People v. Ramirez CA5

Filed 11/3/20 P. v. Ramirez CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,
F077884
Plaintiff and Respondent,
(Super. Ct. No. F13908905)
v.

CARLOS RAMIREZ, OPINION
Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Fresno County. Jonathan M.
Skiles, Judge.

Wallin & Klarich and Stephen D. Klarich for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Jennifer
Oleksa, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
A jury found defendant Carlos Ramirez guilty of raping several prostitutes. He
lured his victims to secluded areas under the pretext of an arm’s-length transaction for
sex, then falsely identified himself as a police officer and/or threatened them with a stun
gun. The victims had been willing to engage in protected sexual activity for money, but
defendant coerced and/or physically forced them to have sex with him without a condom.
He was sentenced to an aggregate prison term of 93 years to life.
Defendant presents multiple claims on appeal, two of which the People concede.
We accept the concession that four sentencing enhancements based on the use of an
allegedly deadly or dangerous weapon must be reversed for insufficient evidence. We
also agree that the trial court erred by allowing the jury to change its verdict on a
particular count after it had been discharged. The error resulted in defendant being
convicted of felonious false imprisonment after the jury had initially found him guilty of
a lesser included misdemeanor.
Defendant further contends the trial court applied the wrong legal standard when
ruling on his motion for a new trial. The People disagree, but we conclude the record
supports defendant’s argument. Defendant’s remaining claims fail on the merits.
We affirm the judgment subject to correction of the conceded errors. The order
denying defendant’s motion for new trial is reversed and the matter is remanded for
reconsideration of the motion under the correct standard. If the trial court grants the
motion, a new trial shall be ordered. If the motion is denied, defendant shall be
resentenced based on the reversal of the weapon enhancements and reinstatement of the
jury’s original verdict of misdemeanor false imprisonment.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was charged with 19 criminal counts arising from events occurring over
a four-month period in 2013. The case was tried before a jury in 2018. For various
reasons, several counts were dismissed during trial.
The charges submitted to the jury consisted of rape by force or fear (Pen. Code,1
§ 261, subd. (a)(2); counts 1, 9, 13 & 16); oral copulation by force or fear (former § 288a,

1All undesignated statutory references are to the Penal Code.

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subd. (c)(2)(A); counts 2, 10, 14 & 17); kidnapping for the purpose of committing rape
(§ 209, subd. (b)(1); counts 8, 12 & 15); and falsely identifying oneself to a police officer
(§ 148.9; count 19). With the exception of counts 12 and 19, defendant was alleged to
have used a deadly or dangerous weapon in the commission of each offense (§ 12022,
subd. (b)(1)). Additional kidnapping and multiple-victim allegations were made for
purposes of section 667.61, subdivisions (e)(1) and (4), which are part of a sentencing
scheme known as the “One Strike” law. (People v. Mancebo (2002) 27 Cal.4th 735, 738;
People v. Jones (1997) 58 Cal.App.4th 693, 703.)
The People’s case included testimony by four complaining witnesses, hereafter
referred to as victims #1, #2, #3, and #4. Each of them had engaged in prostitution
during the relevant time period. The testimony about their separate experiences with
defendant showed a distinctive modus operandi.
Defendant convinced his victims to enter his vehicle by agreeing to pay them
money for sex. He would then drive to a remote location and threaten the passenger with
a weapon, which was alternately described as a Taser or a stun gun. At some point
during each incident, defendant falsely identified himself as a police officer. He used his
mobile phone to photograph and/or video record parts of the sexual activity. Defendant
never paid the women, and he left some of them stranded in desolate areas.
The victims had been willing to provide illicit services for money if defendant
wore a condom. Victims ##1 and 2 testified defendant coerced them into performing oral
sex and having intercourse without a condom. Victim #3 testified to being coerced into
having unprotected intercourse, but she did not substantiate the People’s allegation of
oral copulation. Victim #4 testified to being “Tased” and claimed defendant used
additional physical force to rape her. Victim #4 also did not substantiate the People’s
allegation of oral copulation.
Defendant testified and denied forcing his accusers to do anything against their
will. The defense case focused on discrepancies in the victims’ testimony as compared to

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their initial reporting of the incidents to police and medical professionals. Defense
counsel argued the victims had falsely accused defendant out of anger, i.e., because he
had defrauded them by not paying for their services. However, defendant claimed to
have paid victim #1, and the defense offered no explanation for why she would have lied
about their encounter.
The jury found defendant guilty as charged on counts 1, 2, 9, 10, 13, 16, and 19.
He was fully acquitted on the charges of forcible oral copulation against victims ##3 and
4 (counts 14 & 17). The jury found defendant not guilty of aggravated kidnapping
(counts 8, 12, & 15) but convicted him of felonious false imprisonment as a lesser
included offense. The weapon enhancement allegations were found not true on the
counts involving victims ##1 and 4 (counts 1, 2, 15 & 16), and true for those involving
victims ##2 and 3 (counts 8, 9, 10 & 13). With regard to section 667.61, the multiple-
victim allegations were found to be true but the kidnapping allegations were rejected as
not true.
Due to the multiple-victim findings, defendant was sentenced to six consecutive
prison terms of 15 years to life (counts 1, 2, 9, 10, 13 & 16). Three additional one-year
terms were imposed for the weapon enhancements on counts 9, 10, and 13, resulting in an
aggregate prison sentence of 93 years to life. Concurrent determinate terms were
imposed for all remaining counts except for the misdemeanor offense of lying to a police
officer (count 19), for which defendant apparently received credit for time served.
Defendant filed a timely notice of appeal.
DISCUSSION
I. The Weapon Enhancements
Section 12022, subdivision (b)(1) provides for a sentencing enhancement when a
defendant is found to have “personally use[d] a deadly or dangerous weapon in the
commission of a felony.” Defendant was punished under this provision based on his use

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of a stun gun or Taser during the offenses charged in counts 8, 9, 10, and 13.2 Defendant
claims, and the People concede, the weapon he used was not proven to be deadly or
dangerous within the meaning of the statute. For the following reasons, we accept the
concession.

“In considering a challenge to the sufficiency of the evidence to
support an enhancement, we review the entire record in the light most
favorable to the judgment to determine whether it contains substantial
evidence—that is, evidence that is reasonable, credible, and of solid
value—from which a reasonable trier of fact could find the defendant guilty
beyond a reasonable doubt. [Citation.] We presume every fact in support
of the judgment the trier of fact could have reasonably deduced from the
evidence.” (People v. Albillar (2010) 51 Cal.4th 47, 59–60.)
A “deadly or dangerous weapon” (§ 12022, subd. (b)(1)) is an instrument capable
of inflicting death or great bodily injury. (People v. Wims (1995) 10 Cal.4th 293, 302; In
re Bartholomew D. (2005) 131 Cal.App.4th 317, 322.) Great bodily injury “means
‘injury which is significant or substantial, not insignificant, trivial or moderate.’”
(People v. Blake (2004) 117 Cal.App.4th 543, 556.) An object is considered inherently
deadly or dangerous if it has “no practical nondeadly purpose.” (People v. Stutelberg
(2018) 29 Cal.App.5th 314, 319.) “‘Other objects, while not deadly per se, may be used,
under certain circumstances, in a manner likely to produce death or great bodily injury.
In determining whether an object not inherently deadly or dangerous is used as such, the
trier of fact may consider the nature of the object, the manner in which it is used, and all
other facts relevant to the issue.’” (People v. Aledamat (2019) 8 Cal.5th 1, 6; see ibid.,
fn. 2 [standard for determining whether item is “‘deadly or dangerous’” is the same under
§§ 245, subd. (a)(1), and 12022, subd. (b)(1)].)
In the People’s charging document, defendant was alleged to have used a stun gun.
At trial, witnesses called the object a Taser. The prosecutor and defense counsel used

2The abstract of judgment did not reflect punishment was imposed for the count 8
enhancement.

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both terms interchangeably. Tasers and stun guns have similar characteristics, but they
are different weapons. (See People v. Sanchez (2016) 63 Cal.4th 411, 426; In re Branden
O. (2009) 174 Cal.App.4th 637, 641.) Parts of the record indicate the item in question
was a stun gun, but the trial evidence left the issue open to speculation.3 More
importantly, there was no testimony explaining what Tasers and stun guns are, how they
work, or the effects of their use on a person.
A stun gun is “any item, except a less lethal weapon, as defined in Section 16780,
used or intended to be used as either an offensive or defensive weapon that is capable of
temporarily immobilizing a person by the infliction of an electrical charge.” (§ 244.5,
subd. (a).) There is no statutory definition of a Taser, but section 16780, subdivision (a)
defines a “less lethal weapon” as one that expels “less lethal ammunition … for the
purpose of incapacitating, immobilizing, or stunning a human being through the infliction
of any less than lethal impairment of physical condition ….” We are not aware of any
controlling authority classifying Tasers or stun guns as inherently deadly or dangerous
weapons. Therefore, the question is whether the trial evidence permitted the jury to find
the item defendant used—be it a Taser or a stun gun—was capable of causing death or
great bodily injury.
The parties rely on People v. Racy (2007) 148 Cal.App.4th 1327, which involved
the use of a stun gun on a 74-year-old victim. (Id. at pp. 1329–1330.) The issue there
was whether the defendant had committed elder abuse “under circumstances or
conditions likely to produce great bodily harm or death” as required by section 368,
subdivision (b)(1). On a related question of whether “the stun gun itself was capable of
producing great bodily harm or death,” the appellate court determined the evidence was

3At the preliminary hearing, the chief investigating officer testified that “although some
of [the witnesses] misnamed or referred to the object as a taser, they were all referring—the
description of the object that they were using or were describing was a stun gun.” This
testimony was based on the officer’s “training and experience with stun guns and tasers.”

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insufficient. (Racy, supra, at p. 1333.) “This [was] so because [the victim] was not
injured by the stun gun, and there was no expert testimony that a stun gun used on
somebody similar to [the victim] was likely to produce great bodily harm or death. If the
only evidence … had been the use of the stun gun, expert testimony would have been
necessary because the effects of a stun gun, unlike the effects of more typically used
weapons such as knives or handguns, are matters beyond the experience of average
jurors.” (Id. at pp. 1332–1333.)
As discussed, there was no testimony in this case about how Tasers and stun guns
work or their effects on people. Victim #4 was the only person who claimed to have been
“Tased.” Had she testified to the weapon’s effect on her, the evidence might have been
sufficient to support the enhancements. (See, e.g., People v. Blake, supra, 117
Cal.App.4th at p. 559 [upholding § 12022 enhancement based on the use of pepper spray
where victims described “burning” sensations, temporary blindness, and difficulty
breathing].) Neither the victim nor any other witness with knowledge of her encounter
with defendant testified that she had experienced pain, injury, or other effects from
defendant’s use of the weapon. The jury thus had no basis to conclude the weapon was
capable of inflicting death or great bodily injury.
The weapon enhancements must be reversed for insufficient evidence. In a related
claim, which the People also concede, defendant argues the jury was erroneously
instructed on the section 12022 allegations. However, double jeopardy principles bar
retrial of those allegations. (See Burks v. United States (1978) 437 U.S. 1, 18 [“the
Double Jeopardy Clause precludes a second trial once the reviewing court has found the
evidence legally insufficient”]; People v. Garcia (2014) 224 Cal.App.4th 519, 526
[reversal of enhancements for insufficient evidence precluded retrial].) Therefore, the
claim of instructional error is moot. (See People v. Pedroza (2014) 231 Cal.App.4th 635,
660, citing Burks, supra, at p. 17 [insufficiency of the evidence “implicates double

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jeopardy principles and bars retrial, even if the defendant has sought a new trial as a
remedy”].)
II. Reconvening the Jury After Discharge
A. Background
Count 15 alleged kidnapping for the purpose of committing rape. The jury was
instructed on three lesser included offenses: kidnapping (§ 207, subd. (a)), false
imprisonment by violence (§§ 236, 237, subd. (b)), and misdemeanor false imprisonment
(§ 237, subd. (a)). The jury initially returned a verdict of not guilty on the charged crime
and both lesser included felonies, and it found defendant guilty of misdemeanor false
imprisonment.
After both sides declined to have the jury polled, the trial court made these
statements: “You have now completed your jury service in this case. On behalf of all the
judges of the court, please accept my thanks for your time and effort. Now that the case
is over, you may choose whether or not to discuss the case and your deliberations with
anyone.… [¶] … [¶] So that’s the last instruction that you have to hear me read to you.
But, again, thank you very, very much, and at this point you’re free to go.” The
reporter’s transcript indicates the jury thereafter “retired from the courtroom.”
Sometime later, the trial court went back on the record to say it had been “notified
through the clerk that all but one of the jurors remained in the jury room and had told her
that they thought there was an error on … Count 15.” Those jurors reportedly called the
juror who had departed, and he returned. The jury then “requested an opportunity to
revisit that particular [count].” Because it had “yet to formally record the verdicts,” the
trial court believed the jury could reconvene, deliberate further, and change its verdict.
The trial court provided the jury with a new set of verdict forms for count 15. The
jury then found defendant guilty of false imprisonment by violence. The new verdict was
read and recorded.

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 B. Analysis
Defendant argues the trial court lacked jurisdiction to allow the jury to change its
original verdict. The People concede the issue, and we accept the concession. The
applicable law is summarized in People v. Garcia (2012) 204 Cal.App.4th 542:

“A jury verdict is either complete, incomplete, or otherwise
irregular. The verdict is complete when it has been rendered in compliance
with section 1164. In other words, when the verdict is ‘“‘received and read
by the clerk, acknowledged by the jury, and recorded.’”’ (People v.
Bonillas (1989) 48 Cal.3d 757, 770.) If the jury has been discharged after
rendering a complete verdict, ‘“‘the trial court has no jurisdiction to
reconvene the jury regardless of whether or not the jury is still under the
court’s control ….’”’ (Id. at pp. 770–771, fn. omitted.) …

“If a complete verdict has not been rendered (i.e., the verdict is
incomplete or otherwise irregular), ‘“‘jurisdiction to reconvene the jury
depends on whether the jury has left the court’s control.…’”’ (People v.
Bonillas, supra, 48 Cal.3d at p. 771.) ‘“[O]nce the court loses control over
the jurors, it is without jurisdiction to call them together again.”’ (Ibid.; see
also People v. Hendricks (1987) 43 Cal.3d 584, 596–599; People v. Bolter
(1991) 227 Cal.App.3d 653, 659–662.)” (People v. Garcia, supra, 204
Cal.App.4th at p. 551.)
In short, “a jury is powerless to reconsider or amend its verdict once it has been
formally discharged by the trial judge and the jury has left the courtroom.” (People v.
Soto (1985) 166 Cal.App.3d 428, 434-435.) Here, although its original verdict had yet to
be recorded, the jury was formally discharged and left the courtroom. Therefore, the
jury’s revised verdict on count 15 “is a nullity.” (Id. at p. 434, italics omitted; accord,
People v. Thornton (1984) 155 Cal.App.3d 845, 856 [“The proceedings that occurred
after the reconvening were … a nullity, and the case now stands in the position it
occupied at the time the jury was initially discharged”].) The remedy is to strike the
conviction of false imprisonment by violence and reinstate the jury’s original verdict.
(See Thornton, at p. 860; People v. Grider (1966) 246 Cal.App.2d 149, 154.)

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III. Defense Counsel’s Reasonable Doubt Argument
During closing argument, defendant’s trial counsel attempted to define reasonable
doubt using language that deviated from section 10964 and the jury instructions.
Objections to those efforts were sustained. Defendant claims the rulings violated his
constitutional right to a fair trial and effective assistance of counsel. We perceive no
error.
A. Additional Background
During closing argument, defense counsel used a visual aid containing this
statement: “A REASONABLE DOUBT IS THE KIND OF DOUBT THAT WOULD
MAKE A REASONABLE PERSON HESITATE TO ACT, IN THE FACE OF IT, IN A
MATTER OF LIFE IMPORTANCE IN HIS OR HER OWN PERSONAL OR
BUSINESS AFFAIRS.” In addition to displaying the written statement, counsel read the
words aloud.
The trial court sustained an objection to the argument and told the jury, “You’ve
been given a definition of reasonable doubt. That is the law that you’re to abide. That is
not part of that instruction.” The trial court ordered defense counsel, in reference to the
visual aid, to “[p]lease turn it around.”
Despite the ruling, counsel proceeded to argue, “[T]hat’s how I interpret the
language of what reasonable doubt is. Can you—could you rely on it in making a
decision of life importance in your own life[?] …” This prompted another objection and
a sidebar conference. Shortly thereafter, the defense closing argument ended.

4Section1096 states, in pertinent part, “Reasonable doubt is defined as follows: ‘It is not
a mere possible doubt; because everything relating to human affairs is open to some possible or
imaginary doubt. It is that state of the case, which, after the entire comparison and consideration
of all the evidence, leaves the minds of jurors in that condition that they cannot say they feel an
abiding conviction of the truth of the charge.’”

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 B. Analysis
“It is firmly established that a criminal defendant has a constitutional right to have
counsel present closing argument to the trier of fact. [Citations.] Nonetheless, it is
equally settled that a judge in a criminal case ‘must be and is given great latitude in
controlling the duration and limiting the scope of closing summations.’ [Citations.]”
(People v. Rodrigues (1994) 8 Cal.4th 1060, 1184.) A trial court’s decision to limit
defense counsel’s closing argument is reviewed for abuse of discretion. (People v. Simon
(2016) 1 Cal.5th 98, 147.)
The United States Supreme Court has approved of “alternative” definitions of
reasonable doubt phrased in terms of “a doubt that would cause a reasonable person to
hesitate to act.” (Victor v. Nebraska (1994) 511 U.S. 1, 20.) The instruction in Victor
said reasonable doubt “‘is such a doubt as would cause a reasonable and prudent person,
in one of the graver and more important transactions of life, to pause and hesitate before
taking the represented facts as true and relying and acting thereon.’” (Id. at p. 18, italics
added.) The majority opinion in Victor did not specifically address the italicized
language, but it was criticized in the concurring opinion of Justice Ginsberg. (Id. at pp.
24–25.) In any event, the definition formulated by defense counsel in this case was more
loosely and ambiguously phrased in terms of a “matter of life importance” in one’s
“personal or business affairs.”
The California Supreme Court has said “that jurors should not be instructed to
convict based on the level of certainty needed to make decisions ‘in the ordinary affairs
of life.’” (People v. Daveggio and Michaud (2018) 4 Cal.5th 790, 841, quoting People v.
Brannon (1873) 47 Cal. 96, 97.) Other appellate decisions “strongly disapprove of
arguments suggesting the reasonable doubt standard is used in daily life ….” (People v.
Nguyen (1995) 40 Cal.App.4th 28, 36; accord, People v. Johnson (2004) 119 Cal.App.4th
976, 985 [murder conviction reversed for instructional error; “equating proof beyond a
reasonable doubt to everyday decisionmaking in a juror’s life lowers the burden of proof

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to a preponderance of the evidence”].) In light of these authorities and the potentially
confusing nature of defense counsel’s argument, the trial court did not abuse its discretion
by sustaining objections to counsel’s definition of reasonable doubt.
IV. CALCRIM No. 3181
A. Alleged Instructional Error
CALCRIM No. 3181 is given when a multiple victim allegation has been pleaded
pursuant to section 667.61, subdivision (e)(4). The instruction reads:

“If you find the defendant guilty of two or more sex offenses, as charged in
Counts ______ , you must then decide whether the People have proved the
additional allegation that those crimes were committed against more than
one victim in this case. [¶] The People have the burden of proving this
allegation beyond a reasonable doubt. If the People have not met this
burden, you must find that this allegation has not been proved.”
Defendant alleges the trial court erred by including CALCRIM No. 3181 in the
predeliberation instructions. He claims the instruction must not be given until after the
jury has returned its verdicts on the applicable counts. The only authority cited for this
proposition is People v. Carbajal (2013) 56 Cal.4th 521.
The issue in Carbajal was whether jurors could make a finding on a multiple
victim allegation despite being deadlocked on all charges involving one of the two
alleged victims. (People v. Carbajal, supra, 56 Cal.4th at pp. 525–529.) The case holds
that “a jury cannot return a valid verdict on a multiple victim allegation where the jury
has not rendered the underlying verdicts that comprise the essential predicate for its
consideration of the allegation. In other words, a jury cannot consider a penalty
allegation that turns solely on its assessment of an underlying verdict that it has not
reached.” (Id. at p. 536.)
The Carbajal opinion does not mention CALCRIM No. 3181. Notwithstanding
defendant’s strained reading of the last quoted sentence above, Carbajal does not suggest
jurors cannot be instructed on multiple victim allegations until after they have reached a

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decision on the substantive charges. “It is axiomatic, of course, that a decision does not
stand for a proposition not considered by the court.” (People v. Harris (1989) 47 Cal.3d
1047, 1071.) Defendant must “affirmatively demonstrate prejudicial error” (People v.
Garza (2005) 35 Cal.4th 866, 881), and the requisite showing has not been made.
B. Alleged Marsden Error
The preceding claim of instructional error originated in defendant’s motion for a
new trial. Defendant’s trial counsel argued he had been negligent, and had thus rendered
ineffective assistance, by failing to object to CALCRIM No. 3181 being given “before
[the jury] had returned its verdicts on the underlying charges.” The trial court rejected
this argument and said it would have overruled such an objection.
Defendant now contends his trial counsel’s self-admission of deficient
performance necessitated a hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118.
The Marsden decision governs a defendant’s request “to discharge his appointed counsel
and substitute another attorney during the trial.” (Id. at p. 123.) However, the record on
appeal shows defendant was represented by “private counsel,” i.e., “retained” counsel.
“Because the right to discharge retained counsel is broader than the right to
discharge appointed counsel, a Marsden-type hearing … is ‘“[an] inappropriate vehicle in
which to consider [the defendant’s] complaints against his retained counsel.”’” (People
v. Keshishian (2008) 162 Cal.App.4th 425, 429.) Furthermore, “a request for new trial
based on a defendant’s claim of ineffective assistance of counsel does not trigger the
court’s duty to conduct a Marsden hearing if the defendant’s desire for substitute counsel
is not made clear.” (People v. Richardson (2009) 171 Cal.App.4th 479, 484; accord,
People v. Sanchez (2011) 53 Cal.4th 80, 90, fn. 3 [disapproving of cases that had
“incorrectly implied that a Marsden motion can be triggered with something less than a
clear indication … that the defendant ‘wants a substitute attorney’”].) Defendant did not
clearly express a desire for substitute counsel, so his claim fails.

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V. Denial of Motion For New Trial
A. Background
Defendant moved for a new trial on three grounds, two of which concerned
CALCRIM No. 3181 and defense counsel’s reasonable doubt argument. Defendant
further alleged the verdicts were “contrary to [the] evidence” within the meaning of
section 1181, subdivision 6 (section 1181(6)). The latter argument was presented under a
heading stating “the [jury’s] verdict … was based upon an unreasonable reliance on
testimony that was clearly not credible.” (Capitalization omitted.)
Defendant’s moving papers argued “the jury unreasonably disregarded the logical
relationship between the admissions of the complaining witnesses that they were
engaging in acts of moral turpitude [(prostitution)] at the time [of] the alleged acts, the
conflicting testimony they offered, and their motivations for bringing the allegations
against [defendant] after he failed to pay them for their illegal services.” He specifically
remarked upon the supposedly “obvious and inherent lack of credibility in the [victims’]
testimony.” These statements were followed by three pages of discussion highlighting
inconsistencies in the victims’ testimony on direct and cross-examination, as well as
discrepancies in the trial testimony as compared to the victims’ pretrial allegations.
The trial court issued a written tentative ruling. Given the nature of defendant’s
claim, we quote the trial court’s entire analysis of the issue:

“The jury was aware the victims were actively engaged in
prostitution at the time of the offenses. The jury was aware of any
allowable crimes of moral turpitude that could be used to impeach the
alleged victims. The jury also heard all of the testimony and was aware of
any potential inconsistencies or conflicts in the testimony. Both counsel
were free to argue all of those points, and in fact did so.

“Defendant’s disagreement with the jury’s determination of what
evidence was credible and/or convincing is not a basis for granting a new
trial. There was ample evidence before the jury that would allow a
reasonable juror to conclude the defendant was guilty of the crimes and

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 enhancements charged. The court denied Defendant’s motion to dismiss
pursuant to … section 1118.1 for that reason.

“Defendant states in his Motion at page 14, ‘In this case, the jury
unreasonably disregarded the logical relationship between the admissions
of the complaining witnesses that they were engaging in acts of moral
turpitude at the time the alleged acts, the conflicting testimony they offered,
and their motivations for bringing the allegations against [defendant] after
he failed to pay them for their illegal services.’ Engaging in prostitution, or
any other act involving what the court recognizes as moral turpitude, does
not render that person’s testimony inherently unreliable or unbelievable.
The jury determines what weight, if any, to give that factor. The jury
determines what weight if any to give any motivations of the victims,
inconsistencies, or conflicts.

“The jury was properly instructed on the issue of witness credibility.
The jury was also properly instructed regarding how it could use
inconsistencies or conflicts it found in witnesses’ testimony.

“Defendant does not know, nor should he, what the jury’s
deliberative process was. Defendant has no way of knowing, nor should
he, was [sic] specific testimony or other evidence the jury found credible or
convincing. The jury’s verdicts and special findings were within the range
of what a reasonable juror could find based upon the evidence presented.”
When the motion was heard, defense counsel briefly noted defendant’s position
regarding “the insufficiency of the evidence in terms of the credibility of the witnesses.”
The trial court made these statements:

“Well my ultimate conclusion when it comes to those issues is that that was
a determination being made by the jury. The jury was instructed on how
they could use things including witnesses[’] inability to remember things,
and they were properly instructed, and that’s within their purview. So the
Court is not going to second guess their weighing of the evidence or
assignment of credibility to various witnesses. At this point the Court is
going to be adopting the tentative order as the order of the Court.”
B. Analysis
Defendant claims the trial court used the wrong standard to evaluate his motion for
new trial by essentially treating it as a motion for a judgment of acquittal. The People

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argue forfeiture, dispute the claim on the merits, and alternatively contend the error was
harmless. As we explain, defendant has demonstrated reversible error.
Section 1181(6) authorizes the granting of a new trial “[w]hen the verdict or
finding is contrary to law or evidence.” The statute does not explain how such a
determination is made, but the standard is well established in case law. (See further
discussion, post.) “A trial court’s ruling on a motion for new trial is so completely within
that court’s discretion that a reviewing court will not disturb the ruling absent a manifest
and unmistakable abuse of that discretion.” (People v. Hayes (1999) 21 Cal.4th 1211,
1260–1261.) However, “[a] trial court abuses its discretion when it applies the wrong
legal standards applicable to the issue at hand.” (Paterno v. State of California (1999) 74
Cal.App.4th 68, 85; accord, People v. Knoller (2007) 41 Cal.4th 139, 156.)
We first consider the People’s forfeiture argument. “As a general rule, only
‘claims properly raised and preserved by the parties are reviewable on appeal.’” (People
v. Smith (2001) 24 Cal.4th 849, 852.) Defendant’s motion identified section 1181(6) as
the statutory basis for relief and presented a detailed argument concerning the
believability of critical witness testimony. However, the moving papers did not further
discuss the applicable law, and no objections were made to the trial court’s analysis.
The People cite People v. Carter (2014) 227 Cal.App.4th 322, a case in which an
order denying a motion for new trial was reversed due to the trial court’s confusion over
the applicable law. (Id. at pp. 328–329.) The appellate court, in rejecting a similar
forfeiture argument, noted the appellant had “argued the correct legal standard to
determine the motion” in his moving papers. (Id. at p. 327, fn. 2.) By reverse inference,
the People reason defendant’s moving papers were deficient. They also fault him for not
making an objection at the motion hearing. These arguments are not entirely convincing.
(See People v. Braxton (2004) 34 Cal.4th 798, 814 [“A trial court is presumed to know
the governing law, and litigants generally are not required, on pain of forfeiting valuable
rights, to remind trial courts of relevant statutory provisions”]; cf. People v. Memory

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(2010) 182 Cal.App.4th 835, 857 [“While a party will forfeit a claim by failure to obtain
a ruling [citation], we are aware of no authority … that requires a party to continue to
object to the court’s ruling after a contested hearing to preserve the issue for appeal”].)
Nevertheless, assuming the claim was not preserved for review, we elect to consider it in
order to “forestall a petition for writ of habeas corpus based on a claim of ineffectual
counsel.” (People v. Williams (2000) 78 Cal.App.4th 1118, 1126; accord, People v.
Lewis (1990) 50 Cal.3d 262, 282; see People v. Williams (1998) 17 Cal.4th 148, 161, fn.
6 [“An appellate court is generally not prohibited from reaching a question that has not
been preserved for review by a party”].)
On the question of error, the law is explained in Porter v. Superior Court (2009)
47 Cal.4th 125 (Porter). “In the trial court, a defendant may attack the evidence against
him in two ways. A motion under section 1118.1 seeks a judgment of acquittal for
insufficient evidence.… A motion under section 1181(6) seeks a new trial because the
verdict is ‘contrary to law or evidence.’ The court performs significantly different tasks
under these two provisions.” (Id. at p. 132.)
“In ruling on an 1118.1 motion for judgment of acquittal, the court evaluates the
evidence in the light most favorable to the prosecution. If there is any substantial
evidence, including all inferences reasonably drawn from the evidence, to support the
elements of the offense, the court must deny the motion.” (Porter, supra, 47 Cal.4th at p.
132.) “In considering this legal question, ‘a court does not “‘ask itself whether it believes
that the evidence at the trial established guilt beyond a reasonable doubt.’ [Citation.]
Instead, the relevant question is whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” [Citation.]’ [Citation].” (Ibid.)
Conversely, the trial court “extends no evidentiary deference in ruling on a section
1181(6) motion for new trial. Instead, it independently examines all the evidence to
determine whether it is sufficient to prove each required element beyond a reasonable

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doubt to the judge, who sits, in effect, as a ‘13th juror.’ [Citations.] If the court is not
convinced that the charges have been proven beyond a reasonable doubt, it may rule that
the jury’s verdict is ‘contrary to [the] … evidence.’ [Citations.]” (Porter, supra, 47
Cal.4th at p. 133.)
In other words, a section 1181(6) motion requires the trial court “to review the
evidence independently and satisfy itself that the evidence as a whole is sufficient to
sustain the verdict.” (People v. Dickens (2005) 130 Cal.App.4th 1245, 1251.) If it
subjectively views the evidence as “not sufficiently probative to sustain the verdict, it
must order a new trial.” (Id. at p. 1252.) “Although the trial court is to be ‘guided’ by a
presumption in favor of the correctness of the jury’s verdict [citation], this means only
that the court may not arbitrarily reject a verdict which is supported by substantial
evidence.” (Id. at p. 1251.) “The trial court is not bound by the jury’s determinations as
to the credibility of witnesses or as to the weight or effect to be accorded to the
evidence.” (Id. at pp. 1251–1252, italics added; accord, People v. Robarge (1953) 41
Cal.2d 628, 633–634.)
A trial court is presumed to have known and followed the applicable law. (People
v. Castaneda (1975) 52 Cal.App.3d 334, 342; see Evid. Code, § 664.) “But when a
judge’s remarks preceding a ruling reflect a misapprehension of the law upon which that
ruling is based, the appellate court must consider the judge’s remarks in its review.”
(People v. Carter, supra, 227 Cal.App.4th at p. 324.) Here, the trial court focused on
irrelevant factors such as the jury instructions and the jury’s province to weigh the
evidence and make credibility determinations. It even referenced section 1118.1, which
governs a motion for judgment of acquittal, and said, “There was ample evidence before
the jury that would allow a reasonable juror to conclude the defendant was guilty ….”
These statements show no recognition of, and are contrary to, the trial court’s duty to
make an “independent determination as to the probative value of the evidence” and

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“satisfy itself that the evidence as a whole is sufficient to sustain the verdict.” (People v.
Dickens, supra, 130 Cal.App.4th at pp. 1252, 1251, italics added.)
In People v. Watts (2018) 22 Cal.App.5th 102, the trial court’s confusion over the
correct standard was apparent from its rejection of evidentiary arguments as “‘not a basis
for a motion for new trial.’” (Id. at p. 110.) The court had also stated, “‘It’s not for me to
reweigh the evidence,’” “‘it’s not for me to second guess the jury,’” and “‘My job … is
not to retry the case in my head and do whatever you want me to do because you think
the evidence wasn’t sufficient enough for the jury.” (Id. at p. 111.) The trial court in this
case made similar remarks, e.g.: “Defendant’s disagreement with the jury’s
determination of what evidence was credible and/or convincing is not a basis for granting
a new trial,” “The jury determines what weight if any to give any motivations of the
victims, inconsistencies, or conflicts,” and “the Court is not going to second guess their
weighing of the evidence or assignment of credibility to various witnesses.” These
statements indicate that the wrong standard was used to evaluate defendant’s motion for a
new trial.
The People, despite correctly noting the trial court’s statements must be
considered in their entirety, focus on isolated words and phrases: “‘[T]here was ample
evidence before the jury that would allow a reasonable juror to conclude the defendant
was guilty of the crimes and enhancements charged’” and “‘[T]he jury’s verdicts and
special findings were within the range of what a reasonable juror could find based upon
the evidence presented.’” When read in context, these remarks allude to the “any rational
trier of fact” standard of section 1118.1, not the “13th juror” standard of section 1181(6).
(Porter, supra, 47 Cal.4th at pp. 132–133.) A trial court may conclude the evidence is
“‘more than sufficient’” to support the verdict of reasonable jurors and still grant a
motion for new trial based on its subjective view “of the weight of the evidence and
witness credibility.” (People v. Carter, supra, 227 Cal.App.4th at pp. 326, 328.) The

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excerpts upon which the People rely are not indicative of an “independent assessment of
the evidence.” (Id. at p. 328.)
This case is unlike People v. Davis (1995) 10 Cal.4th 463, where despite
“isolate[d] statements in which the trial court refer[red] to the jury’s verdicts,” it had
“expressly articulated the correct standard of review” and the record clearly reflected an
independent assessment of “the credibility of the witnesses and the probative value of the
evidence.” (Id. at p. 524.) Also distinguishable is People v. Price (1992) 4 Cal.App.4th
1272, where a trial judge had merely said, “‘I think the evidence was sufficient, and I
think that the jury—there was enough evidence there for the jury to do what the jury
did ….’” (Id. at p. 1275, italics omitted.) In Price, one ambiguous statement did not
rebut the presumption a trial court knows and applies the correct law. The Price court
construed the words “‘I think the evidence was sufficient’” as the actual ruling and
treated the additional comment as “surplusage.” (Id. at p. 1275.) Here, in contrast, the
trial court’s relatively extensive discussion shows a conflation of the standards applicable
to motions under sections 1118.1 and 1181(6). The appropriate remedy is a limited
remand for reconsideration of the section 1181(6) motion under the correct legal
standard. (People v. Knoller, supra, 41 Cal.4th at p. 158; People v. Robarge, supra, 41
Cal.2d at p. 635; People v. Watts, supra, 22 Cal.App.5th at pp. 114–115.)
The People argue harmless error, but their reliance on People v. Braxton, supra,
34 Cal.4th 798 is misplaced. In Braxton, a trial court had declined to rule on a motion for
new trial predicated upon alleged juror misconduct. The opinion acknowledges there
may be cases in which “the appellate record allows the reviewing court to determine, as a
matter of law, that the new trial motion lacked merit or that the trial court would properly
have exercised its discretion to deny the motion.” (Id. at p. 820.) “On the other hand, if
the appellate record does not permit the reviewing court to make this determination, then
the reviewing court normally should remand the matter to the trial court.” (Ibid., italics

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added.) Since the merits of defendant’s motion for a new trial can only be determined by
the trial court’s independent assessment of the witnesses’ testimony, remand is necessary.
VI. Alleged Sentencing Error
Defendant received the statutorily mandated punishment of 90 years to life in
prison. He was approximately 35 years old when he committed the underlying offenses.
Defendant challenges his sentence as unconstitutionally cruel and/or unusual.
As used in the Eighth Amendment to the federal Constitution, the phrase “cruel
and unusual punishments” refers to “‘extreme sentences that are “grossly
disproportionate” to the crime.’” (Graham v. Florida (2010) 560 U.S. 48, 59–60.) The
California Constitution forbids cruel or unusual punishment (Cal. Const., art. I, § 17),
which precludes a sentence that is “‘so disproportionate to the crime for which it is
inflicted that it shocks the conscience and offends fundamental notions of human
dignity.’” (People v. Carmony (2005) 127 Cal.App.4th 1066, 1085, quoting In re Lynch
(1972) 8 Cal.3d 410, 424.) Defendant focuses on the California standard, whereunder
reviewing courts “first examine ‘the nature of the offense and the offender, with
particular regard to the degree of danger which both present to society’”; then “compare
the challenged penalty to ‘punishment prescribed in the same jurisdiction for other more
serious offenses’”; and finally, “compare the challenged penalty to ‘punishment
prescribed for the same offense in other jurisdictions.’” (People v. Crooks (1997) 55
Cal.App.4th 797, 806.)
Defendant had no felony convictions prior to this case. He complains of receiving
the same punishment for each of his sex crimes as is imposed for “more serious” offenses
such as second degree murder (§§ 187, 190, subd. (a)) and carjacking for the benefit of a
criminal street gang (§§ 186.22, subd. (b)(4)(B), 215). He also contends that California
punishes rape more severely than any other state except Louisiana.

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 The crime of rape is ordinarily punishable by a prison term of three, six, or eight
years. (§ 264, subd. (a).) The crime of forcible oral copulation is ordinarily punishable
by a prison term of three, six, or eight years. (§ 287, subd. (c)(2)(A).) Defendant was
sentenced to multiple indeterminate life terms because section 667.61 imposes severe
punishment upon people who have committed sex crimes against multiple victims.
Defendant fails to discuss section 667.61 in his cursory argument on the sentencing issue.
“The ‘One Strike’ law, section 667.61, is an alternative sentencing scheme that
applies to specified felony sex offenses.” (People v. Reyes (2016) 246 Cal.App.4th 62,
79.) The statute was enacted “to ensure serious and dangerous sex offenders would
receive lengthy prison sentences upon their first conviction.” (People v. Palmore (2000)
79 Cal.App.4th 1290, 1296.) Accordingly, because he victimized four different women,
defendant was sentenced to 15 years to life in prison for each conviction of forcible rape
and forcible oral copulation. (§ 667.61, subds. (c)(1) & (7), (e)(4).) Several appellate
court decisions have upheld sentences imposed under section 667.61 against defendants
with little or no prior criminal history. (E.g., People v. Alvarado (2001) 87 Cal.App.4th
178, 199–200 [18-year-old defendant with no criminal record and mitigating life
circumstances sentenced to 15 years to life for rape committed during a burglary]; People
v. Estrada (1997) 57 Cal.App.4th 1270, 1278, 1282 [38-year-old defendant with no prior
felony convictions sentenced to 25 years to life for rape committed after entering victim’s
apartment with the intent to commit rape]; People v. Crooks, supra, 55 Cal.App.4th at pp.
805, 807 [39-year-old defendant with no prior felony convictions sentenced to 25 years to
life for rape committed during residential burglary].)
The circumstances of defendant’s case are quite similar to those in People v.
Andrade (2015) 238 Cal.App.4th 1274. The appellant in Andrade was sentenced under
section 667.61, subdivision (e)(4) to 13 consecutive terms of 15 years to life for
committing forcible rape and forcible oral copulation against several prostitutes.
(Andrade, supra, at pp. 1281–1286, 1304–1305.) He had lured the victims into his car,

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driven them to isolated areas, and sexually assaulted them at gunpoint. In most instances,
he had also falsely identified himself as a police officer. (Id. at pp. 1281–1286.)
The Andrade rapist had no prior criminal record, and “the probation department
report assessed him as a low risk for recidivism.” (People v. Andrade, supra, 238
Cal.App.4th at p. 1310.) Nevertheless, the appellate court concluded “his pattern of
targeting young, vulnerable women, coupled with his threats and statements that he was
affiliated with law enforcement, demonstrated an intent to avoid detection by intimidating
his victims.” (Ibid.) His sentence of 195 years to life was held to be “neither shocking
nor inhumane when the nature of the offenses and offender [were] considered.” (Ibid.)
Defendant’s case is not materially distinguishable from Andrade on the issue of
cruel and/or unusual punishment. He raped at least four victims over a period of three
months, and there is every indication his pattern of behavior would have continued had
he not been apprehended and prosecuted. “[W]hen faced with an allegation that a
particular sentence amounts to 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 ….’” (People v.
Reyes, supra, 246 Cal.App.4th at p. 83, quoting Solem v. Helm (1983) 463 U.S. 277,
290.) Following this principle, and given the absence of any exceptional circumstances,
we conclude defendant’s sentence is not unconstitutional under federal or state law.
VII. Alleged Cumulative Error
Defendant alleges cumulative error. Under the cumulative error doctrine, “a series
of trial errors, though independently harmless, may in some circumstances rise by
accretion to the level of reversible and prejudicial error.” (People v. Hill (1998) 17
Cal.4th 800, 844; accord, People v. Capers (2019) 7 Cal.5th 989, 1017.) The only errors
demonstrated in this appeal concern the weapon enhancements, which are being reversed,
and certain posttrial proceedings. The cumulative effect of those errors clearly did not

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deprive defendant of his right to a fair trial. (See People v. Cuccia (2002) 97 Cal.App.4th
785, 795 [“The ‘litmus test’ for cumulative error ‘is whether defendant received due
process and a fair trial’”].)
DISPOSITION
All enhancements imposed under section 12022, subdivision (b)(1) are reversed
for insufficient evidence and ordered stricken from the judgment. The count 15
conviction of false imprisonment by violence is ordered stricken from the judgment and
the jury’s original verdict of misdemeanor false imprisonment shall be reinstated.
Defendant shall be resentenced accordingly. In all other respects, the judgment is
affirmed.
The order denying defendant’s motion for a new trial is reversed and the matter is
remanded for further proceedings. On remand, the trial court shall reconsider the motion
under the standard applicable to section 1181, subdivision 6. If the motion is granted, the
trial court shall grant appropriate relief, which may include ordering a new trial on any
charges not otherwise affected by the disposition of this appeal. If the motion for a new
trial is denied, the trial court shall resentence defendant in light of the stricken
enhancements and corrected verdict on count 15.

PEÑA, Acting P.J.
WE CONCUR:

MEEHAN, J.

DE SANTOS, J.

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