People v. Torres CA2/8 ( 2024 )

Filed 2/24/24 P. v. Torres CA2/8
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B319299
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA491138)
v.
ORDER MODIFYING OPINION
ISAAC TORRES, AND DENYING PETITION FOR
REHEARING
Defendant and Appellant.
[NO CHANGE IN JUDGMENT]
BY THE COURT:
It is ordered that the opinion filed herein on January 16,
2024, be modified as follows:
On page 34 of the opinion, the Disposition paragraph is
deleted entirely and replaced with the following paragraph:
We strike the eight-year determinate terms for
counts 2, 3, and 4. We reverse the count 1 conviction
for domestic violence in violation of section 273.5, and
remand to permit the People to retry appellant on
this count if they choose. Once this charge is
resolved, the court should hold a full resentencing
hearing. We affirm the judgment in all other
respects.
There is no change in the judgment.
The petition for rehearing is denied.
____________________________________________________________
STRATTON, P. J. GRIMES, J. WILEY, J.
2
Filed 1/16/24 P. v. Torres CA2/8 (unmodified opinion)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B319299
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA491138)
v.
ISAAC TORRES,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Robert C. Vanderet, Judge. Affirmed in
part, reversed in part and remanded with directions.
Joshua L. Siegel, 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
Attorney General, Scott A. Taryle and Blythe J. Leszkay, Deputy
Attorneys General, for Plaintiff and Respondent.
_______________________
Isaac Torres appeals his convictions, following a jury trial,
of domestic battery (Pen. Code,1 § 273.5, subd. (a)), forcible rape
(§ 261, subd. (a)(2)), forcible oral copulation (§ 287, subd.
(c)(2)(A)), forcible sexual penetration (§ 289, subd. (a)(1)(A)), and
threatening a witness (§ 140, subd. (a)). The jury found true the
allegations that appellant had a prior conviction for domestic
violence (§ 273.5, subd. (f)(1)) and had kidnapped the victim for
the three sexual offenses (§ 667.61, subd. (d)(2)). The trial court
sentenced appellant to five years for the domestic battery
conviction, eight years plus 25 years to life for each of the three
sexual offenses and one year for threatening a witness, all
imposed consecutively for a total of 30 years plus 75 years to life.
Appellant appeals from the judgment of conviction,
contending the trial court erred prejudicially in admitting
evidence of uncharged acts of domestic violence pursuant to
Evidence Code section 1109 and in admitting his statement
indicating an affiliation with a Mexican drug cartel. Appellant
further contends the court erred prejudicially in failing to
instruct the jury sua sponte on assault and battery as a lesser
included offense of domestic battery. He contends these three
errors were cumulatively prejudicial.
Appellant also contends the trial court erred in sentencing
him consecutively on the three sexual offenses because there is
insufficient evidence to support the court’s finding that the
offenses were committed on separate occasions, and in failing to
submit the separate occasions to the jury for fact finding.
We agree the trial court erred in failing to instruct on the
lesser included offenses of domestic battery. We cannot find the
1 Undesignated statutory references are to the Penal Code.
2
error harmless, and so we reverse the conviction on count 1 and
remand to permit the People to retry appellant on this charge or
to accept a reduction to the lesser included offense of simple
assault or battery, whichever offense has the longer term under
the circumstances of this case. Appellant and the People agree
that the eight-year determinate terms for the sexual offenses are
unauthorized and must be stricken. We agree as well and order
them stricken. We affirm the judgment of conviction in all other
respects.
BACKGROUND
Kenia, the victim in this case, met appellant at her aunt’s
birthday party. Kenia was using drugs at the time. Appellant
gave her cocaine. The two exchanged telephone numbers.
Thereafter, they texted each other and spent time together. As
set forth in more detail in section C of the Discussion below,
Kenia gave somewhat inconsistent accounts of the relationship.
She told police she was dating appellant, but at trial she testified
that their relationship was a transactional one, in which she had
sex with appellant in exchange for drugs or money.
The last time Kenia had consensual sex with appellant was
in May 2019. Kenia contacted appellant twice after that, once in
July to ask for cocaine for her godmother and once in September
to ask for help with her boyfriend. Appellant did not respond to
either message.
On the morning of October 12, 2019, appellant called Kenia
repeatedly from a blocked number. Cell phone records showed
that appellant called Kenia 53 times that day, starting at
8:37 a.m., mostly using a blocked number. Kenia did not answer
most of the calls. When she finally answered, she told appellant
to stop calling and to leave her alone. Appellant said he was “too
3
fucked up to drive.” He offered to let Kenia use his car if she
agreed to help him by driving him to another car. She agreed to
help him, but said it would be the last time. Appellant said he
was waiting outside her house.
Kenia went outside and saw that appellant was in a gray
car which she had not seen before. Kenia got into the driver’s
seat. Appellant was drinking and had possibly used drugs.2
Kenia drove, following appellant’s directions, and told him
she did not want to see him anymore. Appellant eventually told
her to pull over and step on the brake. When she did so,
appellant started punching her in the face. He said, “I can make
you do things you don’t want to do.” Kenia tried to call 911, but
appellant took away her phone. Appellant grabbed her around
the neck and forced her toward the back of the car, into the floor
area behind the driver’s seat. Appellant applied pressure to her
neck, strangling her. According to Kenia, appellant had never
before been violent toward her.
Appellant eventually stopped strangling Kenia, got into the
driver’s seat and drove to a parking lot. There, he took cocaine
and began stroking her knee. Kenia asked him to take her home.
Appellant began driving again. He drove to the bottom level of
an underground parking garage of a building where he used to
work. It was empty at that level. There, as set forth in more
detail in section D of the Discussion below, he forcibly orally
copulated her, forced her to insert a foreign object into her vagina
and forcibly raped her.
2 Kenia initially asked her sister to come with her, but
appellant objected when Kenia’s sister got into the back seat of
the car, and so she left.
4
After appellant completed the sexual offenses, he seemed
calmer. He told Kenia he would return her phone to her and take
her home. Appellant was unable to find the phone in the car. He
retraced the route they had taken and found the phone in the
street in front of the restaurant where Kenia worked.
Kenia ran into the restaurant and called her mother and
told her what had happened. Her mother called an Uber for her.
Kenia also called her aunt, who was a friend of appellant, and
told her what had happened. Her aunt told her to go to the
police.
Kenia went home in the Uber, then to the police station
with her cousin. At the police station, she made a report.
Los Angeles Police Department (LAPD) Officers Daniel
Battles and William Thomas noticed that Kenia’s nose was
swollen and she had a bruise on her neck. She looked like she
had been crying. After interviewing Kenia for about an hour, the
officers took her to the Santa Monica Hospital Rape Treatment
Center.
The Sexual Assault Response Team (SART) nurses
examined Kenia and took photographs. Their report showed a
bruise on Kenia’s leg, bruising to her eyes, and an abrasion on
her neck. The latter two injuries were consistent with
strangulation. The eye bruising was also consistent with being
punched in the nose. Kenia told the nurses the last time she had
consensual sex was with her boyfriend three days earlier.
Samples taken during the SART exam were analyzed.
Appellant contributed all of the male DNA on Kenia’s cervical
swab, external genital swab, mons pubis swab, and perianal
swab, and 98 percent of the male DNA on her vaginal swab.
DNA was also found on a swab from Kenia’s neck; appellant
5
contributed 11 percent of that DNA, while Kenia contributed
86 percent.
Appellant’s former girlfriend, Carissa Hayden, testified
that on October 12, 2019 (the same day as the assault on Kenia),
she and appellant drove her mother’s car, a gray Honda, to visit
some of Carissa’s family members in Mentone in San Bernardino
County, arriving at 9:00 or 10:00 a.m. Appellant then left, saying
he was going to pick up some money and meet someone to buy
cocaine. Cell phone records show appellant’s phone was moving
from San Bernardino toward Los Angeles at 9:11 a.m. According
to Carissa, appellant was gone a long time, at least four to five
hours.3 Carissa became angry and called and texted him
numerous times. Cell phone records show she called him
146 times; most calls went unanswered. When appellant
returned, Carissa discovered the gas tank, which previously had
enough gas to get them home, was now empty. Appellant did not
have the drugs he said he was going to pick up.
Location data showed appellant’s phone at Kenia’s house
the morning of October 12, 2019 and at each of the three
locations she described driving to that morning. Kenia’s phone
was in the same place as appellant’s phone, with the exception of
the underground garage, until 11:15 a.m. The phones diverged at
that point. Appellant’s phone moved toward San Bernardino.
Kenia’s phone went to her home and the police station.
3 At the preliminary hearing, Carissa had testified appellant
was with her all day in Mentone. At trial, she explained she lied
because she was afraid of appellant and the people he knew.
Appellant told her people were going by her house and it would
be in her best interest to say they were together. Appellant had
once grabbed her arm and hurt her shoulder.
6
LAPD had difficulty locating appellant after his attack on
Kenia. Detectives suggested she message appellant’s cell phone.
When appellant responded, he was angry that Kenia had sent
police to his house. Appellant threatened Kenia, as detailed in
section B of the Discussion below. One of the threats was a
statement that he was going to talk to “Jay from Sinaloa.”
The parties stipulated that appellant had suffered a prior
misdemeanor conviction for domestic violence; the prosecutor
offered the details of his attack on the victim pursuant to
Evidence Code section 1109 to prove appellant’s propensity for
such violence. The victim, Jazmina Soto, testified she lived with
appellant for about four years. Their relationship was a difficult
one and he once choked her. In September 2014, she moved out
while he was at work, and ended the relationship.
In October 2014, appellant showed up unannounced at
Jazmina’s new home, and knocked on her bedroom window. She
told him to go away. He tried to enter the house through the
window but was unsuccessful and appeared to leave. Jazmina
went back to bed, but a few minutes later, she heard the kitchen
window open. She looked out and saw appellant half way
through the window. Jazmina ran out of the house, called her
mother, then 911, as appellant chased her. Appellant caught her
by the hair, threw her to the ground, kicked her in the ribs and
said, “You fucking bitch. Nobody tells me no.”
Jazmina’s mother arrived at the scene. Appellant dragged
Jazmina by her hair for a few feet. He then took her phone and
left. Jazmina obtained a restraining order, which appellant
repeatedly violated by coming to her home. Appellant was
convicted in May 2016 of misdemeanor domestic battery.
7
Appellant testified on his own behalf at trial. He admitted
that things sometimes became “physical” when he and Jazmina
disagreed. He denied climbing through the window into her
house, pulling her to the ground or kicking her. He pled no
contest to the misdemeanor because he did not want to miss
work.
Appellant denied ever selling drugs and claimed he had
only used cocaine once. He made money by gambling. He did not
own a gun.
Appellant and Kenia’s aunt were friends; he met Kenia at
her aunt’s birthday party. He was 34 years old and Kenia was
about 18 years old. She asked him for a ride and he gave her one.
She asked him for his phone number, hoping he could help her
with her brother, who was “following bad footsteps.” Kenia
texted him a few days later and they met up. She often asked
him for rides and money, which he gave her. He helped her get
marijuana.
They began having sex a few months later, in a park, at
Kenia’s instigation. Thereafter, Kenia contacted him when she
needed something. They would sometimes have sex.
Appellant testified he saw Kenia three times in the week
before October 12, 2019. On October 7, Kenia asked him to drive
her and her aunt to a cleaning job in West Los Angeles, and he
did so.4 On October 9, Kenia asked appellant to pick her up from
school because her boyfriend had hit her. Appellant picked her
4 Data from appellant’s cell phone showed calls between
Kenia and appellant and movement of their phones together to
West Los Angeles, but on October 9, not October 7.
8
up and they went to a motel and had sex. Kenia’s neck was red
from being hit by her boyfriend.
On October 11, 2019, appellant picked Kenia up and they
had sex in the back of his car. He did not wear a condom. When
appellant took Kenia to her home, her boyfriend was there, and
he and appellant got into a physical fight. Kenia tried to
intervene and her nose was broken.
That night, appellant went out and left his phone in a
friend’s car. The next morning, on October 12, 2019, appellant
went with Carissa to Mentone. They went to a bar and then to
her father’s house. Appellant used Carissa’s phone to call his
phone many times, hoping that someone would answer it.
Around 3 p.m., appellant drove to Covina to get money and then
returned to Mentone. He did not see Kenia that day. Appellant
gave conflicting testimony about whether he spoke to Kenia on
the telephone.
In rebuttal, the prosecution offered the expert testimony of
LAPD Detective Lyman Doster that several text messages on
appellant’s phone were indicative of drug sales. Two of the
messages referred to Sinaloa: “Cartelly. My family is Sinaloa”
and “I have my regular Sinaloa shit.” Detective Doster testified
there is a drug cartel in Sinaloa.
DISCUSSION
A. The Trial Court Properly Admitted Evidence of Appellant’s
Prior Incident of Domestic Violence.
Appellant was charged with one count of domestic battery
violence for his attack on Kenia near the beginning of the drive.
He contends the trial court abused its discretion in admitting
evidence of a past act of domestic violence against a former
9
girlfriend, Jazmina, which resulted in a misdemeanor conviction.
Appellant acknowledges that Evidence Code section 1109 permits
the admission of past acts of domestic violence. He contends the
evidence was nevertheless inadmissible under Evidence Code
section 352, because the evidence had a “severe” risk of causing
undue prejudice and confusion, which substantially outweighed
the minimal probative value of the cumulative evidence. He
contends the erroneous admission of the evidence violated his
state and federal right to due process.
In a criminal action “in which the defendant is accused of
an offense involving domestic violence, evidence of the
defendant’s commission of other domestic violence is not made
inadmissible by [Evidence Code] [s]ection 1101 if the evidence is
not inadmissible pursuant to [Evidence Code] section 352.”
(§ 1109, subd. (a)(1).) Thus, other acts of domestic evidence are
admitted to show the defendant’s propensity to commit such
crimes. (People v. Brown (2011) 192 Cal.App.4th 1222, 1232–
1233.)
Evidence Code section 352 requires the court to determine
whether the probative value of the evidence 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.) We review a trial
court’s ruling under [Evidence Code] section 352 for an abuse of
discretion. (People v. Mani (2022) 74 Cal.App.5th 343, 358.)
Appellant complains of the brevity of the trial court’s ruling
on the evidence, specifically the court’s failure to expressly
address the relevant Evidence Code section 352 factors. It is well
settled that the trial court “ ‘need not expressly weigh prejudice
10
against probative value or even expressly state that it has done
so, if the record as a whole shows the court was aware of and
performed its balancing functions under Evidence Code section
352.’ ” (People v. Rivera (2019) 7 Cal.5th 306, 344.)
The record shows such awareness by the trial court. The
prosecutor filed two briefs on the admissibility of the evidence.
These briefs discussed both Evidence Code sections 1109 and 352,
and specifically applied the Evidence Code section 352 factors to
the facts of this case. Both appellant and his attorney were able
to raise objections to the admission of the evidence at three
different hearings. Appellant, when in pro per, objected that the
evidence was not relevant. Later, his counsel objected that the
prejudicial impact of the evidence significantly outweighed its
probative value and would require a mini-trial and undue
consumption of time. Subsequently, counsel also argued that the
prior incidents were nothing like the incident in this case, due to
the sexual assaults.
Substantively, appellant contends the Jazmina incident
had minimal probative value because it was not similar to the
charged incident. Specifically, appellant claims the Jazmina
incident did not involve allegations of sexual offenses as did the
charged incident. The Jazmina incident also included a claim
that appellant violated a restraining order and broke into
Jazmina’s home but the charged incident did not.
Although appellant’s entire course of conduct included
sexual assaults on Kenia, the battery which was the basis of the
domestic violence charge occurred first and in a separate location
from the sexual offenses and was charged separately. The jury
was instructed that the domestic violence against Jazmina could
only be considered in deciding the domestic violence charge.
11
We reject appellant’s argument that Evidence Code section
1109 evidence can only be introduced where only domestic
violence is at issue and there are no other charges alleging sexual
criminal conduct. There is no such restriction in that section.
Because use of the prior incident was limited to the
domestic violence offense, the appropriate comparison to
determine probative value is between appellant’s initial conduct
in this case and his prior act of domestic violence against
Jazmina. Appellant is correct that even with this narrower view,
the two incidents are not identical. But, as the People point out,
there are significant similarities. In both cases, the victim was
an ex-girlfriend, and appellant showed up at the victim’s house
unannounced. In both cases, when the victim told appellant that
she wanted him to leave her alone, appellant physically assaulted
her. He told both victims, in essence, that he would not take no
for an answer. More specifically, when Jazmina told appellant to
go away, he broke into her house. When she fled, he caught her,
kicked her and dragged her along the ground. He said, “Nobody
tells me no.” When Kenia told appellant that she did not want to
see him anymore and wanted him to leave her alone, he told her
to pull over and then started punching her. He told her, “I can
make you do things you don’t want to do.” Then he started
choking her. Given these similarities, we find the probative value
of the prior incident to be strong.
Turning to the factors which weigh against the
admissibility of probative evidence, appellant contends Jazmina’s
testimony was completely unnecessary to the prosecution’s case,
which depended on whether the jury believed Kenia’s testimony
or not. We fail to see the logic of this argument.
12
As the jury was correctly instructed in this case, in evaluating
the credibility of a witness, the jury could consider anything that
reasonably tends to prove or disprove the truth of the witness’s
testimony, including how reasonable that testimony is “when you
consider all the other evidence in the case” and whether “other
evidence [in the case] prove[d] or disprove[d] any fact about
which the witness testified.” Jazmina’s testimony that appellant
committed a prior act of domestic violence could show that he was
disposed to commit domestic violence and likely to commit the
charged act of domestic violence. This would certainly support
Kenia’s testimony.5
Appellant also contends Jazmina’s testimony was
cumulative because the prosecutor could simply have introduced
appellant’s record of conviction to prove the prior conviction
allegation attached to the current domestic battery charge. That
argument might have some force if the only reason to introduce
Jazmina’s testimony was for this purpose, but it was not.
Appellant next contends Jazmina’s testimony had a severe
risk of undue prejudice. Because the prior incident was more
inflammatory than the current conduct, the jury might seek to
5 To the extent appellant contends that Jazmina’s testimony
was cumulative on the issue of Kenia’s credibility, appellant has
failed to provide factual argument or record cites to support such
an argument. In appellant’s cited case of People v. Mincey (1992)
2 Cal.4th 408, the Court found the challenged evidence about the
defendant’s girlfriend’s behavior, proffered as third-party
culpability evidence, to be cumulative because four other
separate pieces of evidence directly supported that challenged
behavior. (Id. at pp. 439–440.) Appellant has not cited any such
additional evidence concerning Kenia’s testimony about the
domestic violence.
13
punish him for his prior conduct, and the evidence of the prior
conduct was stronger and bolstered the comparatively weaker
current case.
Evidence is unduly prejudicial “ ‘ “when it is of such nature
as to inflame the emotions of the jury, motivating them to use the
information, not to logically evaluate the point upon which it is
relevant, but to reward or punish one side because of the jurors’
emotional reaction. In such a circumstance, the evidence is
unduly prejudicial because of the substantial likelihood the jury
will use it for an illegitimate purpose.” ’ ” (People v. Megown
(2018) 28 Cal.App.5th 157, 164.)
Appellant contends Jazmina’s testimony was more
inflammatory than the charged act because it involved claims
that appellant broke into Jazmina’s house and violated a
restraining order. We cannot agree.
Appellant’s attack on Jazmina was short and so involved
less physical violence. Once Jazmina’s mother arrived, appellant
left. His attack on Kenia lasted longer and resulted in more
severe injuries. When appellant stopped choking Kenia, she
remained imprisoned in his car and at his mercy. Further, in
terms of undue prejudice, we do compare the totality of
appellant’s behavior with Jazmina to the totality of his attacks on
Kenia, and his attacks on Kenia involved sexual assaults as well
as the initial physical assault. In this context, his prior conduct
with Jazmina is significantly less inflammatory than the charged
offenses.
Appellant also contends that because his attack on Jazmina
was punished as a misdemeanor, the jury might be tempted to
convict him of the charged offense as a way of punishing him for
his uncharged acts of breaking into Jazmina’s house and
14
violating a restraining order. Appellant is simply speculating
that a jury would believe a misdemeanor conviction was not
punishment enough. Generally, a conviction for the prior conduct
reduces the prejudicial potential of the conduct underlying the
conviction. (People v. Jones (2011) 51 Cal.4th 346, 371–372.)
Appellant’s argument that this case is an exception to the general
rule is based in large part on his claim that the prior conduct was
more inflammatory than the conduct in this case. We have
rejected that argument and so necessarily reject the conclusion
based on it as well.
Appellant contends evidence of the prior incident was
stronger because appellant pled no contest to it, and so it was
deemed conclusively proven, while in this case appellant denied
the charged conduct, making the present case relatively weaker.
(See People v. Jandres (2014) 226 Cal.App.4th 340, 356.)
Appellant denied kicking or pulling Jazmina to the ground, as
well.6 Further, appellant’s testimony concerning the events of
October 12, 2019 was contradicted by Carissa, and his claim that
his cell phone was in a friend’s car (and just happened to be in
the places described by Kenia) was not particularly credible.
Thus, we do not view the evidence of the prior incident with
Jazmina stronger than the evidence in this case.
Appellant next contends Jazmina’s testimony was likely to
confuse the jury because he disputed the specifics of what
happened during his battery of Jazmina, and a mini-trial on this
collateral topic was required. He again contends the jury’s main
6 Appellant testified that he pled no contest to a
misdemeanor arising from the October 19, 2014 incident because
he had a good job that he did not want to lose by going to court a
lot.
15
inquiry was Kenia’s credibility. This is simply a rehash of prior
arguments.
The prior incident did have a bearing on Kenia’s credibility,
as we have just discussed. Similarities between the prior
incident and the charged incident increase the probative value of
the prior incident, as appellant has acknowledged, and so the
details of the prior incident were relevant to the prior incident’s
admission under Evidence Code section 1109.
Appellant also contends the lower standard of proof for the
prior incident created a risk of confusion, as did the limitation of
using the prior incident only for the domestic violence charge and
not the sexual offense charges. The jury learned of the different
standards of proof via CALCRIM 852A.
In considering substantially similar language in an
instruction explaining the admission of prior sexual offenses
under Evidence Code section 1108, the California Supreme Court
stated, “We do not find it reasonably likely a jury could interpret
the instructions to authorize conviction of the charged offenses
based on a lowered standard of proof.” (People v. Reliford (2003)
29 Cal.4th 1007, 1016; People v. Johnson (2008) 164 Cal.App.4th
731, 738–739 [rejecting argument that Evidence Code section
1108 instruction confuses and misleads the jury about the burden
of proof].) Appellant provides no basis to distinguish the
instruction in this case for Evidence Code section 1109 from the
instruction for Evidence Code section 1108.
As for confusion about the use of the prior incident, the
limiting language of the instruction is clear, and this limitation
makes logical sense. Having once engaged in a specific type of
conduct, a person may be more likely to repeat that specific
conduct again. There is no logical reason to think such past
16
conduct makes it more likely that a person will engage in a new
and different type of conduct. In addition, as respondent points
out, the placement of the limiting instruction reinforces the
limited use of the prior incident. The instruction on the current
domestic violence charge was given first, then the prior conviction
allegation for that count, then CALCRIM 852A on the prior
incident. Only after that were instructions on the other offenses
given.
In sum, we find the evidence of the Jazmina incident to
have strong probative value, with no potential for undue
prejudice. It was not likely to cause confusion and did not result
in undue consumption of time. Thus, there was no abuse of
discretion in admitting the evidence. Because we find no error in
the admission of the evidence, there was no violation of
appellant’s due process rights.
B. The Trial Court Properly Admitted Appellant’s Statement
Indicating Affiliation with a Drug Cartel and Related
Explanatory Evidence.
Appellant contends the trial court abused its discretion in
admitting evidence that appellant was affiliated with a Mexican
drug cartel because its probative value was minimal and was far
outweighed by its severe risk of causing undue prejudice and
confusion. He further contends the erroneous admission of this
evidence violated his federal constitutional due process rights.
The evidence of appellant’s affiliation with a cartel was
raised by appellant himself, in a statement threatening Kenia for
contacting the police. He initially told her he was going to speak
with Jay from Sinaloa, and Jay was his “homie that [was] in
charge.” As the result of this statement, appellant was charged
with violating section 140, subdivision (a), which prohibits using
17
“force or threaten[ing] to use force or violence upon the person of
a witness to, or a victim of, a crime or any other person, or to
take, damage, or destroy any property of any witness, victim, or
any other person, because the witness, victim, or other person
has provided any assistance or information to a law enforcement
officer, or to a public prosecutor in a criminal proceeding.” (§ 140,
subd. (a).)
The statute penalizes “only ‘those threatening statements
that a reasonable listener would understand, in light of the
context and surrounding circumstances, to constitute a true
threat, namely, “a serious expression of an intent to commit an
act of unlawful violence.” ’ ” (People v. Pineda (2022) 13 Cal.5th
186, 248.)
Even when a gang enhancement is not charged, gang
evidence may be relevant to the charged offense, and admissible
so long as it is not more prejudicial than probative and is not
cumulative. (People v. Albarran (2007) 149 Cal.App.4th
214, 223.) Thus, evidence of gang membership can help prove the
means of “applying force or fear.” (People v. Hernandez (2004)
33 Cal.4th 1040, 1049.) More specifically, a reference to knowing
gang members can reasonably be understood as a threat of
violence. (See People v. Mendoza (1997) 59 Cal.App.4th
1333, 1341 [defendant told witness he was going to talk to his
fellow gang members, and witness became fearful for her life
because she knew they were capable of violence and would not
hesitate to retaliate against her].)
Any reference to gang affiliation carries some potential for
undue prejudice, but there was no information here which
increased that potential. There was, for example, no evidence of
the activities of the drug cartel in Sinaloa, apart from drug sales.
18
There was ample other evidence from Kenia and Carissa that
appellant himself sold drugs.
Appellant contends the Sinaloa evidence was cumulative
because Kenia testified she was already afraid of appellant before
receiving the Sinaloa message. Appellant has not cited any cases
where the charged offense involves making threats, and the court
held that one in the series of threats should be excluded because
it was too prejudicial.
Here, appellant’s threats built in intensity. He texted:
“After I saw you, [Kenia], people were mad. If I get locked up,
they gonna come for people.” As appellant points out, Kenia did
react to this threat. She testified she was scared because she
understood that this meant that her brother would be shot. No
such threat is obvious from appellant’s actual statement. Kenia
explained that her fear was based on a prior statement by
appellant that he “knows people that can . . . take care of a job
and . . . that [she] should be afraid of” those people. Without any
indication of who these people were, the evidence is not
overwhelming that this was a serious threat or that it was
reasonable for the recipient to be afraid.
The next threat was “I wouldn’t want anything to come
down on you or your family.” Kenia did not offer any testimony
about this threat, which is a broad vague statement. Again,
without more information, the evidence is not overwhelming that
this was a serious threat or that it was reasonable for the
recipient to be afraid.
Then came the third threat, in which appellant said he
would talk to “Jay from Sinaloa.” Kenia testified she became
scared when she heard this, because Sinaloa is “cartel.” On
redirect, she testified appellant explained that Jay was “my
19
homie that is in charge.” Kenia explained this was the first time
appellant had ever mentioned the name of anyone he worked
with, and she wondered why he was doing so now. She also
explained, “I’m from Mexico, so I know how Sinaloa is and I know
there’s a bunch of cartel out there and [appellant] deals with
cocaine, so I tried to add everything up.”
Thus, the revelation that Sinaloa were the people appellant
worked with made his previous vague threats much more serious
and compelling, and made the implication of violence more
believable. We do not view this evidence as cumulative,
unnecessary, or only tangentially relevant.
We also do not view the Sinaloa reference as cumulative or
unnecessary because Kenia was already afraid of appellant
before hearing the Sinaloa reference. She knew him to be a
violent, armed drug dealer who had already physically hurt her.
Appellant’s threats explicitly indicate that someone other than
appellant will harm Kenia or her family. Put differently,
appellant is conveying that if he ends up in police custody, Kenia
will still not be safe, because someone will harm her or her family
on his behalf. The identity of those others is highly relevant.
In sum, the reference to Sinaloa was highly probative on
the section 140 charge, did not have undue prejudicial potential
and was not cumulative. The trial court did not abuse its
discretion by admitting the evidence. Since there was no error in
the admission of the evidence, there was no violation of
appellant’s federal constitutional due process rights.
C. The Trial Court Erred in Failing to Instruct the Jury on the
Lesser Included Offenses of Domestic Violence.
Appellant contends the trial court erred in failing to
instruct the jury sua sponte on the lesser included offenses of
20
domestic violence under section 273.5, specifically assault (§ 240)
and battery (§ 242), and the error was prejudicial. We agree the
trial court erred. We do not find the error harmless, and so we
reverse the conviction on this count.
As charged in this case, a violation of section 273.5,
subdivision (a), occurs when the defendant willfully inflicts a
traumatic condition on the victim, and the defendant and the
victim had one of the relationships listed in section 273.5,
subdivision (b). The relevant relationship here was a “dating”
one, which is defined as “frequent, intimate associations
primarily characterized by the expectation of affectional or sexual
involvement independent of financial considerations.” (§ 243,
subd. (f)(10).) Both simple assault and misdemeanor battery are
lesser included offenses of domestic violence in violation of
section 273.5. (People v. Gutierrez (1985) 171 Cal.App.3d
944, 952.)
“ ‘When there is substantial evidence that an element of the
charged offense is missing, but that the accused is guilty of a
lesser included offense, the court must instruct upon the lesser
included offense, and must allow the jury to return the lesser
conviction, even if not requested to do so.’ ” (People v. Huggins
(2006) 38 Cal.4th 175, 215.) “ ‘ “ ‘Substantial evidence’ in this
context is ‘ “evidence from which a jury composed of reasonable
[persons] could . . . conclude[]” ’ that the lesser offense, but not
the greater, was committed.” ’ ” (Ibid.) “In deciding whether
evidence is ‘substantial’ in this context, a court determines only
its bare legal sufficiency, not its weight.” (People v. Moye (2009)
47 Cal.4th 537, 556 (Moye).)
We independently review a trial court’s failure to instruct
on a lesser included offense. (People v. Cook (2006) 39 Cal.4th
21566, 596.) We assess the sufficiency of the evidence without
evaluating the credibility of the witnesses. (People v. Wyatt
(2012) 55 Cal.4th 694, 698.) “[W]e review the evidentiary support
for an instruction ‘in the light most favorable to the defendant’
[citation] and should resolve doubts as to the sufficiency of the
evidence to warrant instructions ‘in favor of the accused.’ ”
(People v. Wright (2015) 242 Cal.App.4th 1461, 1483.)
Appellant contends the jury could have found that Kenia’s
“intimate” relationship with him was a financial one, based on
what he characterizes as her testimony she had sexual relations
with appellant in exchange for money and drugs. We agree.
Viewing the evidence in the light most favorable to the
omitted instructions, Kenia repeatedly testified that her
relationship with appellant was a transactional one, in which she
exchanged sex for drugs or money, as set forth below. This is
substantial evidence that they were not in a dating relationship.
Put differently, this is substantial evidence that an element of
the charged offense is missing. As also set forth below, this
evidence was contradicted at times by Kenia’s own testimony, but
it was for the jury to decide what portions of Kenia’s testimony to
believe.
We review the failure to instruct on a lesser included
offense pursuant to People v. Watson (1956) 46 Cal.2d 818.
Under that standard, we consider what a reasonable “ ’jury is
likely to have done in the absence of the error under
consideration. In making that evaluation, an appellate court may
consider, among other things, whether the evidence supporting
the existing judgment is so relatively strong, and the evidence
supporting a different outcome is so comparatively weak, that
there is no reasonable probability the error of which the
22
defendant complains affected the result.’ ” (Moye, supra,47 Cal.4th at p. 556.)
The details of the relationship, as provided by Kenia, were
that she met him at her aunt’s party and wanted to buy cocaine
from him, but he just gave it to her. They exchanged phone
numbers. She called him and he gave her cocaine. She “[hung]
out with him and [became] friends with him.” At some point, the
relationship turned into a “romantic” relationship. He “hooked
[her] up” and kept saying he wanted to be with her, but she told
him she was not interested because he was pursuing other
women. She thought they were dating. He took her to parks
sometimes and they would hang out. They did not go out to
restaurants or movies or out dancing.
When asked if she had sex with appellant, she replied that
she did, because he “would tell [her] he would give [her] money if
[she] had sex with him, and he would always give [her] cocaine to
sell or to use.” She would text him that she would have sex with
him if he gave her money. She later clarified that when they
went to the parks, it was late at night to have sex in exchange for
money or drugs.
Kenia was asked if her connection with appellant was “a
mutually beneficial situation where you got money and drugs and
he got sex? Was it that or was this a, I love you, I love you, we’re
a boyfriend/girlfriend maybe one day we’ll get married
relationship?” She testified: “Simple money, drugs, and sex.”
Kenia did testify that “for a while” she thought appellant
wanted to have a relationship with her, because he said he liked
her, but then she discovered he was talking to other women. She
told him that she did not “ ‘want to pursue anything, like, further
than what we have going on already.’ ” She was then asked, “[A]t
23
that point, you no longer wanted to give him sex in exchange for
money or drugs?” and she replied, “Correct.”
Kenia also testified that after her boyfriend passed away,
appellant “kind of kept taking advantage of that” saying he
wanted to help her out or help her financially because that was
what her boyfriend had done. He told her he would take care of
her and she could live with him and his grandmother in exchange
for cleaning.
We cannot say that the evidence of a transactional
relationship is comparatively much weaker than the evidence of a
dating relationship. If anything, we would say the reverse.
Thus, we cannot say that there is no reasonable probability that
the omission of the lesser included instructions did not affect the
verdict. Accordingly, we reverse the conviction and remand to
permit respondent to retry this charge.
D. There Are No Errors to Cumulate.
Because we have found only one error, we need not and do
not consider appellant’s claim that the cumulative effect of the
trial court’s error requires reversal.
E. There Is Sufficient Evidence to Support the Trial Court’s
Findings That the Three Sex Offenses Were Committed on
Separate Occasions.
Appellant was sentenced to indeterminate terms of
25 years to life pursuant to section 667.61, subdivisions (a) and
(d)(2) on the three sex offenses. Pursuant to section 667.61,
subdivision (i), the trial court imposed the terms consecutively, as
required by the trial court’s finding that the offenses occurred on
“separate occasions” as defined in section 667.6, subdivision
(d)(2). Section 667.6, subdivision (d)(2) provides: “In determining
24
whether crimes against a single victim were committed on
separate occasions under this subdivision, the court shall
consider whether, between the commission of one sex crime and
another, the defendant had a reasonable opportunity to reflect
upon the defendant’s actions and nevertheless resumed sexually
assaultive behavior. Neither the duration of time between
crimes, nor whether or not the defendant lost or abandoned the
opportunity to attack, shall be, in and of itself, determinative on
the issue of whether the crimes in question occurred on separate
occasions.”
Appellant contends the evidence is insufficient to support
the trial court’s finding that the sexual offenses took place on
separate occasions. Appellant contends the offenses were part of
a continuous course of conduct that occurred in one location
without time to reflect between the offenses.
The trial court agreed with the prosecutor that appellant
had time to reflect because he “could [not] become erect, and as a
result he forced the victim to violate herself by using a foreign
object and also perform oral copulation until he was able to
become erect.”
“[O]nce the trial judge resolves the issue of ‘separate
occasions,’ an appellate court is ‘not at liberty to overturn the
result unless no reasonable trier of fact could decide that there
was a reasonable opportunity for reflection.’ ” (People v. Pena
(1992) 7 Cal.App.4th 1294, 1314–1315 (Pena); People v. Garza
(2003) 107 Cal.App.4th 1081, 1092 (Garza).)
We cannot find that “no reasonable trier of fact could decide
there was a reasonable opportunity for reflection” between the
sexual offenses. Put differently, a reasonable court could decide
there was an opportunity to reflect.
25
Here, Kenia testified appellant first orally copulated her
while she was in the back seat of the car. Appellant made her
take her pants off, but he was clothed. He was on top of her,
holding her legs open. At the same time, he was “grabbing
himself, getting himself hard.” Kenia believed appellant was
finding it difficult to get an erection. When he finished the oral
sex, he moved to a normal sitting position and took off his pants
and shoes. He retrieved a vibrator from somewhere, gave it to
Kenia, and told her to use it on herself. She initially said, “No,”
but he told her “Do it” and she complied. He touched himself to
get an erection. During this time period, they were not physically
touching each other. They were effectively sitting side by side.
Then, at some point, he stopped touching himself, and put his
penis in her vagina; at that point he had an erection.
Appellant contends these acts were a single continuous
period of assaultive behavior in a single location with no break or
stop and hence no opportunity to reflect before resuming. He
contends his case is similar to Pena, People v. Dearborne (2019)
34 Cal.App.5th 250 (Dearborne) and People v. Corona (1988)
206 Cal.App.3d 13 (Corona), where the courts found no
opportunity to reflect.
In both Corona and Dearborne, the description of the sexual
offenses is terse. In Corona, the defendant “removed [the
victim’s] pants and after more kissing put his finger into her
vagina. He then kissed her genitals. He then put his penis in her
vagina.” (Corona, supra, 206 Cal.App.3d at p. 15.) In Dearborne,
the opinion states only that that the defendant forcibly orally
copulated the victim, then raped her. (Dearborne, supra,34 Cal.App.5th at pp. 265–266.) The reason for the brevity is
presumably the same in both cases. In Corona, the Attorney
26
General “tacitly concede[d]” there was no evidence of an interval
between the acts allowing time for reflection. (Corona, at p. 18.)
In Dearborne, the People explicitly conceded that the evidence did
not show a significant break. (Dearborne, at pp. 265–266.) In
Pena, the evidence affirmatively showed there was no time to
reflect. As the court explained, the defendant raped the victim,
then “simply flipped the victim over and orally copulated her.”
(Pena, supra, 7 Cal.App.4th at p. 1316.)7
The evidence in this case is much more detailed, and we
find it similar to the evidence before the court in Garza. In that
case, “[a]fter the defendant forced the victim to orally copulate
him, he let go of her neck, ordered her to strip, punched her in
the eye, put his gun to her head and threatened to shoot her, and
stripped along with her” before inserting his finger into her
vagina. (Garza, supra, 107 Cal.App.4th at p. 1092) The Garza
Court found “[t]hat sequence of events afforded him ample
opportunity to reflect on his actions” between the two acts.
(Ibid.) After the defendant inserted his finger in the victim’s
vagina, he “(1) began to play with the victim’s chest; (2) put his
gun on the back seat; (3) pulled the victim’s legs around his
shoulders and, finally, (4) forced his penis inside her vagina.”
(Id. at pp. 1092–1093.) The Garza Court found that this
sequence of events also afforded the defendant had “adequate
opportunity for reflection” between the two sex acts. (Id. at
p. 1093.)
7 To the extent these cases suggest there must be a clear
break between the sexual offenses, we do not agree. There need
not be an “obvious break in a perpetrator’s behavior.” (People v.
Irvin (1996) 43 Cal.App.4th 1063, 1070.)
27
Here, appellant similarly engaged in other activities
between his sex acts. Between the first and second acts,
appellant let go of Kenia’s legs, changed his own position, took off
his pants and shoes, and retrieved the vibrator. He then had a
verbal exchange with Kenia before she began using the vibrator.
This is clearly a break in the sex acts and this series of events
gave appellant ample time to reflect before the second act began.
Once Kenia started using the vibrator, appellant sat by himself
and touched himself to get an erection, then when he had one, he
stopped self-touching and necessarily changed positions before
getting on top of and raping Kenia. This series of events,
particularly the break which occurred when appellant realized he
had an erection and stopped touching himself, gave him time to
reflect before he raped Kenia.
F. Section 667.61’s Mandatory Consecutive Sentencing
Provision Does Not Violate Appellant’s Constitutional
Rights.
In his opening brief, appellant contended that the
consecutive sentencing requirement of section 667.61, subdivision
(i), effectively raised the mandatory minimum sentence for his
crimes, and so the underlying factual question of whether the
crimes occurred on separate occasions should have been
submitted to the jury. He claimed the failure to do so violated his
federal constitutional rights to due process and a jury trial.
As the parties acknowledge in supplemental briefing, the
California Supreme Court recently considered a similar claim in
People v. Catarino (2022) 14 Cal.5th 748 (Catarino). In that case,
the defendant raised the constitutionality of section 667.6,
subdivision (d), which requires full consecutive terms upon a
finding the offenses took place on separate occasions. The People
28
contend the reasoning of the case shows appellant’s argument
has no merit. In his supplemental brief, appellant contends that
the case is distinguishable because he was sentenced to
consecutive sentences under section 667.61.
Appellant’s claim is premised on Apprendi v. New Jersey
(2000) 530 U.S. 466 (Apprendi), Blakely v. Washington (2004)
542 U.S. 296 (Blakely), and Alleyne v. United States (2013)
570 U.S. 99. Apprendi and Blakely hold that due process
requires any fact, other than a prior conviction, that increases the
maximum possible sentence must be found true by a jury.
(Apprendi, at p. 490; Blakely, at p. 303.) In Alleyne, the Court
held that this rule also applied to any fact that raises the
mandatory minimum. (Alleyne, at pp. 111–117.)
As appellant acknowledges, the United States Supreme
Court subsequently held in Oregon v. Ice (2009) 555 U.S. 160 (Ice)
that Apprendi and Blakely do not require a jury determination of
any fact which permits the imposition of consecutive sentences.
(Ice, at pp. 163–165.) The Court in Ice explained that it was
“ ‘[f]irmly rooted in common law . . . that the selection of either
concurrent or consecutive sentences rests within the discretion of
sentencing judges.’ ” (Id. at pp. 168–169.)
Appellant contends that the decision in Ice rests on the
permissive and protective nature of the sentencing scheme
involved. The sentencing provision at issue in Ice required
additional fact finding by the sentencing court in order for the
court to have the option of consecutive sentencing. Thus, as the
Ice Court noted, “the defendant—who historically may have faced
consecutive sentences by default—has been granted by some
modern legislatures statutory protections meant to temper the
29
harshness of the historical practice.” (Ice, supra, 555 U.S. at
p. 169.)
Appellant takes too narrow a view of the reasoning of Ice.
The Court certainly recognized and endorsed the notion that the
sentencing provision at issue benefited defendants, but this had
no bearing on its substantive decision. As the Court explained,
Apprendi and other opinions of the Court “make clear that the
Sixth Amendment does not countenance legislative encroachment
on the jury’s traditional domain. [Citation.] We accordingly
considered whether the finding of a particular fact was
understood as within ‘the domain of the jury . . . by those who
framed the Bill of Rights.’ [Citation.]” (Ice, supra, 555 U.S. at
p. 168.) Historical practice counsels “against extending
Apprendi’s rule to the imposition of sentences for discrete crimes.
The decision to impose sentences consecutively is not within the
jury function that ‘extends down centuries into the common law.’
[Citation.] Instead, specification of the regime for administering
multiple sentences has long been considered the prerogative of
state legislatures.” (Ibid.) “The historical record demonstrates
that the jury played no role in the decision to impose sentences
consecutively or concurrently. Rather, the choice rested
exclusively with the judge.” (Ibid.) “The historical record further
indicates that a judge’s imposition of consecutive, rather than
concurrent, sentences was the prevailing practice.” (Id. at
p. 169.) Thus, the Ice Court concluded: “In light of this history,
legislative reforms regarding the imposition of multiple sentences
do not implicate the core concerns that prompted our decision in
Apprendi. There is no encroachment here by the judge upon facts
historically found by the jury, nor any threat to the jury’s domain
as a bulwark at trial between the State and the accused.” (Ibid.)
30
States could, if they chose, impose a more detrimental
requirement than existed at the common law. As the Court
noted, “All agree that a scheme making consecutive sentences the
rule, and concurrent sentences the exception, encounters no Sixth
Amendment shoal.” (Id. at p. 162.)
The California Supreme Court has previously made it clear
that this historical analysis is the determinative analysis under
Ice. (See, e.g. People v. Mosley (2015) 60 Cal.4th 1044, 1049–1050
[The “Ice [C]ourt determined [that] Apprendi has no application
to sentencing decisions in which juries played no factfinding role
at common law.”].) This is the analysis our Supreme Court
applied in Catarino as well. The Court quoted the historical
analysis in Ice which we have set forth above. (Catarino, supra,
14 Cal.5th at p. 755.)
Appellant argues the California Supreme Court was only
approving of a scheme which made a defendant better off than he
would have been at common law. We do not believe this was a
factor at all in the Court’s analysis. As the Catarino Court
explained, “A state could, consistent with the Sixth Amendment,
require full-term consecutive sentencing in all cases.” (Catarino,
supra, 14 Cal.5th at p. 757.) This would indisputably make
defendants worse off than they were at common law.
We do agree with appellant that the Court in Catarino
found section 667.6, subdivision (d) benefitted defendants as
common law did not, but this does not assist appellant. As the
California Supreme Court emphasized, the Court in Ice found
that “judges traditionally had ‘unfettered discretion’ to decide
‘whether sentences for discrete offenses shall be served
consecutively or concurrently.’ ” (Catarino, supra, 14 Cal.5th at
p. 755, italics added.) Viewed in this light, any requirement that
31
limits judges’ discretion by requiring fact finding before imposing
consecutive sentences is beneficial to defendants. It may not
appear so to the defendant whose facts require the consecutive
sentences, but it does to the defendant whose facts do not support
consecutive sentences. Thus, “[b]y conditioning the imposition of
such consecutive sentences on ‘certain predicate factfindings’ (Ice,
[supra, 555 U.S.] at p. 164), section 667.6[, subdivision] (d) may
be understood ‘to temper the harshness’ of a historically
authorized practice. (Ice, at p. 169)” (Catarino, at p. 757.)
Appellant contends that the Court in Catarino did not
consider the mandatory nature of the consecutive sentencing
provision before it (§ 667.6, subd. (d)), while he is challenging the
mandatory nature of the consecutive sentencing provision
applicable to his sentence (§ 667.61, subd. (i)). He claims that
Catarino therefore is not binding authority in this case. We read
Catarino differently.
The Court explicitly stated in Catarino: “The question here
is whether section 667.6[, subdivision] (d), in requiring that a
sentencing court impose ‘full, separate, and consecutive term[s]’
for certain sex crimes if it finds certain facts, complies with the
Sixth Amendment. We hold that it does.” (Catarino, supra,
14 Cal.5th at p. 750, italics added.) The Court later explicitly
remarked upon the mandatory nature of section 667.6,
subdivision (d): “As noted, if Catarino had been sentenced under
the determinate sentencing law or under section
667.6[, subdivision] (c), the trial court could have imposed
concurrent sentences or partial consecutive sentences on
Catarino’s seven counts of conviction, i.e., a full term on one
principal count and partial terms on six subordinate counts.
Section 667.6[, subdivision] (d), by contrast, requires full-term
32
consecutive sentencing upon a finding that ‘the crimes involve
separate victims or involve the same victim on separate
occasions.’ Like the statutes in Ice, section 667.6[, subdivision]
(d) is a ‘specification of the regime for administering multiple
sentences,’ which ‘has long been considered the prerogative of
state legislatures.’ ” (Catarino, at p. 755, italics added.)
G. The Eight-Year Determinate Terms for the Sex Offenses
Must Be Stricken.
Appellant contends and the People agree that the
determinate terms for the three sexual offenses (counts 2, 3,
and 4) are unauthorized and should be stricken. We agree as
well.
On each of these counts, the trial court imposed the
indeterminate term of 25 years to life pursuant to section 667.61,
subdivision (a), often referred to as the One Strike law.8 The trial
court also imposed a consecutive determinate term of eight years
for each count; this is the high term for each offense. (§§ 287,
subd. (c)(2)(A) & 289, subd. (a)(1)(A).)
“Because the One Strike law constitutes a separate
sentencing scheme for offenses within its scope, punishment for
such offenses is not subject to other sentencing schemes, except
where the One Strike law so provides.” (People v. Rodriguez
(2012) 207 Cal.App.4th 204, 214.) Thus, a defendant may not be
sentenced to both an indeterminate term under section 667.61
and a determinate term for the same count. (Rodriguez, at p. 214
8 This term was based on the jury’s true finding on the
allegation that appellant kidnapped Kenia within the meaning of
section 667.61, subdivision (d)(2).
33
[court erred in imposing section 667.61 term as an enhancement
to the determinate term].)
DISPOSITION
We reverse the count 1 conviction for domestic violence in
violation of section 273.5, and remand to permit the People to
retry appellant on this count if they choose. We strike the eight-
year determinate terms for counts 2, 3, and 4. We affirm the
judgment in all other respects.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
STRATTON, P. J.
We concur:
GRIMES, J.
WILEY, J.
34