People v. Thompson CA2/4 ( 2024 )

Filed 10/24/24 P. v. Thompson CA2/4
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B332362
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA116600)
v.
DARINEL STEVEN
THOMPSON,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Daniel J. Lowenthal, Judge. Affirmed in part,
reversed in part.
Aurora Elizabeth Bewicke, 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, Senior
Assistant Attorney General, Jonathan J. Kline and Herbert S.
Tetef, Deputy Attorneys General, for Plaintiff and Respondent.
In June 2023, a jury convicted defendant and appellant
Darinel Steven Thompson of one count of raping an intoxicated
person (Pen. Code, § 261, subd. (a)(3)),1 committed while
defendant was working as an Uber driver. In this direct appeal,
defendant contends the court erred by admitting a “data points”
report tracking the location of his vehicle, a Google map prepared
by law enforcement using latitude and longitude coordinates
provided in the report, and related testimony as testimonial
hearsay. In addition, he contends the prosecutor engaged in
prejudicial misconduct by misstating the evidence in rebuttal
argument. Finally, he argues the court failed to obtain a valid
waiver of his right to a jury trial on sentencing circumstances and
engaged in improper factfinding when imposing an upper-term
sentence.
We conclude the trial court prejudicially erred in imposing
the upper-term sentence in this case. Finding no prejudicial
error in any other claim, we affirm defendant’s conviction,
reverse the upper-term sentence, and remand for resentencing.
FACTUAL BACKGROUND
A. Prosecution Evidence
1. The Charged Sexual Assault
On the evening of December 30, 2019, Michelle P. and her
friend, Alanna B., consumed several alcoholic beverages at a
Long Beach bar.2 They went to another bar to meet a friend,
1 Subsequent references to statutes are to the Penal Code.
2 For nondisclosure purposes and ease of reading, we initially
refer to witnesses by their first names and last initials before using
their first names.
2
Kelsey G., and Kelsey’s brother, Casey G. There, Michelle
consumed more alcoholic beverages—several shots and several
mixed drinks. According to Alanna and Casey, Michelle
appeared “very intoxicated” at the second bar. Michelle fell on
the floor and at times appeared unconscious. When speaking,
Michelle was incoherent.
After seeing Michelle “unconscious for a couple moments,”
Alanna helped Michelle order an Uber on her phone. Defendant,
an Uber driver, responded to Michelle’s request. When defendant
arrived, Michelle’s friends walked her to the car and placed her
inside. Michelle could not sit up by herself.
Michelle remembered little of the night in question. She
had no recollection of requesting an Uber or getting into
defendant’s car. Her only recollections were of playing billiards
at a bar and a “flash” of defendant’s face and penis. Around
3:00 a.m., Alanna received a text message from Michelle’s phone
stating, “I’m home.” Michelle did not remember sending this
message or talking on the phone after she got home. Her phone
was password protected.
The following morning, Michelle woke up naked in her bed.
She looked at her phone, noticed the Uber application was open,
and saw a photograph of defendant’s face. Michelle then realized
her Uber driver (defendant) was the man who had just raped her.
Michelle was taken to a local hospital for a sexual assault (SART)
examination.
2. The Investigation
The parties stipulated Michelle’s SART examination
revealed defendant’s DNA and semen on Michelle’s breasts, neck,
3
vulva, anus, and cervix. The SART examination also revealed
bruising to Michelle’s arms, legs, and vagina.
The parties further stipulated defendant’s cellphone had
taken several photographs of Michelle around 1:37 a.m. on
December 31, 2019. The photographs depicted Michelle
unconscious in bed. When shown the photos at trial and asked
what they depicted, Michelle replied, “Me with my head in my
pillow, like a crumpled napkin, naked.” Michelle had no memory
of defendant taking the photographs and did not give her consent
for him to do so.
Long Beach Police Department Detective Darlene Wigmore,
the investigating officer in this case, interviewed Michelle.
During the interview, Michelle stated she had little memory of
the incident and did not know how defendant got her phone
number.
3. The Prior, Uncharged Sexual Assault3
On January 20, 2018, A.S. was drinking at a Long Beach
bar with a group of people, including defendant. A.S. testified
she had consumed “quite a few margaritas” and “some shots” at
the bar. When the bar closed, the group went to defendant’s
house.
There, A.S. felt drunk and unwell. Defendant followed A.S.
around the house, which made her feel “uncomfortable” and
“weird.” Feeling worse, A.S. laid her head on a living room couch.
Defendant followed her to the couch and told her something she
could not recall.
3 The court admitted evidence of the prior uncharged incident
pursuant to Evidence Code sections 1108 and 352.
4
The next thing A.S. remembered was defendant having
intercourse with her inside a dark room. A.S. panicked right
away, pushed defendant off of her, ran out of the room, and cried
“hysterically the whole way” back to her friend’s house. A.S.
went to a hospital and underwent a SART examination.
B. Defense Evidence
1. The Charged Sexual Assault
Defendant testified at trial. He claimed the sexual
encounter with Michelle was consensual. After accepting the
Uber request, defendant drove to the bar around 11:30 p.m. and
watched as Michelle walked under her own power and got into
his car. During the ride, Michelle spoke freely and did not slur
her words.
When defendant pulled up to Michelle’s residence, he
“log[ged] off” and “end[ed] that ride” so that he could receive a
new Uber request. Michelle jumped into the front seat and asked
defendant to hang out. Noticing a new Uber order and having
“15 to 20 seconds to swipe accept,” defendant declined. Michelle
asked for defendant’s phone number and suggested they buy
alcohol from a 7-Eleven nearby. Around 12:05 a.m., defendant
turned off his Uber application and drove to the closest 7-Eleven.
He turned back after a clerk told him it was too late to purchase
alcohol.
Defendant dropped Michelle off at her apartment and drove
around her residence to find parking. After some time, defendant
parked his car and walked back to Michelle, who unlocked her
front door to allow defendant inside. Almost immediately,
Michelle kissed defendant and began orally copulating his
genitals. “A few minutes into it,” Michelle picked up a call and
5
said, “Yeah, I’m home. I’m good. I’m here alone.” Michelle hung
up the phone and pulled up her dress, and defendant inserted his
penis in her vagina. Defendant and Michelle had sex on the
living room floor before moving to her bedroom where both fell
asleep.
Around 1:30 a.m., defendant woke up and checked the time.
He took several pictures of Michelle’s body as she continued to
sleep. Defendant provided different reasons for taking the
pictures. During his testimony, defendant stated Michelle had
previously given him permission to show her bodywork to
defendant’s friend and tattoo artist. In conversations with
Detective Wigmore, however, defendant attributed the photos “to
his usual way of doing things. He sa[id] he always takes photos
of the girls he has been with before he leaves.”
Michelle woke up and the two spoke for some time. Around
2:30 a.m., Michelle and defendant got dressed and made plans for
later that day. Defendant left Michelle’s apartment and texted
her when he got home.
The parties stipulated that Officer Mark Sun, the first
responding officer in the case, would testify that Michelle initially
reported “her Uber driver followed her into her residence, and
when she woke up, he was still there. The victim was intoxicated
at the time and is not sure if a rape actually occurred.”
2. The Prior, Uncharged Sexual Assault
Defendant testified about his sexual encounter with A.S.
Defendant claimed that encounter was also consensual.
Defendant called two of his friends who were present in his home
the night of January 20, 2018, to testify in support.
6
C. Rebuttal Evidence
Detective Wigmore subpoenaed records from Uber and
received a “data points” report in response. The report provided
latitude and longitude coordinates for defendant’s vehicle from
11:50 p.m. on December 30, 2019, to 2:00 a.m. the following day.
Detective Wigmore exported the coordinates into a Google map
“to see the actual distance [defendant] traveled and the points of
indications” listed in the report. Based on the coordinates,
defendant took a relatively straight route from the bar back to
Michelle’s apartment around 12:19 a.m. The coordinates did not
reflect travel to a nearby 7-Eleven or circling around Michelle’s
apartment. Detective Wigmore acknowledged defendant’s
location might not have been recorded after his application was
turned off.
PROCEDURAL BACKGROUND
By information filed February 8, 2022, defendant was
charged with raping an intoxicated person (Michelle) on or
between December 30 and 31, 2019 (§ 261, subd. (a)(3)).4 The
information further alleged Michelle was particularly vulnerable
during the commission of the offense. (Cal. Rules of Court, rule
4.421(a)(2).)5
4 Rape is defined in relevant part as an act of sexual intercourse
with a person who is “prevented from resisting by an intoxicating or
anesthetic substance, or a controlled substance, and this condition was
known, or reasonably should have been known by the accused.” (§ 261,
subd. (a)(3).)
5 The information alleged two additional factors (Cal. Rules of
Court, rules 4.421(a)(1), 4.421(b)(1)) later abandoned at trial.
7
After instructing the jury and submitting the matter for
deliberation, the court discussed the aggravating circumstance
allegation with counsel. The court granted defendant’s motion to
bifurcate trial on the allegation and informed defendant of his
options to admit the allegation or proceed by jury or court trial.
Defense counsel informed the court defendant had “indicated he
will waive his right to a jury on the aggravating factor, if they
convict.” Asked if he would “admit to the aggravating factor that
the victim was vulnerable,” defendant replied, “Correct.”
On June 6, 2023, the jury found defendant guilty as
charged. The court sentenced defendant to the upper term of
eight years imprisonment. (See § 264, subd. (a).) When imposing
the upper-term sentence, the court found defendant’s lack of
criminal record outweighed by “the aggravating factors, how
vulnerable the victims were in this case, [and] of the position of
trust that he was in that was violated.” Defendant timely
appealed.
DISCUSSION
A. Admissibility of the Data Points Report
Defendant contends the data points report constituted
testimonial hearsay, the admission of which violated the
Evidence Code and his Sixth Amendment right of confrontation.
As a result, he contends the court erred by admitting the Google
map prepared by Detective Wigmore and her related testimony.
1. Relevant Proceedings
During the prosecution’s rebuttal case, Detective Wigmore
was asked whether the records she received from Uber
corresponded with defendant’s testimony regarding a trip with
8
Michelle to obtain alcohol. Defense counsel objected for lack of
foundation. Following an unreported sidebar conference, the
court overruled the objection, finding the Google map admissible
as a business record. The prosecutor marked the map as an
exhibit, and briefly examined Detective Wigmore before the court
adjourned trial for the day.
Outside the presence of the jury, the court granted defense
counsel’s request to conduct a voir dire examination of Detective
Wigmore. Defense counsel asked Detective Wigmore if she knew
whether Uber tracked driver locations after the Uber application
was turned off. Detective Wigmore stated she did not know.
Outside the presence of the jury the following day, defense
counsel clarified his understanding “that Uber only provided data
points, which I understand comes in as a business exception.”
Nevertheless, counsel argued Detective Wigmore was “not the
appropriate person” to interpret the data points when exporting
them into a map. The court found no such interpretation
required and admitted the data points report and map.
When Detective Wigmore’s testimony resumed, the
prosecutor attached two documents to the previously marked
map. The first document, entitled “Certificate of Authenticity of
Business Records,” was dated and signed by a custodian of
records. The certificate, made under penalty of perjury, provided
as follows:
“1. [I, the declarant,] am a duly authored
Custodian of Records for Uber Technologies, Inc.
(‘Uber’), . . . I am authorized to certify Uber’s records
of regularly conducted activity.
“2. I have reviewed the records of regularly
conducted activity produced by Uber in response to a
search warrant . . . . The attached records are
9
reasonably accessible to Uber and responsive to the
legal process.
“3. The records were prepared by Uber
personnel in the regular course of business or made
and kept by Uber’s automated systems in the regular
course of business. The records were made at or near
the time of the act, condition, or event, as a regular
practice of Uber.”
The second document, a “data points” report, was a five-
page spreadsheet with defendant’s “driver name” and numerical
entries under columns entitled, “utc timestamp,” “lat,” “lng,” and
“original ip.” Detective Wigmore testified the report “included
the actual latitude and longitude points” of defendant’s vehicle
between the time defendant picked up Michelle “through the
direction towards her apartment where he ultimately stopped.”
By “export[ing] the data points of the latitude and longitude into
Google maps,” Detective Wigmore identified each location on the
map, actual distances traveled, and points of indication.
Detective Wigmore converted the timestamps from Universal
Time Center to Pacific Standard Time.
Detective Wigmore discussed the area and direction of
travel on the map, culminating in a drop-off location at Michelle’s
residence at 12:19 a.m. The data points report did not indicate
travel toward a nearby 7-Eleven or the circling of Michelle’s
residence.
On cross-examination, Detective Wigmore acknowledged a
cover letter attached to Uber’s response to the subpoena. The
letter, introduced into evidence by defendant, stated in relevant
part:
10
“We write in response to your recent request
seeking information. We have conducted a
reasonable and diligent search, and were able to
locate the following attached information in response
to your request. [¶] . . . [¶]
“The GPS data provided is the best available
raw location information provided by the driver-
partner device’s operating system, from the time the
trip was requested to trip completion. GPS data is
collected every two seconds, or when the driver-
partner is actively interacting with the app[lication].
Please note that certain environmental conditions
may disrupt a device’s ability to capture data.”
After reading the latter paragraph to the jury, Detective Wigmore
testified she did not know if defendant’s location was recorded
after “swip[ing] the Uber app[lication] to end the ride.”
2. Governing Principles
“Hearsay may be briefly understood as an out-of-court
statement offered for the truth of its contents.” (People v.
Sanchez (2016) 63 Cal.4th 665, 674 (Sanchez).) Hearsay is
generally inadmissible unless it falls under an exception. (Evid.
Code, § 1200, subd. (b).) The admission of evidence in a criminal
trial is also governed by the Sixth Amendment’s Confrontation
Clause, which guarantees the right of the accused to be
confronted with the witnesses against them. (Crawford v.
Washington (2004) 541 U.S. 36, 54 (Crawford).)
The admissibility of an out-of-court statement may require
both (1) a traditional hearsay analysis and (2) a Confrontation
Clause analysis. (Sanchez, supra, 63 Cal.4th at p. 680.) We
review the former inquiry for abuse of discretion and the latter de
11
novo. (People v. Ramirez Ruiz (2020) 56 Cal.App.5th 809, 825;
Conservatorship of S.A. (2018) 25 Cal.App.5th 438, 447 (S.A.).)
3. Analysis
a. Business Record Exception
We begin with the admissibility of the data points report
under the business record exception. Under this hearsay
exception, “[e]vidence of a writing made as a record of an act,
condition, or event is not [inadmissible] when offered to prove the
act, condition, or event if: [¶] (a) The writing was made in the
regular course of a business; [¶] (b) The writing was made at or
near the time of the act, condition, or event; [¶] (c) The
custodian . . . testifies to its identity and the mode of its
preparation; and [¶] (d) The sources of information and method
and time of preparation were such as to indicate its
trustworthiness.” (Evid. Code, § 1271.) These foundational
requirements may be satisfied by affidavit. (Evid. Code, § 1561;
S.A., supra, 25 Cal.App.5th at p. 447.)
Before we address defendant’s arguments challenging the
application of this exception, we question whether any hearsay
analysis is required. Hearsay is defined as evidence of a
statement. (Evid. Code, § 1200, subd. (a).) “A statement, in turn,
is defined as an ‘oral or written verbal expression or . . .
nonverbal conduct of a person intended by him as a substitute for
oral or written verbal expression.’ ([Evid. Code], § 225, italics
added.) ‘“Person” includes a natural person, firm, association, . . .
or public entity.’” (People v. Goldsmith (2014) 59 Cal.4th 258,
273–274 (Goldsmith).) A computer-controlled system that
“automatically generates and imprints data information . . . is
[not a] statement being made by a person regarding the data
12
information so recorded. Simply put, ‘[t]he Evidence Code does
not contemplate that a machine can make a statement.’
[Citations.]” (Id. at p. 274, citing U.S. v. Washington (4th
Cir.2007) 498 F.3d 225, 231 [“the raw data generated by the
machines do not constitute ‘statements,’ and the machines are
not ‘declarants’”]; accord, People v. Rodriguez (2017) 16
Cal.App.5th 355, 381.)
Defendant’s own evidence—the cover letter attached to
Uber’s data points report—confirmed each GPS data point listed
in the report was automatically generated from a computer
system. It is not clear this evidence is hearsay requiring an
exception to be admissible. However, because this has not been
raised by either party on appeal, we address both of defendant’s
arguments concerning the hearsay exception applied below.
Defendant first argues the certificate of authenticity, which
provided that the records “are reasonably accessible to Uber and
responsive to the legal process,” refuted any notion the data was
“either created in the ordinary course of business [or] a report
created at or near the time of the events.” We reject this
argument for several reasons.
To begin with, defendant’s interpretation isolates a selected
portion of language in the certificate to the exclusion of numerous
statements verifying the records “were prepared . . . in the
regular course of business” and “made at or near the time of the
act, condition, or event, as a regular practice of Uber.” Defendant
does not explain how these explicit statements, which are
presumed to be true (see Evid. Code, § 1562), can be negated by
the vague statement indicating the documents provided are
responsive to a subpoena. At most, the argument establishes
13
conflicting inferences on authenticity, which goes to weight, not
admissibility. (See Goldsmith, supra, 59 Cal.4th at p. 267.)
Defendant has also failed to cite any authority to show the
retrieval of data, rather than its entry, must take place at or near
the time of the event. “[A]lthough to qualify as a business record
the ‘writing’ must be made at or near the time of the event,
‘writing’ is not limited to the commonly understood forms of
writing but is defined very broadly to include all ‘means of
recording upon any tangible thing any form of communication or
representation, including letters, words, pictures, sounds, or
symbols, or combinations thereof.’” (Aguimatang v. California
State Lottery (1991) 234 Cal.App.3d 769, 798.) As discussed, the
“writings” at issue here are entries of “raw location information”
data into Uber’s automated systems. The certificate and
accompanying letter demonstrate each data entry was made at or
near the time of the act, condition, or event, as a regular practice
of Uber, and not in preparation of trial. That the data entries
were retrieved and provided in a document in response to a
subpoena does not alter their status as business records.
Next, defendant argues the data points report was
inadmissible absent a custodian or other qualified witness
testifying to the mode of its preparation. (Citing Evid. Code,
§ 1271.) Again, we disagree.
“‘“Whether a particular business record is admissible . . .
depends upon the ‘trustworthiness’ of such evidence, a
determination that must be made, case by case, from the
circumstances surrounding the making of the record.
[Citations.]”’ . . . ‘The foundation for admitting the record is
properly laid if in the opinion of the court, the sources of
information, method and time of preparation were such as to
14
justify its admission.’” (People v. Zavala (2013) 216 Cal.App.4th
242, 246.) “‘As long as the evidence would support a finding of
authenticity, the writing is admissible.’” (Goldsmith, supra, 59
Cal.4th at p. 267.)
The certificate of authenticity and cover letter together
provide a proper foundation for finding the data points report
trustworthy. The certificate confirmed the data points were
collected as part of Uber’s regularly conducted activity. The
certificate and letter verified the data points were collected every
two seconds through Uber’s automated systems. This evidence
sufficiently established trustworthiness of the data points report.
(See S.A., supra, 25 Cal.App.5th at pp. 447–448 [“it is not
necessary that the witness . . . have personal knowledge of every
transaction; he need only be familiar with the procedures
followed”].)
In sum, we conclude the certificate of authenticity and
cover letter reasonably support a finding the requirements of
Evidence Code sections 1271 and 1561 were satisfied. (See
D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 19
[reviewing courts are to examine the trial court’s result and not
the reasons supporting it].) The trial court did not abuse its
discretion admitting the data points report, and by extension, the
Google map and Detective Wigmore’s related testimony. (See
People v. Mills (2010) 48 Cal.4th 158, 207 [courts have “broad
discretion to admit demonstrative evidence such as maps, charts,
and diagrams to illustrate a witness’s testimony”]; People v.
Duenas (2012) 55 Cal.4th 1, 20 [“‘Animations do not draw
conclusions; they attempt to recreate a scene or process’”].)
15
b. Confrontation Clause
We next consider whether the data points report implicated
the Confrontation Clause of the Sixth Amendment. The Attorney
General contends defendant forfeited the argument by failing to
object on this basis at trial. We agree. (See People v. Catlin
(2001) 26 Cal.4th 81, 138, fn. 14 [defendant “did not object on this
ground below, . . . his constitutional claim has not been preserved
for appeal”].) Further, when defendant’s argument is considered
on the merits, it fails.6
The Confrontation Clause of the Sixth Amendment
provides the accused with the right to be confronted by witnesses
who testify against them. (Crawford, supra, 541 U.S. at p. 54.)
Only “testimonial statements” implicate the Confrontation
Clause. (Giles v. California (2008) 554 U.S. 353, 376.)
“Testimonial statements are those made primarily to
memorialize facts relating to past criminal activity, which could
be used like trial testimony. Nontestimonial statements are
those whose primary purpose is to deal with . . . some other
purpose unrelated to preserving facts for later use at trial.”
(Sanchez, supra, 63 Cal.4th at p. 689; accord, People v. Tran
(2022) 13 Cal.5th 1169, 1197.)
The data points report did not include or constitute
testimonial hearsay. “Business and public records are generally
admissible absent confrontation not because they qualify under
6 Defendant also contends his trial counsel rendered ineffective
assistance of counsel by failing to object under the Confrontation
Clause. Because defendant’s Confrontation Clause argument fails, his
ineffective assistance claim necessarily fails. (See People v. Thompson
(2010) 49 Cal.4th 79, 122 [“Counsel is not ineffective for failing to
make frivolous or futile motions”].)
16
an exception to the hearsay rules, but because—having been
created for the administration of an entity’s affairs and not for
the purpose of establishing or proving some fact at trial—they are
not testimonial.” (Melendez-Diaz v. Massachusetts (2009) 557
U.S. 305, 324.) As discussed, the data points were generated
automatically in the regular course of Uber’s business. The data
points were not entered into Uber’s computer systems to prove
facts at defendant’s trial. (Accord, People v. Rodriguez (2017) 16
Cal.App.5th 355, 382 [“computer-generated GPS data”]; People v.
Dungo (2012) 55 Cal.4th 608, 583 [blood alcohol data report];
United States v. Yeley-Davis (10th Cir.2011) 632 F.3d 673, 677–
679 [cellphone records printout].) Defendant’s confrontation
clause claim fails.
B. Prosecutorial Misconduct
Defendant contends the prosecutor engaged in misconduct
by telling the jury Michelle’s phone “was protected by her
thumb,” suggesting defendant was potentially responsible for
sending the 3:00 a.m. text message to her friend Alanna.
Anticipating forfeiture for his failure to object, defendant also
argues ineffective assistance of counsel.
1. Relevant Proceedings
At trial, Michelle was asked, “Was [your Apple cellphone]
password protected?” Michelle replied, “Yes, the phone.” Several
hours after defendant had sex with Michelle, her friend Alanna
received a text message from Michelle’s phone stating, “I’m
home.” Michelle had no memory of sending this message or
having the capacity to send it at that time.
17
In closing argument, defense counsel argued “the most
crucial thing about this case” was the 3:00 a.m. text message,
which demonstrated Michelle’s capacity to inform her friend she
was safe at home, and by implication, her capacity to have
consensual sex.
The prosecutor addressed this argument in rebuttal as
follows:
“There’s a lot of well, Michelle must have
texted her friend at 3:00 in the morning. Her phone
was passcode protected. Well, her phone was
protected by her thumb. She said that on the stand. I
don’t know if Michelle texted. I don’t know who
texted. It could have been the defendant, who knows.
But we all do things -- you know, the People haven’t
argued that Michelle didn’t talk at all. People do lots
of things when they’re intoxicated. That’s why we
have DUI, . . . . She could have talked. She could
have texted. She could have sung and danced; that is
not the point.” (Italics added.)
The point, according to the prosecutor, was the level of Michelle’s
intoxication and “that the defendant knew, too.”
2. Governing Law
Claims of prosecutorial misconduct implicate different
standards under federal and state law. (People v. Wallace (2008)
44 Cal.4th 1032, 1070.) “Under the federal Constitution, a
prosecutor commits reversible misconduct only if the conduct
infects the trial with such ‘“unfairness as to make the resulting
conviction a denial of due process.”’ [Citation.] By contrast, our
state law requires reversal when a prosecutor uses ‘deceptive or
reprehensible methods to persuade either the court or the jury’
18
[citation] and ‘“it is reasonably probable that a result more
favorable to the defendant would have been reached without the
misconduct”’ [citation].” (People v. Davis (2009) 46 Cal.4th 539,
612 (Davis).)
“To preserve a misconduct claim for review on appeal, a
defendant must make a timely objection and ask the trial court to
admonish the jury to disregard the prosecutor’s improper
remarks or conduct, unless an admonition would not have cured
the harm.” (Davis, supra, 46 Cal.4th at p. 612; accord, People v.
Thornton (2007) 41 Cal.4th 391, 454 [objection must identify
same ground of misconduct].)
Where, as here, the alleged misconduct arises from the
prosecution’s rebuttal argument, ‘“the prosecutor “cannot be
charged with misconduct if [her] comments only spill over
somewhat into a forbidden area; the departure from propriety
must be a substantial one.” [Citation.]’ [Citation.] ‘[A]
prosecutor is justified in making comments in rebuttal, perhaps
otherwise improper, which are fairly responsive to argument of
defense counsel and are based on the record.’ [Citation.]” (People
v. Thomas (2021) 64 Cal.App.5th 924, 954; see also People v.
McDaniel (1976) 16 Cal.3d 156, 177.)
In reviewing claims of prosecutorial misconduct, “we must
view the [challenged] statements in the context of the argument
as a whole.” (People v. Dennis (1998) 17 Cal.4th 468, 522.) In
doing so, we shall not “‘lightly infer that a prosecutor intends an
ambiguous remark to have its most damaging meaning or that a
jury, sitting through lengthy exhortation, will draw that meaning
from the plethora of less damaging interpretations.’” (People v.
Gonzalez (1990) 51 Cal.3d 1179, 1225, fn. 21.)
19
“To prevail on a claim of ineffective assistance of counsel, a
defendant must show both that counsel’s performance was
deficient and that the deficient performance prejudiced the
defense.” (People v. Benavides (2005) 35 Cal.4th 69, 92–93, citing
Strickland v. Washington (1984) 466 U.S. 668, 687–688
(Strickland); People v. Ledesma (1987) 43 Cal.3d 171, 216
(Ledesma).)
3. Analysis
Defendant did not object to the prosecutor’s statement that
Michelle’s phone was “protected by her thumb.” Defendant
acknowledges this omission but argues an objection would have
been futile. On this record, we do not agree an objection and
corrective admonition would not have cured the harm. (See
People v. Centeno (2014) 60 Cal.4th 659, 67; accord, People v.
Wharton (1991) 53 Cal.3d 522, 566–569 (Wharton).) As such, we
consider whether defense counsel’s failure to object constituted
ineffective assistance of counsel.
For claims in which defense trial counsel did not object to
prosecutorial misconduct, “the appellate record rarely
demonstrates ‘that the failure to object was the result of counsel’s
incompetence; generally, such claims are more appropriately
litigated on habeas corpus, which allows for an evidentiary
hearing where the reasons for defense counsel’s actions or
omissions can be explored.’ [Citations.]” (People v. Salcido (2008)
44 Cal.4th 93, 152.) “‘[D]eciding whether to object is inherently
tactical, and the failure to object will rarely establish ineffective
assistance.’ [Citation.]” (People v. Chatman (2006) 38 Cal.4th
344, 384.)
20
The record here is silent as to why defense counsel did not
object to the prosecutor’s statement in rebuttal argument. The
record does not affirmatively disclose there was no rational
tactical purpose for counsel’s failure to object. (People v. Mai
(2013) 57 Cal.4th 986, 1009.) Counsel could have reasonably
concluded the statement was one of several interpretations
drawn from the evidence, i.e., that Michelle’s password-protected
phone could be unlocked by using her thumb. (See People v.
Valencia (2008) 43 Cal.4th 268, 284 [a prosecutor may “argue his
interpretation of the evidence, just as defendant was entitled to
argue his interpretation of that same evidence”].) Counsel could
have also decided it best to avoid highlighting the point and
making the jury wonder “if there really was such evidence”
supporting the prosecutor’s comment. (Wharton, supra, 53 Cal.2d
at p. 567.)
Even assuming misconduct, defendant has not established
prejudice. The prosecutor’s comment was made as a prelude to
her larger argument questioning the significance of the text
message, irrespective of who authored it. We do not believe the
jury, repeatedly having been advised that statements of counsel
are not evidence, would have been misled in the manner
suggested by defendant. (See People v. Holt (1997) 15 Cal.4th
619, 662 [reviewing courts presume the jury followed
instructions]; accord, People v. Collins (2010) 49 Cal.4th 175, 229
[remarks “were somewhat ambiguous and constituted only a
small portion of her larger argument”].) Absent any prejudice,
defendant’s ineffective assistance claim fails.
21
C. Sentencing Error
As the parties acknowledge, the appellate record is sparse
and the facts are few on defendant’s waiver of his right to a jury
trial on the single aggravating circumstance pursued by the
prosecutor (i.e., that Michelle was particularly vulnerable). Nor
does the record reveal any explanation of the consequences of
defendant’s waiver.
Defendant contends, and the Attorney General agrees, the
court erred by failing to obtain a knowing, intelligent, and
voluntarily waiver. Defendant contends the court further erred
by relying on aggravating facts not admitted by defendant or
found true by the jury beyond a reasonable doubt when finding
the “victims” were vulnerable and defendant violated “the
position of trust” he held as an Uber driver. We agree with both
contentions and find the errors prejudicial.
1. Governing Law
Our Legislature passed Senate Bill No. 567 to require
factors in aggravation be pled and proved to the trier of fact
before those factors may be used to increase a defendant’s
sentence. (Stats. 2021, ch. 731, § 1.3, adding § 1170,
subds. (b)(1), (2).) Under the amended law in effect at the time of
defendant’s sentencing, the trial court was required to impose a
sentence not to exceed the middle term absent “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.” (§ 1170,
subds. (b)(1), (2).)
22
The California Rules of Court provide a non-exhaustive list
of circumstances in aggravation. The list covers circumstances
relating to the crime, which include “[t]he victim was particularly
vulnerable” and “[t]he defendant took advantage of a position of
trust or confidence to commit the offense.” (Cal. Rules of Court,
rules 4.421(a)(3)), 4.421(a)(11).)
A criminal defendant’s Sixth Amendment right to a jury
trial “is triggered by section 1170(b)’s substantive requirements
governing imposition of an upper term sentence.” (People v.
Lynch (2024) 16 Cal.5th 730, 762 (Lynch); § 1170, subd. (b)(2).)
Subject to exceptions not applicable here, a jury finding beyond a
reasonable doubt “is [ ] required for all facts actually relied on to
impose an upper term” sentence under section 1170,
subdivision (b). “[A] Sixth Amendment violation occurs when the
trial court relies on unproven aggravating facts to impose an
upper term sentence, even if some other aggravating facts relied
on have been properly established.” (Lynch, supra, 16 Cal.5th at
pp. 757–760, 768.)
The right to jury trial may be waived, provided it is express
and “‘is knowing and intelligent, that is, “‘“made with a full
awareness both of the nature of the right being abandoned and
the consequences of the decision to abandon it,”’” as well as
voluntary “‘“in the sense that it was the product of a free and
deliberate choice rather than intimidation, coercion, or
deception.”’”’ [Citations.]” (People v. Sivongxxay (2017) 3 Cal.5th
151, 166.)
2. Analysis
It is undisputed there was no knowing, intelligent, and
voluntary waiver of defendant’s right to a jury trial on any
23
circumstance used to aggravate his sentence. Without obtaining
a valid waiver, the court could not impose the upper term based
on its own factfinding that the “victims,” presumably the charged
victim (Michelle) and uncharged victim (A.S.), were vulnerable or
that defendant violated a position of trust. (Cal Rules of Court,
rules 4.421(a)(3)), 4.421(a)(11).) This type of judicial factfinding
violated defendant’s jury-trial right. (Lynch, supra, 16 Cal.5th at
p. 768.)7
Our Supreme Court recently clarified the standard of
prejudice when reviewing a trial court’s erroneous “substitution
of its own factfinding for that of a jury. . . .” (Lynch, supra, 16
Cal.5th at p. 760.) The Court held that such violation “is
prejudicial unless an appellate court can conclude beyond a
reasonable doubt that a jury would have found true all of the
aggravating facts relied upon by the trial court to justify an
upper term sentence, or that those facts were otherwise proved
true in compliance with the current statutory requirements. If
the reviewing court cannot so determine, applying the Chapman
standard of review, the defendant is entitled to a remand for
resentencing.” (Lynch, supra, 16 Cal.5th at p. 768.) Under this
standard, we cannot “uphold the trial court’s imposition of an
upper term sentence based on some subset of aggravating facts.”
(Id. at p. 761.)
Applying that standard here, we cannot conclude beyond a
reasonable doubt a jury would have found true all aggravating
facts relied on by the trial court. Defendant was not charged
with and did not admit the victim of the uncharged offense was
7 Defendant’s failure to object on Sixth Amendment grounds
below did not forfeit his ability to raise the issue on appeal. (People v.
French (2008) 43 Cal.4th 36, 46.)
24
vulnerable or that he violated a position of trust. (Cal. Rules of
Court, rule 4.420, subd. (b); see People v. Aragon (1992) 11
Cal.App.4th 749, 764 [aggravating sentence “because of an
uncharged offense for which there is no conviction . . . violates
due process”].) “It would not have been impossible, given the
jury’s findings and the evidence, for the jury to have found in
[defendant’s] favor on one or more of these aggravating facts.”
(Lynch, supra, 16 Cal.5th at p. 776.)
The proper remedy for the failure of proof of aggravating
circumstances never tried to the jury is to remand for proceedings
“to be conducted in accordance with the current statutory
requirements and the defendant given the opportunity for the
jury trial, of which he was deprived.” (Lynch, supra, 16 Cal.5th
at p. 777.) On remand, the court may obtain a valid waiver of
defendant’s jury-trial right. In the event the parties proceed to
trial, they may introduce “all relevant evidence to support or
contest the factual support for the aggravating
circumstances . . . .” (Ibid.)8
8 In light of our conclusion, we do not consider defendant’s
alternative contention regarding his request for a continuance to retain
private counsel at sentencing under People v. Marsden (1970) 2 Cal.3d
118.
25
DISPOSITION
Defendant’s conviction is affirmed. The judgment of the
trial court imposing an upper-term sentence is reversed and the
matter is remanded with directions to conduct further
proceedings on the aggravating circumstance(s) and for the court
to exercise its discretion under section 1170, subdivision (b).
MORI, J.
We concur:
CURREY, P. J.
ZUKIN, J.
26