidence it deems irrelevant, cumulative, or
unduly prejudicial or time-consuming”].)
“‘[T]he prejudice which exclusion of evidence under
Evidence Code section 352 is designed to avoid is not the
prejudice or damage to a defense that naturally flows from
relevant, highly probative evidence. “[A]ll evidence which tends
to prove guilt is prejudicial or damaging to the defendant’s case.
The stronger the evidence, the more it is ‘prejudicial.’ The
‘prejudice’ referred to in Evidence Code section 352 applies to
evidence which uniquely tends to evoke an emotional bias against
the defendant as an individual and which has very little effect on
the issues.”’” (People v. Jones (2017) 3 Cal.5th 583, 610; accord,
People v. Bell, supra, 7 Cal.5th at p. 105 [“‘“Evidence is not
prejudicial, as that term is used in [the Evidence Code]
section 352 context, merely because it undermines the opponent’s
position or shores up that of the proponent.”’”].) “‘[T]he trial
court is vested with wide discretion in determining relevance and
in weighing the prejudicial effect of proffered evidence against its
probative value. Its rulings will not be overturned on appeal
absent an abuse of that discretion.’” (People v. Hardy, supra,5 Cal.5th at p. 87; accord, Bell, at p. 105.)
3. The trial court did not abuse its discretion
Govan contends the trial court abused its discretion in
admitting Kenyetta’s testimony that she was forced into
prostitution because the evidence was not probative of whether
Govan coerced her to engage in oral copulation and sexual
intercourse, and further, any relevance was outweighed by the
31
prejudice from the sympathy the jury would feel for Kenyetta
based on the testimony. The trial court did not abuse its
discretion.
Evidence that Kenyetta was forced into prostitution was
relevant to explain why Kenyetta did not report in her 911 call
that she was raped and forced to orally copulate Govan at
gunpoint, instead stating only that she was ordered at gunpoint
to orally copulate Govan but refused. Because Kenyetta’s
credibility was at issue, evidence that she was forced into
prostitution and fearful of her pimp was relevant to explain why
she was not forthcoming in the 911 call. (Evid. Code, § 780
[“Except as otherwise provided by statute, the court or jury may
consider in determining the credibility of a witness any matter
that has any tendency in reason to prove or disprove the
truthfulness of his testimony at the hearing. . . .”]; People v.
Sandoval (2015) 62 Cal.4th 394, 430 [“‘evidence of a “third party”
threat may bear on the credibility of the witness, whether or not
the threat is directly linked to the defendant’”]; People v.
Mendoza (2011) 52 Cal.4th 1056, 1085 [“[A] trial court has
discretion, within the limits of Evidence Code section 352, to
permit the prosecution to introduce evidence supporting a
witness’s credibility on direct examination, particularly when the
prosecution reasonably anticipates a defense attack on the
credibility of that witness.”].) 10
10 We recognize the prosecution could have buttressed
Kenyetta’s credibility by eliciting that she was fearful of her pimp
without adding that she was forced into prostitution, but it was
not an abuse of discretion for the trial court to allow into evidence
both that she was forced into prostitution and that she was
fearful of the pimp.
32
Govan’s argument under Evidence Code section 352
likewise fails. Govan’s attorney did not object on this basis
(asserting only relevance and speculation), thereby forfeiting this
contention on appeal. (People v. Valdez (2012) 55 Cal.4th 82, 138
[objections based on relevance or foundation “were insufficient to
preserve for appeal the claim that the trial court should have
excluded the evidence under Evidence Code section 352”]; People
v. Barnett (1998) 17 Cal.4th 1044, 1130 [relevancy objection did
not preserve for review claim under Evidence Code section 352].)
Even if Govan had not forfeited this contention, it would not have
been an abuse of discretion for the trial court to find the
probative value of Kenyetta’s testimony that she was forced into
prostitution was not substantially outweighed by the potential
prejudice from the jury having sympathy for Kenyetta.
D. The Trial Court Did Not Err in Finding Soraya Was
Unavailable as a Witness
1. Trial court proceedings
On October 20, 2021, during trial, the trial court conducted
a hearing on the prosecution’s efforts to subpoena Soraya and
compel her to appear and testify at trial. The prosecutor
requested the court find Soraya was unavailable and to allow her
preliminary hearing testimony to be read to the jury.
Detective Stonich testified she first met Soraya three days
after Soraya’s encounter with Govan. At that time, Soraya was
willing to cooperate in the prosecution of the case. Soraya
testified at the preliminary hearing on July 18, 2019, which was
the last time Detective Stonich saw her in person. After the
preliminary hearing, Detective Stonich remained in telephonic
contact with Soraya for more than two years, exchanging
33
between 15 and 20 text messages and phone calls with her.
During that time, Soraya acknowledged receiving trial subpoenas
from the district attorney’s office. Soraya never indicated she did
not want to testify at trial. Detective Stonich last spoke with
Soraya in July 2021.
The parties stipulated that the district attorney’s office
mailed a subpoena to Soraya’s last known address on October 4,
2021. Detective Stonich followed up with five phone calls and
two text messages to Soraya during the period from October 13
through October 17, but Soraya did not respond. On cross-
examination, Detective Stonich acknowledged she did not use any
databases available through the Los Angeles County Sheriff’s
Department to locate Soraya, nor did she contact Soraya’s family.
On Monday morning, October 18, 2021, the prosecutor
asked Jose Medrano, a senior investigator for the Los Angeles
County District Attorney’s Office, to locate Soraya. Medrano
obtained the address where Soraya had previously been served
and the telephone number the office had used to contact her.
Medrano called the telephone number, but the call went to
voicemail. Medrano then went to Soraya’s home address and
spoke with Soraya’s cousin about Soraya’s whereabouts. While
Medrano was at the home, the cousin called Soraya using a
different phone number than the one Medrano had used to
contact her. Medrano spoke with Soraya by video chat. He was
able to recognize her from a photograph he had been provided.
Soraya stated she was in Portland and “couldn’t freely speak at
the moment.” Medrano told Soraya he would leave his business
card with her cousin and would call her after he left the location.
Medrano called Soraya from his vehicle using the number
the cousin provided to him. Medrano learned Soraya was
34
engaged in commercial sex work in Portland, but she did not
know her exact location. Medrano explained to Soraya that if she
would tell him her location, he could arrange for bus or airplane
transportation for her to travel back to Los Angeles. Soraya
responded she did not have her identification with her and
indicated “she wasn’t easily accessible.” However, she stated she
would try to travel to Los Angeles by Friday.
Later on October 18 a witness coordinator from the district
attorney’s office spoke with Soraya on a speakerphone in
Medrano’s presence. The witness coordinator offered to arrange
transportation for Soraya if she disclosed her location. Soraya
did not provide her location in Portland to the witness
coordinator.
On October 19, 2021 (the day before Medrano’s testimony),
Medrano again spoke with Soraya on the phone. Soraya
confirmed she was “‘working the street.’” Medrano heard a
female voice in the background, and Soraya said she could not
talk with him. Medrano continued the conversation by asking
her “yes” and “no” questions. Soraya then reported she was
trying to get gas money from an aunt to return to Los Angeles.
Shortly after the phone call with Soraya, Medrano received a text
message from a person who claimed to be Soraya’s cousin,
“stating that Soraya was in trouble” and a man in Portland was
not allowing her to speak or move freely. Medrano called
Soraya’s cousin and “instructed her that if she could get ahold of
Soraya and let [Medrano] know where [Soraya] was, [he] could
try to contact somebody [to assist]. If not, that if she could get
ahold of Soraya, or a family member to find out where she was, to
contact the local police in whatever jurisdiction she was.” Later,
Soraya sent a text message to Medrano that she would try to
35
leave at 4:00 a.m. the next morning to travel to Los Angeles.
Medrano sent Soraya a text message shortly before 9:00 a.m. on
October 20, but he did not receive a response.
Medrano admitted on cross-examination that he did not
contact law enforcement in Portland to try to locate Soraya and
serve her with a subpoena, explaining he “didn’t know where she
was, [or] if she even was in Portland.” Further, no one from
either the district attorney’s office or the sheriff’s department
went to Portland to try to find Soraya.
After hearing argument from counsel, the trial court ruled
the prosecution had exercised reasonable diligence but was
unable to procure Soraya’s trial attendance, and thus Soraya was
unavailable as a witness under Evidence Code section 240,
subdivision (a)(5). The court explained, “In 2018 it sounds like
[Soraya] cooperated with the investigation; she showed up at [the
preliminary hearing]. . . . And during the time between 2018, I
guess, up to July 2021, Detective Stonich has had contact with
this witness between 15 and 20 times, either personally,
telephonically, or through text messages. And there was no
indication from the witness that she was unwilling or
uncooperative with respect to the court process and coming to
court. . . . And it didn’t sound like the prosecution was aware of
her moving out of state or going out of state to Portland. It
sounds like from the moment they were unable to contact the
witness—and this start[ed on] Wednesday, October 13—Detective
Stonich made five phone calls to [Soraya], [and] didn’t receive any
telephone calls.”
The court continued, “[Medrano] was notified on Monday.
He actually spoke with someone who knew where she was, and it
sounds like there [were] reasonable diligent efforts to get ahold of
36
her: spoke to a cousin, spoke to a neighbor, found out she’s in
Portland, [and] was able to video chat with her. And Soraya tells
him that . . . she’s working as a commercial sex worker in
Portland. She’s not able to talk. There is no way of extracting
any other information from the witness. She says she’s in
Portland. We think she’s in Portland but . . . she’s not giving up
that information. So while she’s cooperating insofar as wanting
to come to court and testifying, . . . it sounds like she is
uncooperative insofar as revealing where she is in Portland; if
she is in Portland, an address where law enforcement can go and
serve her with a subpoena, [or] where arrangements can be made
where she can be picked up . . . and driven down to California in
Los Angeles to testify.”
The court added, “Sending people out to Portland wouldn’t
help, because they don’t even know if she, in fact, is in Portland,
or where in Portland to look. And there’s no database
information that would provide a location or an address. So
based upon the evidence the court has heard, I am going to find
that Soraya is unavailable pursuant to Evidence Code
section 240, and . . . based upon that finding the People are going
to be desirous of reading her testimony into the record.”
Subsequently, Soraya’s preliminary hearing testimony was read
to the jury.
2. Governing law and standard of review
Defendants have a state and federal constitutional right to
confront witnesses against them. (U.S. Const., 6th Amend.; Cal.
Const., art. I, § 15.) “Although the constitutional right of
confrontation is important, it is not absolute. [Citation.] If a
witness is unavailable but had previously testified against the
37
defendant and was subject to cross-examination at that time,
that prior testimony may be admitted.” (People v. Wilson (2021)
11 Cal.5th 259, 290 (Wilson); accord, People v. Ng (2022)
13 Cal.5th 448, 539; see Evid. Code, § 1291, subd. (a)(2)
[“Evidence of former testimony is not made inadmissible by the
hearsay rule if the declarant is unavailable as a witness and: [¶]
. . . [¶] (2) The party against whom the former testimony is
offered was a party to the action or proceeding in which the
testimony was given and had the right and opportunity to cross-
examine the declarant with an interest and motive similar to that
which he has at the hearing.”].)
“In a criminal case, the prosecution bears the burden of
showing that the witness is unavailable and, additionally, that it
made a ‘good-faith effort’ . . . or, equivalently, exercised
reasonable or due diligence to obtain the witness’s presence at
trial.” (People v. Sánchez (2016) 63 Cal.4th 411, 440 (Sánchez);
accord, Wilson, supra, 11 Cal.5th at p. 291; see Evid. Code, § 240,
subd. (a)(5) [declarant is “unavailable as a witness” if “[a]bsent
from the hearing and the proponent of his or her statement has
exercised reasonable diligence but has been unable to procure his
or her attendance by the court’s process”].)
Due diligence “‘“‘connotes persevering application,
untiring efforts in good earnest, [and] efforts of a substantial
character.’”’” (Wilson, supra, 11 Cal.5th at p. 291; accord,
Sánchez, supra, 63 Cal.4th at p. 440.) “We evaluate whether the
prosecution timely searched for the unavailable witness, whether
the prosecution ‘competently explored’ leads on the witness’s
location, and the overall import of the unavailable witness’s
testimony.” (Wilson, at p. 291; accord, Sánchez, at p. 440.) “We
review de novo the trial court’s unavailability determination,
38
although we defer to the trial court’s determination of historical
facts supported by substantial evidence.” (Wilson, at p. 291;
accord, Sánchez, at p. 440.)
3. The prosecution exercised reasonable diligence in its
efforts to secure Soraya’s attendance at trial
Govan contends the prosecution failed to meet its burden to
show due diligence in its efforts to locate Soraya and ensure her
attendance at trial, especially in light of the importance of her
testimony and the risk she would become unavailable given her
position as a sex worker. The trial court did not err in finding
reasonable diligence. 11
Because of the COVID-19 pandemic, the trial was
continued multiple times, finally being set on October 14, 2021.
As discussed, from when Detective Stonich first met Soraya in
early December 2018 until July 2021, Soraya was cooperative.
Soraya testified at the preliminary hearing in July 2019, and for
the following two years, Detective Stonich and Soraya
11 The People contend Govan forfeited his claim that the
admission of Soraya’s preliminary hearing testimony violated his
right to confront Soraya under the confrontation clauses of the
state and federal constitutions because Govan did not raise this
issue in the trial court. Govan did not forfeit this contention.
Following the trial court’s ruling that Soraya was an unavailable
witness and the prosecution could read her preliminary hearing
testimony into the record, Govan’s attorney stated, “I wanted to
ask the court to reconsider allowing the transcript to come in,
because my client’s right to cross-examination was severely
curtailed.” The court overruled Govan’s objection to Soraya’s
testimony based on the confrontation clause of the Sixth
Amendment.
39
communicated 15 to 20 times by text messages or phone calls.
Soraya acknowledged she had received trial subpoenas from the
district attorney’s office, and she never stated she did not want to
testify at trial. As the trial date approached, the district
attorney’s office mailed a subpoena to Soraya’s address (where
she had been previously served) on October 4, 2021. From
October 13 to 17, Detective Stonich attempted to contact Soraya
by phone calls or text messages on multiple occasions, but
without success.
On October 18 Medrano was assigned to find Soraya, but
she did not respond to his telephone call at the number the office
had previously used. He went to Soraya’s home address, where
he was able to speak first with the cousin, then with Soraya by
video chat. Medrano learned for the first time that Soraya was
(she said) in Portland, but she would not provide her address to
Medrano or the witness coordinator. Soraya continued to state
she was trying to get to Los Angeles, although she rejected the
offers from the district attorney’s office of assistance. On
October 19 Soraya texted Medrano to say she was hoping to leave
the next day at 4 a.m. to come to Los Angeles, but she did not
respond to Medrano’s follow-up text message on October 20. It
was on that day that the prosecutor requested the court deem
Soraya an unavailable witness.
Govan posits Detective Stonich or Medrano should have
used the sheriff’s department’s databases to try to locate Soraya,
sent someone to Portland to retrieve her, contacted law
enforcement in Portland, searched Soraya’s cell phone activity, or
reviewed her posts on Backpage or other websites to locate her.
But it is speculative whether Soraya could have been located
through these means given her occupation and Soraya’s
40
reluctance to provide contact information to Medrano, with no
confirmation she even was in Portland. Moreover, although
perhaps a full-scale investigation could have uncovered
additional information on Soraya’s whereabouts, the record
reflects the prosecution “timely searched” for Soraya and
‘‘‘competently explored’ leads” on Soraya’s location. (Wilson,
supra, 11 Cal.5th at pp. 291-292 [prosecution exercised
reasonable diligence where detective visited witness’s last known
address and workplace multiple times, visited another location
the witness had frequented, spoke with the witness’s ex-
girlfriend, and confirmed the witness was not in custody]; accord,
Sánchez, supra, 63 Cal.4th at pp. 442-443 [prosecution exercised
due diligence in attempting to locate witness through contact
with his brother where the witness had “returned to his native
Mexico, and was apparently living in a village with only one
communal telephone,” and the brother had made several
unsuccessful attempts to contact him; as to 16-year-old witness,
reasonable efforts were made to locate her where she had been
cooperative until she had a baby and was released from custody
in another matter].)
Moreover, even assuming Soraya was in Portland, it is
unlikely an additional investigation would have located her in
time for her to testify at trial. Jury selection started on
October 14, and the first witness (Markita) testified on
October 18. Further, the prosecution did not learn that Soraya
had moved until October 18, and it was not apparent until
October 20 that she was unwilling or unable to come to Los
Angeles. Under these circumstances, the prosecution’s efforts to
locate Soraya and bring her to Los Angeles to testify at trial were
sufficient to support a finding of reasonable diligence. (Sánchez,
41
supra, 63 Cal.4th at p. 442 [rejecting contention prosecution
should have sent an investigator to Mexico to try to find witness
and convince him to voluntarily return to testify, explaining
“[t]he prosecution must do what is reasonable under the
circumstances, not necessarily everything that can be suggested
in hindsight”]; People v. Valencia (2008) 43 Cal.4th 268, 292-293
[“‘“[t]hat additional efforts might have been made or other lines of
inquiry pursued does not affect [the] conclusion” that prosecution
exercised due diligence, where the investigator attempted to
obtain witness’s new phone number through the phone company,
obtained two addresses through the Department of Motor
Vehicles, visited these two addresses and spoke with neighbors,
and checked databases for the witness’s criminal history, credit
information, and real estate holdings]; see Wilson, supra,
11 Cal.5th at p. 292 [rejecting argument there was no reasonable
diligence on the basis “the prosecution could have checked with
[the witness’s] relatives, assigned multiple investigators to the
task of locating [the witness], or sought records from the
Department of Motor Vehicles”].)
People v. Louis (1986) 42 Cal.3d 969 (Louis), relied on by
Govan, is distinguishable. There, the witness, who was in
custody on one theft-related felony and awaiting sentencing on
another, refused to testify at the trial of Louis’s codefendants
unless he was “released on his own recognizance to spend the
weekend between the end of his testimony and his scheduled
sentencing hearing with an unnamed friend at an undisclosed
address.” (Id. at p. 990.) The prosecutor agreed, and the witness
was released after he testified in the codefendants’ trial. The
witness was told to appear for his sentencing, but he
42
disappeared, and the prosecution was unable to locate him prior
to Louis’s trial. (Ibid.)
In reversing the trial court’s finding of due diligence, the
Supreme Court reasoned, “On the facts of this case, the diligence
required of the prosecution to prevent [the witness] from
becoming absent was particularly high. Defendant was to go on
trial for his life; [the witness] was a critical prosecution witness,
and was known to be both unreliable and of suspect credibility—
the very type of witness that requires, but is likely not to appear
to submit to, cross-examination before a jury.” (Louis, supra,
42 Cal.3d at p. 991.) The Louis court added, “[T]he prosecution—
at the very minimum—could have attempted to obtain from [the
witness] and independently verify the name and address of the
friend with whom he allegedly intended to spend the weekend.
Further, it could then have [been] arranged that he be kept under
surveillance during that period of time. Whether merely
obtaining the name and address of the friend would have
prevented [the witness’] disappearance seems unlikely. But the
failure to take such minimal action plainly conflicts with the
claim that the prosecution exercised due diligence.” (Id. at
p. 992.)
Similar to Louis, Soraya’s testimony was critical to the
charges against Govan for his false imprisonment, forcible oral
copulation, and forcible rape of her. But unlike the witness in
Louis who was released from custody and posed a flight risk prior
to sentencing, Soraya had cooperated with the prosecution (and
Detective Stonich) during the two-year period from the
preliminary hearing until just a few months before trial. Given
Soraya’s cooperation, there was no justification to keep Soraya
under surveillance, as suggested by Govan. (See Sánchez, supra,43
63 Cal.4th at p. 447 [“the prosecution was not required to try to
keep [the witness] in custody until she testified” where she was
cooperative and the prosecution “did not believe it would be
difficult to obtain her trial testimony”].)
E. The Jury Instruction on the Witness Certainty Factor Did
Not Constitute Prejudicial Error
Govan contends with respect to the counts relating to
Breauhna the trial court erred in instructing the jury with
CALCRIM No. 315 on eyewitness identification that it may
consider, among other factors, “[h]ow certain was the witness
when he or she made an identification.” 12 Govan argues the trial
12 The court instructed the jury with a modified version of
CALCRIM NO. 315, as follows: “You have heard eyewitness
testimony identifying the defendant. As with any other witness,
you must decide whether an eyewitness gave truthful and
accurate testimony. In evaluating identification testimony,
consider the following questions: Did the witness know or have
contact with the defendant before the event? How well could the
witness see the perpetrator? What were the circumstances
affecting the witness’[s] ability to observe, such as lighting,
weather conditions, obstructions, distance, and duration of
observation? How closely was the witness paying attention? Was
the witness under stress when he or she made the observation?
Did the witness give a description and how does that description
compare to the defendant? How much time passed between the
event and the time when the witness identified the defendant?
Was the witness asked to pick the perpetrator out of a group?
Did the witness ever fail to identify the defendant? Did the
witness ever change his or her mind about the identification?
How certain was the witness when he or she made an
identification? Are the witness and the defendant of different
races? Was the witness able to identify the defendant in a
44
court committed state law error and violated his due process
rights by ignoring the Supreme Court’s direction in Lemcke,
supra, 11 Cal.5th at pages 647 to 648 that courts “should omit”
the certainty factor when instructing with CALCRIM No. 315. 13
In Lemcke, the Supreme Court observed that “[c]ontrary to
widespread lay belief, there is now near unanimity in the
empirical research that ‘eyewitness confidence is generally an
unreliable indicator of accuracy.’” (Lemcke, supra, 11 Cal.5th at
p. 647.) The court explained, “As currently worded, CALCRIM
No. 315 does nothing to disabuse jurors of that common
photographic or physical lineup? Were there any other
circumstances affecting the witness’[s] ability to make an
accurate identification?”
13 The People argue Govan forfeited his claim of instructional
error by failing to object to the trial court’s instruction on witness
certainty. But we review any claim of instructional error that
affects a defendant’s substantial rights even absent an objection.
(§ 1259 [“The appellate court may also review any instruction
given . . . even though no objection was made thereto in the lower
court, if the substantial rights of the defendant were affected
thereby.”]; People v. Burton (2018) 29 Cal.App.5th 917, 923
[“‘Failure to object to instructional error forfeits the issue on
appeal unless the error affects defendant’s substantial rights.’”];
People v. Bedolla (2018) 28 Cal.App.5th 535, 544 [same].) “And
‘[w]e can only determine if [a] defendant[’s] substantial rights
were affected by deciding whether the instruction was given in
error and, if so, whether the error was prejudicial.’” (People v.
Delgado (2022) 74 Cal.App.5th 1067, fn. 10.) That is, if Govan’s
claim has merit, it has not been forfeited. We therefore
necessarily review the merits of Govan’s contention the
instruction violated his constitutional rights. Because we find no
forfeiture, we do not reach Govan’s argument his attorney’s
failure to object constituted ineffective assistance of counsel.
45
misconception, but rather tends to reinforce it by implying that
an identification is more likely to be reliable when the witness
has expressed certainty. This is especially problematic because
many studies have also shown eyewitness confidence is the single
most influential factor in juror determinations regarding the
accuracy of an identification.” (Ibid.) The court referred
consideration of the instruction to the Judicial Council and its
Advisory Committee on Criminal Jury Instructions “to evaluate
whether or how the instruction might be modified to avoid juror
confusion regarding the correlation between certainty and
accuracy.” (Ibid.) The court also directed that until the Judicial
Council completes its review, “trial courts should omit the
certainty factor from CALCRIM No. 315 unless the defendant
requests otherwise.” (Id. at pp. 647-648.)
Notwithstanding the directive in Lemcke that trial courts
should omit the certainty factor when instructing with CALCRIM
No. 315, the Supreme Court rejected the defendant’s due process
challenge, holding, “When considered in the context of the trial
record as a whole, listing the witness’s level of certainty as one of
15 factors the jury should consider when evaluating identification
testimony did not render [defendant’s] trial fundamentally
unfair.” (Lemke, supra, 11 Cal.5th at p. 646.) Following Lemcke,
the Supreme Court in People v. Wright (2021) 12 Cal.5th 419, 453
(Wright) similarly concluded inclusion of the witness certainty
factor in CALJIC No. 2.92 14 did not violate the defendant’s due
process rights. (See People v. E.H. (2022) 75 Cal.App.5th 467,
471 [instruction with “CALCRIM No. 315’s certainty factor does
14 As the Supreme Court observed in Lemcke, supra,
11 Cal.5th at page 656, footnote 6, there is no material difference
between CALCRIM No. 315 and CALJIC No. 2.92.
46
not violate due process”]; People v. Delgado (2022)
74 Cal.App.5th 1067, 1085 [instruction on witness certainty
factor did not violate defendant’s due process rights]; People v.
Greeley (2021) 70 Cal.App.5th 609, 622 [defendant “failed to
establish that the inclusion of the certainty factor in CALCRIM
No. 315 violated her due process rights”].)
Govan acknowledges the Supreme Court’s holdings in
Lemcke and Wright that the jury instruction on the witness
certainty factor did not violate those defendants’ due process
rights. But he notes the Lemcke court highlighted as to
CALCRIM No. 315 that although “the wording of the instruction
might cause some jurors to infer that certainty is generally
correlative of accuracy,” the defendant was “permitted to present
expert witness testimony to combat that inference.” (Lemcke,
supra, 11 Cal.5th at p. 657-658.) By contrast, Govan asserts,
there was no expert testimony in this case to place the certainty
factor “in proper context.” However, whether there is an
eyewitness expert is only one factor to consider. In Wright, for
example, the court found no due process violation even though
the defense did not call an eyewitness identification expert,
instead employing a trial strategy to discredit the witnesses.
(Wright, supra, 12 Cal.5th at p. 453.) It was Govan’s decision not
to call a witness identification expert at trial, and as in Wright,
he challenged Breauhna’s credibility through cross-examination
eliciting that Breauhna sent the text messages to Govan from a
different phone number than her own and used a pseudonym to
conceal her real name. And Govan testified he never met
Breauhna, impliedly questioning whether she was telling the
truth that he was the perpetrator.
47
Moreover, although Breauhna identified Govan as the
perpetrator in court by identifying where he was seated and what
he was wearing, she did not testify she was certain of her
identification. Govan claims the prosecutor improperly
emphasized the certainty of Breauhna’s identification by stating
in her closing argument that Breauhna saw Govan’s face. The
prosecutor argued, “[Breauhna] communicates with [Govan] via
text for several days. They exchanged numbers, face-time calls.
She sees his face. She agrees to allow him to come to her home to
bring lunch because he seemed like a nice guy.” The argument
was proper. As CALCRIM No. 315 provides, the jury may
consider whether the witness had “contact with the defendant
before the event” and “[h]ow well could the witness see the
perpetrator.” The prosecutor’s argument was consistent with
Breauhna’s testimony that she had a video chat with Govan on
the morning before they met for a lunch date at her apartment.
Moreover, the trial court’s instruction on witness certainty
did not violate due process “when considered ‘“in the context of
the instructions as a whole and the trial record.”’” (Lemcke,
supra, 11 Cal.5th at p. 661; accord, Wright, supra, 12 Cal.5th at
p. 453.) As Govan acknowledges, the trial court instructed the
jury that Govan was presumed innocent; the People must prove
Govan guilty beyond a reasonable doubt; the People must prove
Govan “did the acts charged” and “acted with a particular intent
or mental state”; the jury “alone must judge the credibility or
believability of the witnesses”; and the factors in evaluating a
witness’s testimony included that “people sometimes honestly
forget things or make mistakes about what they remember.”
These jury instructions are similar to those the Supreme Court
considered in Lemcke and Wright in concluding the instruction on
48
the witness certainty factor did not amount to a due process
violation when considered in the context of the jury instructions
as a whole. (See Wright, supra, 12 Cal.5th at p. 453 [jury was
instructed “concerning the believability of a witness” and “a
witness who is willfully false”]; Lemcke, supra, 11 Cal.5th at
p. 658 [jury instructed on the presumption of innocence and the
prosecution’s burden of proof, that jurors were responsible for
judging witness credibility, and that witnesses “‘sometimes
honestly . . . make mistakes about what they remember’”].)
Moreover, even if it were state law error for the court to
instruct on the witness certainty factor following Lemcke, any
error was harmless because Breauhna did not testify that she
was certain that Govan was the perpetrator. 15 (See People v.
Beltran (2013) 56 Cal.4th 935, 955 [harmless error standard
under People v. Watson (1956) 46 Cal.2d 818, 836 applies to
instructional error that does not amount to federal constitutional
error]; People v. Larsen (2012) 205 Cal.App.4th 810, 830 [same].)
F. Remand for Resentencing Under Amended Section 1170,
Subdivision (b), Is Warranted
1. The sentencing
As discussed, the trial court sentenced Govan to the upper
term of four years on count 13 for the attempted rape of Markita.
(See §§ 264 [specifying punishment for rape] & 664, subd. (a).)
The court explained it imposed the upper term pursuant to
California Rules of Court, rule 4.421(a)(1) because the crime
“involved great violence, great bodily injury, threat of great
15 Lemcke was decided in May 2021, approximately five
months before the trial court instructed the jury (on October 21,
2021).
49
bodily injury, or other acts disclosing a high degree of cruelty,
viciousness, or callousness.” The court continued, “I’m also
relying on [rule] 4.421(a)(2); the defendant was armed with a
weapon. . . . [I]t’s unclear whether or not this was a real gun, but
more likely than not it was an Airsoft weapon. We know Markita
recovered an Airsoft magazine from the incident with the
defendant. Even though an Airsoft gun is not a real gun, I do
believe it qualities as a weapon, and at a minimum he used that
weapon to threaten and menace the victim. And then lastly, the
court’s relying on rule 4.421, subdivision (a)(8), the manner in
which the crime was carried out contained planning,
sophistication, or premeditation. And in this case, in light of all
the other crimes he committed and the way in which he contacted
Soraya G., Kenyetta F., and Markita L., he contacted them either
online or via text. He met them at the apartment complex. He
took them to a laundry room. And the acts that were involved
were very similar . . . [H]e had them forcibly orally copulate him,
and then he forcibly raped them. And so for all those reasons the
court is selecting the high-term as to count 13 of 4 years.”
The court also imposed and stayed under section 654 three-
year terms (the upper terms) on each false imprisonment by
violence count (counts 1, 7, 10). However, the court did not state
any aggravating circumstance for imposition of the upper terms.
2. Governing law
At the time the trial court sentenced Govan in 2021, former
section 1170, subdivision (b), stated, “When a judgment of
imprisonment is to be imposed and the statute specifies three
possible terms, the choice of the appropriate term shall rest
within the sound discretion of the court.” (Stats. 2020, ch. 29,
50
§ 14.) Effective January 1, 2022, Senate Bill 567 (2019–2020 Reg.
Sess.) amended section 1170, subdivision (b), to provide,
“(1) When a judgment of imprisonment is to be imposed and the
statute specifies three possible terms, the court shall, in its sound
discretion, order imposition of a sentence not to exceed the
middle term, except as otherwise provided in paragraph (2). [¶]
(2) The court may impose a sentence exceeding the middle term
only when there are circumstances in aggravation of the crime
that justify the imposition of a term of imprisonment exceeding
the middle term, and the facts underlying those circumstances
have been stipulated to by the defendant, or have been found true
beyond a reasonable doubt at trial by the jury or by the judge in a
court trial. [¶] (3) Notwithstanding paragraphs (1) and (2), the
court may consider the defendant’s prior convictions in
determining sentencing based on a certified record of conviction
without submitting the prior convictions to a jury.” (Stats. 2021,
ch. 731, § 1.)
Govan contends, the People concede, and we agree Senate
Bill 567’s changes to amended section 1170, subdivision (b), are
ameliorative changes that apply retroactively to Govan’s nonfinal
judgment under In re Estrada, supra, 63 Cal.2d at pages 744 to
745. (See People v. Superior Court (Lara) (2018) 4 Cal.5th 299,
308 [“‘in the absence of contrary indications, a legislative body
ordinarily intends for ameliorative changes to the criminal law to
extend as broadly as possible, distinguishing only as necessary
between sentences that are final and sentences that are not’”];
People v. Dunn (2022) 81 Cal.App.5th 394, 403 [“As Senate
Bill 567’s amendments to section 1170, subdivision (b), lessen
punishment, and there is no indication that the Legislature
intended it to apply prospectively only, the new law must be
51
retroactively applied.”], review granted Oct. 12, 2022, S275655;
People v. Zabelle (2022) 80 Cal.App.5th 1098, 1108 (Zabelle);
People v. Lopez (2022) 78 Cal.App.5th 459, 465 (Lopez).)
3. Remand for resentencing is appropriate because the
error in imposing the upper terms was not harmless
Govan contends the trial court’s imposition of the upper
term of four years for attempted rape and three years for each of
the three false imprisonment counts violated the Sixth
Amendment and failed to comply with amended section 1170,
subdivision (b). Govan’s contention has merit.
Contrary to the People’s assertion, the trial court did not
rely on Govan’s prior sustained petition for rape in concert when
imposing the upper terms for the false imprisonment and
attempted rape counts. The only discussion of Govan’s prior
sustained petition (cited by the People) is in the context of
Govan’s Romero motion, which the court granted. Further, the
court relied on three aggravating circumstances in imposing the
upper term for attempted rape, but with respect to the three false
imprisonment counts, it did not specify any aggravating
circumstance when imposing the upper terms. And Govan did
not stipulate to, and the jury did not find beyond a reasonable
doubt the facts underlying any aggravating circumstances for the
attempted rape or false imprisonment counts. (See Cunningham
v. California (2007) 549 U.S. 270, 281 [“under the Sixth
Amendment, any fact that exposes a defendant to a greater
potential sentence must be found by a jury, not a judge, and
established beyond a reasonable doubt, not merely by a
preponderance of the evidence”]; People v. Ross (2022)
86 Cal.App.5th 1346, 1353 (Ross) [imposition of upper term based
52
on trial court’s findings on aggravating factors was erroneous
under section 1170, subdivision (b), because “defendant had not
stipulated to the facts underlying these factors, nor were the facts
found true beyond a reasonable doubt by a jury”], review granted
Mar. 15, 2023, S278266; Zabelle, supra, 80 Cal.App.5th at
pp. 1109-1111 [“the trial court’s imposition of the upper term
based on its own factfinding violated defendant’s rights under the
Sixth Amendment” and section 1170, subdivision (b)].)
The Supreme Court has granted review in People v. Lynch
(May 27, 2022, C094174) [nonpub. opn.], review granted
August 10, 2022, S274942, to decide what prejudice standard to
apply when determining whether a case should be remanded for
resentencing under amended section 1170, subdivision (b). Until
the Supreme Court resolves the issue, we apply the two-step
harmless error test set forth in Zabelle, supra, 80 Cal.App.5th at
pages 1111 to 1112 and the related approach in Lopez, supra,
78 Cal.App.5th at pages 465 to 467. First, we evaluate whether
the Sixth Amendment error is harmless under the Chapman
standard as formulated by People v. Sandoval (2007)
41 Cal.4th 825, 839: “‘[I]f a reviewing court concludes, beyond a
reasonable doubt, that the jury, applying the beyond-a-
reasonable-doubt standard, unquestionably would have found
true at least a single aggravating circumstance had it been
submitted to the jury, the Sixth Amendment error properly may
be found harmless.’” (Zabelle, at p. 1111.) Second, we apply the
Watson harmless-error standard to evaluate state law error by
considering “whether it is reasonably probable that the trial court
would have chosen a lesser sentence in the absence of the error.”
(Zabelle, at p. 1112.) As the Zabelle court explained, “Resolving
this issue entails two layers of review. We must first, for each
53
aggravating fact, consider whether it is reasonably probable that
the jury would have found the fact not true. We must then, with
the aggravating facts that survive this review, consider whether
it is reasonably probable that the trial court would have chosen a
lesser sentence had it considered only these aggravating facts.”
(Ibid.)
Applying the two-step harmless error analysis to the false
imprisonment counts, we conclude remand for resentencing
under section 1170, subdivision (b), is necessary. Because the
trial court did not specify which aggravating factors it relied on
when imposing the upper term (and there is no indication the
court relied on Govan’s prior sustained petition), the Sixth
Amendment error was not harmless under the Chapman
standard. We cannot conclude beyond a reasonable doubt that
the jury would have found beyond a reasonable doubt at least one
aggravating circumstance had the circumstance been submitted
to the jury. (Zabelle, supra, 80 Cal.App.5th at pp. 1111-1112.)
Likewise, the state law error was not harmless under the Watson
standard because we cannot conclude that the trial court “would
have imposed the upper term even absent the error.” (Zabelle, at
p. 1112.)
Therefore, as to the false imprisonment counts, the
constitutional and statutory violations were not harmless under
Chapman and Watson. (See People v. Lewis (2023)
88 Cal.App.5th 1125, 1139 [sentence invalid under amended
section 1170, subdivision (b), where reviewing court was
“uncertain that a jury would have found any of the aggravated
circumstances the trial court relied on true beyond a reasonable
doubt”], review granted May 17, 2023, S279147; see Ross, supra,
86 Cal.App.5th at p. 1356 [remanding for resentencing based on
54
Chapman and Watson errors], review granted; Lopez, supra,
78 Cal.App.5th at p. 466 [finding Chapman error and remanding
for resentencing, explaining “[i]t would be entirely speculative for
us to presume, based on a record that does not directly address
the aggravating factors, what a jury would have found true in
connection with these factors”].)
Accordingly, we vacate the sentence and remand for the
trial court to resentence Govan under amended section 1170,
subdivision (b). 16 On remand, Govan is entitled to a full
resentencing, including all applicable retroactive changes in the
law. (See People v. Valenzuela (2019) 7 Cal.5th 415, 424-425
[“the full resentencing rule allows a court to revisit all prior
sentencing decisions when resentencing a defendant”]; People v.
Buycks (2018) 5 Cal.5th 857, 893 [“when part of a sentence is
stricken on review, on remand for resentencing ‘a full
resentencing as to all counts is appropriate, so the trial court can
exercise its sentencing discretion in light of the changed
circumstances’”]; People v. Jones (2022) 79 Cal.App.5th 37, 46
[“the need to apply amended sections 1170, subdivision (b) and
16 Because we remand for resentencing on the false
imprisonment counts under amended section 1170,
subdivision (b), we do not reach whether the trial court’s
imposition of the upper term for the attempted rape of Markita
was harmless error. We observe, however, that on remand the
People may elect to proceed under the amended requirements of
section 1170, subdivision (b), which would allow the People to
prove the existence of aggravating factors beyond a reasonable
doubt to a jury or otherwise comply with section 1170,
subdivision (b). In addition, on resentencing the trial court may
in its discretion rely on the sustained juvenile petition for rape in
concert pursuant to section 1170, subdivision (b)(3).
55
654 creates sufficiently “‘“changed circumstances”’ [citation] to
warrant a full resentencing”]; People v. Garcia (2022)
76 Cal.App.5th 887, 902 [“the trial court may revisit all of its
sentencing choices in light of” the amendments to section 1170,
subdivision (b)].)
G. Remand for Resentencing Under Amended Section 654 Is
Appropriate
At the time of Govan’s sentencing in 2021, former
section 654, subdivision (a), provided, “An act or omission that is
punishable in different ways by different provisions of law shall
be punished under the provision that provides for the longest
potential term of imprisonment, but in no case shall the act or
omission be punished under more than one provision.” As
discussed, pursuant to former section 654, the trial court
sentenced Govan to five 15 years-to-life terms under the one
strike law (for forcible oral copulation and rape) on counts 2, 3, 8,
9, and 12 (in addition to the 15 years-to-life term for the forcible
rape of Breauhna charged in count 16), and it imposed and
stayed three-year terms on counts 1, 7, and 10 for false
imprisonment relating to Soraya, Kenyetta, and Markita.
Effective January 1, 2022, Assembly Bill 518 (2021-2022
Reg. Sess.) amended section 654 “to remove the requirement that
a court impose the longest sentence when a defendant is
convicted of more than one offense arising from the same
conduct.” (Lopez, supra, 78 Cal.App.5th at p. 468; accord, People
v. Mani (2022) 74 Cal.App.5th 343, 379 [“section 654 now
provides the trial court with discretion to impose and execute the
sentence of either term, which could result in the trial court
imposing and executing the shorter sentence rather than the
56
longer sentence”].) Section 654, subdivision (a), now provides,
“An act or omission that is punishable in different ways by
different provisions of law may be punished under either of such
provisions, but in no case shall the act or omission be punished
under more than one provision.”
Govan contends, the People concede, and we agree
Assembly Bill 518’s changes to section 654 are ameliorative
changes that apply retroactively to nonfinal judgments under In
re Estrada, supra, 63 Cal.2d at page 744 to 745. (See People v.
Fugit (2023) 88 Cal.App.5th 981, 995-996 [defendant entitled to
retroactive benefit of Assembly Bill 518]; People v. Mani, supra,
74 Cal.App.5th at pp. 379-380 [same]; see also People v. Superior
Court (Lara), supra, 4 Cal.5th at p. 308.) However, the People
contend Govan is not entitled to resentencing on the counts
relating to Soraya, Kenyetta, and Markita notwithstanding the
changes to section 654 because section 667.61, subdivision (h),
precludes the court from staying execution of a one-strike
sentence, relying on Caparaz, supra, 80 Cal.App.5th at pages 689
to 690. We are not persuaded.
Section 667.61, subdivision (h), provides, “Notwithstanding
any other law, probation shall not be granted to, nor shall the
execution or imposition of sentence be suspended for, a person
who is subject to punishment under this section.” Division Two
of the First Appellate District concluded in Caparaz, supra,
80 Cal.App.5th at page 689 that this statutory provision bars a
trial court from staying execution of a sentence under the one
strike law, reasoning “[a] stay is a type of suspension.” The court
rejected the defendant’s argument that section 667.61,
subdivision (h), only prohibited the granting of probation for a
one-strike offense. The court explained, “[T]his interpretation of
57
section 667.61(h) renders the phrase ‘nor shall the execution or
imposition of sentence be suspended for’ meaningless, and
‘interpretations that render statutory terms meaningless as
surplusage are to be avoided.’” (Caparaz, at p. 689.) The court
added, “The failure to identify section 654 is not dispositive; it is
enough that the provision applies ‘[n]otwithstanding any other
law.’” (Ibid.)
When interpreting a statute, “our core task . . . is to
determine and give effect to the Legislature’s underlying purpose
in enacting the statutes at issue.” (McHugh v. Protective Life Ins.
Co. (2021) 12 Cal.5th 213, 227; accord Jarman v. HCR
ManorCare, Inc. (2020) 10 Cal.5th 375, 381.) “We first consider
the words of the statutes, as statutory language is generally the
most reliable indicator of legislation’s intended purpose.
[Citation.] We consider the ordinary meaning of the relevant
terms, related provisions, terms used in other parts of the
statute, and the structure of the statutory scheme.” (McHugh, at
p. 227; accord, Jarman, at p. 381 [“‘We do not examine that
language in isolation, but in the context of the statutory
framework as a whole in order to determine its scope and purpose
and to harmonize the various parts of the enactment.’”].) “If the
relevant statutory language is ambiguous, we look to appropriate
extrinsic sources, including the legislative history, for further
insights.” (McHugh, at p. 227; accord, Skidgel v. California
Unemployment Ins. Appeals Bd. (2021) 12 Cal.5th 1, 14 [where
the statutory language supports more than one reasonable
construction, the court “may look to extrinsic aids, including the
ostensible objects to be achieved and the legislative history”].)
We disagree with our colleagues in Caparaz that the
language “nor shall the execution or imposition of sentence be
58
suspended,” as used in section 667.61, subdivision (h), precludes
a trial court from exercising its discretion under amended
section 654 to stay a sentence imposed under the one strike law.
In interpreting the suspension of a sentence to include a stay, the
Caparaz court relied on the language in People v. Santana (1986)
182 Cal.App.3d 185, 190 defining a “stay” of a sentencing
enhancement as “a temporary suspension of a procedure in a case
until the happening of a defined contingency.” (Caparaz, supra,
80 Cal.App.5th at p. 689.) And it is true that a stay under section
654 has the effect of suspending a sentence until a specific
contingency, that is, until the sentence imposed on another count
is served. (See People v. Beamon (1973) 8 Cal.3d 625, 640
[holding under section 654 that “‘execution of sentence for Count
1 [must] be stayed pending the finality of this judgment and
service of sentence as to Count 2, such stay is to become
permanent when service of sentence as to Count 2 is
completed’”].) However, it does not follow that the Legislature’s
use of the precise language “nor shall execution or imposition of
sentence be suspended” in section 667.61, subdivision (h), was
intended to bar a stay of a sentence under section 654, which
uses different language and serves a separate purpose.
As discussed, the Caparaz court based its conclusion in
part on its view that limiting application of section 667.61,
subdivision (h), to prohibit only probationary sentences for one-
strike offenders would render superfluous the language
specifying “nor shall the execution or imposition of sentence be
suspended.” (Caparaz, supra, 80 Cal.App.5th at p. 689.) It does
not. To the contrary, this terminology is unique to a grant of
probation. In People v. Howard (1997) 16 Cal.4th 1081, 1087, the
Supreme Court explained “the important distinction, in probation
59
cases, between orders suspending imposition of sentence and
orders suspending execution of previously imposed sentences.” If
a trial court suspends “imposition of sentence before placing
defendant on probation, the court unquestionably would have had
full sentencing discretion on revoking probation. When the trial
court suspends imposition of sentence, no judgment is then
pending against the probationer, who is subject only to the terms
and conditions of the probation.” (Ibid.) If a trial court sentences
a defendant but suspends “execution of that sentence during the
probationary period,” then “‘revocation of the suspension of
execution of the judgment brings the former judgment into full
force and effect.’” (Ibid; accord, People v. Segura (2008)
44 Cal.4th 921, 932 [“A trial court grants probation by
suspending the imposition of a sentence or imposing a sentence
and suspending its execution. [Citation.] During the period of
probation, the court may revoke, modify, or change its order
suspending imposition or execution of the sentence, as warranted
by the defendant’s conduct. (§§ 1203.2, 1203.3.)”].)
The legislative history of the one strike law likewise shows
the intent of the Legislature in enacting section 667.61,
subdivision (h), was to prohibit trial courts from placing one-
strike offenders on probation, not to extend the section’s reach to
bar other forms of suspended sentences. The Legislature enacted
the one strike law in 1994 by the passage of Senate Bill No. 26X
(1993-1994 1st Ex. Sess.) (Stats. 1994, 1st Ex. Sess. 1993, ch. 14,
§ 1, p. 8570) (Senate Bill 26X), which added former
section 667.61. (See People v. Acosta (2002) 29 Cal.4th 105, 120.)
The one strike law “sets forth an alternative and harsher
sentencing scheme for certain sex crimes” and applies where, as
here, the current offense was committed under one or more
60
specified circumstances set forth in section 667.61. 17 (People v.
Anderson (2009) 47 Cal.4th 92, 107-108.) As the Senate
Committee on Judiciary’s Bill Analysis explained with respect to
Senate Bill 26X, “The purpose of this bill is to increase the
punishment for forcible sex offenses.” (Sen. Com. on Judiciary,
3d reading Analysis of Sen. Bill No. 26X (1993–1994 Reg. Sess.)
as amended August 26, 1994.) This purpose stands in contrast to
that of section 654, which prohibits punishment for two crimes
arising from a single, indivisible course of conduct. As the
Supreme Court observed in People v. Latimer (1993)
5 Cal.4th 1203, 1211, “We have often said that the purpose of
section 654 ‘is to ensure that a defendant’s punishment will be
commensurate with his culpability.’” (Accord, People v. Hicks
(2017) 17 Cal.App.5th 496, 513-514 [“The purpose of section 654
is to ensure that a defendant’s punishment is commensurate with
his culpability and that he is not punished more than once for
what is essentially one criminal act.”].)
In addition, as the Senate Committee on Judiciary’s
analysis of Senate Bill 26X made clear, one purpose of the bill
was to add more sex offenses to the list of sex offenses ineligible
for probation. (Sen. Com. on Judiciary, Analysis of Sen. Bill
No. 26X (1993-1994 Reg. Sess.) as amended May 4, 1994, p. 7.)
The committee analysis explained, “Existing law prohibits
probation for a person who is convicted of lewd conduct with a
child or continuous sexual abuse of a child and with a previous
conviction for rape, committing a forcible sex act in concert, [and
other specified sex crimes]. This bill would add to that
17 Similar to current section 667.61, subdivision (c), the 1994
version included as covered sex offenses forcible rape and forcible
oral copulation. (§ 667.61, former subds. (c)(1) & (c)(6).)
61
list . . . convictions for spousal rape, inducing the commission of a
sexual act through false representation creating fear, and all
forms of sodomy or oral copulation, whether or not by force.”
(Ibid., italics added.) By contrast, the bill analysis contains no
discussion of whether sentences for sex offenders may be stayed
under section 654 where there is an indivisible course of conduct.
Our interpretation of section 667.61, subdivision (h), is also
consistent with the Legislature’s 1994 amendment in Senate
Bill 26X of section 1203.066, which, with limited exceptions,
prohibits a grant of probation to individuals convicted of lewd or
lascivious acts on a child (§ 288) and continuous sexual abuse of a
child (§ 288.5). Senate Bill 26X, amended section 1203.066,
subdivision (a), to provide, “Notwithstanding Section 1203[18] or
any other law, probation shall not be granted to, nor shall the
execution or imposition of sentence be suspended for, nor shall a
finding bringing the defendant within the provisions of this
section be stricken pursuant to Section 1385 for” any person
convicted of violations of section 288 or 288.5. (Stats. 1994,1st
Ex. Sess. 1993, Ch. 14, § 3, p. 8573, italics added.) The legislative
history clarified that the “any other law” language added by
Senate Bill 26X, which modified the phrases “probation shall not
be granted” and “nor shall the execution or imposition of sentence
be suspended,” was included to ensure probation would not be
granted to specified sex offenders regardless of what other laws
provided. The Senate Committee on Judiciary analysis of Senate
Bill 26X explained as to the amendment, “This bill would specify
that the prohibition on granting probation takes precedence over
[18] Section 1203, among other things, sets forth the
circumstances under which a defendant may be placed on
probation.
62
any other law or exception.” (Sen. Com. On Judiciary, Analysis of
Sen. Bill No. 26X (1993-1994 Reg. Sess.) as amended May 4,
1994, pp. 6-7.) As with section 667.61, nothing in the legislative
history reflects an intent in amending section 1203.066,
subdivision (a), to prohibit application of section 654 to sentences
imposed under that section.
In 2006, the Legislature amended the one strike law to
conform it with the language added by Senate Bill 26X in 1994 to
section 1203.066, subdivision (a). Senate Bill No. 1128 (2005-
2006 Reg. Sess.) amended section 667.61, subdivision (h), by
adding the prefatory language found in the current section,
“Notwithstanding any other provision of law.” 19 (Stats. 2006,
Ch. 337, § 33, p. 2641.) In light of this amendment of
section 667.61, subdivision (h), to track the language of
section 1203.066, subdivision (a), it is reasonable to read the 2006
amendment to section 667.61, subdivision (h), consistent with
the 1994 legislative history of section 1203.066, subdivision (a).
Thus, both sections now prohibit a trial court from granting
probation to specified sex offenders—but not from staying the
sentence under section 654—regardless of what any other law
might provide.
We therefore conclude section 667.61, subdivision (h), does
not divest the trial court of discretion under section 654 to stay a
sentence imposed under the one strike law. Because the
19 The 1994 version of section 667.61, former subdivision (h),
provided, “Probation shall not be granted, nor shall the execution
or imposition of sentence be suspended for, any person who is
subject to punishment under this section for any offense specified
in paragraphs (1) to (6), inclusive of subdivision (c).” (Stats. 1994,
1st Ex. Sess. 1993, ch. 14, § 1, p. 8570.)
63
ameliorative changes to section 654 enacted by Senate Bill 518
apply, on remand the trial court must exercise its discretion in
resentencing Govan under amended section 654. 20
H. The Trial Court Must Correct Govan’s Custody Credit
Govan contends, the People concede, and we agree the trial
court erred in awarding Govan 1,008 days of presentence custody
credit instead of 1,020 days. (People v. Fuentes (2022)
78 Cal.App.5th 670, 681 [“A defendant is entitled to credit for all
days in presentence custody including the day of arrest and the
day of sentencing.”]; People v. Dearborne (2019)
34 Cal.App.5th 250, 267; see § 2900.5, subd. (a) [“In all felony and
misdemeanor convictions, either by plea or by verdict, when the
defendant has been in custody, including, but not limited to, any
time spent in a jail, . . . all days of custody of the
defendant . . . shall be credited upon his or her term of
imprisonment.”].) On remand, the court must award Govan
presentence custody credit to reflect the actual days of custody
from his arrest on January 24, 2019 up to and including his
sentencing on November 8, 2021. (People v. Jinkins (2020)
58 Cal.App.5th 707, 712 [“‘Courts may correct computational and
clerical errors at any time.’”]; People v. Torres (2020)
44 Cal.App.5th 1081, 1085 [same].)
Govan also argues he is entitled to two additional days of
presentence conduct credit because 15 percent of 1,020 days is
20 We recognize the trial court is unlikely to impose the false
imprisonment sentences and impose and stay the one-strike
sentences for either forcible oral copulation or forcible rape of
Soraya, Kenyetta, and Markita, but the court has discretion to do
so under amended section 654.
64
153 days, but the trial court only awarded him 151 days. On
March 24, 2023 we invited the parties to submit letter briefs
addressing whether under section 667.61 Govan is entitled to any
conduct credit. 21 He is not. We agree with the People that Govan
is not entitled to any conduct credit because he was sentenced on
counts 2, 3, 8, 9, 12, and 16 under the one strike law (§ 667.61).
We find persuasive the reasoning in People v. Adams (2018)
28 Cal.App.5th 170, 182: “Section 667.61 was amended in 2006
. . . to eliminate the existing section 667.61, subdivision (j) and
any reference to presentence conduct credits. (Stats. 2006,
ch. 337, § 33, pp. 2639, 2641.) It is uncertain on its face whether
the amendment was intended to eliminate presentence conduct
credit for defendants sentenced under section 667.61, or to
authorize full conduct credit under section 4019. We turn,
therefore, to the legislative history. Committee reports evidence
the Legislature’s intent to eliminate conduct credit for defendants
sentenced under section 667.61, the so-called ‘One-Strike Law.’
The Senate Committee on Public Safety’s analysis of Senate Bill
No. 1128 (2005-2006 Reg. Sess.) unambiguously states:
‘Elimination of Sentencing Credits for One-Strike Inmates [¶]
21 We must correct an unauthorized sentence even where the
corrected sentence results in a longer term. (People v. Serrato
(1973) 9 Cal.3d 753, 764 [an unauthorized sentence “is subject to
being set aside judicially and is no bar to the imposition of a
proper judgment thereafter, even though it is more severe than
the original unauthorized pronouncement”], disapproved on
another ground in People v. Fosselman (1983) 33 Cal.3d 572, 583,
fn. 1; People v. Vizcarra (2015) 236 Cal.App.4th 422, 432, 438
[affirming seven-year increase in sentence on remand because
initial sentence was unauthorized].)
65
Existing law provides that a defendant sentenced to a term of
imprisonment of either 15 years to life or 25 years to life under
the provisions of the “one-strike” sentencing scheme shall not
have his or her sentence reduced by more than 15% by good-
time/work-time credits. [Citation.] [¶] This bill eliminates
conduct/work credits for inmates sentenced under the one-strike
law.’ (Sen. Com. on Public Safety, Analysis of Sen. Bill No. 1128
(2005-2006 Reg. Sess.) as amended Mar. 7, 2006, p. N,
underscoring omitted; accord, id. at p. W [‘This bill eliminates
sentencing credits that under existing law can reduce a
defendant’s minimum term by up to 15%’ (underscoring
omitted)]; Sen. Rules Com., Off. of Sen. Floor Analyses, 3d
reading analysis of Sen. Bill No. 1128 (2005–2006 Reg. Sess.) as
amended May 26, 2006, pp. 8-9 [Sen. Bill No. 1128 eliminates
eligibility ‘for credit to reduce the minimum term imposed’]; Sen.
Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of
Sen. Bill No. 1128 (2005-2006 Reg. Sess.) as amended May 30,
2006, p. 9 [same].)’” (Accord, People v. Dearborne, supra,
34 Cal.App.5th at pp. 267-268.) 22
22 Govan argues in his supplemental letter brief that although
two staff reports state the 2006 amendment to section 667.61 was
intended to eliminate conduct credit for one-strike offenders, the
legislative intent was ambiguous because other committee
reports were silent on this issue. We disagree with Govan’s
assertion that silence in a committee report creates an ambiguity
as to what the Legislature intended notwithstanding a clear
expression of intent in other committee reports. To the contrary,
we agree with the Adams court that the reports that discuss the
deletion of former section 667.61, subdivision (j), make clear the
purpose was to eliminate conduct credit so that defendants were
not eligible for the 15 percent conduct credit they would
66
Accordingly, we agree with our colleagues in Dearborne and
Adams that one-strike offenders sentenced to indeterminate
terms under section 667.61 are not entitled to any presentence
conduct credit. (People v. Dearborne, supra, 34 Cal.App.5th at
p. 268; People v. Adams, supra, 28 Cal.App.5th at p. 182.)
DISPOSITION
The judgment of conviction is affirmed. We vacate the
sentence and direct the trial court to resentence Govan in
accordance with sections 654 and 1170, subdivision (b), and any
other applicable ameliorative legislation. The court also must
recalculate the presentence custody credit to include the actual
time Govan spent in custody from his arrest up to and including
his sentencing but not any conduct credit.
FEUER, J.
We concur:
PERLUSS, P. J.
SEGAL, J.
otherwise receive. (People v. Adams, supra, 28 Cal.App.5th at
p. 182.)
67