People v. Record CA6

Filed 3/2/23 P. v. Record CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H048100
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. B1794389)

v.

IDRIS MALIK RECORD,

Defendant and Appellant.

R.D. was attacked in her apartment by an intruder who forcibly subdued her,
dragged her into her bedroom, and sexually assaulted her, eventually fleeing. A jury
convicted Idris Malik Record, R.D.’s neighbor, of burglary, misdemeanor assault,
forcible sexual penetration, and kidnapping. On appeal, Record argues that (1) there was
insufficient evidence to support the kidnapping conviction, (2) the sexual penetration
conviction was fatally inconsistent with his acquittal on the charge of assault with intent
to commit the same sex offense, (3) the trial court erred by excluding evidence that he
was not the source of epithelial cell DNA that was found on R.D.’s underwear, and
(4) the trial court violated his constitutional right to be personally present at critical stages
of the proceedings when it discussed limitations on his testimony. In a supplemental
brief, he also argues that Assembly Bill No. 518 (2021-2022 Reg. Sess.) retroactively
applies to his case and requires reversal of the judgment.
We affirm the judgment.
 I. BACKGROUND
A. The Information
On May 31, 2018, the Santa Clara County District Attorney filed an information
charging Record with assault with the intent to commit a specified sex crime during the
commission of a first degree burglary (Pen. Code, § 220, subd. (b); count 1),1 sexual
penetration by force (§ 289, subd. (a)(1); count 2), kidnapping to commit a sexual offense
(§ 209, subd. (b)(1); count 3), and criminal threats (§ 422; count 4). As to counts 1 and 2,
it was alleged that Record personally inflicted great bodily injury (§§ 12022.8, 1203,
subd. (e)(3)). And as to count 2, it was alleged that Record committed the offense during
the commission of a burglary with the intent to commit a sexual offense within the
meaning of the “One Strike” law (§ 667.61, subds. (a) & (d)).
B. The Prosecution’s Case
1. The Offense
R.D., a middle school teacher, lived alone in an apartment located in a two-story
complex in Sunnyvale. Her approximately 650-square foot unit was on the top floor,
accessible by an exterior staircase. Her front door opened onto the living room, which
was adjacent to the kitchen. Her bedroom, to the rear of the unit, had a window
overlooking the two-story drop to the ground. The distance from R.D.’s living room
couch to her bedroom was approximately five to eight feet. R.D. knew the couple who
lived in an adjacent two-story unit that shared a wall with her bedroom, but she was
unfamiliar with the rest of the complex’s tenants.
On October 10, 2017, R.D. fell asleep on her living room couch while watching
television. Her living room blinds were closed, though movement and light within the

1
Unspecified statutory references are to the Penal Code.

2
apartment could be detected from outside at certain angles. She was wearing a shirt,
underwear, and a FitBit.
According to R.D.’s FitBit, it was 11:49 p.m. when she fell asleep and 5:37 a.m.
the next morning when she awoke. On waking, she noticed that everything was dark; the
television and lights were off, but she could see “a figure rushing” toward her. The
intruder sat on her midsection and pressed something—possibly a pillow and a sweater—
over her face. The pressure was great enough to make R.D. feel like her throat was
closed and she could not breathe. She turned her head to the right and tried to scream,
“Motherfucker, stop. Asshole, stop.” Her assailant replied, “Shut up. Shut up or I’ll kill
you.”
R.D. reached up with her left arm and tried to scratch her assailant. She felt what
seemed like a Bluetooth device around his neck and tried to click its buttons. R.D. felt
herself being lifted from behind, and she could no longer touch the ground. The man had
his arm around her throat and was moving her away from the couch. R.D. tried to claw
behind her and at the man’s arm to get back onto the ground.
R.D. could tell that her assailant was moving her toward her bedroom, which made
her “[m]ore afraid.” To keep him from putting her face-down on the bed, she started
pushing against the bed with her arms and legs. She urinated on herself during the
struggle and told the man that she had urinated, but he did not let go of her. R.D. could
feel her shin and leg scrape the metal edge of the bed frame. Her attacker’s arm still
around her throat, R.D. asked to go clean up.
R.D. then felt the man’s hand go under the bottom of her shirt and into her
underwear. Crouched over the edge of her bed, with her attacker right behind her, R.D.
felt the man’s finger go “inside of [her].” In a surge of energy, R.D. pushed off the bed,
ending up on the floor. The man straddled her chest, and she felt more material over her
face, smothering her and forcing her face to one side. R.D. twisted her lower body and

3
tried to buck the man off her. As she tried to call for help, her attacker punched her in the
ribs, and she heard him tell her to “shut up.”
Still trying to shout, R.D. lost consciousness. When she came to, she was still on
the floor with the man still straddling her, but her body had been rotated so her head was
now in the direction of the rear window. She had no knowledge of how long she had
been out. R.D. screamed for help. At R.D.’s scream, the man ran out of the apartment.
2. The Police Investigation
a. At the Scene
When officers arrived about 6:00 a.m., R.D. was crying, her voice seemed raspy
and hoarse, and her face looked swollen. R.D. told officers that her assailant was a “large
man” wearing a Bluetooth device, a dark hooded sweatshirt, and jeans with a belt or
something “really tight.” She thought that the man might have been Hispanic based on
his accent, but she had never been able to make out his face. R.D. reported that she had
scratched her assailant.
In a canvass of R.D.’s neighbors, police spoke with a tenant in apartment 4—the
unit sharing a wall with R.D.’s bedroom—who reported hearing someone in a hurry to
leave and a car starting at around 5:30 or 5:45 a.m.
Around 6:26 a.m., an officer saw Record walking along the driver’s side of a car
toward the stairwell in the parking garage. Record had a cut or scratch on his face. He
also had a shirt in his hand. Record told the officer that he had just left for his job as an
electrician but returned on realizing he had forgotten his work uniform. While being
questioned, Record became increasingly nervous and appeared eager to leave. Record
initially said the cut on his face was from shaving. But Record had a five o’clock shadow
and did not look like he had shaved that morning. Record then attributed the cut to him
“scrubbing” his face really hard in the shower that morning. When asked earlier for a

4
detailed timeline of his activities since the night before, however, Record omitted the fact
that he had taken a shower.
In Record’s car, officers found a gray sweatshirt and a pair of jeans with a
Bluetooth headset and charger in the pocket. Police never found a hoodie, but the gray
sweatshirt had a large black collar.
R.D. was unable to identify Record and had never seen him around the apartment
complex before.
b. Record’s Post-Arrest Statements
Interviewed at the police station post-arrest, Record said that a call or text from his
wife woke him shortly before 6:00 a.m. and that he left for work shortly after waking.
From the parking garage, he saw that R.D.’s door was open, so he went up to her
apartment to tell her about her door.
Record said “hello” or knocked before he went inside. It was dark inside the
apartment, and Record saw R.D. sleeping on the couch. When he approached her, R.D.
woke up and became hysterical. Record tried to restrain her and told her to shut up.
Record said that he picked her up from behind with his arm around her throat and
dragged her into her bedroom.
Record initially said that he pushed her into her bedroom, locked the door, and
left. He later said that R.D. continued to fight and struggle with him, but that at one point
R.D. stopped struggling and calmed down, to the point that Record became concerned.
Once satisfied that R.D. was still breathing, however, Record started to leave. He then
decided to go back to her, but she “woke up” and started to yell again. R.D. held onto
him to prevent him from leaving.
Record said that he told R.D. to be quiet, fled the apartment, went down the street,
and got into his car. He then drove around to a stoplight. He decided to go back to the

5
apartment so he could tell R.D. that everything was just a misunderstanding. Record
denied that he touched R.D. in a sexual way.
Record was adamant that in R.D.’s apartment he had been wearing the same
clothes—white shirt, blue sweatpants, and flip-flops—that he had been wearing when
officers first stopped him; he also told officers that he had been wearing the blue uniform
shirt that he had in his hand when first contacted by the officers.
3. SART Examination and DNA Evidence
Nurse Linda Richards, an expert in the collection and preservation of sexual
assault evidence, conducted R.D.’s Sexual Assault Response Team (SART) examination.
Richards noted a red spot with a darker red spot in the center on R.D.’s perihymenal
tissue. Richards then applied toluidine blue gel and reexamined R.D. with a colposcope.
During this examination, Richards saw an abrasion from the bottom of the vaginal
opening, near the posterior fourchette, on the labia minora and the perihymenal tissue.
She also saw an abrasion in the anal area. Richards opined that these injuries were
consistent with penetration.
R.D. indicated in the examination that she had not had intercourse within
five days. R.D. had a Nuvaring birth control device that Richards did not take note of
during her initial exam. At trial, R.D. estimated that she had reinserted the Nuvaring
device a day before the attack. The Nuvaring itself is a “very smooth rubber or latex”
item; its insertion—using a thumb and forefinger to compress the ring then place it
around the cervix—would, in Richards’s view, involve “a different friction area” than the
location of R.D.’s injuries and was therefore unlikely to have caused them.
Results from forensic testing of R.D.’s vaginal and cervical swabs were
presumptively negative for the enzyme found in seminal fluid. Samples swabbed from
R.D.’s right nails and lips tested presumptively positive for blood.

6
 A DNA expert testified that analysis of R.D.’s vaginal swab was not performed,
because a vagina’s constant sloughing of cells makes the likelihood of detecting contact
DNA in a digital penetration case “very low.” Examining R.D.’s left finger swab for
“male specific only DNA,” the DNA expert found a mixture of at least five profiles, of
which the major Y-STR male profile matched Record’s profile at 16 locations. The rest
of R.D.’s swabs came back as a mixture of DNA, but little conclusion could be drawn
from the analysis.
The DNA expert also examined a sweatshirt found inside R.D.’s apartment that
officers thought may have been used to smother R.D. One stain on the sweatshirt tested
positive for blood, but little could be concluded from the DNA analysis aside from a
finding that R.D. was a possible source of major DNA on the shirt collar, which had a
mixture of DNA from two individuals. The front waistband and interior front of R.D.’s
underwear had a mixture of DNA from at least two individuals—a major contributor
matching R.D. and at least one male minor contributor, but the low levels of minor DNA
precluded further conclusions. Urine, however, could wash away DNA.
C. The Defense Case
1. Record’s Testimony
Record and his sister, A.R., moved into apartment number 2 of R.D.’s complex in
April 2017. Record had moved to Sunnyvale from San Diego because he thought his
earning potential in Northern California would be higher. His wife and two daughters did
not move with him because Record wanted to finish his vocational program first and get
settled. Record was proficient in electronics and mechanics and had previously been in
the United States Navy. After his move, he started working as the staff electrician for a
recycling company.
Record would typically wake up around 5:00 to 5:30 a.m., take a shower, and
leave for work by 6:30 a.m.

7
 The morning of October 11, 2017, Record walked to his car in the parking garage
and saw that R.D.’s door was open. When it continued to remain open as Record tidied
the interior of his car, he became concerned and went up to R.D.’s apartment, leaving his
keys and wallet in his car. Record said hello one or two times when he got to the front
door but heard no response. The lights were off, but he could see a hand on the couch
inside the apartment.
Thinking something might be wrong, Record went to the front of the couch and
leaned over. The person on the couch, R.D., moved. Record tapped on the couch, and
R.D. moved again and had a look of fear on her face. Record then made “a stupid
decision” to tap again on the couch, and R.D. woke up, opening her eyes. She then
“stretched her hands towards [Record’s] face like a cat.” Record tried to move his hands
out to indicate that he was not going to hurt her, but R.D. started to hit him.
Because R.D. was hitting him, Record tried to restrain her and told her to stop.
Record put his hands on her but never grabbed R.D. by the neck or tried to choke her.
Record just wanted to push R.D. into her bedroom so he could get some space to find one
of his sandals, which he had lost during his altercation with R.D., and then leave. R.D.
tried to grab Record’s genitals, so he pushed her and walked out of the bedroom.
Record looked for his sandal in the living room. When he went back to the
bedroom, he saw R.D. on the floor holding something. She said she was going to kill
him and started walking towards him. Record left to avoid further confrontation.
After leaving R.D.’s apartment, Record stood on the stairs for about a minute to
see if R.D. would come out. Feeling bad about what had happened, he wanted to explain
himself. He went downstairs and paced, but R.D. still did not come out. Record then left
in his car, but upset, he decided while at a stoplight to return to the apartment complex.
On his return, Record saw that there were officers everywhere. Suspecting the
officers were there because of what had happened with R.D., he felt nervous and

8
frustrated with himself. He initially wanted to go talk to his sister but decided to take
responsibility for his actions, so he walked back toward his car, where an officer
approached him.
Record, however, did not initially tell the truth about what happened, because he
was embarrassed and was feeling “really stupid.” After he was arrested and taken to the
police station, he realized that the officers mistakenly thought that he had done something
“sexual” to R.D. because they took a penile swab.
Record did not enter the apartment with the intent to rape R.D., and the last time
he had seen her in the complex was several months before the incident.
2. Record’s Sister
Record’s sister, A.R., was a nurse at a nearby hospital. The siblings were raised
by their grandparents in Panama “on a very strict Christian background.” Record was
living with A.R. and her two sons while his wife and his two daughters were in Mexico.
Record typically woke up around 5:00 a.m. and left for work between 5:30 and 6:00 a.m.
The night before R.D. was attacked, A.R. had the flu, which kept her awake
coughing. She got up in the middle of the night at around 4:00 or 4:30 a.m. to take
medication. At that time, she heard Record snoring in the other room. After taking
medication, A.R. stayed up reading. Around 5:30 a.m. or 6:00 a.m., A.R. heard Record
get ready in the morning and leave. Although A.R. initially told officers she heard
Record leave around 6:20 or 6:25 a.m., she was in “severe shock and trauma” at the time.
3. Forensic Evidence
Nurse practitioner Nicole Yadon testified as an expert in forensic SART nurse
examinations, findings, and opinions. Yadon disagreed with Richard’s finding that there
was a red spot on the perihymenal tissue based off the photographs from R.D.’s SART
exam. Yadon also disagreed with the finding that there was an abrasion near the
posterior fourchette area.

9
 According to Yadon, a red spot on the perihymenal area could be the result of
various factors ranging from poor hygiene, wearing a menstrual pad, or general friction
from walking or moving or wearing tight clothing. Yadon opined that insertion of R.D.’s
Nuvaring could produce a red spot and an abrasion in the vaginal area.
D. The Prosecution’s Rebuttal
1. SART Program Coordinator
Kim Walker was the program coordinator for the Sexual Assault Forensic Exam
Team at Santa Clara Valley Medical Center and testified as an expert in the collection
and preservation of sexual assault evidence and in determining whether a patient’s
injuries are consistent with her history of sexual assault. Walker reviewed photographs
and injury findings from R.D.’s SART exam. Based on her review of the photographs,
Walker confirmed the injuries Richards had noted.
Walker could not tell whether the abrasion injury to the labia minora would be
consistent with the digital penetration R.D. had described but noted that R.D.’s reported
loss of consciousness prevented R.D. from giving a comprehensive account of what
happened. Walker also noted that due to the breadth of the abrasion near the posterior
fourchette, she would expect that the object that abraded the area would be “a little bit
bigger and a little bit rougher than a finger.” Walker theorized that the abrasion could
have been caused by two fingers. Walker opined that the abrasion would not be
consistent with R.D.’s voluntary insertion of a Nuvaring or tampon: “there would not be
this level of abrasion, because there would be pain associated with it, and I don’t imagine
someone would be using an object that would create pain like that.” The red spot,
however, could be consistent with many things—including blunt force trauma or hygiene,
or a personal physical characteristic.

10
 2. Nuvaring Expert
Dr. Eileen Schneider, a family medicine doctor, saw R.D. as her patient.
Schneider testified as an expert in the Nuvaring and types of injuries or lack thereof that
the device can cause. According to Schneider, it is “highly, highly, highly unlikely” that
a Nuvaring could cause an abrasion at the posterior fourchette. Schneider opined that an
abrasion is caused by a scraping motion by something that is kind of rough, but the
Nuvaring is “very, very smooth.” It is possible to not even touch the posterior fourchette
when inserting a Nuvaring. She had never seen any of her patients who have been
prescribed a Nuvaring have an abrasion at the posterior fourchette area.
E. The Verdict and Sentencing
On April 16, 2019, the jury returned a verdict. As to count 1, the jury found
Record not guilty of assault with the intent to commit sexual penetration by force while
committing first degree burglary (count 1; §220, subd. (b)) and not guilty of the lesser
included offense of assault with intent to commit sexual penetration (§ 220, subd. (a)) but
guilty of the lesser included offenses of first degree burglary (§§ 450, 460) and simple
assault (§ 240). As to count 2, the jury found Record guilty of sexual penetration by
force (§ 289, subd. (a)(1); count 2) and found true the allegations that he inflicted great
bodily injury (§ 289, subd. (a)(1)) and that he committed the charged offense while
committing a first degree burglary (§ 667.61, subds. (a) & (d)). As to count 3, the jury
found Record not guilty of kidnapping to commit sexual penetration (§ 209, subd. (b)(1);
count 3) but guilty of the lesser included offense of simple kidnapping (§ 207, subd. (a)).
And finally, the jury found Record not guilty of criminal threats (§ 422; count 4).
On March 13, 2020, the trial court sentenced Record to 25 years to life for sexual
penetration by force in the commission of a first degree burglary (count 2) under the One
Strike law (§ 667.61, subds. (a) & (d)) and five years for the allegation that he had
inflicted great bodily injury. The trial court also imposed a concurrent six-month

11
sentence for misdemeanor assault and stayed the sentences for kidnapping (five years)
and burglary (four years) under section 654.
II. DISCUSSION
A. Sufficiency of the Evidence
Record argues there is insufficient evidence to support his conviction for simple
kidnapping (§ 207, subd. (a)) because R.D. was moved a distance of only five to eight
feet, from the living room couch to her bedroom, and the movement actually increased
his likelihood of detection as her bedroom wall was shared with a neighbor’s kitchen. In
reviewing a claim of sufficiency of the evidence, we must determine “ ‘ “whether, after
viewing the evidence in the light most favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime beyond a reasonable doubt.” ’ ”
(People v. Young (2005) 34 Cal.4th 1149, 1175.) “We presume in support of the
judgment the existence of every fact the trier of fact reasonably could infer from the
evidence. [Citation.] If the circumstances reasonably justify the trier of fact’s findings,
reversal of the judgment is not warranted simply because the circumstances might also
reasonably be reconciled with a contrary finding. [Citation.] A reviewing court neither
reweighs evidence nor reevaluates a witness's credibility. [Citation.]” (People v.
Lindberg (2008) 45 Cal.4th 1, 27.)
1. Legal Principles
Under section 207, subdivision (a), “[e]very person who forcibly, or by any other
means of instilling fear, steals or takes, or holds, detains, or arrests any person in this
state, and carries the person into another country, state, or county, or into another part of
the same county, is guilty of kidnapping.” Thus, “[t]he prosecution must prove that the
defendant unlawfully moved the victim by the use of physical force or fear, without the
person’s consent, and the movement was for a substantial distance (the asportation
element).” (People v. Williams (2017) 7 Cal.App.5th 644, 670 (Williams).)

12
 “For simple (rather than aggravated) kidnapping, the jury is to ‘ “consider the
totality of the circumstances,” ’ not simply distance, in deciding whether the movement
was substantial.” ’ ” (Williams, supra, 7 Cal.App.5th at pp. 670.) In People v. Martinez
(1999) 20 Cal.4th 225 (Martinez), overruled on a different point as stated in People v.
Fontenot (2019) 8 Cal.5th 57, 70, our high court described some of the contextual factors
that may be considered when determining whether a movement is substantial. For
example, “in a case where the evidence permitted, the jury might properly consider not
only the actual distance the victim is moved, but also such factors as whether that
movement increased the risk of harm above that which existed prior to the asportation,
decreased the likelihood of detection, and increased both the danger inherent in a victim’s
foreseeable attempts to escape and the attacker’s enhanced opportunity to commit
additional crimes.” (Martinez, supra, at p. 237, fn. omitted.)
Additionally, if there is an associated crime—a criminal act that the defendant
intends to commit where the defendant also moves the victim by force or fear against his
or her will—the jury should be instructed to consider whether the distance the victim was
moved was incidental to the associated crime. (People v. Bell (2009) 179 Cal.App.4th
428, 439; People v. Perkins (2016) 5 Cal.App.5th 454, 466 (Perkins).)
The Martinez court acknowledged that “[t]he asportation requirement for simple
kidnapping has historically been less clear” than that of aggravated kidnapping.
(Martinez, supra, 20 Cal.4th 225, 233.) Unlike a conviction for aggravated kidnapping,
asportation for simple kidnapping does not require an increase in harm so long as the
victim was moved a “substantial distance.” (Williams, supra, 7 Cal.App.5th at p. 671.)
And in contrast to aggravated kidnapping, in a case involving simple kidnapping, a jury
may convict a defendant without finding an increase in harm, “or any other contextual
factors”—“the jury need only find that the victim was moved a distance that was

13
‘substantial in character.’ ” (Martinez, supra, 20 Cal.4th at p. 237.) In other words, no
single contextual factor controls.
Martinez did not purport to set forth a minimum threshold for distance, but our
high court did state that “contextual factors, whether singly or in combination, will not
suffice to establish asportation if the movement is only a very short distance.” (Martinez,
supra, 20 Cal.4th at p. 237.) Martinez, however, did not quantify what constitutes a
“very short” distance. And following Martinez, multiple courts have upheld kidnapping
convictions where a victim was moved only a minimal distance, especially where the
movement changes the victim’s environment—for example, going from the inside of a
house to the outside, or going from a place of public view to the interior of an apartment.
(See People v. Nieto (2021) 62 Cal.App.5th 188, 200 [sufficient evidence of asportation
where minor victim was lured from inside of house to outside even though no actual
distance was proven]; People v. Arias (2011) 193 Cal.App.4th 1428, 1435 [sufficient
evidence of asportation when defendant moved victim approximately 15 feet from
outside of apartment to the apartment’s interior].)
2. Analysis
Record argues that his movement of R.D. was not of a “substantial distance” as is
required for a conviction of simple kidnapping. He points out that the distance from the
living room couch to the bedroom was short, approximately five to eight feet. Moreover,
R.D. testified that the door from the bedroom to the living room remained open during
the entirety of the assault. And due to the configuration of R.D.’s apartment complex,
R.D.’s closest neighbors’ kitchen shared a wall with her bedroom. Thus, Record argues
that his movement of R.D. from the living room to the bedroom arguably increased his
risk of detection because he was, effectively, moving R.D. to an area where she was more
likely to be heard. Moreover, he insists that given Record’s size, it was unlikely that the

14
physically smaller R.D. would have been able to escape from whatever room he moved
her to within the confines of the apartment.
Record’s argument, in essence, asks us to reweigh the evidence and override the
jury’s apparent reliance on contrary evidence in the record. We agree that the distance
between the living room couch and the bedroom was apparently short, but absent a
minimum required distance, we are unable to disregard contextual factors present in the
trial record. Viewed in the light most favorable to the judgment, the evidence supports
the jury’s conclusion that the movement was not merely incidental to the underlying
sexual penetration offense. In People v. Shadden (2001) 93 Cal.App.4th 164, for
example, the Second District found sufficient evidence to support even aggravated
kidnapping in the defendant’s movement of the victim from the front of a store to a back
room—a distance of nine feet—in part because the movement was not merely incidental
to the rape: “ ‘a rape . . . does not necessarily require movement to complete the crime.’
[Citation.] Where a defendant drags a victim to another place, and then attempts a rape,
the jury may reasonably infer that the movement was neither part of nor necessary to the
rape.” (Id. at p. 169.) Record’s movement of R.D. from the living room to her bedroom
prior to the sexual penetration is not materially distinguishable.
Critically, the jury had ample evidence from which to determine that Record’s
movement of R.D. was itself violent, thereby increasing the risk of physical harm to her
beyond either nonphysical coercion or the force inherent in forcible sexual penetration.
(See People v. Griffin (2004) 33 Cal.4th 1015, 1028 [reversing court of appeal for
requiring force “ ‘substantially different from or substantially greater’ ” than force needed
to accomplish intercourse with victim against her will]; see also People v. McCann
(2019) 41 Cal.App.5th 149, 157 [applying Griffin to forcible sexual penetration].) That
R.D. was physically outmatched by Record in terms of height and weight is not, as
Record argues, a factor that would support our finding the movement here insubstantial

15
as a matter of law: Record himself confirmed that R.D was tenacious in her physical
resistance to his presence in the apartment and that he therefore moved her into the
bedroom “to get some space.” The jury could have reasonably inferred that moving R.D.
into another room deeper in the apartment decreased her likelihood of escape, if only by
limiting her avenues for escape to the breadth of the bedroom doorway.
The jury could have also reasonably found that the movement into the bedroom
increased the risk of psychological harm to R.D. (See, e.g., People v. Leavel (2012) 203
Cal.App.4th 823, 834 [increased risk of harm to victim can include psychological harm];
see also CALCRIM No. 1215 [risk of harm also includes psychological harm].) Contrary
to Record’s representation in his reply brief, R.D. testified that she became “[m]ore
afraid” as Record carried her into the bedroom and that she became intent on resisting
Record’s efforts to put her on the bed. Drawing all inferences in favor of the judgment,
as we must, we construe R.D.’s testimony about her increased fear and redoubled
resistance as reflecting an intensified desperation as the movement to her bedroom
presaged a more intimate violation to come, in a more intimate space.
Record analogizes his case to Perkins, supra, 5 Cal.App.5th 454, which we find
factually distinguishable.2 In Perkins, the defendant sodomized the 11-year-old victim in
the apartment’s bathroom then ordered her to move to the bedroom—a distance of 10 to
30 feet—where he resumed the sexual assault. (Id. at pp. 459, 470.) The Third District
concluded there was insufficient evidence to support both the kidnapping enhancements
and aggravated kidnapping enhancements. (Id. at p. 471.) There was no evidence that

2
Record also relies on In re Crumpton (1973) 9 Cal.3d 463 (Crumpton) and
People v. Williams (1970) 2 Cal.3d 894; both cases are distinguishable, however, in that
the high court in each analyzed the sufficiency of the evidence for aggravated
kidnapping, which noted above requires an increase in a risk of harm. (Crumpton, supra,
at p. 465 [defendant was convicted of aggravated kidnapping under section 209]; People
v. Williams, supra, at p. 899 [same].)

16
the manner of movement increased the risk of harm or decreased the likelihood of
detection.3 (Id. at p. 470.) There was also no evidence that the movement of the victim
increased the danger in the victim’s foreseeable escape as the defendant’s “significant
size” rendered it unlikely that the 11-year-old victim could have fled from either location;
nor was there evidence that moving the victim enhanced the defendant’s opportunity to
commit additional crimes as the defendant could have committed whatever crime he
wanted in both rooms. (Ibid.) In other words, there were no contextual factors in Perkins
that supported a finding that the movement was substantial in character, unlike here.
Thus, considering the totality of the circumstances, we conclude that a reasonable
jury could find that Record moved R.D. a substantial distance. (Williams, supra, 7
Cal.App.5th at p. 670. In reaching our conclusion, we are mindful that our review is for
substantial evidence, and we must affirm even if a reasonable trier of fact could have
reached a different result. (See People v. Jason K. (2010) 188 Cal.App.4th 1545, 1553.)
B. Inconsistent Verdicts
Next, Record argues that the jury’s verdict is fatally inconsistent because the jury
acquitted him of assault with the intent to commit sexual penetration during a burglary
(§ 220, subd. (b)) but found him guilty of sexual penetration by force (§§ 289, subd.
(a)(1)) and found true the allegations that Record had inflicted great bodily injury
(§ 12022.8) and had committed the charged offense while committing a first degree
burglary (§ 667.61, subds. (a) & (d)).
Preliminarily, we observe that the two verdicts are not necessarily inconsistent.
The jury acquitted Record of violating section 220, subdivision (b), which states that
“[a]ny person who, in the commission of the burglary of the first degree . . . assaults

3
Although R.D.’s closest neighbors shared a wall with her bedroom, the jury had
little basis to infer that Record was aware of this feature.

17
another with the intent to commit rape, sodomy, oral copulation, or any violation of
Section 264.1, 288, or 289 shall be punished . . . .” Yet the jury found Record guilty of
sexual penetration by force under section 289, subdivision (a)(1), which states that “[a]ny
person who commits an act of sexual penetration when the act is accomplished against
the victim’s will by means of force, violence, duress, menace, or fear of immediate and
unlawful bodily injury on [the person] shall be punished by imprisonment in the state
prison . . . .” The jury also found true the enhancement that the offense was committed
“during the commission of a burglary of the first degree” under the One Strike law.
(§ 667.61, subd. (d)(4).)
The two crimes do not have identical elements, nor is one necessarily included
within the other, whether as a matter of law or on these facts. A violation of section 220,
subdivision (b) requires an intent to commit a sexual penetration but not necessarily the
act of sexual penetration, whereas forcible sexual penetration committed during a
burglary does not require an antecedent assault. The jury could have concluded that
Record did not initially assault R.D. with the intent to commit sexual penetration and
only later formed the requisite intent to commit a sexual penetration after he had already
assaulted R.D. in the living room and had dragged her into the bedroom.
Moreover, we conclude that even if we assume that the verdicts are inconsistent,
reversal is not required. Section 954 provides in pertinent part: “An accusatory pleading
may charge . . . different statements of the same offense . . . under separate counts . . . .
An acquittal of one or more counts shall not be deemed an acquittal of any other count.”
Thus, for example, “ ‘if an acquittal of one count is factually irreconcilable with a
conviction on another, or if a not true finding of an enhancement allegation is
inconsistent with a conviction of the substantive offense, effect is given to both.’ ”
(People v. Avila (2006) 38 Cal.4th 491, 600 (Avila).)

18
 Accordingly, as a general rule, inconsistent verdicts are permitted if the guilty
verdicts are supported by substantial evidence. (People v. Lewis (2001) 25 Cal.4th 610,
655-656 (Lewis); People v. Bell (2020) 48 Cal.App.5th 1, 9-10.) “Although ‘ “error,” in
the sense that the jury has not followed the court’s instructions, most certainly has
occurred’ in such situations, ‘it is unclear whose ox has been gored.’ [Citation.] It is
possible that the jury arrived at the inconsistent conclusion through ‘mistake,
compromise, or lenity.’ [Citation.] Thus, if a defendant is given the benefit of an
acquittal on the count on which he was acquitted, ‘it is neither irrational nor illogical’ to
require him to accept the burden of conviction on the count on which the jury convicted.”
(Avila, supra, 38 Cal.4th at p. 600.)
There is a limited exception precluding inconsistent verdicts in conspiracy cases,
which was established by our high court in In re Johnston (1935) 3 Cal.2d 32 (Johnston).
In Johnston, the defendants were convicted of conspiracy to violate certain provisions of
the Corporate Securities Act but were acquitted of the actual overt acts. (Johnston,
supra, 3 Cal.2d at pp. 33-34.) Johnston noted that the principal question before the court
was: “[D]o the acquittals on the thirteen counts charging the defendants with the specific
crimes of violating the Corporate Securities Act amount to special findings that the
defendants did not commit the overt acts alleged in the count charging conspiracy?” (Id.
at pp. 34-35.) Johnston held that if the answer was yes, “it must follow by reason of the
specific controlling the general, that the court was without jurisdiction to pronounce a
judgment of conviction on that count.” (Id. at p. 35)
Record, however, relies on People v. Hamilton (1978) 80 Cal.App.3d 124
(Hamilton), overruled on a different point as stated in People v. Flood (1998) 18 Cal.4th
470, and argues that a broader exception to section 954’s general rule prohibits
inconsistent verdicts “ ‘where all of the essential elements of which the crime of which
the defendant was acquitted are identical to some or all of the essential elements of the

19
crime of which he was convicted, and proof of the crime of which the defendant was
acquitted is necessary to sustain a conviction of the crime of which the defendant was
found guilty.’ ” (Id. at p. 130.) Record argues that Hamilton noted that the exception to
the general rule concerning inconsistent verdicts “occurs, for example, where a
conspiracy count alleges as the only overt act a crime set forth specifically in another
count, and the defendant is found not guilty of the specific crime, but is found guilty of
conspiracy; such an inconsistency invalidates the conspiracy conviction.” (Id. at p. 130,
italics added.) In other words, Record reads Hamilton as applying the Johnston
exception to nonconspiracy cases.
Yet this broad language in Hamilton has since been questioned by other courts.
(See People v. Pahl (1991) 226 Cal.App.3d 1651 (Pahl).) The language in Hamilton
upon which Record relies is derived from Johnston, but Johnston itself limited its
application to conspiracy cases. (Pahl, supra, at p. 1658; Johnston, supra, 3 Cal.2d at
p. 36, italics added [“we cannot construe [section 954] to mean that an indictment or
information charging conspiracy is sufficient” without an allegation of an overt act or
when a defendant has been acquitted of all overt acts].) Hamilton accurately describes
the conspiracy exception, “but it generalizes as if the exception applies to all crimes.
Because it does not, [the language in Hamilton] is inaccurate and misleading.” (Pahl,
supra, at p. 1660.) Moreover, the language that Record relies on in Hamilton is dicta;
Hamilton did not apply Johnston’s limited judicial exception to the case at bench—the
Hamilton court ultimately declined to apply any exception as two charged offenses were
not identical. (Hamilton, supra, 80 Cal.App.3d at pp. 130-131.)
Finally, Record claims that there are several post-Johnston cases that have applied
the exception described in Johnston to non-conspiracy cases. Yet none of the cases that
Record cites—affirmances all— support his position, as those courts ultimately
concluded that the offenses at issue were either not identical or were not necessary to

20
sustain a conviction for the other offense. (People v. Hickman (1939) 31 Cal.App.2d 4,
11-12 [defendant’s offenses of grand theft and attempt to commit grand theft were not
identical]; People v. Federico (1981) 127 Cal.App.3d 20, 31-33 [allegation that the
defendant was armed with a firearm was not necessary to support conviction for murder];
People v. Amick (1942) 20 Cal.2d 247, 254 [verdicts acquitting the defendant of
manslaughter but finding him guilty of negligent homicide was permissible as the crimes
were not identical under section 954].)
Moreover, accepting Record’s position would nullify section 954 and run counter
to recent California Supreme Court decisions that have upheld inconsistent verdicts. For
example, in Avila, our high court concluded that the jury’s acquittal of the defendant on
the charge of rape did not entitle him to have stricken the jury’s true finding on the rape-
murder special circumstance. (Avila, supra, 38 Cal.4th 491, 600.) As noted in Avila, “a
‘criminal defendant already is afforded protection against jury irrationality or error by the
independent review of the sufficiency of the evidence undertaken by the trial and
appellate courts . . . . [No] further safeguards against jury irrationality are necessary.’ ”
(Avila, supra, 38 Cal.4th 491, 601, quoting United States v. Powell (1984) 469 U.S. 57,
67.)
Here, Record does not challenge the sufficiency of the evidence that he committed
forcible sexual penetration during a burglary. And upon our review, we are satisfied that
there is sufficient evidence—particularly given R.D.’s extensive testimony—to uphold
his conviction on this count. (See Lewis, supra, 25 Cal.4th at pp. 655-656.; People v.
Duncan (2008) 160 Cal.App.4th 1014, 1018 [testimony of one witness can constitute
substantial evidence].) For these reasons, we conclude that no inconsistency in Record’s
verdicts warrants reversal of his convictions.

21
C. Exclusion of Epithelial Skin Cell Evidence
Record argues that the trial court prejudicially erred by excluding evidence that he
was excluded as a contributor of epithelial skin cells found in a cutting from the crotch of
R.D.’s underwear. Record argues that the exclusion of the evidence violated his
constitutional right to present a defense. Although we question the relevance on this
record of epithelial skin cells of an unidentified male under Evidence Code section 782,
we assume without deciding that the trial court erred by excluding testimony that Record
was excluded as a contributor of any DNA found in the one cutting. We conclude,
however, that any error was harmless.
1. Background
Before trial, Record filed a motion under Evidence Code section 782 seeking to
introduce evidence of R.D.’s prior sexual conduct—that Craig Lee, the DNA expert who
analyzed cuttings from the underwear that R.D. wore during the attack, had found sperm
from an unknown male on the underwear. Defense counsel argued that the evidence was
relevant because the SART exam findings of the red spot could also be consistent with
consensual digital penetration or some other sexual act.
At the hearing on the motion, Lee testified that a five millimeter by five millimeter
cutting from the interior crotch of R.D.’s underwear was analyzed in the laboratory.
Because the analyst who selected the cutting did not testify, no evidence was presented as
to how the location of the cutting from the interior crotch panel was selected. Present on
the cutting were more than 10 sperm cells that did not match Record’s DNA. Also found
were a smaller number of epithelial cells from at least two individuals including R.D. and
an unidentified male. Record was excluded as a contributor of the epithelial cells.
According to Lee, the sperm cells could have survived even if R.D. had washed
the underwear prior to testing. “[T]here’s no actual timeframe” for how long sperm cells
may last, and they can last “years even, if the underwear is kept in certain conditions.”

22
Epithelial cells do not last as long as sperm cells, but epithelial cells can still survive a
washing. When asked if epithelial cells would last one or two weeks, assuming the
underwear was not laundered, Lee answered that the cells could last, depending on the
conditions the underwear was kept in.
The following day, defense counsel argued that he wanted to admit “all the
scientific findings” made by Lee. Defense counsel argued that the presence of sperm on
R.D.’s underwear raised doubts as to the credibility of R.D.’s denial of recent sexual
intercourse and could support an alternative explanation for findings made by Richards
about the injuries she saw during the SART exam. Defense counsel argued that
excluding the evidence would violate Record’s Sixth Amendment right to confront his
accuser and his due process right to present a defense.
After considering the parties’ arguments, the trial court excluded “evidence of
the . . . sperm [and] epithelial cells,” and further excluded questioning R.D. about her
sexual history. The following day, the trial court reaffirmed its earlier ruling and further
reasoned under Evidence Code section 352 “that [the evidence] was unrelated to the
charged crimes; it would be prone to cause confusion; and it will lead the jury to consider
irrelevant evidence; and thus, lead to speculation and will add significant time to
introduce the lab results.” The trial court also denied under Evidence Code section 352
the defense request to generally present a “sanitized version” of the evidence that Record
had been excluded as a source of “unlabeled deposits” on R.D.’s underwear because
presenting the evidence in generic from “would immediately circle back to what that
evidence is, epithelial cells and the sperm cells, whose is it, and why is it there.”
2. Legal Principles and Standard of Review
“Except as otherwise provided by statute, all relevant evidence is admissible.”
(Evid. Code, § 351.) Under California’s rape shield law, however, “[e]vidence of the
sexual conduct of a complaining witness is admissible in a prosecution for a sex-related

23
offense only under very strict conditions,” and it is not admissible for certain purposes,
such as to prove the victim’s consent. (People v. Fontana (2010) 49 Cal.4th 351, 362
(Fontana); Evid. Code, § 1103, subd. (c).) Such evidence may be admissible “when
offered to attack the credibility of the complaining witness and when presented in
accordance with the procedures under [Evidence Code] section 782.” (Fontana, supra, at
p. 362.)
Evidence that is otherwise relevant and admissible may nonetheless be excluded
under Evidence Code section 352 if “its probative value is substantially outweighed by
the probability that its admission will (a) necessitate undue consumption of time or (b)
creates substantial danger of undue prejudice, of confusing the issues, or of misleading
the jury.”
On appeal, we review the trial court’s decision on the admissibility of evidence
under Evidence Code sections 352 and 782 for an abuse of discretion. (People v.
Gonzalez (2021) 12 Cal.5th 367, 408; People v. Bautista (2008) 163 Cal.App.4th 762,
782.)
3. Analysis
On appeal, Record no longer argues that the trial court erred by excluding
evidence of the sperm cells, that the presence of male DNA was relevant to the credibility
of R.D.’s account of her prior sexual history, or that the presence of DNA from another
male offers an alternative explanation for R.D.’s injuries. Rather, he argues that the trial
court erred by excluding evidence of (1) male epithelial cell DNA present on the cutting
from the crotch of R.D.’s underwear and (2) Record’s exclusion as the contributor of that
DNA, as the evidence was exculpatory, critical to his defense, and not prohibited by
Evidence Code section 782.4 As a threshold matter, to the extent Record still appears to

4
The Attorney General argues that Record has forfeited this argument as it was
not raised below to the trial court. (See Evid. Code, § 354, subd. (a).) We disagree—
24
argue that the presence of another man’s DNA in R.D.’s underwear was relevant and
admissible to show that Record never touched her underwear, he is mistaken. Traces of
R.D.’s consensual sexual contact at a remote point in time5 had no tendency in reason to
prove or disprove the allegations against Record. What nonetheless remained relevant,
however, was that Record’s DNA was absent from the cutting, irrespective of whether
anyone else’s DNA was also present. Assuming for argument’s sake that the trial court
erred by excluding testimony that R.D. was excluded as a contributor of any DNA found
in this underwear cutting, we nevertheless conclude that any error was harmless.
Record argues that the error deprived him of his constitutional right to present a
defense, requiring application of the harmless-beyond-a-reasonable-doubt standard
articulated in Chapman v. California (1967) 386 U.S. 18 (Chapman). “[C]ompletely
excluding evidence of an accused’s defense” infringes an accused’s due process right to
present a defense, but “excluding defense evidence on a minor or subsidiary point” does
not. (People v. Fudge (1994) 7 Cal.4th 1075, 1103 (Fudge).) “As a general matter, the
‘[a]pplication of the ordinary rules of evidence . . . does not impermissibly infringe on a
defendant’s right to present a defense.’ ” (Id. at pp. 1102-1103.) In such cases, prejudice
is evaluated by the standard of review articulated in People v. Watson (1956) 46 Cal.2d
818, 836 (Watson)—that is, reversal is required if it is reasonably probable that the

although defense counsel initially sought admission of the evidence under Evidence Code
section 782, he later attempted to clarify whether he would be prohibited from “even
generically” eliciting that the laboratory had examined cells from the crotch of R.D.’s
underwear and had determined that Record was excluded as a contributor of the DNA
found. Defense counsel’s statements adequately apprised the trial court of “[t]he
substance, purpose, and relevance of the excluded evidence.” (Evid. Code, § 354,
subd. (a).)
5
R.D. testified that she last had a sexual encounter had been a few months before
the assault.

25
defendant would have received a more favorable verdict in the absence of error. (Fudge,
supra, at p. 1103.)
In this case, the trial court’s refusal to admit the fact that Record was excluded as a
contributor of DNA in the cutting did not completely exclude evidence of Record’s
defense. Other evidence supported Record’s assertion that he did not digitally penetrate
R.D.—as his counsel argued to the jury, the prosecution was unable to match Record to
any DNA found on R.D.’s underwear, and Record was able to present the testimony of
his expert, Yadon, who disputed Richards’ findings and opinions as to the red spot and
the abrasion in the SART examination. Accordingly, we do not consider the failure to
admit sanitized testimony to the effect that Record was positively excluded as a
contributor of DNA on a particular cutting to have completely precluded Record’s
defense. (See Fudge, supra, 7 Cal.4th at p. 1103.) Thus, we examine prejudice under the
standard of state of law error under Watson, supra, 46 Cal.2d at page 836.
And under Watson, we conclude that it is not reasonably probable that in the
absence of error, Record would have received a more favorable verdict. The probative
value of Record’s exclusion from the epithelial DNA evidence was limited by the
relatively miniscule portion sampled. The record is silent as to how this particular cutting
from the crotch was selected for testing, or as to the likelihood that the fleeting digital
penetration R.D. described would have resulted in the presence of the perpetrator’s
epithelial cells in this particular sector of underwear that at the time of the offense would
have been freshly wet with urine, which Lee testified could wash away DNA.
Accordingly, on this record, we are unable to conclude that Record’s exclusion from the
cutting would have been particularly probative.
In contrast, there was ample evidence from which the jury, if properly presented
with the absence of Record’s DNA on this cutting, would nonetheless be able to find
Record’s guilt. There was no dispute that it was Record who entered R.D.’s apartment,

26
grabbed her and forced her into her bedroom in a struggle that resulted in her temporary
loss of consciousness. At issue was whether Record’s intention was sexual and whether
he penetrated R.D.’s vagina with his finger. Although Yadon contested the SART
findings of injury, Walker concurred in Richards’ findings of an abrasion and a red spot,
consistent with R.D.’s unequivocal testimony.6 Both Walker and Schneider disputed
Yadon’s Nuvaring theory for an abrasion Yadon opined did not exist. And although R.D.
was unaware of what happened when she was unconscious, she was unequivocal in her
testimony regarding her resistance and the sexual penetration before that loss of
consciousness. Record, equally unequivocal in his trial testimony, had made a number of
prior inconsistent statements to law enforcement, including an admittedly false denial of
any contact with R.D., from which the jury was entitled to infer his consciousness of
guilt. We are therefore unable to conclude that Record has demonstrated a reasonable
probability of a more favorable result, absent the assumed error.
Record nonetheless asserts that the prosecutor amplified the prejudicial effect of
the exclusion of the evidence by arguing in closing, “The lack of DNA. They’re saying
the lack of DNA on her underwear . . . creates reasonable doubt. We know that she had
male DNA on her shirt, on her underwear, other places on her body, but it was too low of
a level for them to actually compare to the defendant.” But the prosecutor also added,
“[H]is DNA isn’t on her underwear . . . Don’t be thrown off by that.”
It is not apparent how this argument would have prejudiced Record. The
prosecutor correctly summarized the evidence that was admitted in the first part of the
quoted argument: there was male DNA found on R.D.’s shirt and on the waistband of her

6
Although Walker opined that due to the breadth of the abrasion near the posterior
fourchette, she could expect that the object that abraded the area would be “a little bit
bigger and a little bit rougher than a finger.” Walker, however, opined that the abrasion
could have been caused by two fingers.

27
underwear, but the low level of DNA precluded any meaningful conclusions. The second
part of the prosecutor’s statement—that Record’s DNA was not on R.D.’s underwear—
was in fact consistent with the evidence Record asserts was erroneously excluded: in
other words, the prosecutor did not impermissibly argue a fact that she knew to be untrue
when she asserted that Record’s DNA was not found on the underwear. (See, e.g.,
People v. Daggett (1990) 225 Cal.App.3d 751, 757-758 [prosecutor may not ask “jurors
to draw an inference that they might not have drawn if they had heard . . . evidence the
judge had excluded”].) Taken in context, the prosecutor’s argument was that the absence
of identifiable DNA profiles on R.D.’s clothing did not detract from the credibility of
R.D.’s account or enhance the credibility of Record’s.
Record’s reliance on the length of deliberations here as an indicator of prejudice is
similarly unavailing. To be sure, the jury deliberations persisted for 18 hours over the
course of four days, the jury asked a number of questions, and the jury requested
readback of R.D.’s testimony. But the duration of the jury’s deliberation could also be
attributed to the jury’s consideration of other issues—for example, the asportation
element of count 1, or the difference between counts 2 and 3. None of the jury questions
specifically targeted the issue of whether Record sexually penetrated R.D. or any aspect
of the forensic analysis; rather, a number of the questions related to the jury’s technical
difficulties with DVD players and laptop speakers. We cannot conclude based solely on
the length of the jury deliberations that the jury found the evidence of the sexual
penetration to be a close issue.
For these reasons, it is not reasonably probable that in the absence of the assumed
error, Record would have received a more favorable verdict. (Watson, supra, 46 Cal.2d
at p. 836.)

28
D. Right to be Present at Critical Proceedings
Record next argues that the trial court violated his constitutional right to be present
at a critical stage of the proceedings when it discussed limitations on his testimony in
chambers outside his presence. We conclude that Record has not demonstrated that his
presence at the chambers conference would have contributed to the fairness of the
proceeding.
1. Background
Before trial, the prosecutor moved in limine to admit evidence of Record’s prior
alleged sexual misconduct in Mexico. In response, defense counsel moved to exclude
any reference to Record’s prior arrests or convictions from Mexico.
In March 2019, Record was present during a hearing held on various in limine
motions, where his prior criminal record was discussed. At the time, the prosecutor
represented that Record had a prior conviction for rape in Mexico. Defense counsel
argued that there was no record that Record had been convicted of a crime and that his
information was that the result of a three-person appellate review in Mexico had led to
Record’s release. According to defense counsel, the Department of Justice (DOJ) had
indicated that it would take several weeks to receive more information about Record’s
prior conviction. The prosecutor countered that Record had a conviction but that she was
waiting to receive documentation about why the appellate court in Mexico later
overturned the conviction. The prosecutor argued that a district attorney investigator in
San Diego had provided a Spanish copy of Record’s criminal history that showed that he
had served time in prison for rape and weapons charges. The trial court preliminarily
decided to preclude any mention of Record’s prior conviction until further notice.
During trial, the prosecutor did not seek to introduce evidence of Record’s prior
convictions during his case-in-chief. However, when Record’s sister, A.R., testified that
Record was a compassionate, caring person raised as a Christian to help others, the trial

29
court and counsel had an unreported sidebar about Record’s prior convictions, which the
trial court later memorialized on the record in Record’s presence.7 On the record, the
trial court stated that the prosecutor had asked to approach for permission to ask A.R. if
she knew of the allegations that Record had raped two women at knifepoint in Mexico.
The trial court, however, ruled that the evidence would not be admissible “unless and
until we had all the information which the [DOJ]’s office was supposed to be working on
and translating which so far has not come to fruition.”
The prosecutor made a further record and stated that she had had received four
certified DOJ reports but was still waiting on the certified conviction from the DOJ. The
records, which were in Spanish, disclosed that there were four separate instances where
Record was the subject of a sexual assault investigation: these included a criminal
investigation in 2011 where his vehicle was linked to an alleged rape or sexual abuse and
another sexual assault investigation in 2008 where a victim was pulled off the street,
kidnapped, and raped. The prosecutor argued that if Record testified and “open[ed] the
door” to the evidence by claiming that he would never hurt anyone, she should be
permitted to examine him regarding his alleged prior acts.
Although defense counsel argued that the DOJ reports were inadmissible hearsay,
counsel also stated, “[I]t is not my intention to have my client say he has not suffered a
conviction or an arrest. I’m not going to ask him that question. He’s already on tape
before the jury where he said, I would not rape; I have not raped; I’m not that kind of
guy.”
The trial court stated that it had not been presented with the particular evidence of
the sexual assault but also that it had not precluded the evidence pending the additional

7
It is unclear whether this unreported sidebar is the meeting in chambers that
Record takes issue with. However, there is no dispute that the meeting in chambers at
issue here took place before Record testified on behalf of his own defense.
30
paperwork. The trial court thereafter reiterated that the prosecutor should not mention the
prior convictions, but she could request a sidebar if she believed that Record had opened
the door to elicit the evidence by his testimony. Record made no comments on the record
during the court and counsel’s discussions of his prior convictions and subsequently
proceeded to testify on behalf of his own defense.
In a first hearing on Record’s posttrial Marsden8 motion, defense counsel recalled
a discussion in chambers outside Record’s presence about the scope of his testimony and
impeachment. Defense counsel represented that the trial court had indicated to counsel at
the time that “it would not be fair and proper for Mr. Record to say, specifically ‘I have
no criminal record,’ ” when we knew there was something lingering from Mexico.”
Defense counsel later stated, “[Y]ou asked me to go advise him that he’s not to say
anything about a record in Mexico, which strategically I wouldn’t have done anyway.”
The trial court clarified: “[T]he gist of it was that although the prosecution was unable to
prove the prior, they had a good faith basis to ask the question if Mr. Record said he had
no criminal activity in his past. She was positing that she would be allowed to say, ‘Well,
didn’t you rape two women in Mexico?’ We were attempting to not go down that road,
one, because it couldn’t be proved and a negative couldn’t be proved.”
At a further posttrial hearing, Record again argued that the trial court had violated
his right to be present at critical stages of the trial when it held discussed his criminal
history outside his presence. Record argued he should not have been excluded from a
discussion about the scope of his testimony, as he was the person most knowledgeable
about his own criminal record.
Finally, during the sentencing hearing approximately a week later, the trial court
recounted that the prosecutor had represented that she had been trying to get the DOJ to

8
People v. Marsden (1970) 2 Cal.3d 118.
31
authenticate certain records from Mexico. The trial court, however, indicated that
defense counsel had at the time represented that he had been provided a copy from
Record’s prior attorney of “a dismissal or something of that nature” related to the Mexico
case. Nonetheless, the trial court stated that had Record testified that he did not have any
criminal record, the court would “most likely have allowed the DA to present evidence of
those rapes.”
Defense counsel confirmed that Record was indeed absent from a chambers
conference where the trial court discussed with counsel the nature of his testimony.
Following the discussion, defense counsel told Record that his examination was not
going to “make any mention of anything in Mexico or that he was a law-abiding citizen
because of the pending request by the People to get the [DOJ] to give them a complete
file from Mexico.” Defense counsel stated: “The documents that were produced back at
the preliminary examination, of which the People had a copy of, was a translated Court
acquittal out of Tijuana of those charges. [The prosecutor] was not satisfied. She wanted
a more complete file.” Defense counsel also added: “I made my decision strategically at
trial perfectly clear. I did not want to litigate any facts about what happened in Mexico in
this Court. So I did everything I could to avoid any mention of it.”
2. Legal Principles
The Sixth Amendment of the United States Constitution and the California
Constitution both guarantee a defendant the right to be present at critical stages of the
criminal process. (Iowa v. Tovar (2004) 541 U.S. 77, 80-81; Cal. Const. art. 1, § 15.) A
defendant’s right to be present is also statutorily required under sections 977 and 1043.
However, “ ‘ “[n]either the state nor the federal Constitution, nor the statutory
requirements of sections 977 and 1043, require the defendant’s personal appearance at
proceedings where his presence bears no reasonable, substantial relation to his

32
opportunity to defend the charges against him.” ’ ” (People v. Blacksher (2011) 52
Cal.4th 769, 799.)
“[A] defendant’s right to be present depends on two conditions: (1) the
proceeding is critical to the outcome of the case, and (2) the defendant’s presence would
contribute to the fairness of the proceeding.” (People v. Perry (2006) 38 Cal.4th 302,
312 (Perry).) “Thus a defendant may ordinarily be excluded from conferences on
questions of law, even if those questions are critical to the outcome of the case, because
the defendant’s presence would not contribute to the fairness of the proceeding.
Examples include the exclusion of a defendant from a conference on the competency of
child witnesses [citation], a conference on whether to remove a juror [citation], and a
conference on jury instructions [citation.].” (Ibid.)
On appeal, we apply an independent or de novo standard of review to the trial
court’s exclusion of a defendant from trial or a part of trial. (Perry, supra, 38 Cal.4th at
p. 311.) “Erroneous exclusion of the defendant is not structural error that is reversible
per se, but trial error that is reversible only if the defendant proves prejudice.” (Id. at
p. 312.) We review a violation of a federal constitutional right for prejudice under
Chapman, supra, 386 U.S. 18, and must determine whether a defendant’s absence was
harmless beyond a reasonable doubt. (People v. Basler (2022) 80 Cal.App.5th 46, 59.)
3. Analysis
Based on the record before us, even if we assume that the trial court’s unreported
conference was a critical stage of the proceedings, Record has not demonstrated that his
presence would have contributed to the fairness of the proceedings. His argument to the
contrary depends on an incorrect factual implication that his counsel was unaware of the
disposition of Record’s Mexican criminal proceedings, and an incorrect legal assumption
that the Mexican adjudication entitled him to put his character at issue risk-free.

33
 As a factual matter, defense counsel, well before the unreported chambers
conference, was demonstrably aware that Record’s criminal charges in Mexico did not
ultimately result in a conviction. And neither on appeal nor in the trial court has Record
identified what additional facts he might have provided about the disposition of his
charges that were otherwise unknown to defense counsel. It was the prosecutor who
remained unconvinced by the available records and sought further confirmation from the
DOJ.
We note as well that defense counsel made clear that it was his tactical decision to
not elicit testimony to the effect that Record had no prior criminal history, not because
counsel doubted the favorable resolution of the charges in Mexico, but because counsel
did not want to “litigate any facts about what happened in Mexico.” Record may have
wanted to testify that he had no criminal convictions or “no criminal record,” but
“ ‘ “[w]hen a defendant chooses to be represented by professional counsel, that counsel is
‘captain of the ship’ and can make all but a few fundamental decisions for the defendant.”
’ ” (People v. Roldan (2005) 35 Cal.4th 646, 682, disapproved of on a different point as
stated in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; see People v. M.H. (2022)
81 Cal.App.5th 299, 307 [“fundamental rights include whether to plead guilty, to waive
the right to trial by jury, to waive the right to counsel, and to waive the right to be free
from self-incrimination”].)
Counsel’s tactical decision to avoid litigating any facts about Record’s criminal
record appear to reflect counsel’s recognition of the legal flaw in Record’s insistence that
the Mexican adjudication left him free to put his good character at issue without
consequence. In the initial Marsden hearing, Record asserted that he “had the right to tell
the jurors, ‘Hey. I have no criminal record. I have no conviction. Take that into
account.’ This is relevant evidence of my credibility, my character and intent.” Leaving
aside whether the disposition of Record’s arrests and prosecution constituted a “criminal

34
record” as distinct from a conviction, the absence of a conviction did not immunize him
from impeachment as to his credibility and—had he put them at issue—as to his law-
abiding, nonpredatory character. “A witness may be impeached with any prior conduct
involving moral turpitude whether or not it resulted in a felony conviction, subject to the
trial court’s exercise of discretion under Evidence Code section 352.” (People v. Clark
(2011) 52 Cal.4th 856, 931, fn. omitted.)9 If Record had in fact testified as he wished to,
the trial court would have had the discretion to permit the prosecution to cross-examine
Record about the original allegations underlying the Mexican arrests and prosecutions, if
satisfied the available records provided the prosecutor a basis to so inquire in good faith.
(People v. Pearson (2013) 56 Cal.4th 393, 434 [requiring only “a good faith basis for
asking the question”]; Evid. Code, §§ 773, subd. (a) [witness may be cross-examined
“upon any matter within the scope of the direct examination”].) That Record would
surely have denied any culpability would not necessarily have dispelled the concerns of
experienced trial counsel as to the potential impact of such cross-examination on a jury
that had already heard Record in his post-arrest interview protesting, “What? I never
tried to do nothing like that. I’m not—I’m not that type of person; . . . [¶] I would never
do something like that.”
Furthermore, based on Record’s statements during the Marsden hearing and at
sentencing, the conference where he was excluded must have taken place sometime

9
Record notes that whether he had a prior criminal conviction was important to
the jury, as during deliberations, the jury asked whether Record “has been convicted of
any other crimes previously.” Yet the jury’s interest merely underscores why defense
counsel could reasonably have considered it wiser to rely on Record’s unimpeached prior
denial of a relevant history and to avoid any testimony as to Record’s criminal record.
Despite the disposition of Record’s sexual assault proceedings in Mexico, there remained
the possibility that the trial court would agree with the prosecutor that she had a good-
faith basis to question him in detail about alleged misconduct, either as impeachment or
as evidence under Evidence Code section 1108.

35
before he testified on his own behalf because Record claims that following the
conference, his attorney advised him not to testify that he had no criminal convictions.
Yet right before Record testified, the subject of his criminal convictions was discussed at
length by defense counsel, the prosecutor, and the trial court, and the reporter’s transcript
reflects that Record was present when the discussions took place. Record accordingly
had the opportunity to interject when the prosecutor stated that she was still waiting on a
certified conviction from Mexico from the DOJ, but he elected either to make no
comment or to limit any response to his attorney. Nor did Record make any comments
when the trial court stated that the prosecutor could request a sidebar if she believed that
Record had opened the door to elicit testimony about his prior convictions during his
testimony.
Thus, even assuming Record could have clarified that he had no prior convictions
at the unreported conference, he had an equal opportunity to raise his concerns to defense
counsel, the prosecutor, and the trial court during the subsequent proceeding where the
same issues were raised in his presence.
Accordingly, we conclude that Record is unable to demonstrate that his presence
at the unreported conference would have contributed to the fairness of the proceedings.
(See Perry, supra, 38 Cal.4th at p. 312.) Moreover, for the same reasons—defense
counsel already knew of Record’s acquittal and further strategically chose not to make
any mention of Record’s criminal record, and Record had opportunities to raise his
concerns at other proceedings—we conclude that his absence at the unreported
conference is harmless beyond a reasonable doubt. (Chapman, supra, 386 U.S. at p. 23.)
E. Assembly Bill No. 518
In a supplemental brief, Record argues that remand for resentencing is required
under Assembly Bill No. 518, which recently amended section 654. We conclude that

36
remand for resentencing is not required because the trial court cannot stay sentences
imposed under the One Strike law (§ 667.61).
Here, Record was sentence to 25 years to life for sexual penetration by force
committed during a burglary under the One Strike law (§ 667.61, subds. (a), (d)). During
the sentencing hearing, the trial court also stayed the sentences for kidnapping, which we
have reversed, and burglary under section 654.
At the time Record was sentenced, section 654 provided that when an act or
omission was “punishable in different ways by different provisions of law,” the trial court
was required to punish the defendant “under the provision that provides for the longest
potential term of imprisonment.” (Former § 654, subd. (a).) Effective January 1, 2022,
section 654, subdivision (a) now “afford[s] sentencing courts the discretion to punish the
act or omission under either provision,” and the trial court is no longer required to impose
the longest term of imprisonment. (People v. Mani (2022) 74 Cal.App.5th 343, 351 [as
an ameliorative change in the law, amendments to section 654 apply retroactively to
cases not yet final on appeal].) “When a defendant is convicted of two offenses for
which section 654 prohibits multiple punishment (as is the case here), the trial court
imposes sentence for one of them, and then imposes and stays the sentence for the other
offense. [Citation.] A stay is a type of suspension.” (People v. Caparaz (2022) 80
Cal.App.5th 669, 689 (Caparaz).)
Record’s sentence of 25 years to life, however, is mandated by the One Strike law,
which provides: “Notwithstanding any other law, probation shall not be granted to, nor
shall the execution or imposition of sentence be suspended for, a person who is subject to
punishment under this section.” (§ 667.61, subd. (h).) Thus, under section 667.61,
subdivision (h), a trial court is not permitted to stay a sentence that was imposed under
the One Strike law. (Caparaz, supra, 80 Cal.App.5th at p. 689.) Rejecting the
defendant’s contention that section 667.61, subdivision (h) prohibited only a grant of

37
probation, the court in Caparaz reasoned, “this interpretation of section 667.61(h) renders
the phrase ‘nor shall the execution or imposition of sentence be suspended for’
meaningless, and ‘interpretations that render statutory terms meaningless as surplusage
are to be avoided’ [citation].” (Ibid.)
Record argues that the analysis in Caparaz is wrong because it relied on language
in People v. Santana (1986) 182 Cal.App.2d 185 defining a “stay” as a “temporary
suspension,” without appreciating the Santana court’s proviso that the trial court’s “stay”
of a five-year enhancement alleged under section 667, subdivision (a) in that case had the
“functional effect” of striking the enhancement for all purposes. (Id. at pp. 190-191; see
also Caparaz, supra, 80 Cal.App.5th at p. 689.) Even if we did not find the textual
analysis of the statute in Caparaz to be dispositive, Record’s focus on Caparaz’s
treatment of Santana is unavailing. The trial court in Santana did not purport to act
under section 654 in staying the five-year enhancement there; rather, the Santana court
invoked former section 1385, which did not then permit a trial court to stay all or part of
a sentence. (Santana, supra, at p. 192.) A sentence that is stayed under section 654 is
not functionally equivalent to striking a sentence or enhancement precisely because it can
be resurrected if the related offense is somehow reversed. (See People v. Alford (2010)
180 Cal.App.4th 1463, 1469.)
There is therefore no need to remand the matter for resentencing.
III. DISPOSITION
The judgment is affirmed.

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 ____________________________
LIE, J.

WE CONCUR:

____________________________
GREENWOOD, P.J.

_____________________________
GROVER, J.

People v. Record
H048100