Filed 6/10/24 P. v. Perine CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

CHRISTOPHER THOMAS PERINE,

Defendant and Appellant.

 A166548

 (San Mateo County

 Super. Ct. No. 21-SF-003391-A)

Christopher Thomas Perine appeals a judgment convicting him of 

penetration by a foreign object and infliction of a corporal injury on a dating

partner and sentencing him to a total of six years in prison. He contends the 

trial court erred (1) by excluding evidence of the victim’s sexual activity with 

another person, which he asserts would have provided an alternate 

explanation for the injury the victim claimed Perine inflicted during the 

penetration; (2) by not instructing the jury on any lesser included offenses to 

the corporal injury charge; (3) by admitting evidence of his 2014 conviction of 

misdemeanor domestic violence; and (4) by failing to stay the concurrent 

prison term imposed on his corporal injury conviction in violation of Penal 

Code section 654.1 We agree that the concurrent term imposed on Perine’s 

corporal injury conviction should be stayed but find no other prejudicial error. 

1 All undesignated statutory references are to the Penal Code. 
2

Accordingly, we stay the sentence imposed on count 2 and affirm the 

judgment in all other respects. 

BACKGROUND

Perine was charged by information with one felony count each of 

penetration by a foreign object (§ 289, subd. (a)(1)(A)); corporal injury on a 

dating partner (§ 273.5, subd. (a)); and stalking with two prior convictions

(§ 646.9 subds. (a), (c)).2 

At trial, evidence was presented that Perine met and started dating the 

victim in October 2015. The victim testified that the relationship ended in 

April 2020 after a verbal disagreement, although she did acknowledge having 

sexual intercourse with him one time after the breakup. She claimed that,

despite returning his key and letting him know that she was blocking him 

from contacting her phone, he continued to leave voice and text messages and 

drive by her home. In February and March 2021, Perine sent the victim 

several unwanted, sexually explicit texts, which were read to the jury. He 

also left several unwanted, sexually explicit voicemails on her phone that

were played for the jury. Some of the messages referenced Perine wanting to 

engage in sexual activity in the alleyway behind the victim’s house, but the 

victim testified that it was not something that had happened previously 

between them. 

On March 17, 2021, the victim heard Perine’s truck, which she 

described as black with a large yellow panel on the side, idling in the 

alleyway next to her house. She went out and asked him to leave. Perine left 

but returned on March 20 sometime between 5:00 p.m. and 7:00 p.m. She 

2 The stalking charge was based on conduct occurring after the sexual 

assault. Because the jury acquitted Perine on that count, we omit from our 

recitation of the facts testimony relevant to only that count.
3

heard his truck in the alleyway again and thought, “Oh no, not again.” When 

she went outside to ask him to leave, he grabbed her left arm, pinned her 

against the garage, and put his finger in her vagina. She felt him scratch her 

vagina when he penetrated her. She said “stop,” got out of his grasp, and ran 

into her house.

Her family came home approximately 15 minutes after the assault. 

When she told them what happened, they encouraged her to file a police 

report, which she did that evening. An officer arrived at her home and 

advised her to go to the hospital for a forensic examination. The forensic 

nurse who examined her approximately six hours after the assault testified 

that there was a “very superficial, shallow abrasion” on her vagina. Although 

it was a minor abrasion, it was visible to the naked eye, and there was a 

definite border between the abraded area and normal tissue. She did not see 

bruising on the victim at the time of the exam, but because bruising could 

develop later, she instructed her to report any bruising for documentation. 

The doctor who reviewed the photographs from the exam confirmed that the 

photographs depict a “small, difficult-to-see” injury. 

The next day, when the victim noticed that a large, finger-shaped 

bruise had formed on the underside of her left arm, she called the police as 

instructed. A photograph of the bruise taken by a police officer two days after 

the assault was introduced as an exhibit at trial.

Also on March 21, the victim received a voicemail message from Perine 

at 10:17 p.m. in which he said, “I don’t understand uh, this uh, avoidance 

accomplishes nothing just more built-up lust and desire, so. Then I pull up in 

your alley and make a scene and you get wet and you still won’t suck my 

cock.” 
4

The victim’s neighbor testified that on March 20, at around 6:00 p.m. or 

7:00 p.m., he saw a black truck with a yellow stripe idling in the alleyway 

behind his home.

Perine denied sexually assaulting the victim. He testified that he last 

engaged in sexual activity with her in February 2021, and at that time, he 

believed they were still in a relationship. He admitted, however, that he left 

several graphic voicemails on the victim’s phone in February and March and 

texted her repeatedly, and that she had not returned any of his calls or texts. 

He also admitted that when he went to her house on March 17, she asked 

him to leave. He explained, however, that she told him she was expecting 

company but that she would call him later. Although she did not call him by 

the weekend, he did not understand that, by not responding to him, the 

victim was indicating that she did not want to see him. 

With regard the March 20 assault, Perine testified that he did not see 

the victim at all that day. He, his six-year-old son, and a friend went to a 

local restaurant and stayed for about an hour. After leaving the restaurant, 

he went directly home and watched a movie with his son. Video surveillance 

showed the group leaving at 5:35 p.m., which Perine believed was actually 

one hour later due to daylight savings time. He claimed to have been driving 

a white truck at the time because his black-and-yellow truck was in the shop. 

On cross-examination, Perine acknowledged leaving the victim the

phone message the day after the assault in which he referenced pulling up in 

the alley but claimed that it was not an admission of guilt. Rather, it was a 

reference to the fact that they previously had sex in the alley. 

Perine’s friend, who was with him at the restaurant and who owned an 

auto repair shop, testified that Perine left the restaurant driving a white 
5

truck and that Perine’s black-and-yellow truck had been in his shop since 

February. 

The jury found Perine guilty of penetration by a foreign object and 

inflicting corporal injury on a dating partner, but was unable to reach a 

verdict on the stalking charge. 

The court sentenced Perine to concurrent middle terms on each count 

for a total of six years in prison. 

DISCUSSION

I. Exclusion of the Victim’s Sexual History 

Perine argues that the trial court erred by excluding evidence of the 

victim’s sexual activity with another person in February 2021, which he 

asserts would have provided an alternate explanation for the injury the 

victim claimed he inflicted during the digital penetration. He contends that 

this evidence was relevant to the victim’s credibility and admissible under 

Evidence Code sections 1103 and 783, and that precluding that crossexamination deprived him of his right to present a defense under the Sixth 

Amendment to the United States Constitution and due process.

A. Legal Background

A criminal defendant has a “fundamental constitutional right to a fair 

opportunity to present a defense.” (Crane v. Kentucky (1986) 476 U.S. 683, 

687.) “Whether rooted directly in the Due Process Clause of the Fourteenth 

Amendment . . . or in the Compulsory Process or Confrontation clauses of the 

Sixth Amendment, [citations], the Constitution guarantees criminal 

defendants ‘a meaningful opportunity to present a complete defense.’ ” (Id. at 

p. 690.) “ ‘ “[T]he main and essential purpose of confrontation is to secure for 

the opponent the opportunity of cross-examination.” ’ ” (Delaware v. Van 

Arsdall (1986) 475 U.S. 673, 678 (Van Arsdall).) Trial courts, however,
6

“retain wide latitude . . . to impose reasonable limits on[] cross-examination 

based on concerns about, among other things, harassment, prejudice, 

confusion of the issues, the witness’ safety, or interrogation that is repetitive 

or only marginally relevant.” (Id. at p. 679.) 

“Evidence of the sexual conduct of a complaining witness is admissible 

in a prosecution for a sex-related offense only under very strict conditions.” 

(People v. Fontana (2010) 49 Cal.4th 351, 362; Evid. Code, § 1103, subd. (c).) 

Evidence of the complaining witness’s prior sexual conduct may be admissible 

when offered to explain injuries the prosecution alleges were the result of the 

defendant’s conduct where the evidence “is relevant under [Evidence Code] 

section 780 and is not barred by [Evidence Code] section 352.” (Fontana, at 

p. 363.) “In such circumstances, ‘it is not the fact of prior sexual activity as 

such that is important, but something about the special circumstances under 

which that prior sexual activity took place that renders it important.’ 

[Citation.] Where the prosecution has attempted to link the defendant to 

physical evidence of sexual activity on the complainant’s part, ‘the defendant 

should unquestionably have the opportunity to offer alternative explanations 

for that evidence, even though it necessarily depends on evidence of other 

sexual conduct.’ ” (Ibid.) 

Evidence Code section 780 generally identifies factors a jury may 

consider in determining the credibility of a witness that have a “tendency in 

reason to prove or disprove the truthfulness” of that witness’s testimony, 

including statements made by the witness that are inconsistent with any part 

of the witness’s testimony and the existence or nonexistence of any fact 

testified to by the witness. Under Evidence Code section 352, the court has 

discretion to “exclude evidence if its probative value is substantially 

outweighed by the probability that its admission will (a) necessitate undue 
7

consumption of time or (b) create substantial danger of undue prejudice, of 

confusing the issues, or of misleading the jury.”

Evidence Code section 782, subdivision (a) sets forth the procedure for 

determining the admissibility of such evidence: It requires (1) that the 

defendant submit a written motion “stating that the defense has an offer of 

proof of the relevance of evidence of the sexual conduct of the complaining 

witness that is proposed to be presented and of its relevance in attacking the 

credibility of the complaining witness,” (2) that the motion “be accompanied 

by an affidavit in which the offer of proof shall be stated,” (3) that the court 

shall determine if the “offer of proof is sufficient,” and if so, “order a hearing” 

to “allow the questioning of the complaining witness regarding the offer of 

proof made by the defendant.” If the court determines, following the hearing, 

that the evidence is relevant under Evidence Code section 780 and not 

inadmissible under Evidence Code section 352, then the court may make an 

order stating what evidence may be introduced by the defendant and the 

nature of the questions allowed. (Evid. Code, § 782, subd. (a)(4); People v. 

Fontana, supra, 49 Cal.4th at p. 362.)

B. Factual Background

Prior to trial, Perine moved to admit evidence that the victim suffered a 

vaginal injury during sexual activity with a different person three weeks 

prior to the offense. His motion argued that if the victim denies the injurious 

sexual contact with another person at trial, he intends to testify that she 

alluded to another sexual relationship and showed him the injury in 

February 2021. The prosecution opposed the motion. 

At an evidentiary hearing, Perine testified that on February 26, 2021, 

the victim told him that she had been “touched inappropriately.” She was 

“too embarrassed” to tell him who had touched her but “smirked” when he 
8

asked if it was her friend who had recently visited. She later removed her 

clothing and asked him to look at a “small tear” on her labia. 

The victim denied having a sexual relationship with her friend and 

testified that that the interaction described by Perine never happened. 

The nurse who had examined the victim after the assault testified that 

the abrasion she observed in the victim’s vaginal area was consistent with 

having been inflicted six hours prior but that it was “highly unlikely” that the 

injury was inflicted three weeks ago. To still be visible at the time of the 

exam, the prior injury “would have had to have been very, very deep and 

have a lot of bleeding and probably would have needed sutures.” She 

explained that genital mucosal tissue heals quickly and a shallow abraded 

area such as the abrasion she observed on the victim could heal in a couple of 

days. She did not believe the injury resembled an older, faint scar. 

Following the hearing, the court denied Perine’s motion. The court 

found that the evidence was not relevant based on the nurse’s testimony that 

even a significant injury would have healed in the three weeks between the 

alleged prior incident and the sexual assault. The court found further that 

the evidence was subject to exclusion under section 352 because Perine’s 

“testimony has such limited probative value, if any, and would create a 

danger of confusing the issues or misleading the jury.” 

C. Analysis

Perine contends the trial court erred in concluding that the evidence 

was not relevant. He argues that the court improperly “relied on its 

evaluation of the credibility of the evidence each side presented and found 

Perine’s proposed testimony was not relevant because [the nurse’s] testimony 

was more persuasive.” 
9

Perine is correct that the trial court improperly evaluated the 

credibility of Perine’s testimony regarding the incident in February when the 

victim allegedly showed him the scratch. (See People v. Chandler (1997) 

56 Cal.App.4th 703, 711 [“The rape shield statutes do not permit the trial 

judge to make a credibility determination at the in camera hearing”].) That 

error, however, is of no consequence insofar as the trial court expressly stated 

that, even if it found Perine’s testimony to be credible, it would deny the 

motion based on the nurse’s undisputed testimony. Perine did not, nor could 

he, offer testimony as to whether the scratch he saw in February would have 

healed within three weeks. The nurse’s testimony that the injury she saw 

was fresh and not made three weeks earlier was undisputed and necessarily 

established that the victim’s prior sexual activity was not a possible alternate 

cause of the victim’s injury. Perine’s proffered testimony was therefore not 

relevant under Evidence Code section 780 because it would not contradict the 

victim’s testimony that Perine caused her injury. For the same reason, the 

court did not abuse its discretion in excluding the evidence under Evidence 

Code section 352.

3

Perine’s argument that the exclusion of this evidence violated his 

federal constitutional rights to confrontation and cross-examination fares no 

better. As this court recently observed, “[p]roper application of Van Arsdall

requires threshold consideration of whether the trial court exercised sound 

discretion under state law evidentiary standards in limiting the scope of 

cross-examination. The high court’s acknowledgment that trial courts ‘retain 

wide latitude . . . to impose reasonable limits on such cross-examination’ 

3 In light of this conclusion, we need not reach Perine’s remaining 

arguments that the court erred in excluding his testimony as hearsay and by 

failing to analyze the prejudicial effect of the proffered testimony.
10

[citation] leaves room for an evaluation of admissibility under the Evidence 

Code, tested under the deferential abuse of discretion standard of review 

governing such discretionary questions [citation]. If the trial court excluded 

‘evidence of marginal impeachment value’ [citation] or otherwise merely 

carried out the routine evidentiary function of controlling the scope of 

permissible cross-examination, the answer to this initial evidence question 

will generally be yes—the trial court was within its discretion—and the 

inquiry comes to an end. There was no error, under either state law or under 

the Sixth Amendment.” (People v. Castaneda-Prado (2023) 94 Cal.App.5th 

1260, 1282, fn. omitted.) Because the proffered testimony had no probative 

value, its exclusion did not impinge upon Perine’s constitutional rights.

II. Lesser Included Offenses on Count 2

Perine contends the trial court prejudicially erred by not instructing 

the jury sua sponte on spousal battery (§ 243, subd. (e)(1)), simple battery 

(§ 242) and simple assault (§ 240), which are lesser included offenses of 

corporal injury on a dating partner (§ 273.5). 

“[A] trial court errs if it fails to instruct, sua sponte, on all theories of a 

lesser included offense [that] find substantial support in the evidence. On the 

other hand, the court is not obliged to instruct on theories that have no 

[substantial] evidentiary support.” (People v. Breverman (1998) 19 Cal.4th 

142, 162, overruled on other grounds in People v. Schuller (2023) 15 Cal.5th 

237.) When a defendant denies the charged offense in its entirety, the 

“substantial evidence” required to trigger this duty is defined as “ ‘ “evidence 

from which a jury composed of reasonable [persons] could . . . conclude []” ’ 

that the lesser offense, but not the greater, was committed.” (People v. Cruz

(2008) 44 Cal.4th 636, 664; People v. DePriest (2007) 42 Cal.4th 1, 50 
11

[instructions required only where substantial evidence defendant committed 

lesser, but not greater, offense].)

Prejudice stemming from the failure to instruct on a lesser included 

offense in noncapital cases is state law error analyzed under the harmless 

error test in People v. Watson (1956) 46 Cal.2d 818, 836. (People v. Gonzalez

(2018) 5 Cal.5th 186, 195–196, 201.) “ ‘[U]nder Watson, a defendant must 

show it is reasonably probable a more favorable result would have been 

obtained absent the error.’ ” (People v. Beltran (2013) 56 Cal.4th 935, 955.)

“[T]he Watson test for harmless error ‘focuses not on what a reasonable jury 

could do, but what such a jury is likely to have done in the absence of the 

error under consideration. In making that evaluation, an appellate court may 

consider, among other things, whether the evidence supporting the existing 

judgment is so relatively strong, and the evidence supporting a different 

outcome is so comparatively weak, that there is no reasonable probability the 

error of which the defendant complains affected the result.’ ” (Id. at p. 956.)

As relevant here, the charged offense requires that the defendant inflict 

a traumatic injury, defined as a “wound, or external or internal injury . . . 

whether of a minor or serious nature, caused by physical force.” (§ 273.5, 

subd. (d).) None of the lesser offenses require infliction of an injury. (People 

v. Gutierrez (1985) 171 Cal.App.3d 944, 952 [“It is injury resulting in a 

traumatic condition that differentiates [a section 273.5 offense] from lesser 

offenses”].) 

In closing, the prosecutor argued that the bruise inflicted when Perine 

grabbed the victim and pinned her to the garage was a “minor injury” 

sufficient to satisfy the traumatic condition requirement. He described the 

bruise for the jury as “visible two days later. . . . It wasn’t a light, small, faint 

bruise. It’s a sizable bruise.” 
12

On appeal, Perine does not dispute the existence of the bruise or that 

the bruise qualifies as a traumatic injury. He argues, as he did in the trial 

court, that the evidence tying the bruise to the assault was not credible. He 

notes that the victim did not report having been grabbed on her arm or 

having any pain in her arm at the time of the exam and only reported the 

bruise the following day. He contends that instructions on the lesser 

included offenses were required because the evidence “presented the issue of 

causation.” 

We think it is doubtful that a reasonable jury could have concluded on 

the evidence before it that Perine grabbed the victim and pinned her to the 

wall without causing an injury so that it could have found Perine guilty of 

one of the lesser offenses and not the charged offense. Assuming, however,

the jury could have reached that conclusion, it is not reasonably likely that 

the jury would have done so had it been instructed on the lesser included 

offenses. (See People v. Reeves (2001) 91 Cal.App.4th 14, 53 [the question “is 

not what a jury could have done, but what a jury would likely have done if 

properly instructed”].) 

The evidence that Perine’s actions caused the bruise was 

overwhelming. The victim testified that Perine grabbed her left arm with his 

hand and his forearm was outstretched parallel to the ground and across her 

chest pinning her to the garage. The next day she noticed a large, fingershaped bruise on the underside of her left arm. The location of the bruise is 

consistent with her description of how Perine grabbed her. She testified that 

the bruise was on a part of her arm she would not have bumped into 

something like a door or a counter, and she noticed it the morning after the 

assault. Her delayed discovery is also consistent with the nurse’s testimony 
13

that bruises do not appear immediately and that she would not have expected 

it to be noticeable at the time of the exam. 

Contrary to Perine’s suggestion, the jury’s question regarding count 2 

does not support the conclusion that the failure to instruct on the lesser 

offenses was prejudicial. The jury asked for clarification on whether

“willfully inflicted a physical injury” as used in the instructions meant 

“intended to cause harm” or “intended to act but harm was incidental.” The

court responded, “Defendant ‘willfully inflicts’ injury when a direct 

application of force by defendant upon victim causes injury.” Perine argues 

that “[t]his focus on the traumatic condition shows the ‘deliberations were 

close,’ something that in turn shows the prejudice from the court’s failure to 

give the jury an alternative to the all-or-nothing choice posed by its failure to 

instruct on lesser included offenses.” On the contrary, the jury’s question is 

premised on a finding that Perine’s act caused the physical harm and merely 

sought clarification as to whether he had to have intended to cause the harm 

to be found guilty.

Accordingly, we conclude that the failure to instruct on any lesser 

offenses, if error, was harmless.

III. Admission of Perine’s Prior Domestic Violence Conviction

Evidence Code Section 1109 provides an exception to the general rule 

codified in Evidence Code section 1101, subdivision (a) that prior acts may 

not be used to prove a defendant’s conduct on a specified occasion. Under 

section 1109, prior acts of domestic violence are admissible when the 

defendant is charged with a criminal offense “involving domestic violence . . .

if the evidence is not inadmissible pursuant to [Evidence Code] section 352.” 

(Evid. Code, § 1109, subd. (a)(1).) If evidence is admitted under Evidence 

Code section 1109, a jury may infer from the evidence that the defendant had 
14

a disposition or propensity to commit other offenses involving domestic 

violence and may infer that he was likely to commit and did commit the 

current domestic violence offense. (People v. Ogle (2010) 185 Cal.App.4th 

1138, 1143; People v. Johnson (2010) 185 Cal.App.4th 520, 528.)

We apply an abuse-of-discretion standard to a trial court’s admission of 

prior acts of domestic violence under Evidence Code section 1109 and its 

refusal to exclude the evidence under Evidence Code section 352. (People v. 

Johnson, supra, 185 Cal.App.4th at p. 539; People v. Poplar (1999) 

70 Cal.App.4th 1129, 1138.)

Prior to trial, the prosecution moved to admit a certified copy of 

Perine’s 2014 conviction of misdemeanor domestic violence (§ 273.5, 

subd. (a)).4 Perine opposed the motion, arguing that his prior conviction was 

“wholly irrelevant” and should be excluded under Evidence Code section 352. 

The court granted the motion, admitting “evidence of the actual conviction 

without testimony.” At trial, Perine admitted that he was convicted of 

misdemeanor domestic violence in 2014 and the prosecutor introduced, as 

exhibit 42, certified copies of the charging document, Perine’s signed plea 

form, and the docket from the prior case. 

On appeal, Perine contends that the trial court abused its discretion in 

admitting the evidence of his 2014 conviction. He argues that the probative 

value of the conviction was weak because the jury, without any details of the 

underlying offense, could not determine whether there was any similarity

between the prior offense and the charged offenses, and because the prior 

conviction was based on conduct that occurred approximately six years before 

4 The prosecution also sought to admit testimony by the victim of the 

2014 crime to testify as to the underlying facts of the crime. The trial court 

deferred ruling on the admissibility of her testimony, and ultimately the 

victim was not called as a witness at trial.
15

the current offenses. We disagree that the probative value of this evidence 

was weak. The admission of the fact of Perine’s prior conviction was relevant 

to show a pattern of domestic violence and a propensity to commit domestic 

violence. As the prosecutor argued in closing, Perine’s 2014 conviction can be 

used to show he had the intent to commit the charged crimes and the 

knowledge that his actions in this case were wrong. Admission of the fact of 

the conviction by the certified record of conviction was not unduly prejudicial 

and posed little danger of confusing the issues before the jury. Accordingly, 

the trial court did not abuse its discretion in admitting the fact of Perine’s 

prior conviction.

To the extent Perine’s challenge is directed to the additional

information contained in the documents that were admitted to prove the 

prior conviction, we question whether Perine properly preserved his 

argument. Perine notes that the docket and plea form revealed that he had 

pled guilty in exchange for the dismissal of two felony charges, false 

imprisonment and assault with force likely to create great bodily injury, and 

that other entries on the docket showed that a protective order was issued 

and he was ordered to complete 104 hours of domestic violence counseling 

and to serve one day in jail. The plea form and docket, however, were not 

before the court when it ruled that the “certified prior” would be admissible 

at trial. When exhibit 42 was introduced and admitted into evidence at trial, 

defense counsel did not object on the ground that the documents contained 

prejudicial information or request that the extraneous information be 

redacted. The trial court’s prior ruling that the fact of the conviction was 

admissible did not excuse counsel’s obligation to object to the admission of the 

documents used to prove that fact if he believed they contained additional 

information that was inadmissible under Evidence Code section 352. (People 
16

v. Kennedy (2005) 36 Cal.4th 595, 612, disapproved on other grounds by 

People v. Williams (2010) 49 Cal.4th 405, 459 [“appellate court’s review of the 

trial court’s admission of evidence is [] limited to the stated ground for the 

objection”].)

The Attorney General, however, does not argue that Perine forfeited 

this argument on appeal. Instead, the Attorney General focuses on the 

admissibility of the fact of the prior conviction and asserts rather summarily 

that the “details of appellant’s prior conviction, including that he pled no 

contest, that two charges were dropped, and that [the victim] obtained a 

protective order, were not unduly prejudicial.” 

The additional information contained in the documents to which Perine 

now objects has limited, if any, probative value and thus, in our view, should 

have been redacted. The potential error, however, was harmless. (People v. 

Cole (2004) 33 Cal.4th 1158, 1195 [improper admission of evidence of other 

crimes reviewed for error under People v. Watson (1956) 46 Cal.2d 818]; 

People v. Scheid (1997) 16 Cal.4th 1, 21 [erroneous admission of irrelevant 

evidence reviewed for error under Watson standard].) “Under the Watson

standard, the erroneous admission of [evidence] warrants reversal of a 

conviction only if the appellate court concludes that it is reasonably probable 

the jury would have reached a different result had the [evidence] been 

excluded.” (People v. Scheid, supra, at p. 21.) 

The extraneous information contained in exhibit 42 was not 

particularly prejudicial. The details of the dismissed charges were not 

included in the documents, and the charges themselves—false imprisonment 

and assault with force likely to create great bodily injury—are no more 

egregious than the sexual assault charged in the present case. The fact that 

Perine was subjected to a restraining order in 2014 is also not particularly
17

prejudicial given the unchallenged testimony that in 1998 Perine was 

arrested for violating a restraining order obtained by his ex-wife after he was 

convicted of criminal stalking. Although it is possible that the jury resented 

the lack of punishment on the dropped charges or the arguably lenient

punishment for the charge to which he pled guilty, we do not find it

reasonably likely that the jury convicted him of the charged offenses for these 

reasons. The prosecutor’s closing argument did not reference the allegedly 

extraneous information contained in the relevant exhibit and the jury was 

properly instructed regarding the People’s burden to prove the charged 

offenses beyond a reasonable doubt and the limited purpose for which it could 

consider evidence of another incident of domestic violence not charged in this 

case. (People v. Chhoun (2021) 11 Cal.5th 1, 30 [courts presume jury followed 

instructions on use of other crimes evidence].) Accordingly, we see no 

reasonable probability that Perine would not have been found guilty had the 

additional information been redacted from exhibit 42.

IV. Section 654

Perine was sentenced to the middle term of six years for his conviction 

for digital penetration and to a concurrent three-year middle term on his 

conviction for domestic violence. He contends that the trial court erred by 

failing to stay the sentence imposed on his domestic violence conviction

pursuant to section 654. We agree. 

Section 654, subdivision (a) provides in relevant part: “An act or 

omission that is punishable in different ways by different provisions of law 

may be punished under either of such provisions, but in no case shall the act 

or omission be punished under more than one provision.” Section 654 

“ ‘applies not only where there was but one act in the ordinary sense, but also 

where there was a course of conduct which violated more than one statute 
18

but nevertheless constituted an indivisible transaction. . . . If all the offenses 

were incident to one objective, the defendant may be punished for any one of 

such offenses but not for more than one.’ [Citation.] Whether offenses are 

‘indivisible’ for these purposes is determined by the ‘defendant's intent and 

objective, not the temporal proximity of his offenses.’ [Citation.] ‘If [a] 

defendant harbored “multiple criminal objectives,” which were independent of 

and not merely incidental to each other, he may be punished for each 

statutory violation committed in pursuit of each objective, “even though the 

violations shared common acts or were parts of an otherwise indivisible 

course of conduct.” ’ [Citation.] The application of section 654, thus, ‘turns on 

the defendant’s objective in violating’ multiple statutory provisions. 

[Citation.] Where the commission of one offense is merely ‘ “a means toward 

the objective of the commission of the other,” ’ section 654 prohibits separate 

punishments for the two offenses.” (People v. Wynn (2010) 184 Cal.App.4th 

1210, 1214–1215.) 

Perine contends that his sentence on the domestic violence conviction 

must be stayed because the offense was part of a continuous course of conduct 

undertaken with a single intent—it was the means of committing the sexual 

penetration. It is undisputed that Perine’s acts of grabbing the victim’s arm, 

pinning her to the wall, and digitally penetrating her constituted a 

continuous course of conduct. The Attorney General argues, however, that 

section 654 is inapplicable because Perine’s intent and objective differed for 

each act: Perine grabbed the victim, pushed her against the wall, and 

bruised her arm “to dominate her and inflict pain” and he digitally 

penetrated her for sexual gratification. 

Although Perine did not raise a section 654 objection during the 

sentencing hearing, “ ‘[e]rrors in the applicability of section 654 are corrected 
19

on appeal regardless of whether the point was raised by objection in the trial 

court or assigned as error on appeal.’ ” (People v. Hester (2000) 22 Cal.4th 

290, 295.) If the trial court does not stay a sentence pursuant to section 654, 

and offers no factual basis for its decision, we presume the court made the 

necessary findings to impose separate sentences without violating the 

statutory proscription against multiple punishment. (People v. Mejia (2017)

9 Cal.App.5th 1036, 1045.) A trial court’s imposition of multiple sentences 

must be sustained on appeal so long as its factual findings, express or 

implied, of multiple acts are supported by substantial evidence. (People v. 

Cruz (2020) 46 Cal.App.5th 715, 737.) 

Here, the record does not support an implied finding that Perine 

harbored separate intents with regard to the two offenses. Nothing in the 

record suggests that Perine intended to inflict the injury at issue in this case.

The bruise was incidental to the force used by Perine to pin the victim 

against the wall in order to digitally penetrate her. At sentencing, the trial 

court described the crimes as follows: “The jury found that the defendant 

used force against the victim causing injury and, while doing so, committed 

sexual assault, pinning her up against a wall with force, rendering her 

helpless, and digitally penetrating her.” Accordingly, section 654 requires 

that the sentence imposed on one of the counts be stayed. (See People v. 

Latimer (1993) 5 Cal.4th 1203, 1216–1217 [Section 654 prohibits punishment 

for kidnapping and rape where “the evidence does not suggest any intent or 

objective behind the kidnapping other than to facilitate the rapes”].) 

Although a trial court has discretion under section 654 to select which

term to stay, Perine does not suggest that remand is necessary in this case.

Given the court’s comments at sentencing, there is no likelihood that the 

court would have stayed the sentence imposed on the penetration count 
20

rather than the corporal injury count. (See People v. Gutierrez (2014) 

58 Cal.4th 1354, 1391 [remand for resentencing is appropriate “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’ ”].)

Accordingly, we modify the judgment to stay the sentence imposed on 

count 2.5

DISPOSITION

The judgment is modified to stay the sentence imposed on count 2 and 

affirmed in all other respects.

GOLDMAN, J.

WE CONCUR:

BROWN, P. J.

STREETER, J.

5 We note that the abstract of judgment incorrectly reflects imposition 

of six-year terms on both counts. This error can be corrected when the court 

prepares the amended abstract indicating that the sentence imposed on 

count 2 has been stayed pursuant to section 654.