People v. Burns CA4/3

Filed 1/12/22 P. v. Burns CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G058648

V. (Super. Ct. No. 14NF4955)

ALTON SEMAJ BURNS, OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, Cheri T.
Pham and Maria D. Hernandez, Judges. Affirmed.
Jean Matulis, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Melissa
Mandel, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
 INTRODUCTION
Defendant Alton Semaj Bums appeals from the judgment of conviction
entered after he was found guilty in his first jury trial of domestic battery with injury and
pimping, and then found guilty in his second jury trial of forcible rape, assault with force
likely to produce great bodily injury, and kidnapping to commit a sex offense. We
affirm.
We review and reject each of defendant's contentions of error as follows:
1. As to defendant's challenges to his conviction for kidnapping to commit
a sex offense, substantial evidence supports the asportation element of that offense. The
evidence showed movement and increased danger to the victim that were not incidental
to the commission of the rape offense. We reject defendant's argument that the
asportation element of that offense is unconstitutionally vague on its face or as applied.
2. The trial court did not err by instructing the jury with a modified
instruction on unanimity at the second trial.
3. The trial court did not abuse its discretion by admitting evidence of
defendant's prior conviction for a sex offense under Evidence Code section 1108 at the
second trial.
4. The trial court did not err by admitting evidence of defendant's prior
convictions for the purpose of impeaching defendant's testimony.
5. The prosecutor did not commit misconduct at the second jury trial by
introducing evidence to prove prior conviction sentencing enhancement allegations
notwithstanding an agreement at the first trial to bifurcate a court trial on those
allegations.
6. The trial court did not err by instructing the jury with CALCRIM
No. 1190: That instruction did not "[e]xcessively bolster[]" the victim's testimony and
did not otherwise violate defendant's constitutional rights to due process and a fair trial.
(Capitalization and boldface omitted.)

2
 7. Defendant requests that we independently review the documents
reviewed in camera by the trial court, which were produced in response to defendant's
subpoena seeking the victim's medical records. Our independent review reveals no error
in the trial court's determinations of which documents were relevant and therefore
released to defendant. In any event, any error in the trial court's determination of
relevance would have been harmless.

FACTS1
I.
THE PROSECUTION'S CASE

On November 22, 2014, Amber B. lived with her six-month-old son in an
apartment in Anaheim. That evening, Jesse Steve Mejia was with Amber at the
apartment. After engaging in sexual intercourse, Amber and Mejia fell asleep in the
bedroom of the apartment; Amber's son slept in a crib in the same room.
At about 1:00 a.m. on November 23, 2014, Amber woke up to find a man
covering her mouth and saying to her, "[y]ou messed up, bitch." As the lights were off
and it was dark, she could not then see that the male silhouette in front of her was
defendant and assumed her ex-husband Willie J. had broken into her apartment. She felt
the person "get off [her] face"; she heard a lot of scuffling and the man telling Mejia to
leave the house and that he "need[ed] to handle something with Amber."
Amber had had problems with her ex-husband and had told Mejia about
those problems. Mejia had placed a chain latch lock on the front door of the apartment to
help keep Amber safe from her ex-husband. Amber had told Mejia to be prepared to
"just leave the house and call the cops" if her ex-husband showed up at the apartment.

1
Similar evidence was presented at defendant's first and second trials. The facts in this
opinion are based on evidence presented in defendant's second trial as that evidence is
relevant to the resolution of the issues on appeal.

3
Amber had locked the front door with the chain that night. She had felt secure and did
not expect anyone to come over to her apartment.
Mejia fled the apartment wearing only boxer shorts. After Mejia had left
and the lights were turned on in the apartment, Amber saw defendant and asked him what
he was doing there. Defendant and Amber had been "just ... friends" who "sometimes"
had a sexual relationship. Amber had given defendant a key to her apartment because she
sometimes had seizures and might need someone to check on her.2 She said that she had
told him to call or text to let her know if he was going to come over to the apartment and
she had not received any calls or texts from defendant. Defendant said he had been
calling her on the phone. Amber saw the chain to the lock was broken.
Defendant grabbed Mejia's clothes that were beside Amber's bed and told
her to show him where Mejia's car was parked. Mejia's car was parked about a half a
block away. Amber was barefoot, wearing shorts and at-shirt, as she walked toward
Mejia's car and pointed it out to defendant. As defendant walked toward Mejia's car,
Amber used the opportunity to try to run back to the apartment and call the police.
Defendant, however, told Amber to stop and wait for him. She froze in fear.
Defendant put Mejia's clothes on top of Mejia's car, came back to Amber,
grabbed her arm, and pushed her back into the apartment. Defendant pushed her from
behind through the front door of the apartment and into the living room. He told her to
go into the bedroom; she replied, "No, I'm not going to the bedroom" and told him he
needed to get out of her apartment. Defendant pushed her into the bedroom and pushed
her onto the futon. Defendant kept saying, "you fucked up, bitch."

2
Defense expert neuropsychologist Dr. Ann Gattuso testified that, based on her review
of Amber's medical records and other evidence, Amber had several medical and
psychiatric conditions that make her "dysfunctioning" and her memory process
vulnerable. Specifically, Amber had a history of seizures, including psychogenic
seizures, which could affect her memory functions.

4
 Defendant went to the bathroom and grabbed hair conditioner. Defendant

returned, tried to take off Amber's clothes, twice slapped Amber on the left side of her

face, and kept telling her to stop fighting him. Defendant choked her with one hand.

Amber tried to get him to stop because she could not breathe and began to see black.
Defendant forced her onto her knees and was at that point able to take off her clothes.

Amber was screaming for defendant to stop.

Defendant put conditioner on his penis and tried to penetrate her anus.

Amber was able to fight him off by pushing her body down. He flipped her on to her

back and penetrated her vagina "very violently," causing her significant pain. Defendant

and Amber had had consensual sexual intercourse before, but defendant never used
conditioner as a lubricant, tried penetrating her anus, or used the kind of force he used

that night.

Defendant stopped the assault when he and Amber heard police officers

banging on the front window of the apartment and saw flashlights. Amber thought
3
neighbors might have called the police. Amber went to the bathroom and put on a robe.

Defendant told her to "play it cool" and "I'm here to see you." He told her that if the

cops asked her questions, she should tell them he knew her. Defendant rushed to put his

pants on. Amber was crying and was unable to sit down because of the pain she was

experiencing.

3
A detective of the Anaheim Police Department vice unit testified that at around 1:10
a.m. on November 23, 2014, he was dispatched to a street in Anaheim and, while en
route, was flagged down by Mejia who was wearing only boxers and standing in a
7-Eleven parking lot. Mejia talked fast and was out of breath and directed them to
Amber's apartment where he said help was needed. Several officers responded to
Amber's apartment; defendant answered the door wearing pants, underwear, and shoes.
Mejia had called the dispatch communication center and told the dispatcher that
Amber's ex-husband had appeared that night and threatened to kill Amber. Mejia said
his "stuff is in her room" and her ex-husband had shown up and said to Mejia, "[w]ho the
fuck are you? Get the fuck out or I'll kill you." Mejia told police he thereafter ran out of
the apartment wearing only his boxers.

5
 After defendant opened the front door of the apartment, police officers
asked Amber whether everything was okay. Amber replied, "No, he was raping me."
She described what had happened and the police officers asked her to go take a forensic
examination for sexual assault. Amber complained of pain in her throat and pain in her
vagina. A forensic specialist with the Anaheim Police Department who responded to the
apartment that night observed redness to Amber's throat. Officers observed the chain of
the front door chain lock was broken and lying on the floor.
Amber was transported to Anaheim Regional Medical Center where
forensic nurse specialist Jennifer Rivera conducted a forensic sexual assault examination
of Amber at 3:30 a.m. November 23, 2014. Rivera found a bruise on the inside of the
inner cheek on the left side of Amber's mouth, two linear bruises on Amber's neck, a
large tear at the base of the opening of the vagina, and abrasions in the area between the
vagina and the anus. The injuries Amber sustained to her genital area were consistent
with forced sexual contact.
Amber's complaints of having a raspy throat and throat pain and the
evidence of physical injury to her neck were consistent with having been strangled.
II.

DEFENDANT'S TESTIMONY

Defendant testified in his defense. He said he went to Amber's apartment
because she had had a seizure the prior Friday and he was concerned and decided to
check on her. He called out to Amber and when nobody answered he used the key he had
and pressed the apartment's front door open, breaking the metal chain latch. He found
Amber in bed with Mejia.
Amber told defendant that Mejia was a friend from college and that she had
messed up. After Mejia left the apartment, defendant became worried that Mejia was
outside the apartment wearing only boxers, which might attract police attention.

6
Defendant had recently been released from prison after serving over 11 years and he was
worried about his parole status.
Defendant testified that when he was 16 years old, in April 1999, he
pleaded no contest to committing forcible sexual penetration with a foreign object in
violation of Penal Code section 289, subdivision (at while he was in the custody of the
Youth Authority. In September 2001, he had been convicted of robbery in violation of
section 211 for which he served over 11 years before he was released on February 3,
2012; he was placed on parole and given a GPS ankle monitor which he was wearing on
the night Amber was assaulted.
Defendant was worried he might be in violation of his parole if he had
Mejia's property; he was also worried Mejia might accuse him of taking his property or
hitting him. Defendant walked outside to look for Mejia to give him his clothes so he
could leave. After defendant walked around and did not see Mejia, he came back to the
apartment and saw Amber holding Mejia's clothes. Defendant asked her to show him
which vehicle belonged to Mejia; she walked with him halfway down the block and gave
him Mejia's clothes and the keys to Mejia's car. Defendant put the clothes in Mejia's car
and he and Amber walked back to the apartment. They discussed how Amber had
"fucked up."
Defendant and Amber went back into the apartment and talked about a text
message defendant had received from a woman who claimed she was pregnant with his
child. Amber asked him if he was leaving her, and he responded he was not even though
in his mind he "was gone."
Defendant and Amber started kissing and began engaging in sexual
intercourse when they heard the police bang on the door. Defendant testified there had

4
All further statutory references are to the Penal Code unless otherwise specified.

7
been "no breakup period" between Amber and him and that they had been in
communication the week leading up to that night.

PROCEDURAL HISTORY

I.
THE FIRST JURY TRIAL

Defendant was charged in a second amended information with (1) forcible
rape in violation of section 261, subdivision (a)(2) (count l); (2) attempted forcible
sodomy in violation of sections 664, subdivision (a) and 286, subdivision (c)(2)(A)
(count 2); (3) first degree residential burglary in violation of sections 459 and 460,
subdivision (a) (count 3); (4) assault with force likely to produce great bodily injury in
violation of section 245, subdivision (a)(4) (count 4); (5) domestic battery with corporal
injury in violation of section 273.5, subdivision (a) (count 5); (6) assault with intent to
commit a sexual offense in violation of section 220, subdivision (a)(1) (count 6);
(7) assault with intent to commit a sexual offense during first degree burglary in violation
of section 220, subdivision (b) (count 7); (8) kidnapping in violation of section 207,
subdivision (a) (count 8); (9) kidnapping to commit a sex offense in violation of section
209, subdivision (b)(l) (count 9); (10) false imprisonment by menace, violence, fraud, or
deceit in violation of sections 236 and 237, subdivision (a) (count 10); (11) human
trafficking in violation of section 236.1, subdivision (b) (count 11); (12) pimping in
violation of section 266h, subdivision (a) (count 12); and (13) pandering in violation of
section 266i, subdivision (a) (count 13).
The second amended information alleged, as pertinent to this appeal, the
following prior conviction sentencing enhancement allegations: (1) pursuant to section
667.61, subdivisions (a) and (d)(l), defendant had been previously convicted of violating
section 289, subdivision (a); (2) defendant had previously suffered two or more serious
and violent felony convictions pursuant to sections 667, subdivisions (d) and (e)(2)(A)

8
and 1170.12, subdivisions (b) and (c)(2)(A); (3) he had served a prior prison term within
the meaning of section 667.5, subdivision (b); and (4) pursuant to section 667,
subdivision (a)(1), he had been previously convicted of two serious felonies listed in
section 1192.7.
During the first jury trial, the court granted the prosecution's motion to
have counts 2, 6, 8, and 10 dismissed. Defendant waived a jury trial on the prior
conviction sentencing enhancement allegations and elected to have those allegations tried
by the court in the event the jury found him guilty of the charged offenses.
The jury found defendant guilty on count 5 (domestic battery with corporal
injury) and count 12 (pimping). The jury found defendant not guilty on count 13
(pandering) and not guilty of its lesser included offense.
The jury was unable to reach a verdict as to counts 1, 3, 4, 7, 9, and 11.
The trial court's minutes state, "Counsel stipulated the court trial on the priors will be
addressed once all counts have been adjudicated accordingly."
II.

THE SECOND JURY TRIAL

Before the retrial of the counts on which the jury was unable to return a
verdict, defendant asked to represent himself. His motion for in propria persona status
was granted by the trial court.
The prosecution filed a third amended information which renumbered the
remaining charges to be tried as follows: (1) forcible rape in violation of section 261,
subdivision (a)(2) (count l); (2) assault with force likely to produce great bodily injury in
violation of section 245, subdivision (a)(4) (count 2); and (3) kidnapping to commit a sex
offense in violation of section 209, subdivision (b)(l) (count 3). The third amended
information also included the counts for domestic battery with corporal injury (as count
4), and pimping (as count 5) of which defendant had already been found guilty during the
first jury trial. The trial court confirmed counts 4 and 5 of the third amended information

9
would not be read to the jury. The third amended information also contained the same
prior conviction sentencing enhancement allegations as those contained in the second
amended information.
The jury found defendant guilty of counts 1, 2, and 3 of the third amended
information and found all prior conviction sentencing enhancement allegations, identified
ante, to be true.
The trial court sentenced defendant to a determinate prison term of 10 years
plus an indeterminate prison term of 35 years to life. Defendant appealed.

DISCUSSION

I.
KIDNAPPING TO COMMIT A SEX OFFENSE-SECOND TRIAL

Defendant challenges his conviction for kidnapping to commit a sex
offense on two grounds. First, he argues his conviction is not supported by substantial
evidence because there is insufficient evidence of movement and increased danger to
Amber other than that incidental to the commission of the underlying sex offense.
Second, he argues that the asportation element of the offense is unconstitutionally vague
on its face and as applied to him. For the reasons we shall explain, defendant's
arguments are without merit.
A.
Governing Legal Principles
"[S]imple kidnapping" in violation of section 207, subdivision (a) requires
proof of "'three elements: (1) a person was unlawfully moved by the use of physical
force or fear; (2) the movement was without the person's consent; and (3) the movement
of the person was for a substantial distance."' (People v. Bell (2009) 179 Cal.App.4th
428, 435.) "This last element, i.e., that the victim be moved a substantial distance, is
called the 'asportation' element." (Ibid)
 "Aggravated kidnapping," in violation of section 209, subdivision (b)(1),
involves a kidnapping "for the purpose of robbery or certain sex offenses." (People v.
Martinez (1999) 20 Cal.4th 225, 232, overruled on a different ground in People v.
Fontenot (2019) 8 Cal.5th 57, 70.) The asportation element of aggravated kidnapping has
two prongs: "[A]ggravated kidnapping requires movement of the victim that is not
merely incidental to the commission of the underlying crime and that increases the risk of
harm to the victim over and above that necessarily present in the underlying crime itself."
(People v. Martinez, supra, at p. 232.) "The two prongs of aggravated kidnapping are not
distinct, but interrelated, because a trier of fact cannot consider the significance of the
victim's changed environment without also considering whether that change resulted in
an increase in the risk of harm to the victim." (Id at p. 236.)
In People v. Martinez, supra, 20 Cal.4th at page 233, the Supreme Court
explained: "In determining 'whether the movement is merely incidental to the
[underlying] crime ... the jury considers the "scope and nature" of the movement.
[Citation.] This includes the actual distance a victim is moved. However, we have
observed that there is no minimum number of feet a defendant must move a victim in
order to satisfy the first prong."' The court further explained that analysis of the second
prong of the asportation element of aggravated kidnapping involves "' consideration of
such factors as the decreased likelihood of detection, the danger inherent in a victim's
foreseeable attempts to escape, and the attacker's enhanced opportunity to commit
additional crimes. [Citations.] The fact that these dangers do not in fact materialize does
not, of course, mean that the risk of harm was not increased."' (Ibid)
In People v. Dominguez (2006) 39 Cal.4th 1141, 1149 (Dominguez), the
California Supreme Court "once again address[ed] the question of when evidence of
forced movement of a victim is sufficient to satisfy the statutory requirement of
asportation, a critical element of the crime of aggravated kidnapping." In that case,
substantial evidence showed that the defendant forced the victim against her will to move

11
from the shoulder of a road, down an embankment, and partially into a walnut orchard
that was approximately 25 feet away from the road, for the purpose of committing a rape.
(Id at p. 1151.) The defendant argued the forced movement was for a distance no greater
than that which was merely incidental to the commission of the rape and did not
substantially increase the risk of harm to his victim. (Ibid.)
The Supreme Court explained: "Whether a forced movement of a rape
victim (or intended rape victim) was merely incidental to the rape, and whether the
movement substantially increased the risk of harm to the victim, is difficult to capture in
a simple verbal formulation that would apply to all cases. We discussed the standard in
[People v.] Rayford [(1994) 9 Cal.4th 1] and explained that the jury must 'consider[] the
"scope and nature" of the movement,' as well as 'the context of the environment in which
the movement occurred.' [Citations.] This standard suggests a multifaceted, qualitative
evaluation rather than a simple quantitative assessment. Moreover, whether the victim's
forced movement was merely incidental to the rape is necessarily connected to whether it
substantially increased the risk to the victim. 'These two aspects are not mutually
exclusive, but interrelated."' (Dominguez, supra, 39 Cal.4th at pp. 1151-1152, italics
omitted.) The Supreme Court further explained: "The essence of aggravated kidnapping
is the increase in the risk of harm to the victim caused by the forced movement.
[Citation.] We have articulated various circumstances the jury should consider, such as
whether the movement decreases the likelihood of detection, increases the danger
inherent in a victim's foreseeable attempts to escape, or enhances the attacker's
opportunity to commit additional crimes." (Id at p. 1152.)
The Supreme Court concluded that the appellate court, in finding
insufficient evidence of asportation in that case, "focused too narrowly on a subsidiary
aspect of the analysis, measured distance, rather than considering how all the attendant
circumstances related to the ultimate question of increased risk of harm." (Dominguez,
supra, 39 Cal.4th at p. 1152.) The court explained that, although it is necessary to

12
consider the actual distance the victim was forced to move, "we have repeatedly stated no
minimum distance is required to satisfy the asportation requirement [citation], so long as
the movement is substantial [citation]. [if] Measured distance ... is a relevant factor, but
one that must be considered in context, including the nature of the crime and its
environment. In some cases a shorter distance may suffice in the presence of other
factors, while in others a longer distance, in the absence of other circumstances, may be
found insufficient." (Ibid)
The Supreme Court cited several examples: "For example, moving robbery
victims between six and 30 feet within their home or apartment [citation] or 15 feet from
the teller area of a bank to its vault [citation] may be viewed as merely incidental to the
commission of the robbery and thus insufficient to satisfy the asportation requirement of
aggravated kidnapping. Yet, dragging a store clerk nine feet from the front counter of a
store to a small back room for the purpose of raping her [citation] or forcibly moving a
robbery victim 40 feet within a parking lot into a car [citation] might, under the
circumstances, substantially increase the risk of harm to the victim and thus satisfy the
asportation requirement." (Dominguez, supra, 39 Cal.4th at p. 1152; see People v.
Rayford, supra, 9 Cal.4th at p. 23 [substantial evidence supported asportation element in

aggravated kidnapping case in which the victim was forcibly moved 105 feet at night
from the parking lot of a closed store to the other side of a wall, "limit[ing] detection" of
the victim from the street]; People v. Aguilar (2004) 120 Cal.App.4th 1044, 1046 [as the
defendant forcibly moved his victim 133 feet at night into an unlit area where he "was
less likely to be detected," such movement was not merely incidental to the crime of
kidnapping to commit rape but also increased the risk of harm to the victim].)
The Supreme Court stated that "a forced movement need not be into an
'enclosure' to effect a substantial increase in the risk of harm. Moreover, a reasonable
jury could have concluded that the place to which the victim was moved was in fact one
obscured from public view." (Dominguez, supra, 39 Cal.4th at p. 1154; see People v.

13
Aguilar, supra, 120 Cal.App.4th at p. 1049 ["Courts have held that moving a victim to a
more isolated open area which is less visible to public view is sufficient" to prove
asportation].)
Applying those governing legal principles, the California Supreme Court
held substantial evidence supported the defendant's conviction for aggravated kidnapping
in light of the evidence the victim was moved to a "more secluded" location "where it
was unlikely any passing driver would see her," which "substantially decreas[ed] the
possibility of detection, escape or rescue." (Dominguez, supra, 39 Cal.4th at p. 1153.)
In 1997, after the crimes at issue in Dominguez had been committed, the
Legislature revised section 209, subdivision (b) to "eliminat[e] the requirement that the
movement of the victim 'substantially' increase the risk of harm to the victim." (People
v. Vines (2011) 51 Cal.4th 830, 869, fn. 20, overruled on another ground in People v.
Hardy (2018) 5 Cal.5th 56, 104.)
B.
Substantial Evidence Supported the Asportation Element of the
Aggravated Kidnapping Count.
Here, Amber testified that, after she complied with defendant's request to
walk outside the apartment and show him the car that belonged to Mejia about a half a
block away, she tried to run away from defendant and back to the apartment to call the
police. Defendant ordered her to stop and to wait for him. She complied, explaining she
"just froze. Like, I got scared." Defendant put Mejia's clothes on top of Mejia's car,
approached Amber, grabbed her by the arm, and physically made her go back into the
apartment. He pushed her from behind through the front door of the apartment. Once
inside, defendant ordered her to go into the bedroom and, when she refused, pushed her
into the bedroom and onto a futon. Defendant grabbed conditioner to use a lubricant and
thereafter commenced his sexual assault of Amber.

14
 A reasonable trier of fact could have inferred defendant's movement of
Amber from the street outside her apartment to the inside of the apartment, and then from
the living room of the apartment to the bedroom, "served several purposes" (People v.
Robertson (2012) 208 Cal.App.4th 965, 985), and was not merely incidental to the
commission of the rape. Substantial evidence supported the inference defendant's forced
movement of Amber was done to decrease the likelihood of detection as he limited the
visibility of his sexual offense by moving her from the street to inside the apartment.
Also, were Amber to scream for help, as she testified she had done during defendant's
sexual assault, it would have been more difficult for someone outside the apartment to
hear her, and still more difficult to hear her from the bedroom of her apartment.
Substantial evidence supported the inference that by so secluding Amber, defendant
enhanced his opportunity to commit additional crimes against her.
Substantial evidence showed Amber was more easily restrained and less
likely to escape after she was forced to go into the apartment and then into the bedroom
of the apartment than when she was standing on the street. While outside on the street
showing defendant which car was Mejia's, Amber was able to start to run away from
defendant. Defendant was initially able to stop Amber by ordering her to stop and he was
ultimately able to prevent her from escaping by securing her inside an interior room of
her apartment. By moving Amber into the apartment, and then into the bedroom,
defendant undoubtedly increased the risk of harm to Amber over and above that
necessarily present in committing the offense of rape against her.
C.
The Asportation Element of Aggravated Kidnapping Is Not Unconstitutionally Vague
on Its Face or as Applied to Defendant.
Defendant argues the asportation element of aggravated kidnapping in
violation of section 209, subdivision (b) is unconstitutionally vague both on its face and
as applied to him. He argues there is not a meaningful distinction between the movement

15
required for simple kidnapping and that for aggravated kidnapping. He argues that the
statute "leaves the asportation element for any kidnapping, as well as the distinction
between simple and aggravated asportation, unduly vague and susceptible of arbitrary
enforcement for California defendants charged with kidnapping." In support of his
argument that the asportation element is facially vague, defendant points to the lack of a
"fixed minimum sufficient distance for purposes of the substantial movement element of
both simple and aggravated kidnapping" and that, in cases like this one involving
associated crimes, both simple and aggravated kidnapping involve consideration of the
same elements to assess asportation. Defendant does not provide any further analysis of
how the offense is unconstitutionally vague as applied to him.
'"The constitutional interest implicated in questions of statutory vagueness
is that no person be deprived of "life, liberty, or property without due process oflaw," as
assured by both the federal Constitution (U.S. Const., Amends. V, XIV) and the
California Constitution (Cal. Const., art. I, § 7). Under both Constitutions, due process of
law in this context requires two elements: a criminal statute must "'be definite enough to
provide (1) a standard of conduct for those whose activities are proscribed and (2) a
standard for police enforcement and for ascertainment of guilt.""" (People v. Mclnnis
(2021) 63 Cal.App.5th 853, 858 (Mclnnis).)
In People v. Ledesma (2017) 14 Cal.App.5th 830, 839-840 (Ledesma), a
panel of this court rejected a similar constitutional vagueness challenge to a conviction
for aggravated kidnapping in violation of section 209, subdivision (b). The court
explained: "California's aggravated kidnapping statute, section 209, requires proof of
certain elements not required for prosecution under the simple kidnapping statute,
section 207. For instance, as in this case, the statute applies if the kidnapping is done for
the purpose of committing rape. (§ 209, subd. (b)(1).) Section 209, modified by the
Legislature in 1997 to conform to existing case law, requires that the movement of the
victim be 'beyond that merely incidental to the commission of, and increases the risk of

16
harm to the victim over and above that necessarily present in, the intended underlying
offense.' (§ 209, subd. (b)(2); see People v. Martinez (1999) 20 Cal.4th 225, 232,
fn. 4 ... [noting 1997 modification to codify asportation standard set forth in People v.

Daniels (1969) 71 Cal.2d 1119 ... ; Stats. 1997, ch. 817, § 17, p. 5589; Sen. Rules Com.,
Off. of Sen. Floor Analyses, 3d reading analysis of Assem. Bill No. 59 (1997-1998 Reg.
Sess.) as amended Sept. 4, 1997, p. 3.)
"These two aspects of the asportation requirement, movement beyond that
which is incidental to the underlying crime and movement that increases the risk of harm
to the victim, "'are not mutually exclusive, but interrelated." [Citation.] [if] In
determining "whether the movement is merely incidental to the [underlying]
crime ... the jury considers the 'scope and nature' of the movement. [Citation.] This
includes the actual distance a victim is moved. However, ... there is no minimum
number of feet a defendant must move a victim in order to satisfy the first prong."
[Citations.] [if] "The second prong ... refers to whether the movement subjects the
victim to a substantial increase in risk of harm above and beyond that inherent in [the
underlying crime]. [Citations.] This includes consideration of such factors as the
decreased likelihood of detection, the danger inherent in a victim's foreseeable attempts
to escape, and the attacker's enhanced opportunity to commit additional crimes.
[Citations.] The fact that these dangers do not in fact materialize does not, of course,
mean that the risk of harm was not increased.""' (Ledesma, supra, 14 Cal.App.5th at
p. 836.)
The Ledesma court further stated: "Since the 1997 modification of the
statute, appellate courts have routinely assessed the validity of aggravated kidnapping
convictions in published decisions without suggestion that the section 209, subdivision
(b)(2) asportation requirement is unworkable or too vague to be constitutional. (See, e.g.,
People v. Williams (2017) 7 Cal.App.5th 644, 667-668 ... [incidental movement of the
victims insufficient to support convictions under§ 209]; People v. Simmons (2015)

17
233 Cal.App.4th 1458, 1471-1474 ... [ample evidence of asportation to support§ 209
convictions]; People v. Robertson (2012) 208 Cal.App.4th 965, 983-987 ... ; see also
People v. Vines (2011) 51 Cal.4th 830, 869-871 ... [affirming aggravated kidnapping
conviction under pre-1997 version of § 209, subd. (b)].)"
After addressing and rejecting other arguments raised by the defendant in
support of his vagueness challenge that are not raised by defendant here, the Ledesma
court concluded: '""The law is replete with instances in which a person must, at his peril,
govern his conduct by such nonmathematical standards as 'reasonable,' 'prudent,'
'necessary and proper,' 'substantial,' and the like. Indeed, a wide spectrum of human
activities is regulated by such terms: thus one man may be given a speeding ticket ifhe
overestimates the 'reasonable or prudent' speed to drive his car in the circumstances
(Veh. Code, § 22350), while another may be incarcerated in state prison on a conviction
of willful homicide ifhe misjudges the 'reasonable' amount of force he may use in
repelling an assault [citation].... 'There is no formula for the determination of
reasonableness.' Yet standards of this kind are not impermissively vague, provided their
meaning can be objectively ascertained by reference to common experiences of
mankind.""' (Ledesma, supra, 14 Cal.App.5th at pp. 839-840; see Mclnnis, supra,
63 Cal.App.5th at p. 864 [relying in part on Ledesma, "we reject his contention that the
aggravated kidnapping statutes are void for vagueness"].)
Here, although the Attorney General cited Ledesma in the respondent's
brief, defendant does not acknowledge much less distinguish Ledesma in his appellate
briefs. We agree with Ledesma and reject defendant's argument the asportation
requirement of kidnapping to commit a sex offense in violation of section 209,
subdivision (b) is unconstitutionally vague on its face or as applied to him.

18
 II.
THE TRIAL COURT DID NOT ERR IN INSTRUCTING THE JURY ON UNANIMITY AT THE
SECOND TRIAL.

During the second trial, the trial court instructed the jury with CALCRIM
No. 3500, modified to state as follows: "The defendant is charged with Forcible Rape in
Count One, Assault with Force Likely to Produce Great Bodily Injury in count Two and
Kidnapping to Commit a Sex Offense in Count Three. The People have presented
evidence of more than one act to prove the defendant committed these offenses. You
must not find the defendant guilty unless you all agree the People have proved that the
defendant committed at least one of these acts for these offenses and you all agree on
which act he committed." Defendant contends this instruction was flawed and violated
his constitutional rights because it "failed to inform the jury that a unanimous jury finding
as to the act constituting each count was required." (Bold and some capitalization
omitted.)
Defendant has forfeited his claim of instructional error. He did not object
to the trial court instructing the jury with CALCRIM No. 3500, or any other instruction,
and does not contend the trial court erred by failing to give any additional instruction.
'""A party may not complain on appeal that an instruction correct in law and responsive
to the evidence was too general or incomplete unless the party has requested appropriate
clarifying or amplifying language.""' (People v. Hill (1992) 3 Cal.4th 959, 997, italics
added, overruled on other grounds by Price v. Superior Court (2001) 25 Cal.4th 1046,
1069, fn. 13.)
Even if defendant's argument is not forfeited, it is without merit. "When
considering a claim of instructional error, we view the challenged instruction in the
context of the instructions as a whole and the trial record to determine whether there is a
reasonable likelihood the jury applied the instruction in an impermissible manner."
(People v. Houston (2012) 54 Cal.4th 1186, 1229.) "'[A]ny theoretical possibility of

19
confusion [may be] diminished by the parties' closing arguments."' (People v. Hajek and
Vo (2014) 58 Cal.4th 1144, 1220, overruled on a different ground in People v. Rangel
(2016) 62 Cal.4th 1192, 1216.)
Here, the jury was also instructed with CALCRIM No. 3515 which stated:
"Each of the counts charged in this case is a separate crime. You must consider each
count separately and return a separate verdict for each one." The jury was also instructed
with CALCRIM No. 3550 which stated, in part: "Your verdict on each count and any
special findings must be unanimous. This means that, to return a verdict, all of you must
agree to it." (Italics added.)
Furthermore, any theoretical possibility of confusion was resolved by the
prosecutor's closing argument: "You heard this instruction about unanimity. This is just,
there were multiple acts that happened from the testimony. You all have to agree on
what act happened to constitute each crime, okay." (Italics added.) The prosecutor
thereafter explained the act underlying each count. He explained the rape charge was
based on defendant penetrating Amber's vagina with his penis by use of force, violence,
duress, menace, or fear. As to count 2 for assault with force likely to commit great bodily
injury, the prosecutor stated: "When he is strangling her and she's fighting for her life
trying to breathe, she can't talk, she has a raspy voice afterward, she has difficulty
swallowing, she feels like she has strep throat for like hours to a week. She still has
bruising when the nurse sees her at 3:30 in the morning. All of that is evidence for the
amount of force he used when he strangled her in order to accomplish the rape. Members
of the jury, I submit to you he's guilty of count 2 as well."
As to count 3, kidnapping with the intent to commit a sex offense, the
prosecutor explained: "Here is what is required: He intended to commit rape or sodomy;
acting with that intent he took her, held her or detained her using force or instilling fear;
he moved her a substantial distance; the movement was more than that just incidental to
committing a rape or a sodomy; that when he did move her, basically when he told her

20
stop, go back into the apartment and he pushes her into the apartment and he pushes her
back into the bedroom, when he was doing that movement, he already had the intent of
what he was going to do when he got her into that room, which is to rape or sodomize
her." (Italics added.)
In light of the instructions given to the jury as a whole and the prosecutor's
statements during closing argument regarding unanimity, given the facts of this case,
there is no reasonable likelihood the jury applied CALCRIM No. 3500 in an
impermissible manner.
III.
THE TRIAL COURT DID NOT ABUSE ITS DISCRETION BY ADMITTING EVIDENCE OF
DEFENDANT'S PRIOR SEX OFFENSE UNDER EVIDENCE CODE SECTION 1108.

Defendant argues the trial court erred at the second jury trial by admitting
evidence of his 1999 conviction for committing the offense of forcible sexual penetration
with a foreign object in violation of section 289, subdivision (a). He argues the evidence
did not meet the standards of Evidence Code sections 1108 and 1101 and was otherwise
inadmissible because its probative value was substantially outweighed by its prejudicial
impact within the meaning of Evidence Code section 352. He argues the trial court's
evidentiary error violated his rights to due process and a fair trial and thus cannot be
harmless.
In People v. Erskine (2019) 7 Cal.5th 279, 295 (Erskine), the California
Supreme Court restated the general principles governing the interplay of Evidence Code
sections 1101, 1108, and 352 in determining the admissibility of evidence of prior sex
offenses as follows: '"Evidence Code section 1101, subdivision (a) sets forth the
"'strongly entrenched"' rule that propensity evidence is not admissible to prove a
defendant's conduct on a specific occasion.' [Citation.] 'At the same time, "other
crimes" evidence is admissible under Evidence Code section 1101, subdivision (b) "when
offered as evidence of a defendant's motive, common scheme or plan, preparation, intent,

21
knowledge, identity, or absence of mistake or accident in the charged crimes."'
[Citation.] 'In this inquiry, the degree of similarity of criminal acts is often a key factor,
and "there exists a continuum concerning the degree of similarity required for
cross-admissibility, depending upon the purpose for which introduction of the evidence is
sought: 'The least degree of similarity ... is required in order to prove intent ....' ...
By contrast, a higher degree of similarity is required to prove common design or plan,
and the highest degree of similarity is required to prove identity.""'
Evidence Code "[s]ection 1108 'carves out an exception to [Evidence
Code] section 1101."' (Erskine, supra, 7 Cal.5th at p. 295.) Evidence Code section
1108, subdivision (a) "provides that '[i]n a criminal action in which the defendant is
accused of a sexual offense, evidence of the defendant's commission of another sexual
offense or offenses is not made inadmissible by [Evidence Code] Section 1101, if the
evidence is not inadmissible pursuant to [Evidence Code] Section 352."' (Erskine, supra,
at p. 295.)
Here, defendant was accused of forcible rape in count 1 of the third
amended information. That offense and defendant's prior offense of committing forcible
sexual penetration with a foreign object in violation of section 289, subdivision (a), are
included in the definition of "sexual offense" set forth in Evidence Code section 1108,
subdivision (d)(l)(A). We therefore next determine whether the trial court abused its
discretion by finding evidence of the prior offense admissible under Evidence Code
section 352.
Evidence Code section 352 provides that "[t]he court in its discretion may
exclude evidence if its probative value is substantially outweighed by the probability that
its admission will (a) necessitate undue consumption of time or (b) create substantial
danger of undue prejudice, of confusing the issues, or of misleading the jury." It
therefore "follows that if evidence satisfies the requirements of section 1108, including
that it is not inadmissible under [Evidence Code] section 352, then the admission of that

22
evidence does not violate [Evidence Code] section 1101." (People v. Daveggio and
Michaud (2018) 4 Cal.5th 790, 823.) We review the trial court's ruling admitting
evidence under Evidence Code sections 352, 1101, and 1108 for an abuse of discretion.
(Id at p. 824.)
In determining the admissibility under Evidence Code section 352 of
evidence of past sexual offenses offered under Evidence Code section 1108, the court
must "undertake[] a careful and specialized inquiry to determine whether the danger of
undue prejudice from the propensity evidence substantially outweighs its probative
value." (People v. Merriman (2014) 60 Cal.4th 1, 41.) Factors to be considered by the
court include the "'nature, relevance, and possible remoteness [of the evidence], the
degree of certainty of its commission and the likelihood of confusing, misleading, or
distracting the jurors from their main inquiry, its similarity to the charged offense, its
likely prejudicial impact on the jurors, the burden on the defendant in defending against
the uncharged offense, and the availability of less prejudicial alternatives to its outright
admission, such as admitting some but not all of the defendant's other sex offenses."'
(Ibid).
At the hearing on the admissibility of the evidence of the prior sex offense
under Evidence Code section 1108, the trial court found the evidence admissible: "When
I look at a[n Evidence Code section] 352 analysis, it is absolutely probative. I would
agree with you any time we hear [Evidence Code section] 1101 or 1108 evidence, it is
prejudicial but it is surely not outweighed by the probative value and the purpose behind
[Evidence Code section] 1108 evidence when we hear it. I will note it is not too remote
in time especially in light of the period of incarceration that you were detained in
between the alleged offense before this court and the actual prior allegation pursuant to
[Evidence Code section] 1108."
In his opening brief, defendant argues: "Here, due to the remoteness in
time, coupled with the lack of similarity to the charged offense, evidence of the prior

23
section 289 offense should have been excluded as propensity evidence. [Defendant] was

16 years old when he pled no contest to the charge under section 289 involving his cell

mate at a youth facility, which reportedly occurred in April of 1998, 21 years before trial

and nearly 16 years prior to the alleged offenses involving Amber."

Defendant's prior sex offense and the current sex offense are not so
dissimilar to render evidence of the prior sexual offense irrelevant. Both crimes
constituted sexual assaults involving anal penetration. The prior sex offense was not too
remote in time to be sufficiently probative. The record shows defendant pleaded guilty to
that offense in 1999, and then was convicted of robbery in 2001 for which he served a

prison term of over 11 years before being released on parole. He was out of custody and

on parole for less than three years before committing the instant rape offense. (See

People v. Walker (2006) 139 Cal.App.4th 782, 807 ["Although the time between the two
offenses is significant, more than 20 years, [the defendant] was incarcerated for

approximately 11 of those years, thus minimizing the remoteness"].)

Defendant argues his imprisonment is not relevant here in weighing the

remoteness of his prior sexual offense because the prior offense occurred during

incarceration and "there were no instances or allegations of any kind of sexual or other
offenses by [defendant] during his imprisonment. ....... [B]ecause [defendant]'sjuvenile
prior was committed in custody, the fact that he spent eleven of the intervening years in

prison on another charge without committing any sexual offenses, supports the

conclusion that the trial court abused its discretion in admitting the offense under section

1108." Defendant's argument assumes too much. At a minimum, the fact of defendant's

incarceration limited his opportunity and ability to commit further sex offenses than if he

were not incarcerated.

Because defendant had pleaded guilty to committing forcible sexual

penetration with a foreign object in 1999, the degree of certainty that he committed the
prior sex offense was not in question.

24
 Informing the jurors that defendant had been convicted of the prior sexual
offense lessened the risk the jurors would be tempted to punish him in the instant case for
the prior sex offense. Furthermore, the prior sex offense evidence did not present the
likelihood of confusing, misleading, or distracting the jurors from their main inquiry.
Defendant does not contend the trial court abused its discretion by failing to limit or
sanitize the evidence pertaining to his prior sex offense.
The trial court therefore did not abuse its discretion by concluding
Evidence Code section 352 did not bar admission of evidence of the prior sex offense.
IV.
ANY ERROR IN PERMITTING THE PROSECUTOR TO IMPEACH DEFENDANT'S
TESTIMONY WITH HIS PRIOR CONVICTION FOR FORCIBLE SEXUAL PENETRATION
WITH A FOREIGN OBJECT WAS HARMLESS.

Defendant contends the trial court erred by permitting the prosecutor to
impeach defendant's testimony at both jury trials with evidence of his prior conviction
for forcible sexual penetration with a foreign object. Although in his opening brief,
defendant sometimes generally refers to his prior convictions, he does not argue or
analyze why his prior robbery conviction was ineligible for impeachment purposes. The
Attorney General points this out in the respondent's brief, but defendant does not address
any error regarding use of that prior conviction for impeachment purposes in his reply
brief.
Defendant challenges the use of his prior conviction for forcible sexual
penetration with a foreign object for impeachment purposes by suggesting that conviction
was not one of moral turpitude and otherwise failed to meet other factors. '""[T]he
admissibility of any past misconduct for impeachment is limited at the outset by the
relevance requirement of moral turpitude."' [Citation.] Beyond this, the "'trial courts
have broad discretion to admit or exclude prior convictions for impeachment
purposes ...."' [Citation.] 'When determining whether to admit a prior conviction for

25
impeachment purposes, the court should consider, among other factors, whether it reflects
on the witness's honesty or veracity, whether it is near or remote in time, whether it is for
the same or similar conduct as the charged offense, and what effect its admission would
have on the defendant's decision to testify.' [Citation.] The impeaching offense may
postdate the charged offense." (People v. Edwards (2013) 57 Cal.4th 658, 722.)
The parties do not cite any legal authority, and we have found none,
addressing whether the offense of forcible sexual penetration with a foreign object in
violation of section 289, subdivision (a) qualifies as an offense involving moral turpitude.
We do not need to address that issue because, even if the trial court erred by allowing the
prosecutor to impeach defendant's testimony with that prior conviction, any such error
would be harmless.
In the second jury trial, evidence of defendant's prior conviction for
forcible sexual penetration with a foreign object was admitted under Evidence Code
section 1108. For the reasons we explained ante, the trial court did not abuse its
discretion by admitting that evidence. The jurors therefore already knew defendant had
suffered that prior conviction and they could take that fact into account in evaluating his
credibility as a witness at trial. The trial court instructed the jury with CALCRIM
No. 226 on how to evaluate a witness's testimony and in so doing specifically instructed
the jurors that they could consider whether the witness has been convicted of a felony in
evaluating credibility. Any error in also admitting this evidence to impeach defendant's
testimony was therefore harmless.
In the first jury trial, defendant's testimony was impeached with his prior
convictions for robbery and forcible sexual penetration with a foreign object, although
evidence of his prior conviction for the latter offense was not admitted under Evidence
Code section 1108 at that trial. We conclude, however, that even if the trial court erred
by permitting the prosecutor to impeach defendant with his prior sex offense conviction,
any error was harmless.

26
 The jury in the first trial was unable to reach a verdict on the forcible sex

offense counts such as rape and attempted forcible sodomy. The jury in the first trial

found defendant guilty only of domestic battery with corporal injury and of pimping.

The jury was aware that defendant had committed a prior felony as he had been
impeached with evidence of his prior conviction for robbery. As the jury was instructed

with CALCRIM No. 226 at the first jury trial, it was instructed that it could consider that

defendant had been convicted of a felony (the robbery) in evaluating his credibility. We

cannot say it is more likely than not the result of the first trial would have been different
had the trial court refused to permit the prosecution to impeach defendant's testimony

with his prior conviction for forcible sexual penetration with a foreign object. (Cal.

Const., art. VI,§ 13; People v. Watson (1956) 46 Cal.2d 818, 836.)

V.
THE PROSECUTOR DID NOT ENGAGE IN MISCONDUCT AT THE SECOND JURY TRIAL.

Defendant contends the prosecutor committed prosecutorial misconduct by
violating the parties' agreement to bifurcate trial on the prior conviction sentencing

enhancement allegations and introducing documentary evidence of defendant's prior

convictions at the second jury trial. The record does not show the prosecutor engaged in

misconduct but, even if it establishes prosecutorial misconduct, it was harmless.

A.
Background
Before the first trial, defendant moved to bifurcate trial on the charged
offenses from the prior conviction sentencing enhancement allegations of the second

amended information. Defendant also waived a jury trial on the prior conviction

sentencing enhancement allegations. After the first jury trial concluded and the jury had
been unable to reach a verdict on several counts, counsel stipulated that the court trial on

the priors would be addressed once all counts had been adjudicated.

27
 The trial court granted defendant's motion to represent himself at the

second trial. In the prosecution's trial brief filed before the second trial, the prosecutor

informed the court of defendant's earlier motion to bifurcate adjudication of the prior

convictions and other allegations involving the prior convictions and stated: "Assuming
the defense is making the same request the People join." The record does not show

defendant responded to the prosecution's offer to join a request to bifurcate the prior

conviction sentencing enhancement allegations in the second trial.

The following month, and also before the second trial, the prosecution filed

a supplemental trial brief in which the prosecution moved for permission to introduce

defendant's prior testimony regarding his conviction for robbery at "the bifurcated trial,
or as impeachment for a felony conviction of moral turpitude should the defendant testify

again in the current trial." The record does not show defendant objected or otherwise

responded to the prosecutor's request.

At a pretrial hearing on motions in limine, in seeking to have evidence of
the prior convictions admitted under Evidence Code section 1108 and/or for the purpose

of impeaching defendant's testimony at the second trial, the prosecution stated:

"Additionally, your honor, it is also part of the case of proving the priors against him.

He's alleged to have committed a prior for [section] 667 and also under the Three Strikes

Law, so they would also be offered for that purpose as well." After explaining its ruling
on the admissibility of evidence under Evidence Code section 1108 and/or for the

purpose of impeachment, the court asked: "Then it becomes a question that I ask to each

of you: Do you want to reach a stipulation? Is there going to be an offering of

documents?" The court also stated: "If the two of you can reach an agreement, that is
great. If you cannot, then come back to me and I'll make the final determination to how

it is presented to the jury." The trial court asked defendant, "Does this sound agreeable?"

and defendant responded, "Yeah."

28
 The trial court concluded this discussion by stating: "That also, again, [the
prosecutor], I note that you have prior convictions that are also alleged on our amended
number 3, in addition to the [Evidence Code section] 1108 prior that is alleged as a
special allegation pursuant to [section] 667.61, but we also have the additional prior
convictions with respect to, as you indicated, [section] 667(d) and (e) as well as [section]
667(a). [if] My question would be, I want that clarified as well how that evidence will be
presented to this jury for determination on the prior convictions, as [defendant] is
certainly entitled to have a jury determine the truth of his prior convictions." Defendant
did not make any objection or state he wished to bifurcate or waive a jury trial as to the
prior conviction sentencing enhancement allegations.
At another pretrial hearing, the prosecutor stated, "As to the prior
convictions, [defendant] and I did discuss, I think we're going to proceed by way of
written stipulation. I'm going to draft something, show it to [defendant] tomorrow. If
he's agreeable with the language as proposed, I believe that's the direction we're going to
go. [if] Is that correct, [defendant]?" Defendant responded, "Yes, yes."
During his opening statement, the prosecutor stated, without any objection
from defendant:
"Members of the jury, part of the evidence [I] will show you toward the end
is that the defendant is also alleged to have these prior convictions. You'll have evidence
that in a previous hearing the defendant had testified under oath and admitted that he has
a prior conviction for a violation of Penal Code section 289 subsection (a), also known as
sexual penetration by force with a foreign object to another. That was back in 1999. And
that in 2001 the defendant had been convicted of a felony violation of Penal Code section
211, also known as robbery.
"So, in addition to the evidence from the defendant's own testimony
admitting those previous convictions, there are also certified court records and documents
showing that the defendant was convicted of those charges. And as to the robbery,

29
there's an allegation here that he spent time in state prison. He was sentenced to 11 years
in state prison and that within five years of serving that sentence, the new charges came
about.
"So, in 2001 he was sentenced to 11 years of state prison for the robbery.
By 2014, less than five years after all of that, are the present charges before you."
The prosecutor concluded his opening statement: "At the conclusion of this
case, members of the jury, I'm not asking you to decide anything other than whether or
not the defendant violated the law as charged, three counts with the prior allegations for
his prior convictions. [if] I submit to you that at the close of all of this, you will
find ... that he's guilty of these charges and that the prior allegations are true. Thank
you."
During trial, outside the presence of the jury, the prosecutor stated "I did
provide [defendant] redacted copies of the certified documents that I plan to use for
proving up the priors, including his prior transcript testimony. [Defendant] has [had] an
opportunity to review all of the redactions. They are essentially to eliminate the things
that didn't have to do with the charged crimes that I'm proving up for the priors and as to
his prior testimony, also redacting anything that had testimony not related to the prior
felony convictions."
The trial court asked defendant whether he had had the opportunity to
review the documents the prosecutor had placed on the record, and defendant answered
"yes." Defendant did not object to the prosecutor offering evidence for the purpose of

30
proving up the prior conviction sentencing enhancement allegations for the jury's
determination of their truth.5
After the parties rested, the jury was instructed, without objection by
defendant, on deciding the truth of the prior conviction sentencing enhancement
allegations.
After the jury returned its verdicts, defendant filed a request to be appointed
counsel; the request was granted. Defendant's new counsel filed a motion for a new trial
arguing the evidence was insufficient to support the conviction for kidnapping to commit
a sex offense and circumstances affected defendant's ability to be sufficiently prepared to
represent himself at trial.6 The motion also requested that the trial court strike
enhancements "as remote in time and both arising from the same set of operative facts"
and due to Legislative changes to relevant statutes with respect to some of the
enhancements. The motion for a new trial did not argue the trial court erred or the
prosecutor engaged in misconduct on the ground that trial on the prior conviction
sentencing enhancement allegations had not been bifurcated.
B.
Applicable Legal Standards
"[T]o preserve a claim of prosecutorial misconduct for appeal, ""a criminal
defendant must make a timely and specific objection and ask the trial court to admonish
the jury to disregard the impropriety."' [Citation.] The lack of a timely objection and

5
At oral argument, defendant's counsel argued that defendant had objected to the
admission of the prior convictions evidence. Counsel is correct that defendant objected
to that evidence, but on the grounds of its admissibility under Evidence Code section
1108 and for the purpose of impeachment. Defendant did not object to the admission of
prior convictions evidence on the ground there should be a bifurcated trial on the prior
conviction sentencing enhancement allegations pursuant to defendant's jury waiver and
bifurcation agreement before his first trial.
6
Defendant does not challenge the trial court's ruling on the motion for a new trial in
this appeal.

31
request for admonition will be excused only if either would have been futile or if an
admonition would not have cured the harm.' [Citation.] ""A prosecutor's misconduct
violates the Fourteenth Amendment to the United States Constitution when it "infects the
trial with such unfairness as to make the conviction a denial of due process." [Citations.]
In other words, the misconduct must be "of sufficient significance to result in the denial
of the defendant's right to a fair trial." [Citation.] A prosecutor's misconduct that does
not render a trial fundamentally unfair nevertheless violates California law if it involves
"the use of deceptive or reprehensible methods to attempt to persuade either the court or
the jury."""" (People v. Hoyt (2020) 8 Cal.5th 892, 942-943.)
C.
Defendant Forfeited His Contention of Prosecutorial Misconduct; Even If Not
Forfeited, His Contention Is Meritless or Would Constitute Harmless Error.
Defendant remained silent when several opportunities arose to request the
extension of enforcement of counsel's pre-first trial agreement to bifurcate the prior
conviction sentencing enhancement allegations to the second trial. When it became clear
that the prosecutor was intending to prove up those allegations at the trial of the
underlying offenses, defendant remained silent and did not object. He did not object
when, during the opening statement, the prosecutor told the jury it would be receiving
evidence regarding and deciding the truth of those allegations. He did not include the
lack of a bifurcated trial in his motion for new trial. Nothing in the record suggests that it
would have been futile for defendant to raise a timely objection. To the contrary, a
timely objection would have undoubtedly cured the harm defendant contends he suffered.
To the extent defendant has not forfeited this argument, the record does not
show that proceeding with a unified trial was fundamentally unfair or that the prosecutor
used deceptive or reprehensible methods to do so. Defendant has failed to show, in any
event, how he was harmed as a result of a unified trial given that the jury was fully aware

32
of his prior convictions as evidence regarding them was admitted under Evidence Code
section 1108 and/or to impeach his testimony.
In his opening brief, he argues: "Even if this Court were to conclude that
admissions of [defendant]' s priors were admissible for the purpose of propensity
evidence and/or for impeachment, it is significant that in the first trial, the jury did not
find [defendant] guilty of the three charges resulting in conviction in the second trial, and
in the first case, trial on the prior convictions had been bifurcated, which itself indicates
prejudice." But the jury received evidence of both prior convictions at the first trial as
well, albeit for impeachment purposes and not for the purpose of proving up the truth of
the prior conviction sentencing enhancements themselves.
VI.
THE TRIAL COURT DID NOT ERR BY INSTRUCTING THE JURY AT BOTH OF
DEFENDANT'S TRIALS WITH CALCRIM NO. 1190.

At both of defendant's trials, the trial court instructed the jury with
CALCRIM No. 301 on the testimony of a single witness: "The testimony of only one
witness can prove any fact. Before you conclude that the testimony of one witness
proves a fact, you should carefully review all the evidence." The trial court also
instructed both juries with CALCRIM No. 1190: "Conviction of a sexual assault crime
may be based on the testimony of a complaining witness alone."
Defendant contends CALCRIM No. 1190 was given in error at both trials
because it "impermissibly lightens the prosecution's burden of proof by bolstering a
victim's testimony, the trial court prejudicially violated appellant's Fourteenth
Amendment right to due process." Defendant did not raise any objection to CALCRIM
No. 1190 being given to the jury at either trial. Even if the instructional error challenge is
not forfeited, it is without merit.
Defendant argues CALCRIM No. 1190 is constitutionally defective
because it does not include language requiring that the jury believe the testimony of the

33
complaining witness beyond a reasonable doubt before returning a conviction. He argues
this deficiency, combined with CALCRIM No. 301, lowers the burden of proof for the
prosecution. We review a claim of instructional error de novo. (People v. Posey (2004)
32 Cal.4th 193, 218.)
In People v. Gammage (1992) 2 Cal.4th 693, 701 (Gammage), our Supreme
Court approved the use of instructions similar to those challenged here by defendant. In
Gammage, the Supreme Court held the CALJIC instructions given there did not
'"dilute[] the "beyond a reasonable doubt" standard."' (Ibid) The Supreme Court
concluded in Gammage, "[a]lthough no corroboration is required in most
prosecutions, ... trials of sex crimes, which often are a credibility contest between the
accused and the accuser, have 'special features which make such an instruction on lack of
corroboration most proper."' (Id at p. 702.)
Defendant acknowledges the Supreme Court's holding in Gammage and
that the "use of CALJIC instructions similar to the CALCRIM instructions used in this
case was affirmed by the California Supreme Court" in Gammage. Defendant contends
Gammage was wrongly decided. We are bound by California Supreme Court authority.
(Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) We therefore
follow the holding of Gammage approving the use of similar jury instructions and
rejecting the argument the instructions lower the prosecution's burden of proof.
Defendant also argues Gammage is nevertheless distinguishable from the
instant case and "is not dispositive because [the] combination of CALJIC instructions
considered by the Gammage Court was more protective of the presumption of innocence
than the combination of CALCRIM instructions here." In support of this argument,
defendant states "[m]issing from the CALCRIM instruction [No. 301] is the emphasis in
CALJIC No. 10.21 instructing the jury, 'before finding any fact required to be
established by the prosecution to be proved solely by the testimony of a single witness,
you should carefully review all the testimony upon which the proof of such fact

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depends."' Defendant's argument is based on a distinction without a difference. We do
not agree that the italicized language contained in CALJIC No. 10.21 renders the
Supreme Court's holding in Gammage inapplicable to the instant case.
In any event, there was no instructional error. "Whether instructions are
correct and adequate is determined by consideration of the entire charge to the jury."
(People v. Holt (1997) 15 Cal.4th 619, 677.) Here, the jury was unequivocally and
repeatedly instructed the prosecution's case must be proved beyond a reasonable doubt
before it could convict defendant. Those instructions included CALCRIM No. 220,
which states, in part, "A defendant in a criminal case is presumed to be innocent. This
presumption requires that the People prove a defendant guilty beyond a reasonable doubt.
Whenever I tell you the People must prove something, I mean they must prove it beyond
a reasonable doubt." The jury was also instructed with CALCRIM No. 200 to "[p]ay
careful attention to all of these instructions and consider them together."
Nothing in CALCRIM Nos. 301 and 1190 altered the prosecution's burden
of proof and nothing supports the conclusion the jury applied CALCRIM No. 1190 in a
way that violated the Constitution. "In addition, "' 'we must assume that jurors are
intelligent persons and capable of understanding and correlating all jury instructions
which are given.""" (People v. Covarrubias (2016) 1 Cal.5th 838, 915.) CALCRIM
No. 1190 is not constitutionally defective.
VII.
OUR INDEPENDENT REVIEW OF SUBPOENAED MEDICAL RECORDS REVIEWED IN
CAMERA BY THE TRIAL COURT REVEALS NO REVERSIBLE ERROR.

In December 2018, after the first jury trial and in anticipation of the second
jury trial, the trial court received Amber's medical records that defendant had subpoenaed
from her health care provider, Kaiser Permanente. Defendant moved for the release of
the records to his defense investigator; the prosecutor and Amber objected to their
release.

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 At the hearing to determine whether the medical records should be released,
defendant explained he was seeking such records to discover evidence of Amber's history
of mental illness and emotional instability for impeachment purposes. The trial court
thereafter conducted an in camera review of the subpoenaed medical records, which
consisted of 5275 pages, and found 41 of those pages to contain relevant information.
After redacting irrelevant information on those 41 pages, the trial court produced the
redacted pages to defendant. The trial court, finding the remaining records were not
germane to defendant's defense, denied his request for access to them.
In his opening brief, defendant made an unopposed request for us to
independently review the records that were not produced to him by the trial court. We
ordered the trial court to transmit a copy of the documents the court received in response
to the subpoena and a copy of the redacted documents the court released to defendant.
The trial court complied with our request.
This court has reviewed all of the documents transmitted by the trial court.
In addition to the 41 redacted pages released by the trial court referencing Amber's
undisputed health issues involving seizures and hallucinations, we have identified an
additional 18 pages out of the 5275 pages that either refer to Amber having experienced
or having not experienced a seizure at a particular time. One of those 18 pages also refers
to Amber suffering a hallucination four months after the charged offenses occurred.
We do not need to decide if the trial court erred because even if the trial
court's failure to produce the additional 18 pages constituted error, we would conclude it
was harmless error. The additional 18 pages contain information that is cumulative to the
information that was produced to defendant. The reference to Amber suffering a
hallucination four months after the charged offenses occurred is irrelevant.
It was undisputed at trial that Amber suffered from several medical and
psychiatric conditions, including seizures. Defendant's expert neuropsychologist testified

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that Amber's seizures and other health issues can affect her cognitive functioning and
memory processes.
Given the content of the additional pages, we cannot conclude it was more
likely than not that the trial court's failure to produce those pages might have caused a
different result at the second trial. We therefore find no reversible error.

DISPOSITION
The judgment is affirmed.

FYBEL, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

ZELON, J.*

*Retired Justice of the Court of Appeal, Second Appellate District, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.

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