Filed 6/20/24 P. v. Boles CA2/7

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE,

Plaintiff and Respondent,

v.

MALCOLM TYRONE BOLES,

Defendant and Appellant.

 B315675

 (Los Angeles County

 Super. Ct. No. BA457318)

APPEAL from a judgment of the Superior Court of 

Los Angeles County, Lisa B. Lench, Judge. Affirmed in part, 

sentence vacated with directions.

Brad Kaiserman, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Senior 

Assistant Attorney General, Idan Ivri and David A. Wildman, 

Deputy Attorneys General, for Plaintiff and Respondent.

________________________
2

INTRODUCTION

A jury convicted Malcolm Tyrone Boles of human 

trafficking of a minor for a commercial sex act, several counts of 

sexual assault, and misdemeanor false imprisonment. Boles was 

tried with two codefendants. On appeal, Boles contends the trial 

court violated his right to confrontation by admitting a 

codefendant’s redacted testimonial statement without instructing 

the jury it could only use the statement against the codefendant 

or alternatively by not sufficiently redacting the statement. 

Boles also argues the judgment should be reversed for

instructional error regarding two charges: rape in concert and 

oral copulation in concert. He additionally contends the case 

should be remanded for resentencing under amended Penal Code 

section 1170, subdivision (b), and amended section 654.1

We conclude the admission of codefendant Kayla 

Middleton’s statements was harmless error given the 

overwhelming evidence of Boles’s guilt. Consistent with our 

ruling in People v. Middleton (2023) 91 Cal.App.5th 749

(Middleton), we determine there was no instructional error on the 

rape-in-concert charge. The People concede, and we agree, that 

the trial court erred in its instructions on oral copulation in 

concert, but we conclude the error was harmless beyond a 

reasonable doubt. We also conclude the case must be remanded 

for resentencing under amended section 1170, subdivision (b),

and amended section 654. Accordingly, we affirm Boles’s 

convictions, vacate the sentence, and remand for resentencing.

1 All undesignated statutory references are to the Penal Code 

unless otherwise noted. 
3

FACTUAL AND PROCEDURAL BACKGROUND

A. The Information

In February 2018 the People filed a 19-count information 

against Boles and codefendants Christopher Sangalang and 

Middleton, alleging the following charges against Boles: human 

trafficking of a minor through use of force, fear, and coercion, in 

violation of section 236.1, subdivision (c)(2) (count 3); forcible 

rape of a child over 14 years old in violation of section 261, 

subdivision (a)(2) (counts 4 and 6); forcible oral copulation in 

violation of former section 288a, subdivision (c)(2)(A) (now § 287, 

subd. (c)(2)(A)) (counts 5 and 7);

2 forcible rape and rape by foreign 

object of a child over 14 years old while acting in concert, in 

violation of section 264.1, subdivision (b)(2) (count 12); forcible 

oral copulation of a child over 14 years old while acting in 

concert, in violation of former section 288a, subdivision (d)(3)

(now § 287, subd. (d)(3)) (count 14); kidnapping in violation of 

section 207, subdivision (a) (count 16); and kidnapping to commit 

another crime in violation of section 209, subdivision (b)(1)

(count 19). The People additionally alleged the forcible rape and 

forcible oral copulation counts were committed by way of 

kidnapping, and Boles administered a controlled substance 

2 Former Penal Code section 288a was amended and 

renumbered as section 287 by Senate Bill No. 1494 (2017-2018 

Reg. Sess.), effective January 1, 2019 (Stats. 2018, ch. 423, § 49). 

The text was not substantively changed and the amendments do 

not affect our analysis. (See § 287, Stats. 2013, ch. 282, § 1.)
4

against the victim’s will within the meaning of section 667.61, 

subdivisions (a), (d), and (e).3

Boles pleaded not guilty to all charges. Boles, Middleton, 

and Sangalang were tried together but before separate juries: 

one jury for Boles and Middleton, and a separate jury for 

Sangalang.

B. Prosecution Evidence

1. Chelsea disappears with Sangalang and Middleton

The victim was Chelsea B., a 16-year-old girl.4 At 

approximately 3:45 p.m. on February 2, 2017 Chelsea’s mother 

dropped Chelsea off at a friend’s house to get her hair braided.

The mother planned to pick Chelsea up about four to five hours 

later. Chelsea’s mother described Chelsea as a “childlike” girl 

who required adult supervision and assistance with basic selfcare. She found it difficult to read social cues and to recognize 

unsafe situations.

Chelsea spent the appointment texting with Sangalang, 

whom she had met on Facebook and considered a potential 

boyfriend. Chelsea had told Sangalang she was 16. Chelsea had 

3 The kidnapping and administration of controlled substance

circumstances were alleged in the information as to Boles as to 

counts 4, 5, 6, 7, 12, and 14, but only charged to the jury as to 

counts 6, 7, and 12. Rape in concert was also alleged in the 

information as an additional circumstance as to Boles as to 

counts 4, 5, 6, 7, 12, and 14 but not charged to the jury.

4 We draw our statement of the evidence from the record, 

consistent with our previous summary of this trial in People v. 

Middleton, supra, 91 Cal.App.5th at pages 757 to 763.
5

also communicated with Boles on Facebook and told him she was 

16.

Sangalang told Chelsea he would pick her up to go to the 

mall and asked her for money to buy food. Sangalang had 

previously instructed Chelsea to pack extra clothes before the 

appointment because they would be going to a hotel together. 

Sangalang had also told her she could make a lot of money doing 

sex work and live a “rich, nice life” with lots of cars and a fancy 

house. Chelsea believed Sangalang was talking about just the 

two of them.

Before the hair appointment, she had met Sangalang in 

person twice. He had come to her bedroom window and had 

asked for money, and she had given him money and her ATM 

card. 

Near the end of the appointment, Sangalang showed up 

outside Brea Persley’s house, where Chelsea was having her hair 

braided. Sangalang was accompanied by Middleton, whom 

Chelsea had never met. Persley testified that she told Chelsea it 

was wrong to invite people over and that she was going to call 

Chelsea’s mother. Sangalang demanded Chelsea give him money 

and stated angrily, “Come on. Let’s go.” When Chelsea asked 

Sangalang who Middleton was, he told her Middleton was his 

“homegirl.” Later Sangalang told Chelsea that Middleton worked 

for him as his “ho” and “prostitute,” but in a police interview 

Middleton stated she did not have a pimp and worked alone for 

herself as a prostitute.

Chelsea told Persley she would be back later that night or 

the next day. Persley testified she went inside to get her phone, 

and while Persley was inside, Chelsea left with Sangalang and 

Middleton. Persley called Chelsea’s mother and reported what 
6

happened, and they both called the police to report Chelsea 

missing. Chelsea’s mother and Persley texted and called Chelsea 

repeatedly, but she did not respond. Chelsea’s mother testified 

she circled the neighborhood in her car then drove to the 

Compton sheriff’s station when she could not find Chelsea. The 

police and Chelsea’s mother went to Persley’s house, and they all 

searched for Chelsea until 3:00 a.m.

2. Chelsea is raped by Boles at Middleton’s apartment 

complex and instructed in street prostitution by the 

three codefendants and another individual

Chelsea testified that after she left Persley’s house, she 

followed Sangalang and Middleton to a van driven by 

Sangalang’s grandmother. Two little girls and Boles were also in 

the van. Sangalang yelled at her to get in and told her to sit in 

the back next to Boles. 

Boles began touching Chelsea persistently, wrapping his 

arm around her waist, pulling her close, squeezing her face, and 

grabbing her thigh and knee. She repeatedly moved Boles’s 

hands off her and told him “no, don’t touch me,” and to stop and 

get away. Boles told her to stop playing “hard to get” and said he 

had to “fix her attitude.” Sangalang moved into the back row on

her other side and grabbed her other thigh. Chelsea told 

Sangalang to stop. Chelsea heard Boles tell Sangalang that 

Chelsea was going to make them a lot of money.

They arrived at a shopping center, and Sangalang told 

Middleton to watch Chelsea in the van. Sangalang and Boles got 

out of the van, along with the grandmother and the little girls. 

After they left, Chelsea introduced herself to Middleton. She 

asked why Sangalang told Middleton to watch her; Middleton 
7

looked away and changed the subject. Chelsea told Middleton 

she was 16 years old. When the others returned, Boles continued 

to rub her thigh and ignored Chelsea’s requests to stop.

Sangalang’s grandmother dropped Sangalang, Chelsea, 

Middleton, and Boles near a gas station. Chelsea asked 

Middleton where they were going, but Middleton did not reply. 

Chelsea then asked Sangalang where they were going; he told 

her, “Don’t worry about it.” The group walked to a smoke shop 

then to the house of one of Sangalang’s friends, where they all 

smoked marijuana with some other people in a parked van.

Chelsea said she wanted to return to Persley’s house. 

Sangalang replied they were going to Middleton’s house first.

Before they left for Middleton’s house, a young woman named 

Perfection arrived who Sangalang said was going to fix Chelsea’s 

attitude. Sangalang instructed Chelsea to walk with Perfection 

and meet them at Middleton’s house later. Sangalang, Boles, and 

Middleton took Chelsea’s backpack, purse, and cell phone with 

them as they left, and told her she would get the items back later.

Middleton had spoken earlier with Chelsea about 

commercial sex work, instructing her what to charge and not to 

accept less than she was told. Middleton warned Chelsea if she 

did not make money Sangalang would get mad. Perfection also 

told Chelsea that Sangalang expected her to make money for him 

by having sex with men. Chelsea said she did not want to have 

sex for money, and Perfection said Sangalang would be angry and 

would hurt Chelsea if she refused. Perfection described what to 

charge for different sex acts and took Chelsea to walk an area 

called “the blade” in search of clients. One man offered them 

each $100 for sex, but Chelsea told Perfection she did not want to 

have sex. Perfection then called Sangalang, and he told Chelsea 
8

he would beat her unless she made money for him. Around 

11:00 p.m., a friend of Perfection’s picked them up and dropped 

Chelsea off at Middleton’s apartment complex.

Middleton met Chelsea at the entrance and took her to the 

complex’s laundry room where Boles and Sangalang were 

waiting. Chelsea’s phone was dead. She asked for a charger, but 

no one gave her one. She asked Middleton, Sangalang and Boles 

if she could use their phones to contact her mother, but they 

refused.

Middleton and Chelsea left to go across the street to a gas 

station to get snacks. Before Middleton and Chelsea left, 

Sangalang told Middleton to watch Chelsea so “no pimp [would] 

get [her],” and told Chelsea she could not tell men that she was 

16 because it was illegal for men to have sex with people under 

18. Men in the store flirted with Chelsea and Middleton, asking 

their names and ages, and Middleton and Chelsea stated they 

were 20 years old. Another man asked Chelsea for her name, 

age, and number. She did not respond, but Middleton told him to 

give Middleton his number and she would have Chelsea call him.

Middleton and Chelsea returned and rejoined Sangalang 

and Boles in the laundry room. They all smoked more marijuana, 

and Sangalang gave Chelsea a pill that made her feel dizzy and 

unable to walk. 

Middleton told Chelsea she had to lose her virginity with 

Boles or Sangalang. Chelsea told Middleton she was willing to 

have sex with Sangalang but not Boles. She also told Middleton 

she did not want to lose her virginity that night, but Middleton 

told her older guys did not want to have sex with a virgin. 

Chelsea told Middleton and Sangalang she did not want to have 

sex with Boles, but Sangalang told her she had to do it. 
9

Middleton told the police interviewer she knew Chelsea did not 

want to have sex with Boles.

Middleton and Sangalang left the laundry room and closed 

the door, leaving Chelsea alone with Boles. Chelsea told him, 

“Don’t touch me” and pushed him away. Boles rubbed her thighs, 

ripped her shorts, pushed her to the ground, and got on top of 

her. Chelsea screamed Middleton’s and Sangalang’s names 

loudly for help, but they remained outside. Boles got mad and 

roughly pulled down her shorts, scratching the side of her thighs 

and rubbing his penis on her leg. She pushed him off and ran out 

of the room, slamming the door shut. When Chelsea ran out, she 

was scared, angry and crying. She told Middleton and Sangalang 

that she could not have sex and wanted to go home.

Sangalang told Chelsea he would calm Boles down and tell 

him to go slow. Sangalang went into the laundry room. 

Middleton told Chelsea everything would be all right and 

Sangalang would talk with Boles. Sangalang came back and told 

Chelsea that Boles agreed to be gentle because it was her first 

time. Chelsea repeated she did not want to have sex with Boles.

Middleton and Sangalang walked Chelsea back into the 

laundry room and stayed in the room while Boles continued 

assaulting Chelsea over the following one to two hours. Boles 

yelled at Chelsea, took off her shirt and bra, and called her 

offensive names when she continued resisting. Sangalang came 

over and told Chelsea to relax. Boles took off his clothes and lay 

on top of Chelsea, pinning down her wrists. Boles shoved his 

fingers into her vagina. Chelsea repeatedly said he was hurting 

her and told him to stop, but he did not. When she looked toward 

Middleton and Sangalang for help, they were having sex with 

each other. Boles asked Sangalang for a condom, which 
10

Sangalang brought him. Boles put his penis in Chelsea’s vagina; 

she was crying in pain and told him repeatedly to stop and that it 

hurt. She tried to push him off but could not because his body 

was on top of hers. He got off her and took off the condom and 

said he was “[going] in raw.” She told him not to, but Boles 

laughed, lay on top of her, pinned her arms about her head, and 

put his penis in her again, telling her to relax and calling her a 

crybaby when she cried. Chelsea screamed Sangalang’s name 

and continued to try to push Boles off, telling him he was hurting 

her and to stop.

Boles demanded oral sex and tried to shove his penis in her 

mouth. Sangalang told Chelsea to relax her lips and open her 

mouth when she resisted. Boles put his penis in her mouth and 

told her to relax. Boles told her she had to call him and 

Sangalang “Daddy.” Chelsea refused, and Boles then choked her 

and threatened to put a gun to her head and shoot her. In her 

police interview, Middleton stated that Chelsea made a lot of 

noise and had repeatedly told Boles to stop, and that Middleton 

told Boles to leave Chelsea alone but he ignored her.

Chelsea screamed at the top of her lungs during the attack. 

Middleton told her to stay quiet because people in her apartment 

building would hear her and call the police. Sangalang and Boles 

also told Chelsea to stop screaming and shoved a towel in 

Chelsea’s mouth. Boles went back and forth between vaginally 

and orally copulating her for one or two hours. Boles finally 

ejaculated on Chelsea’s forehead then told her to wipe her face 

and get dressed. Boles told Middleton to stay with Chelsea, and 

Boles and Sangalang left the laundry room.
11

Middleton took Chelsea to her apartment and let her use 

the bathroom with the door open, saying she could not leave her 

alone. Chelsea was in too much pain to wipe herself and began 

crying when she saw she was bleeding. Middleton refused to let 

Chelsea shower, saying they had to hurry up to leave. Perfection 

then picked up Chelsea, Middleton, Sangalang, and Boles and left 

them near a fast food restaurant, where Sangalang gave them all 

pills that made Chelsea feel high and numb.

They then walked to a burger stand where Middleton 

instructed Chelsea how to conduct commercial sex work on the 

street. Middleton ordered food for herself and the two men but 

not for Chelsea; Sangalang told Chelsea they would feed her after 

she was done working. Middleton told Chelsea she should be 

able to make lots of money because many cars had been honking 

at her which meant they wanted to have sex with her. Middleton 

told Chelsea what to charge for different sex acts and that she 

was to give the money she earned to Sangalang and he would 

give some back to her. Middleton instructed Chelsea on types of 

men to avoid and told Chelsea not to go home with men but have 

them order a room close to Sangalang, Middleton, and Boles so 

they could pick her up. Middleton gave her condoms and told her 

to make sure she used them. Middleton told her if she did not 

have sex with men for money, Sangalang would hurt her.

Middleton directed Chelsea to work certain locations along 

Figueroa Street and Gage Avenue and to call Boles or Sangalang 

if there was any trouble. Middleton told her to avoid police and 

not talk to men who did not want to pay for sex. Boles told her to

walk slowly and pay attention to the cars. In her police 

interview, Middleton stated she told Chelsea to have sex with 

men for money and what to charge; however, Chelsea just walked 
12

and did not do anything she was instructed to do. Sangalang left, 

and Middleton and Chelsea went to Gage Avenue and walked 

together for a while with Boles behind them, then took a bus to 

Figueroa Street.

3. Chelsea is found the day after her disappearance

Around 3:00 a.m. on February 3, 2017 Chelsea’s mother 

published a missing person post on Facebook with a photo of 

Chelsea in the red plaid flannel shirt she was wearing when she 

went missing. Around 10:00 a.m., Chelsea’s mother received a 

phone call from a person who reported seeing Chelsea in the 

same shirt on 66th and Figueroa Streets. Chelsea’s father 

testified he drove to the area and a woman on the street told him 

she had seen a young lady in a red flannel shirt with two other 

people at a nearby convenience store. As he drove southbound 

past the store, Chelsea’s father saw Chelsea walking with 

Middleton and Boles, who were unfamiliar to him. He stopped 

his car and heard Middleton and Boles both command Chelsea to 

“[k]eep your fucking head down.” Chelsea’s father jumped out 

and yelled at Chelsea to get in the car while he chased Middleton 

and Boles, who fled.

Chelsea was crying. Her eyes were red, and her voice was 

shaking. She looked “like she was on something.” She said, “I’m 

sorry Daddy. I don’t know what happened; I was scared. I’m 

scared.”

Chelsea was taken to the hospital for a sexual assault 

examination. Chelsea’s underwear was torn, and she reported 

vaginal pain and pain in her back, hip, and neck. Chelsea had 

abrasions to her arms and legs and bruising to her legs. The 

opening of her vagina was torn, and her hymen was torn and 
13

bruised. The nurse practitioner was unable to use the speculum 

as Chelsea was in too much pain. Chelsea described being 

sexually assaulted by “Mac” on the laundry room floor, providing 

details consistent with those summarized above.

Swabs from Chelsea’s vulva, anus, and rectum tested 

positive for blood. Swabs from her right and left cheeks, mouth, 

right breast, left breast, chest, neck, vulva, anus, vagina, and 

back tested positive for semen. DNA tests of the semen samples 

matched Boles and excluded Sangalang. Chelsea reported she 

consumed marijuana and two pills. Chelsea’s urine sample 

showed the presence of marijuana, hydrocodone, hydromorphone, 

amphetamine, and methamphetamine.

C. Defense Evidence

Boles did not testify in his own defense and instead called 

several witnesses, seeking to impeach details of Chelsea’s 

testimony. The defense theory of the case was that Chelsea was 

a runaway who intentionally spent the day partying and doing 

drugs with the defendants, voluntarily made out with both Boles 

and Sangalang, voluntarily decided to have sex with Boles after 

Sangalang rebuffed her, and lied that Boles raped her. Defense 

counsel emphasized that there were various inconsistencies in 

her interview statements and testimony, that Chelsea never tried 

to run away from the defendants, that she had expressed interest 

in prostitution, and that she made a number of remarks to Boles 

and the other defendants that indicated consent to sex.

Forensic interview specialist Susy Flores of the Children’s 

Advocacy Center, who interviewed Chelsea in February 2017, 

testified that Chelsea told her Middleton and Sangalang could 

hear but not see her and Boles during the rape. Chelsea stated 
14

that during the rape she was screaming or yelling and that it 

hurt her. Chelsea further said she told Boles to “stop,” and that 

she was scared of Boles. She stated Boles pinned her down with 

his hand on her chest, told her to call him “Daddy,” and choked 

her when she refused. Chelsea did not tell Flores that Boles 

threatened to shoot her or to shove a pill in her mouth, nor that 

Boles repeatedly called her offensive names, nor that she could

not breathe, nor that her eyes rolled back when he choked her.

Chelsea told Flores that Boles previously put his hands on her

neck in the van and it made her laugh.

Chelsea told Flores when Chelsea and Boles first went into 

the laundry room, Boles put his hand on her throat and kept 

telling her to shut up, but she did not listen and “kept yelling at 

him saying stop it” and to get away and get off of her. Boles held 

her against the wall and kissed her neck as she kept trying to get 

away. Boles then pushed her to the ground, pulled his penis out, 

and told her to suck his penis. Chelsea kept moving her head to 

get away from Boles. Boles held her head and put his penis on 

her lips and told her to open her mouth, but she would not. 

Chelsea did not open her mouth, and kept getting up until he let 

her leave the laundry room.

Chelsea told Flores that when they returned to the laundry 

room that she was quiet and looked at Boles, “like, ‘Okay, cool, 

I’m gonna go with it.’” Chelsea then described being raped by 

Boles on the laundry room floor. After first having intercourse 

with her when they returned to the laundry room, Boles stopped 

and said he was going to slap her if she did not open her mouth. 

Chelsea complied and Boles inserted his penis into her mouth, 

told her to suck it, and that if she bit him he would slap her with 

his penis.
15

Of the entire incident, Chelsea stated to Flores, “I really 

don’t know but it was like I don’t know if it was sex or I don’t 

know if it was rape because I never been through it.” Chelsea 

stated to Flores there was a towel in her mouth during parts of 

the attack. Chelsea said she did not call her mother because she 

did not want her to know she was hanging out with friends, and 

she did not say she was kept from using her cell phone. Chelsea 

told Flores about Perfection, but not that she had come to “fix” 

Chelsea’s attitude.

Detective Sam Dang, who spoke with Chelsea at the station 

after she was found, testified she made no mention of any use or 

threats of firearms in their conversation about the incident, was 

unable to sit and stated her privates hurt, and told him she was 

uncomfortable speaking to him because he was a man.

Detective Cynthia Sanchez, who interviewed Chelsea after 

Detective Dang, testified Chelsea did not use the word “rape”; 

Chelsea said she lost her virginity and that it was rough and 

hard. Chelsea never mentioned being threatened with a gun, 

being repeatedly called offensive names, asking for a phone 

charger, any defendant taking her belongings, or any defendant 

choking her to the point where she could not breathe and her 

eyes rolled back.

Middleton’s father testified that on February 2 or 3, 2017, 

between midnight and 4:00 a.m., Middleton brought a friend 

inside their apartment to use the bathroom. At no time that 

night or any other night did he hear screaming or yelling around 

the laundry room or in the courtyard.
16

D. Jury Verdict, Motion for New Trial, and Sentencing

The jury convicted Boles of human trafficking of a minor for 

a commercial sex act by use of force or fear (count 3; § 236.1, 

subd. (c)(2)), forcible rape of a child over 14 years old (count 6; 

§ 261, subd. (a)(2)); forcible oral copulation (count 7; former 

§ 288a, subd. (c)(2)(A), now § 287, subd. (c)(2)(A)); forcible rape 

and rape by foreign object of a child over 14 years old while acting 

in concert (count 12; § 264.1, subd. (b)(2)); forcible oral copulation 

of a child over 14 years old while acting in concert (count 14; 

former § 288a, subd. (d)(3), now § 287, subd. (d)(3)); and the 

lesser included charge of misdemeanor false imprisonment 

(§ 237, subd. (a)) on count 16. On counts 6, 7, and 12, the jury 

found not true the allegations that the offenses were committed 

by way of kidnapping and that Boles administered a controlled 

substance against the victim’s will under section 667.61, 

subdivisions (a), (d), and (e). The jury acquitted Boles on counts 

4, 5, and 19.

On Boles’s motion for a new trial, the court ruled there was 

no significant evidence of force or fear on the human trafficking 

count and granted the motion for a new trial as to that allegation

only, and further ruled the allegation could not be tried in front of 

a jury again and that the court’s ruling was “more akin to finding 

the lesser included offense.” The court denied the motion as to 

the rest of the charges.

The court sentenced Boles to an aggregate prison term of 

21 years and eight months, consisting of the middle term of 

10 years for oral copulation in concert (count 14), as the base 

term; a consecutive term of two years and eight months (one 

third the middle term) for human trafficking of a minor (count 3); 

a consecutive term of the middle term of nine years for forcible 
17

rape (count 6); and a concurrent term of one year for false 

imprisonment (count 16).

The court also imposed the middle term of six years for 

forcible oral copulation (count 7) and the middle term of 

nine years for forcible rape and rape by foreign object (count 12), 

but those sentences were stayed pursuant to section 654. The 

court imposed fines and fees and credited Boles with 1,594 days

actual credit plus 239 days good time/work time for a total of 

1,833 days.

This timely appeal followed.

DISCUSSION

Boles argues the trial court violated his federal and state 

constitutional right to confrontation by admitting into evidence a 

statement from Middleton, further described below, without a 

limiting instruction. He also contends the trial court gave 

incorrect jury instructions regarding the rape in concert and oral 

copulation in concert charges. Boles further argues he is entitled 

to resentencing under amendments to sections 1170, 

subdivision (b), and 654. 

A. The Constitutional Right to Confrontation 

1. Governing law and standard of review

The confrontation clause of the Sixth Amendment, 

applicable to the states through the 14th Amendment, provides, 

“In all criminal prosecutions, the accused shall enjoy the right . . . 

to be confronted with the witnesses against him.” In Crawford v. 

Washington (2004) 541 U.S. 36, the United States Supreme Court 

held that the Sixth Amendment bars the introduction of a 
18

witness’s out-of-court “testimonial hearsay” statements at trial 

unless the witness is unavailable and the defendant has had an 

opportunity to cross-examine the witness. (Id. at pp. 68-69.) 

“Testimonial” out-of-court statements expressly include those 

elicited in the context of police interrogations. (Id. at p. 53, fn. 4

[noting a witness’s “recorded statement, knowingly given in 

responses to structured police questioning, qualifies under any 

conceivable definition” of interrogation]; accord, People v. Cage

(2007) 40 Cal.4th 965, 978.) 

If a statement is determined to be testimonial, we apply the 

de novo or independent standard of review to claims that 

implicate a defendant’s constitutional right to confrontation. (See 

People v. Sweeney (2009) 175 Cal.App.4th 210, 221; see also 

People v. Bunyard (2009) 45 Cal.4th 836, 850.) “‘“‘Confrontation 

clause violations are subject to federal harmless-error analysis 

under Chapman v. California (1967) 386 U.S. 18, 24 [Chapman].’ 

[Citation.] We ask whether it is clear beyond a reasonable doubt 

that a rational jury would have reached the same verdict absent 

the error.’”’” (People v. Bryant, Smith and Wheeler (2014) 

60 Cal.4th 335, 395; see People v. Perez (2018) 4 Cal.5th 421, 438 

[“[W]e evaluate federal constitutional error for harmlessness 

under the Chapman beyond a reasonable doubt standard, and 

state law error under the [People v.] Watson [(1956) 46 Cal.2d 

818] reasonably probable standard.”].)

Under the Aranda/Bruton rule, where two defendants are 

jointly tried before the same jury, a nontestifying codefendant’s 

extrajudicial statement that incriminates the other defendant is 

inadmissible as a violation of the latter’s rights to confrontation 

and cross-examination. (See People v. Aranda (1965) 63 Cal.2d 

518; Bruton v. United States (1968) 391 U.S. 123; see also 
19

People v. Capistrano (2014) 59 Cal.4th 830, 868-869 [“‘“Aranda

and Bruton stand for the proposition that a ‘nontestifying 

codefendant’s extrajudicial self-incriminating statement that 

inculpates the other defendant is generally unreliable and hence 

inadmissible as violative of that defendant’s right of 

confrontation and cross-examination, even if a limiting 

instruction is given.’”’”]

However, in Richardson v. Marsh (1987) 481 U.S. 200

(Richardson), the United States Supreme Court limited the scope 

of the Bruton rule, holding that in a joint trial where a 

codefendant’s confession does not incriminate the defendant on 

its face, only by implication, “the Confrontation Clause is not 

violated by the admission of a nontestifying codefendant’s 

confession with a proper limiting instruction when . . . the 

confession is redacted to eliminate not only the defendant’s name, 

but any reference to his or her existence.” (Id. at p. 211.) “‘The 

[Richardson] court explained that Bruton recognized a narrow 

exception to the general rule that juries are presumed to follow 

limiting instructions, and this narrow exception should not apply 

to confessions that are not incriminating on their face, but 

become so only when linked with other evidence introduced at 

trial. [Citation.] That is because, “[w]here the necessity of such 

linkage is involved, it is a less valid generalization that the jury 

will not likely obey the instruction to disregard the evidence.”’” 

(People v. Flinner (2020) 10 Cal.5th 686, 744.)

2. Middleton’s statement

Detective Sammy Cruz interviewed Middleton on

August 21, 2017, and the prosecution sought to introduce the 

recording and a transcript of Middleton’s statement into 
20

evidence. Middleton’s statement was redacted both to omit 

reference to Boles by name and to omit reference to the existence 

of an involved man or boy other than Sangalang in the laundry 

room, van, and other locations. Boles initially objected to the 

admission of the entirety of the interview because “all that was 

done essentially was to remove [Boles’s] name. It’s still 

incrimination. Everyone is going to know it’s him, so it’s the 

equivalent of saying, ‘You know who did this and that.’” 

Ultimately, the trial court and defense counsel reviewed the 

interview to determine if any statements violated Boles’s 

constitutional right to confront the witnesses against him under 

Bruton/Aranda, additional redactions were made, and the 

redacted interview was admitted.

5

After the interview had been redacted, Middleton’s 

attorney argued it was “improper opinion” and “irrelevant” to 

leave in Middleton’s statement that if she had been in the girl’s 

place in the laundry room, she “would feel like I’m being 

5 Although the People argue Boles waived his claim of 

Aranda/Bruton error by withdrawing his objection to the

admission of Middleton’s interview after redactions were made, 

the People also concede it was error to admit the interview 

without a limiting instruction stating that it could only be used 

as evidence against Middleton. Failure to timely and specifically 

object on confrontation clause grounds generally forfeits this 

argument. (See People v. Redd (2010) 48 Cal.4th 691, 730.) 

Under the circumstances, however, because the conceded error 

arguably affected the defendant’s substantial rights, we exercise 

our discretion to determine whether the error was harmless 

beyond a reasonable doubt. (§ 1259; People v. Smithey (1999) 

20 Cal.4th 936, 976, fn. 7; People v. Hudson (2006) 38 Cal.4th 

1002, 1011-1012.)
21

violated.” Boles’s attorney also objected to the introduction of 

this statement under Evidence Code section 352. The trial court 

overruled the objections.

The redacted interview was played for the jury with no 

limiting instruction in court or in the jury instructions that the 

statements could only be used against Middleton.

As presented to the jury, in her statement Middleton 

acknowledged having sex with Sangalang on one prior occasion in 

the laundry room and stated that a week after that they hung out

with another girl present but could not remember her name.

Middleton described Sangalang’s grandmother driving her and 

Sangalang in a van with some “little kids” to a house where 

Sangalang got out and got the girl, then they got food and then 

the grandmother dropped “me, Chris, and the girl” at a smoke 

shop.

After that they went to Middleton’s apartment building 

where they “went inside of the laundry mat [sic]” for “quite a few 

hours,” “at least like . . . 3, 4 hours.” She stated Sangalang “had 

sex with the other girl.” The girl told Middleton “she basically 

ran away from home.” Middleton recalled seeing the girl leave 

the laundry room, and when the girl returned, she seemed 

irritated. Middleton saw her crying. The girl exited the laundry

room a second time, and Middleton told the girl she did not want 

the girl going in and out because it might cause the security 

guard to say that they could not be in there. Middleton stated 

the girl was “unhappy” with being unable to leave the room.

Middleton stated that when she was in the laundry room,

she was a “cool distance” away and around a corner such that she 

could not see anyone else. She said that if she had been in the 

girl’s place in the laundry room, she “would feel like I’m being 
22

violated.” Middleton confirmed the girl had sex, and stated that 

although they were in the laundry room three to four hours, “the 

having sex thing, that was only like an hour.” The girl made a lot 

of noise in the laundry room, and Sangalang handed the girl 

something to put in her mouth so she would not make as much 

noise.

In the morning, the girl washed her face at Middleton’s

apartment, then they went to Western and Figueroa, where they

were “trying to put her down.” Middleton explained to the girl 

that she had “sex and stuff . . . with Johns . . . for money,” and 

how to walk and look in the cars. Middleton told the girl she 

herself charged $100, and Sangalang told the girl to charge at

least $80 or $100. Middleton told Detective Cruz that the girl 

was “gonna get beat up” if “she didn’t catch a date.” Eventually 

they took the bus to Figueroa and Manchester and walked down 

“to like 80th or 81st.” There, an older guy in his late 30s or early 

40s pulled up in a car and started screaming at them and told the 

girl to get in the car, Middleton ran away across the street, and 

the girl got in the car and left with the man.

3. The trial court erred by admitting Middleton’s 

statement without a limiting instruction, but the error 

was harmless beyond a reasonable doubt

The parties do not dispute that Middleton’s statements to 

the police were testimonial. Boles contends admission of 

Middleton’s testimonial statement violated his federal and state 

constitutional right to confront the witnesses against him. Boles 

alternatively argues Middleton’s interview should have been 

further redacted to remove Middleton’s statement that if she had 

been in the girl’s place in the laundry room, she “would feel like 
23

I’m being violated.” Boles argues that although he is not 

expressly named, the factual context strongly suggests Middleton 

is talking about Boles.

The People concede the trial court erred by admitting 

Middleton’s redacted interview without a limiting instruction 

stating it could only be used as evidence against Middleton. 

However, they argue the error was harmless beyond a reasonable 

doubt because Middleton’s statement did not mention Boles or 

Boles’s existence, and Chelsea gave “detailed and damning 

testimony” about Boles at trial.

We conclude that ample independent evidence supported 

Boles’s convictions of forcible rape, rape in concert, forcible oral 

copulation, oral copulation in concert, human trafficking for a 

commercial sex act, and false imprisonment. In this light, the 

admission of Middleton’s statement without a limiting 

instruction was harmless beyond a reasonable doubt. Nothing in

Middleton’s statement directly implicated Boles, whose 

involvement in the sexual assault and attempted commercial sex 

trafficking of Chelsea were proven by independent evidence. This 

evidence included Chelsea’s detailed testimony, her consistent

statements to law enforcement, medical providers and social 

workers, and medical examination and DNA analysis.

In addition to Chelsea’s testimony and statements, “there 

was incontrovertible evidence that sexual intercourse occurred.”

(People v. Vargas (2009) 178 Cal.App.4th 647, 663 [erroneous 

admission of nontestifying victim’s testimonial statement that 

sexual intercourse occurred harmless].) As in Vargas, “the 

vaginal swabs taken from [Chelsea] contained spermatozoa with 

[Boles’s] DNA profile. Moreover, [the nurse practitioner]

observed injuries to [Chelsea’s] genitalia consistent with blunt 
24

force trauma,” including that the opening of her vagina was torn, 

her hymen was torn and bruised, and she was in too much pain 

for the nurse practitioner to insert a speculum. (Ibid.) Swabs 

from Chelsea’s mouth and face also tested positive for semen, and 

DNA tests of the semen samples matched Boles and excluded 

Sangalang.

There was thus ample evidence, independent of Middleton’s 

statement, to support Boles’s convictions. (See People v. Flinner, 

supra, 10 Cal.5th at p. 747 [erroneous admission of separatelytried codefendant’s testimonial statement harmless beyond 

reasonable doubt where there was “ample evidence” of guilt, 

statement was cumulative of other evidence, and the admitted 

portions did not directly implicate defendant].) Any implication 

from Middleton’s statement that Boles violated Chelsea is at 

most cumulative of other evidence. 

It is clear beyond a reasonable doubt that a rational jury 

would have convicted Boles even in the absence of Middleton’s 

redacted statement. For that reason, and because the redacted

version of Middleton’s statement admitted at trial did not directly 

inculpate Boles, its admission was harmless beyond a reasonable 

doubt.

Because we conclude that any error here was harmless 

under Chapman, we need not separately consider Boles’s 

arguments of state law error, which would be reviewed under the 

less demanding standard of People v. Watson, supra, 46 Cal.2d 

818. (See People v. Bryant, Smith and Wheeler, supra, 60 Cal.4th 

at p. 395.)
25

B. Boles’s Claims of Instructional Error

1. Standard of review

“‘“[A] claim that a court failed to properly instruct on the 

applicable principles of law is reviewed de novo.”’” (Middleton, 

supra, 91 Cal.App.5th at p. 764; accord, People v. Dearborne

(2019) 34 Cal.App.5th 250, 260 (Dearborne).) “‘“‘It is settled that 

in criminal cases, even in the absence of a request, a trial court 

must instruct on general principles of law relevant to the issues 

raised by the evidence’” and “‘necessary for the jury’s 

understanding of the case.’”’” (People v. Molano (2019) 7 Cal.5th 

620, 667.)

2. The trial court did not err in its rape-in-concert 

instructions

As to Boles’s argument of instructional error on the rape-inconcert charge in count 12, we previously rejected this same 

argument from his codefendant Middleton. Boles does not 

address our published decision, nor does he provide any

persuasive reason to depart from our prior analysis. Accordingly, 

we rely on our analysis from Middleton.

Under section 264.1, subdivision (a), a defendant commits 

the crime of rape in concert “when the defendant, voluntarily 

acting in concert with another person, by force or violence and 

against the will of the victim, committed an act described in 

Section 261 . . . , either personally or by aiding and abetting the 

other person.” (Italics added.)

Section 261, subdivision (a)(2), provides in part: “(a) Rape 

is an act of sexual intercourse accomplished under any of the 

following circumstances: [¶] . . . [¶] (2) If it is accomplished 

against a person’s will by means of force, violence, duress, 
26

menace, or fear of immediate and unlawful bodily injury on the 

person or another.” (Italics added.)

The court instructed the jury on rape in concert using 

CALCRIM No. 1001, which provided in relevant part: “Boles is 

charged in Count Twelve . . . with committing rape by acting in 

concert in violation of Penal Code section 264.1. [¶] To prove 

that a defendant is guilty of this crime, the People must prove 

that: [¶] 1. The defendant personally committed forcible rape 

and voluntarily acted with someone else who aided and abetted 

its commission; [¶] OR [¶] 2. The defendant voluntarily aided 

and abetted someone else who personally committed forcible 

rape. [¶] To decide whether a defendant committed rape, please 

refer to the separate instruction that I have given you on that 

crime. . . . You must apply those instructions when you decide 

whether the People have proved rape in concert.”

The separate instruction regarding rape was based on 

CALCRIM No. 1000. It stated in relevant part:

“Defendant Malcolm Boles is charged in Counts Two and 

Four with rape by force in violation of Penal Code section 261(a). 

[¶] To prove that the defendant is guilty of this crime, the People 

must prove that: [¶] 1. The defendant had sexual intercourse 

with a female; [¶] 2. He and the female were not married to 

each other at the time of the intercourse; [¶] 3. The female did 

not consent to the intercourse; AND [¶] 4. The defendant 

accomplished the intercourse by force, violence, duress, menace, 

or fear of immediate and unlawful bodily injury to the female or 

to someone else. [¶] . . . .

“Intercourse is accomplished by force if a person uses 

enough physical force to overcome the female’s will.
27

“Duress means a direct or implied threat of force, violence, 

danger or retribution that would cause a reasonable person to do 

something that she would not do otherwise. When deciding 

whether the act was accomplished by duress, consider all the 

circumstances, including the female’s age and her relationship to 

the defendant.

“Retribution is a form of payback or revenge.

“Menace means a threat, statement, or act showing an 

intent to injure someone.

“Intercourse is accomplished by fear if the female is 

actually and reasonably afraid.”

Boles did not object to these instructions and did not ask 

for a clarifying instruction.

Boles argues that to convict him of rape in concert, the jury 

had to find he, as the personal perpetrator, raped Chelsea “‘by 

force or violence’”; rape by means of duress, menace or fear is not 

enough. Boles further argues that by directing the jury to 

CALCRIM No. 1000 to decide whether a defendant committed 

rape, the jury was improperly instructed that rape in concert 

could be based on a rape committed by means of duress, menace 

or fear. He contends this improperly lowered the burden of proof.

As noted, the jury was instructed that to convict Boles of 

rape in concert, it had to find he “personally committed forcible 

rape.” The jury would understand from this that it had to find 

rape by force. In Dearborne, supra, 34 Cal.App.5th at page 262, 

the court was faced with the same instructions used here and 

concluded there was no instructional error: “[T]he word ‘force’

does not have a technical legal meaning in this context, and is 

instead used in its ordinary sense. Accordingly, the court was 

only required to tell the jury that the rape had to be by force. It 
28

did so by telling the jury the rape had to be ‘forcible.’” (Ibid.) We 

reach the same conclusion here: There was no instructional 

error.

Further, as Dearborne and Middleton concluded, to the 

extent the use of CALCRIM No. 1000 rendered the rape-inconcert instruction “unclear or confusing,” Boles forfeited the 

argument by failing to object at trial. (See Dearborne, supra,

34 Cal.App.5th at p. 262 [“‘A trial court has no sua sponte duty to 

revise or improve upon an accurate statement of law without a 

request from counsel [citation], and failure to request clarification 

of an otherwise correct instruction forfeits the claim of error for 

purposes of appeal.’”]; accord, Middleton, supra, 91 Cal.App.5th 

at p. 772.) 

In any event, any instructional error would have been 

harmless beyond a reasonable doubt. Boles argues the jury was 

erroneously instructed it could convict him of rape in concert if it 

found he personally committed a rape by duress, menace, or fear 

as an alternative to finding he personally committed a rape by 

force or violence. Even assuming the jury was so instructed and 

even assuming such an instruction was erroneous, it is clear 

beyond a reasonable doubt the jury would still have found Boles 

guilty of rape in concert if it had been given only the “correct” 

instruction, which (according to Boles) would have limited the 

definition of rape by force to only rape by force or violence. (See 

Middleton, supra, 91 Cal.App.5th at p. 775.)

The evidence is overwhelming that the rape here was a 

rape by force; Boles does not meaningfully contest that point. In 

convicting Boles of rape in concert, the jury necessarily found 

that he, as the personal perpetrator of the rape, committed a rape 

by force. There is no evidence the rape was committed by any 
29

means other than force. (See In re Lopez, supra, 14 Cal.5th at 

p. 568 [In determining whether an alternate theory error is 

harmless under Chapman, supra, 386 U.S. 18, “a reviewing court 

may hold the error harmless where it would be impossible, based 

on the evidence, for a jury to make the findings reflected in its 

verdict without also making the findings that would support a 

valid theory of liability.”]; accord, Middleton, supra, 

91 Cal.App.5th at p. 775.)

3. The trial court erred in its instructions on oral 

copulation in concert, but the error was harmless

beyond a reasonable doubt

Boles was convicted of “oral copulation by acting in concert 

with force” upon a child victim 14 or older in violation of former 

section 288a, subdivision (d)(3) (now § 287, subdivision (d)(3)). 

Boles contends, and the People concede, that the court’s 

instructions erroneously allowed the jury to convict Boles on this 

count without making the necessary finding that the oral 

copulation was accomplished using force or fear.

The relevant statutory provision states in relevant part: 

“Any person who, while voluntarily acting in concert with 

another person, either personally or aiding and abetting that 

other person, commits an act of oral copulation upon a victim who 

is a minor 14 years of age or older, when the act is accomplished 

against the victim’s will by means of force or fear of immediate 

and unlawful bodily injury on the victim or another person, shall 

be punished by imprisonment in the state prison for 8, 10, or 12 

years.” (§ 287, subd. (d)(3), italics added.) 
30

The court instructed the jury on this count using CALCRIM 

No. 1016, which provided in relevant part: “Boles is charged in 

Count Fourteen with committing oral copulation by acting in 

concert in violation of Penal Code section 288a(d). [¶] To prove 

that a defendant is guilty of this crime, the People must prove 

that: [¶] 1. The defendant personally committed oral copulation

and voluntarily acted with someone else who aided and abetted 

its commission; [¶] OR [¶] 2. The defendant voluntarily aided 

and abetted someone else who personally committed oral

copulation. [¶] To decide whether a defendant committed oral 

copulation, please refer to the separate instruction that I have 

given you on that crime. . . . You must apply those instructions 

when you decide whether the People have proved oral copulation 

in concert.”

The separate instruction regarding oral copulation was 

based on CALCRIM No. 1015. Although this instruction 

described in full the crime of forcible oral copulation, it also 

internally defined “oral copulation” without reference to force, 

fear, or lack of consent. It stated in part: “Boles is charged in 

Counts Five and Seven with oral copulation by force in violation 

of Penal Code section 288a. [¶] To prove that the defendant is 

guilty of this crime, the People must prove that: [¶] 1. The 

defendant committed an act of oral copulation with someone else; 

[¶] 2. The other person did not consent to the act; [¶] AND 

[¶] 3. The defendant accomplished the act by force, violence, 

duress, menace, or fear of immediate and unlawful bodily injury 

to someone. [¶] Oral copulation is any contact, no matter how 

slight, between the mouth of one person and the sexual organ or 
31

anus of another person. Penetration is not required.”6 (Italics in 

original.)

Because the CALCRIM No. 1016 oral copulation in concert 

instruction itself contained no requirement that the oral 

copulation be accomplished by force or fear (unlike the rape-inconcert instruction, which stated the rape must be “forcible”), a 

jury could conclude that Boles was guilty of oral copulation in 

concert based on personally committing oral copulation as 

defined in CALCRIM No. 1015—i.e. “any contact, no matter how 

slight, between the mouth of one person and the sexual organ or 

anus of another person.”

This error, however, was harmless beyond a reasonable 

doubt. The evidence was overwhelming that the oral copulation 

here was accomplished by force, a point Boles does not 

meaningfully contest.

7 The oral copulation was committed by 

6 The CALCRIM No. 1015 instruction further specified: “An 

act is accomplished by force if a person uses enough physical force 

to overcome the other person’s will. [¶] Duress means a direct or 

implied threat of force, violence, danger, hardship, or retribution 

that causes a reasonable person to do something that he or she 

would not otherwise do. When deciding whether the act was 

accomplished by duress, consider all the circumstances, including 

the age of the other person and her relationship to the defendant. 

[¶] Retribution is a form of payback or revenge. [¶] Menace

means a threat, statement, or act showing an intent to injure 

someone. [¶] An act is accomplished by fear if the other person is 

actually and reasonably afraid.” (Italics in original.)

7 This evidence includes that Chelsea resisted when Boles 

first tried to shove his penis in her mouth; Boles pushed her to 

the ground, pulled his penis out, and told her to suck his penis; 
32

force and against Chelsea’s will. Thus, it is clear beyond a 

reasonable doubt the jury would still have found Boles guilty of 

forcible oral copulation in concert if it had been given only the 

“correct” instruction, which (according to Boles) would have 

defined oral copulation for purposes of forcible oral copulation in 

concert as oral copulation against the victim’s will by means of 

force or fear of immediate and unlawful bodily injury. 

In separately convicting Boles of forcible oral copulation 

(count 7), the jury also necessarily found that he, as the personal 

perpetrator of the oral copulation, did so by force, violence, 

duress, menace, or fear of immediate and unlawful bodily injury 

without Chelsea’s consent. (§ 287, subd. (c)(2)(A); formerly 

§ 288a, subd. (c)(2)(A).) Boles argues his conviction under count 7

cannot be used to support the requisite finding of oral copulation 

accomplished by force or fear for purposes of oral copulation in 

concert because the count 7 conviction could have been based on 

“duress” or “menace” (terms which appear in the forcible oral 

copulation instruction and statute but not in the oral copulation 

in concert statute). Assuming, without deciding, this was error, 

we conclude any such error would have been harmless in light of 

the overwhelming evidence the oral copulation was accomplished 

Chelsea kept moving her head to get away but Boles held her 

head and put his penis on her lips; after first raping her, Boles 

said he was going to slap her if she did not open her mouth; Boles 

inserted his penis into her mouth, told her to suck it, and that if 

she bit him, he would slap her with his penis and Boles 

alternated between intercourse and orally copulating her for one 

to two hours while she told him to stop and screamed loudly until 

Sangalang placed a towel in her mouth.
33

by force, satisfying the necessary predicate finding for the oral 

copulation in concert conviction.

C. There Was No Prejudice from the Cumulative Effect of the 

Errors

Boles contends he suffered cumulative prejudice from 

multiple errors. “‘[A] series of trial errors, though independently 

harmless, may in some circumstances rise by accretion to the 

level of reversible and prejudicial error.’” (In re Reno (2012) 

55 Cal.4th 428, 483 [“In theory, the aggregate prejudice from 

several different errors occurring at trial could require reversal 

even if no single error was prejudicial by itself.”].) In evaluating 

cumulative prejudice, we consider whether the aggregate errors 

caused the trial to be fundamentally unfair in violation of the 

Fourteenth Amendment’s due process guarantee. (See People v. 

Rogers (2006) 39 Cal.4th 826, 890; People v. Camacho (2022) 

14 Cal.5th 77, 132 [cumulative error did not render trial 

constitutionally unfair, observing “‘[d]efendant was entitled to a 

fair trial but not a perfect one’”]; People v. Thomas (2021) 

64 Cal.App.5th 924, 971 [“‘The “litmus test” for cumulative error 

“is whether defendant received due process and a fair trial.”’”].)

Considered cumulatively, the errors we identify did not 

affect the outcome of Boles’s trial or deprive him of a fair trial. 

As discussed, the admission of Middleton’s testimonial statement 

and the jury instruction on oral copulation in concert were

harmless beyond a reasonable doubt. Given the overwhelming 

evidence of Boles’s guilt, these errors considered together did not 

cause the trial to be fundamentally unfair.
34

D. Because the Trial Court’s Sentence Did Not Comply with 

Amended Section 1170, Subdivision (b), Remand is 

Necessary

Boles contends his case should be remanded for 

resentencing because the trial court imposed middle term

sentences on multiple counts without complying with the 

provisions of amended section 1170, subdivision (b). Specifically,

the provision that the lower term is the presumptive term for a 

defendant under the age of 26 at the time of the offense whose 

youth “contributed to the commission of the offense,” unless the 

court finds that the aggravating circumstances outweigh the 

mitigating circumstances such that imposition of the lower term 

would be “contrary to the interests of justice.” (§ 1170, 

subd. (b)(6)(B)). Boles’s contention has merit.

1. Section 1170, subdivision (b)

At the time Boles was alleged to have committed the crimes 

(February 2017), he was 19 years old. When the trial court 

sentenced Boles in September 2021, former section 1170, 

subdivison (b), provided, “When a judgment of imprisonment is to 

be imposed and the statute specifies three possible terms, the 

choice of the appropriate term shall rest within the sound 

discretion of the court.” (Stats. 2020, ch. 29, § 14.) 

Effective January 1, 2022, Senate Bill No. 567 (2020-2021

Reg. Sess.) “amended section 1170, former subdivision (b) by 

making the middle term the presumptive sentence for a term of 

imprisonment unless certain circumstances exist.” (People v. 

Flores (2022) 73 Cal.App.5th 1032, 1038 (Flores); see Stats. 2021, 

ch. 731, § 1.3.) Amended section 1170, subdivisions (b)(1) and 

(b)(2), now provides: “(1) When a judgment of imprisonment is to 
35

be imposed and the statute specifies three possible terms, the 

court shall, in its sound discretion, order imposition of a sentence 

not to exceed the middle term, except as otherwise provided in 

paragraph (2). [¶] (2) The court may impose a sentence 

exceeding the middle term only when there are circumstances in 

aggravation of the crime that justify the imposition of a term of 

imprisonment exceeding the middle term, and the facts 

underlying those circumstances have been stipulated to by the 

defendant or have been found true beyond a reasonable doubt at 

trial by the jury or by the judge in a court trial.” (Flores, at 

p. 1038; Stats. 2021, ch. 731, § 1; see People v. Dunn (2022) 

81 Cal.App.5th 394, 401-403, review granted Oct. 12, 2022, 

S275655 (Dunn); see also People v. Lopez (2022) 78 Cal.App.5th 

459, 464 (Lopez).) “There is an exception to this rule for prior 

convictions.” (People v. Ruiz (2023) 97 Cal.App.5th 1068, 1074, 

review granted Mar. 12, 2024, S283504.) “Notwithstanding 

paragraphs (1) and (2), the court may consider the defendant’s 

prior convictions in determining sentencing based on a certified 

record of conviction,” without it having been stipulated to by the 

defendant or found true beyond a reasonable doubt at trial by a 

jury or the judge in a court trial. (§ 1170, subd. (b)(3); People v. 

Suazo (2023) 95 Cal.App.5th 681, 705 (Suazo); see Cal. Rules of 

Court, rule 4.420(c).)

Further, Senate Bill No. 567 and Assembly Bill No. 124

(2020-2021 Reg. Sess.) “added subdivision (b)(6) to section 1170, 

which now provides [in relevant part] that ‘unless the court finds 

that the aggravating circumstances outweigh the mitigating 

circumstances [such] that imposition of the lower term would be 

contrary to the interests of justice, the court shall order 

imposition of the lower term if any of the following was a 
36

contributing factor in the commission of the offense: . . . (B) The 

person is a youth, or was a youth as defined under subdivision (b) 

of Section 1016.7 at the time of the commission of the offense.’”

(Suazo, supra, 95 Cal.App.5th at p. 705; see People v. Gaines 

(2023) 93 Cal.App.5th 91, 142 [Sen. Bill No. 567 incorporates 

amendments proposed by Assem. Bill No. 124 as the operative 

law].) A defendant is considered a “youth” for purposes of this 

provision if the defendant was “under 26 years of age on the date 

the offense was committed.” (§§ 1016.7, subd. (b); 1170, 

subd. (b)(6)(B); Flores, supra, 73 Cal.App.5th at p. 1039.) “Thus, 

the legislation ‘establishes a presumption of the lower term if the 

defendant’s youth was “a contributing factor” in [the] commission 

of the crime.’” (People v. Fox (2023) 90 Cal.App.5th 826, 831, 

fn. 5; accord, Flores, supra, 73 Cal.App.5th at p. 1039.) But “the 

court remains authorized to impose the middle term if the court 

determines that the aggravating and mitigating factors show that 

imposition of the lower term would be contrary to the interest of 

justice.” (People v. Hilburn (2023) 93 Cal.App.5th 189, 203).8

At least two courts addressing section 1170, 

subdivision (b)(6), have held that—unlike aggravating 

circumstances necessary to impose the upper term under 

subdivision (b)(2)—aggravating circumstances considered when 

evaluating whether to impose the middle term for a youth need 

not be admitted by the defendant or found by a jury beyond a 

8 Effective March 2022, California Rules of Court, rule 4.420, 

which sets forth the criteria for selecting the appropriate term of 

imprisonment in felony sentencing, was also revised to 

incorporate these amendments. (See Hilburn, supra,

93 Cal.App.5th at p. 201; see also Cal. Rules of Court, rule 4.420.)
37

reasonable doubt. (See Hilburn, supra, 93 Cal.App.5th at 

pp. 204-205 [imposition of middle term under § 1170, subd. (b)(6),

does not require aggravating factors to be proven beyond a 

reasonable doubt under Apprendi v. New Jersey (2000) 530 U.S. 

466]; People v. Bautista-Castanon (2023) 89 Cal.App.5th 922, 

928-929 (Bautista-Castanon) [declining to import the

requirements of § 1170, subd. (b)(2), into subd. (b)(6), as a 

prerequisite to imposing the middle term]; see also Cal. Rules of 

Court, rule 4.420(d).) 

Boles contends, the People concede, and we agree the 

amendments to section 1170 are ameliorative changes that apply 

retroactively to Boles’s nonfinal judgment. (See Dunn, supra,

81 Cal.App.5th at p. 403; People v. Zabelle (2022) 80 Cal.App.5th 

1098, 1108 (Zabelle); Lopez, supra, 78 Cal.App.5th at p. 465; 

Flores, supra, 73 Cal.App.5th at p. 1039.)

2. The trial court imposed middle terms for multiple 

counts without deciding whether Boles’s youth was a 

contributing factor to the crimes or that imposition of 

the lower term would be contrary to the interests of 

justice

The court sentenced Boles to an aggregate prison term of 

21 years and eight months, consisting of the middle term of

10 years for oral copulation in concert (count 14), as the base 

term; a consecutive term of two years and eight months (one 

third the middle term) for human trafficking of a minor (count 3); 

a consecutive term of the middle term of nine years for forcible 

rape (count 6); and a concurrent term of one year for false 

imprisonment (count 16). The court also imposed the middle 

term of six years for forcible oral copulation (count 7) and the 
38

middle term of nine years for forcible rape and rape by foreign 

object (count 12), but those sentences were stayed pursuant to 

section 654.

Regarding the base term for oral copulation in concert 

(count 14), the court explained it was imposing the middle term

because there were factors both in aggravation and mitigation. 

The court found factors in aggravation included Boles’s prior

criminal history and that he was on probation at the time of the 

offense. The court stated factors in mitigation included that 

certain evidence indicated Boles may have been induced by 

Sangalang to commit the crime; the court noted there were 

additional factors in mitigation argued by Boles’s counsel and in 

the mitigation report, but did not make other particularized 

findings regarding circumstances in mitigation or in 

aggravation.

9

At the time Boles was sentenced, section 1170 had not yet 

been amended, and the trial court did not make the requisite 

findings to sentence him to the middle term. Defense counsel 

argued in Boles’s sentencing memorandum and at the sentencing 

hearing that his youth was a mitigating factor, but the court did 

not expressly determine whether his youth was a “contributing 

factor in the commission of the offense” before examining the 

aggravating and mitigating circumstances. The trial court also 

9 The People argue that, “As to counts 3 and 6, the court

imposed the mid-term because the victim in this matter was 

particularly vulnerable.” But as to these counts, the court did not 

contemplate that the victim’s vulnerability warranted the middle 

term, and instead stated it used this factor in its determination 

that the sentences for these counts were to run consecutively.

(See Cal. Rules of Court, rule 4.425.)
39

did not make a finding “‘that the aggravating circumstances 

outweigh the mitigating circumstances [such] that imposition of 

the lower term would be contrary to the interests of justice’”

(Hilburn, supra, 93 Cal.App.5th at p. 200), as required under the 

amended statutory provision. After the statutory amendments 

went into effect, “under section 1170, subdivision (b)(6), the 

sentencing court is tasked with assessing mitigating and 

aggravating factors to impose the middle term only if it first 

determines that the defendant qualifies for treatment under the 

provision—because he or she . . . is a youthful offender, . . . and

those circumstances contributed to the offense.” (Id. at p. 205, 

emphasis added.) 

“Remand for resentencing is required in this case ‘unless 

the record “clearly indicate[s]” that the trial court would have 

reached the same conclusion “even if it had been aware that it 

had such discretion.”’” (People v. Gerson (2022) 80 Cal.App.5th 

1067, 1096 (Gerson), quoting People v. Gutierrez (2014) 58 Cal.4th 

1354, 1391.) This is because defendants are entitled to 

sentencing decisions made in the exercise of the “‘informed 

discretion’” of the sentencing court. (Gerson, at p. 1096.) A court 

that is not aware of the scope of its discretionary powers does not 

exercise that informed discretion. (See ibid.) 

We conclude the record before us does not “clearly indicate” 

the trial court would have imposed the same sentence had it 

exercised its new discretion under amended section 1170. As 

noted, because at the time Boles was sentenced section 1170 had 

not yet been amended, the trial court made no finding regarding 

whether Boles’s youth was a contributing factor to the 

commission of the crime. And the trial court’s weighing of the 

mitigating and aggravating circumstances is insufficiently 
40

detailed for us to conclude that it would have determined that 

imposing the lower term would be “contrary to the interests of 

justice.” Here, the only aggravating factors expressly mentioned

by the trial court in selecting the middle terms were Boles’s prior 

criminal history and probation status at the time of the offense,

and the only specific factor in mitigation mentioned by the court 

was that Boles may have been induced by Sangalang to commit 

the crime.10 The trial court acknowledged the existence of, but 

did not specifically weigh, any other factors raised by the parties, 

leaving us to speculate about the impact other factors or 

combinations of factors may have had on its decision-making. 

(Cf. Lopez, supra, 78 Cal.App.5th at p. 468 [remand required 

where trial court relied on “long list” of aggravating factors but 

gave no indication what decision it would make if fewer factors 

were available].) Overall, we cannot say with certainty how the 

court assessed other aggravating and mitigating factors, much 

less whether it would conclude a middle term was warranted “in 

the interests of justice” under amended section 1170. At most, 

the record indicates the court weighed aggravating and 

mitigating factors against each other and implicitly found they 

balanced out, supporting a middle term sentence under the 

former section 1170. The trial court should have the opportunity, 

in the first instance, to consider whether a lower term sentence 

10 Boles argues the trial court’s reliance on his criminal 

history did not comply with section 1170, subdivision (b)(3). As 

noted, that subdivision allows courts to consider the defendant’s 

prior convictions as an aggravating factor when imposing an 

upper term based on a certified record of conviction. Boles cites 

no authority that applies to section 1170, subdivision (b)(3),

where, as here, the upper term is not implicated.
41

should be imposed, and the record does not clearly indicate how 

the trial court would choose to exercise that discretion. 

Accordingly, we vacate the sentence and remand for the 

trial court to resentence Boles under amended section 1170, 

subdivision (b). (See Flores, supra, 73 Cal.App.5th at p. 1039

[vacating middle term sentence and remanding to the trial court 

to decide in the first instance whether defendant under the age of 

26 is entitled to the lower term under the amended law]; 

Bautista-Castanon, supra, 89 Cal.App.5th at p. 928 [vacating 

upper term sentence for 19-year-old defendant and remanding for 

resentencing under amended § 1170, subds. (b)(1)-(3) and (b)(6)].)

On remand, “full resentencing” is warranted, including applicable 

retroactive changes in the law. (People v. Jones (2022) 

79 Cal.App.5th 37, 46 [“the need to apply amended sections 1170, 

subdivision (b), and 654 creates sufficiently “‘changed 

circumstances’” [citation] to warrant a full resentencing”];

People v. Garcia (2022) 76 Cal.App.5th 887, 902 [“the trial court 

may revisit all of its sentencing choices in light of” the 

amendments to § 1170, subd. (b)].) “A full resentencing may 

involve the trial court’s revisiting such decisions as the selection 

of a principal term, whether to stay a sentence, whether to 

impose an upper, middle, or lower term, and whether to impose 

concurrent or consecutive sentences.” (Jones, at p. 46; BautistaCastanon, at p. 927.) 

“On remand, the parties are free to argue for the term they 

believe is appropriate under the applicable law.” (People v. 

Whitmore (2022) 80 Cal.App.5th 116, 132; see Bautista-Castanon, 

supra, 89 Cal.App.5th at p. 931 [“at resentencing, [defendant] 

may urge the court to consider any factors in mitigation that he 

believes are appropriate”].) We decline to “direct the trial court 
42

as to the factors it should consider or the weight it should assign 

to any factor.” (Bautista-Castanon, at p. 931.)

E. The Trial Court’s Sentence Did Not Comply with Amended 

Section 654, Which Must Also be Applied on Remand

At the time of Boles’s sentencing in 2021, former 

section 654, subdivision (a), provided, “An act or omission that is 

punishable in different ways by different provisions of law shall 

be punished under the provision that provides for the longest 

potential term of imprisonment, but in no case shall the act or 

omission be punished under more than one provision.” As 

discussed, pursuant to former section 654, the trial court 

sentenced Boles to 10 years for oral copulation in concert 

(count 14), a consecutive term of two years and eight months for 

human trafficking of a minor (count 3), a consecutive term of 

nine years for forcible rape (count 6), and a concurrent term of 

one year for false imprisonment (count 16). It imposed and 

stayed terms of six years for forcible oral copulation (count 7) and 

nine years for forcible rape and rape by foreign object (count 12), 

pursuant to former section 654.

Effective January 1, 2022, Assembly Bill No. 518 (2021-

2022 Reg. Sess.) (Stats. 2021, ch. 441) amended section 654 “to 

remove the requirement that a court impose the longest sentence 

when a defendant is convicted of more than one offense arising 

from the same conduct.” (Lopez, supra, 78 Cal.App.5th at p. 468; 

accord, People v. Mani (2022) 74 Cal.App.5th 343, 379 

[“section 654 now provides the trial court with discretion to 

impose and execute the sentence of either term, which could 

result in the trial court imposing and executing the shorter 

sentence rather than the longer sentence”].) 
43

Boles contends, the People concede, and we agree Assembly 

Bill No. 518’s changes to section 654 are ameliorative changes 

that apply retroactively to nonfinal judgments under In re 

Estrada (1965) 63 Cal.2d 740, 744-745. (See People v. Fugit 

(2023) 88 Cal.App.5th 981, 995-996 [defendant entitled to 

retroactive benefit of Assembly Bill No. 518]; People v. Mani, 

supra, 74 Cal.App.5th at pp. 379-380 [same]; see also People v. 

Superior Court (Lara) (2018) 4 Cal.5th 299, 308.) 

Boles argues it was error for the trial court to impose and 

execute the longer term sentence for oral copulation in concert

and stay the shorter term for forcible oral copulation, when each 

punished him for the same act. Boles’s argument has merit. 

Because at the time of sentencing, the trial court was required to 

impose and execute the longest term of imprisonment, but now 

has discretion as to which term of imprisonment to impose and 

execute and which to stay, on remand the trial court must be 

allowed to exercise its new discretion.

The People argue that the error was harmless but we reject 

the argument because, as outlined above, Boles is entitled to a 

full resentencing. (See People v. Jones, supra, 79 Cal.App.5th at 

p. 46 [“the need to apply amended sections 1170, subdivision (b),

and 654 creates sufficiently “‘changed circumstances’” [citation] 

to warrant a full resentencing”]; People v. Garcia, supra,

76 Cal.App.5th at p. 902 [“the trial court may revisit all of its 

sentencing choices in light of” the amendments to § 1170, 

subd. (b)].)
44

DISPOSITION

The convictions are affirmed. We vacate the sentence and 

direct the trial court to resentence Boles in accordance with

amended sections 654 and 1170, subdivision (b), and any other 

applicable ameliorative legislation.

MARTINEZ, P. J.

We concur:

SEGAL, J.

RAPHAEL, J.*

* Judge of the San Bernardino County Superior Court, 

assigned by the Chief Justice pursuant to article VI, section 6 of 

the California Constitution.