People v. Bratcher CA1/1

Filed 6/14/22 P. v. Bratcher CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,
Plaintiff and Respondent,
A159493
v.
HASSAN LEE BRATCHER, (Alameda County
Super. Ct. No. 17-CR-012238)
Defendant and Appellant.

A jury convicted defendant of kidnapping and rape. Defendant
contends the trial court committed reversible error by failing to instruct with
CALCRIM No. 358 (Evidence of Defendant’s Statements), and defense
counsel was ineffective for failing to object to wrongly listed convictions and
the wrongly calculated Static-99R risk assessment in the probation report.
The Attorney General concedes, and we agree, that the court’s refusal to give
CALCRIM No. 358 was error; however, under the circumstances, we conclude
the omission of this instruction was harmless. We also agree with the
Attorney General’s concession that this matter must be remanded to the trial
court for a hearing to correct the probation report.
 I.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Underlying Crimes
Jane Doe was a 33-year-old woman between seven and eight months
pregnant, who had significant intellectual and learning disabilities. On
March 5, 2017, she left a transitional housing shelter in Oakland where she
lived to take a transit bus to Love Temple Missionary Baptist Church located
on 85th Avenue and Birch Street in Oakland. The church has a parking lot
located in the rear. Jane Doe is a member of the church who attended
sporadically, but was known by a male deacon and a female member.
At 8:25 a.m. that day, Jane Doe exited the bus and walked across 85th
Avenue. Because she was pregnant, she was feeling tired and her feet were
swollen. As she was walking down the sidewalk on 85th Avenue near the
church, defendant drove up in a white van with tinted windows. Through an
open window, defendant said to Jane Doe, “ ‘You know me.’ ” Jane Doe had
never seen him before, and feeling “[k]ind of scared,” she responded, “ ‘I don’t
know you.’ ” Because Jane Doe was “so tired,” she asked defendant for a ride
to the church. After defendant agreed to give her a ride, she got into the van,
sitting in the right front passenger seat, and defendant gave her a ride to the
church.
Defendant parked in the church’s empty parking lot near the back door
of the church. He did not threaten Jane Doe. After being informed by a
church member that a vehicle was parked “up to” the back door, a church
deacon opened the door, approached the van, and spoke with defendant
through his open driver’s side window, asking him what he was “doing there
at that time in the morning.” In response, defendant asked the deacon, “ ‘Is
this a church?,’ ” after which he added, “ ‘I’m sitting here chilling.’ ”

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Defendant appeared to be under the influence and had “a lot of white powder
around his beard.” The deacon told defendant he could not “ ‘sit here and
chill.’ ” The passenger’s seat, according to the deacon, was reclined, and the
passenger “waved” but did not speak. Following his encounter with
defendant, the deacon walked back into the church to his desk to finish
“doing his business.”
Defendant drove to the side of the church and parked his van. He
started throwing money on the passenger seat where Jane Doe was sitting.
Jane Doe was “mad” and told defendant she was not a “hoe” (sic) at which
point, he took his money back, stating, “ ‘I know what pregnant pussy taste
like [sic]’ ” or “ ‘I know something about pregnant pussy.’ ” She attempted to
exit the passenger’s side of the van, but defendant locked the door. Jane Doe
testified that defendant clapped his hands in front of her stomach, clapped
his hands in front of her face, and “clapped” his right fist into his “left open
palm.”1 She asked defendant if she was a “hostage.” He said, “ ‘Yes.’ ” She
felt “afraid.”
Defendant drove away from the side of the church to a “dead-end by the
old man’s house.” He subsequently pulled his vehicle into the driveway of a
house located at the end of a dead-end street at the corner of 105th Avenue
and Breed Avenue, and parked up against the garage door. Jane Doe did not
want to go to this house. While situated in the van in the driveway,
defendant removed Jane Doe’s clothing and wearing just a T-shirt, he
inserted his penis inside her vagina. Jane Doe felt mad and sad. She was
afraid, but claimed she could not attempt to escape because she could not
“walk that fast.”

1It is not clear from Jane Doe’s testimony if defendant carried out one
or more of these clapping movements.

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 Defendant eventually stopped having sex with Jane Doe, and pulled
out of the driveway, driving to a different location in front of a home, which
was near Beverly Avenue and Broadmoor Boulevard in the City of San
Leandro. Jane Doe identified a photo of this location because she recognized
the trees and houses. She did not want to go there. When they arrived at
this location, Jane Doe was not wearing the clothing defendant previously
removed. They had “sex again” in the van. Defendant put lotion on his penis
and, without using a condom used his penis to penetrate her vagina. She told
defendant “no” about three times. At some point, while at this location, Jane
Doe asked defendant four times to take her to the church. He replied, “ ‘No.’ ”
Thereafter, Jane Doe told defendant she needed to use the bathroom,
and he drove her to another location which “had stairs.” Jane Doe did not
know she was going there, had never been there before, and did not want to
go there. After defendant parked the van, defendant “had to come help [Jane
Doe] out of the car.” He held her shoulder with one hand to prevent her from
going anywhere. She felt “Afraid.” When Jane Doe got out of the van, she
did not have her shoes, socks, pants or underpants on, but she was wearing a
long dress. Jane Doe used the bathroom near the stairs to urinate. While
she was urinating, Jane Doe heard somebody come down the stairway.
Defendant told her to “ ‘Get back in the van,’ ” and she complied.
At one point, while driving around in the van, defendant parked in
front of an orange house. Not only had Jane Doe never been there, but she
did not want to go there. Because she was “very scared,” she cried, but
nothing else happened at the orange house.
Ultimately, defendant stopped at a park next to Webster Academy in
Oakland and told Jane Doe to, “get out, bitch.” Jane Doe walked to a
Walgreens on International Boulevard. There, she used her cellphone to call

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her sister, T.M., twice. During the first call, Jane Doe, who was crying, told
her sister something had happened to her, causing her to miss church. And
during the second call, Jane Doe stated a man had forced her into a vehicle
and raped her.
Following the second phone call, T.M. called the police, and in the
meantime, Jane Doe called her brother to come and pick her up. Jane Doe’s
brother picked her up and drove her to the transitional shelter where she had
been living. When she arrived at the shelter, her mother, sister, and
stepfather were there. In response to her sister’s phone call, both the police
and an ambulance arrived at the shelter.
Jane Doe was transported by ambulance to Highland Hospital where
she received a sexual assault examination performed by a physician’s
assistant. Testifying as a sexual examination expert, the physician’s
assistant indicated that during the examination, he observed redness,
swelling, and tenderness on Jane Doe’s labia and in the “structures at the
base, opening of the vagina,” and “a 2 millimeter linear tear with small red
blood at the base of the linear abrasion.” These injuries, according to the
physician’s assistant, were significant and “[m]ore often than not, [he does]
not see injuries this severe in sexual assault cases.” The sexual assault
examination also included the swabbing of Jane Doe’s anus and vagina for
DNA samples. Defendant’s DNA was later found on the anal swab; however,
the DNA was not from sperm, but it could have been from skin or saliva.
That evening at 9:30 p.m., Jane Doe called A.M., an independent
contractor who worked with Jane Doe through the Regional Center of the
East Bay. Jane Doe told A.M. that she had been raped and had gone to the
doctor.

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B. Uncharged Sex Crimes
Pursuant to Evidence Code section 1108,2 the trial court
allowed evidence of three uncharged sex offenses to demonstrate defendant
had a propensity to commit sexual offenses against women.
1. Whitney Doe
Whitney Doe testified that around noon on March 19, 2017, she took
her dogs to a dog park, located near her residence in Oakland. She was alone
and did not have her cell phone. As Whitney walked through the pedestrian
gate of her complex to the dog park, she observed a white “socker mom van
[sic] with little stick people, family sticker on the back” parked up against
another gate, the “drive through gate.” This vehicle had tinted back windows
and was “unusual for [the] area” because there were a few families living in
the building, but they did not drive “cars like that.” The van was also
blocking other vehicles from entering or exiting. When Whitney walked by
the passenger’s side of the vehicle, she saw an unfamiliar man, defendant, in
the driver’s seat staring at her “super hard.” She felt “[e]xtremely
uncomfortable” but continued on to the park.
Once Whitney entered the dog park, she let her dog off its leash and
turned back around so she did not have her back to the vehicle. As Whitney’s
friend, Sarah, came through the pedestrian gate to walk her dog, defendant
began staring at her. When Sarah indicated she did not know defendant,
Whitney asked her to take a cell phone picture of the van. After Sarah took a
picture, defendant made a U-turn and parked “nose to nose with a parked

2 Evidence Code section 1108, subdivision (a) provides: “In a criminal
action in which the defendant is accused of a sexual offense, evidence of the
defendant’s commission of another sexual offense or offenses is not made
inadmissible by Section 1101, if the evidence is not inadmissible pursuant to
Section 352.”

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car,” blocking Sarah outside the dog park. Whitney pulled Sarah inside the
dog park, took ahold of her pit-mix dog, shut the park’s gate, and told
defendant he needed to “back up and back off of [them].” In response,
defendant started saying “really uncomfortable disgusting terrible things.”
Whitney asked defendant to leave at least three times and, walking
closer to the car, took photographs with her friend’s phone. While she was
taking pictures, defendant made lewd comments and faces. He rolled down
the driver’s side window at which point, Whitney saw defendant’s penis,
drugs, empty bottles, and “a passed out mostly naked female” in the
passenger seat. Defendant told Whitney he wanted to “fuck [her]” and “fuck
whitey.” He continuously pulled on his penis while Whitney was taking
pictures. As Whitney stepped back from the van, the driver’s side sliding
door opened, and defendant asked her to get in the vehicle. She refused and
called the police. At no time did defendant cover his genitals or turn his body
away from Whitney. She felt afraid for herself and the woman inside the
van.
The parties stipulated that defendant was acquitted of a violation of
Penal Code section 314, indecent exposure, in connection with this incident.
2. M. Doe
M. Doe, who was in custody for an unresolved misdemeanor theft case,
testified she first met defendant, a good friend, eight years earlier in east
Oakland. She saw him once or twice a month. They drank, smoked weed,
did cocaine, and partied together.
In December 2014, while M. was walking on International Boulevard,
defendant pulled up in a Mercedes, stopping to talk with her. After asking
defendant if he could get her cocaine, M. climbed into his car. Defendant
bought some cocaine, and they went to his house. At defendant’s residence,

7
defendant and M. drank vodka, smoked and snorted cocaine, watched porn,
and had oral and vaginal sex. Defendant had not ejaculated, and when M.
was getting ready to leave at 4:00 a.m., “things turned south.”
Defendant indicated he could find some more cocaine since he had run
out. He tried calling a friend who did not answer the phone. When M. stated
once more that she was leaving, defendant snatched the wig off her head, and
said, “ ‘Bitch, you’re not going nowhere. Get back in the room.’ ” Defendant
then grabbed M. and threw her back into his bedroom. She was shocked and
surprised. Then he made her take off her clothes, stating in a “forceful tone,”
“ ‘Take that shit back off.’ ” Defendant threatened to punch M. in the face,
while putting his right fist in the palm of his left hand. She was scared and
did not believe defendant was joking. Defendant “pushed” M. onto the bed
and continued to try to have sex with her. While M. was lying on her
stomach, he folded his arms around her neck and bit her back, preventing her
from extricating herself. He inserted his penis inside her vagina for a long
time without her consent as he watched “porn,” drank alcohol, and smoked
weed. Defendant also grabbed M.’s head, forcing her to give him oral sex.
Eventually, defendant ceased assaulting M. As defendant was walking
around the room on his cell phone, M. ran through the kitchen to the back
door but was prevented from getting outside by the top lock of the screen
door. Defendant “socked” M., causing her to pass out. He then grabbed M.’s
leg, dragged her away from the screen door, and bit her leg.
While M. was in defendant’s residence, she yelled for help, and at some
point, the police arrived, announced their presence, and defendant allowed M.
to leave through the back door.
Subsequently, during the trial in the present matter, as M. was being
transported back to the jail, she saw defendant in an elevator. While she was

8
standing at the door of the elevator, M. said to defendant, “Oh my god. What
happened, Hassan? You did it again?” And defendant replied in “so many
words,” “ ‘Yeah.’ ” After M. told defendant she was “ ‘supposed to go [to] court
next week,’ ” defendant stated, “he knows,” and told M. “to come here and say
I don’t remember anything. And he’ll pay me to say that.” M. did not agree.
3. B. Doe
B. Doe, who was 66 years old at the time of trial, testified about an
incident that occurred on December 27, 2014. At that time, B. was a
prostitute. She smoked crack and drank alcohol.3 That day, in the early
morning, while walking to a store on or near San Pablo Avenue, B. saw
defendant in a car. She entered defendant’s car with the purpose of just
sitting, drinking, and talking for “a minute or so.” B. knew defendant
through “other ladies. But that was it.” They drove to defendant’s
apartment.
While driving to the apartment, defendant tried to solicit B. for
prostitution but “it didn’t happen” because defendant did not “bother [her] in
that way.” Upon arriving at defendant’s apartment, they sat down and
talked, and B. drank wine from a bottle she brought with her. She used her
phone to ask a friend to pick her up. As she was getting ready to leave,
defendant grabbed her phone, talked to her friend, called her a “ ‘Bitch,’ ” and
told her not to call back. After B.’s friend called back, defendant took the
battery out of the phone and threw the battery and the cell phone. B. was
“scared to death.” When B. told defendant she was going to leave, he
responded she was not going anywhere, and hit her in the mouth, causing her

3B. testified that she had since turned her life “over to God” and “now I
am not doing those things.” She was in church and not on the streets
anymore.

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lip to bleed. Defendant gave her paper towels to stop the bleeding. When
defendant turned his back, she ran out of a sliding glass door to the balcony,
with the thought of jumping off the balcony, but defendant pulled her back
inside. She screamed “to the top of [her] lungs” for help and unsuccessfully
tried to escape. B. tripped on the floor and landed “flat on the floor, on [her]
back.” Defendant got on top of her and put his thumbs on each side of her
neck, applied pressure, and stated, “ ‘I told you to be quiet. Don’t make no
noise.’ ” B. could not breathe. Defendant told her to take her pants off and
she complied because she was scared and wanted to “get out of there.”
During the assault, B. saw defendant’s penis, but it was not erect and he did
not touch her sexually. She did not want to see it.
When Oakland police officers eventually arrived and knocked on
defendant’s door, defendant told B. to “ ‘Be quiet.’ ” They knocked again,
“maybe three times before [defendant] said, ‘Just a minute.’ ” After the police
stated, “ ‘Open the door,’ ” B. crawled on the floor from the living room to the
door, but defendant put a bar chair against the door. B. warned the police
that defendant had put a barstool under the doorknob. The door was finally
opened, and she told the police what happened. Officer Kathryn Reymundo
observed that B.’s lip was swollen, she was bleeding from her mouth, and
there was fresh blood on the floor. The officer noted defendant was
completely nude and did not have any injuries.
The parties stipulated defendant was acquitted of a violation of Penal
Code section 220, subdivision (a)(1), assault with intent to commit rape, in
connection with this incident.

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C. Defendant’s Testimony
1. Jane Doe Incident
Defendant testified that on the morning of March 5, 2017, while he was
in his white van, he observed Jane Doe on 85th Avenue and Birch Street near
the church parking lot. He was wearing an ankle monitor. Defendant
thought he may have seen Jane Doe before but had never spoken to her.
Defendant “dipped” next to Jane Doe, and they both said, “ ‘What’s up.’ ” She
asked to get into his van. Defendant did not threaten or try to intimidate her
into entering the van. Because defendant believed there were “a lot of
prostitutes and drugs and everything” in that neighborhood and thought
Jane Doe might be a prostitute, he allowed her to climb into the van to “have
sex.” At first, defendant did not notice she was pregnant as she had a big
jacket on and was “covering with her purse.” After Jane Doe gestured toward
the church parking lot, defendant drove there. He thought she was directing
him to a “spot [where] we could do it at.”
Before encountering Jane Doe, defendant had recently purchased
cocaine and began breaking it down in the parking lot. He then “jumped out
real quick,” retrieved a bottle of alcohol from the vehicle’s trunk, put alcohol
inside a water bottle, wrapped the bottle in a jacket, and put the alcohol back
in the trunk.
As defendant was “sniffing powder,” the church deacon came outside,
approached the driver’s side of the vehicle. The driver’s side window was
open. The deacon wanted to know what defendant was doing, told him he
could not “ ‘be right here,’ ” and could not come into the church yet, because
regular church services did not start until 11:00 or 11:30. According to
defendant, the deacon could tell he had cocaine on his beard. In the
meantime, Jane Doe put her seat back, slouched down, and when the deacon

11
looked in her direction, she raised her hand to her face turning to the right,
as if she was trying to hide from him.
Defendant put his seat belt on because he was under the influence,
drinking, and already on parole. He then drove to the side of the church on
Birch Street and parked. There, he sniffed cocaine, drank, and listened to
music. At this point, according to defendant, Jane Doe stated, “ ‘How much
you got?’ ” Defendant replied he had about $30 for her, to which she
responded, “ ‘I ain’t no cheap hoe [sic].’ ” He then handed Jane Doe $50,
which she accepted.4
Defendant claimed he drove, at Jane Doe’s direction, to Olive Street
near 96th or 95th Avenue. She hopped out of defendant’s vehicle and went to
an apartment complex and obtained some powder that made her hallucinate.
Following their stop at Olive Street, they drove to 100th Avenue and Birch
Street where defendant sniffed powder and Jane Doe was “doing her thing.”
Next, they traveled to a dead-end street at 105th Avenue, where
defendant parked at a garage. He jumped out of the car “to use the
bathroom.” Jane Doe also got out of the car on the passenger’s side because
she thought defendant was going to take her into one of the houses.
Defendant urinated, got back in the van, at which point, an elderly man came
out of his house, and said they better leave or he would call the police. They
were both still dressed.
From there, defendant drove Jane Doe to a driveway on 108th Avenue,
where they had sex while standing outside the van. This was the first time
defendant realized she was pregnant. Defendant used a condom and lotion.

4 Defendant’s testimony is somewhat confusing, because later during
cross-examination, he testified he threw money on her seat, at first $30, and
then after Jane Doe said she was not a “ ‘cheap hoe [sic],’ ” he threw an
additional $20 on her seat.

12
According to defendant, he only had sex with Jane Doe once, presumably at
108th Avenue. Because a car drove by and somebody was walking by,
defendant stopped and got into the front seat of the van and drove away.
Defendant thought Jane Doe wanted “to go pee” because “the lotion was
burning her vagina.” They went to some “apartment complexes” where she
urinated by the stairs. As Jane Doe was wiping herself with some paper
towels given to her by defendant, some people came down the stairs.
Defendant and Jane Doe left and drove about two blocks away to
Beverly Street. Once they reached this location, defendant testified he was
“fishing up the last of the cocaine [he] had,” and Jane Doe “was doing her
thing with her drugs.” Then “she started tripping” and believed his phone
was turning red. Jane Doe stated defendant needed to take her back to the
church, but defendant was feeling a little sick and asked her to “ ‘[h]old on for
a minute.’ ” She “kept nagging” him to take her back, and ultimately he
dropped her off near the church.
Defendant denied forcing Jane Doe to go anywhere she did not want to
go, or forcing her to do anything sexual, or threatening or hitting her.
“Everything was consensual.”
Defendant acknowledged Jane Doe had a speech impediment when she
testified, making it difficult to understand her; however, he claimed she
spoke more clearly when he met her, although she may have occasionally
stuttered.
2. Other Offenses
a. Whitney Doe
As to Whitney Doe, defendant testified he was in his van with a woman
who was giving him oral sex when Whitney approached the vehicle, became
“nosy,” and looked inside. Defendant moved the van. He insisted he did not

13
try to get Whitney’s attention, flag her down, call her over to the van, or
attempt to show her his “private parts.” Rather, he claimed Whitney
approached his vehicle with a pit bull and told him, “ ‘Get the fuck out of
here.’ ” While she was there, he was not masturbating, nor was his penis
erect, but he had cocaine in his hands. The woman in the van said to
Whitney, “ ‘You act like you want to get in or something.’ ” Defendant denied
saying he wanted to “fuck whitey.” Instead, he stated, “ ‘She want to hit the
white girl,’ ” referring to the cocaine. He did not know Whitney was taking
pictures until the “last few.” When the police arrived, defendant admitted he
did not obey their commands and tried to “get around them” because he was
in possession of cocaine.
b. M. Doe
Defendant testified about his contact with M. Doe. He had known her
for about a year prior to the incident, and they had been to each other’s
residence on several occasions. Defendant met M. on the “track on
International” and had a paid sexual relationship with her. Usually, they got
high, drank, and had sex.
Defendant testified that on December 13, 2014, he met M. on 62nd
Avenue and International Boulevard. He told her he wanted to reach an
understanding before paying her with his money and drugs. She instructed
him to obtain drugs for her so she could experience a high first. In exchange
for money and drugs, she would “ ‘do how we usually do.’ ” Prior to going to
defendant’s residence, defendant gave M. $50 for her to purchase $30 of crack
with the understanding that she would keep the $20 balance.
Once they arrived at his residence, they drank vodka, M. got
undressed, and smoked crack in the bathroom. They both used powder
cocaine. However, defendant became involved in an altercation with M. in

14
his bedroom because he paid her to have sex, but she “kept stalling,”
eventually informing him, “ ‘I ain’t giving you shit. I ain’t giving you
nothing.’ ” When M. refused to give the money back to defendant, they
argued. After defendant went to the bathroom, M. tried to run out the back
door and started screaming and yelling when she was unable to open the
gate. Reacting to her screaming, defendant said, “ ‘Bitch, what are you
doing?’ ” They got into a “tussle, scuffle,” pushing each other, and ended up
on the ground wrestling. Defendant “probably” choked, bear hugged, and bit
M. When the police arrived, he thought he “probably let her out” through the
back door. Defendant could not remember whether he had sex with M., but
did not think so. He maintained he never forced or threatened M. to have sex
with him.
While defendant acknowledged speaking briefly with M. when he was
inside the elevator and she was outside, he denied offering her money to
testify she had forgotten about what happened between them. M. just
inquired, “ ‘What happened?’ ” and he told her this was the same case as the
last trial which had been reversed.
c. B. Doe
With respect to B. Doe, defendant testified he did not know her prior to
the incident on December 27, 2014; however, he claimed she knew about him
from “[her] girlfriends.” On that day, defendant saw B. on San Pablo Avenue,
one of the prostitution “tracks.” As he was driving his BMW, B. flagged him
down, which defendant interpreted to mean she wanted to have a sexual
“date.” B. entered his vehicle and agreed “she would like to date.” When she
asked him for alcohol, defendant replied he had alcohol at his house. He
drove B. to his second residence on 14th Street, where defendant drank
alcohol and they both used cocaine. They also talked “about a lot of stuff.”

15
 Defendant went into the bathroom, and when he came out, B., who was
supposed to be ready for sex, was standing next to his jacket which was
hanging on the barstool. She looked “stunned,” as if he had “caught her in
the act.” Because defendant could tell his jacket had been moved, he checked
the jacket pocket which contained his watch and a “Jesus peace chain.”
Although his chain was still in the pocket, the watch was not. As B. moved
swiftly to leave, defendant told her to “ ‘Hold on’ ” so he could check her purse
for his watch. B. refused to let him look in her purse, stating, “ ‘I ain’t got
nothing.’ ” Though they did not engage in sex, at this point, defendant was
naked. They started arguing about defendant’s demand to look into her
purse, and B. ran to the back balcony and screamed. Defendant told her to
“ ‘Get in here,’ ” grabbed her, and pulled her back into the apartment. A
tussle ensued as defendant attempted to open B.’s purse to retrieve his
watch. During the tussle, B. bit defendant’s hand, and he responded by
hitting her in the mouth and “probably” choking her. Defendant found his
watch in her purse and put it back in his jacket pocket.
Soon thereafter, the police arrived and started banging on the door.
Defendant was in a “frenzy” because there was cocaine and blood
“everywhere,” and he was naked. He gave B. a paper towel to cover her
mouth and rinsed his bleeding hand. Naked, defendant opened the door. The
officers arrested him.5
D. Relevant Procedural History
In a third amended felony information filed October 25, 2019,
defendant was charged with kidnapping Jane Doe in violation of Penal Code6

5 Defendant called as witnesses a paramedic and two Oakland police
officers who testified about Jane Doe’s prior inconsistent statements.
6 All further statutory references are to the Penal Code.

16
section 207, subdivision (a) (count one) and forcible rape of Jane Doe in
violation of section 261, subdivision (a)(2) (count two). As to count two, it was
alleged defendant kidnapped the victim within the meaning of section 667.61,
subdivision (d)(2).
On November 8, 2019, a jury found defendant guilty on both counts and
found the section 667.61 allegation to be true.
On January 17, 2020, the trial court sentenced defendant to a total of
25 years to life in state prison.
II.
DISCUSSION
A. Failure To Instruct on CALCRIM No. 358 Was Harmless
1. Background
In the process of going over jury instructions, defense counsel asked the
court to give CALCRIM No. 358 in its entirety. The standard version of that
instruction states: “You have heard evidence that the defendant made [an]
[oral] [and] [a] [written] statement[s] (before the trial/while the court was not
in session). You must decide whether the defendant made any (such/of these)
statement[s], in whole or in part. If you decide that the defendant made such
[a] statement[s], consider the statement[s], along with all the other evidence,
in reaching your verdict. It is up to you to decide how much importance to
give to the statement[s]. [¶] [Consider with caution any statement made by
(the/a) defendant tending to show (his/her) guilt unless the statement was
written or otherwise recorded.]”
Relying on the instruction’s bench notes, which gave a hypothetical
example of an interview with an “Officer Smith,” the prosecutor asked that
the second, cautionary paragraph be stricken because it applies “[g]enerally
for purposes of law enforcement statements, which is not the case here”;

17
rather, defendant made statements to his victims. The court thought the
prosecutor had a point. Curiously, defense counsel agreed with the court as
to the statements defendant made to Jane Doe and B. Doe, but still argued
this cautionary instruction should be given based on defendant’s statements
to M. Doe. Defense counsel did not address the statements defendant made
to Whitney Doe. The court concluded it would delete the cautionary
paragraph; however, it told defense counsel he could argue to the jury that
any statement defendant made to M. should be viewed with caution. When
the court instructed the jury, it gave CALCRIM No. 358, but omitted the
cautionary instruction.7
Defendant asserts the trial court committed reversible error in failing
to give the cautionary instruction within CALCRIM No. 358, as to statements
made by defendant tending to show his guilt, in violation of his Fourteenth
Amendment right to due process. The Attorney General concedes the trial
court erred by refusing to give the jury the cautionary instruction but
maintains that error was harmless because, among other reasons, defendant
denied making the statements and the court gave the jury the witness
credibility instruction.
2. Analysis
We begin by examining whether defendant made any statements to
Jane Doe, M. Doe, B. Doe, and/or Whitney Doe tending to show he used fear
or duress to keep Jane Doe in the van and have sexual intercourse without
her consent. In that regard, a number of defendant’s statements were used

7 The Attorney General concedes this issue is not forfeited on appeal
because although defense counsel acquiesced to the trial court’s refusal to
give the cautionary instruction as to defendant’s statements to Jane Doe and
B. Doe, he ultimately did not fully withdraw his request for the cautionary
instruction or fully acquiesce to the trial court’s ruling.

18
by the prosecution to prove defendant’s guilt, i.e., that he used fear and
duress to sexually assault Jane Doe and to transport her in his van.
Defendant told Jane Doe, for example, that he knew about “ ‘pregnant
pussy’ ” after he had thrown money at her, said “ ‘Yes,’ ” when Jane asked
him if she was a “hostage,” told her to “ ‘[g]et back in the van’ ” after he
allowed her to urinate outside the van, and said “ ‘No’ ” when she asked him
four times to take her back to the church. As to M. Doe, when she attempted
to leave defendant’s residence, defendant said, “ ‘Bitch, you’re not going
nowhere. Get back in the room,’ ” made her take her clothes off, stating in a
“forceful tone,” “ ‘Take that shit back off,’ ” and threatened to punch her in
the face, while putting his right fist in the palm of his left hand. When B.
Doe and defendant were in his apartment, defendant stated she was not
going anywhere before he hit her in the mouth, told her to take her pants off,
and, while pressing his thumbs on each side of her neck, said, “ ‘I told you be
quiet. Don’t make no noise.’ ” Finally, with respect to Whitney Doe, after
defendant made lewd comments and faces, he rolled down the driver’s side
window and told her he wanted to “fuck [her]” and “fuck whitey.”
These statements demonstrate defendant’s lack of respect for women
and his intent to scare and force them into having nonconsensual sexual
intercourse. Importantly, they also confirm that Jane Doe did not consent to
having sexual intercourse with defendant or willingly ride in the van.
Because defendant’s statements were used to prove his culpability, the
court’s failure to give the cautionary instruction was error.
As explained in People v. Diaz (2015) 60 Cal.4th 1176, 1187 (Diaz),
“[T]he cautionary instruction applies to any extrajudicial oral statement by
the defendant that is used by the prosecution to prove the defendant’s guilt—
it does not matter whether the statement was made before, during, or after

19
the crime, whether it can be described as a confession or admission, or
whether it is a verbal act that constitutes part of the crime or the criminal act
itself.” Because, here, there is no dispute that the court should have given
the cautionary instruction included in CALCRIM No. 358 after defense
counsel requested it be given, we consider only whether the omission was
harmless.
“In determining whether the failure to instruct requires reversal, ‘[w]e
apply the normal standard of review for state law error: whether it is
reasonably probable the jury would have reached a result more favorable to
defendant had the instruction been given.’ [Citations.] ‘ “Since the
cautionary instruction is intended to help the jury to determine whether the
statement attributed to the defendant was in fact made, courts examining the
prejudice in failing to give the instruction examine the record to see if there
was any conflict in the evidence about the exact words used, their meaning,
or whether the admission were repeated accurately. [Citations.]’ ” [Citation.]
[Our Supreme Court] has held to be harmless the erroneous omission of the
cautionary language when, in the absence of such conflict, a defendant simply
denies that he made the statements. [Citation.] Further, when the trial
court otherwise has thoroughly instructed the jury on assessing the
credibility of witnesses, we have concluded the jury was adequately warned
to view their testimony with caution.” (People v. McKinnon (2011) 52 Cal.4th
610, 679–680 (McKinnon).)
Here, the omission of the cautionary instruction included in CALCRIM
No. 358 was harmless.8 First, as to most of the statements, defendant did not

8We reject defendant’s argument that we should evaluate prejudice
under the beyond a reasonable doubt standard of Chapman v. California
(1967) 386 U.S. 18, 24. “Mere instructional error under state law regarding
how the jury should consider evidence does not violate the United States

20
testify one way or another as to their content but took the stand and simply
denied having committed the offenses and testified his interactions with the
prosecution witnesses were consensual and devoid of threats. Given
defendant’s denials and the uncontradicted testimony about most of his
statements, the primary issue the jury had to resolve was whether the
prosecution witnesses were credible or whether they fabricated their
testimony. (People v. Wilson (2008) 43 Cal.4th 1, 19–20, abrogated on other
grounds as stated in Johnson, supra, 6 Cal.5th at p. 587.)
Second, the court gave the jury CALCRIM No. 226 (Witnesses), which
extensively covered the jury’s role in evaluating a witness’s testimony,
including a variety of factors bearing on the truth or accuracy of that
testimony. Those factors included a witness’s bias, interest or other motive;
prior consistent or inconsistent statements; ability to remember the matter in
question; and admissions of untruthfulness. When a jury is thoroughly
instructed on the numerous factors involved in assessing witness credibility,
failure to give the cautionary instruction in CALCRIM No. 358 is harmless
because the jury has been adequately warned to view the witnesses’
testimony with caution. (Diaz, supra, 60 Cal.4th at p. 1196; McKinnon,
supra, 52 Cal.4th at p. 680; People v. Salazar (2016) 63 Cal.4th 214, 251;
Dickey, supra, 35 Cal.4th at p. 906.)9 The error is particularly harmless

Constitution. (Estelle v. McGuire (1991) 502 U.S. 62, 71–75.)” (People v.
Dickey (2005) 35 Cal.4th 884, 905 (Dickey); accord, Diaz, supra, 60 Cal.4th at
p. 1195; People v. Johnson (2018) 6 Cal.5th 541, 588 (Johnson); People v.
Xiong (2020) 54 Cal.App.5th 1046, 1081.)
9 Defendant argues that instructing the jury with CALCRIM No. 226
did not render the failure to give the cautionary instruction harmless, but he
is mistaken. The only case on which defendant relies, People v. Lopez (2005)
129 Cal.App.4th 1508, is inapposite. In Lopez, the court concluded the
defendant was prejudiced by the jury being allowed to consider his invocation
of his right to silence as one of two adoptive admissions, which error was

21
where the witnesses attributing the statements to defendant are themselves
extensively impeached. (Salazar, at p. 251; Dickey, at pp. 906–907.) Here,
Jane Doe, M. Doe, B. Doe, and Whitney Doe were all extensively cross-
examined and impeached.
In view of defendant’s denials, the absence of testimony by defendant
about many of the statements, and the detailed guidance of CALCRIM
No. 226, it is not reasonably probable a result more favorable to defendant
would have occurred had the jury been instructed with CALCRIM No. 358.
Defendant raises additional claims. He complains that because this
was a close case, the trial court’s failure to give the cautionary instruction
requires reversal as there is a reasonable probability the outcome of the trial
would have been more favorable to him had the instruction been given. He
argues there were obvious problems with the prosecution’s conflicting
evidence and that his version of the incident made more sense. True, the
prosecution’s evidence was not without discrepancies.10 However, the jury
was aware of these discrepancies and was instructed on how to evaluate such
testimony,11 and presumably credited the testimony of the prosecution
witnesses after assessing and weighing the prosecution and defense evidence.

“compounded” by the failure to give cautionary instructions about evaluating
the credibility of witnesses. (Id. at p. 1530.) Lopez does not assist defendant
here.
Jane Doe, for instance, was impeached with her prior inconsistent
10

statements.
11As we discuss further below, the jury was instructed about
evaluating conflicting evidence, single witness testimony, prior statements,
and witness credibility in general. (See, e.g., Johnson, supra, 6 Cal.5th at
pp. 588–589 [failure to give cautionary instruction was harmless error where
jury was otherwise instructed about need to carefully consider conflicting
evidence of defendant’s statements]; People v. Smith (2018) 4 Cal.5th 1134,

22
 In the same vein, defendant contends the jury’s actions during
deliberation further demonstrate this was a close case because the jury asked
for readback of testimony pertaining to whether drugs were in Jane Doe’s
system and requested to view the video of Jane Doe speaking with the
“detective.” Defendant also contends that in the prior trial, in which
CALCRIM No. 358 was given, the jury was deadlocked for two days until the
trial court erroneously excused a juror.
While readback of testimony and a jury deadlock in a prior trial are
factors to consider in assessing whether a case is a close call for the jury
(People v. Diaz (2014) 227 Cal.App.4th 362, 384–385), here, the jury arrived
at its verdicts in slightly over five hours (10:35 a.m. to 3:45 p.m.).
Considering the jury sat through a one-week trial that included 27 witnesses
and extensive medical, GPS, and photographic evidence, the jury’s five-hour
deliberation (which presumably included a lunch break) was relatively short
in duration. We further observe that in the prior trial, after the court
excused one juror and substituted in an alternate, the jury reached verdicts,
suggesting that prior to the removal of the juror, the jury was most likely
hung 11 to one in favor of conviction. In our view, an 11-to-one jury deadlock
in favor of conviction is not a close case. (People v. Christensen (2014)
229 Cal.App.4th 781, 799 [a 10-to-two jury deadlock in favor of conviction is
not a close case].)
Defendant also argues that instructing the jury with CALCRIM
No. 1190 and the prosecutor’s emphasis on defendant’s statements to Jane
Doe, M. Doe, B. Doe, and Whitney Doe during closing argument compounded
the prejudice created by the court’s failure to give the cautionary instruction.

1172 [rejecting defense argument that inconsistent testimony by prosecution
witnesses was prejudicial].)

23
 CALCRIM No. 1190 (Other Evidence Not Required to Support
Testimony in Sex Offense Case) provides, “Conviction of a sexual assault
crime may be based on the testimony of the complaining witness alone.”
Although the jury was instructed defendant’s rape conviction could be proven
by Jane Doe’s testimony alone, defendant complains the jury was not
instructed that her testimony and the testimony of the other witnesses about
defendant’s incriminating statements must be viewed with caution.
According to defendant, “This was a vulnerability in the instructions that the
prosecutor seized upon” in closing argument.
Defendant’s argument is unavailing because in addition to CALCRIM
No. 1190, the court also gave the jury CALCRIM No. 301 (Single Witness’s
Testimony), instructing, “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 jury was further instructed
with CALCRIM No. 302 that, “If you determine there is a conflict in the
evidence, you must decide what evidence, if any, to believe.” The jury was
told not to “accept the testimony of the greater number of witnesses,” and
“What is important is whether the testimony or any other evidence convinces
you, not just the number of witnesses who testify about a certain point.”
Moreover, the jury was instructed with CALCRIM No. 226, which provides,
“You may believe all, part, or none of any witness’s testimony.” Finally, the
jury was instructed with CALCRIM No. 318 on prior statements, which
instructs the jury it may use prior statements “To evaluate whether the
witness’s testimony in court is believable.” Because the court gave these four
instructions, we find the jury was thoroughly instructed on how to evaluate
the testimony of one witness, whether Jane Doe or defendant. The jury was
also instructed the prosecutor’s argument was not evidence. As a result,

24
defendant’s contention that giving CALCRIM No. 1190 and the prosecutor’s
closing argument increased the prejudice of erroneously refusing to give a
cautionary instruction regarding defendant’s oral statements is without
merit.
Next, defendant maintains that in “reality” Jane Doe’s testimony was
“essentially” the only evidence demonstrating she did not consent to having
sexual intercourse with him or willingly stayed in the van with him, and “[i]t
would be hard to imagine a conviction in this case if, due to the cautionary
instruction, any one juror had a reasonable doubt.” On the contrary, other
evidence corroborated Jane Doe’s testimony. Significantly, the jury heard
evidence defendant sexually assaulted M. Doe and B. Doe, and exposed
himself to Whitney Doe. The jury also heard testimony that the sexual
assault examination of Jane Doe revealed redness, swelling, and tenderness
on her labia minora, abrasions, and a fresh, nearly two-millimeter tear at the
lower opening of her vagina. The examiner testified Jane Doe’s injuries were
“significant” and specifically said, “More often than not, I do not see injuries
this severe in sexual assault cases.” Jane Doe also made fresh complaints to
A.M. and T.M., indicating she had been raped.12 In other words, the jury
heard abundant other evidence substantiating Jane Doe’s testimony.13

12The jury was instructed it could consider the fresh complaints only as
to whether and when they were made and the circumstances under which
they were made, and could not consider them for the truth of the matter
asserted.
13In his opening brief, defendant argued that to the extent this court
concludes defense counsel forfeited his claim of instructional error or the
error was invited, counsel provided ineffective assistance. In his reply brief,
defendant concedes the issue would be moot if we accepted the Attorney
General’s concession there was no forfeiture or invited error. Because we
have addressed the claim on the merits, we will not address defendant’s
argument regarding ineffective assistance of counsel.

25
B. Corrections to Probation Record
Defendant contends his trial counsel was ineffective for failing to
request corrections to the probation report. The Attorney General concedes,
and we agree, that several aspects of the probation report need to be
corrected.
1. The Prior Trial
During the prior trial, the prosecutor informed the court
that the listing of defendant’s 2014 convictions in the probation report was
incorrect because all of defendant’s convictions were actually for false
imprisonment in violation of section 236. After striking the incorrectly listed
convictions from the probation report, and in pronouncing judgment, the
court noted defendant had four convictions for false imprisonment.
2. The Present Trial
In the instant trial, the court found as a circumstance of aggravation
that defendant had served a prior prison term for rape. Defense counsel
corrected the court, explaining that although defendant was charged with
rape in the prior case, he was only convicted of false imprisonment. The
prosecutor agreed with defense counsel that the prior jury did not convict
defendant of rape. Thereafter, the court corrected its finding, reciting
defendant had been to prison for false imprisonment rather than rape.14
The probation report, however, listed one 2014 conviction under
section 236 and listed four 2014 convictions for sex crimes, including two
convictions for rape. The probation report also contained defendant’s Static-

14The prosecutor alleged in the third amended information that
defendant had four prior section 236 convictions for false imprisonment and
noted these same convictions in her motions in limine. During a pretrial
hearing, the prosecutor also noted the four prior section 236 convictions
involved the Evidence Code section 1108 victims.

26
99R risk assessment, which defendant claims needs to be “recalculated”
without the prior conviction “errors.” Defendant maintains, and the Attorney
General agrees, the matter must be remanded to the trial court for a hearing
to correct the errors in the probation report. We agree.
Because the simple remedy is to remand the matter to the trial court
for a hearing to correct any inaccuracies in the probation report and to
determine whether the Static-99R risk assessment requires recalculation, we
need not decide whether counsel’s actions were deficient.
III.
DISPOSITION
Accordingly, the matter is remanded for the limited purpose of
permitting the trial court to correct any inaccuracies in the probation report
and to determine if the Static-99R risk assessment requires recalculation. In
all other respects, the judgment is affirmed.

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 MARGULIES, J.

WE CONCUR:

HUMES, P. J.

BANKE, J.

A159493
People v. Bratcher

28