People v. Romero CA2/6

Filed 8/23/21 P. v. Romero CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B298960
(Super. Ct. No. 2013020258)
Plaintiff and Respondent, (Ventura County)

v.

DAVID ROMERO,

Defendant and Appellant.

David Romero appeals from the judgment after a jury
convicted him of one count of forcible rape (Pen. Code, § 261,
subd. (a)(2); count 1) and three counts of domestic violence (Pen.
Code, § 273.5, subd. (a); counts 2-4), and found true an allegation
that he kidnapped his victim to facilitate the rape (Pen. Code,
§ 667.61, subds. (a), (c)(1), & (d)(2)). Romero admitted that he
had suffered a prior strike conviction (Pen. Code, §§ 667, subds.
(b)-(i), 1170.12, subds. (a)-(d)) and prior serious felony conviction
(Pen. Code, § 667, subd. (a)). The trial court sentenced him to 50
years to life in state prison.
 Romero contends the trial court erred when it: (1)
admitted evidence of his prior acts of domestic violence and
sexual assaults, (2) denied his motion to strike his prior strike
conviction, and (3) imposed two-year sentences on counts 3 and 4.
We affirm.
FACTUAL AND PROCEDURAL HISTORY
Romero assaults and rapes B.
Romero and B. began dating in early 2013. On June
21, Romero sent B. a series of text messages accusing her of
cheating on him. She denied the accusations, and told Romero
that she wanted to end their relationship.
Around 4:00 a.m. the next morning, B. awoke to a
tapping sound on her window. She opened the curtains and saw
Romero standing outside. He was agitated and asked who was in
the room with her. B. said that no one was there and let Romero
see inside.
Romero asked for B.’s phone. She showed it to him
through the window but refused to give it to him. Romero then
pushed in the screen, pulled B.’s arm through the window, and
took the phone. He bruised B.’s arms in the process.
Romero climbed through the window and onto B.’s
bed. He again asked who she was cheating on him with. B.
reassured Romero that she was not cheating on him and told him
to leave.
B. was scared and opened the bedroom door so she
could wake her aunt and uncle. Romero grabbed B.’s arm and
closed the door. He pinned her to the bed and took her car keys.
Romero forced B. out of the house and into her car.
When she tried to get away he punched her in the face. He
locked the car doors and drove away.

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 Romero drove to a park and stopped the car. He told
B. they should get into the back seat and have sex. When she
refused, he grabbed her neck and slapped her in the face. They
then left the park.
Romero drove to a residential neighborhood, where
he parked the car and got into the back seat. He again said that
he wanted to have sex. When B. refused, Romero said that she
had already “fucked somebody else so [she] could do it again.” He
pinned her down and raped her.
Romero told B. to say that she was a “slut” and
wanted to have sex with him. He yanked her hair back when she
refused. B. cried and asked Romero to take her home. He drove
by her house but then made a U-turn. B. pleaded with Romero to
let her out of the car. He instead hit her in the mouth, knocking
several teeth loose.
Around 11:00 a.m., Romero took B. to the hospital.
He told a nurse there that B. had hit her face on the dashboard of
the car. He then ran away.
An examination revealed that several of B.’s teeth
had been dislodged. Her mouth was swollen. She had a knot on
the side of her face, damaged blood vessels in her eye, and bruises
on her hand, wrist, and arms. There were fingerprint marks on
her neck. B. told the nurse that Romero had caused her injuries.
Pretrial proceedings
Prosecutors charged Romero with one count of
forcible rape and three counts of domestic violence. They alleged
that he kidnapped B. to facilitate the rape and that he had
suffered a prior strike conviction and prior serious felony
conviction. Romero pled not guilty to the charges and denied the
allegations.

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 In a pretrial motion, Romero sought to bar
prosecutors from introducing evidence of prior sexual assaults
and acts of domestic violence committed against M. Prosecutors
argued the evidence was admissible pursuant to Evidence Code1
sections 1108 and 1109 because both M. and B. had been trapped
in moving vehicles with Romero and he had threatened and
raped each of them.
M. testified at a pretrial hearing that she met
Romero when she was 14 or 15 years old. They dated for about
five years. Once, Romero picked her up to go to the movies.
When she asked why he was driving in the wrong direction,
Romero hit her. He later pushed her against a vehicle when she
tried to retrieve her cell phone.
Another time Romero accused M. of flirting with a
friend. M. told him he could find his own ride home and got into
her car. Romero reached through the car window and choked M.
He then got into the car and hit her. He later grabbed the
steering wheel while she was driving, causing the car to careen
off a bridge. It was totaled.
In another incident, M. exited an office at her college
and saw Romero standing outside. He told her that he would
punch her if she did not let him walk her to class. M. asked him
to leave her alone. When she walked toward the campus police
station, Romero told her that he would “fuck [her] up” if she went
inside.
On another occasion, Romero went to M.’s house and
told her that he had her school identification. M. let him inside,
and said that she no longer wanted to date him. He pushed M.
into her bedroom and raped her.

1 Unlabeled statutory references are to the Evidence Code.

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 Romero showed up at M.’s college on another
occasion. This time he followed her to her car and took her keys.
He then demanded her cell phone so he could see if she had been
talking to anyone else. M. gave him the phone so she could get
her car keys back. When M. got in the car, Romero got into the
back seat. M. said that she was driving to the campus police
station. Romero grabbed the steering wheel and pointed it away
from the station, toward his house. He hit her when she waved
to a friend.
M. drove to Romero’s apartment. He told her that if
she went inside she would only have to stay for 15 minutes and
they would not have sex. Once inside, Romero started kissing M.
She wanted to leave. Romero told her that he was going to rape
her again if she did not have sex with him. He then hit her
several times.
The trial court found that evidence of these incidents
was admissible at trial, and denied Romero’s motion to exclude
them.
Trial proceedings
M. testified at Romero’s trial. Her trial testimony
was consistent with her testimony at the pretrial hearing.
Romero testified in his own defense. He denied that
he raped M., but admitted that he pled guilty to threatening and
stalking her.
Romero said that he met B. in early 2013. The two
were “attached” and wanted a future together. They had sex in
the car “all the time.”
On June 21, 2013, Romero and B. talked throughout
the day. They expected to see each other around 2:00 a.m. the
next morning. Romero went to B.’s house in the middle of the

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night and tapped on her window. He broke the screen on the
window because he was drunk. B. voluntarily let him inside. He
did not grab her arm or strike her. He did push her so he could
take her keys, however.
Romero and B. left her house to go to Port Hueneme.
He had to force her into the car, and she tried to get out twice.
Romero forced her back into the car each time but did not punch
her.
Romero drove to Port Hueneme so they could watch
the surf. They then went to a park so they could “hook up.” They
eventually drove to a residential neighborhood where they had
consensual sex in the car.
Afterward, Romero and B. argued about text
messages as they drove to his house. When Romero grabbed B.’s
wrists, she slapped him. He then grabbed her by the neck and
choked her. She kept slapping him, and he hit her in the face
and head. She was spitting blood.
Romero drove B. to the hospital. He told a nurse that
B. had hit her mouth on the dashboard. He ran away because he
did not want to get arrested.
The jury found Romero guilty of all charges, and
found the kidnapping allegation true. In a bifurcated proceeding,
Romero admitted that he had suffered a prior strike conviction
and prior serious felony conviction.
Sentencing
Prior to sentencing, Romero moved to strike his prior
strike conviction pursuant to People v. Superior Court (Romero)
(1996) 13 Cal.4th 497 (Romero). He argued the trial court should
grant his motion “to really just give him a chance at some hope in
the future” given his relatively young age.

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 B. testified at the hearing on the Romero motion.
She said that Romero tried to contact her after his arrest “in an
attempt to sway [her] testimony, to get [her] to work with his
defense attorneys and not to comply with” prosecutors. She still
considered him a threat.
The trial court found that striking Romero’s prior
strike would not be in the interests of justice. Romero was
arrested in this case after he “did something similar” previously.
His youthfulness when he committed his crimes did not excuse
his behavior.
After denying the Romero motion, the trial court
struck the prior serious felony enhancement and sentenced
Romero to 50 years to life in prison on his forcible rape conviction
(25 years to life, doubled due to the prior strike). The court also
imposed and stayed a consecutive eight-year term on Romero’s
domestic violence convictions: four years on count 2 (the low
term of two years, doubled), and a consecutive two years each on
counts 3 and 4 (one-third the middle term of three years,
doubled).
DISCUSSION
Evidence of prior sexual assaults and acts of domestic violence
Romero first contends the trial court erred when it
admitted evidence of his prior sexual assaults and acts of
domestic violence against M. because those incidents were “so
numerous and so inflammatory that they outweighed any
probative value of [his] guilt and overwhelmed the jury’s ability
to fairly determine guilt as to the charged offenses involving B.”2
We disagree.

2 Romero also argues the trial court erroneously admitted
the evidence because it did not consider that “recent law and

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 In general, evidence of a defendant’s uncharged
misconduct is inadmissible to prove their predisposition to
commit such conduct. (§ 1101, subd. (a).) Section 1108 sets forth
an exception to this general rule, allowing evidence of uncharged
sexual offenses to be admitted to prove the defendant’s
propensity to commit a charged sexual offense. (People v.
Villatoro (2012) 54 Cal.4th 1152, 1164.) Section 1109 provides
another exception, permitting evidence of uncharged acts of
domestic violence to be admitted to prove the defendant’s
propensity to commit a charged act of domestic violence. (People
v. Fruits (2016) 247 Cal.App.4th 188, 202.) Both exceptions are
subject to the limitations of section 352, which precludes the
admission of unduly prejudicial evidence. (People v. Brown
(2011) 192 Cal.App.4th 1222, 1233 [section 1109]; People v. Hollie
(2010) 180 Cal.App.4th 1262, 1274 [section 1108].) We review the
trial court’s admission of evidence pursuant to these sections for
abuse of discretion. (People v. Story (2009) 45 Cal.4th 1282, 1295
[section 1108]; Brown, at p. 1233 [sections 352 and 1109].)
There was no abuse of discretion here. A trial court
must “engage in a careful weighing process under section 352”
before admitting evidence of a defendant’s uncharged offenses
pursuant to sections 1108 and 1109. (People v. Falsetta (1999) 21
Cal.4th 903, 917 (Falsetta).) This includes considering factors

science recognize reduced culpability in juveniles and young
adults under 25,” which would have informed its analysis
regarding whether the incidents involving M. were too remote in
time to be presented by the jury. But Romero did not raise this
argument in the proceedings below. It is forfeited. (People v.
Partida (2005) 37 Cal.4th 428, 435 [party cannot argue on appeal
that trial court “erred in failing to conduct an analysis it was not
asked to conduct”].)

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such as the uncharged act’s “nature, relevance, and possible
remoteness[;] the degree of certainty of its commission and the
likelihood of confusing, misleading, or distracting the jurors from
their main inquiry[;] its similarity to the charged offense[;] its
likely prejudicial impact on the jurors[;] the burden on the
defendant in defending against the uncharged offense[;] and the
availability of less prejudicial alternatives to its outright
admission, such as admitting some but not all of the defendant’s
other . . . offenses, or excluding irrelevant though inflammatory
details surrounding [them]. [Citations.]” (Ibid.)
The court below properly considered these factors
when it admitted evidence of Romero’s acts against M. The
offenses Romero committed against M. were similar to those he
committed against B., rendering them highly probative. (People
v. Balcom (1994) 7 Cal.4th 414, 427.) In both cases, Romero’s
victims were women with whom he had dating relationships. He
was jealous and paranoid and accused each of them of having
relationships with other men. He stalked them, showing up
unexpectedly at their schools, jobs, and homes. He exploited
their vulnerabilities, assaulting them when they were alone in
vehicles or taking their cell phones so they could not call for help.
His abuse escalated over time, culminating in the rape of each
victim. (See, e.g., People v. Merchant (2019) 40 Cal.App.5th 1179,
1192-1193 [evidence sufficiently similar where defendant hit
victims in moving cars, took their cell phones, and tried to
prevent their escape]; People v. Rucker (2005) 126 Cal.App.4th
1107, 1120 [evidence sufficiently similar where defendant stalked
different girlfriends].)
Admitting the evidence of Romero’s offenses against
M. was not unduly prejudicial. The similarity of those offenses to

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those committed against B. decreased their inflammatory nature.
(Falsetta, supra, 21 Cal.4th at p. 924; People v. Branch (2001) 91
Cal.App.4th 274, 283-284.) There was little disparity in the
strength of the evidence: Romero admitted to many of his
assaults against both victims when he testified, including that he
had been convicted of stalking and threatening M. That
minimized the risk that jurors would be tempted to punish him
for his prior offenses when deciding whether he committed those
against B. (Falsetta, supra, 21 Cal.4th at p. 917; see also People
v. Ewoldt (1994) 7 Cal.4th 380, 405.) Additionally, evidence of
the offenses against M. and those against B. “each came from
independent sources,” minimizing any risk of distraction or
confusion. (People v. Dejourney (2011) 192 Cal.App.4th
1091, 1106; see also Ewoldt, at pp. 404-405 [where evidence of
prior and current offenses comes from sources unaware of the
other, probative value of evidence enhanced].) So, too, did the
jury instructions on reasonable doubt (CALCRIM No. 220) and
the use of evidence of uncharged offenses (CALCRIM Nos. 852B
& 1191A). (People v. Mullens (2004) 119 Cal.App.4th 648, 661;
People v. Frazier (2001) 89 Cal.App.4th 30, 42.) There was thus
no abuse of discretion when the trial court admitted evidence of
Romero’s offenses against M.
Prior strike conviction
Romero next contends the trial court erred when it
denied his motion to strike his prior strike conviction. There was
no error.
“‘The Three Strikes initiative . . . was intended to
restrict courts’ discretion in sentencing repeat offenders.’
[Citation.]” (People v. Carmony (2004) 33 Cal.4th 367, 377
(Carmony), alterations omitted.) “To achieve this end, ‘the Three

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Strikes law does not offer a discretionary sentencing choice . . .
but [instead] establishes a sentencing requirement to be applied
in every case where the defendant has at least one qualifying
strike, unless the sentencing court “concludes that an exception
to the scheme should be made because . . . [the] defendant should
be treated as though [they] actually fell outside the Three Strikes
scheme.”’ [Citation.]” (Ibid., alterations omitted.) To find such
an exception, a court must consider the “nature and
circumstances of [the] present felon[y] and prior serious and/or
violent felony convictions” and “the particulars of [the
defendant’s] background, character, and prospects.” (Ibid.)
We review a trial court’s denial of a Romero motion
for abuse of discretion. (Carmony, supra, 33 Cal.4th at p. 374.)
We will find such an abuse only “in limited circumstances”: e.g.,
if the court “considered impermissible factors” in denying the
motion. (Id. at p. 378.) But it is “‘not enough to show that
reasonable people might disagree about whether to strike one or
more’ prior conviction allegations.” (Ibid.) So long as the “‘record
demonstrates that the . . . court balanced the relevant facts and
reached an impartial decision in conformity with the spirit of the
law, we [will] affirm [its] ruling, even if we might have ruled
differently in the first instance’ [citation].” (Ibid.)
The trial court balanced the relevant factors here.
Romero put B. through a harrowing night of violence, assaulting,
kidnapping, and raping her. And those were not his first
offenses: At just 28 years old, he has an extensive juvenile and
adult criminal record. In the 10 years prior to sentencing alone
he suffered convictions for criminal threats (Pen. Code, § 422),
stalking (Pen. Code, § 646.9, subd. (a)), lying to a police officer
(Pen. Code, § 148.9, subd. (a)), illegally driving or taking a vehicle

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(Veh. Code, § 10851, subd. (a)), and driving with an open
container (Veh. Code, § 23223, subd. (b)). He also previously
committed offenses similar to those committed against B.,
putting M. through a years-long saga of domestic violence and
sexual assaults—including rape. That evidences Romero’s
violent and controlling nature toward women and his use of force
to commit violent criminal acts against them. Such conduct
exemplifies the recidivist behavior the Three Strikes law was
designed to combat. (See, e.g., People v. Leavel (2012) 203
Cal.App.4th 823, 837-838 [long criminal history and violence of
current offense justify denial of Romero motion]; People v. Strong
(2001) 87 Cal.App.4th 328, 340 [multiple recent felonies justifies
denial of Romero motion].)
Sentences on counts 3 and 4
Finally, Romero contends the trial court erred when
it imposed two-year sentences on counts 3 and 4. He is incorrect.
If a defendant is convicted of two or more felonies,
and the trial court imposes consecutive prison terms, the
aggregate term of imprisonment is equal to the sum of the
principal term, the subordinate term(s), and any applicable
enhancement(s). (Pen. Code, § 1170.1, subd. (a).) Subordinate
terms are equal to one-third of the middle term of imprisonment
prescribed for that conviction. (Ibid.) For second-strike
defendants, like Romero, any subordinate term is then doubled.
(People v. Nguyen (1999) 21 Cal.4th 197, 207.)
The middle term of imprisonment prescribed for a
defendant convicted of domestic violence is three years. (Pen.
Code, § 273.5, subd. (a).) One-third is one year, and doubling
that results in a term of two years. The sentences imposed on
counts 3 and 4 were therefore correct.

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 DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.

TANGEMAN, J.

We concur:

GILBERT, P. J.

PERREN, J.

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 Anthony J. Sabo, Judge

Superior Court County of Ventura

______________________________

Diane E. Berley, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey,
Assistant Attorney General, Steven D. Matthews and Rama R.
Maline, Deputy Attorneys General, for Plaintiff and Respondent.