People v. Coleman CA1/4

Filed 9/23/20 P. v. Coleman CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR

THE PEOPLE,
Plaintiff and Respondent,
A154631
v.
(Contra Costa County
LOUIS RAY COLEMAN,
Super. Ct. No. 5-170819-7)
Defendant and Appellant.

Defendant Louis Ray Coleman appeals a judgment sentencing him to
prison for life without the possibility of parole based on his conviction on 25
criminal counts related to his kidnap and sexual assault of two victims. He
asserts numerous arguments challenging, among other things, the denial of
his motion to represent himself at trial, the court’s instructions to the jury
and the sufficiency of the evidence to support his convictions on certain
counts. We find no prejudicial error and shall affirm the judgment.
Factual and Procedural Background
Defendant was charged by amended information with committing 25
criminal offenses against two victims. With respect to Jane Doe 1, defendant
was charged as follows: human trafficking of a minor for a sex act (count 1;
Pen. Code, § 236.1, subd. (c)(2));1 aggravated sexual assault/rape of a child

All statutory references are to the Penal Code unless otherwise
1

specified.

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(counts 2, 4, 13; § 269, subd. (a)(1)); forcible lewd act upon a child (counts 3, 7,
8, 9, 10, 11, 15, 16; § 288, subd. (b)(1)); aggravated sexual assault/oral
copulation of a child (counts 5, 14; § 269, subd. (a)(4)); aggravated sexual
assault/penetration of a child (count 6; § 269, subd. (a)(5)); kidnapping to
commit sex offenses (count 12; § 209, subd. (b)(1)); and unlawful driving or
taking of a vehicle (count 17; Veh. Code, § 10851, subd. (a)). The eight counts
of forcible lewd acts upon a child included “One Strike” allegations under
section 667.61.
With respect to Jane Doe 2, defendant was charged as follows: human
trafficking to commit another crime (count 18; § 236.1, subd. (b)); forcible
rape (counts 19, 25; § 261, subd. (a)(2)); forcible sodomy (count 21; § 286,
subd. (c)(2)(A)); forcible oral copulation (counts 22, 23, 24, § 288a,
subd. (c)(2)(A)); and kidnapping to commit rape and oral copulation (count 20,
§ 209, subd. (b)(1)). Personal firearm use enhancements (§§ 12022.5,
subd. (a), 12022.53, subd. (b)) and “One Strike” allegations (§ 667.61) were
alleged as to many of the offenses. A prior Vehicle Code section 10851,
subdivision (a) conviction was alleged under section 666.5 and two
section 667.5 prior convictions were also alleged.
At trial, Jane Doe 1 testified that she was 12 years old when she met
defendant near the Richmond BART station after asking him for directions.
Defendant led her to an abandoned house and offered her methamphetamine.
She went with him behind the house because she thought he was going to
help her, but once behind the house she felt like she could not leave because
she was afraid defendant would hurt her. She explained that she smoked the
methamphetamine defendant offered because she was starting to feel like
something bad might happen and was thinking that the drug might change
the way she was feeling. Over the course of three days, defendant repeatedly

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gave her drugs and sexually and physically assaulted her. She escaped when
defendant left her unattended in the back of a van at the Greyhound bus
station. During the course of the offenses, defendant told her that he wanted
her to be a prostitute for him.
Jane Doe 2 testified that she met defendant near the Richmond BART
station when she asked for directions to a nearby bank. Defendant led her to
an abandoned house and over a period of three days tricked her into smoking
methamphetamine, moved her from place to place against her will, and
repeatedly sexually and physically assaulted her. She was able to escape
when defendant took her to a store near the Richmond BART station. Doe 2
testified that during the course of the offenses, defendant told a man they ran
into that he was training Doe 2 to be a prostitute.
Two additional witnesses testified regarding prior uncharged sexual
assaults perpetrated against them by defendant. The first victim testified
that in June 1995, when she was 12 years old, defendant used a gun to force
her into a car. He brought her to an apartment where he held her against her
will and sexually assaulted her. When she escaped, she called the police, told
them the perpetrator’s name and later identified defendant. She testified that
defendant was prosecuted for the crimes he committed against her. The
second victim testified that in 2000, when she was 13 years old, she met
defendant at the McArthur BART station after running away from home. For
five years, defendant held her against her will, sexually and physically
abused her, and forced her to work as a prostitute.
Defendant denied engaging in any criminal conduct. He testified that
he met Jane Doe 1 at the Richmond BART station when she asked for
directions to Los Angeles. They ended up hanging out together for three days
before he left her at the West Oakland Greyhound station. They used

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methamphetamine together and engaged in consensual sex. She told him she
was 18, but later said that she was turning 17. He testified that after meeting
Jane Doe 2 at the BART station they also hung out together for a few days,
used methamphetamine together and engaged in consensual sex. He denied
physically or sexually assaulting her. With respect to the first victim of the
uncharged conduct, defendant claimed that he believed she was at least 22
years old when they engaged in consensual sex. After his arrest, he learned
that she was actually 12 years old, so he pled guilty to sexual battery. With
respect to the second victim of the uncharged conduct, defendant denied that
he acted as her pimp and claimed that any sexual contact was consensual.
The jury found defendant guilty of each of the charged offenses and
found the firearm and “One Strike” allegations true. After finding the prior
conviction enhancement allegations true, the court sentenced defendant to
multiple consecutive terms of life without possible parole (LWOP) plus
additional terms totaling 301 years 9 months to life in prison.
Defendant timely filed a notice of appeal.
Discussion
1. Defendant’s Faretta Motion for Self-representation
“ ‘A criminal defendant has a right to represent himself at trial under
the Sixth Amendment to the United States Constitution. [Citations.] A trial
court must grant a defendant's request for self-representation if three
conditions are met. First, the defendant must be mentally competent, and
must make his request knowingly and intelligently, having been apprised of
the dangers of self-representation. [Citations.] Second, he must make his
request unequivocally. [Citations.] Third, he must make his request within a
reasonable time before trial.’ ” (People v. Stanley (2006) 39 Cal.4th 913, 931–
932. citing Faretta v. California (1975) 422 U.S. 806, 834-835 (Faretta).)

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 The erroneous denial of a Faretta motion is reversible per se. (People v.
Carlisle (2001) 86 Cal.App.4th 1382, 1390.) We review de novo whether the
defendant’s invocation of the right to self-representation and waiver of the
right to counsel was knowing and voluntary. (People v. Best (2020) 49
Cal.App.5th 747, 756.) A ruling denying a Faretta motion as untimely is
reviewed for abuse of discretion. (People v. Buenrostro (2018) 6 Cal.5th 367,
426.)
The initial complaint against defendant was filed on June 15, 2016.
Following numerous pretrial proceedings at all of which defendant was
represented by counsel, on September 26, 2017, the day before the jury trial
was set to begin, he first informed the court that he wanted to represent
himself. The court advised defendant that it was about to rule on a number of
motions filed by defendant’s attorney and that the jury trial was going to
start the following day. The court questioned whether defendant would be
able to represent himself on the motions and prepare for trial given the
timing and legal complexity of some of the motions. Ultimately, the court
said, “today, like right now, we’re going to do some motions that were filed by
your attorney. And I think if you listen to what he has filed and is arguing,
you will see he’s taking care of business as he’s supposed to. I don’t think you
will have any issue like that. Okay?” The defendant responded “Uh-huh” and
then “Okay. Okay.” The motions were ruled on that day and jury selection
began the next day.2
Defendant contends his convictions should be reversed because “the
court violated Faretta when it failed to (1) comply with Faretta procedural

As defendant notes, the day after ruling on the motions, defense
2

counsel requested a continuance based on recently produced discovery. The
court denied the continuance and commenced with jury selection. Defendant
has not challenged the denial of the continuance.

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‘admonishment’ requirements, (2) exceeded its authority in attempting to
persuade defendant to not exercise his right to self-representation, and
(3) used improper factors to deny defendant his right to self-representation.”
The Attorney general contends the court properly denied defendant’s motion
as untimely.
Although both parties’ arguments are based on the premise that the
court denied defendant’s motion, the record does not reflect a final ruling.
Defendant made an unequivocal request, but then acquiesced to the court’s
suggestion that he listen to the proceedings on the pending pre-trial motions
before making any decision regarding self-representation. While the court
might have denied the motion as untimely, it does not appear that it did.
(People v. Lynch (2010) 50 Cal.4th 693, 722 [Although the courts have not
“fixed any definitive time before trial at which a motion for self-
representation is considered untimely,” the California Supreme Court has
held on numerous occasions that “Faretta motions made on the eve of trial
are untimely.”]; People v. Valdez (2004) 32 Cal.4th 73, 102 [Faretta request
made “moments before jury selection” untimely]; People v. Horton (1995) 11
Cal.4th 1068, 1110-1111 [Faretta request made on the date scheduled for
trial untimely].) The matter was not raised again nor did defendant press the
court for a final ruling after the pre-trial motions were decided.
The right to self-representation can be waived or abandoned after its
invocation. The standard for waiving or abandoning the right to self-
representation is “substantially less stringent than it is for waiving the right
to counsel.” (People v. Fedalizo (2016) 246 Cal.App.4th 98, 104.) The right to
self-representation may be waived or abandoned expressly or impliedly
through conduct that is inconsistent with the assertion of the right.
(McKaskle v. Wiggins (1984) 465 U.S. 168, 183; accord, People v. Trujeque

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(2015) 61 Cal.4th 227, 262–263 [the right to self-representation, “ ‘once
asserted, may be waived or abandoned,’ ” and such “abandonment may be
inferred from a defendant's conduct”].) Moreover, abandonment may be found
where a trial court does not rule on a Faretta motion and the defendant does
not raise the issue again. (People v. Dunkle (2005) 36 Cal.4th 861, 909,
disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421,
fn. 22; see also People v. Skaggs (1996) 44 Cal.App.4th 1, 7-8; People v.
Kenner (1990) 223 Cal.App.3d 56, 69.)
Contrary to defendant’s argument, nothing in the record suggests the
court induced or coerced defendant to abandon his right to self-
representation. Rather, the court properly advised defendant of the pitfalls of
self-representation and emphasized the seriousness of the case. The court
explained, “We have several motions on today that your attorney has filed
that we are going to proceed on today. You are not familiar with the law in
those motions. Those are not motions you wrote, nor motions that you
understand, but they are very important. So shouldn’t you just stick with the
lawyer who has been representing you for a year who knows your case inside
and out?” The court noted that defendant had been represented by the same
attorney for over a year and had not had any complaints about him. The
court added, “It’s a serious case. Like I said, I’ve been spending all morning
working on the motions and researching the law because I don’t know. I have
to research the law as they are quoting it to me and seeing if it’s correct. And
that doesn’t make sense for you to say, okay, I will just pick up the whole
show and start it tomorrow on my own when you don’t understand these
motions.” Finally, in response to defendant’s request for additional time to
prepare, the court stated: “I can’t do that. Not only is it a no-time waiver, but
it’s now been sent to the court for trial. That means everything’s been put in

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motion. The [district attorney] has subpoenaed their witnesses. The defense
attorney has a list of what witnesses he might actually bring in to testify.
[¶] The machine has started. Everything is ready to go. And that means 140
jurors and a lot of witnesses and a lot of people are involved in a train that
has just left the station. [¶] I want you to understand that I will not give you
a continuance to prepare the case because you can’t possibly prepare a case
this complicated in a short amount of time. Certainly not by tomorrow.”
Throughout the conversation, defendant stated, “I understand” and “right”
before ultimately agreeing to proceed with the pretrial motions. Under these
circumstances, defendant abandoned his request to represent himself by not
reasserting his request after the pretrial rulings.
2. Prosecutorial Error
During rebuttal argument the prosecutor argued: “What are the odds
that four different women of different ages from different parts of their lives
from different places all come in here and told you what that man did to
them. I challenge the defense to explain a reasonable explanation for that.”
Defense counsel’s objection to the prosecutor’s “improper argument” was
overruled.3 Thereafter, the prosecutor continued, “I challenge each and every
one of you to come up with a reasonable explanation for that piece of
circumstantial evidence. I’ll tell you what, there is not a reasonable

3 The ground for defendant’s objection is not entirely clear. (See People
v. Hill (1998) 17 Cal.4th 800, 820, overruled on another ground in Price v.
Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13 [“ ‘As a general rule a
defendant may not complain on appeal of prosecutorial misconduct unless in
a timely fashion—and on the same ground—the defendant made an
assignment of misconduct and requested that the jury be admonished to
disregard the impropriety.’ ”].) Any potential forfeiture notwithstanding, we
will address the merits of defendant’s claim given his appended ineffective
assistance of counsel argument. (People v. McCullough (2013) 56 Cal.4th 589,
593; People v. Lua (2017) 10 Cal.App.5th 1004, 1014.)

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explanation for that . . . because there is no reasonable explanation for why
all four of these women got up here and told you what they did about the
defendant. The only reasonable explanation is that the defendant is guilty.”
The prosecutor also asked, “How come every single little girl that that man
rapes supposedly says she’s 18 to him? Why? What are the odds of that?”
Defendant contends that the prosecutor’s rebuttal argument
improperly “relied on statistical probability theory to dilute the People’s
burden of proof, in violation of the principles announced in People v. Collins
(1968) 68 Cal.2d 319 and People v. Centeno (2014) 60 Cal.4th 659 and the
‘prosecutorial error’ was ‘reasonably likely’ to misled the jury “about the
applicable standard of proof and how the jury should approach its task.”
In People v. Collins, supra, 68 Cal.2d at pages 325, 327-331, the court
held that improperly admitted testimony by a math professor regarding the
statistical probability of a random couple possessing the characteristics of the
codefendants was likely to have interfered with the jury’s weighing of the
evidence because the manner in which the prosecution used the improper
testimony “distracted the jury from its proper and requisite function of
weighing the evidence on the issue of guilt, encouraged the jurors to rely
upon an engaging but logically irrelevant expert demonstration, foreclosed
the possibility of an effective defense by an attorney apparently unschooled in
mathematical refinements, and placed the jurors and defense counsel at a
disadvantage in sifting relevant fact from inapplicable theory.” (Id. p. 327.)
In People v. Centeno, supra, 60 Cal.4th at page 672, the court held that
“it is error for the prosecutor to suggest that a ‘reasonable’ account of the
evidence satisfies the prosecutor’s burden of proof.” (Italics omitted.) The
court explained, “Here, the prosecutor's argument began with what the jury
could consider: reasonably possible interpretations to be drawn from the

9
evidence. While this is an acceptable explanation of the jury’s starting point,
it is only the beginning. . . . The standard of proof is a measure of the jury's
level of confidence. It is not sufficient that the jury simply believe that a
conclusion is reasonable. It must be convinced that all necessary facts have
been proven beyond a reasonable doubt. [Citation.] The prosecutor, however,
left the jury with the impression that so long as her interpretation of the
evidence was reasonable, the People had met their burden.” (Ibid.; see also
id. at p. 673 [The prosecutor “repeatedly suggested that the jury could find
defendant guilty based on a ‘reasonable’ account of the evidence. These
remarks clearly diluted the People’s burden.” (Italics omitted.)].)
Tying these cases together, defendant argues that the prosecutor in
this case “used mathematical probability odds doctrine to obtain a conviction
without attempting to use a mathematician to support the doctrine or
explaining the doctrine. The jurors were the mathematicians and they were
to calculate the odds. Like the prosecutors in Collins and Centeno, the
prosecutor’s argument was designed to dilute and circumvent the
prosecution’s burden of proof. [¶] . . . [¶] Under the prosecutor’s ‘odds’
argument, the actual evidence did not have to be evaluated or credibility
determined because the ‘odds’ created by four independent victims with
independent backgrounds was sufficient circumstantial evidence of guilt.” In
his rebuttal brief, defendant emphasizes that the argument diluted “the
prosecution’s burden of proof by substituting statistical mathematical
certainty for evidence.” We disagree.
The suggestion that the prosecutor’s argument asked the jury to engage
in statistical calculations is overreach. The prosecutor was clearly using the
word “odds” in a colloquial sense. More importantly, the prosecutor did not
argue that her burden was satisfied because the four victims gave such

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similar testimony. The prosecutor identified circumstantial evidence⸺the
fact that the four women did not know each other⸺and argued that the only
reasonable inference to draw from that circumstantial evidence was that the
witnesses were telling the truth. Then the prosecutor argued, “if you believe
everything [Jane Doe 1 and Jane Doe 2] said, defendant is guilty as long as
you believe them beyond a reasonable doubt[.] [U]nder the law, that’s all the
evidence you need to convict the defendant. [¶] But in this case, we have a lot
more than that . . . . We have so much corroboration here.” The prosecutor
then proceeded to discuss how the testimony of the victims of the uncharged
offenses corroborated the testimony of Doe 1 and Doe 2 in this case. There is
no reason to conclude that the jury understood the prosecutor’s argument to
permit a conviction based simply on the odds or the fact that the testimony of
the uncharged witness corroborated that of the victims’ in this case, without
finding the victims’ testimony true beyond a reasonable doubt. There was no
misconduct and no error.
3. Instructional Error: Sex Offense “Propensity” Instruction
Evidence Code section 1101, subdivision (a) “ ‘ “expressly prohibits the
use of an uncharged offense if the only theory of relevance is that the accused
has a propensity (or disposition) to commit the crime charged and that this
propensity is circumstantial proof that the accused behaved accordingly on
the occasion of the charged offense.” ’ ” (People v. Clark (2016) 63 Cal.4th 522,
588.) Evidence Code section 1108, subdivision (a), however, provides: “In a
criminal action in which the defendant is accused of a sexual offense,
evidence of the defendant's commission of another sexual offense or offenses
is not made inadmissible by Section 1101, if the evidence is not inadmissible
pursuant to Section 352.”

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 The trial court instructed the jury with CALCRIM No. 1191 as to the
uncharged sex offense evidence admitted under Evidence Code section 1108
as follows: “The People presented evidence that the defendant committed
other sex crimes not charged in this case. . . . [¶] 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 the fact is true. [¶] If
the People have not met this burden of proof, you must disregard this
evidence entirely. [¶] 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 charged sex offenses in this case. If you
conclude that the defendant committed the uncharged offenses, that
conclusion is only one factor to consider along with all the other evidence. It
is not sufficient by itself to prove that the defendant is guilty of the charged
sex offenses. The People must still prove each charge and allegation beyond a
reasonable doubt.”
Defendant contends that the instruction misstates California law and
violates his right to due process. He argues that uncharged offenses are
circumstantial evidence of defendant’s guilt and thus, they must be proven

12
beyond a reasonable doubt.4 Defendant’s argument is contrary to well
established California and federal Supreme Court authority.
The United States Supreme Court has made clear that the evidence
supporting a permissive presumption is properly subject to the
preponderance standard “[a]s long as it is clear that the presumption is not
the sole and sufficient basis for a finding of guilt.” (Ulster County Court v.
Allen (1979) 442 U.S. 140, 167 [“There is no more reason to require a
permissive statutory presumption to meet a reasonable-doubt standard
before it may be permitted to play any part in a trial than there is to require
that degree of probative force for other relevant evidence before it may be
admitted.”]; see also People v. McCall (2004) 32 Cal.4th 175, 183, fn. 5
[explaining permissive inferences].) CALCRIM No. 1191 creates a permissive
inference. (People v. Schnabel (2007) 150 Cal.App.4th 83, 87.) CALCRIM
No. 1191 expressly instructs that the jury, “If you conclude that the
defendant committed the uncharged offenses, that conclusion is only one
factor to consider along with all the other evidence. It is not sufficient by
itself to prove that the defendant is guilty of the charged sex offenses. The
People must still prove each charge and allegation beyond a reasonable
doubt.” In People v. Reliford (2003) 29 Cal.4th 1007, 1012-1016, the
California Supreme Court upheld the constitutionality of the predecessor
instruction to CALCRIM No. 1191 against a claim that it improperly lessened
the prosecutor’s burden of proof. The instruction considered in Reliford is

4 To be clear, we are not addressing the burden of proof applicable
when other charged offenses are used as propensity evidence to prove other
charged offenses. (See People v. Villatoro (2012) 54 Cal.4th 1152, 1167-1168
[implicitly recognized that charged offenses offered as propensity evidence
must be proven beyond a reasonable doubt]; People v. Cruz (2016) 2
Cal.App.5th 1178, 1186 [holding that charged offenses offered as propensity
evidence must be proven beyond a reasonable doubt]; CALCRIM No. 1191B.)

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similar in all material respects to CALCRIM No. 1191, which was given here,
in its explanation of the law on permissive inferences and the burden of proof.
We are in no position to reconsider the Supreme Court's holding in Reliford.
(Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) There
was no error in the court’s instruction using CALCRIM No. 1191.
4. Instructional Error: Counts 12 and 20 (Aggravated
Kidnapping) and Count 17 (Unlawful Taking a Motor
Vehicle)
As set forth above, CALCRIM No. 1191 instructed the jury that it could
consider the uncharged offenses in deciding whether “the defendant was
likely to commit and did commit the charged sex offenses in this case.”
Defendant contends that his conviction on counts 12, 17, and 20 should be
reversed because they are not sex offenses and it is reasonably likely that the
jury improperly used “ ‘propensity’ evidence to convict on the charged non-sex
crimes of aggravated kidnapping and unlawful taking a motor vehicle.” We
disagree.
Initially, we agree with the Attorney General that the two aggravated
kidnapping charges qualified as sex offenses under Evidence Code
section 1108. Kidnapping to commit rape is not expressly identified as a
sexual offense under Evidence Code section 1108, subdivision (d)(1)(A).5
However, the crime encompasses all the elements of an attempted rape and
thus qualifies as a sex offense under section 1108, subdivision (d)(1)(F), which
makes the attempt to engage in conduct described in subdivision (d)(1)(A) a

5Evidence Code section 1108, subdivision (d)(1) defines the term
“sexual offense” to include among other things “(A) Any conduct proscribed by
subdivision (b) or (c) of Section 236.1, Section 243.4, 261, 261.5, 262, 264.1,
266c, 269, 286, 287, 288, 288.2, 288.5, or 289, or subdivision (b), (c), or (d) of
Section 311.2 or Section 311.3, 311.4, 311.10, 311.11, 314, or 647.6 of, or
former Section 288a of, the Penal Code.”

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sexual offense. An attempt occurs when there is a specific intent to commit a
crime and a direct but ineffectual act done towards its commission. (§ 21a.)
Kidnapping for the purpose of rape requires that the defendant commit the
kidnapping with the specific intent to rape the victim. This requirement is
derived from the statutory definition of the offense as “kidnap[ping] or
carr[ying] away . . . to commit . . . rape.” (§ 209, subd. (b)(1).) A kidnapping
for the purpose of rape is not a mere act of preparation. It demonstrates that
the perpetrator is putting his plan into action and it is necessarily an attempt
to commit rape. Kidnapping for the purpose of rape is, therefore, a sexual
offense within the meaning of section 1108. (See also People v. McCurdy
(2014) 59 Cal.4th 1063, 1099-1100 [evidence of defendant’s uncharged
incestuous conduct toward his younger sister admissible under section 1108
at trial for capital murder and kidnapping with the purpose to commit a lewd
act on a child under 14 years old]; People v. Daveggio & Michaud (2018) 4
Cal.5th 790, 822 [evidence of uncharged sex-offenses was admissible under
section 1108 because it was relevant in capital murder case to whether
defendant kidnapped the victim for the purpose of rape]; People v. Robertson
(2012) 208 Cal.App.4th 965, 970 [evidence of prior aggravated kidnapping
admissible under section 1108 to prove charges of aggravated kidnapping.].)
With respect to count 17, there is no reasonable likelihood the jury
would believe that unlawful taking of a vehicle constituted a sex offense.
(People v. O’Malley (2016) 62 Cal.4th 944, 991 [“ ‘The relevant inquiry [when
instructional error is claimed] is whether, “in the context of the instructions
as a whole and the trial record, there is a reasonable likelihood that the jury
was misled to defendant's prejudice.” ’ ”]; People v. Sattiewhite (2014) 59
Cal.4th 446, 475 [“ ‘ “ ‘[W]e must assume that jurors are intelligent people

15
and capable of understanding and correlating all jury instructions which are
given.’ ” ’ ”].)
5. Sufficiency of the Evidence: Kidnapping
Defendant was convicted of two counts of aggravated kidnapping under
section 209, one count for each of his victims (counts 12 and 20). The jury also
found true the special circumstance under section 667.61, subdivision (d)(2)
that defendant kidnapped the victims of the charged sexual offenses (counts
3, 7-11, 15-16, 19, 21-25). Defendant contends that the evidence is insufficient
to support either these convictions or the findings on the special allegations.
Under section 209, subdivision (b)(1), “[a]ny person who kidnaps or
carries away any individual to commit . . . rape [or other enumerated
offenses] shall be punished by imprisonment in the state prison for life with
the possibility of parole.” To prove a defendant guilty of kidnapping, “ ‘the
prosecution must establish 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. Perkins (2016) 5 Cal.App.5th 454, 464-465.) To prove
aggravated kidnapping under section 209, the prosecutor must also prove
that “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

16
that necessarily present in, the intended underlying offense.” (§ 209,
subd. (b)(2).)6
Section 667.61, subdivision (a) provides that any person who is
convicted of an enumerated sex offense, “under one or more of the
circumstances specified in subdivision (d) or under two or more of the
circumstances specified in subdivision (e) shall be punished by imprisonment
in the state prison for 25 years to life.” As relevant here, subdivision (d)(2)
triggers sentencing under the One Strike law where “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.” Subdivision (e)(1)
triggers sentencing under the One Strike law where “defendant kidnapped
the victim of the present offense in violation of Section 207, 209, or 209.5.”
Neither subdivision (d)(2) or (e)(1) requires that the defendant kidnap the
victim for the purpose of committing the sexual offense or that the sexual
offense is committed in the course of the kidnapping. (People v. Kelly (2016)

6 The jury was instructed pursuant to CALCRIM No. 1203 as follows:
“The defendant is charged in Count 12 and 20 with kidnapping for the
purpose of rape, oral copulation, sodomy and sexual penetration in violation
of Penal Code section 209(b). [¶] To prove that the defendant is guilty of this
crime, the People must prove that: [¶] 1. The defendant intended to commit
rape, oral copulation, sodomy or sexual penetration; [¶] 2. Acting with that
intent, the defendant took, held, or detained another person by using force or
by instilling a reasonable fear; [¶] 3. Using that force or fear, the defendant
moved the other person or made the other person move a substantial
distance; [¶] 4. The other person was moved or made to move a distance
beyond that merely incidental to the commission of a rape, oral copulation,
sodomy or sexual penetration; [¶] 5. When that movement began, the
defendant already intended to commit rape, oral copulation, sodomy, or
sexual penetration; [¶] 6. The other person did not consent to the movement;
[¶] AND [¶] 7. The defendant did not actually and reasonably believe that the
other person consented to the movement.”

17
245 Cal.App.4th 1119, 1128; People v. Luna (2012) 209 Cal.App.4th 460, 466;
People v. Jones (1997) 58 Cal.App.4th 693, 717.)7
In closing argument, the prosecutor differentiated between the one-
strike allegations and the substantive charges of aggravated kidnapping. The
prosecutor argued that after the victims were taken behind the abandoned
house and smoked the methamphetamine, and then no longer felt free to
leave, they were kidnapped for purposes of the special circumstance
allegation. In contrast, the aggravated kidnapping charges required
consideration of “specific facts.” As discussed below, the prosecutor carved out
specific time periods within the kidnapping to support the aggravated
kidnapping charges. (See People v. Kelly, supra, 245 Cal.App.4th at p. 1127
[Where defendant is charged with one act of kidnapping but evidence
supports two acts of kidnapping, “the prosecutor must elect the specific act
relied upon to prove the charge to the jury, or the court must instruct the jury
that it must unanimously agree that the defendant committed the same
specific criminal act.”].)
A. Jane Doe 1
Evidence was presented that Doe 1 willingly accompanied defendant to
the backyard of the abandoned house where she smoked methamphetamine
with him. After smoking the methamphetamine, she was “really high” and

7 Consistent with the above, the jury was instructed pursuant to
CALCRIM No. 1215 as follows: “The defendant is charged with special
allegations of kidnapping . . . . [¶] To prove that the defendant is guilty of this
crime, the People must prove 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; [¶] AND [¶] 4. The defendant did not
actually and reasonably believe that the other person consented to the
movement.”

18
her head was “spinning.” She was asleep or unconscious when defendant
began raping her. Thereafter, she stayed with defendant for two days and did
not attempt to run away because she was afraid he would hurt her. During
that period, she and the defendant traveled around the area, moving from a
Jeep to a stolen van. Defendant sexually and physically assaulted her in both
the Jeep and the van.
The prosecutor argued that the aggravated kidnapping charge was
based on the specific movement of Doe 1 from the Jeep to the van. The
prosecutor argued, “So, the movement from the Jeep to the van, specifically
he took her straight to the van, and he raped her. He moved her against her
will.”
Defendant contends there is insufficient evidence that defendant’s
motive and intent was to commit rape when he moved Doe 1 from the Jeep to
the van. He argues that the only evidence in the record suggests he moved
her to “escape detection and third party intervention.” He relies on Doe’s
statements to a police officer at the Children’s Interview Center, which were
admitted into evidence, that defendant moved her from the Jeep to the van
because he thought somebody saw him hitting her. He argues that the delay
between the movement and the subsequent rape demonstrates the absence of
a specific intent to rape at the time of the asportation. Defendant’s
arguments, however, ignore substantial evidence that supports the
prosecution’s theory. (People v. Ceja (1993) 4 Cal.4th 1134, 1139 [If the
circumstances reasonably justify the findings of the trier of fact as to each
element of the offense, an opinion of the reviewing court that the
circumstances might also lead to a contrary finding does not warrant
reversal.]; People v. Mack (1992) 11 Cal.App.4th 1466, 1468 [In evaluating

19
the sufficiency of the evidence, “we must resolve any conflicts in evidence or
credibility and draw all reasonable inferences in favor of the verdict.”].)
Doe 1 testified that prior to moving her to the van, defendant had
already raped her twice. After stealing the van and forcing her into it, he
drove a relatively short distance to a different neighborhood before he raped
her again. She testified that the rape occurred “soon after” defendant took the
van. While defendant may have been seeking to avoid detection by moving
the victim to the van, the evidence reasonably supports the jury’s finding that
defendant also intended to again rape the victim after he moved her to the
van. The jury reasonably could have concluded that he could not complete the
rape in the Jeep or in the van at that location if he had been observed by
witnesses. There is no doubt that the movement decreased the likelihood of
detection and enhanced defendant’s opportunity to commit the subsequent
rape. Accordingly, substantial evidence supports defendant’s conviction on
count 12.
B. Jane Doe 2
The evidence established that Doe 2 accompanied defendant to the
backyard of the abandoned house. She testified that while she agreed to
smoke marijuana with defendant she did not know the marijuana was laced
with methamphetamine. She had never used methamphetamine and it
rendered her light-headed, dizzy, confused, panicky and it was hard for her to
control her body. When she sat on a mattress, defendant raped her.
Thereafter, he threatened her with a gun and forced her to accompany him to
two other locations. At one point, while standing outside a house, she asked
to use a bathroom and defendant took her into the bathroom where he
sexually assaulted her again. The prosecutor argued that the aggravated
kidnapping occurred “when the defendant took [Jane Doe 2] into the house,

20
and he took her into the bathroom, and he raped her . . . . That movement
substantially increased her risk of danger, and it decreased his risk of
detection because he took her inside the house and took her straight to the
bathroom, he closed the door, and he locked that door.”
Defendant contends his kidnapping conviction must be reversed
because “when defendant accompanied Doe 2 from the front of the house to
the house’s bathroom there was no . . . forcible movement [or] use of force or
fear.” Defendant argues, “Doe 2 needed to go to the bathroom and that
motivated her movement. Defendant simply accompanied her . . . . Doe 2
never testified that defendant did any forcible act or made any threat or
comment which caused her to go to the front door so that she could use the
bathroom.”
Kidnapping requires that the defendant overcome the victim’s free will
by use of force or fear. (People v. Hill (2000) 23 Cal.4th 853, 856.) The force,
however, need not be physical. (People v. Alcala (1984) 36 Cal.3d 604, 622,
superseded by statute on other grounds as stated in People v. Falsetta (1999)
21 Cal.4th 903, 911.) Movement is forcible “ ‘ “where it is accomplished
through the giving of orders [that] the victim feels compelled to obey because
he or she fears harm or injury from the accused and such apprehension is not
unreasonable under the circumstances.” ’ ” (Alcala, at p. 622.)
The evidence establishes that defendant used a gun to kidnap Doe 2
after raping her in the backyard of the abandoned house. Later, when Doe 2
asked permission to go to the bathroom, he used that opportunity to commit
further sexual offenses. He directed her away from a group of people standing
outside the house to the isolated bathroom. He did not permit her to use the
toilet, however. Instead, he immediately closed the door and began assaulting
her. Doe 2 testified that she stayed with defendant and followed his

21
directions after leaving the backyard because she was afraid of him.
Defendant chose the bathroom to which he brought her. He did not allow her
to leave to find her own bathroom. The jury was instructed pursuant to
CALCRIM No. 1215 that defendant was not guilty of kidnapping if the victim
consented to go with the defendant and that the victim “consented if she (1)
freely and voluntarily agreed to go with or be moved by the defendant, (2)
was aware of the movement, and (3) had sufficient maturity and
understanding to choose to go with the defendant.” Defendant’s continued
exercise of control over the victim’s movement defeats any implication that
her movement to that bathroom was voluntary. (See People v. Arias (2011)
193 Cal.App.4th 1428, 1435 [victim’s testimony that he did not want
defendant to enter his apartment but was “scared” and “just following
[defendant’s] directions” supported jury’s finding that movement was
involuntary.].) Accordingly, substantial evidence supports defendant’s
conviction on count 20.
C. Kidnapping-Related “One Strike” Allegations
The jury found true each of the kidnaping-related “one-strike”
allegations (§ 667.61, subd. (d)(2)) that were attached to many of the charged
sex offenses (counts 3, 7-11, 15-16, 19, 21-25). With respect to this special
circumstance allegation, the prosecutor argued: “This special allegation is
charged under nearly every single count. It’s a conduct allegation. You don’t
need to worry specifically about each and every charge, but just know that
the defendant had these individuals kidnapped the entire time from the
moment that they went behind the abandoned house. [¶] The enhancements
that—or the allegations that are charged here, the elements are that the
defendant took, held, or detained another person using force or fear. He used
that force or fear and moved the other person or made them move a

22
substantial distance, and that that person did not consent to the movement,
and that the defendant did not actually and reasonably believe the person
consented. [¶] Now, here’s the important thing to note about this, Ladies and
Gentlemen, because you may ask yourself, well, initially the two girls walked
with the defendant consensually, but consent can be withdrawn. If a person
. . . agreed to go with defendant, that consent ended when they changed their
mind and no longer freely agreed to go with or be moved by the defendant.
[¶] And that’s exactly what happened here, Ladies and Gentlemen. At the
point in time when (Jane Doe 2) and (Jane Doe 1) got back behind that
abandoned house, and the defendant began drugging them, at that point
their consent had been withdrawn. They no longer felt free to leave. [¶] Here
are some things to consider when determining whether or not an individual is
kidnapped for purposes of this allegation. Consider whether or not the victim
had sufficient maturity and understanding to choose to go with the
defendant. (Jane Doe 1) was alone. It was dark. She was with a stranger, a
man who was much older and much bigger than she was. She also did not
know where she was and was unfamiliar [with] the area. [¶] But again,
Ladies and Gentlemen, both victims were kidnapped the entire time that
they were with defendant from the moment they went behind the abandoned
house and no longer felt free to leave. For (Jane Doe 1), the moment the
defendant began touching her in a sexual manner, she was scared and she no
long[er] felt free to leave. For (Jane Doe 2), the minute she took a hit of that
methamphetamine and felt stranger and that man started touching her, she
said she didn’t feel like it was herself anymore, and that it was hard for her
to have control over her body. [¶] Defendant moved both victims behind that
house and by doing that increased the risk of harm to the victims and
increased their ability to be detected and seen under that tarp. And from

23
every moment on that the defendant moved those girls, they were
kidnapped.”
Initially, we reject defendant’s argument that the closing argument
quoted above prosecutor’s argument suggests that the kidnapping
commenced when defendant “tricked” the victims into accompanying him into
the backyard of the abandoned house. No reasonable jury would reach such a
conclusion based on the prosecutor’s argument that defendant “moved” the
victims behind that house. The court did not, as defendant suggests, err by
failing to sua sponte instruct the jury that “asportation by fraud alone does
not constitute kidnapping.”
Defendant also argues that there is insufficient evidence to support the
true findings on the counts 3, 6, and 19 that were alleged to have occurred in
the backyard, before any asportation had occurred. We disagree. As discussed
above, the special circumstance does not require that the defendant kidnap
the victim for the purpose of committing the sexual offense or that the
kidnapping commence prior to the sexual offense. In People v. Kelly, supra,
245 Cal.App.4th at page 1128, the court observed that it “would be absurd to
construe the statute to apply only where a kidnapping precedes a sexual
offense when the risk of harm to a victim who is sexually assaulted and then
kidnapped is no less substantial.” (See also People v. Jones, supra, 58
Cal.App.4th at p. 717 [“the circumstance would apply if the defendant
commits the sexual offense, then, as an afterthought, kidnaps the victim”].)
Assuming the kidnapping commenced when defendant moved the victims
from the backyard of the abandoned building, this movement substantially
increased the risk of harm to the victims over and above the level of risk
necessarily inherent in the initial sexual assaults because it prevented them
from escaping, moved them to locations with which they were not familiar

24
and subjected them to days of continued abuse. Accordingly, substantial
evidence supports the jury’s true findings on the one-strike allegations. 8
6. Instructional Error: Firearm Use Enhancements
The information alleged and the jury found true that defendant
personally used a firearm within the meaning of sections 12022.5,
subdivision (a), and 12022.53, subdivision (b) in the commission of several
offenses committed against Jane Doe 2.9 The court instructed the jury
pursuant to CALCRIM No. 3146 that if it found defendant guilty on those
substantive counts, it must decide whether, for each crime, the People proved
that defendant “personally used a firearm during the commission of that
crime.” The court instructed the jury that someone “personally uses a
firearm” if he “[d]isplays the firearm in a menacing manner” and that a
firearm is “any device designed to be used as a weapon, from which a
projectile is discharged or expelled through a barrel by the force of an
explosion or other form of combustion.” The court also gave the following
pinpoint instruction over defense objection: “A defendant’s own words and
conduct in the course of an offense may support a rational factfinder’s

8 For this reason, we reject the Attorney General’s concession that the
special circumstance allegation found true as to count 19 should be reversed
because defendant did not kidnap Doe 2 until after the rape had occurred.
9 Section 12022.5, subdivision (a) reads: “Except as provided in
subdivision (b), any person who personally uses a firearm in the commission
of a felony or attempted felony shall be punished by an additional and
consecutive term of imprisonment in the state prison for 3, 4, or 10 years,
unless use of a firearm is an element of that offense.”
Section 12022.53, subdivision (b) reads in relevant part:
“Notwithstanding any other provision of law, any person who, in the
commission of a felony specified in subdivision (a), personally uses a firearm,
shall be punished by an additional and consecutive term of imprisonment in
the state prison for 10 years.”

25
determination that he used a firearm.” Defendant was sentenced to a total of
40 years in prison for the firearm enhancements.
Defendant contends the court erred in giving the pinpoint instruction.
The instruction was derived from People v. Monjaras (2008) 164 Cal.App.4th
1432, 1435-1436, in which the court held that the nature of a weapon as a
real firearm, rather than a replica, may be established from circumstantial
evidence alone. In that case, the court recognized it was “conceivable” the gun
used by defendant was a toy, but concluded that the jury was entitled to rely
on defendant's conduct to find that the pistol was real and loaded. “Simply
stated, when as here a defendant commits a robbery by displaying an object
that looks like a gun, the object's appearance and the defendant's conduct
and words in using it may constitute sufficient circumstantial evidence to
support a finding that it was a firearm within the meaning of section
12022.53, subdivision (b). In other words, the victim's inability to say
conclusively that the gun was real and not a toy does not create a reasonable
doubt, as a matter of law, that the gun was a firearm.” (Monjaras at p. 1437.)
In People v. Hunter (2011) 202 Cal.App.4th 261, the court held that an
instruction based on Monjaras was improper. In Hunter, the jury was
instructed, “ ‘When a defendant commits a robbery by displaying an object
that looks like a gun, the object’s appearance and the defendant’s conduct
and words in using it may constitute sufficient circumstantial evidence to
support a finding that it was a firearm. The victim’s inability to say
conclusively that the gun was real and not a toy does not create a reasonable
doubt as a matter of law that the gun was a firearm.’ ” (Id. at p. 267.) The
Hunter court found the first sentence of the instruction was unduly
argumentative (id. at p. 275) and that it violated the Fifth Amendment by
lightening the prosecution’s burden of proving every element beyond a

26
reasonable doubt (id. at p. 276). The court concluded that although the
instruction did not direct the jury to find the firearm use enhancement true,
it “did highlight this one aspect of the evidence as not necessarily creating a
reasonable doubt, thereby permitting the jurors to interpret the instruction
as a caution against finding a reasonable doubt on this basis. This
impermissibly alleviated the district attorney's need to persuade the trier of
fact that the gun used in the robbery was a real one.” (Ibid.)
The instruction given in this case is distinguishable from that given in
Hunter and does not suffer from the same defects. The “unduly
argumentative” language in the offending instruction in Hunter was deleted
from the present instruction. The present instruction did not direct the jury
to find the firearm use allegation true or inform the jury a “ ‘victim’s inability
to say conclusively that the gun was real and not a toy does not create a
reasonable doubt as a matter of law that the gun was a firearm,’ ” as the
instruction in Hunter did. (People v. Hunter, supra, 202 Cal.App.4th at
p. 267.) It merely advised that defendant’s own words and conduct “may
support a rational factfinder’s determination that he used a firearm.” There
was no error in giving the pinpoint instruction.
Defendant also contends the court erred by failing to define the phrase
“during the commission of” as used in CALCRIM No. 3146.10 In People v.
Jones (2001) 25 Cal.4th 98, 108, the court considered the meaning of the
phrase “in the commission” as it appears in the firearm enhancement
statutes. Analogizing to well-developed law regarding the felony murder rule,
the court concluded, “In the case of a weapons-use enhancement, such use

10 Although the statutes use the phrase “in the commission of a felony,”
the CALCRIM instruction uses the phrase “during the commission of” the
specified crime. Defendant notes the discrepancy, but does not suggest there
is a meaningful difference between the two as used in this context.

27
may be deemed to occur ‘in the commission of’ the offense if it occurred before,
during, or after the technical completion of the felonious sex act. The
operative question is whether the sex offense posed a greater threat of
harm⸺i.e., was more culpable⸺because the defendant used a deadly weapon
to threaten or maintain control over his victim.” (Id. at pp. 109-110, see also
People v. Wardell (2008) 162 Cal.App.4th 1484, 1495 [“ ‘[T]he phrase “in the
commission of” a felony, as used in section 12022.5, means during and in
furtherance of the felony.’ ”].) Assuming that the jury should have been
instructed that defendant must use the firearm “during and in furtherance”
of the specified crimes, defendant was not prejudiced by the absence of such
instruction.
The firearm enhancements were alleged in connection with the rape
that occurred in the backyard of the abandoned house, two of the sex offenses
that occurred in the bathroom at the subsequent location and an oral
copulation count that occurred at a third location. With respect to the rape
that occurred in the backyard, Doe 2’s testimony was that defendant
threatened her with the gun after completion of the rape when she stood and
tried to leave the yard. With respect to the sex offenses that occurred in the
bathroom at the subsequent location, Doe 2 testified that defendant put a gun
to her side before committing the offenses. With respect to the oral copulation
count, the victim testified that defendant brandished the gun and waved it in
the air during the incident. Thus, there is ample evidence that defendant
used the firearm during and in furtherance of the commission of each of these
offenses. (See People v. Jones, supra, 25 Cal.4th at p. 109 [The “commission”
of a sexual offense “does not end with the completion of the sex act, but
continues as long as the assailant maintains control over the victim.”].)

28
 Contrary to defendant’s suggestion, the failure to define the phrase “in
the commission of” did not allow the jury to find true the personal use
allegations based only on finding that defendant was “armed” with a gun.
Defendant was not charged with, nor was the jury instructed regarding the
enhancement for being armed with a firearm. (People v. Majors (1998) 18
Cal.4th 385, 410 [court does not have sua sponte obligation to instruct on
being armed with a firearm as a lesser included enhancement of personally
using a firearm].) The jury was instructed that a defendant uses a firearm if
he “[d]isplays the firearm in a menacing manner,” which is precisely what the
evidence showed defendant did in the commission of each of the charged
offenses.
There was thus no error in instructing with CALCRIM No. 3146.
7. Instructional Error: One Strike Allegation regarding
Administration of a Controlled Substance to Jane Doe 1
With respect to three counts involving Jane Doe 1, the information
alleged and the jury found true allegations under section 667.61,
subdivision (e)(6) that in the commission of the charged offenses defendant
“administered a controlled substance to the victim in violation of Penal Code
section 12022.75.”11
Pursuant to CALCRIM No. 3183, the jury was instructed, “If you find
the defendant guilty of the crimes charged in Counts 3, 15, and 16 forcible

11 Section 667.61, subdivision (e)(6) provides an alternative sentencing
scheme for specified sex offenses if “defendant administered a controlled
substance to the victim in the commission of the present offense in violation
of Section 12022.75.” Section 12022.75 provides a sentence enhancement for
“any person who, for the purpose of committing a felony, administers by
injection, inhalation, ingestion, or any other means, any controlled substance
listed in Section 11054, 11055, 11056, 11057, or 11058 of the Health and
Safety Code, against the victim’s will by means of force, violence, or fear of
immediate and unlawful bodily injury to the victim or another person . . . .”

29
lewd acts on a child, you must then decide whether, for each crime, the
People have proved the additional allegation that the defendant administered
a controlled substance to Jane Doe 1 during the commission of those crimes.
You must decide whether the People have proved this allegation for each
crime and return a separate finding for each crime. [¶] To prove this
allegation, the People must prove that: [¶] 1. In the commission of forcible
lewd acts on a child, in counts 3, 15 and 16, the defendant administered
methamphetamine, a controlled substance, to Jane Doe 1; [¶] 2. The
defendant administered the methamphetamine, a controlled substance,
against that person’s will by means of force, violence, or fear of immediate
and unlawful bodily injury to that person; [¶] AND [¶] 3. The defendant did
so for the purpose of committing forcible lewd acts upon a child. [¶] A person
administers a substance if he applies it directly to the body of another person
by injection, or by any other means, or causes the other person to inhale,
ingest, or otherwise consume the substance. [¶] The People have the burden of
proving each allegation beyond a reasonable doubt. If the People have not
met this burden, you must find that the allegation has not been proved.”
(Italics added.)
Defendant contends CALCRIM No. 3183 incorrectly defines
“administered.” The definition of “administered” in the pattern CALCRIM
instruction is drawn from People v. Mack, supra, 11 Cal.App.4th at
page 1468, in which the court held that “the qualifying phrase ‘administered
by . . . the accused’ requires only that a defendant have instigated or
encouraged the ingestion of the resistance-suppressing substance and not—as
argued by the defendant—that the resistance-suppressing substance be
ingested by means of force or trick.” The Mack court found that the term
“administered” incorporates definitions found in both the Health and Safety

30
Code and in Black’s Law Dictionary. (Id. at pp. 1479-1468.)12 Defendant
contends that only the Health and Safety Code definition is appropriate to
define “administered” for purposes of section 667.61, subdivision (e)(6)
because the definition drawn from the Black’s Law Dictionary improperly
permitted the jury to find the allegations true based on his “furnishing” the
drugs, not administering them. We disagree.
First, contrary to defendant’s argument, the definition of
“administered” in the Health and Safety Code does not require direct
application of the substance by defendant to the victim’s body. The statutory
definition, like the dictionary definition, recognizes that a controlled
substance may be administered if it is applied by the patient “at the direction
and in the presence of the practitioner.”
Moreover, nothing in the instructions permitted the jury to find the
enhancement allegations true based on defendant’s mere furnishing of the
methamphetamine to the victim. The California Uniform Controlled
Substances Act defines “furnish” to mean “supply by any means, by sale or
otherwise.” (Bus. & Prof. Code, § 4026; Health & Saf. Code, § 11016.) The
second clause of the court’s instruction provides that a person administers a
substance if that person “causes the other person to inhale, ingest, or
otherwise consume the substance.” It is not reasonably likely that the jury

12 Health and Safety Code section 11002, which defines the term for
purposes of the Uniform Controlled Substances Act, provides: “ ‘Administer’
means the direct application of a controlled substance, whether by injection,
inhalation, ingestion, or any other means, to the body of a patient for his
immediate needs or to the body of a research subject by any of the following:
[¶] (a) A practitioner or, in his presence, by his authorized agent. [¶] (b) The
patient or research subject at the direction and in the presence of the
practitioner.” Black’s Law Dictionary defines “administered” as follows: “To
cause or procure a person to take some drug or other substance into his or her
system.” (Black’s Law Dict. (6th ed. 1990) p. 44, col. 2.)

31
interpreted the instruction to permit a true finding based only on evidence
that defendant supplied the methamphetamine.
In any event, Doe 1 testified that defendant put the methamphetamine
pipe in her mouth, lit it, and told her to smoke it. He did the same later in the
Jeep. Doe also told the police immediately after her escape that defendant
forced her to smoke methamphetamine. She said the same thing to the
[sexual assault response team] examiner the following day, and to the police
interviewer two days after that. There is no basis on which the jury could
have reasonably concluded that defendant merely furnished but did not
administer the methamphetamine. Any potential instructional error was
harmless.
Defendant contends further that CALCRIM No. 3183, as given,
improperly required the jury to find that he “administered the
methamphetamine, a controlled substance, . . . against that person’s will by
means of force, violence, or fear of immediate and unlawful bodily injury to
that person” and that he “did so for the purpose of committing forcible lewd
acts upon a child.” Defendant recognizes that “the error may appear to be
beneficial to defendant, because it imposed additional elements that were
unnecessary to establish a section 667.61, subdivision (e)(6) circumstance
finding” but suggests that “any such appearance is misleading and illusory”
because the error “distracted from the jury’s sole duty to determine whether
defendant ‘administered’ a controlled substance to the victim ‘in the
commission of the present charged offense.’ ” The inclusion of additional
elements did not prejudice defendant. There is no likelihood the jury was
distracted or confused by the instructions given.
Finally, defendant contends that CALCRIM No. 3183 prejudicially
failed to define the phrase “during the commission of” as used in

32
section 667.61, subdivision (e)(6). Defendant relies on the “identical reasons”
asserted previously in connection with the firearm use instruction. Defendant
argues, “Doe 1 testified that the administration of [methamphetamine] to her
occurred on Day 1, in the back yard of the abandoned house and in the Jeep.
Further, the touching of her private part occurred on Day 2, after they
returned to the Jeep. Doe 1 never testified that defendant administered meth
to her during Day 2, either before she . . . and defendant left the Jeep or after
she and defendant returned to the Jeep. Nor did she testify that defendant
administered meth to her either before or during the touching of her private
part.”
Defendant misstates the trial testimony. Doe 1 testified that she and
defendant smoked methamphetamine multiple times. She could not specify
every occurrence but testified that she was under the effects of the drugs
throughout her time with defendant. Indeed, when asked to estimate how
many separate times they smoked methamphetamine with Doe 1 in the two
nights and three days that they were together, defendant confirmed, “It was
quite a lot. . . . Basically like all day and all night. Every time she was with
me.” Accordingly, any conceivable instructional error in this regard was
harmless.
8. Sentencing Issues
Defendant was sentenced on 25 counts and their related enhancements,
aggregating 301 years 9 months to life in prison. Defendant was also
sentenced to six consecutive indeterminate terms of life without the
possibility of parole (counts 7-12) and two concurrent indeterminate terms of
life without the possibility of parole (counts 15, 16). He was also sentenced to
two consecutive indeterminate terms of 25 years to life (counts 23, 25), four
consecutive indeterminate terms of 25 years to life with 10-year

33
enhancements (counts 19, 21, 22, 24), one concurrent indeterminate term of
25 years to life (count 3), one consecutive indeterminate term of life with the
possibility of parole (count 20) and seven consecutive indeterminate terms of
15 years to life (counts 1, 2, 4-6, 13, 14). Finally, defendant was sentenced to
an aggregate consecutive determinative term of six years nine months on
counts 17 and 18.13
A. Counts 17 & 18
The parties agree that the court miscalculated defendant’s
determinative term on counts 17 and 18. They disagree, however, regarding
the proper remedy. The court selected the midterm on counts 17 and 18 and
ran the terms on the two offenses consecutively. Under section 1170.1,
subdivision (a), defendant should have been sentenced to an aggregate
determinative term of 19 years calculated as follows: 14 years for the human
trafficking conviction (§ 236.1, subd. (b)) plus four years for the associated
firearm enhancement (§ 12022.5) plus one-third the midterm, one year, for
the vehicle theft (Veh. Code, § 10851, subd. (a)).
Defendant contends that the “unauthorized sentences require an
entirely new sentencing hearing because a lawfully imposed [determinative]
prison term may affect One Strike sentencing decisions.” The Attorney
General argues the determinative sentence should simply be modified on
appeal and that remand for resentencing is unnecessary because “the terms
are separate and independent of each other [citation], and the error is

13 The parties agree that the abstract of judgment does not correctly
reflect the court’s oral pronouncement of sentence as to counts 3 and 23. The
court sentenced defendant on count 3 to a concurrent sentence of 25 years to
life in prison. The abstract of judgment incorrectly states that the sentence
was consecutive. The court sentenced defendant on count 23 to a consecutive
sentence of 25 years to life in prison. The abstract of judgment incorrectly
states that the sentence was concurrent. The abstract must be corrected.

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mathematical rather than substantive, [so] there is no reason to think one
would affect the other.” Given the overall length of the sentence imposed by
the court, we are confident that adding just over 12 years to defendant’s
sentence would not prompt the trial court to reduce any other portion of the
sentence. The error can be fully corrected without any need for a further
hearing in the trial court.
B. Sections 654 and 209
Section 654, subdivision (a) provides, in relevant part: “An act or
omission that is punishable in different ways by different provisions of law
shall be punished under the provision that provides for the longest potential
term of imprisonment, but in no case shall the act or omission be punished
under more than one provision.” “Section 654 bars multiple punishments for
separate offenses arising out of a single occurrence where all of the offenses
were incident to one objective.” (People v. McKinzie (2012) 54 Cal.4th 1302,
1368, overruled on other ground in People v. Scott (2015) 61 Cal.4th 363, 391,
fn. 3.) “ ‘Whether a course of criminal conduct is divisible, and therefore, gives
rise to more than one act within the meaning of section 654 depends on the
intent and objective of the actor. If all of the incidents were incident to one
objective, the defendant may be punished for any one of such offenses but not
for more than one.’ ” (People v. Britt (2004) 32 Cal.4th 944, 951-952.) If,
however, a defendant entertains multiple criminal objectives independent of,
and not merely incidental to, each other, he or she “may be punished for the
independent violations committed in pursuit of each objective even though
the violations were part of an otherwise indivisible course of conduct.” (People
v. Perez (1979) 23 Cal.3d 545, 551.) Further, offenses divisible in time,
although directed to one objective, may be punished separately. (People v.
Kwok (1998) 63 Cal.App.4th 1236, 1253.) “This is particularly so where the

35
offenses are temporally separated in such a way as to afford the defendant
opportunity to reflect and to renew his or her intent before committing the
next one.” (People v. Gaio (2000) 81 Cal.App.4th 919, 935.) Ultimately, the
purpose of section 654 “is to insure that a defendant’s punishment will be
commensurate with his culpability.” (People v. Perez (1979) 23 Cal.3d 545,
551.)
“Whether section 654 applies in a given case is a question of fact for the
trial court, which is vested with broad latitude in making its determination.
[Citations.] Its findings will not be reversed on appeal if there is any
substantial evidence to support them. [Citations.] We review the trial court’s
determination in the light most favorable to the respondent and presume the
existence of every fact the trial court could reasonably deduce from the
evidence.” (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.)
Jane Doe 1
Defendant contends his sentences for kidnapping Jane Doe 1 to commit
a sex crime (count 12) and vehicle theft (count 17) should be stayed under
section 654 because they were part of an indivisible course of conduct with
count 13, aggravated sexual assault of Jane Doe 1. As explained above, the
prosecutor argued that count 12 was based on defendant’s act of taking Jane
Doe 1 from the Jeep to the van to rape her and count 13 was based on raping
Jane Doe 1 inside the van after he kidnapped her. The vehicle theft occurred
when defendant stole the keys to the van from the dealership. In sentencing
defendant to consecutive terms for counts 12 and 13, the court stated, “The
court finds this is a separate occasion. The defendant moved the victim from
the Jeep to a stolen van that he stole. He drove her around in this van, and
this was also a separate place and occasion.”

36
 Substantial evidence supports the court’s finding that the criminal
conduct underlying counts 12 and 13 is divisible. The kidnap and rape were
separated in space and time and the trial court could reasonably conclude
that defendant’s objectives for each offense were different. The kidnapping
occurred when defendant moved Doe 1 from the Jeep to the van with the
intent to commit the rape, as well as to escape detection. The rape itself
occurred after defendant drove to a new location and was committed for the
purpose of sexual gratification. Importantly, defendant had considerable
opportunity to reflect between the time he initiated the kidnap and when he
ultimately committed the rape.
Similarly, substantial evidence supports the court’s imposition of
separate punishment on the vehicle theft and the aggravated kidnapping
offenses because the offenses were divisible in time, defendant had time to
reflect between the offenses, and the objectives of the offenses were entirely
different. According to Doe’s testimony, defendant stole the keys to the van
before forcing her into it. There was ample time for defendant to have
abandoned his intent to kidnap Doe. Separate punishment under these
circumstances ensures defendant’s punishment is commensurate with his
culpability.
Jane Doe 2
Defendant contends that his sentence for count 20, kidnapping Jane
Doe 2 to commit a sex crime, should be stayed because it was part of an
indivisible course of conduct with counts 21 and 22, forcible sodomy and oral
copulation of Jane Doe 2. As discussed above, the prosecutor argued that
count 20 referred to “when the defendant took [Jane Doe 2] into the house,
and he took her into the bathroom, and he raped her and sodomized her and

37
forced her to orally copulate him.” Counts 21 and 22 referred to the offenses
committed inside the bathroom.
In sentencing defendant to consecutive terms on counts 21 and 22 the
court found that “between the acts, [defendant] had the time to reflect and
stop his assaults but nonetheless chose to continue.” Although the court did
not make an express finding regarding the kidnap charge and the completed
sex offenses, as it did with Jane Doe 1, implicit in the court’s imposition of a
consecutive term is the determination that the aggravated kidnapping and
the sexual assaults were divisible. Defendant’s objective in following Jane
Doe 2 to the bathroom was twofold: to sexually assault her, and to prevent
her from escaping. Once in the bathroom, defendant had an opportunity to
reflect before he committed the subsequent sexual assaults. Accordingly,
section 654 does not apply and the trial court was correct to impose separate
sentences for the kidnapping and sexual assaults.
C. Cruel and Unusual Punishment
Defendant contends that imposition of seven life-without-the-
possibility-of-parole sentences for crimes committed against Jane Doe 1 and
the two 25-year-to-life terms imposed for crimes committed against Jane
Doe 2 amounts to cruel and unusual punishment under the Eighth
Amendment.
The Eighth Amendment’s ban on cruel and unusual punishment
“ ‘ “forbids only extreme sentences that are ‘grossly disproportionate’ to the
crime.” ’ ” (In re Coley (2012) 55 Cal.4th 524, 542.) Outside the death penalty
context, “ ‘successful challenges to the proportionality of particular sentences
have been exceedingly rare.’ ” (Ewing v. California (2003) 538 U.S. 11, 21.)
“[T]he fixing of prison terms for specific crimes involves a substantive
penological judgment that, as a general matter, is ‘properly left within the

38
province of legislatures, not courts.’ ” (Harmelin v. Michigan (1991) 501 U.S.
975, 998.) When faced with a claim that a particular sentence constitutes
cruel and unusual punishment, “[r]eviewing courts . . . should grant
substantial deference to the broad authority that legislatures necessarily
possess in determining the types and limits of punishments for crimes.”
(Solem v. Helm (1983) 463 U.S. 277, 290.)
The sentences challenged by defendant were imposed under
section 667.61, California’s “One Strike” law, which provides an LWOP
sentence for specific sex crimes against minors committed under one or more
aggravating circumstances, and a 25-year-to-life sentence for specific sex
crimes against other victims under aggravating circumstances. (§ 667.61,
subds. (j)(1), (j)(a).) In People v. Reyes (2016) 246 Cal.App.4th 62, the court
upheld an LWOP sentence imposed under section 667.61, subdivision (l)
against an Eighth Amendment challenge in a case involving a sex offense
against a minor during the commission of a first degree burglary. The court
acknowledged that the punishment was “very severe,” but that the offenses
not only occurred during the commission of a residential burglary, but
“against a minor, society’s most vulnerable victim,” whom the Legislature
had seen worthy of affording additional protection against sexual assault. (Id.
at p. 85.) The court “accept[ed] and defer[ed] to the California Legislature’s
judgment” that sex crimes against minors committed under circumstances
that posed a heightened danger to human life—there, burglary—“are very
grave offenses that warrant severe punishment.” (Ibid.) While imposition of
six consecutive LWOP terms is largely unnecessary, it is not
unconstitutional. (See People v. Garnica (1994) 29 Cal.App.4th 1558, 1564
[upholding but noting “little practical impact from imposition of multiple . . .
LWOP verdicts.”].)

39
 Defendant also contends that “LWOP based solely on prosecution
charging discretion is cruel and unusual punishment.” As the Attorney
General notes, this argument has been soundly rejected by our Supreme
Court. (See People v. Bemore (2000) 22 Cal.4th 809, 858 [“Prosecutorial
discretion to select those eligible cases in which the death penalty will
actually be sought does not render the death penalty law arbitrary and
capricious or otherwise offend cruel and unusual punishment principles
under the federal Constitution.”].)
Finally, defendant contends that imposition of consecutive sentences
based on multiple victims (§ 667.61, subd. (i)) constituted “double use of the
multiple victim circumstance,” resulting in the cruel and unusual
punishment of imposing five consecutive LWOP sentences on him. We
disagree. The rule prohibiting a fact that is an element of the crime from
being used to impose consecutive sentences (Cal. Rules of Court, rule
4.425(b)(3)) does not apply to the One Strike law, which is an alternative
sentencing scheme. (People v. Jenkins (1995) 10 Cal.4th 234, 252, fn. 10;
People v. Cressy (1996) 47 Cal.App.4th 981, 991.)
9. The Restitution Fine
The court ordered defendant to pay a $7,500 restitution fine (§ 1202.4,
subd. (b)). Citing People v. Dueñas (2019) 30 Cal.App.5th 1157, defendant
contends this fine should be reversed because the trial court failed to make a
finding of defendant’s ability to pay.14 As the Attorney General argues,
defendant forfeited this challenge on appeal because he failed to raise his
inability to pay in the trial court. (See People v. Nelson (2011) 51 Cal.4th 198,

14Defendant also challenges imposition of a court conviction fine and
an operations assessment fee without a finding on his ability to pay. The
abstract of judgment indicates that these fees were waived and the Attorney
General does not assert otherwise.

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227 [Section 1202.4, subdivision (d) calls for “the court to consider a
defendant's ability to pay in setting a restitution fine [in excess of the
minimum], and defendant could have objected at the time if he believed
inadequate consideration was being given to this factor.”].) Here, the
probation department recommended a restitution fine that well exceeded the
statutory minimum under section 1202.4, subdivision (b),15 a
recommendation that the trial court adopted without objection. If defendant
believed he was unable to pay a restitution fine of this magnitude, it was
incumbent on him to object at sentencing and request an ability-to-pay
hearing, and the failure to do so resulted in a forfeiture of the claim for
purposes of appellate review. (People v. Gutierrez (2019) 35 Cal.App.5th 1027,
1032-1033; People v. Frandsen (2019) 33 Cal.App.5th 1126, 1154.)

15 Section 1202.4 provides in relevant part: “(b) In every case where a
person is convicted of a crime, the court shall impose a separate and
additional restitution fine, unless it finds compelling and extraordinary
reasons for not doing so and states those reasons on the record. [¶] (1) The
restitution fine shall be set at the discretion of the court and commensurate
with the seriousness of the offense. If the person is convicted of a felony, the
fine shall not be less than three hundred dollars ($300) and not more than
ten thousand dollars ($10,000). . . . [¶] (2) In setting a felony restitution fine,
the court may determine the amount of the fine as the product of the
minimum fine pursuant to paragraph (1) multiplied by the number of years
of imprisonment the defendant is ordered to serve, multiplied by the number
of felony counts of which the defendant is convicted. [¶] (c) The court shall
impose the restitution fine unless it finds compelling and extraordinary
reasons for not doing so and states those reasons on the record. A defendant's
inability to pay shall not be considered a compelling and extraordinary
reason not to impose a restitution fine. Inability to pay may be considered
only in increasing the amount of the restitution fine in excess of the
minimum fine pursuant to paragraph (1) of subdivision (b).”

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 10. In Camera Review
Defendant requests that this court review the sealed transcripts of
in camera hearings conducted on August 2, 2017 and September 27, 2017, to
“determine whether the court’s in camera rulings violated any of defendant’s
statutory or constitutional rights or impact any of the issues raised on
appeal. We have reviewed the transcript of the in camera hearing conducted
on August 2 in which the court discussed defense counsel’s request for a
continuance based, in part, on recently discovered DNA evidence. We find no
violation of defendant’s rights or relevance to the issues raised on appeal. We
have also reviewed the transcript of the in camera hearing conducted on
September 27 in which the court discussed defense counsel’s subpoena of
Jane Doe 1’s medical records. We find no violation of defendant’s rights or
relevance to the issues raised on appeal.
Disposition
The judgment is affirmed. The abstract of judgment shall be modified
to reflect imposition of a concurrent sentence of 25 years to life in prison on
count 3, a consecutive sentence of 25 years to life in prison on count 23, a
consecutive sentence of 14 years on count 18 plus four years for the
associated firearm enhancement (Pen. Code, § 12022.5), and a one-year
sentence on count 17.

POLLAK, P. J.

WE CONCUR:

STREETER, J.
BROWN, J.

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