People v. Thornton CA3

Filed 6/23/21 P. v. Thornton CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
----

THE PEOPLE, C088796

Plaintiff and Respondent, (Super. Ct. No. 16FE023148)

v.

CHRISTOPHER THORNTON,

Defendant and Appellant.

This case is primarily about joinder. Specifically, even though defendant
committed felony assaults with great bodily injury against all three victims, does the fact
that he was charged with sexual assault crimes against two of the victims prevent joinder
of the crimes against the other victim? We find the answer here to be no.
Defendant Christopher Thornton was tried for three sets of crimes committed
against three different victims on three separate occasions. As to the first victim, Y., he
was charged with assault by means likely to produce great bodily injury with an
enhancement for personally inflicting great bodily injury (Pen. Code, §§ 245, subd.

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(a)(4), 12022.7, subd. (a))1 and robbery (§ 211). Against the second victim, Kimberly
Doe, he was alleged to have committed oral copulation by force (§ 288a, subd. (c)(2)),
kidnapping to commit rape (§ 209, subd. (b)(1)), rape (§ 261, subd. (a)(2)), assault by
means likely to produce great bodily injury, and robbery, along with strike enhancements
for multiple victims and kidnapping (§ 667.61, subds. (d)(2), (e)(1), (4)), as well as
enhancements for personally inflicting great bodily injury and being released from
custody for a prior offense before it became final (§ 12022.1). As to the third victim,
Kristen Doe, he was charged with two counts of forcible rape (§ 261, subd. (a)(2)) and
assault by means likely to produce great bodily injury along with enhancements for
personal infliction of great bodily injury, multiple victims, and release from a prior
offense.
Following a jury trial, defendant was convicted of three felony assault counts with
a great bodily injury enhancement as to each, as well as petty theft (§ 490.2) as a lesser
included offense of the robbery count as to Y. Defendant admitted a prior prison term
(§ 667.5, subd. (b)) and was sentenced to 14 years in state prison.
On appeal, defendant contends it was an abuse of discretion and a violation of his
right to a fair trial to join the charges regarding the incident without a sexual assault to
the two other incidents. He further contends the assault count as to Kristen must be
reversed because the court did not give a unanimity instruction. In a supplemental brief,
he contends the prison prior must be stricken in light of Senate Bill No. 136.
The incidents involving each of the three victims had sufficient common threads to
support joinder: felony assaults against women involving great bodily injury, his
initiating the assaults by striking the victim in the face, all three victims being prostitutes
with defendant hiring two of them as prostitutes, and his having sex with all three of

1 Undesignated statutory references are to the Penal Code.

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them, either with or without consent. Although rape charges can be very prejudicial
when joined to a nonrape offense, the assault against the victim without a rape charge, Y.,
was sufficiently serious to minimize this risk. Since the case involving the crimes against
Y. was as strong as the respective cases regarding the other two victims, it was neither an
abuse of discretion nor a deprivation of the right to a fair trial to join the cases. The
failure to give a unanimity instruction was harmless beyond a reasonable doubt. Finding
Senate Bill No. 136 retroactive, we shall strike the prison prior and affirm in all other
respects.
BACKGROUND
Prosecution Case
1. Y. (counts one & two)
In December 2016, Y. worked as a prostitute while living with her family in an
apartment in Sacramento.
On December 1, 2016, at around 2:14 a.m., defendant called Y. and asked to see
her. Y.’s sister S. took the call and told Y., who had been sleeping on the couch. Y.
knew defendant, with whom she had engaged in prostitution at her house on November
26.
Y. agreed to see defendant; she let him inside her house at around 2:26 a.m. after
he called to say he had arrived. They went upstairs to Y.’s bedroom, where she had sex
with him for $200. Y. asked defendant to leave after his time was up.
Y., with defendant following, went downstairs to get her personal phone, which
was ringing. Y. got her phone, met defendant at the front door, and let him out. As she
opened the door, defendant punched her in the nose, causing her to fall. Y. screamed for
her sister. Defendant reached down, grabbed Y.’s phone, ran to his car, and drove off.
When S. ran up to her, Y. gasped that defendant had her phone. S. ran outside and
unsuccessfully tried to chase defendant’s car. Y. tried to chase defendant as well, but
collapsed on the front door steps.

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 Y. was in great pain, was bleeding, and had trouble breathing. Her mother took
her to the hospital, where she was treated in the emergency room at 3:49 a.m. Y. said she
was hit in the face; medical personnel determined she sustained a fractured nose and right
orbital bone. Her injuries required surgery; Y. lost her sense of smell and her nose
permanently leans to the left.
The following day, Y. went to the police station and gave a statement. The day
after that, December 3, 2016, she called defendant and spoke to him to try to get her
phone back. Y. recorded the conversation, which was played at trial. Asked by Y. why
he had hit her, defendant replied, “Well, I don’t know. It was stupid.” Defendant told Y.
he did not know what he was going to do with the phone, and he had cleared the phone’s
memory. Defendant told Y. he would return the phone, but he never did.
Y. had three interviews with the police but admitted at trial she lied about the
incident in all of them. She told the police her assailant was named Adam, she met him
previously at a gas station, and that he called her on December 1, 2016. She told law
enforcement that she and Adam smoked marijuana and talked at her place, and she did
not know why he wanted to leave her house. She never told the police about the struggle
over her phone.
Y. previously lied about the incident because she did not want to get in trouble for
being a prostitute. She agreed to testify after getting immunity at the preliminary hearing.
A December 8, 2016 search of defendant’s home found Y.’s pink iPhone in his
bedroom dresser drawer.
S. had been staying at Y.’s house most nights because she had six outstanding
arrest warrants. Between 2:00 and 3:00 a.m. on December 1, 2016, S. was sleeping on
the couch when she heard Y. scream out her name. She got up and found Y. lying on the
floor in a fetal position near the front door with defendant standing over her. Defendant
looked scared and fled through the door; S. followed after Y. said defendant had her
phone. S. knocked on defendant’s car window, but he sped off. She returned to find Y.

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with blood all over her face. She drove Y. to the hospital. While there, S. falsely told a
nurse an unknown person had knocked on the door, asked to use Y.’s phone, and then hit
Y. and took the phone.
2. Kimberly Doe (counts three-seven)
In June 2017, Kimberly Doe worked as a prostitute and lived in a motel on
Stockton Boulevard in Sacramento.
On June 10, 2017, Kimberly walked to a grocery store on Stockton Boulevard to
buy groceries for her daughter’s baby shower. She did not know whether she used heroin
that day. After shopping, Kimberly started to cross Stockton Boulevard to get to a bus
stop but tripped on the concrete median, causing her to fall and drop her ice. Defendant
drove up to Kimberly in his gold Cadillac and asked if she wanted a ride. The Cadillac
had been circling around as she walked to the store from her motel room.
Kimberly accepted defendant’s offer; she crossed the street with her groceries and
got into the front passenger side of defendant’s car. Although she normally did not get
into other vehicles in such situations, Kimberly did so here because she had seen him
talking to people that she knew. She directed defendant to take her to the motel where
she was living; on the way, defendant pulled into the parking lot of a local library.
Defendant parked his car so the passenger side was up against a fence. Kimberly
was concerned, as she now could not get out of defendant’s car. Defendant then took off
his shirt and sat back in his seat.
Kimberly turned to talk to defendant, who punched her in the jaw. A dazed
Kimberly asked defendant what he wanted; he replied, “You know what it is.” Defendant
then told Kimberly, who thought she was going to be raped, “You’re gonna suck my
dick.” Afraid she would be killed, Kimberly put defendant’s penis in her mouth.
Defendant wiped her bleeding mouth off with his shirt.
Defendant eventually said he wanted to go somewhere else. He put his hands
down Kimberly’s pants searching for her private parts while she was on her knees in the

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passenger seat. Defendant next started to drive while telling Kimberly to act as if she
enjoyed it.
After driving for a few minutes, defendant parked his car in the parking lot behind
a Stockton Boulevard business. He got out of the car and directed Kimberly to pull her
pants down and move across the car towards him. Kimberly complied, but asked
defendant to use a condom as she knew he was going to rape her. Using a condom,
defendant had intercourse with her for about 20 minutes, asking her to make noises like
she enjoyed it. Defendant let Kimberly out of the car after he stopped, but not before
going through her groceries and taking the money from her purse. He then got into his
car and drove off.
Humiliated, disgusted, and in pain, Kimberly walked back to her motel. She told
her husband but not the police, because she did not think they would do anything. She
went to bed while her husband called Kimberly’s counselor at Community Against
Sexual Harm (CASH).
On June 10, 2017, at around 8:00 a.m., CASH case manager Kristie Kiefer got a
text message that Kimberly had been attacked and sexually assaulted. Kiefer called
Kimberly and then drove her to the hospital at around 11:00 p.m. Kimberly was
disheveled, tired, and emotional, and had a bleeding gash on her lip.
Kimberly told the emergency room physician she had been raped and assaulted in
a parking lot and had been struck multiple times. She sustained a laceration on the inside
of her lip, crooked teeth, a tender jaw, and difficulty opening her mouth. Kimberly
declined the doctor’s recommendation to stitch her wound.
Kimberly was also given a sexual assault exam at the hospital. She told the
examiner that she was assaulted in the front seat of a car in a library parking lot.
Kimberly said that after being picked up and driven to the parking lot, the driver took off
his shirt, had her leave the car, and then forced her to orally copulate him. She asked for

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him to stop but blacked out after he hit her in the mouth. Kimberly regained
consciousness in another location, where the man used a condom while raping her.
Kimberly declined anal and genital examinations. The examination findings were
consistent with Kimberly having been hit in the face.
Kimberly knew the victim in counts eight through ten, Kristen. They talked to
each other about their attacks.
3. Kristen Doe (counts eight-ten)
Kristen Doe lived on the streets in Sacramento, working as a prostitute for the last
five years to support her heroin addiction. She testified under a grant of use immunity.
Kristen was working on Stockton Boulevard near the same motel that Kimberly
lived in during the early morning on December 27, 2017. Around 4:30 a.m., defendant
drove around her several times in a champagne-colored Cadillac. After he pulled up to
her, Kristen told defendant she only did oral sex for $60. After defendant agreed, Kristen
got in the front passenger seat; she noticed he was very polite, handsome, and sweet.
Defendant drove Kristen around looking for a suitable spot before they agreed to
park in a residential area by 14th Avenue. After parking, he told Kristen he had only $30
cash and asked if he could use a prepaid visa card to pay. Although Kristen determined
there was a $50 balance on the card, she declined it as payment because she needed cash
to buy drugs. When Kristen asked to be returned to Stockton Boulevard, defendant told
Kristen she was “gonna do it for free now, bitch,” and then punched her repeatedly in the
face.
Defendant hit Kristen about 15 times. Wanting defendant to stop, Kristen said,
“Okay, okay, okay. What do you want?” Defendant replied he would not achieve an
orgasm through oral sex because he had used cocaine, so he needed “full service,” a
euphemism for vaginal or anal intercourse.
Defendant exited the car, went over to the passenger side, pulled Kristen out by
her hair and shoulder, threw her chest onto the back hood, tore off her stockings, and

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inserted his penis into her vagina from behind. After about five minutes, Kristen
wriggled free and started to run away. Defendant caught her, slammed her chest onto the
front hood, and raped her from behind for another 10 minutes.
When Kristen tried to run away again, defendant threw her to the ground and
repeatedly stomped on Kristen’s body and face. After a car drove by, defendant took
Kristen’s purse and drove off. Kristen hid behind a car until the sun came up so
defendant could not come back and get her.
Kristen eventually walked to a gas station, where she called the police on another
person’s cell phone. She was hurt and bleeding badly with a swollen face, hole in her lip,
two black eyes, a bruised chest, and what felt like a broken sternum. An officer
dispatched to the area found her in front of the gas station, crouching down with a blanket
over her. Kristen had bruising and swelling around her forehead and eyes and a cut on
her upper lip. She also had an abrasion by a tear in her stockings. Kristen told police she
gave defendant an alcohol wipe, which he used to wipe himself off before throwing it to
the ground.
Kristen was taken to the emergency room in an ambulance. She told the treating
doctor she was physically and sexually assaulted. Kristen had a tender left jaw, a
laceration of the lower lip caused by her teeth going through the skin, cuts to her ear and
upper lip, and abrasions to her chest. She also had bruises and abrasions over much of
her body, including her abdomen, back, arms, and left leg, as well as chest and lung
contusions.
Kristen started to get sick from heroin withdrawal while she was in the hospital,
having done a “speedball” of heroin and methamphetamine earlier that day. Needing a
fix, she declined to undergo a sexual assault examination. Kristen removed the IV from
her arm, swore at the officer, and left the hospital.
Video surveillance from the motel showed Kristen and defendant’s car out front
on Stockton Boulevard at around 4:00 a.m. A police video camera recorded defendant’s

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Cadillac driving south on Stockton Boulevard from Broadway at 3:08 a.m. on the day
Kristen was attacked. The area where defendant’s car was driving was close to the motel.
When defendant was arrested in his car on January 10, 2018, he had two cell
phones, one of which he had used to contact Y. He had cuts on his knuckles when
arrested. Defendant is six feet five inches tall and weighs 220 pounds.
In an interview with the police, defendant admitted being the primary driver of the
Cadillac, but could not recall if he was driving on Stockton Boulevard on December 27,
2017, saying so even after being shown the video recording of his car driving there at that
time. He did not recall picking up a prostitute at that time, even after being shown the
video of Kristen and his Cadillac by the motel. Defendant did not respond when he was
asked what happened.
4. Forensic Evidence
No foreign DNA or fresh sperm or semen deposits were found on Kristen or her
clothing. A bloody wipe and cotton pad found at the scene of the attack on Kristen did
not find semen or sperm and DNA results excluded defendant as a contributor.
A cotton swab from the driver’s seat of defendant’s Cadillac found neither blood
nor semen. Swabs from blood on the driver’s side interior door found defendant as a
contributor on two swabs, with Kimberly excluded as a contributor and Kristen a
contributor on one swab.
The Defense
1. Background
Defendant worked for his father’s real estate and property management company
for about five years before his arrest. According to his father, defendant would work
from 8:00 a.m. to 5:00 p.m., but not every day. His father testified that there was no
reason for defendant to be working between the hours of 11:00 p.m. to 7:00 a.m. Several
properties on Stockton Boulevard were among the properties managed by the father’s
business.

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 Defendant admitted having hired escorts and prostitutes since 2014, doing so
because he was busy at work and not looking for a relationship. He was seeing
prostitutes two to three times a week by 2017, getting addicted to the practice. Defendant
started finding prostitutes on an area of Stockton Boulevard called “the Stroll.” Finding
prostitutes there was much more dangerous than doing so online. He had seen hundreds
of prostitutes on the Stroll, only stopping for a short time after seeing his pastor.
Once while seeing a prostitute on the Stroll, the prostitute stole defendant’s wallet
from the dashboard and bolted out the door as defendant leaned back while she was
performing oral sex on him. Another time, two men tried to rob defendant at gunpoint in
a hotel room where defendant went to meet a prostitute he had found online.
2. Y.
Defendant met Y. through the internet. In November 2016, he called to confirm
her rates and engaged her services at her house for later that day. When defendant
arrived at her house, Y. took him upstairs, where he paid and they had oral sex and
intercourse. Defendant told Y. his real name and there were no problems. As he was
leaving, defendant asked Y. if she ever smoked marijuana. Y. said she did, and defendant
replied that he would bring some over some time.
Defendant called Y. for sex at around 2:14 a.m. on December 1, 2016. Y. agreed
to see him for an hour; she also agreed to smoke marijuana with him. Defendant noticed
several cars were present when he arrived at her home. He called Y., who told him to
park by a nearby dumpster.
Y. met defendant at the door and let him inside. They walked to the family room
where a 35- to 40-year-old man and S. were sitting on the couch, watching television and
drinking alcohol. Defendant introduced himself and brought out the marijuana; they all
seemed to be getting along.
The mood changed when the man claimed to have sold marijuana to the cannabis
club where defendant had obtained the marijuana. Defendant told the man he did not

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believe this; the man replied he belonged to the Starz gang and called people in another
Oak Park gang “suckers.” When defendant named some people from Oak Park and said
he was okay with them, the man accused defendant of being affiliated with the Oak Park
gang. Defendant denied the accusation, but the man did not believe him. The man was
upset because one of the people defendant named was part of a group that shot and killed
one of the man’s friends.
Uncomfortable with the escalating situation, defendant decided to leave before
having sex with Y. As defendant got up and walked to the front door, the man followed
defendant and confronted him. Although a few inches shorter than defendant, the man
was bigger than him. The man swung at defendant as defendant tried to open the door;
the man missed when defendant moved out of the way. Defendant asked the man what
was going on, and the two began to wrestle in the hallway.
Defendant eventually swung at the man and missed, and then threw him to the
floor. Y. and S. were standing behind the man, near the stairs. S. darted in and hit
defendant in the chest, causing him to grab her by the face and shove her so she fell
down. When Y. came at defendant with her fist up, defendant hit her in the face with his
left hand, causing her to grab her nose and fall onto her back.
Concerned the man was going to get a weapon, defendant took a pink phone he
thought was his and ran out the door to the car after the man came back down the
hallway. The man yelled at defendant to get out of the car while S. and Y. swore at him
and banged on his car windows.
Later that night, defendant determined the phone he grabbed was not his. He
spoke to Y. on the phone several times after the incident. He called her first, speaking to
Y. and her husband, who were threatening. Defendant said he did not take the phone on
purpose, and while willing to return it, he would not go to her house because he was
afraid. Y. declined to meet in a public place as she could not get a ride.

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 Defendant claimed the “It was stupid” statement in the recorded call meant only
that the situation was stupid. He just reacted when he hit Y. During their first
conversation, defendant told Y. he was sorry she was injured and he did not mean to take
her phone. He erased the phone’s memory so the police could not trace it.
3. Kimberly
Defendant was coming out of a gas station and looking for a prostitute when he
picked up Kimberly, whom he thought was a prostitute given what she was wearing and
where she was standing on the Stroll. He pulled up to Kimberly and asked if she was
working; she said yes and got into the passenger side of his car. She was not carrying
any groceries.
Kimberly accepted defendant’s solicitation of oral sex for $40. She directed him
to the library parking lot on Stockton Boulevard, where he parked near a fence. She told
him to get ready, and grabbed a condom from her purse and performed oral sex on him.
Kimberly stopped and asked for her money after about five minutes. Not having
ejaculated, defendant did not want to pay but gave her $20 from his center console. This
angered Kimberly, who threatened to have her husband beat him if defendant did not pay
the rest of the money.
Kimberly started texting and again asked for the rest of her money after defendant
refused to pay any more. After defendant said he would not pay until she finished and he
would get another prostitute, Kimberly tried to open the center console, but defendant
stopped her. He reached over her to open the passenger door and shove her out.
Kimberly hit him on the face with her fist; defendant responded by hitting her in the
mouth and pushing her out onto the street. He threw her property out the door, closed the
door, and drove off. He did not force her to have oral sex or rape her. He did not take
her to the other location she claimed he did.

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 4. Kristen
Defendant admitted picking up Kristen in his Cadillac at the motel where she
lived. She agreed to perform oral sex on him for $40; he had a couple of $100 bills, $30
in cash, and some gift cards. She directed him to a location near 15th Avenue and 52nd
Street. As he parked the car, defendant told Kristen he would need change or she would
have to accept a $50 gift card as payment. After calling and verifying the funds, she
accepted the card as payment.
After snorting something from a clear bag, Kristen put a condom on defendant and
performed oral sex on him. Defendant soon stopped Kristen after a police car drove by.
He was on bail for the incident with Y. and told Kristen he wanted to move. Kristen
suggested a friend’s house around the corner and defendant agreed. When she told
defendant he had to pay $40 to rent the room, defendant made a counteroffer of $20,
which she accepted.
After they walked to the house, Kristen asked defendant to let her talk to her friend
alone; a man answered the door and started to argue with Kristen. Defendant decided he
did not want to rent the room and told Kristen he was heading back to his car. When
Kristen caught up to him at the car, defendant said he did not want to continue what they
were doing. Defendant told Kristen she could keep the $20 but he wanted the gift card
back. She did not take this well, and they started arguing in his car. Kristen said she was
going to keep the card because defendant wasted her time and asked for a ride back to
where he picked her up.
Defendant told Kristen he was not taking her anywhere and told her to leave the
car. Kristen started looking through her purse and asked where her dope was. When
defendant said he did not have it, an increasingly argumentative and aggressive Kristen
began pulling things out of her purse. After they both failed to find the drugs, defendant
told Kristen to leave but she refused to go without her drugs. He tried to reach around

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Kristen and push her out of the car. Kristen hit defendant in the right cheek as she told
him to get his hands off of her.
After again telling her to get out, defendant unsuccessfully tried to push Kristen
out of the car. Kristen hit him again with her fist, causing defendant to respond by
holding her hand down with one arm and punching her once in the chest and the mouth
with his left hand. The punch to the mouth hit her teeth, which cut defendant’s hand and
caused Kristen to bleed.
Defendant got out of the car and wiped the blood from his hand with a wipe
Kristen had given him earlier. Defendant opened the passenger door to forcibly remove
Kristen, who was holding a Swiss Army knife with no extended blade. He grabbed
Kristen’s arm, forced her to drop the knife, wrapped his arms around her, and pulled her
out of the car as she yelled and screamed.
Defendant grabbed Kristen’s things and threw them out of the car. As he was
doing so, Kristen grabbed defendant from behind. He flung Kristen to the ground, closed
the door, ran to the driver’s side, and drove off. He later found a bag of dope and the gift
card inside his car. Defendant drove to a gas station and wiped off his seat with a paper
towel.
Defendant lied to the police because he did not trust them after being falsely
accused of rape and robbery by a prostitute in 2014. He had a conviction for felony
assault in 2010.
DISCUSSION
I
Motion to Sever
Defendant contends it was an abuse of discretion for the trial court to deny his
motion to sever the charges regarding his crimes against Y. (counts one & two) from the
charges regarding Kimberly (counts three to seven) and Kristen (counts eight to ten). We
disagree.

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 A. Background
The prosecution filed a motion to consolidate the charges involving Y. with those
involving Kimberly and Kristen, which defendant opposed. At the hearing on the
motion, defense counsel argued the charges against Y. should be severed from the other
charges as the robbery and assault charges related to Y. were distinct and less
inflammatory than the rape charges involving Kimberly and Kristen. The prosecutor
asserted joinder was proper because all three cases involved assault charges and the
evidence would be admissible in separate trials under Evidence Code section 1101.
Treating defendant’s opposition as a motion to sever, the trial court determined joinder
was proper and denied the motion to sever, finding all three cases involved assaults and
the evidence in each case would be cross-admissible under Evidence Code section 1101.
B. Standard of Review
Section 954 permits the joinder of “two or more different offenses connected
together in their commission . . . or two or more different offenses of the same class of
crimes or offenses.” (§ 954.) Whenever such offenses are joined together, the court, “in
the interests of justice and for good cause shown, may in its discretion order that the
different offenses or counts set forth in the accusatory pleading be tried separately or
divided into two or more groups and each of said groups tried separately. (Ibid.)
Our Legislature has expressed a preference for joint trials. (§ 954.) Because
joinder ordinarily promotes efficiency, it is “the course of action preferred by the law.
[Citations.]” (Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1220 (Alcala).)
Defendant argues the court erred in denying his severance motion because the
evidence of the five forcible sexual assaults, the bulk of the charges in the rape cases,
would not be admissible in the trial for the robbery. He further claims the rape evidence
was much more inflammatory than the robbery evidence, and joinder served to combine
three close cases, making the total evidence much stronger.

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 Because the statutory requirements for joinder have been met since all three cases
involved assaults by means likely to produce great bodily injury, and consistent with
legislative preference for joint trials, defendant can establish error in trying the charged
offenses jointly only by making a “ ‘clear showing of prejudice to establish that the trial
court abused its discretion in denying . . . defendant’s severance motion.’ ” (Alcala,
supra, 43 Cal.4th at p. 1220.) Denying a motion to sever charged offenses amounts to a
prejudicial abuse of discretion only if the court’s ruling falls outside the bounds of
reason, considering the record before the court when it ruled on the motion. (Ibid.)
Where a party seeks severance of properly joined charges, like defendant does here, he
“ ‘must make a stronger showing of potential prejudice than would be necessary to
exclude other-crimes evidence in a severed trial.’ ” (Id. at p. 1226, fn. 17; see also id. at
p. 1221 [“ ‘The state’s interest in joinder gives the court broader discretion in ruling on a
motion for severance than it has in ruling on admissibility of evidence’ ”].)
To assess prejudice, we consider the following factors: “ ‘(1) the cross-
admissibility of the evidence in separate trials; (2) whether some of the charges are likely
to unusually inflame the jury against the defendant; (3) whether a weak case has been
joined with a strong case or another weak case so that the total evidence may alter the
outcome of some or all of the charges; and (4) whether one of the charges is a capital
offense, or the joinder of the charges converts the matter into a capital case.
[Citations.]’ ” (Alcala, supra, 43 Cal.4th at pp. 1220-1221.) We then weigh these factors
against the countervailing benefits to the state of joinder, which include “ ‘a single
courtroom, judge, and court attach[és]. Only one group of jurors need serve, and the
expenditure of time for jury voir dire and trial is greatly reduced over that required were
the cases separately tried. In addition, the public is served by the reduced delay on
disposition of criminal charges both in trial and through the appellate process.’
[Citations.]” (People v. Soper (2009) 45 Cal.4th 759, 772.) In reviewing denial of a

16
severance motion, we look to “the record that was before the trial court at the time of the
ruling.” (People v. Burch (2007) 148 Cal.App.4th 862, 867.)
C. Cross-Admissibility
If evidence underlying the offenses in question would be cross-admissible in
separate trials of the other charges, that normally is sufficient, standing alone, to dispel
any prejudice and justify a trial court’s refusal to sever the charged offenses. (Alcala,
supra, 43 Cal.4th at p. 1221.) Complete cross-admissibility, however, is not required.
(Ibid.) “In other words, it may be sufficient, for example, if evidence underlying charge
‘B’ is admissible in the trial of charge ‘A’—even though evidence underlying charge ‘A’
may not be similarly admissible in the trial of charge ‘B.’ [Citations.]” (Ibid.)
Where, as here, the issue concerns whether charged crimes should be severed from
a joint trial, the degree of similarity necessary to establish cross-admissibility exists on a
continuum. (Alcala, supra, 43 Cal.4th at p. 1222.) That continuum, in turn, depends
upon the purpose for which introduction of the evidence is sought. (Ibid.)
Evidence Code section 1101, subdivision (a) prohibits the admission of evidence
of uncharged offenses to prove propensity or disposition to commit the charged crime.
(People v. Ewoldt (1994) 7 Cal.4th 380, 393; People v. Hendrix (2013) 214 Cal.App.4th
216, 238.) However, subdivision (b) of that section provides that such evidence is
admissible “when relevant for a noncharacter purpose—that is, when it is relevant to
prove some fact other than the defendant’s criminal disposition, such as ‘motive,
opportunity, intent, preparation, plan, knowledge, identity, absence of mistake of fact or
accident.’ [Citations.]” (Hendrix, at p. 238.) “ ‘Evidence of uncharged crimes is
admissible to prove identity, common design or plan, or intent only if the charged and
uncharged crimes are sufficiently similar to support a rational inference of identity,
common design or plan, or intent.’ ” (People v. Lenart (2004) 32 Cal.4th 1107, 1123.)
“ ‘The least degree of similarity . . . is required in order to prove intent’ ” whereas
“[t]he greatest degree of similarity is required . . . to prove identity.” (Alcala, supra,

17
43 Cal.4th at pp. 1222, 1223, fn. 13.) The similarity needed to prove a “ ‘common design
or plan’ ” falls between the relatively lenient requirement to prove intent and the more
stringent requirement to prove identity. (Id. at p. 1223, fn. 13.) When offered for the
purpose of establishing a common plan or scheme, the charged crimes “ ‘must
demonstrate “not merely a similarity in the results, but such a concurrence of common
features that the various acts are naturally to be explained as caused by a general plan of
which they are the individual manifestations.” ’ ” (Ibid.) While “ ‘ “the common
features must indicate the existence of a plan rather than a series of similar spontaneous
acts, . . . the plan thus revealed need not be distinctive or unusual.” ’ ” (Ibid.)
The trial court found evidence of the assault offenses was cross-admissible by
showing “a common plan or scheme that is violent physical assaults on women with
whom the defendant comes into contact for sex, either consensually or non-
consensually.” We agree with the trial court. We also note additional common factors in
all three cases, defendant began each assault by striking his woman victim in the face.
After punching his female victims in the face, defendant then continued to commit
felonies against them, sexual assaults, kidnapping, and/or robberies or additional
assaultive behavior. This is more than sufficient to show a common plan, rendering the
assault offenses cross-admissible with respect to each other if defendant was tried
separately.2
D. Other Factors
It is indisputable that sex offenses can be highly inflammatory. (People v. Simon
(2016) 1 Cal.5th 98, 124.) “But the animating concern underlying this factor is not

2 In light of our ruling we need not determine if the trial court’s additional finding
that the evidence was cross-admissible to prove intent was correct. (Florio v. Lau (1998)
68 Cal.App.4th 637, 653 [“In reviewing a trial court’s decision, we review the result, not
the reasoning. A decision right in result will not be reversed because it is based on an
erroneous theory”].)

18
merely whether evidence from one offense is repulsive, because repulsion alone does not
engender undue prejudice. [Citation.] Rather, the issue is ‘whether “ ‘strong evidence of
a lesser but inflammatory crime might be used to bolster a weak prosecution case’ on
another crime.” ’ [Citation.]” (Ibid.) For example, it was proper to join a brutal rape
case to home invasion robbery cases where the robbery cases were not weak. (People v.
Capistrano (2014) 59 Cal.4th 830, 850, overruled on other grounds in People v. Hardy
(2018) 5 Cal.5th 56, 104; see Simon, at p. 124.)
The same is true here. While the sex crimes against Kimberly and Kristen are
worse than the assault and robbery charges regarding Y., the crimes alleged in Y.’s case
are nonetheless very severe, as both the robbery and the felony assault with the section
12022.7 enhancement are violent felonies. (See § 667.5, subd. (c)(8), (9).) The charges
regarding Y. were not weak, either standing alone or in comparison to the cases involving
Kristen and Kimberly. While all three sets of cases depended largely upon victim
testimony, Y.’s testimony had the most corroboration, between defendant’s admissions in
her recorded call with him, and the corroborating testimony of her sister S. There are
some strengths in the other cases. Kristen’s case has corroborating evidence of the video
surveillance of defendant’s car and her DNA being taken from a bloodstain in the car.
Kristen, unlike Y., never asked for immunity or changed her story. Although Y. admitted
lying to the police about the attacks and testified under a grant of immunity, the strong
corroborative evidence turns a potentially weak case into a much stronger one.3 It was
within the trial court’s discretion to find that joinder did not attach a weak case involving
Y. to stronger claims involving the sex crimes.

3 The prosecution noted the evidence corroborating the crimes involving Y. in the
joinder motion.

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 The assault evidence was cross-admissible, the sex offense charges were not
unduly prejudicial, and a weak case was not joined to strong cases involving the sex
offense charges, it was not an abuse of discretion to deny the motion to sever.
II
Due Process and Severance
Defendant additionally contends denial of his severance motion violated his rights
to a fair jury trial and due process.
“[E]ven if the trial court’s ruling was proper as a matter of state law, we will
reverse the judgment if the defendant shows that joinder of the charges actually resulted
in ‘ “ ‘gross unfairness’ ” ’ amounting to a denial of due process during the guilt phase.
[Citation.]” (People v. Simon, supra, 1 Cal.5th at p. 123.) “In determining whether there
was such gross unfairness, we view the case as it was tried, including a review of the
evidence actually introduced in the trial. [Citations.]” (People v. Ybarra (2016)
245 Cal.App.4th 1420, 1434.) “Defendant has the burden to establish gross unfairness, a
burden our Supreme Court has characterized as a ‘high burden’ ” in the context of
severance. (Id. at p. 1438.) “To establish gross unfairness amounting to a due process
violation, a defendant must demonstrate a ‘reasonable probability’ that the joinder
affected the jury’s verdicts. [Citations.]” (Ibid.)
Defendant claims failing to sever denied him a fair trial because the evidence of
the sexual assaults was not cross-admissible, the evidence supporting the rape cases of
Kimberly and Kristen was stronger than the robbery case involving Y., the prosecutor
urged the jury to consider evidence of the sexual assaults when determining defendant’s
guilt regarding the attack on Y., and the trial court did not instruct the jury that the
evidence of the sexual assaults was inadmissible in the charges related to the attack on Y.
A. Cross-Admissibility and Strength of Cases
Additional evidence came out at trial to support the trial court’s ruling that the
crimes were admissible as evidence of a common plan. Defendant had engaged Y.’s and

20
Kristen’s services as prostitutes before his attacks on them. Kimberly testified she was a
prostitute but not working when defendant attacked her, but defendant testified he
engaged her services and the area she was in was known for prostitution. The fact that all
three victims were prostitutes provides further justification for the cross-admissibility of
the conduct in all three incidents.
We likewise stand by our previous analysis regarding the relative strength of the
three cases. The evidence corroborating Y.’s testimony stands out in comparison to the
charges involving Kimberly and Kristen and counteracts any effect of her previously
lying about the case to the police or testifying under a grant of immunity. We also note
that there was strong physical evidence of assaults against all three victims, medical
evidence documenting their injuries and Kristen’s DNA being found on blood in
defendant’s car, and of the robbery charge involving Y., defendant’s admissions and her
phone being found at defendant’s home. There was no DNA or other forensic evidence
supporting the rape charges. This is not a case where stronger evidence of sexual assault
was used to bolster weaker evidence of assault or robbery.
B. Prosecutor’s Arguments and Court Instructions
Defendant’s claim regarding the prosecutor’s arguments fails when the arguments
he cites are examined in context.
Defendant first identifies the prosecutor arguing “the common denominator”
between cases was defendant. The prosecutor argued: “Three separate women charged,
three separate days within a year. There is no factual connection between them in the
circumstances of these cases. [¶] Every factual connection via the defendant, he is the
common denominator. It’s because he’s there these things happened and there is a
commonality.”
This simply states that defendant is the common perpetrator against the three
victims. This does not seek to influence the jury’s consideration of the charges relating to
Y. by reference to the sexual assaults.

21
 Defendant also points to the prosecutor’s argument that the rape case and robbery
case involved “an intent or motive or a common plan.” The prosecutor in fact argued, “Is
there an intent or motive or a common plan that you find running through this?” This
rhetorical question does not invoke the prejudicial aspects of the sex crimes to bolster the
charges related to Y.
Defendant further claims the prosecutor told the jury to consider uncharged sex
offense evidence to determine whether defendant “was the person” who robbed and
assaulted Y. This refers to defendant’s testimony regarding his arrest, trial, and acquittal
for charges of rape and robbery committed against another prostitute, Felicia. The
prosecutor argued in closing this evidence could be used to help the jury decide if
defendant was the perpetrator of the charged crimes, and on rebuttal that notwithstanding
the acquittal, the incident with Felicia was “[i]dentity, common plan, motive, and intent
evidence.” This has nothing to do with the joinder of the crimes against Y. to the other
charges against Kimberly and Kristen.
The next argument identified by defendant is the statement that the jury could use
the testimony of “any of the women that are charged to shed light on the other counts.”
The prosecutor said, “If you use any of the women that are charged to shed light in the
other counts, you have to believe beyond a reasonable doubt that one of those crimes is
committed. It will back up to my burden.” The prosecutor argued that believing one of
the victims bolstered the cases regarding the others. Since the evidence of the crimes was
cross-admissible, this was not prejudicial.
Defendant’s final claim of improper argument is telling the jury it could
“interchange” all of the charged and uncharged acts to “see if it sheds light on what he’s
doing.” The prosecutor argued: “But if you want to use what he did to Y. and move it
forward and backwards and interchange them and see if it sheds light on what he’s doing,
you have to first find that one of those counts was proved beyond a reasonable doubt.”

22
Again, the prosecutor is not relying on the sex offense evidence to support the charges
related to Y.
The three cases defendant relies on do not support his desired result. Bean v.
Calderon (9th Cir. 1998) 163 F.3d 1073 is a case from the Ninth Circuit Court of Appeals
and is not binding on this court. (People v. Uribe (2011) 199 Cal.App.4th 836, 875.)
More importantly, before the Ninth Circuit ruled, the California Supreme Court
considered the matter, and, unlike the Ninth Circuit, the Supreme Court ruled that joinder
did not violate the defendant’s right to due process. (People v. Bean (1988) 46 Cal.3d
919, 940.) The California Supreme Court’s ruling is binding on this court. (Auto Equity
Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
In People v. Grant (2003) 113 Cal.App.4th 579, defendant’s second cited case, the
defendant was jointly charged with burglarizing a school and possessing computer
equipment that had been stolen from a different school three years earlier. (Id. at pp. 583,
584-586, 589.) The court found that evidence of the two crimes was not cross-admissible
to prove a common plan because, although similar, the evidence on each crime did not
share common marks sufficient to support a strong inference that the defendant
committed both crimes. (Id. at p. 589.) The crimes in the instant case, however, did
share distinctive, common marks sufficient to support the inference that defendant had a
common plan in attacking each of the victims.
The third case defendant cites, People v. Earle (2009) 172 Cal.App.4th 372,
involved the joinder of a strong case of indecent exposure to a “considerably weaker”
sexual assault case. (Id. at p. 378.) The Court of Appeal found the evidence of the two
crimes was not cross-admissible. (Id. at p. 400.) In light of the prosecutor’s “heavy and
pervasive reliance on” the indecent exposure evidence in arguing to the jury, the
defendant was deprived of a fair trial. (Id. at pp. 409-411.) Unlike Earle, the evidence
here was cross-admissible and the prosecutor did not rely on a stronger or more
inflammatory sex offense charge to bolster weaker charges. Earle is inapposite.

23
 Defendant has failed to carry his heavy burden of proving that he was deprived of
a fair trial or due process.
III
No Unanimity Instruction on Count Ten
Defendant contends the trial court prejudicially erred in failing to give a unanimity
instruction regarding count ten, the assault charge involving Kristen.
“In a criminal case, a jury verdict must be unanimous. [Citations.] Additionally,
the jury must agree unanimously the defendant is guilty of a specific crime. [Citation.]
Therefore, cases have long held that when the evidence suggests more than one discrete
crime, either the prosecution must elect among the crimes or the court must require the
jury to agree on the same criminal act. [Citations.]” (People v. Russo (2001) 25 Cal.4th
1124, 1132.) “The key to deciding whether to give the unanimity instruction lies in
considering its purpose. The jury must agree on a ‘particular crime’ [citation]; it would
be unacceptable if some jurors believed the defendant guilty of one crime and other jurors
believed [his or her] guilty of another. But unanimity as to exactly how the crime was
committed is not required. Thus, the unanimity instruction is appropriate ‘when
conviction on a single count could be based on two or more discrete criminal events,’ but
not ‘where multiple theories or acts may form the basis of a guilty verdict on one discrete
criminal event.’ [Citation.] In deciding whether to give the instruction, the trial court
must ask whether (1) there is a risk the jury may divide on two discrete crimes and not
agree on any particular crime, or (2) the evidence merely presents the possibility the jury
may divide, or be uncertain, as to the exact way the defendant is guilty of a single
discrete crime. In the first situation, but not the second, it should give the unanimity
instruction.” (Id. at pp. 1134-1135.)
Defendant claims the prosecutor presented two different acts that could have
constituted the assault count with great bodily injury enhancement against Kristen, when
he punched her in the face while she was in the car and later kicking her when she was on

24
the ground. Claiming the prosecutor failed to elect between the two acts, defendant
concluded he was entitled to a unanimity instruction and the court’s failure to give one
was prejudicial. He further claims the continuous course of conduct exception does not
apply because he offered different defenses to each act and there was a reasonable basis
for the jury to distinguish between the two acts.
The evidence shows defendant punched Kristen in the face about 15 times while in
his car before taking her outside and raping her from behind on the car’s hood. When
Kristen tried to run away a second time, defendant grabbed her, threw her to the ground,
and repeatedly stomped her body and face. Defendant claimed self-defense regarding
hitting Kristen in the car, stating he struck her one time after she kept hitting him in the
face after she accused him of taking her drugs. Regarding the stomping outside the car,
defendant claimed that it never happened, testifying that after punching Kristen he then
pushed her out of the car before driving away.
Defendant did provide different defenses to the two sets of attacks. While the
prosecutor argued that the assault began with punching the face, the prosecutor also
repeatedly argued that both the punching and the kicking were assaults. This is not a
sufficiently clear election to eliminate the need for a unanimity instruction. (People v.
Melhado (1998) 60 Cal.App.4th 1529, 1539 [election must be made with “clarity and
directness”].)
We nonetheless find the error harmless even under the Chapman harmless-
beyond-a-reasonable-doubt standard. (People v. Hernandez (2013) 217 Cal.App.4th 559,
576-577 [noting split of authority as to whether Chapman or Watson standard applies to
erroneous omission of unanimity instruction].)4 There is overwhelming evidence
defendant assaulted Kristen and personally inflicted great bodily injury on her. Kristen’s

4 Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705]; People v. Watson
(1956) 46 Cal.2d 818.

25
DNA was found in blood inside his car, and the severe injuries she sustained over her
body are incompatible with defendant’s claim of punching her in the face one time.
The extent of injuries suffered by Kristen likewise negates any claim of self-
defense. To prevail on a claim of self-defense to the crime of aggravated assault, not
only must the defendant honestly and reasonably believe he was in imminent danger of
suffering bodily injury or being touched unlawfully, his use of force must be reasonable
in light of the circumstances presented. (People v. Pinholster (1992) 1 Cal.4th 865, 966,
overruled on other grounds in People v. Williams (2010) 49 Cal.4th 405, 459.) It is
specious to believe that defendant, a six-foot, five-inch tall, 220-pound man, was so at
risk by punches in the face from a heroin-addicted Kristen that the force he employed on
her was proportionate to the threat he faced.
We conclude beyond a reasonable doubt that the jury would reach the same
verdict on count ten had a unanimity instruction been given.
IV
Prior Prison Term Enhancement
In a supplemental brief, defendant contends the prior prison term enhancement
cannot stand in light of Senate Bill No. 136. The Attorney General concedes the point.
We agree.
On October 8, 2019, the Governor signed Senate Bill No. 136, which amended
section 667.5, effective January 1, 2020. (Stats. 2019, ch. 590, § 1.) Senate Bill No. 136
narrowed eligibility for the one-year prior prison term enhancement to those who have
served a prior prison sentence for a sexually violent offense.
Defendant’s prior prison term was not for sexually violent offenses. Defendant is
therefore entitled to the ameliorative benefit of the statute if Senate Bill No. 136 is
applied retroactively. We agree with the parties that the amendment to Senate Bill
No. 136 should be applied retroactively in this case.

26
 Whether a particular statute is intended to apply retroactively is a matter of
statutory interpretation. (See People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 307
[noting “ ‘the role of a court is to determine the intent of the Legislature’ ”].) Generally
speaking, new criminal legislation is presumed to apply prospectively unless the statute
expressly declares a contrary intent. (§ 3.) However, where the Legislature has reduced
punishment for criminal conduct, an inference arises under In re Estrada (1965)
63 Cal.2d 740, “ ‘that, in the absence of contrary indications, a legislative body ordinarily
intends for ameliorative changes to the criminal law to extend as broadly as possible,
distinguishing only as necessary between sentences that are final and sentences that are
not.’ [Citations.]” (Lara, at p. 308.) “A new law mitigates or lessens punishment when
it either mandates reduction of a sentence or grants a trial court the discretion to do so.
[Citation.]” (People v. Hurlic (2018) 25 Cal.App.5th 50, 56.)
Senate Bill No. 136 narrowed who was eligible for a section 667.5, subdivision (b)
prior prison term enhancement. There is nothing in the bill or its associated legislative
history that indicates an intent that the court not apply this amendment to all individuals
whose sentences are not yet final. Under these circumstances, we find that In re
Estrada’s inference of retroactive application applies. (Accord, People v. Lopez (2019)
42 Cal.App.5th 337, 340-342 [Sen. Bill No. 136 applies retroactively to cases not yet
final on appeal]; People v. Jennings (2019) 42 Cal.App.5th 664, 680-682 [same].)
We shall therefore strike the prison prior. Since the trial court already imposed the
maximum term, remand for resentencing is unnecessary.

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 DISPOSITION
The prior prison term enhancement is stricken. As modified, the judgment is
affirmed. The trial court is directed to prepare an amended abstract reflecting the
modified judgment, and to forward a certified copy to the Department of Corrections and
Rehabilitation.

/s/
BLEASE, Acting P. J.

We concur:

/s/
HULL, J.

/s/
HOCH, J.

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