People v. Briseno CA2/4

Filed 1/11/21 P. v. Briseno CA2/4
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B297164
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. PA088460)
v.
FRANK BRISENO,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, David W. Stuart, Judge. Reversed as to
count two, remanded in part with instructions and affirmed in all
other respects.
Waldemar D. Halka, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, David E. Madeo and Thomas C. Hsieh, Deputy
Attorneys General, for Plaintiff and Respondent.
A jury convicted appellant Frank Briseno of eight counts
arising from the assault of victim Angela and the kidnapping and
rape of victim Claudia. Appellant raises a staggering 24 issues
on appeal, including multiple challenges to the admission of
uncharged sex offenses against a third victim, Ashley; challenges
to the assault conviction; arguments regarding the omission of
lesser included instructions, and several claims regarding
enhancements and sentencing. We agree with appellant that
reversal of his conviction on count two for kidnapping is
warranted, as it is a lesser included offense of his count three
conviction for aggravated kidnapping. We otherwise reject his
numerous assertions of error and affirm his convictions.
However, we conclude that remand is appropriate to allow the
trial court to exercise its independent discretion whether to strike
the prior serious felony conviction enhancement. Conversely,
defendant has forfeited any challenge to the imposition of fines
and fees at his sentencing, and therefore we decline to remand on
that additional basis. We also direct the trial court to correct the
judgment with respect to certain fines and fees imposed.
PROCEDURAL HISTORY
On November 16, 2018, the Los Angeles County District
Attorney filed an amended information charging appellant with
the following nine counts: assault with intent to commit a felony
(Pen. Code, § 2201; count one); kidnapping (§ 207, subd. (a); count
two); kidnapping to commit rape (§ 209, subd. (b)(1); count three);
four counts of forcible rape (§ 261, subd. (a)(2); counts four, five,
seven, and eight); forcible oral copulation (§ 288a, subd. (c)(2);
1All further statutory references are to the Penal Code
unless otherwise indicated.
2
count six); and second degree robbery (§ 211; count nine). The
amended information alleged that appellant committed count one
against Angela on June 24, 2004, and the remaining counts
against Claudia on July 12, 2004.2 The amended information
further included One Strike kidnapping allegations under section
667.61 (counts four through eight) and a firearm use
enhancement under sections 12022.3, 12022.53, and 12022.5
(counts two through eight). Additionally, as to all counts, it was
alleged that appellant suffered a prior strike conviction (§§ 667,
subds. (b)-(i), 1170.12, subds. (a)-(d)) and two prior serious felony
convictions (§ 667, subd. (a)(1)).
The jury acquitted appellant on count eight and found
appellant guilty on all other counts. The jury also found the
enhancement allegations true. The court sentenced appellant to
a total prison term of 50 years to life, plus 80 years, consisting of
the following: on count one, the upper term of six years, doubled
pursuant to appellant’s prior strike, plus five years for the prior
serious felony convictions (§ 667, subd. (a)(1)); on count four, a
consecutive term of 25 years to life,3 doubled, plus additional
consecutive terms of 10 years for the firearm enhancement
(§ 12022.53, subd. (b)), and five years for the prior convictions
2Appellant was apprehended in Mexico in 2013. He was
initially charged with offenses against Angela, Claudia, and
Ashley, but those charges were dismissed when Ashley refused to
cooperate. The People refiled the charges involving Angela and
Claudia in 2017.
3On counts four through seven for rape and oral copulation,
the court applied the sentencing scheme pursuant to section
667.61, commonly known as the “One Strike” law (see People v.
Anderson (2009) 47 Cal.4th 92, 99).
3
(§ 667, subd. (a)(1)); and on counts five through seven,
consecutive terms of eight years each, doubled. The court also
imposed a 16 year term on count two, a life term on count three,
and a 10 year term on count nine, but stayed those sentences
pursuant to section 654. The court also imposed $140 in court
security assessments, as well as a $200 restitution fine and a
$200 parole restitution fine. Appellant timely appealed.
FACTUAL BACKGROUND
I. Prosecution Evidence
A. Angela
Angela testified that on the morning of June 24, 2004,
when she was about 21 years old, she went for a run at El Cariso
Park in Sylmar, California. As she was running, she noticed a
man leaning against a tree and it “brought about a weird feeling
in my stomach.” She continued her run up a hill behind the golf
course and felt someone coming up behind her. She moved to the
side, thinking the person was going to pass her. As she did, the
person put both arms around her and grabbed her from behind
“like he was going to take me down.” He then pulled her pants
down to her thighs. Angela testified that she thought he was
going to rape her. She said, “please, don’t,” and stepped
backwards to push the man back, causing him to fall. Angela
glanced back and saw the same man she had seen leaning on the
tree earlier. At trial, she identified appellant as her assailant.
Angela testified that she ran away and called 911. She told
the 911 operator that she was running in the park, and “a guy
came up from behind me and he tried to . . . rape me.” She also
stated that he “tried to pull down my pants.” She described her
assailant as a Hispanic male in his 20’s, with a medium build.
4
A few weeks after the attack, on July 12, 2004, the police
showed Angela a photographic six-pack lineup. The lineup did
not include a photo of appellant. Angela was unable to make an
identification from the lineup. On July 16, 2004, she saw a news
bulletin on television about a rapist with a photo of appellant. At
trial, Angela testified that when she saw the news bulletin, “I
knew it was the same person that did that to me.” However,
during cross-examination she acknowledged that she told the
police on July 16, 2004 that she was not sure whether it was the
same person who attacked her. Later that day, detective Teresa
Curtis of the Los Angeles Police Department (LAPD) came to her
house and showed her the same picture of appellant. At that
point, Angela testified that she “felt that it was him,” and began
shaking and crying. Detective Curtis also testified that when she
met with Angela and showed her appellant’s photo, Angela
“immediately started to shake and started to cry,” and said that
appellant was the person who assaulted her. At trial, Angela
described her assailant as a Hispanic man in his mid-20’s, with a
fade haircut and mustache, wearing blue pants and a white shirt.
Hugh Hoopes testified that he was at the park with his
child on June 24, 2004. He noticed a man coming from the
direction of the golf course and “meandering” past him, and he
thought it was “kind of weird” because he had not seen that man
anywhere else in the park. He described the man as Hispanic,
five foot six inches, between 150 and 180 pounds, in his mid-20’s,
wearing a white T-shirt and blue jeans, with a thin mustache.
About 20 minutes later, the police arrived and asked him if he
had seen anything suspicious. He told the police about the man,
whom he said was acting suspiciously. The police also told
Hoopes that someone had been raped in the park bathroom.
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About two months later, he picked a photograph of
appellant out of a six-pack lineup as the closest resemblance to
the man he had seen.
B. Claudia
In the afternoon on July 12, 2004, 20-year-old Claudia got
off the bus near her home in Arleta, California, after a trip to the
store. Claudia testified that as she started walking home, she
noticed a “strange man” inside a gray Ford Focus looking at her.
She identified that man at trial as appellant. Appellant got out
of his car and asked if she wanted a ride home. She said no and
kept walking. As she approached an alley, appellant stopped his
car in the alley’s entrance, got out of the car again, and came up
behind her. Claudia said that appellant grabbed her around the
neck, pointed a gun to her head, and told her to “get in the car
and do not make anything complicated.”
Appellant pushed her into the front passenger seat of the
car and told her not to make any movements. He then drove the
car a little more than halfway down the alley, which she
estimated was about 18 houses into the alley from the street.
Appellant parked the car with the passenger doors close to a wall
so that Claudia could not get out. They sat in the car for five
minutes without either one saying anything. Then appellant
pulled down his shorts. He told Claudia to suck his penis and she
complied.
After a few minutes, appellant pushed Claudia onto her
side, removed her shoes, and pulled down her pants. He moved
over to the front passenger seat on top of her and began
penetrating her vagina with his penis. Claudia told the police
that prior to penetrating her vagina, appellant spit into his hand
as a form of lubricant. After a few minutes, appellant told
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Claudia to move to the back seat. She complied, he followed, and
then began penetrating her vagina with his penis a second time.
After about five minutes, appellant moved Claudia from behind
the driver’s seat to behind the passenger’s seat and began
penetrating her vagina again. She stated that she was crying
and asking him to stop, but he did not listen.
After several more minutes, he shifted her to the other side
of the back seat again and began penetrating her vagina a fourth
time. Claudia saw a green Jeep driving by the alley, and saw
appellant looking at the driver. She started to try to give the
driver a sign, but appellant told her not to do anything, if she did
not “wanna die right there.” During the incident, appellant’s gun
was on the seat next to them, but then it fell to the floor of the
car.
After the Jeep passed by, appellant moved Claudia again
and penetrated her briefly. She asked him not to “finish in me
because I don’t want to be pregnant.” Appellant responded: “I’m
not stupid enough to leave evidence.” After that, he withdrew his
penis and ejaculated on the back seat of the car.
Appellant then pulled up his pants and went back to the
front seat. Claudia began to pull up her pants and appellant
threw her shoes from the front seat to the back. She asked if she
could go and he said she could. Once she was outside the car,
appellant handed her a piece of paper with the name Jose and a
phone number written on it. He told her: “Here’s my phone
number. If you want to call the cops, go ahead. I don’t care. You
know, I had already killed someone three days ago and they are
looking for me.” Appellant told her he was going to fill up his gas
tank and leave for Oregon. He also told her that she “was lucky
enough that he left me alive, because usually . . . when he does
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that to the girls, he kills them after he does that to them.”
Claudia asked appellant for her purse, which was still in
the car and contained her identification, a Universal Studios
season pass, and her cell phone. Appellant refused, drove down
the alley, and left. Claudia left the alley and encountered
someone she knew on the street. He saw her crying and asked if
she needed anything. She asked him to take her around the
corner to her neighbor’s house so that she could get to a phone.
He drove her there and her neighbor’s husband let Claudia use
his phone to call the police.
Claudia testified that she was “crying, shaking” during her
911 call. She told the police that about six minutes earlier, she
had been assaulted at gunpoint and raped in an alley by a
“Mexican guy.” She reported that the assailant pointed a gun to
her head and told her if she did not get into his car that he would
kill her. She described the assailant as in his 20’s, almost bald,
and driving a gray Ford Focus.
About an hour after the assault, Claudia was interviewed
by police and examined by a Sexual Assault Response Team
(SART) nurse. Afterward, LAPD detective John Alviani and his
partner accompanied Claudia to the crime scene. There, they
saw Angel Cornejo, the man who had been driving the green Jeep
during the assault. Detective Alviani testified that the rape
occurred approximately 18 houses down the alley from the street.
The alley has the backs of single family residences on either side,
with access for the residential garages. Alviani testified that it is
“more remote” than the street.
Police also prepared a sketch based on Claudia’s
description. She described her assailant to the police as having a
“blackish-reddish” beard, “a little bit” of black spiky hair on his
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head, medium build, about five foot six inches tall, and 150
pounds. A few days after the assault, Claudia reviewed a
photographic six-pack lineup that included a photo of appellant’s
brother, Carlos Grimaldi, but no photo of appellant. Claudia
identified Grimaldi as her assailant.
Angel Cornejo, the driver of the green Jeep Cherokee,
testified that in 2004 he lived in a house that backed up to the
alley where the assault occurred. His garage was accessible
through the alley. On the afternoon of July 12, 2004, he was
returning home and drove down the alley to park. As he drove
down the alley, he passed a parked vehicle facing the other way
and saw two people in the backseat. He thought they were going
to have sex and did not think anything further of it. The man in
the vehicle looked at him and the woman sat up and looked at
him for a few seconds as he drove past. Cornejo identified
appellant at trial as the man he saw in the car.
The parties stipulated that appellant’s DNA matched
samples taken from Claudia’s pants worn the day of the incident
and from the backseat of the Ford Focus. They also stipulated
that appellant’s fingerprints were found on dance club flyers
discovered inside the Ford Focus. The scrap of paper appellant
handed Claudia appeared to come from one of the flyers.
C. Ashley – uncharged acts
Ashley testified that she was 14 years old in 2004. On the
morning of July 13, 2004, she was walking to work on Van Nuys
Boulevard when a man in a vehicle approached her. She was
forced into the car. She testified that she remembered that she
was raped, but did not remember any of the details. She also
recalled telling her coworkers what happened that day and
participating in a suspect drawing with a police sketch artist.
9
LAPD Detective John Eum testified that he met with
Ashley on July 13, 2004, along with his partner and a SART
nurse. According to Eum, Ashley reported that while she was
walking to work, a man drove up next to her and asked
repeatedly whether she needed a ride. She said “no” and
continued walking. Eventually, the man parked his car, got out,
and started walking with her. After she told him “no” again, he
got back in the car, pulled up next to her, pointed a gun at her,
and told her to get in the car. Ashley complied.
Once she was in the car with the man, he drove her to
Arleta and parked in an alley. Ashley reported that after he
parked the car, the man reclined her seat back and then reached
into her shirt and touched her breasts. She pulled his hands
away and he exclaimed: “What the ‘f’ are you doing? I told you
just do what I say.” Then the man pulled down his pants and
demanded that she “jack him off.” After making her masturbate
him, he made her orally copulate him. Next, Ashley stated that
the man spit into his hand and put it on his penis, then climbed
over to the passenger seat on top of her and put his penis into her
vagina. At some point, he made Ashley move into the back seat,
where he again inserted his penis into her vagina. The man told
her not to tell anyone because he had already killed somebody,
the police were looking for him, and he was going to flee to
Colorado. Afterward, the man dropped Ashley off at her
workplace, which scared her because she had not told him where
she worked.
According to Eum, Ashley described her assailant as white
or light-skinned Hispanic, about 20 years old, with brownish-
reddish hair and a mustache. During the first interview, Ashley
stated that it was a white compact car with gray interior. But
10
later, when detectives met with her again, they showed her
pictures of the gray Ford Focus that had been recovered and she
said that was the car.
Ashley was shown a six-pack photographic lineup that did
not include appellant’s photo on July 15, 2004. She was not able
to make an identification. After police asked her to eliminate
photos, she eliminated four of them and wrote that the remaining
two photos looked like her assailant, but she was not sure. One
of the remaining photos was of appellant’s older brother, Carlos
Grimaldi. Grimaldi is three and a half years older than
appellant. Eum investigated both brothers in 2004 and opined at
trial that their photos “look almost exactly alike.” Ashley was
never shown a photo of appellant.
D. Additional Investigation
On July 13, 2004, LAPD officer Michael Hammett
responded to a call regarding suspicious activity in a vehicle in
Arleta. He arrived at the scene at 11:05 p.m. and saw appellant
lying down in the back of a gray Ford Focus. Appellant gave his
name as Javier Lopez and an address on Stanwin Avenue in
Arleta. He told the officer that the vehicle was his friend’s car
and his friend had let him sleep there after appellant had been
kicked out of his mother’s house a few nights before. Hammett
ran the vehicle’s license plate and discovered that it was not
registered to Javier Lopez (or as a later check revealed, to Frank
Briseno), or to the Stanwin address he gave. Hammett testified
that he impounded the Ford Focus but released appellant
because they did not have a basis to arrest him. Hammett
noticed that the man he stopped had a tattoo of a naked woman
on his forearm; the parties stipulated that this matched the
tattoo on appellant’s arm.
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Detective Alviani, who was investigating Claudia’s case,
learned on July 13, 2004 that police had impounded a gray Ford
Focus. He and his partner searched the vehicle and found
Claudia’s identification and Universal Studios pass in the front
driver’s side door panel.
Alviani also went to the Stanwin Avenue address appellant
had given Hammett. They spoke with the resident, Blandina
Ochoa. She said she did not know anyone named Javier Lopez
(the name appellant gave Hammett). Alviani gave her a
description of the suspect and showed her the composite sketch
created with Claudia. Ochoa said she did not recognize the
sketch and that she had one son, Carlos Grimaldi.
The detectives investigated Grimaldi, whose description
and photo looked similar to the description provided by Claudia.
They showed Claudia a six-pack photographic lineup including
Grimaldi’s photo, and she identified Grimaldi’s photo. They took
Grimaldi into custody on July 14, 2004. While Grimaldi was in
custody, Alviani looked at Grimaldi’s cell phone and saw an
incoming call on July 13, 2004 made from Claudia’s stolen cell
phone number. The police ultimately ruled out Grimaldi as a
suspect, released him, and turned their focus to his brother,
appellant.
With Grimaldi’s cooperation, police placed a pretextual call
to Ochoa at her residence. Ochoa told Grimaldi that appellant
was at the house. However, when police arrived, appellant was
not there. In a search of the house, police discovered clothing in a
closet including white and yellow Lakers shorts matching the
ones appellant wore when he was detained by Hammett, knee-
length gray shorts with black stripes, and plaid boxer shorts.
Alviani testified that he believed the gray shorts matched the
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length, material, and design of the shorts Claudia described her
assailant wearing, although she stated the shorts were green
with black stripes instead of gray. Alviani further testified that
the boxer shorts matched the description given by Ashley as worn
by her assailant.
Ashley’s rape took place 0.4 miles from appellant’s mother’s
house. The Ford Focus was recovered 0.2 miles from the house.
Claudia’s rape occurred less than a mile from the house. Angela’s
attack occurred seven miles from the house.
After the raid on the home, the police broadcast appellant’s
photo to the media with a crime bulletin regarding the
kidnapping and rape of Claudia and Ashley. The case was also
featured twice on the television show America’s Most Wanted.
In 2013, the LAPD received information that appellant was
in Mexico. Appellant was taken into custody in Mexico in July
2013 and transferred back to the United States.
II. Defense Evidence
Defense expert Dr. Mitchell Eisen, a forensic psychologist,
testified about human memory and issues with eyewitness
identification. In particular, he opined that showing a single
individual for identification purposes was inherently suggestive.
Appellant testified and denied raping Claudia or Ashley
and denied ever owning a gun. He testified that he met Claudia
in July of 2004. He was standing outside, leaning on the Ford
Focus, when he saw her walking down the street. He spoke to
her and they had a friendly conversation for 10 to 15 minutes.
They agreed to “smoke some weed” together and appellant
suggested they drive around the block. They got in the car and
started to drive.
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Appellant ultimately drove into the alley and parked to one
side against the wall so as not to block any residential garages.
Then they smoked marijuana together. They started “flirting”
with each other and eventually had consensual sex in the back
seat of the car. Afterward, they dressed and Claudia got out of
the rear driver’s side door. He then drove away. He denied
giving Claudia a piece of paper with a name and phone number
on it. He also denied that Claudia asked for her purse and
claimed he did not know it was still in the car when he drove off.
He testified that later his friends discovered the purse and went
through it. He did not know how Claudia’s identification and
Universal Studios pass ended up in the front driver’s side panel.
He did take her phone, but did not remember what he did with it
or whether he called his brother. He also said he did not know
why Claudia would be crying and calling 911 six minutes after
their encounter.
Appellant testified he had never been to the park where
Angela was assaulted and never pulled down a jogger’s pants. He
denied offering Ashley a ride and claimed he was hanging out
with friends the morning of July 13, 2004. He testified that he
had never seen Ashley before.
Appellant testified that when he was stopped by Hammett,
he was “resting” in the back seat of the Ford Focus. He testified
that the car was not his; it was rented by someone else. He
admitted giving the officer a made-up name because he knew
there was a warrant out for him on another matter and he did
not want to get arrested. He admitted to three prior felony
convictions – a residential burglary, a 2003 assault by means
likely to produce great bodily injury, and a 2003 spousal battery.
He did not surrender to serve his jail time for the 2003 case, but
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instead moved to Hollywood.
Appellant claimed that he did not know he was wanted on
rape charges until he was arrested in 2013. He admitted that the
Lakers shorts from his mother’s house were his, but said the
other clothing was not. He testified that he continued to live in
Hollywood from 2004 to 2008 and then moved to Mexico because
his child’s mother was threatening to call the police for the
outstanding 2003 warrant.
DISCUSSION
Appellant’s claims on appeal can be divided into several
categories: (1) arguments that his conviction on all counts should
be overturned because the court erred in admitting evidence
regarding the uncharged offenses involving Ashley (issues 1
through 8); (2) challenges to the count one assault conviction
involving Angela (issues 9 through 13); (3) assertions of
instructional error regarding omission of lesser included offenses
(issues 14 through 16); and (4) challenges to enhancements and
sentencing, as well as a request for in camera review of an ex
parte hearing (issues 17 through 24). Respondent also seeks
correction of errors made to the imposition of fines and fees (issue
25).
Issues 1-8: Challenges to Evidence of Uncharged Offenses
Involving Ashley
I. Preliminary Finding of Identity as Foundation for
Admission
Appellant argues that the court erred in admitting evidence
of appellant’s uncharged offenses against Ashley because it failed
to make a preliminary finding of fact that he was Ashley’s
assailant. We conclude the court was within its discretion to find
that there was sufficient evidence of appellant’s identity as
15
Ashley’s assailant to allow the evidence to go to the jury.
A. Factual background
After refiling the charges against appellant without those
involving Ashley, the prosecution did not call Ashley as a witness
during the preliminary hearing. At trial, the prosecutor initially
stated that she planned to call Ashley to testify as a rebuttal
witness if appellant testified and denied the incident. The
prosecutor noted the similarities in the crimes against Claudia
and Ashley: “It was the same vehicle, it was at gunpoint, same
M.O., same – similar facts, same verbiage, same threats . . . lots
of other ways to connect the dots. And it also occurred two blocks
from his house.” Both parties acknowledged that Ashley had
never been shown a photo of appellant and had never identified
him. The court indicated it might allow some rebuttal if
appellant testified. The prosecutor then stated, as an
“alternative,” that she wanted to present Ashley as a witness
under Evidence Code section 1108 (section 1108) during her case
in chief. The court stated it would consider the issue.
Subsequently, the court stated it had considered the
request to present Ashley’s testimony under section 1108 and
decided it was “really not that close of a call. It’s 1108 evidence. .
. . I understand it’s powerful testimony, but I don’t see any
actual unfair prejudice to the defendant here.” The court detailed
the “similarity between the two incidents,” including where the
incidents occurred, and that they occurred one day apart under
“similar circumstances. And so it is certainly similar enough to
submit to a jury.”
The prosecution called Ashley as part of its case in chief.
Prior to Ashley’s testimony, the court instructed the jury that it
would hear evidence of uncharged offenses and could consider
16
that evidence “only if the People have proved by a preponderance
of the evidence that the defendant, in fact, committed the
uncharged offense.” Further, the court told the jury that if the
prosecution did not meet this burden, it must “disregard this
evidence entirely.” If proven, the jury was instructed that it
could, but was not required to, “conclude from the evidence that
the defendant was disposed or inclined to commit sexual offenses
and, based on that decision, also conclude that the defendant was
likely to commit and did commit the charges in this case. . . . You
may not consider this evidence for any other purpose.”
B. Legal Principles
Section 1108 “is an exception to the general prohibition
against admitting character evidence to prove criminal
disposition or propensity.” (People v. Jandres (2014) 226
Cal.App.4th 340, 352–353 (Jandres); see also Evid. Code, § 1101,
subd. (a); People v. Falsetta (1999) 21 Cal.4th 903, 911.) “In a
sexual offense prosecution, the statute permits the admission of
evidence that the defendant ‘committed other sexual offenses to
prove his propensity to commit the charged sexual offense[ ],’ so
long as the evidence is admissible under section 352.” (Jandres,
supra, 226 Cal.App.4th at p. 353, quoting People v. Cottone (2013)
57 Cal.4th 269, 281 (Cottone); see also § 1108, subd. (a).)
The admissibility of uncharged conduct under section 1108
may depend on the existence of a preliminary fact. Under
Evidence Code section 403, when “[t]he relevance of . . . proffered
evidence depends on the existence of [a] preliminary fact,” the
“proponent of the proffered evidence has the burden of producing
evidence as to the existence of the preliminary fact.” (Evid. Code,
§ 403, subd. (a)(1).) “A defendant’s identity as the person who
committed an uncharged act is a classic example of a preliminary
17
fact necessary to establish relevance. If it cannot be shown that
the defendant did the uncharged act, the fact that ‘somebody’ did
it is irrelevant. [Citations.] Under section 403, then, the trial
court performs a threshold screening function to shield the jury
from evidence that is so factually weak as to undermine its
relevance.” (Cottone, supra, 57 Cal.4th at p. 284.)
Thus, the trial court “must make a preliminary
determination of whether the proffered evidence is sufficient for
the jury to find, by a preponderance of the evidence,” that the
defendant committed the uncharged offense. (Jandres, supra,
226 Cal.App.4th at p. 353; see also Cottone, supra, 57 Cal.4th at
p. 282; People v. Lopez (2007) 156 Cal.App.4th 1291, 1299 [“the
more lenient preponderance of the evidence standard” applies to
prior sexual offense evidence admitted under § 1108].) “The court
should exclude the proffered evidence only if the ‘showing of
preliminary facts is too weak to support a favorable
determination by the jury.’” (People v. Lucas (1995) 12 Cal.4th
415, 466.)
“The decision whether the foundational evidence is
sufficiently substantial is a matter within the court’s discretion.”
(People v. Lucas, supra, 12 Cal.4th at p. 466.) Accordingly, we
review the trial court’s determination of preliminary facts under
the abuse of discretion standard. (See Jandres, supra, 226
Cal.App.4th at p. 353.)
C. Analysis
Appellant contends there was insufficient evidence to
identify him as Ashley’s assailant and, therefore, that the
evidence of the uncharged offenses should not have been
admitted at trial. He relies on a series of cases beginning with
People v. Albertson (1944) 23 Cal.2d 550 (Albertson) for the
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proposition that the court improperly “used the charged Claudia
offenses and Claudia’s identification of defendant as her assailant
to establish the identity of defendant for the uncharged Ashley
offenses.”
Appellant’s citation to Albertson to support his claim that
the court erroneously admitted the Ashley offenses without
proper proof that he committed those crimes is unavailing. In
Albertson, the defendant was convicted of murdering an
acquaintance based on “purely circumstantial” evidence that he
mailed the victim poisoned vitamins. (Albertson, supra, 23
Cal.2d at p. 563.) The evidence consisted primarily of the
uncertain identification by several witnesses involved with the
preparation of the vitamin package. (Id. at pp. 563-565.) There
was no evidence of motive or that the defendant placed the poison
into the vitamins, even if he had mailed them. (Id. at p. 567.)
The Supreme Court reversed the defendant’s conviction
because the trial court permitted the prosecutor to introduce
“hundreds of pages of testimony” regarding the suspicious
circumstances of a prior assault of the victim approximately six
weeks before the murder, where the victim was unable to identify
his attacker. (Id. at pp. 568-569.) The same night, police found a
car registered to the defendant’s wife abandoned a mile away
from the victim’s home and found the defendant “in his
underwear lying on a road.” (Id. at pp. 569-571.) The court found
that the evidence of the assault showed only a mere suspicion
that Albertson might have been the assailant. (Id. at p. 578.)
The court reasoned, “Circumstantial proof of a crime charged
cannot be intermingled with circumstantial proof of suspicious
prior occurrences in such manner that it reacts as a psychological
factor with the result that the proof of the crime charged is used
19
to bolster up the theory or foster suspicion in the mind that the
defendant must have committed the prior act, and the conclusion
that he must have committed the prior act is then used in turn to
strengthen the theory and induce the conclusion that he must
also have committed the crime charged. This is but a vicious
circle. Here the evidence of suspicious prior occurrences affords
no substantial proof whatsoever connecting defendant in any way
with the charge on which he was tried.” (Id. at pp. 580-581.)
The other cases cited by appellant demonstrate a similar
“bootstrap” process by which tenuous proof of charged and
uncharged crimes are used in a “vicious circle” to strengthen each
other. For example, in People v. Long (1970) 7 Cal.App.3d 586,
591–592, the defendant was charged with passing a forged check.
The court found it was error to admit evidence of three other
forged checks, admittedly forged by someone else, based on an
unsupported “suspicion” that the defendant had aided and
abetted that forger. The court concluded that “by a bootstrap
process, the charged forgery was imputed to defendant by
tenuous evidence of another forgery whose proof was so shaky
that the prosecutor had dismissed it for lack of evidence. . . . The
prosecution tactic set in motion the vicious circle denounced in
Albertson, supra. In the eyes of the jury, defendant's possible
guilt of the crime charged made probable his complicity in the
other three forgeries, while his possible complicity in the other
three forgeries made probable his guilt of the crime charged.”
(Ibid.; see also People v. Martinez (1992) 10 Cal.App.4th 1001,
1006, 1008 [error to admit expert testimony of profile evidence
detailing unconnected theft crimes without any proof connecting
them to the defendant]; People v. Jackson (1967) 254 Cal.App.2d
655, 658 [error to admit evidence of other crimes that were
20
unconnected to the defendant].)4
Here, the evidence of identity in both the charged and
uncharged crimes was far stronger than that in the cases
appellant cites. In contrast to these cases, the evidence of
appellant’s identity in Claudia’s case was not circumstantial, it
was undisputed. Appellant admitted that he had sex with
Claudia in the alley, but contended it was consensual, and denied
kidnapping or robbing her. Further, although Ashley did not
identify appellant as her assailant, she did identify a photo of the
same Ford Focus as the one used in her assault, and she selected
a photo of appellant’s brother as one of two she believed were
closest to her attacker. Moreover, as the trial court found,
numerous similarities between the two crimes provided
additional evidence that appellant committed both: Ashley was
attacked one day after Claudia, both victims reported that they
were offered a ride and then forced into the car at gunpoint, both
were driven to alleyways less than a mile from appellant’s
mother’s home, both times the assailant spit into his hand before
raping the victim, and the descriptions of the assailant by both
Ashley and Claudia was similar. In addition, both victims
4We also note that the key language from Albertson and
Long—stating that “circumstantial proof of a crime charged
cannot be intermingled with circumstantial proof of suspicious
prior circumstances” (Albertson, supra, 23 Cal.2d at p. 580)—was
to some extent derived from a rule that the truth of other crimes
evidence must be proven by clear and convincing evidence, a
standard that was expressly disapproved in People v. Carpenter
(1997) 15 Cal.4th 312, 381-382. As the Carpenter court
confirmed, the standard for admitting evidence of uncharged
crimes is preponderance of the evidence. (Ibid.)
21
reported that after the assault, the assailant told them he had
already killed someone, the police were looking for him, and he
was going to flee to another state.
Thus, the situation that concerned the courts in Albertson
and Long—weak circumstantial evidence of a charged crime
mixing with weak circumstantial evidence of uncharged crimes to
lend credence to both—is not present here. The trial court did
not abuse its discretion in concluding that there was sufficient
evidence for the jury to find, by a preponderance of the evidence,
that appellant committed the uncharged offenses against Ashley.
II. Admission of Ashley Offenses Under Section 352
Appellant also asserts that the court erred in admitting the
uncharged offenses involving Ashley under Evidence Code section
352 because the evidence was substantially more prejudicial than
probative. We disagree.
A. Legal Principles
As discussed in section I, ante, section 1108 permits
admission of evidence of the defendant’s commission of another
sexual offense, as long as the evidence is not inadmissible
pursuant to Evidence Code section 352. (See People v. Erskine
(2019) 7 Cal.5th 279, 295 (Erskine).) “Section 352 articulates the
general rule that ‘[t]he court in its discretion may exclude
evidence if its probative value is substantially outweighed by the
probability that its admission will (a) necessitate undue
consumption of time or (b) create substantial danger of undue
prejudice, of confusing the issues, or of misleading the jury.’” (Id.
at p. 296.)
“‘By subjecting evidence of uncharged sexual misconduct to
the weighing process of section 352, the Legislature has ensured
that such evidence cannot be used in cases where its probative
22
value is substantially outweighed by the possibility that it will
consume an undue amount of time or create a substantial danger
of undue prejudice, confusion of issues, or misleading the jury.
(§ 352.) This determination is entrusted to the sound discretion
of the trial judge who is in the best position to evaluate the
evidence.’” (People v. Falsetta (1999) 21 Cal.4th 903, 917-918
(Falsetta).) The trial court’s admission of evidence under these
provisions is reviewed for an abuse of discretion. (See Erskine,
supra, 7 Cal.5th at p. 296; People v. Kipp (1998) 18 Cal.4th 349,
369-371.) We do not disturb that ruling on appeal absent a
showing that the court exercised its discretion in an “arbitrary,
capricious, or patently absurd manner” that resulted in a
“manifest miscarriage of justice.” (People v. Rodriguez (1999) 20
Cal.4th 1, 9-10.)
Under section 352, “evidence of past sexual offenses
proffered under section 1108 requires the court to ‘undertake[ ] a
careful and specialized inquiry to determine whether the danger
of undue prejudice from the propensity evidence substantially
outweighs its probative value.’” (Erskine, supra, 7 Cal.5th at p.
296, quoting People v. Merriman (2014) 60 Cal.4th 1, 41
(Merriman).) Among the factors to consider are the “‘nature,
relevance, and possible remoteness [of the evidence], the degree
of certainty of its commission and the likelihood of confusing,
misleading, or distracting the jurors from their main inquiry, its
similarity to the charged offense, its likely prejudicial impact on
the jurors, the burden on the defendant in defending against the
uncharged offense, and the availability of less prejudicial
alternatives to its outright admission, such as admitting some
but not all of the defendant's other sex offenses.’” (Merriman,
supra, 60 Cal.4th at p. 41, quoting Falsetta, supra, 21 Cal.4th at
23
p. 917.)
B. Analysis
Under section 1108, evidence of the crimes against Ashley
was admissible to show appellant’s propensity to commit the
charged sexual offenses against Claudia and Angela, so long as
the evidence was not inadmissible under section 352. As we have
discussed, the court relied on the numerous similarities between
the Ashley and Claudia offenses and their closeness in time to
find that evidence of the uncharged offense was sufficiently
probative to justify its admission. Appellant claims this evidence
was insufficiently probative in light of his admission to the
encounter with Claudia and the lack of similarity with the
offense involving Angela. But the evidence of Ashley’s
kidnapping and rape was relevant under section 1108 to show
appellant’s propensity to commit the similar offenses against
Claudia, and therefore to rebut appellant’s defense of consent.
Appellant also asserts that the evidence of the uncharged
offenses was highly prejudicial and should have been excluded on
that basis. “Without doubt, evidence a defendant committed an
offense on a separate occasion is inherently prejudicial.
[Citations.] But Evidence Code section 352 requires the exclusion
of evidence only when its probative value is substantially
outweighed by its prejudicial effect. ‘Evidence is substantially
more prejudicial than probative . . . [only] if, broadly stated, it
poses an intolerable “risk to the fairness of the proceedings or the
reliability of the outcome” [citation].’ [Citation.]” (People v.
Quang Minh Tran (2011) 51 Cal.4th 1040, 1047.) “In this
context, the word ‘prejudice’ is used in the sense of ‘“an emotional
bias’” or ‘“of prejudging a person or cause on the basis of
extraneous factors.”’” (People v. Huy Ngoc Nguyen (2010) 184
24
Cal.App.4th 1096, 1115.)
Appellant reasserts several of his arguments raised
elsewhere, including that Ashley was “very emotional, if not
hysterical” and “hostile” while testifying, and was allowed to
repeatedly testify that she did not remember the key events, the
prosecutor then was able to “testify” by “reading a police report
into evidence under the guise of questioning Ashley,” and the jury
was likely confused due to asserted instructional errors. We
reject these arguments in Sections V through VII, post. In
addition, we conclude that appellant has not established that the
trial court abused its discretion in determining that the
uncharged offenses were not substantially more prejudicial than
probative. Appellant cites the upsetting nature of Ashley’s
testimony, as it involved her rape at gunpoint, and her demeanor
on the stand. But the details of her attack came largely through
the testimony of police officers, not from Ashley herself. By
contrast, Claudia testified in detail regarding her kidnapping and
rape. We cannot, on this record, conclude that the trial court
abused its discretion in weighing the evidence regarding these
attacks against two young women and determining that the
uncharged offense was not so highly inflammatory as to require
its exclusion.
III. False Testimony Under Section 1473
Citing section 1473, appellant argues that his convictions
must be overturned because they are based on Ashley’s “false”
testimony that she could not recall the details of her attack.
Section 1473 permits prosecution of a writ of habeas corpus
where “[f]alse evidence that is substantially material or probative
on the issue of guilt or punishment was introduced against a
person at a hearing or trial relating to his or her incarceration.”
25
(§ 1473, subd. (b)(1).) Appellant’s contention is meritless, as
section 1473 is inapplicable to this direct appeal.
“Ordinarily, a witness’s inability to remember an event is
not inconsistent with that witness’s prior statement describing
the event. [Citation.] When, however, ‘a witness’s claim of lack
of memory amounts to deliberate evasion, inconsistency is
implied.’” (People v. Anderson (2018) 5 Cal.5th 372, 403, quoting
People v. Rodriguez (2014) 58 Cal.4th 587, 633 (Rodriguez).)
Thus, as long as the court has a reasonable basis in the record to
conclude that the witness’s ‘I don’t remember’ statements are
evasive and untruthful, admission of his or her prior statements
is proper under Evidence Code section 1235, the hearsay
exception for prior inconsistent statements. (Rodriguez, supra,
58 Cal.4th at p. 633.)
Appellant contends that Ashley’s testimony that she did
not remember in response to most of the questioning at trial was
therefore “false” within the meaning of section 1473. But this
provision applies to prosecution of a writ of habeas corpus and is
therefore inapplicable to appellant’s direct appeal. Although he
argues he should not have to “jump through a ‘habeas corpus
hoop,’” appellant fails to provide any authority suggesting that he
may bring a section 1473 false evidence claim outside of a habeas
corpus proceeding. Thus, we reject his attempt to do so.
IV. Constitutional Challenge to Evidence Code Section
1235
Appellant also contends that Evidence Code section 1235,
allowing admission of a witness’s prior inconsistent statements,
violates his Sixth Amendment right to confront and cross-
examine witnesses. This argument has been repeatedly rejected
by our Supreme Court. In Rodriguez, supra, 58 Cal.4th at p. 632,
26
the defendant challenged the admission of prior statements made
by a witness who gave some testimony at trial, but claimed to
have no memory of the events she had discussed in her prior
statements. The trial court found the witness was not truthful in
testifying that she could not recall and admitted evidence of her
prior statements. (Ibid.) The Supreme Court rejected the
defendant’s contention that admitting the prior statements
violated his right to confront the witness, reasoning that “[t]he
United States Supreme Court has made clear that admitting
prior statements of a witness who testifies at trial and is subject
to cross-examination does not violate a defendant’s confrontation
rights.” (Ibid., citing California v. Green (1970) 399 U.S. 149; see
also People v. Anderson, supra, 5 Cal.5th at p. 404 [“In Crawford
v. Washington (2004) 541 U.S. 36, 59-60, footnote 9, the high
court ‘reiterate[d] that, when the declarant appears for cross-
examination at trial, the Confrontation Clause places no
constraints at all on the use of his prior testimonial
statements.’”]; People v. Cowan (2010) 50 Cal.4th 401, 463 [“The
Sixth Amendment’s confrontation clause does not prohibit
admitting into evidence ‘testimonial’ hearsay statements against
a defendant if the declarant appears for cross-examination at
trial.”].) We also reject appellant’s claim that he was not able to
cross-examine Ashley under the circumstances of this case in
section V, post.
Appellant also contends that “as interpreted by California
courts,” Evidence Code section 1235 “allows the prosecutor to
knowingly elicit ‘false’ or ‘perjured’ testimony for purposes of
admitting extrajudicial statements,” and therefore violates his
Sixth Amendment rights. We rejected this argument in section
III, ante.
27
V. Appellant’s Ability to Confront Ashley
Relying on People v. Murillo (2014) 231 Cal.App.4th 448(Murillo), appellant contends he was denied his right to a fair
trial. He argues that based on Ashley’s conduct and testimony at
trial, he was effectively denied his right to confront and cross-
examine her as a witness. We conclude that Murillo is
distinguishable and find no similar error occurred in this case.
A. Factual background
At the start of her testimony, Ashley confirmed that she did
not want to be a witness and was testifying under subpoena. She
testified that she was 14 years old in 2004, living in an
apartment on Sepulveda Boulevard, and that on July 13, 2004,
she left home to walk to her volunteer job. The court noted that
Ashley was “obviously very upset and emotional right now, and
she is crying, and very halting in her testimony.” Ashley testified
that she was walking by herself that morning when a vehicle
approached her as she passed a middle school. She testified that
she did not remember what time this occurred, the kind of car, or
what color it was. The prosecutor began to ask if reviewing
something would refresh her memory, but Ashley cut her off,
stating: “I don’t want to see anything. I don’t want to be here at
all.”
When pressed for further details, Ashley continued to
respond that she did not know, although she did testify that she
was approached by a male, that she went inside the car, spoke to
police detectives later that day, and cried as she told her co-
workers about what had happened. At times, the prosecutor
asked Ashley to “take a deep breath” and “help me get through
this.” Ashley testified that she did not go into the car willingly,
but did not know if the man had a weapon.
28
Defense counsel objected. At sidebar, defense counsel
objected that “this is improper impeachment. The witness is
saying she doesn’t remember, she doesn’t know. Obviously, she is
very traumatized. This is cruel, in my opinion,” Defense counsel
further objected that allowing the prosecutor “to basically read a
police report into the record . . . is totally improper. . . . This is
counsel testifying for the police.” The court overruled the
objection, stating that “the jury could conclude that they don’t
believe she doesn’t remember, and that it would therefore allow
the testimony as “a proper subject for prior inconsistent
statement,” even though “she is obviously in distress, and I don’t
want to revictimize her.” The court also noted it would consider
striking the testimony as more prejudicial than probative if the
prosecution could not present evidence of the similarities between
the crimes involving Ashley and Claudia, but that “I don’t think
we’re there yet. . . . She is being tortured. She is in a lot of
distress. And I’m going to allow some of it, but at some point we
need to put a stop to it.”
As the testimony resumed, the court remarked to Ashley
that she “seem[ed] a little calmer now,” and Ashley agreed.
Ashley continued to respond “I don’t know” and “I don’t
remember” to the prosecutor’s questions about the details of the
attack. She also responded several times by asking: “Why do I
have to answer? I don’t want to be here.” She did confirm that
her attacker raped her. She also confirmed that she was shown a
photographic lineup and confirmed her handwriting on the
document.
During cross-examination, Ashley again confirmed that she
spoke to the police after the attack, but in response to most of
defense counsel’s questions, Ashley testified that she did not
29
remember. She confirmed that she worked on a drawing with a
sketch artist, but did not remember being shown another
drawing (done by Claudia) or telling the police that it was not her
attacker. She also testified that she told the police the truth
when she spoke to them in 2004, but did not remember what she
told them. She also confirmed that she sustained a conviction for
assault with a deadly weapon in 2009.
B. Analysis
The Sixth Amendment right of confrontation “has long been
read as securing an adequate opportunity to cross-examine
adverse witnesses.” (United States v. Owens (1988) 484 U.S. 554,
557 (Owens).) “‘[T]he Confrontation Clause guarantees only “an
opportunity for effective cross-examination, not cross-
examination that is effective in whatever way, and to whatever
extent, the defense might wish.”’” (Id. at p. 559; see also
Crawford, supra, 541 U.S. at 60 fn. 9 [the confrontation “[c]lause
does not bar the admission of a statement so long as the
declarant is present at trial to defend or explain it”].)
A witness who “refuses to answer any question on direct or
cross-examination denies a defendant the right to confrontation.”
(People v. Rios (1985) 163 Cal.App.3d 852, 864, fn. omitted; see
also Murillo, supra, 231 Cal.App.4th 448, 455–456.) By contrast,
a witness who suffers from memory loss—real or feigned—is
considered “subject to cross-examination” because his presence
and responses provide the jury with “the opportunity to see the
demeanor and assess the credibility of the witness, which in turn
gives it a basis for judging the prior hearsay statement’s
credibility.” (People v. Gunder (2007) 151 Cal.App.4th 412, 420
(Gunder) [“The circumstance of feigned memory loss is not
parallel to an entire refusal to testify”]; Owens, supra, 484 U.S. at
30
p. 560 [“[W]hen a hearsay declarant is present at trial and
subject to unrestricted cross-examination . . . the traditional
protections of the oath, cross-examination, and opportunity for
the jury to observe the witness’s demeanor satisfy the
constitutional requirements.”].)
Appellant contends Murillo, supra, 231 Cal.App.4th 448 is
directly on point. In Murillo, the defendant was charged with
murdering a rival gang member and shooting two others. (Id. at
p. 450.) One of the victims, Valencia, identified the defendant as
the shooter the day after the shooting, but his identification of
the defendant was equivocal. (Id. at p. 455.) After Valencia was
arrested for an unrelated offense, an investigator promised him
leniency if he cooperated with the murder investigation. (Ibid.)
Valencia then unequivocally identified the defendant as the
shooter. (Ibid.) At trial, Valencia was called as a witness, but
refused to testify and did not invoke his privilege against self-
incrimination. (Id. at p. 450.) The prosecutor was then allowed
to ask him 110 leading questions about his prior statements and
to show him the second photographic lineup on which Valencia
had identified the defendant. (Ibid.) In response, Valencia
refused to answer or said he had nothing to say. (Id. at p. 451.)
As a result, although the jury saw the second lineup with
Valencia’s writing identifying the defendant, “defense counsel
could not elicit testimony on cross-examination about a
corresponding suggestion of leniency.” (Id. at p. 455.)
On appeal, the court noted that “Valencia’s out-of-court
statements constituted the only eyewitness identification of
Murillo and were a crucial link in the proof.” (Murillo, supra, 231
Cal.App.4th at p. 455.) Under those circumstances, the court
concluded that the defendant’s “inability to confront Valencia’s
31
statements rendered his trial fundamentally unfair. A
prosecutor ‘may not, under the guise of cross-examination, get
before the jury what is tantamount to devastating direct
testimony.’” (Ibid., quoting People v. Shipe (1975) 49 Cal.App.3d
343, 349 [finding a violation of defendant’s confrontation right by
allowing the prosecutor to ask his codefendants leading questions
about their confessions after they invoked the privilege against
self-incrimination].)
The Murillo court acknowledged that under Crawford,
when a declarant “‘appears for cross-examination at trial, the
Confrontation Clause places no constraints at all on the use of his
prior testimonial statements.’” (Murillo, supra, 231 Cal.App.4th
at pp. 455-456, quoting Crawford, supra, 541 U.S. at p. 60, fn. 9.)
However, the court found that Valencia’s “refusal to answer over
100 leading questions while the prosecutor read to the jury from
his police interviews denied Murillo the opportunity to cross-
examine the victim on what was tantamount to devastating
adverse testimony.” (Murillo, supra, 231 Cal.App.4th at p. 456.)
The court reasoned: “Ordinarily, we assume the jurors follow the
trial court’s instructions, even when the confrontation clause is
implicated. [Citation.] But there is a point at which the
prosecutor’s leading questions are tantamount to evidence and
overpower the proceedings so that the resulting prejudice is
incurable by admonition or instruction. [Citation.] Valencia's
examination reached that point.” (Id. at p. 457.)
We find Murillo inapplicable here. Unlike the witness in
Murillo who refused to answer any questions, Ashley testified to
some of the details surrounding the incident, including
confirming that she was forced into the car and that she was
raped. She also answered some questions during cross-
32
examination. Moreover, although Ashley’s prior statements were
an important rebuttal to appellant’s claim of consent, there was
other substantial evidence supporting the convictions here,
including testimony by both Angela and Claudia and their
identifications of appellant. In addition, the jury heard evidence
of Ashley’s prior statements through police officer testimony,
which appellant had the opportunity to challenge in cross-
examination. By contrast, in Murillo, the only information
regarding Valencia’s prior statements came through leading
questions posed by the prosecutor.
Under the circumstances, we do not find that Ashley’s
conduct amounted to a denial of appellant’s right to confront her.
While “[a]s a practical matter, [Ashley’s] claim of total lack of
recall limited defendant’s ability to cross-examine her about her
prior statements . . . this circumstance does not implicate the
confrontation clause.” (Rodriguez, supra, 58 Cal.4th at p. 632,
citing Owens, supra, 484 U.S. at pp. 555–560.) Ashley was
present at trial and subjected to cross-examination. Indeed,
defense counsel was able to elicit her admission that she
previously told police that the sketch prepared by Claudia did not
look like her attacker. Her “presence at trial as a testifying
witness gave the jury the opportunity to assess her demeanor and
whether any credibility should be given to her testimony or her
prior statements. This was all the constitutional right to
confrontation required.” (Rodriguez, supra, 58 Cal.4th at p. 633,
citing People v. Perez (2000) 82 Cal.App.4th 760, 766.)
VI. Challenge to Jury Instruction Regarding Prior
Statements
Appellant challenges the use of CALCRIM No. 318 to
instruct the jury regarding Ashley’s prior statements. He argues
33
that the jury should have been instructed that it could consider
Ashley’s prior statements for their truth only if it first found that
those statements were inconsistent, i.e., if it did not believe
Ashley’s testimony that she did not recall the incident at issue.
The jury was instructed with CALCRIM No. 226 regarding
assessing witness credibility, including: “If you do not believe a
witness’s testimony that he or she no longer remembers
something, that testimony is inconsistent with the witness’s
earlier statement on that subject.” The jury was also instructed
with CALCRIM No. 318 as follows: “You have heard evidence of
statements that a witness made before trial. If you decide that
the witness made those statements, you may use those
statements in two ways: 1. To evaluate whether the witness’s
testimony in court is believable; AND 2. As evidence that the
information in those earlier statements is true.” Appellant
argues that these instructions, taken together, failed to tell the
jury “how” to use Ashley’s prior statements, particularly whether
it could consider those statements for their truth only if it
believed Ashley’s testimony that she did not remember any
details.
As an initial matter, respondent contends appellant
forfeited this objection. Appellant acknowledges he did not object
to the use of either instruction, nor did he request any additional
or modified instructions on this issue. However, appellant claims
the issue has not been forfeited because jury instructions
affecting a defendant's substantial rights are reviewable on
appeal without an objection.
“It is well settled that ‘a defendant need not object to
preserve a challenge to an instruction that incorrectly states the
law and affects his or her substantial rights.’” (People v. Tuggles
34
(2009) 179 Cal.App.4th 339, 364 (Tuggles), quoting People v.
Palmer (2005) 133 Cal.App.4th 1141, 1156; see also Evid. Code,
§ 1259.) However, “‘ a party may not complain on appeal that an
instruction correct in law and responsive to the evidence was too
general or incomplete unless the party has requested an
appropriate clarifying or amplifying language.’” (People v.
Spurlock (2003) 114 Cal.App.4th 1122, 1130, quoting People v.
Hill (1992) 3 Cal.4th 959, 997; see also People v. Mackey (2015)
233 Cal.App.4th 32, 117; Tuggles, supra, 179 Cal.App.4th at p.
364.)
Here, appellant does not contend that CALCRIM No. 318 is
an incorrect statement of the law regarding a witness’s prior
statements or that the evidence did not support the giving of the
instruction. Rather, he contends the jury should also have been
instructed “how an out-of-court statement could or could not be
used.” To preserve the issue, he was required to request the
additional language needed to complete or clarify the jury
instructions. The lack of such a request below forfeited the issue
for review. (See People v. Rodrigues (1994) 8 Cal.4th 1060, 1142
[“If defendant believed that a modification to [the jury
instruction] was required, he was obligated to request it.”]; People
v. Spurlock, supra, 114 Cal.App.4th at p. 1130; Tuggles, supra,
179 Cal.App.4th at pp. 364–365.) 5
5Appellant notes that the court in Tuggles, supra, 179
Cal.App.4th at pp.365-366, recognized “that the instructional
issue is nevertheless reviewable because defense counsel’s failure
to object and request a modification may constitute ineffective
assistance of counsel.” But appellant did not raise an ineffective
assistance claim here.
35
In any event, we find no instructional error here.
Appellant argues that the trial court was required to instruct the
jurors that first they had to determine whether they believed
Ashley’s testimony that she did not remember the details of the
incident (and therefore whether her prior statements were
inconsistent with her trial testimony). Then, he claims the court
should have told the jury that it could consider her prior
statements for their truth only if it disbelieved Ashley’s lack of
recall. But whether or not Ashley’s statements were inconsistent
was an admissibility finding that the trial court implicitly made
when it admitted them at trial under the hearsay exception in
Evidence Code section 1235. (See Cottone, supra, 57 Cal.4th 269,
284 [“it is for the trial court to decide questions of law, “‘including
the admissibility of testimony, [and] the facts preliminary to such
admission,’” such as “the admissibility of hearsay evidence under
a recognized exception”]; People v. Johnson (1992) 3 Cal.4th 1183,
1216, superseded by statute on other grounds as noted in Verdin
v. Superior Court (2008) 43 Cal.4th 1096, 1106-1107; People v.
O'Quinn (1980) 109 Cal.App.3d 219, 225 [upholding admission
where the “trial court’s finding that a witness’ ‘I don't remember’
responses are deliberately evasive has a reasonable basis in the
record”].) Appellant does not challenge the trial court’s factual
finding of inconsistency; moreover, he cites no authority in
support of his contention that the jury was entitled to reconsider
this issue and therefore needed instruction on it.
As such, we find that CALCRIM No. 318 properly
instructed the jury that it could use out-of-court statements to
evaluate the credibility of a witness’s in-court testimony and as
evidence that the information in those earlier statements was
true. “We decline to impose a sua sponte duty to instruct that the
36
jury reconsider a fact relating to evidentiary admission. Counsel
remains free to argue that the evidence does not support the
propensity inference.” (Cottone, supra, 57 Cal.4th 269, 294; see
also People v. Blacksher (2011) 52 Cal.4th 769, 834–835.)
VII. Challenge to Jury Instruction Regarding Standard of
Proof for Uncharged Offenses
Appellant contends the trial court erred in instructing the
jury that it could consider the evidence of the uncharged offenses
if it found by a preponderance of the evidence that appellant
committed those offenses. Instead, he argues the correct
standard was beyond a reasonable doubt. This contention lacks
merit.
As discussed in section I, ante, the jury was instructed prior
to Ashley’s testimony and again at the close of evidence with
CALCRIM No. 1191A. That instruction provided in part: “The
People presented evidence that the defendant may have
committed sex crimes[6] against Ashley [ ]. These crimes are
defined for you in these instructions. You may consider this
evidence only if the People have proved by a preponderance of the
evidence that the defendant in fact committed the uncharged
offenses. Proof by a preponderance of the evidence is a different
burden of proof from proof beyond a reasonable doubt. A fact is
proved by a preponderance of the evidence if you conclude that it
is more likely than not that the fact is true. If the People have
not met this burden of proof, you must disregard this evidence
entirely. . . . The People must still prove each charge and
6In the version given prior to Ashley’s testimony, the court
identified the uncharged offense as “rape,” rather than “sex
crimes.”
37
allegation beyond a reasonable doubt.”
Appellant contends that because evidence of uncharged
offenses under section 1108 is “circumstantial evidence,” the jury
should have been instructed under the “general circumstantial
evidence rule” that the prosecution had to prove the uncharged
offenses by the higher standard of beyond a reasonable doubt. He
relies on People v. Reliford (2003) 29 Cal.4th 1007 (Reliford) and
People v. Villatoro (2012) 54 Cal.4th 1152 (Villatoro), but neither
case supports appellant’s claim.
In Reliford, the court considered a challenge to CALJIC No.
2.50.01, the predecessor to CALCRIM Nos. 1191 and 1191A.7 The
version of the instruction, which the court concluded “correctly
states the law,” told the jury it could consider evidence of prior
sexual offenses if it found by a preponderance of the evidence
that the defendant committed those offenses. (Reliford, supra, 29
Cal.4th at 1009, 1012.) In addition, the court rejected the
defendant’s argument that “having found the uncharged sex
offense true by a preponderance of the evidence, jurors would rely
on ‘this alone’ to convict him of the charged offenses.” The court
reasoned that “[n]othing in the instructions authorized the jury to
use the preponderance-of-the-evidence standard for anything
other than the preliminary determination whether defendant
committed a prior sexual offense. . . . The instructions instead
explained that, in all other respects, the People had the burden of
7CALCRIM No. 1191 was modified in 2017 to distinguish
uncharged offenses from charged offenses offered as propensity
evidence. CALCRIM No. 1191A now applies to uncharged
offenses offered as propensity evidence, while CALCRIM No.
1191B applies to charged offenses offered for that purpose. (See
People v. Gonzales (2017) 16 Cal.App.5th 494, 496, fn.1.)
38
proving defendant guilty ‘beyond a reasonable doubt.’” (Id. at pp.
1013, 1016.)
Likewise, in Villatoro, supra, 54 Cal.4th at p. 1160, the
Supreme Court noted that, “[w]ith regard to the admission of
uncharged sexual offenses, we have held that section 1108
satisfies the requirements of due process (Falsetta, supra, 21
Cal.4th at p. 917), and that CALJIC No. 2.50.01, the predecessor
to CALCRIM No. 1191, is a correct statement of the law.” The
court then considered use of prior charged offenses under section
1108 and a modified jury instruction that “clearly told the jury
that all offenses must be proven beyond a reasonable doubt, even
those used to draw an inference of propensity.” (Id. at pp. 1160,
1168.) This discussion is inapplicable to the instant case.
Appellant ignores the discussion in both of these cases
affirming the use of the preponderance of evidence standard for
uncharged offenses under section 1108. We reject appellant’s
unsupported contention that the jury was not properly instructed
here as to the burden of proof for consideration of the uncharged
sex offenses under section 1108.
VIII. Challenge to Jury Instruction Regarding Definition
of “Sexual Offenses”
Appellant also challenges the use of CALCRIM No. 1191A
because it did not include the definition of “sexual offenses.” As
such, he claims the jury could have improperly used evidence of
uncharged non-sex offenses committed against Ashley to find he
had a propensity to commit the charged offenses.
As discussed in section VII, ante, the court instructed the
jury prior to Ashley’s testimony and again at the close of evidence
with CALCRIM No. 1191A. The first time, the court identified
the uncharged offense as “rape.” After the close of evidence, the
39
court again instructed the jury with CALCRIM No. 1191A, titled
“Evidence of Uncharged Sex Offense.” The instruction provided
in part: “The People presented evidence that the defendant may
have committed sex crimes against Ashley [ ]. These crimes are
defined for you in these instructions. . . . If you decide that the
defendant committed the uncharged offenses, you may, but are
not required to, conclude from that evidence that the defendant
was disposed or inclined to commit sexual offenses, and based on
that decision, also conclude that the defendant was likely to
commit and did commit the crimes charged in this case.” The
court also gave the jury the definitions for rape (CALCRIM No.
1000) and oral copulation (CALCRIM No. 1015).
Appellant argues that the court should have instructed the
jury with the definition of “sexual offenses” from section 1108,8 so
that it would understand which crimes could be considered for
the purpose of propensity evidence. Because this definition was
not given, appellant contends the jury could have believed that
the non-qualifying crimes of kidnapping, kidnapping to commit a
sex offense, and robbery were “sex crimes.” The jury could then
have considered the uncharged Ashley kidnapping offenses as
“propensity evidence to establish the non-sex charged offenses,”
an impermissible use of uncharged offenses under section 1108.
“When considering a claim of instructional error, we view
the challenged instruction in the context of the instructions as a
8Section 1108, subdivision (d) defines “sexual offense” to
include “[a]ny conduct proscribed by” certain enumerated sections
of the Penal Code. There is no dispute here that some of the
charged offenses (such as rape and oral copulation), qualified as
sexual offenses, while some (such as kidnapping) did not.
40
whole and the trial record to determine whether there is a
reasonable likelihood the jury applied the instruction in an
impermissible manner.” (People v. Houston (2012) 54 Cal.4th
1186, 1229.) We “‘assume that the jurors are intelligent persons
and capable of understanding and correlating all jury
instructions which are given.’” (People v. Guerra (2006) 37
Cal.4th 1067, 1148–1149, overruled on another ground in People
v. Rundle (2008) 43 Cal.4th 76, 151.)
Here, respondent argues that there was no reasonable
likelihood the jury applied the challenged instruction as
appellant claims. We agree. CALCRIM No. 1191A expressly
instructs jurors that they may consider the defendant’s
uncharged sex offenses as evidence of that defendant’s propensity
to commit sex offenses, and therefore as evidence that the
defendant committed the sex offenses charged in the case. No
reasonable juror would interpret these instructions to include
non-sex offenses.
Appellant claims that even if the jury understood that
propensity evidence was limited to sex offenses, it had no way to
determine which crimes were included in that category. He
speculates that the jury therefore reasonably might have decided
kidnapping or kidnapping to commit rape were considered sex
offenses. When we consider all of the instructions given, we find
no reasonable likelihood that the jury misunderstood what
constituted a sexual offense. The jury was given several other
instructions that referred to “sex offenses” and specified that
those offenses included rape and oral copulation. For example,
the jury was given CALCRIM Nos. 3175 and 3179, which told the
jury that if it found appellant guilty of the “sex offenses” in
counts four through eight, it must consider the kidnapping
41
enhancement allegation for those counts. As such, the jury was
instructed that the applicable “sex offenses” were those in counts
four through eight—the counts charging rape and oral copulation.
Similarly, in the instruction on count three, CALCRIM No. 1203,
the charge was listed “kidnapping: for rape, or other sex
offenses,” and described in the instruction as “kidnapping for the
purpose of rape or oral copulation.” In addition, in her closing
argument, the prosecutor described count one as “assault likely to
commit another felony, that being a sex crime such as rape or
sexual penetration.” We therefore reject appellant’s argument
that the jury could have improperly used uncharged non-sex
offenses as propensity evidence under section 1108.
Issues 9-13: Challenges to Count One Conviction (Assault
of Angela)
IX. Existence of Crime Charged Under Section 220
Appellant was convicted in count one of assaulting Angela
with the intent to commit rape or sexual penetration, in violation
of section 220. He contends that section 220 contemplates two
separate crimes—assault with intent to commit rape and assault
with intent to commit sexual penetration by a foreign object.
Thus, he argues that his conviction must be reversed because he
was charged with a combined crime that “does not exist.” We are
not persuaded.
Section 220, subdivision (a)(1) provides: “any person who
assaults another with intent to commit mayhem, rape, sodomy,
oral copulation, or any violation of Section 264.1, 288, or 289
shall be punished. . . .” Both the information and the amended
information charged appellant in count one with an “assault with
intent to commit a felony in violation of section 220,” and further
alleged that appellant had the “intent to commit rape, sodomy,
42
oral copulation and a violation of sections 264.1, 288 and 289.”
Section 289 prohibits forcible sexual penetration.
The court instructed the jury with CALCRIM No. 890,
entitled “Assault with intent to commit specified crimes.” The
instruction provided: “The defendant is charged in Count 1 with
assault with intent to commit rape,” which required proof, among
other elements, that “[w]hen the defendant acted, he intended to
commit rape or sexual penetration.” The instruction also stated:
“To decide whether the defendant intended to commit rape or
sexual penetration, please refer to the instructions defining those
crimes.” The jury was also given CALCRIM No. 1000 for rape
and CALCRIM No. 1045 for sexual penetration, defined as
“penetration, however slight,” with a “foreign object,” including
“any part of the body except a sexual organ.” Using the verdict
form for count one, the jury found appellant guilty of “assault
with intent to commit a felony” for assaulting Angela, “with the
intent to commit a rape, or sexual penetration, in violation of
section 220, a felony, as charged in Count 1 of the information.”
Appellant contends that section 220 includes “several
separate and distinct crimes based on specific intent to commit a
specified felony.” As such, he argues that he was convicted of the
nonexistent crime of assault with intent to commit rape or sexual
penetration. Respondent counters that section 220, subdivision
(a)(1) defines a single crime—assault with intent to commit the
specified sex offenses. One of the elements of that crime is the
specific intent to commit the underlying sex offense.
Both parties cite to People v. Davis (1995) 10 Cal.4th 463(Davis). In Davis, the defendant was charged with and convicted
of a count of assault “with intent to commit rape and/or sodomy”
in violation of section 220. Id. at pp. 487-488.) In affirming the
43
conviction, the court found: “‘The essential element of [assault
with intent to commit rape] is the intent to commit the act
against the will of the complainant. The offense is complete if at
any moment during the assault the accused intends to use
whatever force may be required.’ [Citation.] The same, we
believe, is true of assault with intent to commit sodomy.” (Id. at
p. 509, quoting People v. Meichtry (1951) 37 Cal.2d 385, 388-389.)
The court concluded there was “substantial evidence from which
a rational trier of fact could infer intent to commit rape and/or
sodomy.” (Id. at p. 510.)
We agree with respondent that Davis supports appellant’s
conviction here. Notably, although the Davis court did not
otherwise discuss the propriety of the wording of the assault
charge, the decision affirmed a single charge alleging an intent to
commit one sex offense “and/or” another. Respondent also points
to the court’s reference to the intent to commit a specified sex
offense as an element of the crime. Similarly, here, the charge at
issue alleged that appellant committed the assault with the
intent to commit rape or sexual penetration.
Although appellant contends this was improper, he cites no
authority on point. None of the cases cited by appellant involves
a similar question where a single charge alleges a violation of
section 220 with the intent to commit one of two underlying
offenses. (See People v. De Porceri (2003) 106 Cal.App.4th 60, 63
[discussing whether a prior conviction of assault with intent to
commit lewd touching under section 220 qualifies as a strike];
People v. Jernigan (2014) 227 Cal.App.4th 1198, 1204 [whether
prior conviction for attempted forcible oral copulation disqualified
defendant from seeking resentencing under section 1170.126];
People v. Puckett (1975) 44 Cal.App.3d 607, 611[discussing the
44
definition of “rape” as used in section 220]; People v. Meichtry,
supra, 37 Cal.2d at p. 387 [reviewing sufficiency of the evidence
for conviction of assault with intent to commit rape].) Nor has
appellant cited any authority rejecting such a charge. As such,
we find no error.
X. Amendment of Count One
Appellant also contends that the trial court erred in
allowing the prosecution to amend count one to include an intent
to commit sexual penetration. We find no evidence in the record
that such an amendment was made and therefore affirm.
As detailed in section IX, ante, the information filed in 2017
and the amended information filed in 2018 charged appellant in
count one with an “assault with intent to commit a felony in
violation of section 220,” and further alleged that appellant had
the “intent to commit rape, sodomy, oral copulation and a
violation of sections 264.1, 288 and 289.” At a conference during
trial, the prosecutor sought to amend the information a second
time to conform the enhancement allegations to proof. The court
granted the amendment, and both the prosecutor and the court
confirmed that the amended information made no changes to the
charges, but only to the sentencing enhancements under section
667.61.
At the same conference, the court and the parties also
discussed the jury instructions. The prosecution requested a
modification of CALCRIM No. 890, which explains the elements
of section 220, as charged in count one. The request was to
revise element five to state that appellant acted with intent to
commit “rape or sexual penetration,” instead of only “an intent to
commit rape.” Defense counsel objected, noting that the next
instruction “defines rape as any penetration. And I think that’s
45
enough.” When the court inquired about the purpose for the
addition, the prosecutor stated she planned to argue that if
appellant’s intent was not specifically to commit rape, it was to
commit sexual penetration by foreign object. Defense counsel
objected that there was no evidence of such intent and the
instruction could confuse the jury. The court responded: “The
evidence was he grabbed her and pulled her pants down. So I
think you could argue either way.” The court also noted that “a
foreign object can be a finger as well. So if this is the People’s
theory of count 1 with Angela, there is substantial evidence to
argue it.”
Appellant argues that there was insufficient evidence from
the preliminary hearing to support the amendment and therefore
it was error for the court to allow “the prosecutor to amend the
information to specifically allege ‘with intent to commit sexual
penetration.’” However, he has failed to show that the
information was ever amended in the manner he claims. Instead,
his record citations reflect the discussion over the prosecutor’s
request to modify the jury instructions. As such, appellant’s
claim of error regarding amendment of the information fails.9 We
9 In his reply, appellant also argues that even if the
information was not amended as he claims, count one of the
original information was not supported by substantial evidence
from the preliminary hearing. This claim, along with the
attendant ineffective assistance claim, is raised for the first time
in reply. We therefore do not consider either argument. (See,
e.g., People v. Smithey (1999) 20 Cal.4th 936, 1017, fn. 26 [“‘[T]he
rule is that points raised in the reply brief for the first time will
not be considered, unless good reason is shown for failure to
present them before.’”].)
46
also note that an intent to commit sexual penetration was
already alleged in the information as an intent to commit a
violation of section 289. Therefore, there would have been no
need to amend the information to include it at trial.
Appellant also challenges the sufficiency of the evidence at
trial to support a jury instruction and/or a conviction on count
one based on a finding that he had the intent to commit sexual
penetration with a foreign object. We discuss that claim in
section XII, post.
XI. Jury Instruction on Unanimity
Continuing his argument from section IX that count one
charged two separate crimes—assault with intent to commit rape
and assault with intent to commit sexual penetration—appellant
further contends the jury should have been instructed with
unanimity principles as to that count. We disagree.
“In a criminal case, ‘the jury must agree unanimously the
defendant is guilty of a specific crime. [Citation.] Therefore,
cases have long held that when the evidence suggests more than
one discrete crime, either the prosecution must elect among the
crimes or the court must require the jury to agree on the same
criminal act.’ [Citation.] Yet ‘where the evidence shows only a
single discrete crime but leaves room for disagreement as to
exactly how that crime was committed or what the defendant’s
precise role was, the jury need not unanimously agree on the
basis or, as the cases often put it, the “theory” whereby the
defendant is guilty.’” (People v. Covarrubias (2016) 1 Cal.5th 838,
877-878 (Covarrubias), quoting People v. Russo (2001) 25 Cal.4th
1124, 1132.) Where required, a unanimity instruction must be
given sua sponte. (People v. Dieguez (2001) 89 Cal.App.4th 266,
274–275.)
47
Appellant’s contention that a unanimity instruction was
required here rests on his claim that count one charged two
separate crimes. We rejected this argument in section IX, ante.
Notably, appellant does not suggest that the prosecution alleged
two discrete acts of assault. Rather, he claims that the single act
of assault committed with either the intent to commit rape or the
intent to commit sexual penetration required an instruction to
the jury that it must “unanimously agree[ ] as to the mens rea
necessary [to] establish a particular crime.” The cases he cites do
not support this contention; rather, they required a unanimity
instruction where multiple acts were alleged. (See Covarrubias,
supra, 1 Cal.5th at pp. 877–878; People v. Hernandez (2013) 217
Cal.App.4th 559, 571 [“[T]he evidence in this case was not
indicative of one discrete act. Rather, the record reveals two
discrete acts of possession, either of which could have constituted
the charged offenses.”]; see also People v. Quiroz (2013) 215
Cal.App.4th 65, 73 [“Unanimity is not required” where the
defendant committed only one discrete criminal event “even if the
jurors might conclude that the defendant is guilty based on
different facts, or on different findings about the acts the
defendant committed or his mental state.”].)
Moreover, even if evidence of two separate assault crimes
was presented, no unanimity instruction was required because
appellant presented the same defense to both crimes.
Specifically, he claimed that he was not Angela’s assailant. Thus,
“the defendant offered the same defense to both acts constituting
the charged crime, so no juror could have believed defendant
committed one act but disbelieved that he committed the other,
or because ‘there was no evidence . . . from which the jury could
have found defendant was guilty of’ the crime based on one act
48
but not the other.” (Covarrubias, supra, 1 Cal.5th at pp. 879–
880, quoting People v. Davis (2005) 36 Cal.4th 510, 562; see also
People v. Riel (2000) 22 Cal.4th 1153, 1199 [unanimity
instruction was not required on the robbery charge because the
defense as to each act of robbery was that the defendant did not
participate in the robbery].)
XII. Sufficiency of the Evidence on Count One
Appellant also contends that his conviction on count one for
assault with intent to commit rape or sexual penetration should
be reduced to simple assault because there was insufficient
evidence that he assaulted Angela with the intent to commit a
sexual offense.
A. Governing Principles
When considering a claim of insufficient evidence, we
review the entirety of the record to determine whether, viewing
the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the defendant guilty
beyond a reasonable doubt. (People v. Hoyt (2020) 8 Cal.5th 892,
949-950.) The evidence in the record must be substantial, that is,
reasonable in nature, credible, and of solid value. (Id. at p. 950.)
We “‘presume in support of the judgment the existence of every
fact the trier could reasonably deduce from the evidence.’”
(People v. Pensinger (1991) 52 Cal.3d 1210, 1237.)
An assault with intent to commit rape requires an intent to
have sexual intercourse, and to use force to overcome the victim’s
resistance. (People v. Craig (1994) 25 Cal.App.4th 1593, 1597
(Craig).) The crime is complete if at “‘any moment during the
assault the accused intends to use whatever force may be
required’” to have sexual intercourse or sexually penetrate the
victim. (People v. Davis, supra, 10 Cal.4th 463, 509; see also
49
§ 289, subd. (k) [Penetration requires “causing the penetration,
however slight, of the genital or anal opening of any person” by
“any foreign object”].)
“Intent is rarely susceptible of direct proof and usually
must be inferred from the facts and circumstances surrounding
the offense.” (People v. Pre (2004) 117 Cal.App.4th 413, 420.)
“‘The specific intent with which an act is done may be shown by a
defendant’s statement of his intent and by the circumstances
surrounding the commission of the act.’” (Craig, supra, 25
Cal.App.4th at p. 1597, quoting People v. Duke (1985) 174
Cal.App.3d 296, 300.) “The question whether the intent existed is
one for the jury to determine from the conduct of the defendant
and the surrounding circumstances.” (People v. Meitry, supra, 37
Cal.2d at p. 389.)
B. Analysis
Appellant concedes that the evidence was sufficient to
support a conviction for assault, but argues that there was
insufficient evidence to allow the jury to conclude that he had the
specific intent to commit rape at the time. He points to the
evidence at trial that Angela’s attacker pulled down her pants,
without saying a word and without further incident. He contends
that this evidence was “equivocal” and could support a mere
“pantsing” lacking any felonious intent. He further suggests that
the conduct here “is far more innocuous” than the conduct in
People v. Greene (1973) 34 Cal.App.3d 622. We disagree.
In Greene, the victim testified that the defendant
approached her while she was walking, put his arm around her
waist, and turned her around. (People v. Greene, supra, 34
Cal.App.3d at p. 650.) He said, “Don’t be afraid. I have a gun.
Don’t move.” At his request, the victim placed her arm around
50
his waist and they started walking. (Ibid.) The defendant also
told her, “I just want to play with you,” and moved his hand
slightly up and down her waistline. (Ibid.) He “did not attempt
to disarrange her apparel.” (Ibid.) After they had walked past
several houses, the victim managed to break free and run to
safety. (Ibid.) On appeal, the court concluded there was
insufficient evidence to support a finding of assault with intent to
rape. (Id. at p. 653.) In support of this conclusion, the court cited
the facts of several cases in which the People had presented
stronger evidence of the defendant’s intent. (Id. at pp. 651–652.)
Greene is inapposite. To begin with, the Greene court’s
reasoning was based primarily on its assessment that the
evidence in that case was weaker than that presented in other
cases. However, the Supreme Court has cautioned against such
an approach to evaluating sufficiency claims. (See People v. Story
(2009) 45 Cal.4th 1282, 1299 [“The Court of Appeal erred in
focusing on evidence that did not exist rather than on the
evidence that did exist.”]; see also People v. Thomas (1992) 2
Cal.4th 489, 516 [“When we decide issues of sufficiency of
evidence, comparison with other cases is of limited utility, since
each case necessarily depends on its own facts.”].) We therefore
do not find Greene persuasive.
Further, the evidence and reasonable inferences flowing
therefrom are stronger in this case than in Greene. Here,
appellant forcefully grabbed Angela from behind with both arms
as if to bring her to the ground, then pulled her pants down to
mid-thigh, exposing her bare bottom. The assault ended when
Angela knocked appellant down and ran away. Angela testified
that she thought appellant intended to rape her, and she told the
911 operator that her assailant tried to rape her. In addition, the
51
jury heard evidence that appellant raped Ashley, from which it
could infer appellant’s propensity to commit sexual offenses.
Appellant’s attack on Ashley offers strong support for the finding
that he intended to do more than grab Angela or pull down her
pants. “While other reasonable inferences also might be drawn,
it was for the jury, not us, to draw them.” (Craig, supra, 25
Cal.App.4th at p. 1604.) We conclude that the conviction was
supported by substantial evidence.
We also reject appellant’s challenge to his assault
conviction as lacking sufficient evidence of an intent to commit
sexual penetration. Even assuming there was insufficient
evidence of such an intent, it would not compel reversal where, as
here, we have concluded that there was sufficient evidence to
support an intent to commit rape and there is no showing that
the jury relied on an inadequate ground. (See People v. Guiton
(1993) 4 Cal.4th 1116, 1129 [“If the inadequacy of proof is purely
factual, of a kind the jury is fully equipped to detect, reversal is
not required whenever a valid ground for the verdict remains,
absent an affirmative indication in the record that the verdict
actually did rest on the inadequate ground.”].)
XIII. Jury Instruction on Lesser Included Offense of
Assault (Count One)
In his final challenge to count one, appellant argues that
the court erred by failing to instruct the jury on the lesser
included offense of assault. We find no error and further find
that any error was harmless.
A. Governing Principles
“[A] trial court must instruct on an uncharged offense that
is less serious than, and included in, a charged greater offense, ...
whenever there is substantial evidence raising a question as to
52
whether all of the elements of the charged greater offense are
present. [Citations.]” (People v. Huggins (2006) 38 Cal.4th 175,
215.) “[T]his does not mean that the trial court must instruct sua
sponte on the panoply of all possible lesser included offenses.
Rather, . . .‘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.’” (Ibid.;
see also People v. Breverman (1998) 19 Cal.4th 142, 162
(Breverman).) In this context, “the ‘substantial’ evidence
required to trigger the duty to instruct on such lesser offenses is
not merely ‘any evidence . . . no matter how weak’ [citation], but
rather ‘“evidence from which a jury composed of reasonable
[persons] could . . . conclude[ ]”’ that the lesser offense, but not
the greater, was committed.” (People v. Cruz (2008) 44 Cal.4th
636, 664, quoting People v. Carr (1972) 8 Cal.3d 287, 294.)
On appeal, “[w]e review the trial court’s failure to instruct
on a lesser included offense de novo considering the evidence in
the light most favorable to the defendant.” (People v. Brothers
(2015) 236 Cal.App.4th 24, 30; see also People v. Souza (2012) 54
Cal.4th 90, 113.)
B. Analysis
Respondent concedes that simple assault is a lesser
included offense of assault with intent to commit a rape or sexual
penetration. (See, e.g., People v. Elam (2001) 91 Cal.App.4th 298,
308.) But respondent argues that no instruction was necessary
here because appellant denied any involvement in the assault,
citing a line of cases holding that “when a defendant completely
denies complicity in the charged crime, there is no error in failing
to instruct on a lesser included offense.” (People v. Gutierrez
(2003) 112 Cal.App.4th 704, 709; see also People v. Chestra (2017)
53
9 Cal.App.5th 1116, 1123 (Chestra); People v. Sinclair (1998) 64
Cal.App.4th 1012, 1021-1022.)
In Chestra, supra, 9 Cal.App.5th at p. 1119, the defendant,
charged with murder, testified at trial that someone else shot the
victim. However, the prosecution presented evidence that the
defendant previously admitted to the police and in a letter to his
wife that he intentionally shot the victim. (Ibid.) On appeal, the
defendant contended that the trial court was required to instruct
the jury sua sponte on voluntary manslaughter based on heat of
passion and imperfect self-defense, both lesser included offenses
of murder, citing evidence that he had argued with the victim.
(Id at p. 1120.)
The appellate court noted that “the trial court must
instruct on a lesser included offense supported by the evidence
even when it is inconsistent with the defendant’s chosen defense.”
(Chestra, supra, 9 Cal.App.5th at p. 1121, citing Breverman,
supra, 19 Cal.4th at pp. 157.) However, the court concluded there
was no error, reasoning that “[u]nder no view of the evidence was
defendant guilty of only voluntary manslaughter. Defendant’s
trial testimony would not permit a jury composed of reasonable
persons to conclude he was guilty of voluntary manslaughter but
not murder, nor would his confession . . . [, which] did not
indicate the fatal shooting occurred in the heat of passion or
imperfect self-defense.” (Chestra, supra, 9 Cal.App.5th at p.
1123.) Thus, the court found that “[t]he evidence was such that
defendant was either guilty of murder or not guilty of any
offense.” (Ibid.; see also People v. Sinclair, supra, 64 Cal.App.4th
at pp. 1021-1022 [“When defendant denied he shot the decedent,
none of the alleged evidence of heat of passion and imperfect self-
defense was of the type ‘that a reasonable jury could find
54
persuasive.’ [Citation.] Simply stated, the duty to instruct on
inconsistent defenses does not extend to cases such as this where
the sworn testimony of the accused completely obviates any basis
for finding a lesser included offense.”].)
We reject appellant’s assertion that People v. Barton (1995)
12 Cal.4th 186 (Barton) is at odds with Chestra and similar cases
and compels a different result. In Barton, the defendant in a
murder trial objected to the court instructing the jury on
voluntary manslaughter, arguing that it did not fit the theory of
the case presented by either party. (Id. at p. 193.) Our Supreme
Court concluded that the trial court had not erred, because the
record contained substantial evidence to support a conviction for
voluntary manslaughter. (Id. at p. 202.) As such, “[t]he trial
court must instruct on lesser included offenses when there is
substantial evidence to support the instruction, regardless of the
theories of the case proffered by the parties. Here, . . . the
evidence supported an instruction on voluntary manslaughter as
a lesser included offense, notwithstanding the arguments of the
prosecution and defense.” (Ibid.)
The Barton court also recognized that no instruction was
necessary where “the evidence shows that the defendant is either
guilty of the crime charged or not guilty of any crime,” because
“in such a case ‘there is no evidence that the offense was less
than that charged.’” (Barton, supra, 12 Cal. 4th at p. 196, fn. 5;
see also People v. Ochoa (1998) 19 Cal.4th 353, 423 [finding no
error in failure to instruct on lesser included offense where “there
was no evidence from which a jury composed of reasonable
individuals could have concluded that he committed that crime.
He was either guilty of the charged crime or not guilty at all.”];
People v. Sinclair, supra, 64 Cal.App.4th at p. 1021
55
[distinguishing Barton as a case where the defendant admitted
shooting the victim but denied intent to kill, thus “there was a
basis for heat of passion and imperfect-self defense
instructions”].)
Applying these principles, we conclude that the court did
not err in failing to instruct the jury regarding assault.
Appellant denied being at the park or interacting with Angela in
any way. Conversely, Angela testified that he grabbed her from
behind with both arms and then pulled down her pants.
Appellant’s forceful attempt to bring Angela to the ground and
remove her clothing, coupled with the propensity evidence
regarding his rape of Ashley a few weeks later, support the
inference that he intended to commit a sexual offense.
Appellant’s use of force was such that Angela testified that she
thought he was going to rape her, and she told the 911 operator
that he “tried” to do so. Thus, appellant’s denial of any complicity
in the assault “lays no foundation for any verdict intermediate
between ‘not guilty’ and ‘guilty as charged.’” (People v. (1993) 16
Cal.App.4th 1255, 1260, quoting People v. Morrison (1964) 228
Cal.App.2d 707, 712- 713; see also People v. Salas (1978) 77
Cal.App.3d 600, 608 [no obligation to instruct on lesser included
offense of assault where defendant’s only defense to robbery
charge was “that of alibi”].) Thus, neither the evidence adduced
by appellant nor by the prosecution established that appellant
committed assault but not assault with the intent to commit rape
or sexual penetration to an extent that was “substantial enough
to merit consideration” by the jury. (People v. Huggins, supra, 38
Cal.4th at p. 215.)
Moreover, even assuming the trial court erred, we find the
error harmless. We review an erroneous failure to instruct on a
56
lesser included offense for prejudice under the standard set forth
in People v. Watson (1956) 46 Cal.2d 818. (See Breverman, supra,19 Cal.4th at p. 178.) Under that standard, a conviction may be
reversed only if, “‘after an examination of the entire cause,
including the evidence’ (Cal. Const., art. VI, § 13), it appears
‘reasonably probable’ the defendant would have obtained a more
favorable outcome had the error not occurred.” (Breverman,
supra, at p. 178.) Given appellant’s denial that he was involved
in Angela’s attack, as well as the evidence outlined above, it is
not reasonably probable that the jury would have concluded he
assaulted Angela, but did so without the necessary intent to
commit a sexual offense.
Issues 14-16: Challenges Regarding Lesser Included
Offenses
XIV. Jury Instruction on Lesser Included Offense of False
Imprisonment (Counts Two and Three)
Appellant asserts that his convictions for simple
kidnapping in count two (§ 207, subd. (a)) and kidnapping to
commit rape in count three (i.e., aggravated kidnapping; § 209,
subd. (b)(1)) involving Claudia must be reversed because the trial
court did not instruct the jury on the lesser included offenses of
false imprisonment and forcible false imprisonment (§§ 236, 237).
We find no such instruction was required.
False imprisonment and forcible false imprisonment are
lesser included offenses of kidnapping and aggravated
kidnapping. (See People v. Magana (1991) 230 Cal.App.3d 1117;
People v. Jandres (2014) 226 Cal.App.4th 340, 362.) But a lesser
included offense instruction on false imprisonment is not
required where the evidence establishes that defendant was
either guilty of kidnapping or was not guilty at all. (See Barton,
57
supra, 12 Cal.4th at p. 196, fn. 5; People v. Kelly (1990) 51 Cal.3d
931, 959; People v. Leach (1985) 41 Cal.3d 92.)
False imprisonment is the unlawful violation of the
personal liberty of another. (§ 236.) Simple kidnapping under
section 207 requires proof that: “(1) the defendant took, held, or
detained another person by using force or by instilling reasonable
fear; (2) using that force or fear, the defendant moved the other
person, or made the other person move a substantial distance;
and (3) the other person did not consent to the movement.”
(People v. Hoyt, supra, 8 Cal.5th 892, 923, citing § 207, subd. (a).)
A kidnapping to commit rape under section 209 occurs when “Any
person . . . kidnaps or carries away any individual to commit . . .
rape, [or] oral copulation. . . . [¶] This subdivision shall only
apply if the movement of the victim is beyond that merely
incidental to the commission of, and increases the risk of harm to
the victim over and above that necessarily present in, the
intended underlying offense.” (§ 209, subd. (b).)
Accordingly, the parties focus on the requirement of
“substantial” movement as the differentiating factor between
kidnapping (and/or aggravated kidnapping) and false
imprisonment. Appellant contends the evidence of kidnapping
Claudia involved two movements—first, from the street into the
car, and second, driving the car into the alley. He argues that the
jury could reasonably find that one or both of these movements
constituted only false imprisonment, and not kidnapping, because
it could conclude that the movement distance was “trivial.”
We disagree. There was no evidence to support a false
imprisonment instruction at either point during the incident.
Claudia testified that after appellant put his gun to her head, he
moved her about six feet from the sidewalk into the front
58
passenger seat of his car. In determining whether the offense
met the requirement for movement of the victim, the jury must
consider “the ‘scope and nature’ of the movement. This includes
the actual distance a victim is moved. However, we have
observed that there is no minimum number of feet a defendant
must move a victim in order to satisfy” this requirement. (People
v. Rayford (1994) 9 Cal.4th 1, 12; see also People v. Jones (1999)
75 Cal.App.4th 616, 628–629.)
For example, in People v. Shadden (2001) 93 Cal.App.4th
164 (Shadden), the court affirmed a conviction of kidnapping to
commit rape where the defendant moved the victim nine feet
from the front of a store to a back room, finding that the
movement was substantial and increased victim’s risk of harm.
(Id. at p. 169.) The court reasoned that “[w]here movement
changes the victim’s environment, it does not have to be great in
distance to be substantial.” (Ibid., citing People v. Smith (1995)
33 Cal.App.4th 1586, 1593-1594 [defendant moved the victim from
the driveway into a camper at the rear of the house].) Further,
where a defendant moves a victim from a public area to a place
out of public view, the risk of harm is increased even if the
distance is short. (Shadden, supra, 93 Cal.App.4th at p. 169
[listing cases where the defendant “secluded or confined the
victim”]; People v. Smith, supra, 33 Cal.App.4th at p. 1594; People
v. Diaz, supra, 78 Cal.App.4th at p. 249 [where the defendant
moved the victim from a well-lit area to the back of a recreation
center, “the risk to the victim in the dark isolated location of the
attack increased significantly as compared to the lighted
sidewalk . . . where the incident began”]; People v. Jones, supra,
75 Cal.App.4th at p. 630 [asportation requirement met where the
defendant moved the victim across a parking lot and into a car].)
59
Here, appellant’s movement of Claudia from the sidewalk
into the car substantially changed her environment and subjected
her to an increased risk of harm by putting her into a car with
her armed assailant. Under these circumstances, there was no
evidence from which the jury could reasonably have found that
appellant imprisoned Claudia but did not kidnap her. Nor did
appellant’s defense provide any support for an instruction on
false imprisonment, as he testified that Claudia got into the car
willingly and denied having a gun. As such, appellant’s “conduct
either went beyond the mere violation of [Claudia’s] personal
liberty, or it was not culpable,” (People v. Ordonez (1991) 226
Cal.App.3d 1207, 1233), and no instruction on lesser included
offenses was warranted.10
XV. Count Two as a Lesser Included Offense to Count
Three
Appellant also urges reversal of the conviction for simple
kidnapping of Claudia on count two, arguing that it was a lesser
included offense of his conviction for aggravated kidnapping of
Claudia on count three, and he could not be convicted of both.
We agree.
10Appellant acknowledges that if the jury properly found
evidence supporting a kidnapping at the time Claudia was forced
into the car, that crime continued until appellant released her.
(See People v. Barnett (1998) 17 Cal.4th 1044, 1159 (Barnett)
[finding that once the forcible movement of a person commences,
the kidnapping is ongoing and continues “until such time as the
kidnapper releases or otherwise disposes of the victim and has
reached a place of temporary safety. . . .”].) Thus, there would be
no basis for an instruction on false imprisonment from the
subsequent movement of the car into the alley.
60
Respondent acknowledges that appellant cannot be
convicted of both aggravated kidnapping and the lesser included
offense of simple kidnapping based upon the same conduct. (See
People v. Ortega (1998) 19 Cal.4th 686, 694, 699.) But respondent
argues that the two kidnapping convictions were “not based on
the same conduct,” but rather on the two movements of Claudia
from the street to the car and then into the alley.
Respondent’s contention lacks merit. Kidnapping is a
continuing offense: once the forcible movement of a person
commences, the kidnapping is ongoing “until such time as the
kidnapper releases or otherwise disposes of the victim and has
reached a place of temporary safety.” (Barnett, supra, 17 Cal.4th,
at p. 1159; see also Parnell v. Superior Court (1981) 119
Cal.App.3d 392, 408 [“as long as the detention continues, the
crime continues”].) Thus, Claudia’s kidnapping was continuous
and cannot be subdivided as to permit multiple convictions as
respondent suggests. (See People v. Jackson (1998) 66
Cal.App.4th 182, 190 [rejecting argument that the defendant’s
first act of forcing victim into her car was simple kidnapping,
followed by second act of aggravated kidnapping]; People v.
Thomas (1994) 26 Cal.App.4th 1328, 1335.) Notably, none of
respondent’s cited cases involves kidnapping. (See People v.
Whitmer (2014) 59 Cal.4th 733, 740 [theft]; People v. Johnson
(2007) 150 Cal.App.4th 1467, 1474-1477 [spousal abuse].). We
therefore reverse the conviction on count two.
XVI. Jury Instruction on Lesser Included Offense of Theft
(Count Nine)
Appellant also urges the reversal of his conviction for the
robbery on count nine, involving the taking of Claudia’s purse.
He contends that the trial court erred in failing to instruct the
61
jury on the lesser included offenses of grand theft person and
theft. We affirm.
Robbery involves taking property from another by means of
force or fear. (People v. Holt (1997) 15 Cal.4th 619, 671, 690
(Holt); § 211.) “Fear may be inferred from the circumstances in
which a crime is committed or property is taken.” (Holt, supra,15 Cal.4th at p. 690.)
“To support a robbery conviction, the evidence must show
that the requisite intent to steal arose either before or during the
commission of the act of force.” (People v. Marshall (1997) 15
Cal.4th 1, 34.) “[I]f the intent arose only after the use of force
against the victim, the taking will at most constitute a theft.”
(Ibid.) Where a defendant begins a sexual assault, aware that
the victim has property and takes it, the jury may infer the
defendant intended to commit both rape and robbery. (Shadden,
supra, 93 Cal.App.4th at p. 170, citing Holt, supra, 15 Cal.4th at
p. 671.) Or it may infer that the force used for the sexual offense
was also force for robbery. (Shadden, supra, 93 Cal.App.4th at p.
170, citing Holt, supra, 15 Cal.4th at p. 671; see also People v.
Cooper (1991) 53 Cal.3d 1158, 1165, fn. 8 [“In order to support a
robbery conviction, the taking, either the gaining possession or
the carrying away, must be accomplished by force or fear.”].)
Appellant argues that there was evidence from which the
jury could infer that he did not form the intent to steal Claudia’s
purse until after he used force against her. We are not
persuaded. Claudia testified that after appellant allowed her to
get out of the car, he told her she was lucky he let her live, then
refused her request to return her purse and drove away. On the
other hand, in appellant’s testimony at trial, he admitted taking
Claudia’s purse, but claimed he did not know it was in the car
62
until he had driven away and did not know of its contents,
including Claudia’s cell phone, until later when his friends went
through the purse. Thus, the prosecution’s evidence supported a
finding of robbery, while appellant’s testimony, if believed, would
support the inference that he did not intend to take Claudia’s
purse. Claudia’s testimony did not support appellant’s argument
that he had ceased his use of force or fear against Claudia at the
time he decided to take her purse, such as would support an
instruction for theft. The jury was entitled to credit Claudia’s
evidence, and obviously did so.
Issues 17-25: Enhancement and Sentencing Challenges;
Request for In Camera Review
XVII. Jury Instruction on One Strike Aggravated
Kidnapping Circumstance
For the sex offenses involving Claudia (counts four through
seven), the jury found true the aggravated kidnapping
circumstance under the One Strike law (§ 667, subd. (d)(2)).
Appellant contends that these findings must be reversed because
the jury was not adequately instructed. We affirm.
A. One Strike kidnapping circumstance
The One Strike law, section 667.61, “ensures serious sexual
offenders receive long prison sentences whether or not they have
any prior convictions.” (People v. Wutzke (2002) 28 Cal.4th 923,
929.) Section 667.61 creates an alternative, harsher sentencing
scheme of either 15 or 25 years to life for certain enumerated sex
offenses accompanied by additional specified factual findings.
(§ 667.61; see People v. Mancebo (2002) 27 Cal.4th 735, 738.)
The version of section 667.61, subdivision (a) applicable to
appellant’s convictions provided, in relevant part: “A person who
is convicted of an offense specified in subdivision (c) under one or
63
more of the circumstances specified in subdivision (d) . . . shall be
punished by imprisonment in the state prison for life and shall
not be eligible for release on parole for 25 years.” (Added by
Stats.1994, 1st Ex.Sess.1994, ch. 14, § 1, p. 8570.) Here,
appellant was convicted in counts four through seven of forcible
rape and forcible oral copulation, both offenses included in the
list of qualifying One Strike crimes. (§ 667.61, subd. (c)(1) [rape,
counts four, five, and seven], (c)(6) [oral copulation, count six].).
The aggravating circumstance at issue here is the kidnapping
circumstance under subdivision (d)(2), which provides: “The
defendant kidnapped the victim of the present offense and the
movement of the victim substantially increased the risk of harm
to the victim over and above that level of risk necessarily
inherent in the underlying offense in subdivision (c).”
The court instructed the jury with CALCRIM No. 3175 as
follows: “If you find the defendant guilty of the crimes charged in
Counts 4, 5, 6, 7 and 8, you must then decide whether, for each
crime, the People have proved the additional allegation that the
defendant kidnapped Claudia [ ], increasing the risk of harm to
her, [¶]. . . . To prove this allegation, the People must prove that:
[¶] . . . 2. Using that force or fear, the defendant moved Claudia [
] or made her move a substantial distance; [¶] 3. The movement
of Claudia [ ] substantially increased the risk of harm to her
beyond that necessarily present in the rape and oral copulation;
[¶] . . . In deciding whether the distance was substantial and
whether the movement substantially increased the risk of harm,
you must consider all the circumstances relating to the
movement.”
The jury found true the aggravated kidnapping
circumstance allegations for counts four through seven. For the
64
same counts, the jury also found true a simple kidnapping
circumstance under section 667.61, subdivision (e)(1). The latter
circumstance triggers a shorter One Strike sentence of 15 years
to life and is not at issue here.
B. Analysis
Appellant contends that in addition to CALCRIM No. 3175,
the jury should have been instructed that (1) the underlying
offenses of rape and oral copulation were inherently dangerous to
human life; and (2) the jury was required to consider whether
appellant’s movement of Claudia substantially increased the risk
of harm to her beyond the risk, in the abstract, present in rape
and oral copulation.11
“Jury instructions must be read together and understood in
context as presented to the jury. Whether a jury has been
correctly instructed depends upon the entire charge of the court.”
(People v. Tatman (1993) 20 Cal.App.4th 1, 10.) “Jurors are
presumed to be intelligent persons capable of understanding and
correlating jury instructions.” (People v. Brock (2006) 143
Cal.App.4th 1266, 1277.) In evaluating instructions, the question
is whether there is a reasonable likelihood that the jury
misunderstood the charge. (People v. Kelly (1992) 1 Cal.4th 495,
525.)
We find no instructional error here. Appellant’s first
contention is that the jury should have been instructed that the
crimes of rape and oral copulation are “inherently dangerous to
human life.” He relies on authorities setting forth the proposition
Because appellant contends that the jury instruction
11
misstated the law, we reject respondent’s forfeiture claim. (See
Tuggles, supra, 179 Cal.App.4th 339, 364.)
65
that rape and oral copulation are considered felonies inherently
dangerous to human life for the purpose of the felony-murder
rule. None of these authorities apply this principle to a
kidnapping enhancement under section 667.61, nor do they
discuss the necessity of explicitly instructing the jury as to
inherent dangerousness. (See People v. Coleman (1989) 48 Cal.3d
112,138 [reciting instruction]; People v. Haley (2004) 34 Cal.4th
283, 314, fn. 12 [same]; § 189, subd. (a) [listing underlying crimes
for charge of felony murder].) In any event, we find no
reasonable likelihood that jurors were misled under the
instructions here. They were instructed to consider, based on the
totality of the circumstances, the level of risk of harm present in
the underlying offenses of forcible rape and oral copulation, and
then to determine whether appellant’s movement of Claudia
substantially increased the risk of harm to her beyond that
baseline level of risk. It is unlikely that the jury believed that
there was little to no risk of harm to Claudia from forcible sexual
offenses, or that those offenses posed no inherent danger to her
life.
Appellant also contends that in order to find a substantial
increase in risk, the jury was required to determine the baseline
level of risk inherent in the underlying sex offenses in the
abstract, rather than by examining his specific conduct in the
charged offenses. As such, appellant contends that the language
“necessarily present in the rape” from the jury instruction
“unlawfully allowed the jury to rely upon defendant’s specific
rape or oral copulation instead of the inherent nature of these
crimes.” Apart from citing the use of the word “inherent” in
section 667.61, subdivision (d)(2), appellant does not provide any
authority for this claim. Moreover, his suggestion is at odds with
66
the instruction’s charge that “[i]n deciding whether the distance
was substantial and whether the movement substantially
increased the risk of harm, you must consider all the
circumstances relating to the movement.” Nor does he explain
the purported harm to him from the jury’s examination of the
level of risk inherent in his sex offenses compared to the level of
risk in an abstract rape or oral copulation. We therefore reject
this claim of error.
Additionally, we conclude that any failure to properly
instruct on the increased risk of harm element of the section
667.61 kidnapping qualifying circumstance was harmless beyond
a reasonable doubt. (See People v. Luna (2012) 209 Cal.App.4th
460, 468 [§ 667.61, subd. (e)(1) kidnapping qualifying
circumstance]; People v. Jones (1997) 58 Cal.App.4th 693, 715–
716 [§ 667.61, subd. (d)(2) aggravated kidnapping].) In convicting
appellant of aggravated kidnapping in count three, the jurors
were required to find that appellant’s movement of Claudia
increased her risk of harm above the risk inherent in the
underlying offenses.
The only potential ground for error here, therefore, is
related to the requirement under section 667.61 that the increase
in the risk of harm be “substantial.” However, the substantial
risk of harm issue was uncontested. The omission of an element
during jury instruction may be harmless when the factual issue is
uncontested by the defense. (People v. Mil (2012) 53 Cal.4th 400,
410 [“the omission of an element of a . . . sentencing factor is
harmless when ‘the omitted element was uncontested and
supported by overwhelming evidence, such that the jury verdict
would have been the same absent the error.’”]; People v. Garcia
(2001) 25 Cal.4th 744, 761 [same].) Appellant claimed that
67
Claudia consented to the encounter and never argued that the
asportation did not substantially increase the risk of harm to her.
Further, the evidence that it did so was overwhelming. Claudia
testified that appellant moved her into the car, drove it into the
alley, and blocked any exit from the passenger side by parking
next to a wall. The driver’s side doors were also locked. This
allowed appellant to move his victim from a public street into a
secluded, confined space that he controlled, and forced her into
close quarters with appellant and his gun. This evidence strongly
supported the inference that appellant’s movement substantially
increased the risk of harm to Claudia by increasing the “danger
inherent in a victim’s foreseeable attempts to escape, or
enhance[ing] the attacker’s opportunity to commit additional
crimes,” as well as substantially decreasing “the possibility of
detection, escape or rescue.” (People v. Dominguez (2006) 39
Cal.4th 1141, 1152-1153.) Appellant’s testimony to the contrary
was marked by inconsistencies and lacked any support from
other witnesses. Thus, any failure to instruct the jury as to the
One Strike kidnapping enhancement was harmless beyond a
reasonable doubt.
XVIII. Unauthorized Sentence on Count Four
On the count four conviction for forcible rape of Claudia,
appellant was sentenced to 25 years to life under the One Strike
law (§ 667.61, subds. (a)-(d)) and that sentence was doubled
under the Three Strikes law (§ 1170.12(a)-(d) & 667, subds. (b)-
(i)). Appellant contends this was unauthorized under section
667.61 and therefore requires a new sentencing hearing. His
argument is brief, unsupported, and inscrutable. We therefore
conclude that he has failed to demonstrate error.
68
In his opening brief, appellant stated that the One Strike
sentence of 25 years to life, “doubled under the Three Strikes law,
constitutes an unauthorized punishment” for his One Strike
crime. Respondent interpreted this statement as a challenge to
the doubling of the One Strike sentence under the Three Strikes
law, from 25 years to life to 50 years to life. As respondent points
out, the court was entitled to set the minimum term of 25 years
under the One Strike law, and then double it under the Three
Strikes law. (People v. Acosta (2002) 29 Cal.4th 105, 123–124
(Acosta) [“the Three Strikes law itself imposes the indeterminate
life term and requires reference to the One Strike law only in
calculating the minimum term for that indeterminate sentence”].)
Appellant does not dispute this point. Instead, in reply, he
argues that Acosta “never addressed the issue presented,” which
he then characterizes as an irreconcilable tension between
section 667, subdivisions (c)(5), (e)(1), and (e)(2)(A)(i) of the Three
Strikes law and the One Strike law when “used in calculating the
minimum term.” Appellant did not make this argument or cite to
these provisions of the Three Strikes law in his opening brief, and
he may not do so for the first time in his reply. (See, e.g., People
v. Baniqued (2000) 85 Cal.App.4th 13, 29 [“Withholding a point
until the reply brief deprives the respondent of an opportunity to
answer it. . . . Hence, a point raised for the first time therein is
deemed waived and will not be considered, unless good reason is
shown for failure to present it before.”].)
Appellant also cites to the former section 667.61,
subdivision (j), which allowed the 25-year minimum term to be
reduced by up to 15 percent for conduct credits. This provision
was eliminated in 2006. (Stats. 2006, ch. 337, § 33.) To the
extent he seeks to raise an argument regarding a purported
69
conflict between this section and the Three Strikes law, he has
failed to provide sufficient legal argument, or any authority, to
satisfy his burden on appeal. (See People v. Barnett, supra, 17
Cal.4th at p. 1182 [the failure to support claim with adequate
argument forfeits the claim as not properly raised]; Jones v.
Superior Court (1994) 26 Cal.App.4th 92, 99 [“Issues do not have
a life of their own: if they are not raised or supported by
argument or citation to authority, we consider the issues
waived”].)
XIX. Admission of Prior Conviction
Appellant seeks reversal of his admission of his prior
burglary conviction, arguing that the trial court failed to properly
advise him of its consequences. We find no error.
A. Factual background
During his testimony, appellant admitted his 2003
convictions for assault and battery and his 2001 conviction for
burglary. Later, while the jury was deliberating, the court asked
defense counsel about the prior conviction allegations. She
responded that she had talked to appellant “at length,” and, after
a further conference with appellant, told the court that appellant
had already admitted the prior convictions during his testimony,
“so he’ll admit.”
The court noted that there were two prior convictions
alleged in the information – the first degree residential burglary
from 2001 and the assault by means of force likely to produce
great bodily injury in 2003. The court told appellant that the
burglary “is alleged as a strike . . . within the meaning of the
Three Strikes law, which means any penalties are doubled if you
are convicted of any felony in this case.” Appellant stated that he
understood. The court also advised appellant that if he had two
70
prior felony convictions, then he would be ineligible for probation.
The court advised appellant of his constitutional rights,
including his right to a jury trial, to confront and cross-examine
witnesses, to present a defense, and to remain silent. The court
also repeated twice that “if you admit these two prior convictions,
that means if you’re convicted of any felony by this jury, then
there won’t be a trial and it will count as a strike within the
meaning of the Three Strikes law for this case, and you’ll be
ineligible for probation on this case.” The court also advised
appellant that it “always has the discretion to dismiss a prior
strike.” Appellant confirmed that he understood the advisements
and wished to admit the prior convictions. Accordingly, the court
found that appellant had expressly and intelligently waived his
rights and his admissions were free and voluntary,
understanding the priors and the consequences of finding them
true.
B. Governing principles
When a criminal defendant admits a prior conviction
allegation that subjects him to increased punishment, the trial
court is required to ensure that the plea is knowing and
voluntary. (People v. Cross (2015) 61 Cal.4th 164, 170 (Cross).)
The court must “inform the defendant of three constitutional
rights -- the privilege against compulsory self-incrimination, the
right to trial by jury, and the right to confront one’s accusers --
and solicit a personal waiver of each [Boykin-Tahl waivers].”
(Ibid., citing Boykin v. Alabama (1969) 395 U.S. 238, 243-244,
and In re Tahl (1969) 1 Cal.3d 122, 130-133.) In addition, under
a “judicially created rule of criminal procedure” (Cross, supra, at
p. 179, citing In re Yurko (1974) 10 Cal.3d 857, 863-864 (Yurko)),
the trial court must advise the defendant “of the precise increase
71
in the prison term that might be imposed, the effect on parole
eligibility, and the possibility of being adjudged a habitual
criminal.” (Cross, supra, at pp. 170-171.) “The failure to properly
advise a defendant of his or her trial rights is not reversible ‘if
the record affirmatively shows that [the admission] is voluntary
and intelligent under the totality of the circumstances.’” (Id. at p.
179, quoting People v. Howard (1992) 1 Cal.4th 1132, 1175.)
C. Analysis
Appellant argues that the trial court failed to properly
advise him under Yurko of the penal consequences of admitting
his prior conviction allegations. As an initial matter, respondent
argues appellant forfeited this objection by failing to raise it at
sentencing. We agree. Advisement of the penal consequences of
admitting a prior conviction allegation is not constitutionally
mandated. (See Cross, supra, 61 Cal.4th at pp. 170–171; People
v. Wrice (1995) 38 Cal.App.4th 767, 770; Yurko, supra, 10 Cal.3d
at p. 864.) “Consequently, when the only error is a failure to
advise of the penal consequences, the error is waived if not raised
at or before sentencing.” (People v. Wrice, supra, at pp. 770–771.)
In any event, we conclude that the trial court adequately
advised appellant of the penal consequences of his admission.
The court advised appellant that his admission of the burglary
conviction was a strike that could double his sentence and,
together with his other prior conviction, render him ineligible for
probation. The court also told appellant that it had the discretion
to dismiss a prior strike. Although appellant asserts that he
should have been advised about the effects of the Three Strikes
law on his conduct credits and eligibility for a youthful offender
parole hearing, he cites no authority for this premise, nor does he
respond to the contrary authority cited by respondent. (See
72
People v. Barella (1999) 20 Cal.4th 261, 263 [finding a
“defendant’s parole eligibility date is not a direct consequence of
which a defendant must be apprised before pleading guilty,” nor
is the “credit limitation contained within the Three Strikes
law”].) We also note that appellant admitted his prior convictions
during his testimony at trial. Thus, under the totality of the
circumstances, the record demonstrates that appellant’s
admission of his prior conviction was knowing and voluntary.
XX. Admission of Prior Conviction for Purpose of
Enhancements
The trial court imposed two five-year enhancements, on
counts one and four, based on appellant’s admitted prior strike
conviction pursuant to section 667, subdivision (a)(1). In a two-
paragraph argument, appellant contends that he admitted his
prior conviction “for purposes of the Three Strikes allegation,” but
not “for purposes of the section 667(a) enhancement allegation.”
He therefore contends that the enhancements imposed constitute
“an unauthorized sentence.” Apart from referring to his
arguments in section XIX, ante, he cites no authority for this
contention. Thus, we find no error for the same reasons
discussed in that section. To the extent appellant seeks to make a
distinct argument regarding the section 667 enhancement, he has
failed to adequately do so and we consider it forfeited. (See
People v. Barnett, supra, 17 Cal.4th at p. 1182; Jones v. Superior
Court, supra, 26 Cal.App.4th at p. 99.)
XXI. Request for Franklin Remand
Appellant seeks remand for a hearing pursuant to People v.
Franklin (2016) 63 Cal.4th 261, so that he may present
information relevant to an eventual section 3051 youthful
offender parole hearing. Pursuant to section 3051, offenders 25
73
years of age and younger at the time of their offense are eligible
for a youth offender parole hearing after a specified number of
years in prison. (§ 3051, subds. (a)–(b).) Appellant was 22 years
old when he committed the instant offenses. However, he was
ineligible for a section 3051 hearing because he was sentenced
under the One Strike law and for his prior felony under the Three
Strikes law. (§ 3051, subd. (h) (3051(h).) He now contends that
the exclusion of One Strike and Three Strikes offenders under
section 3051(h) violates equal protection.
Appellant relies on People v. Edwards (2019) 34
Cal.App.5th 183, 197 (Edwards), in which the court concluded
that the section 3051(h) carve-out for One-Strike offenders
sentenced pursuant to section 667.61 was unconstitutional. The
Edwards court found “no rational relationship between the
disparity of treatment [of One-Strike offenders] and a legitimate
governmental purpose” (ibid.), noting that section 3051 included
“first degree murderers but exclude[d] One Strikers” (id. at p.
195). He asks us to disregard the decisions reaching the opposite
conclusion, including People v. Williams (2020) 47 Cal.App.5th
475, review granted July 22, 2020, S262191 (Williams) and
People v. Wilkes (2020) 46 Cal.App.5th 1159, 1164 (Wilkes).
In Williams, supra, 47 Cal.App.5th at pp. 492-493, the
court rejected the reasoning of Edwards and concluded that there
was no equal protection violation in the exclusion under section
3051(h) for one-strike offenders. The Williams court
distinguished People v. Contreras (2018) 4 Cal.5th 349(Contreras), on which Edwards heavily relied, as Contreras
involved a constitutional challenge to life without parole
sentences under the Eighth Amendment's prohibition of cruel
and unusual punishment. (Williams, supra, 47 Cal.App.5th at
74
pp. 490, 492-493, discussing Contreras, supra, 4 Cal.5th at p.
382.) The court found that “the threat of recidivism by violent
sexual offenders—as demonstrated by the Legislature’s
enactment of several comprehensive statutory schemes to curb
such recidivism among such offenders—provides a rational basis
for the Legislature’s decision to exclude one-strikers from the
reach of section 3051.” (Williams, supra, 47 Cal.App.5th at p.
493, citing Johnson v. Department of Justice (2015) 60 Cal.4th
871, 881; see also People v. Turnage (2012) 55 Cal.4th 62, 74–75
(Turnage) [noting the standard of rationality neither “depend[s]
upon whether lawmakers ever actually articulated the purpose
they sought to achieve,” “[n]or must the underlying rationale be
empirically substantiated”]; People v. Luna, supra, 209
Cal.App.4th at p. 471 [observing that section 667.61 “‘was
enacted to ensure serious and dangerous sex offenders would
receive lengthy prison sentences upon their first conviction’”].)
We agree. Like Williams, supra, 47 Cal.App.5th at p. 493,
“[g]iven the deferential standard we apply in determining
rationality for equal protection purposes (see Turnage, supra, 55
Cal.4th at p. 74), and given our view that the risk of recidivism
provides a rational basis for the Legislature to treat violent
felony sex offenders sentenced under the one-strike law
differently than murderers or others who commit serious crimes,”
we reject appellant’s equal protection challenge to the carve out
for one-strike offenders under subdivision (h) of section 3051.
Appellant’s equal protection challenge to the exclusion
under section 3051(h) for offenders sentenced under the Three
Strikes law also fails. In Wilkes, the court rejected such a
challenge: “Numerous courts have rejected equal protection
challenges to the differential treatment of Three Strikes
75
offenders, concluding that such offenders are not similarly
situated to non-recidivist offenders and/or that a rational basis
exists to treat them differently . . . ‘It is reasonable for the
Legislature to distinguish between those felons . . . who come to
court with a history of serious or violent felony convictions and
those who do not.’” (Wilkes, supra, 46 Cal.App.5th at 1165.) The
court concluded that “[a]ssuming a Three Strikes youth offender
is similarly situated to other youth offenders for purposes of
section 3051, the Legislature could rationally determine that the
former—‘a recidivist who has engaged in significant antisocial
behavior and who has not benefited from the intervention of the
criminal justice system’ [citation]—presents too great a risk of
recidivism to allow the possibility of early parole.” (Id. at pp.
1165-1166, citing People v. Cooper (1996) 43 Cal.App.4th 815,
829; People v. Kilborn (1996) 41 Cal.App.4th 1325, 1332 [“The
system of imposing greater punishment on all persons who
commit a felony-grade crime after having committed one or more
serious or violent felonies in the past, is rationally related to the
legitimate public objective of discouraging recidivism”].) The
Wilkes court found the reasoning in Edwards regarding first time
offenders sentenced under the One Strike law to be inapplicable
to a defendant with a prior criminal history sentenced under the
Three Strikes law. (Wilkes, supra, 46 Cal.App.5th at 1166-1167.)
As such, we reject appellant’s challenge to section 3051 and
affirm the trial court’s conclusion that he was ineligible for a
youthful offender parole hearing.
XXII. Remand to Exercise Discretion Under Section 1385
Appellant requests that we remand the matter to allow the
trial court to exercise its discretion to strike the prior felony
enhancements under section 667, subdivision (a) (section 667(a)).
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On September 30, 2018, the Governor signed Senate Bill No.
1393 (2017-2018 Reg. Sess.) (S.B. 1393), amending sections
667(a) and 1385 to provide the trial court with discretion to strike
enhancements for serious felony convictions. The legislative
changes became effective January 1, 2019.
Appellant was sentenced in April 2019, three months after
S.B. 1393 became effective. Respondent contends that remand is
unwarranted, as the trial court was aware of its discretion under
the amended statute and chose not to strike the enhancements.
In imposing the indeterminate portion of the sentence, the court
stated: “I will impose a five year prior under 667[(a)(1)] for the
residential burglary because these charges involve strikes.”
Then, when imposing the determinate part of the sentence, the
court stated: “I must—or I will impose a five-year prior under
this sentencing scheme.” Respondent argues that the court’s
inclusion of a basis for imposing the enhancement suggests it
knew it was no longer mandatory.
However, as respondent acknowledges, the prosecutor’s
sentencing memorandum incorrectly told the trial court that it
could not strike or stay the section 667(a) enhancements. Neither
party corrected this error at sentencing, and the court did not
acknowledge it or otherwise indicate it was aware of its
discretion.
“Defendants are entitled to ‘sentencing decisions made in
the exercise of the “informed discretion” of the sentencing court,’
and a court that is unaware of its discretionary authority cannot
exercise its informed discretion.” (People v. Gutierrez (2014) 58
Cal.4th 1354, 1391.) “Generally, when the record shows that the
trial court proceeded with sentencing on the erroneous
assumption it lacked discretion, remand is necessary so that the
77
trial court may have the opportunity to exercise its sentencing
discretion at a new sentencing hearing.” (People v. Brown (2007)
147 Cal.App.4th 1213, 1228.) “Remand for resentencing is not
required, however, if the record demonstrates the trial court was
aware of its sentencing discretion. . . . Further, remand is
unnecessary if the record is silent concerning whether the trial
court misunderstood its sentencing discretion. Error may not be
presumed from a silent record. . . . ‘“[A] trial court is presumed to
have been aware of and followed the applicable law.”’” (Id. at pp.
1228-1229, citations omitted; see also People v. Lee (2017) 16
Cal.App.5th 861, 867 [“If the record is silent . . . the defendant
has failed to sustain his burden of proving error, and we
affirm.”].)
We disagree with respondent’s contention that the record
was “silent” as to the court’s discretion, where the sentencing
memorandum affirmatively misstated the law and there is no
indication that the court understood otherwise. Moreover, the
record before us does not clearly indicate the court would have
declined to strike the five-year enhancement, even if it
understood its discretion to do so. While the court denied
appellant’s request to impose concurrent sentences on some of the
counts, finding multiple circumstances in aggravation and none
in mitigation, it also expressly chose not to sentence appellant to
“the absolute maximum,” instead staying the gun enhancement
on three out of four counts. We accordingly remand the matter
for the trial court to exercise its discretion whether to strike the
enhancements under section 667(a)(1). We express no opinion as
to how the trial court should exercise its discretion on remand.
XXIII. Request for In Camera Review
After the jury was sworn and prior to opening statements,
78
the court granted defense counsel’s request for an ex parte
hearing. Appellant requests that we review the sealed portion of
the transcript regarding this hearing “to determine if any in
camera ruling violated defendant’s statutory or constitutional
rights or impacted any of the issues raised on appeal.”
Respondent does not object. We have reviewed the transcript and
find no rulings violating appellant’s rights or impacting issues
raised on appeal.
XXIV. Challenge to Imposition of Fines and Fees
Appellant contends the trial court erred by requiring him to
pay restitution fines and court assessment fees without finding
that he had the ability to pay them. As support for this claim,
appellant relies on People v. Dueñas (2019) 30 Cal.App.5th 1157(Dueñas).)
At sentencing, the trial court imposed a $1,600 restitution
fine (§ 1202.4, subd. (b)), a $320 court operations assessment
(§ 1465.8, subd. (a)(1)), and a $240 court construction fee (Gov.
Code, § 70373).12 At the time of sentencing, the statutory
minimum fine under section 1202.4 was $200. Thus, the $1,600
restitution fine the trial court imposed exceeded the statutory
minimum. Even prior to Dueñas, section 1202.4 permitted a
defendant to present information regarding his or her ability to
pay any fine amount above the minimum. (§ 1202.4, subd. (c).)
Thus, by failing to object to the restitution fine and to present
evidence he did not have the ability to pay it, appellant forfeited
the argument that the trial court erred in imposing the fine
without considering his ability to pay. (See People v. Avila (2009)
12We discuss the corrections to these amounts in section
XXV, post. We have used the corrected amounts here.
79
46 Cal.4th 680, 729; People v. Smith (2020) 46 Cal.App.5th 375,
395; People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1033; People
v. Frandsen (2019) 33 Cal.App.5th 1126, 1154.)
Respondent contends that appellant also forfeited his right
to object to the non-punitive court operations assessment and
court construction fees. We agree. Appellant was sentenced in
April 2019, three months after Duenas was issued. Because
appellant failed to object to any fines or fees at sentencing, he has
forfeited this challenge. (See People v. Frandsen, supra, 33
Cal.App.5th at p.1153; People v. Avila, supra, 46 Cal.4th at p.
729.)
XXV. Correction to Fines and Fees Imposed
Respondent also contends that the trial court erred in
calculating the amounts of fines and fees imposed, resulting in an
unauthorized sentence. Appellant did not respond to this claim.
At the sentencing hearing, the court imposed the minimum
restitution fine of $200 per count, and imposed and stayed a
parole revocation fine in the same amount of $200 per count. The
court also stated it was imposing “all other mandatory court
fees,” which would include court operations assessments under
section 1465.8, subdivision (a)(1) and court construction fees
under Government Code section 70373.
However, the court’s minute order and abstract of
judgment incorrectly reflect a single $200 restitution fine and
$200 parole revocation fine. Because we reversed the conviction
on count two, the correct total is now two fines of $1,400 each,
calculated as $200 times seven counts. In addition, the minute
order and abstract of judgment reflect $140 in court operations
assessments and no court construction fees. It appears this
calculation was based on the status of these fees at the time of
80
the crimes in 2004—at that time, the court operations
assessment under the prior version of section 1465.8 was $2013
and the fee provision of Government Code section 70373 had not
yet been enacted. However, fees are properly imposed as of the
date of conviction, not the date of commission of the crimes. (See
People v. Davis (2010) 185 Cal.App.4th 998, 1001 [fees imposed
upon “conviction,” i.e., “upon the return of a guilty verdict by the
jury or by the entry of a plea admitting guilt”]; People v. Alford
(2007) 42 Cal.4th 749, 754 [“the Legislature intended to impose
the court security fee to all convictions after its operative date”].)
Thus, the court was required to impose a court operations
assessment of $40 per count, totaling $280, under the applicable
version of section 1465.8, subdivision (a)(1), and a court
construction fee of $30 per count, totaling $210, under
Government Code section 70373.
“These matters are mandatory (see People v. Woods (2010)
191 Cal.App.4th 269, 272–273 [court facility assessment,
restitution fine, and court security fees are mandatory]; People v.
Guiffre (2008) 167 Cal.App.4th 430, 434 [imposition of previously
stayed section 1202.44 probation revocation fine is mandatory
upon revocation of probation with state prison sentence]) and
may be added on review.” (People v. Rodriguez (2012) 207
Cal.App.4th 1540, 1543, fn. 2 citing People v. Mitchell (2001) 26
Cal.4th 181, 185–188.) Therefore, upon remand, we direct the
trial court to correct the abstract of judgment to reflect $1,400 in
restitution fines, $1,400 in parole revocation fines, $280 in court
It seems the court used the 2004 value of $20 and
13
multiplied it across seven counts, rather than eight, for a total of
$140.
81
operations assessments, and $210 in court construction fees.
DISPOSITION
We reverse the conviction for kidnapping on count two.
The matter is remanded for the limited purpose of allowing the
trial court to consider, at a hearing at which appellant has a right
to be present with counsel, whether to exercise its discretion to
strike the prior prison term pursuant to section 667(a). If the
court elects to exercise this discretion, appellant shall be
resentenced. We also direct the trial court to correct the fines
and fees imposed in the abstract of judgment as detailed herein.
The judgment is affirmed in all other respects.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J.
We concur:
MANELLA, P. J.
CURREY, J.
82