Filed 5/22/23 P. v. Perona CA2/8

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE,

Plaintiff and Respondent,

v.

KASHUS PERONA,

Defendant and Appellant.

 B317277

 Los Angeles County

 Super. Ct. No. SA102130

APPEAL from a judgment of the Superior Court of 

Los Angeles County, Lauren Weis Birnstein, Judge. Affirmed.

Brad Kaiserman, under appointment by the Court of 

Appeal, for Defendant and Appellant.

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

Assistant Attorney General, Susan Sullivan Pithey, Senior 

Assistant Attorney General, David E. Madeo, Acting Supervisor

Deputy Attorney General, and Marc A. Kohm, Deputy Attorney 

General, for Plaintiff and Respondent.

____________________
2

A jury found Kashus Perona victimized two women: one 

conviction was for rape by impersonation and the other was for 

rape by force. Perona challenges the sufficiency of the evidence of 

rape by impersonation and the court’s joinder of the two cases, as 

well as other rulings. Substantial evidence supports the rape by 

impersonation conviction. The court acted within its discretion 

by deciding to hold one trial instead of two. The other rulings 

were proper. We affirm. Undesignated statutory citations are to 

the Evidence Code.

I

After a 10-day trial and about three days of deliberation, a 

jury found Perona guilty of rape by impersonation of Serina L. 

(Pen. Code, § 261, subd. (a)(5)) and rape by force of Ava M. (Id., 

subd. (a)(2)).

The jury deadlocked on a third count, rape by use of an 

intoxicating substance, an alternative theory of the rape of Ava. 

The court declared a mistrial as to that count.

The court sentenced Perona to eight years in prison.

At trial, three women—Serina, Ava, and Linda N.—

testified about sexual encounters with Perona. The conduct was 

from 2015, 2018, and 2020, respectively. The charges and 

convictions were for Perona’s conduct with Serina and Ava, only. 

We recount the facts of the three encounters.

Serina was a close friend of Stacey, Perona’s girlfriend and 

the mother of his children. Serina lived with her boyfriend, who 

was the same height and build as Perona. On April 19, 2015, 

Perona, Stacey, Serina, Serina’s boyfriend, and three other 

friends came to Serina’s home at about 2:45 a.m. after a night of 

socializing and drinking. Perona was 37 years old.
3

Serina was too intoxicated to walk. She slid to the floor 

when her boyfriend tried to help her to bed. Her boyfriend and 

Perona carried her to her bedroom. There were video cameras in 

the home but not in the bedroom. The jury saw video of the men 

carrying Serina to the bedroom.

Serina fell asleep alone, lying on her side. The bedroom 

had “blackout blinds” and was dark.

Around 3:30 a.m., Serina’s boyfriend fell asleep on a couch. 

Stacey and one friend were sleeping on different couches and 

another friend was sleeping in a guest room.

The jury saw video from about 5:30 a.m. of Perona stopping 

at Serina’s bedroom door, walking around the house for about 

three minutes, entering Serina’s bedroom, and coming out 10 

minutes later.

Serina testified she woke when someone laid down behind 

her. It was dark and she believed the person was her boyfriend. 

The person was silent, rubbed her breasts, and put his finger in 

her vagina. The person put his penis in her vagina and she made 

a noise. He told her not to be loud. She realized it was not her 

boyfriend, turned to see Perona, and pushed him away. Perona 

apologized and left the room.

Serina was scared about immediately reporting what 

happened. She worried it might destroy her relationship with 

her boyfriend and with Stacey. She thought her boyfriend might 

attack Perona.

That night, Serina messaged Perona. She told him she had 

thought he was her boyfriend and she felt violated. She asked 

why he was in her bed. Perona responded he “was messed up 

and that’s no excuse” and said he would call her the next day to 

“clarify and formally apologize.”
4

Serina told her boyfriend about the rape that night.

The next day, April 20, Serina told Stacey, who begged her 

not to report it. Perona called Serina, apologized, and said it was 

a “misunderstanding.” He also messaged her and said he was “no 

criminal” and it was a “big misunderstanding.”

Serina had a sexual assault examination at a hospital on 

April 20. She initially was hesitant to talk to police, though, 

because she did not want people to know what happened. She 

worried it would bring shame on her family and her children. 

She ultimately reported the rape to police within one month.

On April 21, Perona messaged Serina and said, for the first 

time, she initiated the sexual contact and he tried to stop it: 

“[Y]ou’re one of my favorite people and I love you like a sister. I 

came back to give you a big hug, but I didn’t touch you until [you] 

looked at me and then grabbed me. I thought you knew it was 

me, and I didn’t stop you right away, but I did say we’ve got to 

stop twice. I apologized and walked out. I allowed things to go 

too far, but I never wanted that from you and that’s why I 

stopped.”

Serina could not think of anything she had done to make 

Perona think she would consent to sex with him and she 

reviewed old messages to confirm this belief.

We turn to the second encounter. Ava met Perona at a 

nightclub in July 2018. They met a second time on August 13, 

2018. They had dinner, drank alcohol, and went to a hotel. Ava 

was considering having sex with Perona. She felt very 

intoxicated from drinking. Perona offered her half a pill and she 

swallowed it. Perona either told her or she assumed it was 

ecstasy. Perona offered more, but she declined.
5

Then Perona changed the situation. He forced a pill in 

Ava’s mouth and shoved it down her throat. Ava believed Perona 

was going to force her to have sex. She tried to leave, but he 

threw her on the bed. She said, “Please don’t do this. But if 

you’re going to do this, please use a condom.” She told him she 

had a condom in her purse. When Perona got the condom, she 

texted her roommate the word “help” at 1:22 a.m. on August 14. 

Ava’s memories were hazy, but she believed she tried to run to 

the door again and Perona pushed her face down on the bed. She 

screamed and tried to get away. He is about six feet tall and 180 

pounds and Ava weighed about 100 pounds. Perona held her 

down and put his penis in her vagina. She begged him to stop 

and called him names. Ava lost consciousness. Perona woke her 

up at about 6:00 a.m. and they left the hotel.

Later that day, Ava told two friends what had happened. 

Ava went to a hospital, spoke to police, and had a sexual assault 

examination.

On August 14 or 15, Perona messaged Ava to “apologize for 

that evening.” He said he enjoyed getting to know her and “fe[lt] 

like that was too much too soon.”

We turn to the third encounter. Linda lived in California 

and was best friends with Stacey’s sister, who lived in Arizona. 

(Recall Stacey is Perona’s girlfriend and the mother of his 

children.) In May 2020, Linda and a large group were visiting 

Arizona and staying at an Airbnb. The group included Stacey, 

Perona, their three children, another couple and four children, 

two other adults, and two other children. Linda had known

Perona for more than 10 years. He had never been flirtatious 

towards her.
6

On May 23, 2020, the adults drank alcohol throughout the 

day. Linda became intoxicated and fell asleep on an L-shaped 

couch that evening.

Early the next morning, on May 24, Linda partially awoke 

when she heard someone moving a couch cushion. She was very 

tired. Someone moved her on her side and she felt the person lay 

down behind her, touch her breasts, and insert a finger into her 

vagina. She woke fully and told the person to stop. She turned 

and saw Perona. He apologized and left the room. Linda later 

realized Perona’s five- or six-year-old daughter was sleeping on 

another part of the couch and the moved cushion blocked the 

daughter’s view.

Linda thought she could not tell the group what happened 

because everyone in the house was related, they felt like family to 

her, and she did not want the family to see Perona arrested.

She messaged a friend in Los Angeles and said Perona 

sexually assaulted her when she was sleeping. Linda did not 

have a car in Arizona. The friend drove to Arizona and arrived at 

about 1:30 a.m. on May 25. Linda went to a local police station 

and told an officer what happened. She tried unsuccessfully to 

get a sexual assault examination. She returned to California 

without getting an exam.

About a dozen other witnesses testified for the prosecution, 

including Serina’s boyfriend, a forensic nurse, a nurse 

practitioner, a detective, a police officer, several criminalists,

Ava’s roommate, one of Ava’s friends, and one of Linda’s friends. 

Perona testified about the encounters with Serina and Ava.

According to Perona, the sex with Serina was “ill-advised,” 

but he did not pretend to be anyone else and Serina knew it was 
7

him. He was not intoxicated. He “had no reason to believe that 

[Serina] was drunk.” He thought of her “like a sister.”

Before the encounter, he opened the door to Serina’s room 

and saw her in bed, walked around the house, saw everyone 

sleeping, and then entered the bedroom. Serina was asleep. He 

lept on her bed and grasped her from behind. She looked up at 

him and seemed annoyed. He smiled, “then she was fine,” and 

she laid her head back down. Perona did not speak.

Serina reached around and started touching his penis and 

she eventually “directed it to her vagina.” They started to have 

intercourse. Then it “hit him” that this was “reckless” and he 

said, “I’m sorry. We have to stop.” He thought she looked 

perplexed. He left the room.

Perona was caught off guard when Serina messaged him 

that evening and said she had thought he was her boyfriend. 

When he responded and said he “was messed up,” he was 

referring to their infidelity. He apologized because he “shouldn’t 

have let her pull my penis out. . . . I shouldn’t have allowed us to 

have sex.” If he had not become “infatuated with . . . the arousal 

that [Serina] caused, it wouldn’t be a legal matter.”

Turning to the encounter with Ava, Perona said the sex 

was consensual and he denied giving her drugs. They were 

kissing in the hotel room and Ava told him she had a condom in 

her purse, which was in Perona’s car. Perona left to get the 

purse. This took about 10 to 15 minutes. When he returned, Ava 

took the condom out and they had consensual sex. Ava did not 

seem drunk.

The jury saw video from the hotel lobby. The video did not 

show Ava’s purse when they were checking in. Video from the 

next morning showed Perona holding the purse when they left.
8

Perona explained he apologized to Ava because she “maybe 

expressed . . . sadness or regret” about having sex. 

The court instructed the jury on CALCRIM No. 1191B. If 

the jury concluded beyond a reasonable doubt that Perona 

committed one or more of the charged sex offenses, the 

instruction allowed the jury to use that as evidence of his 

propensity to commit the other charged sex offenses.

II

We affirm the convictions.

A

Substantial evidence supports Perona’s conviction for rape 

by impersonation. 

Rape by impersonation under section 261, subdivision (a)(5) 

is when the accused, “by artifice, pretense, or concealment,” 

induces another person to submit to sex “under the belief that the 

person committing the act is someone known to the victim other 

than the accused,” and the accused intends to induce this belief. 

(An earlier version of this law applied to impersonating the 

“victim’s spouse.” In 2013, the Legislature expanded the crime by 

replacing that language with “someone known to the victim.” 

(Pen. Code, § 261, as amended by Assem. Bill No. 65, Stats. 2013, 

ch. 259, § 1.)) 

We review for substantial evidence. (People v. Fleming

(2018) 25 Cal.App.5th 783, 788 (Fleming).) Testimony of one 

witness can be sufficient. (Ibid.) We must accept logical 

inferences the jury might have drawn from circumstantial 

evidence. (Id. at p. 789.)

Perona says he lacked intent. Two relevant opinions have 

addressed intent under the law and its predecessor. We 

summarize this pair of cases. 
9

In People v. Leal (2009) 180 Cal.App.4th 782, 789 (Leal), 

the court held a victim’s testimony was sufficient to sustain a 

defendant’s conviction for rape by impersonation. The victim was 

asleep in bed next to her husband. She woke up to someone 

putting his finger and then his penis in her vagina. She believed 

it was her husband, but it was Leal, a stranger who had entered 

the home through a window. (Id. at pp. 785–786.)

The jury could infer Leal had the required intent. He 

quietly entered, the bedroom was dark, it was the middle of the 

night, and the victim was sleeping next to her husband. (Leal, 

supra, 180 Cal.App.4th at p. 789.) The jury could infer Leal 

intended the victim to believe Leal was the husband. (Id. at pp. 

789–790.) Leal’s silence “spoke volumes” and tended to prove he 

was trying to conceal his identity. (Id. at p. 790.)

The court applied Leal and came to a similar conclusion in 

Fleming, supra, 25 Cal.App.5th at pages 791–793. A group of 

friends including Fleming came to the victim and her husband’s 

home after a night out. (Id. at pp. 785–786.) No one was sober 

enough to drive and the victim was intoxicated. (Ibid.) 

The next morning, the victim was asleep in her bedroom. 

(Fleming, supra, 25 Cal.App.5th at p. 786.) Fleming observed the 

husband soundly sleeping in another room and saw everyone else 

was asleep. (Id. at p. 792.) He quietly entered the victim’s 

bedroom, saw she was asleep facing a wall, approached her from 

behind without speaking, and put his fingers inside her vagina. 

(Id. at pp. 791–792, 786.) The victim thought he was her 

husband until her phone rang, she turned to get it, and Fleming 

pulled the covers over his head. (Id. at p. 786.)

The statute requires artifice, pretense, or concealment, and 

the Fleming court found evidence of all three. (Fleming, supra, 
10

25 Cal.App.5th at p. 793.) There was artifice because Fleming 

was alert, he knew the unconscious husband was separated from 

his unconscious wife, he observed everyone else sleeping, and he 

entered the bedroom stealthily. (Id. at p. 792.) There was 

pretense because Fleming entered the room while the victim was 

asleep with her back turned. (Ibid.) There was concealment 

based on multiple actions, including Fleming’s act of covering 

himself when the victim turned to get her phone. (Id. at pp. 792–

793.)

Applying Leal and Fleming, and viewing the facts in the 

light favorable to the judgment, there was sufficient evidence of 

intent. Perona knew many things: Serina shared a bedroom 

with her boyfriend, the boyfriend was home, Serina knew he was 

home, the boyfriend was similar in size to Perona, and Serina 

was so intoxicated she needed to be carried to bed three hours 

earlier. By walking around the home, Perona knew everyone was 

asleep. With this knowledge, he quietly entered Serina’s dark 

bedroom. Serina initially was asleep. Perona approached her 

from behind, touched her, and did not speak until after they 

began to have sexual intercourse.

Given this context, a jury could find Perona had reason to 

believe Serina would think Perona was her boyfriend, and that 

Perona intended this. 

There was artifice. Perona scouted the home and knew the 

boyfriend was apart from Serina and was asleep. This made it 

less likely the boyfriend would intervene and more likely Serina 

would think Perona was the boyfriend. Perona also knew Serina 

was asleep and intoxicated, which made it less likely she would 

discover his ruse.
11

There was pretense. Perona pretended to be the boyfriend, 

who was similar in size to Perona, by entering the dark room 

Serina shared with him, by approaching her from behind, and 

initially by remaining silent.

For similar reasons, there was concealment. Perona’s 

approach from behind and initial silence in the dark room 

concealed his identity.

Perona’s communications after the rape were also probative 

of intent. The jury could reasonably interpret the apology 

messages to be about his remorse for deceiving Serina. The jury 

could also reasonably discredit Perona’s belated explanation that 

Serina knowingly and aggressively pursued him.

Perona asks us to make different inferences, but that would 

violate the substantial evidence standard of review. 

Perona’s choice ultimately to speak to Serina in the 

bedroom does not negate intent. The reasonable inference is 

that, when Serina made noise, Perona feared others would hear 

and would discover the situation. When Perona told Serina to be 

quiet, the jury could conclude this was evidence of a guilty mind 

seeking concealment, not proof of a consciousness free of 

culpability.

B

The court acted within its discretion by denying Perona’s 

motion to sever the trial. 

Perona moved to sever the trial on the two rapes because, 

he argued, the separate cases were weak on their own, but strong 

together. The court denied the motion. 

Penal Code section 954 permits joinder of offenses of the 

same “class of crimes” and gives courts discretion to sever 

offenses. The law prefers consolidation because it usually 
12

promotes efficiency. (People v. Simon (2016) 1 Cal.5th 98, 122 

(Simon).) 

Our review has two phases. First, we consider the trial 

court’s decision at the time it denied the severance motion. If the 

case meets the requirements for joinder, the defendant must 

make a clear showing of prejudice to establish the trial court 

abused its discretion. (Simon, supra, 1 Cal.5th at pp. 122–123.) 

In the second phase, we consider whether joinder resulted in 

gross unfairness that denied due process. (Id. at p. 123.)

Beginning with the first phase, this case met the 

requirements for joinder under Penal Code section 954 because 

the rapes were in the same class of crimes. We therefore apply 

the abuse of discretion standard and consider the following 

factors: (1) whether evidence of the charges would be cross 

admissible in separate trials, (2) whether a charge was 

“unusually likely” to inflame the jury against the defendant, (3) 

whether one or more charges were weak, and (4) whether a 

charge was a capital offense or joinder converted the matter into 

a capital case. (Simon, supra, 1 Cal.5th at p. 123.) 

Evidence of the two rapes was cross admissible under 

section 1108. Generally, character evidence is inadmissible to 

prove a person’s conduct on a certain occasion. (§ 1101, subd. 

(a).) Evidence a defendant committed a crime is admissible, 

however, to prove certain facts such as absence of mistake or 

intent. (§ 1101, subd. (b).) Section 1108 modifies section 1101 in 

criminal cases involving a sexual offense. In such cases, section 

1101 does not prevent the admission of evidence of the 

defendant’s commission of other sexual offenses. 

The Legislature enacted section 1108 to “relax” the 

constraints of section 1101 and to ensure factfinders know about 
13

defendants’ other sex offenses when evaluating victims’ and 

defendants’ credibility. (People v. Falsetta (1999) 21 Cal.4th 903, 

911 (Falsetta).) Section 1108 evidence can be used to prove 

defendants’ propensity to commit sexual offenses. (People v. 

Villatoro (2012) 54 Cal.4th 1152, 1164 (Villatoro).) 

Section 1108 is subject to the constraints of section 352, 

which gives courts discretion to exclude evidence if the probative 

value is substantially outweighed by the probability that 

admission will require undue consumption of time or will create a 

substantial danger of undue prejudice or of misleading the jury. 

When determining whether to exclude section 1108 

evidence under section 352, courts consider several factors, 

including: whether it is probative; whether it is stronger and 

more inflammatory than evidence of the charged acts; whether it 

is remote or stale; whether it is likely to confuse or distract the 

jurors; and whether it will require an undue consumption of time. 

(People v. Nguyen (2010) 184 Cal.App.4th 1096, 1117.) 

For the first joinder factor, the evidence of the two rapes 

was cross admissible under section 1108 as propensity evidence. 

Section 352 did not bar admission of this evidence. The 

evidence was probative due to the similarities between the 

conduct: vaginal penetration of intoxicated women who did not 

consent to sex with him. As we explain below when we discuss 

the second and third joinder factors, both cases were strong and 

neither was more inflammatory. The 2015 conduct was not 

remote in time from the 2018 conduct. There is no reason to 

think cross admission would confuse or distract the jurors or 

unduly consume time. The evidence was cross admissible. 

For the second and third joinder factors, neither case was 

particularly inflammatory in relation to the other and both were 
14

strong. The animating concern is not whether one offense is 

repulsive, but whether strong evidence of a lesser but 

inflammatory charge may bolster a weak charge. (Simon, supra, 

1 Cal.5th at p. 124.) Perona contends the charges were 

inflammatory in different ways, but he does not demonstrate a 

clear showing of prejudice. He cites People v. Earle (2009) 

172 Cal.App.4th 372, 378 and 384, which involved joinder of a 

misdemeanor indecent exposure charge with an assault with 

intent to commit rape charge. This was improper because the 

assault evidence was “considerably weaker,” the crimes had “no 

distinguishing characteristics in common,” and indecent exposure 

did not rationally support an inference the defendant had a 

propensity to commit rape. (Id. at pp. 378, 395–396.) 

Here, each case was relatively strong. The women quickly 

reported the rapes and got sexual assault exams. They did not 

know one another, and had personal reasons not to report the 

rapes. The video in Serina’s case showed Perona checking 

everyone was asleep to help him accomplish the impersonation. 

The “help” text in Ava’s case was evidence Perona used force. 

Perona’s messages to the victims after the encounters 

strengthened the cases. His apologies tended to show his guilt. 

His delay in telling Serina he thought she knowingly and 

aggressively pursued him tended to show that was untrue. 

Here, neither case was weak, they had commonalities, and 

rape by one method can rationally support an inference of 

propensity to commit rape by another method. (See Villatoro, 

supra, 54 Cal.4th at p. 1164 [quoting legislative history that said, 

“The propensity to commit sexual offenses is not a common 

attribute among the general public,” so propensity evidence is 

“especially probative”].) Perona has not shown prejudice.
15

The fourth joinder factor does not apply because there was 

no capital offense. 

The court did not abuse its discretion by denying Perona’s 

joinder motion.

Turning to the second phase, joinder did not deny Perona a 

fair trial or due process. Courts affirm unless it is reasonably 

probable joinder influenced the jury in its guilty verdict. (Simon, 

supra, 1 Cal.5th at pp. 129–130.) The court instructed the jurors 

that the prosecution needed to prove each charge beyond a 

reasonable doubt. The jurors therefore needed to consider each 

count separately. We presume the jury follows instructions, and 

Perona has not made a contrary showing. (See id. at p. 130.) The 

fact the jury deadlocked on one charge strongly suggests it 

weighed the evidence and differentiated among the charges. (See 

ibid.) Joinder did not make the trial grossly unfair. 

C

The court properly instructed the jury using CALCRIM No. 

1191B. If the jury concluded beyond a reasonable doubt Perona 

committed one or more of the charged sex offenses, this 

instruction allowed but did not require the jury to use that guilty 

finding as evidence of his propensity to commit the other charged 

sex offenses. The Supreme Court has approved the language of 

this instruction. (Villatoro, supra, 54 Cal.4th at pp. 1167–1168.) 

Perona contends the court erred because it needed to but 

did not conduct a section 352 analysis before giving the 

instruction, but we infer the court indeed applied this analysis. 

We may make this inference “ ‘on the basis of record indications 

well short of an express statement.’ ” (Villatoro, supra, 54 

Cal.4th at p. 1168.) CALCRIM No. 1191B is based on section 

1108, which expressly refers to section 352. Furthermore, the 
16

parties and the court extensively discussed section 352 for the 

issues of joinder and admission of Linda’s testimony, both of 

which involved section 1108. The court discussed the “balancing 

test” and the “weighing process,” and pressed the prosecution to 

explain the probative value of the section 1108 evidence. The 

court conducted the proper section 352 balancing when it gave 

CALCRIM No. 1191B.

D

The court’s evidentiary rulings were proper. 

We review evidentiary rulings for an abuse of discretion 

and we reverse only if Perona shows the trial court acted 

arbitrarily or absurdly. (See People v. Powell (2018) 5 Cal.5th 

921, 951.) 

The court properly admitted evidence about Linda under 

section 1108. This evidence had substantial probative value that 

was not substantially outweighed by risk of prejudice, and the 

admission did not make the trial fundamentally unfair.

Evidence Perona assaulted Linda was probative of Perona’s 

propensity to engage in sexual conduct without consent and 

tended to prove he was not mistaken about consent. The three 

encounters were also proximate in time. 

There were similarities between Perona’s conduct with 

Serina and Linda. Each woman had known Perona for years and 

the conduct took place in group settings involving alcohol. There 

was a degree of safety and trust in these environments that 

Perona exploited. He approached the women from behind and 

touched them in similar ways. Like Serina, Linda did not know 

who was behind her. This corroborated Serina’s claim that 

Perona could begin sexual contact with her without her realizing 
17

it was him. The jury properly could infer Perona repeated an 

approach he believed would gain his objective.

The court’s rulings and the conduct Linda alleged limited 

potential prejudice. Perona contends it was unfair to admit the 

evidence because prosecutors in Arizona might bring charges 

against him, so his incentive was to avoid testifying about it. The 

court limited prejudice by forbidding the prosecution from crossexamining Perona about the encounter unless he testified about 

it. Hard choices about whether to testify are not 

unconstitutional. (People v. Frye (1998) 18 Cal.4th 894, 940, 

overruled on other grounds by People v. Doolin (2009) 45 Cal.4th

390.) The court also instructed the jury not to consider whether 

Perona had been punished for his conduct with Linda. Lastly, 

prejudice was limited because the evidence was less 

inflammatory than the charged conduct, which involved sexual 

intercourse rather than just digital penetration. The court did 

not abuse its discretion by admitting this probative evidence.

Perona raises federal and state due process challenges to 

section 1108. He concedes, and we agree, we are bound by the 

California Supreme Court’s rejection of this same challenge in 

Falsetta, supra, 21 Cal.4th at pages 910–922. (See Auto Equity 

Sales v. Superior Court (1962) 57 Cal.2d 450, 455.)

Perona incorrectly challenges three more evidentiary 

rulings. These are about the admission of: Serina’s boyfriend’s 

testimony about what Serina told him after the rape, Ava’s 

statements to a nurse, and Linda’s text to a friend. Perona raised 

but withdrew a fourth challenge.

Admission of the testimony from the boyfriend was 

harmless under any standard. This testimony largely mirrored 

Serina’s testimony. He said Serina told him Perona entered the 
18

bedroom, approached her from behind, and she thought he was 

the boyfriend. Perona’s argument at trial was that Serina had 

consensual sex with Perona and she made up the rape story to 

hide infidelity from her boyfriend. On this theory, Serina made 

up the story that Perona impersonated her boyfriend for the 

purpose of lying to her boyfriend. The boyfriend encouraged her 

to report the rape, and Serina had to keep repeating the same 

false story to maintain the lie to him. The fact the boyfriend 

heard and testified to a similar account to the account Serina 

gave at trial is consistent with the defense theory and therefore 

proved little.

The court did not abuse its discretion by admitting Ava’s 

statements to the nurse. On August 14, 2018, Ava told the nurse 

the following about her encounter with Perona that same day: he 

forced a pill down her throat and made her swallow it with 

vodka, he held her down, she hit his face, he wore a condom and 

at some point removed it, and the drugs and alcohol made her 

lose awareness. The court admitted these statements for two 

purposes: the effect on the listener, and as prior consistent 

statements. Perona concedes these statements were admissible 

for the first purpose, but challenges the second purpose.

These were prior consistent statements. Evidence of a 

prior consistent statement is admissible to support a witness’s 

credibility if: (1) the court admits evidence of the witness’s 

inconsistent statement to attack the witness’s credibility (§ 791, 

subd. (a)) or (2) someone alleges an improper motive influenced 

the witness’s testimony. (Id., subd. (b).) There is a temporal 

requirement: the witness must have made the consistent 

statement before the alleged inconsistent statement or before the 

witness had the alleged improper motive. (Id., subd. (a) & (b).)
19

Perona made broad as well as specific attacks on Ava’s 

credibility. During opening argument, defense counsel said Ava’s 

statements over time were “so inconsistent, contradictory, and 

unreliable” that she must be lying. In closing, defense counsel 

noted Ava grew up in Texas and she might have been saying 

“ ‘Black Man raped me’ and, therefore, every one of you should 

believe it.” “[I]t could just be that this is no different than 

Emmett Till or Tom Robinson.” Defense counsel cross-examined 

and tried to impeach Ava with evidence from her interview with a 

detective on September 12, 2018. This included statements in 

which she expressed uncertainty about whether she actually ran 

for the door and hit Perona or whether she was just dreaming. 

Ava testified she was not dreaming. She did try to punch Perona 

and she did run for the door.

Perona attacked Ava’s credibility by suggesting her 

statements were inconsistent. Section 791 therefore entitled the 

prosecution to admit evidence of consistent statements Ava made 

before the alleged inconsistent statements to the detective to 

bolster her credibility. Ava’s statements to the nurse met this 

temporal requirement. The court acted within its discretion by 

admitting this evidence as prior consistent statements. This 

adherence to the Evidence Code did not make the trial 

fundamentally unfair.

Perona has forfeited a challenge to the court’s admission of 

a text message Linda sent to her friend. (See People v. Sanghera

(2006) 139 Cal.App.4th 1567, 1573 [appellant has burden 

affirmatively to demonstrate error].) The court admitted the 

message under the fresh complaint doctrine and to show Linda’s 

state of mind. Perona’s opening brief quoted the court’s “fresh 

complaint” ground, but it cited no law about that ground and 
20

made no argument about why it did not apply. He has not 

demonstrated error. 

In sum, Perona has not proven evidentiary error. 

E

The trial court properly denied Perona’s motion to dismiss 

based on alleged failure to collect evidence. Substantial evidence 

supports the court’s finding that law enforcement did not act in 

bad faith.

This issue is about Ava’s purse and surveillance video from 

the hotel lobby. There was video of Ava and Perona entering 

after midnight and video of them departing after 6:00 a.m. 

Perona alleged law enforcement lost or destroyed video between 

those times.

According to Perona, the video mattered because the entry 

video did not show Ava’s purse, but the departure video did. He 

says the missing video would have shown him leaving to get 

Ava’s purse. This would have undermined Ava’s testimony, he 

says, because she did not escape or call for help when he left. 

Perona says the footage would have been critical to his defense 

and law enforcement’s failure to collect or preserve it was in bad 

faith. Perona moved to dismiss the case on this basis a month 

before trial.

Perona redacted some of his motion to dismiss and had two 

ex parte hearings about the issue. This was a strategic choice 

based on defense counsel’s belief the prosecution and detective 

did not know Perona may have left the room to get the purse. 

In a hearing with the prosecution and defense, a detective 

testified about the video. The detective originally knew the 

general area of the hotel, but not the name of the hotel. He made 

a list of hotels in that area and visited two or three hotels on 
21

August 29, 2018. An employee at one hotel confirmed Perona had 

stayed there. The detective did not recall the specific 

conversation, but his practice when seeking video footage was to 

give a timeline of the information he knew. In this case, he knew 

an approximate check-in and check-out time, and his common 

practice would have been to ask for video from those times.

The detective returned to the hotel about a week later and 

the employee showed him video of Perona and Ava arriving and 

video of them leaving six hours later. Based on Ava’s statement 

to the responding officer, the detective had no reason to think she 

had been in the lobby other than when she entered and departed. 

The detective saved the arrival and departure video clips. The 

manager of the hotel said the surveillance video was deleted after 

three months.

The court denied Perona’s motion to dismiss. It found the 

detective “very credible” and found he had seen only the arrival 

and departure videos. The court found law enforcement had no 

duty to collect more video, it did not know anyone may have left 

the room, and the defense had other ways to present evidence on 

this topic.

Due process requires law enforcement to preserve evidence 

that has “an exculpatory value that was apparent before the 

evidence was destroyed,” and is of such a nature the defendant 

could not get comparable evidence by other reasonably available 

means. (California v. Trombetta (1984) 467 U.S. 479, 489.) For 

the government’s failure to preserve potentially useful evidence 

to rise to a due process violation, the defendant must show bad 

faith. (Arizona v. Youngblood (1988) 488 U.S. 51, 58.) Bad faith 

turns on law enforcement’s knowledge of the exculpatory value of 
22

the evidence at the time it was lost or destroyed. (Id. at p. 56, 

fn. *.)

We uphold a ruling on this type of motion if substantial 

evidence supports it. (People v. Montes (2014) 58 Cal.4th 809, 

837.)

Substantial evidence does support the finding the evidence 

lacked apparent exculpatory value before it was destroyed. There 

is no evidence that, within the three months before the video was 

deleted, the video’s potential exculpatory value was apparent. 

There is no evidence law enforcement knew or should have 

known Perona or Ava left the room outside of their joint arrival 

and departure. The court found the detective credible. The 

detective never saw the full video and had no reason to think 

Perona or Ava were in the lobby at other times.

Defense counsel’s treatment of this issue bolsters this 

finding. Counsel redacted the motion and had ex parte hearings 

because he believed the prosecution and detective did not know 

Perona may have left the room. This means the video’s 

exculpatory value was not apparent even on the eve of trial. The 

issue is whether the exculpatory value was apparent, not 

whether the investigation was perfect. As the trial court 

correctly explained, the detective was not held to a standard of 

“best investigator possible.” The evidence lacked apparent 

exculpatory value before it was destroyed.

Substantial evidence also supports the court’s finding that 

Perona could address this topic with other evidence. Through the 

entry and departure videos, defense counsel could, and did, argue 

Perona must have left to get the purse. In closing argument, 

defense counsel repeatedly emphasized this issue. Counsel said, 

“The whole purse thing disproves everything” and “it’s nuclear.” 
23

Counsel explained it was “clear” the purse was not in the hotel 

room because “[t]he video showed that.”

In sum, the exculpatory value was not apparent before the 

evidence was destroyed and the defendant had comparable 

evidence. The court properly denied Perona’s motion to dismiss. 

F

There was no cumulative prejudicial error. 

DISPOSITION

The judgment is affirmed. 

WILEY, J.

We concur: 

STRATTON, P. J. 

GRIMES, J.