People v. Stephens CA2/5 ( 2024 )

Filed 10/2/24 P. v. Stephens CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on
opinions not certified for publication or ordered published, except as specified by rule
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purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B327056
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA381235)
v.
ROBERT AARON STEPHENS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Eleanor J. Hunter, Judge. Affirmed in part,
reversed in part, and remanded.
Kravis, Graham & Zucker and Randy S. Kravis for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Steven D. Matthews, Supervising
Deputy Attorney General, and Michael J. Wise, Deputy Attorney
General, for Plaintiff and Respondent.
2
Defendant and appellant Robert Aaron Stephens
(defendant) was convicted of six sex offenses in connection with
his rape of two women: M.V. in 2009, and T.C. in 2010. The trial
court sentenced him to 22 years in prison. We consider
defendant’s various challenges to the judgment of conviction:
whether the trial court erred in denying his new trial motion
because the court did not understand its obligation to
independently evaluate the sufficiency of the evidence, whether
the trial court erred in instructing the jury on adoptive
admissions in connection with “pretext calls” M.V. made to
defendant at the behest of an investigating detective, whether the
trial court should have sua sponte given a lesser included offense
instruction on simple assault in connection with defendant’s
conviction for assault likely to cause great bodily injury, and
whether there was insufficient evidence of penile penetration of
T.C.’s anus to support defendant’s forcible sodomy conviction.
I. BACKGROUND
A. The Offense Conduct Pertaining to M.V., As
Established by the Evidence at Trial
M.V. met defendant in an acting class in April 2009. The
two were friendly and had a few interactions outside of class.
Male students often walked female students back to their cars
after class to ensure their safety, and defendant walked M.V. to
her car once. They chatted about politics. On one occasion,
defendant asked M.V. to get yogurt with him in her
neighborhood. She agreed, but she did not think the outing was a
date.
About one month after she joined the acting class, M.V. and
defendant were assigned to be scene partners. This meant they
3
were expected to meet off-site once or twice during the week to
prepare a scene from a movie and then perform it during class.
M.V. and defendant met twice to rehearse their scene, once at his
apartment and once at hers. When M.V. and defendant
rehearsed at his apartment, he was not very interested in
rehearsing and wanted M.V. to watch a movie with him instead.
At some point, defendant tried to rub his leg against hers. She
told defendant she was there to rehearse, not watch a movie, and
did not stay very long. M.V. believed her actions clearly signaled
she was not interested in dating defendant. When they met to
rehearse at her apartment, they did some work on the scene but
defendant primarily wanted to sit on the couch and talk to M.V.,
which she felt was a waste of time.
Later, defendant invited M.V. to a networking event taking
place in the evening on May 21, 2009, which he told her was
being held by the Creative Artist Agency. M.V. was trying to
make a career as an actress, was having some success, and
thought defendant invited her to the event to make up for not
taking their rehearsals seriously. M.V. told Adam Church
(Church), a close friend she had dated off and on for several
years, that she was attending the event.1 Church was watching
M.V.’s dog for her, and M.V. told Church she would be back to
pick up the dog by midnight.
M.V. wanted to meet defendant at the event, but defendant
told her the event was close to his home and insisted they meet
there. M.V. arrived at defendant’s home around 8 or 9 p.m.
1
Church maintained he and M.V. were not dating in May of
2009; M.V. was uncertain about the exact nature of their
relationship at the time.
4
There was no street parking available, so M.V. called defendant
and he told her to park in his garage. Before leaving for the
event, defendant and M.V. each had a shot of peppermint
schnapps.
When M.V. and defendant got in his car to leave, M.V. told
defendant she was not feeling 100 percent well. Defendant
offered to get her something, returned to the house, and brought
her what he stated was an Ultram pill. Defendant gave M.V. half
of a pill, and took a whole pill himself. Defendant also placed
several other pills in his coat pocket. M.V. asked him if he was a
pill popper and jokingly asked if that was his drug of choice.
Defendant, also somewhat jokingly, said no, pulled a bottle out of
his pocket, and said that was his drug of choice. The bottle
appeared to be a 5-Hour Energy drink bottle, but defendant told
M.V. it was “liquid G.”2
When defendant and M.V. arrived at the event, it was
around 9:00 or 9:30 p.m. It did not appear to M.V to be a CAA
networking event; instead, they arrived at a home in Hollywood
that had been converted into an art gallery. M.V. thought she
still might meet someone in the industry, so she decided to stay.
Soon after they arrived, M.V. obtained a mixed drink from a
bartender. She drank it in less than an hour. After finishing it,
she felt a “little buzz,” which she considered typical based on the
amount of alcohol she had consumed.
After finishing her first drink, M.V. went to the bathroom.
When she returned, defendant brought her a bottle of water.
M.V. was not paying attention and did not notice if the bottle was
2
This was an apparent reference to GHB, or gamma-
hydroxybutyrate.
5
already open when he handed it to her.3 M.V. consumed about
half of the bottle right away. After she drank the water, M.V.
began to feel more intoxicated. Around the same time, M.V. and
defendant went back to the bar and M.V. obtained another mixed
drink from the bartender. M.V. consumed half of the drink, at
most.
After that, M.V. began to feel very intoxicated and she
finished drinking the bottle of water defendant had given her.
She was feeling much more intoxicated than she normally would.
The two continued mingling at the party, but M.V.’s memory
from that point on was fuzzy and blurry.
Sometime later, defendant and M.V. left the party. M.V.
did not remember getting in defendant’s car, but she did
remember being in the car while feeling “out of it.” Her next
memory was of being in a house near the beach somewhere. She
recalled sitting on a sofa talking to a woman and hearing other
people talking in another room. M.V. described her memory of
the evening as having long periods blacked out, and then
remembering something very clearly. M.V. remembered walking
down the street to defendant’s car while holding onto his arm
because she was not able to walk particularly well, but she did
not recall when during the course of the night that occurred.
M.V. did not remember anything else until the next morning.
Sometime between 10:00 p.m. and midnight, M.V. sent
multiple text messages to Church in which she asked about her
3
According to Marc Caldera (Caldera), a friend of
defendant’s, he and defendant obtained three water bottles from
a bartender, one of which was for M.V., and the bottles were
sealed closed when they obtained them.
6
dog and asked whether Church was still working. Church also
received a call from M.V. around 1:15 a.m. When they spoke, she
sounded discombobulated, could not form a coherent sentence,
and was speaking gibberish. Church texted and called M.V. a
number of times after that, but he was unable to connect with her
until later that morning.
M.V. awoke at around 6:45 a.m., saw defendant was lying
next to her, and realized she was in his bed. M.V. was wearing a
man’s t-shirt and boxers, which she assumed belonged to
defendant. Her own clothes were on the floor. M.V. got up and
went into the bathroom. She felt groggy, confused, and scared
because she had not intended to stay the night and did not know
how she got there. M.V. went to the toilet and urinated. She felt
a burning sensation when she did so, which made her wonder if
she had sex the night before. She did not remember doing so.
M.V. left the bathroom, retrieved her purse, walked
outside, and called Church. Church answered the phone and
they spoke for a few minutes. M.V. told Church she was “freaked
out” and was at defendant’s home. When Church asked what
happened the night before, M.V. said she did not remember.
Church encouraged her to leave and asked if she wanted him to
pick her up. M.V. said not to worry, she would be leaving right
away, and she just needed defendant to move his car, which was
blocking hers.
M.V. went back inside. Defendant, who was waking up,
said he was surprised M.V. was awake and that he would have
bet she would be out for 12 hours. M.V., upset, asked him what
happened the night before. Defendant responded he was not
going to tell her anything she did not want to hear. M.V., crying
and distraught, sat down on the bed and began running her
7
hands through her hair. Her hair came out in clumps, which
made her cry more. She asked defendant what happened to her
hair. He said her body was detoxing from drinking alcohol.
Shortly thereafter, defendant became upset and started
crying and raising his voice. He removed his glasses, threw them
against the wall, and then said, “Look what you’ve made me do.”
Defendant told M.V. he cared about her more than anyone other
than his parents, that she had upset him, and that she was not
allowed to leave until she made him feel better.
Defendant got on top of M.V. and pushed her down on the
bed. He straddled her, put his hands on her throat, squeezed her
throat intensely to the point her vision completely blacked out,
and started kissing her aggressively.4 M.V. did not kiss
defendant back, and at some point he stopped kissing her and
pulled his hands off her neck. Her vision fully returned, and she
asked defendant why he did that. He responded that she liked it
the night before. Defendant also pulled her hair at some point
during the morning.
Although M.V. was scared, she decided to “play it cool” and
stop crying because she didn’t want defendant to do anything
worse to her. Defendant got off of M.V. and said he wanted to
have breakfast and talk.
When M.V. entered the kitchen, defendant was making
breakfast and did not try to talk to her. M.V. took a piece of toast
4
At defendant’s later criminal trial, M.V. described it this
way: “[Defendant] was squeezing my throat very much and not
letting up at all, to the point that I lost—I was, like, losing
consciousness. Like, I completely blacked out. I didn’t, like, go
unconscious, but my—my vision went, like, slowly black, and
then it went all black.”
8
from the toaster. There was no furniture in the kitchen, and
nowhere to sit. Defendant took his breakfast back to his
bedroom. M.V. followed. Defendant sat on his bed, turned on the
TV, and ate breakfast. M.V. then asked him to move his car a
number of times, but he said he would not move the car until she
assured him she was okay and made him feel better.
In the midst of eating breakfast, defendant again got on top
of M.V. and kissed her while squeezing her neck with his hands.
M.V. held her breath and did not lose consciousness. Defendant
then stopped and resumed eating. Defendant asked M.V. if she
was okay, asked if she was going to say anything, told her not to
cry, and told her he cared about her. M.V. said she was cool and
she was not going to say anything because she just wanted to
leave.
After defendant finished breakfast, he again got on top of
M.V., squeezed her neck, and kissed her aggressively.
Eventually, M.V. made defendant feel like she was okay, and he
moved his car so she could drive away.5
While in the car, M.V. called Church to let him know she
had finally left defendant’s home and was driving to see Church.
M.V. still felt hazy, so she drove on surface roads and stopped a
number of times to pull over and cry. After she was about ten
blocks from defendant’s home, M.V. called him. She asked
defendant if he had used a condom. He said, “of course.” This
confirmed M.V.’s “worst fears.” She had not wanted to have sex
5
M.V. considered calling Church to pick her up, calling 911,
or running out of the apartment, but she did not do any of those
things because she was terrified defendant would stop her if she
tried.
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with defendant, and had not done or said anything that
suggested otherwise.
B. M.V.’s Rape Report and Subsequent Police
Investigation
M.V. arrived at Church’s residence approximately an hour
after she left defendant’s home. Church observed M.V. was
disheveled and had bruises on the front of her neck. M.V. told
Church what defendant had done, and Church encouraged her to
call the police. M.V. did not call the police right away, however,
because she was mortified and did not want anyone to know what
happened.
M.V. first called a rape crisis hotline. The crisis hotline
directed her to a location in Downtown Los Angeles. She told the
receptionist she thought she had been raped the night before and
the receptionist asked if she had filed a police report. M.V. said
she had not and did not want to do so. M.V. then went to an
urgent care facility, hoping they would test her for STDs. The
personnel informed her that if she thought a crime had occurred,
she needed to file a police report.
The next day, M.V. called her acting teacher and said she
could not be defendant’s scene partner any longer. After
disclosing what defendant had done, the teacher convinced M.V.
she needed to go to the police. Church later took M.V. to a police
station where she reported the rape and the police escorted M.V.
to a rape treatment center, where she was examined and treated.
A sexual assault nurse examiner found M.V. had abrasions
on the back of her neck, bruises on her thighs and on one knee,
and bruises on one arm. The abrasions on the back of her neck
could have been caused by someone squeezing her neck. M.V.
10
also had injuries on her genitalia consistent with penetration.
M.V.’s urine was tested for GHB, cocaine, and other drugs, and
none was detected.
A few days after making her initial report, M.V. was
contacted by a detective who asked if she would place a recorded
call to defendant and ask questions about the night in question.
M.V. ultimately made three such calls.
During the first call, M.V. asked defendant what happened
at his apartment. Defendant recounted the events, describing
their sexual encounter in detail and asserting M.V. had been an
active and interested sexual partner. He also claimed she had
been “super aggressive” during sex. Defendant said M.V. had
asked him to pull her hair, and when M.V. asked if that was why
her hair was coming out in chunks, defendant replied, “[e]xactly.”
M.V. told defendant she did not remember much of the night and
had been “weirded out” when she woke up and defendant did not
want to let her leave. Defendant said he wanted her to stay so
they could talk things out, and because he didn’t want M.V. to
leave and start inventing her own interpretation of the events.
M.V. said she thought defendant was really mad at her because
he broke his glasses. Defendant denied being angry, but he did
not address M.V.’s statement regarding his glasses.
During the second call, M.V. told defendant she did not
believe some of the things he said during the first call and she
was not comfortable with some of things defendant had done.
M.V. referenced defendant choking her the morning after and
stated that was not something she had ever done before, or would
ever do. Defendant did not directly address M.V.’s assertion that
he choked her. Instead, defendant said he had never had sex
with her before, so it was all “new to him.” He claimed M.V. kept
11
saying “come on Aaron” and grabbing him from behind and
pulling him into her very violently. Defendant told M.V. she was
cognizant the entire time and he had no idea at the time that she
was not aware of what was going on.
During the final call, M.V. told defendant she could not
wrap her mind around his behavior the morning after the
incident, specifically, his attempt to “guilt her” and his statement
that she needed to make him feel better. Defendant denied
making that statement, but he did admit to saying she had made
him feel bad. M.V. then told defendant that he made her promise
to never make him feel that bad about himself again. Defendant
did not confirm or deny that; instead, he said she made him feel
terrible and was making him feel terrible again. M.V. said she
knew defendant was a creep and said she had told him a week
earlier that he was a creep and she wasn’t going to sleep with
him. Defendant did not address the “creep” comment but he did
say he did not recall M.V. saying she was not going to sleep with
him. M.V. also asked defendant about the “liquid G” he had “in
[his] car.” Defendant said it was GHB. M.V. asked if she had
ingested any of it and he said neither of them had done so.
In June 2009, the police arrested defendant and searched
his bedroom. They recovered Ultram pills, Viagra pills, a vial of
steroids, a 5-hour energy bottle, and a large quantity of
disposable syringes. Subsequent laboratory testing confirmed the
substance inside the 5-hour energy bottle was GHB.
12
C. After a Pretrial Hearing, M.V. Initially Declines to
Participate in Defendant’s Prosecution but Later
Reconsiders
M.V. testified against defendant at a pretrial hearing in
2009. During her testimony, she lied in response to questions
about her prior drug use because she was uncomfortable with the
questions and believed they were irrelevant.6
After that testimony, M.V. declined to continue supporting
defendant’s prosecution. She felt defendant’s attorney was
aggressive about her drug use and she was scared. M.V. did not
want to reveal the drug use because she felt ashamed of it and
thought it would hurt her career.
Less than a year later, however, M.V. received a call from
either a detective or a deputy district attorney informing her
defendant had “done it again” and asking if she would be willing
to testify against defendant in a new trial. M.V. felt horrible and
blamed herself for what happened to the other woman. She
decided to testify knowing she would have to disclose her drug
use.
D. The Offense Conduct Pertaining to T.C., As
Established by the Evidence at Trial
T.C. and defendant first met in 2003 or 2004. They became
friends and engaged in a sexual relationship for around five
months. The relationship ended amicably. T.C. reconnected with
6
In fact, M.V. was consuming alcohol and occasionally using
heroin when she met defendant. She also had a prior history of
other drug use. She did not use any heroin the day before or the
night of the incident. She could not recall whether she had used
drugs in the weeks prior, but she thought it was possible.
13
defendant six or seven years later, when she thought she saw
him at a sports bar and sent him a text message. They made
plans to meet at a martini bar.
They met on October 19, 2010. Defendant picked T.C. up
around 8:00 p.m. and drove them to the bar. While there, T.C.
had some food and two or three martinis. T.C. invited defendant
to go to a comedy show because she had plans to meet friends
there. Defendant told T.C. he needed to go home to give his dog
medication, she accompanied him, and he persuaded her to come
inside and have a drink before leaving for the comedy show.
Defendant made T.C. a martini. T.C. thought the drink
tasted strange. While at defendant’s apartment, T.C. sent a text
message to a friend stating defendant was “hotter than ever.”
T.C. did not see defendant give any medicine to the dog. After
defendant made her the martini, defendant said the dog needed
to go outside. Defendant told T.C. to join him, encouraged her to
bring the drink with her, and kept urging her to take a sip of it.
When they returned to his apartment, things became “hazy” for
T.C. and she blacked out for some period of time.
During some “flashes of awareness,” T.C. recalled kissing
defendant, being on the couch, and her tights being aggressively
taken off. She remembered a pain in her head, fighting, and
being in a constant struggle. T.C. also recalled an abrupt
piercing pain in her rectum while defendant was on top of her.
She could not remember if her clothes were on or off when she
felt the pain in her rectum. She did not remember feeling pain in
any other private parts at the time, but she did remember feeling
pain in other areas, feeling trapped, and flailing and kicking.
T.C.’s next clear memory was of being in a cab and dialing
numbers on her phone.
14
Unbeknownst to T.C. (and for many years, the authorities,
until the evidence later came to light), defendant surreptitiously
recorded what occurred with T.C. in his bedroom on the night of
October 19, 2010.7 Eight excerpts of the recording were played
during the prosecution’s case at defendant’s later criminal trial.
The first excerpt depicts defendant setting up the camera to
record before leaving his apartment to rendezvous with T.C. (the
recording was left running for hours until he later returned with
her). The remaining excerpts depict what appear to be figures
moving in the dark; the bedroom light coming on and, thereafter,
defendant and T.C. naked with T.C. appearing to struggle
against defendant, or resisting or hitting him; T.C. attempting to
put her bra back on before defendant pulls her back down to the
bed; and defendant turning off the camera after T.C. was no
longer in the bedroom and the sexual activity had ceased.
According to testimony at defendant’s later criminal trial from
T.C. (summarized post) and an investigating detective who
watched the entire video, other portions of the recording that
were not played for the jury during the prosecution’s case depict
T.C. appearing to initiate sex acts or appearing to engage in sex
acts without resistance.
E. T.C.’s Rape Report and Subsequent Police
Investigation
Jason Lee (Lee), one of T.C.’s friends, received a call from
her after midnight on October 20. She sounded distraught, as if
she was or had been crying. T.C. asked if Lee could come over.
7
The video has no sound after the first few minutes, and
thus no audio of defendant’s interactions with T.C.
15
Lee asked her what was wrong, but she did not tell him over the
phone.
When Lee arrived at her apartment building, T.C. looked
like she had been punched in the face. He asked her what
happened, and she said she thought she had been raped. T.C.
then described the pertinent events and seemed scared while
talking about it. Lee asked her if she wanted to call the police.
She was hesitant, but she eventually did.
After a first pair officers arrived and T.C. began speaking
to them, she sent them away because she was scared or offended
by their demeanor. Lee kept talking to her, and she eventually
decided to call the police again because she was worried that
what happened to her might happen to somebody else. A second
set of officers arrived, took her statement, and then took her for a
sexual assault examination.
The examination at the rape treatment center revealed
T.C. had tenderness and swelling on her right temporal area and
her lip. She had bruises on her elbow and chest, and abrasions
on her forearm and back. T.C. also reported tenderness of the
hymen. The examiner believed the injuries were consistent with
a struggle and a physical blow. Examination of T.C.’s buttocks,
anus, and rectum revealed no assault-related findings. T.C.’s
urine was tested for GHB, cocaine, and other drugs, and none
was detected.
F. The Criminal Proceedings Against Defendant,
Including Trial, Grant of a Motion for New Trial, and
Retrial
In 2011, the Los Angeles County District Attorney filed a
six-count information against defendant alleging he raped M.V.
16
by use of drugs and assaulted her by choking her. The
information additionally alleged defendant sodomized T.C. by use
of force, assaulted her with intent to commit various sexual
assault felonies, forcibly raped her, and attempted forcible oral
copulation with her.
After a trial—at which the existence of the video recording
of defendant and T.C. on the night in question was unknown to
the jury—defendant was convicted of five of the six counts in
December 2013 (the jury did not reach a verdict on the count
charging defendant with attempted forcible oral copulation).8
Defendant obtained new counsel and filed a motion for new trial.
The trial court granted the motion as to the counts regarding T.C.
because the video had not been presented during the trial.
Defendant then filed a second motion for new trial, arguing the
cross-admissibility of the evidence between the counts pertaining
to T.C. and those pertaining to M.V. was prejudicial and the trial
court granted that motion too.
Following a series of continuances stretching over a
number of years, defendant’s retrial commenced in July 2022.
The amended information against defendant again charged him
with rape by use of drugs (count one) and assault by means likely
to produce great bodily injury (count two) as to M.V.; and sodomy
by use of force (count three), assault with intent to commit a
felony (count four), forcible rape (count five), and attempted
forcible oral copulation (count six) as to T.C. M.V. and T.C.
8
The defense was in possession of the video but made a
tactical decision not to introduce it in evidence or reveal its
existence to the prosecution.
17
testified during the retrial, along with experts, law enforcement
officers, and other witnesses.
M.V. and T.C.’s testimony described the offense conduct we
have already summarized. T.C. also specifically addressed the
video recording made by defendant. She testified she did not
learn defendant made a video recording without her consent until
after defendant’s first trial. She watched all the sexual activity
in the video prior to testifying. She estimated that she
remembered less than a minute or two of the events depicted on
the more than 40 minutes of footage. She agreed there were
portions of the video where it looked like she was willingly
engaging in or initiating sexual contact, but she did not
remember any part of that.
Dr. Teri Stockham, a forensic toxicologist, testified about
the effects of alcohol and GHB. According to Dr. Stockham, GHB
is used for legal purposes (to treat daytime narcolepsy) and
illegal purposes, e.g., in drug-facilitated sexual assault and as a
substitute for ecstasy. GHB has a short onset period, a duration
of six to seven hours, and has a short window of detection—
approximately six hours in the blood and 12 hours in a urine
sample. GHB can be added to any kind of drink. One of its street
names is “liquid G.” At lower doses, GHB induces a euphoric
feeling, decreased inhibitions, and increased libido. At higher
doses, the effects of GHB include drowsiness, blurred vision, loss
of motor control, and loss of consciousness. When presented with
a hypothetical that mirrored M.V.’s alcohol consumption and
memory lapses, Dr. Stockham opined M.V.’s behavior and
memory lapses were not consistent with the consumption of two
and a half alcoholic drinks but were consistent with a dose of
GHB.
18
During the defense case, the defense played for the jury the
full 40-plus-minute period of sexual activity between defendant
and T.C. seen on the video recording once the bedroom light came
on. Defendant also testified in his own defense.
Defendant denied drugging M.V. or T.C. and maintained
his sexual activity with them (activity that he did not dispute
occurred) was consensual. Defendant claimed he had and used
GHB in his possession as a sleep aid. He also claimed both
women enjoyed “rough sex.” He specifically denied penetrating
T.C.’s anus.
When questioned about what occurred when M.V. woke up
the morning after the night in question, defendant denied
restraining M.V. or doing anything to stop her from leaving. He
also testified his glasses lens popped out when he was holding
them that morning but he did not recall anything else happening
to them. As for the pretext calls, defendant testified he never
choked M.V. and did not respond to her statements to the
contrary during the calls because she was “throwing so much at
him” that he had to pick and choose what to address.
When questioned about the video he recorded of T.C.,
defendant claimed he set up a camera to record because he was
paranoid—by the time he reconnected with T.C. he had already
been accused of assault by M.V. and he believed that if his
encounter with M.V. had been recorded, he would never have
been charged. Defendant also claimed that after he finished
having sex with T.C., she told him she wanted to date him again,
he did not want to date her, and he called a cab to take her home
because he did not want to wake up next to her and wanted her
out of his apartment.
19
In addition to presenting defendant’s testimony, the
defense also called its own toxicologist, Dr. Marvin Pietruszka, to
testify. He opined that if a person received a dose of GHB low
enough to remember details about an event, the GHB’s only effect
would be a sensation of euphoria. If, on the other hand, a person
received a dose high enough to incapacitate them physically and
mentally, the dose would make it impossible for them to socialize
or remember things, they would have slurred speech, and it
would be obvious there was something wrong with them. In Dr.
Pietruszka’s opinion, if a person who had been administered GHB
were capable of sending text messages, they could only have
received a very low dose.
Outside the presence of the jury, the court and counsel
discussed the instructions that should be given to the jurors. The
prosecution asked the court to instruct the jury on adoptive
admissions with CALCRIM No. 357.9 The prosecution argued the
9
CALCRIM No. 357 provides: “If you conclude that someone
made a statement outside of court that (accused the defendant of
the crime/ [or] tended to connect the defendant with the
commission of the crime) and the defendant did not deny it, you
must decide whether each of the following is true: [¶] 1. The
statement was made to the defendant or made in (his/her)
presence; [¶] 2. The defendant heard and understood the
statement; [¶] 3. The defendant would, under all the
circumstances, naturally have denied the statement if (he/she)
thought it was not true; [¶] AND [¶] 4. The defendant could have
denied it but did not. [¶] If you decide that all of these
requirements have been met, you may conclude that the
defendant admitted the statement was true. [¶] If you decide
that any of these requirements has not been met, you must not
20
instruction was warranted because M.V. made certain
statements in the pretext calls that defendant did not deny.
Specifically, the prosecution identified M.V.’s statements that
defendant had been aggressive with her the morning after the
rape, that there had been a choking incident, and that defendant
had broken his glasses. Defendant objected and expressed doubt
that anything in the pretext calls qualified as an adoptive
admission. The court explained the issue was defendant’s
“nonresponse or non-denial” of certain statements. Defense
counsel did not argue the issue further, and the court stated
giving CALCRIM No. 357 was warranted.
In addition to later instructing the jury with CALCRIM No.
357, the court also gave CALCRIM 200 (informing the jury that
some of the instructions given might not apply) and CALCRIM
875 (informing the jury of the elements of the crime of assault by
means likely to cause great bodily injury). There was no request
to give an instruction on a lesser included offense of simple
assault and no such instruction was given.
G. Guilty Verdicts, New Trial Motion, and Sentencing
The jury convicted defendant on all counts. Defendant filed
a motion for new trial pursuant to Penal Code section 1181,
subdivision (6), arguing there was insufficient evidence to
support the jury’s verdict.10 Defendant maintained there was no
consider either the statement or the defendant's response for any
purpose.”
10
Undesignated statutory references that follow are to the
Penal Code.
21
evidence he put GHB in M.V.’s drink and he argued T.C. had
engaged in consensual sex with him.
At the hearing on the motion for new trial, the court stated
on the record that it had read and considered defendant’s motion.
After giving counsel the opportunity to argue, the trial court
denied the motion. In doing so, the court made the following
remarks:
“There was certainly sufficient evidence in this case
to support the conclusion by the jury that the defendant
was guilty beyond a reasonable doubt of all of the charges.
The jury had an ability to not only listen to the evidence
but also look at the witnesses, as they testified. And, in
this particular case, I think that is very important, because
a cold record never can really capture how somebody
responds to questions, their attitude, et cetera. The jury
certainly can.
“And I have to tell you, the two witnesses that
testified, the two alleged victims—it’s no longer ‘alleged’—
but the two victims in this case certainly testified, and their
credibility was overwhelming, especially based on
everything else, compared especially to the defendant’s
testimony, which was not credible.
“So I find that the jury certainly had sufficient
evidence to prove beyond a reasonable doubt that the
defendant was guilty, and I’m going to deny the motion for
new trial.”
At sentencing, the court heard victim impact statements
from T.C. and M.V. and statements from individuals supporting
defendant. Proceeding to argument, the defense contended
counts three (for forcible sodomy of T.C.) and five (for forcible
22
rape of T.C.) should be sentenced concurrently, not consecutively,
because they were part of continuous sexual activity.
The court sentenced defendant to 22 years in prison. It
designated count one (rape of M.V.) as the base term and imposed
the middle term of six years on that count. The court imposed
consecutive middle term sentences of three years on count two
(for aggravated assault of M.V.), six years on count three (forcible
sodomy of T.C.), and six years on count five (forcible rape of T.C.).
It sentenced defendant to one-third the middle term, or one year,
on count six (attempted oral copulation of T.C.) and stayed the
sentence on count four (assault on T.C. with intent to commit a
felony) pursuant to section 654.
When elaborating on the reasons for its sentence, the trial
court stated it took a number of factors into consideration,
including defendant’s “conduct when he testified” and “his total
lack of credibility with regard to that . . . .” As for the court’s
decision to run the sentences for counts three and five
consecutively, the court stated it watched the video and the video
had not helped defendant because it established there was a
sufficient break in the criminal acts to warrant consecutive
sentencing.
II. DISCUSSION
For reasons we first summarize and then detail, we reject
all of defendant’s arguments save one and we remand for
resentencing so the trial court has the opportunity to modify the
sentence it previously imposed, if it so chooses. (People v. Buycks
(2018) 5 Cal.5th 857, 893; People v. Burbine (2003) 106
Cal.App.4th 1250, 1259 [“[U]pon remand for resentencing after
the reversal of one or more subordinate counts of a felony
23
conviction, the trial court has jurisdiction to modify every aspect
of the defendant’s sentence on the counts that were affirmed,
including the term imposed as the principal term”].)
Though the trial court’s remarks in connection with
defendant’s motion for new trial include some ambiguous
language, the record on the whole reflects the court was well
aware of its prerogative to evaluate witness credibility in
weighing the motion and did not suffer from an unawareness of
the appropriate legal standard for evaluating the motion.
Defendant’s instructional error arguments fail because there was
substantial evidence to justify giving an adoptive admission
instruction but no substantial evidence warranting an instruction
on the lesser included offense of simple assault. Defendant’s
conviction on the forced sodomy charge, on the other hand, is
unsupported by sufficient evidence; T.C. testified about feeling
pain in her anus during defendant’s rape, but there is no
testimony or other evidence that satisfies an essential element of
the offense: that penetrative contact by defendant’s penis is what
caused that pain.11
A. The Trial Court Did Not Err in Denying Defendant’s
Motion for New Trial
Defendant moved for a new trial pursuant to section 1181,
subdivision (6). That section states a trial court may grant a new
trial “[w]hen the verdict or finding is contrary to law or evidence.”
11
Because we reverse defendant’s sodomy conviction, we need
not address defendant’s contention that the trial court erred in
sentencing him to consecutive, rather than concurrent, terms on
the counts for forcible rape and forcible sodomy of T.C.
24
(§ 1181, subd. (6).) “‘In reviewing a motion for a new trial, the
trial court must weigh the evidence independently. [Citation.] It
is, however, guided by a presumption in favor of the correctness
of the verdict and proceedings supporting it. [Citation.] The trial
court “should [not] disregard the verdict . . . but
instead . . . should consider the proper weight to be accorded to
the evidence and then decide whether or not, in its opinion, there
is sufficient credible evidence to support the verdict.” [Citation.]’
[Citation.]” (People v. Fuiava (2012) 53 Cal.4th 622, 729-730.) “A
trial court has broad discretion in ruling on a motion for a new
trial, and there is a strong presumption that it properly exercised
that discretion. “‘“The determination of a motion for a new trial
rests so completely within the court’s discretion that its action
will not be disturbed unless a manifest and unmistakable abuse
of discretion clearly appears.’” [Citation.]’ [Citation.]” (Ibid.)
Defendant contends the trial court misunderstood the scope
of its authority, including its duty to independently weigh the
evidence, when ruling on his motion for new trial. Some of the
trial court’s remarks are amenable to such an argument, but
considering the briefing before the court and the court’s remarks
in their entirety, we do not believe the trial court misapplied the
governing legal standard.
In denying the motion, the trial court stated it had read
and considered defendant’s papers, which recited the proper
standard the trial court was to apply in considering motion for
new trial under section 1181, subdivision (6). (See People v.
Risenhoover (1968) 70 Cal.2d 39, 57-58.) Importantly, the trial
court also expressed its own view of M.V. and T.C.’s credibility,
stating their testimony was “overwhelming, especially based on
everything else” and “compared especially to the defendant’s
25
testimony,” which the court deemed “not credible.” This
irrefutably establishes the trial court made an independent
evaluation of testimony by M.V., T.C., and defendant, and the
trial court’s reference to “everything else” is fairly read to
encompass the other evidence presented at trial. To be sure, the
court did also remark that there was “certainly sufficient
evidence . . . to support the conclusion by the jury that the
defendant was guilty beyond a reasonable doubt of all of the
charges” and that “the jury certainly had sufficient evidence to
prove beyond a reasonable doubt that the defendant was guilty.”
These expressions are framed in terms of what the jury had done,
but the court made those remarks in the context of explaining the
jury, like the court, had been able to look at the witnesses as they
testified, a fact the court deemed “very important” in “this
particular case.” The trial court at no point indicated it was
bound or otherwise constrained by the jury’s verdicts; to the
contrary, the court’s comments demonstrate that its view of the
evidence—particularly the “overwhelming” credibility of T.C. and
M.V.—was consistent with the jury’s conclusions.12 Although it
may “have been preferable for the court to have been more
specific, stating it was denying the motion based on its
independent weighing of the evidence, its failure to do so and its
use of less than artful language cannot be equated with having
applied the wrong standard.”13 (People v. Price (1992) 4
Cal.App.4th 1272, 1276.)
12
The trial court’s comment that defendant had a total lack of
credibility when he testified also supports this view.
13
Defendant argues the court here did not express its own
view of the evidence, contending the case is akin to People v.
26
B. The Trial Court Did Not Err in Instructing the Jury
on Adoptive Admissions
““‘[B]efore a jury can be instructed that it may draw a
particular inference, evidence must appear in the record which, if
believed by the jury, will support the suggested inference
[citation].” [Citation.]’ [Citation.]” (People v. Alexander (2010) 49
Cal.4th 846, 920-921; see also People v. Chism (2014) 58 Cal.4th
1266, 1298 [error to instruct on adoptive admissions where “there
was no properly admitted evidence of an adoptive admission”].)
“‘[A] trial court has broad discretion to determine whether a
party has established the foundational requirements for a
hearsay exception[,]’” and we review its “‘conclusions regarding
foundational facts for substantial evidence.’ [Citation.]” (Chism,
supra, at 1297.)
Defendant argues it was error to give CALCRIM No. 357 on
adoptive admissions because the pretext calls provided no basis
Robarge (1953) 41 Cal.2d 628, People v. Watts (2018) 22
Cal.App.5th 102, and People v. Carter (2014) 227 Cal.App.4th 322at 328. That reflects a mistaken view of the record for reasons we
have already explained, but none of defendant’s cited cases is
analogous in any event. In both Robarge and Carter, the trial
courts stated they had different views of the evidence than the
jury did. (Robarge, supra, 41 Cal.2d at 634 [trial court made
remarks demonstrating it disbelieved witness testimony and
entertained serious doubts as to identification of defendant];
Carter, supra, 227 Cal.App.4th at 326, 328 [trial court stated it
would have weighed the evidence differently than the jury, and
found defendant’s alibi evidence credible].) In Watts, supra, at
113 the court repeatedly stated it could not reweigh the evidence,
and said it was not its place to second guess the jury. There are
no parallels to the trial court’s ruling here.
27
to infer defendant impliedly admitted to criminal activity. He
asserts “[t]here was nothing that [M.V.] said that accused
[defendant] of criminal activity that he failed to deny.” That,
however, overstates matters.
Defendant’s responses to M.V. during the pretext calls did
not deny all of her accusations. For example, during one of the
calls, M.V. stated defendant choked her the morning after the
rape. Defendant responded by asserting M.V. was the initiator of
their aggressive sexual encounter. While a jury might reasonably
view that as an attempted justification for defendant’s actions, it
does not, in fact, deny M.V.’s statement that defendant choked
her. The jury could reasonably have construed defendant’s
response (or lack of response to the direct statement that he had
choked M.V.) as a tacit admission to having done so—and used
that fact (the choking) as part of its deliberations on guilt. (See,
e.g., People v. Riel (2000) 22 Cal.4th 1153, 1189 [a defendant’s
“silence, evasion, or equivocation” may be considered a tacit
admission], italics added.) During a different call, M.V. said
defendant broke his glasses the morning after the rape and she
thought he was angry at her. Defendant’s response—claiming he
was not angry at her—again is not a denial of M.V.’s assertion
that he broke his glasses by hurling them against a wall (and the
jury could infer from that unaddressed fact that defendant was
indeed angry).
A reasonable juror could have interpreted defendant’s
failure to deny M.V.’s statements, or parts thereof, as
incriminating admissions. The trial court did not instruct the
jury that it must consider defendant’s silence, evasion, or
equivocation on these points to be admissions. Rather, the trial
court gave the jury an instruction that gave them the legal
28
framework to properly decide whether they were. That was
appropriate.14
C. The Trial Court Had No Sua Sponte Duty to Instruct
on Simple Assault
“‘[A] trial court must instruct a criminal jury on any lesser
offense “necessarily included” in the charged offense, if there is
substantial evidence that only the lesser crime was committed.’
[Citation.]” (People v. Smith (2013) 57 Cal.4th 232, 239.) “‘[T]he
existence of “any evidence, no matter how weak” will not justify
instructions on a lesser included offense, but such instructions
are required whenever evidence that the defendant is guilty only
of the lesser offense is “substantial enough to merit
consideration” by the jury. [Citations.] “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. [Citations.]’ [Citation.]”
14
Insofar as defendant’s argument is that he denied all
statements that outright accused him of committing a crime and
that was enough to preclude an adoptive admission instruction,
the argument is unpersuasive. Adoptive admissions (like other
admissions) are admissible not only when they are outright
admissions to having committed a crime but also when they are
merely incriminating, i.e., they have a “tendency in reason to
prove or disprove any disputed fact that is of consequence to the
determination of the action.” (Evid. Code, §§ 210, § 1221;
CALCRIM No. 357 [“If you conclude that someone made a
statement outside of court that (accused the defendant of the
crime/ [or] tended to connect the defendant with the commission of
the crime) and the defendant did not deny it . . .”], italics added.)
That is the case here.
29
(People v. Hughes (2002) 27 Cal.4th 287, 366-67.) “‘“[I]f there is
no proof, other than an unexplainable rejection of the
prosecution’s evidence, that the offense was less than that
charged, [instructions on lesser included offenses] shall not be
given.”’ [Citation.]” (People v. Friend (2009) 47 Cal.4th 1, 52-53.)
Our review of whether the trial court erred by not instructing on
a lesser included offense is de novo. (People v. Licas (2007) 41
Cal.4th 362, 366.)
Simple assault under section 240 is necessarily included in
the offense of assault by means likely to inflict great bodily injury
under section 245. (People v. Yeats (1977) 66 Cal.App.3d 874,
879; People v. Rupert (1971) 20 Cal.App.3d 961, 968.) The
question here is thus whether there is substantial evidence on
which a reasonable jury could have concluded defendant
committed the lesser offense of simple assault on M.V. but not
the greater offense of assault by means likely to inflict great
bodily injury.
Simple assault is “an unlawful attempt, coupled with a
present ability, to commit a violent injury on the person of
another.” (§ 240.) Assault by means of force likely to inflict great
bodily injury, in contrast, requires an assault committed by
means of force “which is significant or substantial, not
insignificant, trivial or moderate.” (People v. Armstrong (1992) 8
Cal.App.4th 1060, 1066 [defining great bodily injury]; see also
People v. Washington (2012) 210 Cal.App.4th 1042, 1047 [some
physical pain or damage, such as abrasions, lacerations, and
bruising is sufficient to show great bodily injury].) A person can
be guilty of an assault by means of force likely to cause great
bodily injury even when causing no injury—so long as the
person’s actions made a serious injury likely. (People v. Drayton
30
(2019) 42 Cal.App.5th 612, 617; see also People v. McDaniel
(2008) 159 Cal.App.4th 736, 748 [evidence need not establish
great bodily injury, but only that defendant exerted sufficient
force to inflict such an injury]; People v. Aguilar (1997) 16 Cal.4th
1023, 1028 [“[T]he use of hands or fists alone may support a
conviction of assault ‘by means of force likely to produce great
bodily injury’”].)
Here, there was insufficient evidence defendant committed
simple assault without force likely to cause great bodily injury.
M.V.’s testimony was that defendant choked her hard and long
enough that her vision blacked out. She stated her vision
returned when she was able to draw in oxygen, supporting the
inference that defendant cut off her breathing by choking her.
M.V. also sustained an abrasion to the back of her neck that was
consistent with someone squeezing it. Church also observed
bruises on the front of her neck when he saw her approximately
an hour after she was finally able to leave defendant’s home.
This is strong evidence of force sufficient to impede a victim’s
breathing, and that is force likely to produce great bodily injury.
(See, e.g., People v. Covino (1980) 100 Cal.App.3d 660, 664-665,
667-668 [evidence that the defendant squeezed victim’s neck,
victim appeared to be gasping and choking, and photographs at
the scene showed redness on her neck and back established force
likely to produce great bodily injury].)
In his effort to argue the record nonetheless includes
substantial evidence of simple assault, defendant points to the
lack of injury to the front of M.V.’s neck, his perception of
ambiguity in her testimony about whether she became
unconscious when defendant choked her the first time, and her
testimony that she did not lose consciousness the other two times
31
defendant choked her. None of these factors establish defendant
acted without force likely to cause great bodily injury. The
degree of force required to cause M.V.’s vision to black out and to
cause abrasions to the back of her neck cannot be described as
“insignificant, trivial or moderate.” (Aguilar, supra, 16 Cal.4th at
1028.) Further, Church’s testimony establishes that M.V. had
some visible marks on the front of her neck shortly after the
assault, even if no bruises were visible by the time she underwent
the sexual assault examination.
What we have already said establishes there was no error.
But in addition, defendant denied choking M.V. at all during his
own sworn testimony during trial. The jury was therefore
effectively left with two choices. It could credit M.V.’s testimony
and conclude defendant choked her with sufficient force to cause
her vision to black out, or it could reject that testimony in favor of
defendant’s. No lesser included offense instruction was required
under such circumstances. (People v. Nguyen (2015) 61 Cal.4th
1015, 1052; People v. Sinclair (1998) 64 Cal.App.4th 1012, 1019-
1020 [duty to instruct on lesser included offenses is circumscribed
“when there is a complete denial of any complicity in the charged
crime by the accused”].)
D. Substantial Evidence Does Not Support Defendant’s
Sodomy Conviction
When considering a challenge to the sufficiency of the
evidence to support a conviction, “‘“we review the entire record in
the light most favorable to the judgment to determine whether it
contains substantial evidence—that is, evidence that is
reasonable, credible, and of solid value—from which a reasonable
trier of fact could find the defendant guilty beyond a reasonable
32
doubt.”’” (People v. Williams (2015) 61 Cal.4th 1244, 1281.) The
standard is deferential, but the requisite substantial evidence is
lacking here as to one of the essential elements of the charged
sodomy offense.
“Sodomy is sexual conduct consisting of contact between
the penis of one person and the anus of another person. Any
sexual penetration, however slight, is sufficient to complete the
crime of sodomy.” (§ 286, subd. (a).) Viewing the evidence in the
light most favorable to the judgment and considering T.C.’s
testimony sufficient to establish there was some sort of anal
penetration, the record still lacks sufficient evidence the
penetration consisted of contact between defendant’s penis and
T.C.’s anus.
T.C. testified at trial that she felt an abrupt, piercing pain
in her rectum at some point while defendant was on top of her.
She could not remember if her clothes were on or off at the time.
T.C. did not testify the pain was caused by any contact with
defendant’s penis. Nor did she testify to any contact between
defendant’s penis and her anus, painful or otherwise.
No other evidence admitted at trial supplies what is
missing. T.C.’s sexual assault examination did not result in any
assault related findings in the area of her anus or rectum. The
video of defendant’s assault of T.C. also does not supply adequate,
non-speculative evidence of penis-anus penetration either. Thus,
the most that can be said for the jury’s verdict on the forcible
sodomy count is that there was some anal penetration and it is
equally possible that penetration could have been caused by
defendant’s penis or one or more of his fingers. “When the facts
give equal support to two competing inferences, neither is
33
established.”15 (People v. Acevedo (2003) 105 Cal.App.4th 195,
198; see also People v. Moore (2011) 51 Cal.4th 386, 406 [“That an
event could have happened . . . does not by itself support a
deduction or inference it did happen”].)
15
The Attorney General argues the evidence was sufficient
because the jury was entitled to believe T.C.’s testimony and any
reasonable inferences from that testimony. The jury was so
entitled, and it could (and did) certainly credit her testimony that
she felt a piercing pain in her rectum and that defendant was on
top of her when she felt it. That testimony, without something
more (and there was no more), does not provide a basis to infer
defendant sexually penetrated her anus with his penis. And
proof of that is what was necessary for the sodomy offense with
which defendant was charged.
34
DISPOSITION
Defendant’s conviction on count three, sodomy by use of
force, is reversed. The remainder of defendant’s convictions are
affirmed. The matter is remanded to the trial court with
directions to resentence defendant.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, Acting P. J.
We concur:
MOOR, J.
KIM, J.
35