Filed 1/16/24 P. v. Torres 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.

ISAAC TORRES,

Defendant and Appellant.

B319299

(Los Angeles County

Super. Ct. No. BA491138)

APPEAL from a judgment of the Superior Court of 

Los Angeles County, Robert C. Vanderet, Judge. Affirmed in 

part, reversed in part and remanded with directions.

Joshua L. Siegel, 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, Assistant 

Attorney General, Scott A. Taryle and Blythe J. Leszkay, Deputy 

Attorneys General, for Plaintiff and Respondent.

_______________________
2

Isaac Torres appeals his convictions, following a jury trial, 

of domestic battery (Pen. Code,1 § 273.5, subd. (a)), forcible rape 

(§ 261, subd. (a)(2)), forcible oral copulation (§ 287, subd. 

(c)(2)(A)), forcible sexual penetration (§ 289, subd. (a)(1)(A)), and 

threatening a witness (§ 140, subd. (a)). The jury found true the 

allegations that appellant had a prior conviction for domestic 

violence (§ 273.5, subd. (f)(1)) and had kidnapped the victim for 

the three sexual offenses (§ 667.61, subd. (d)(2)). The trial court 

sentenced appellant to five years for the domestic battery 

conviction, eight years plus 25 years to life for each of the three 

sexual offenses and one year for threatening a witness, all 

imposed consecutively for a total of 30 years plus 75 years to life.

Appellant appeals from the judgment of conviction,

contending the trial court erred prejudicially in admitting 

evidence of uncharged acts of domestic violence pursuant to 

Evidence Code section 1109 and in admitting his statement 

indicating an affiliation with a Mexican drug cartel. Appellant 

further contends the court erred prejudicially in failing to 

instruct the jury sua sponte on assault and battery as a lesser 

included offense of domestic battery. He contends these three 

errors were cumulatively prejudicial.

Appellant also contends the trial court erred in sentencing 

him consecutively on the three sexual offenses because there is 

insufficient evidence to support the court’s finding that the 

offenses were committed on separate occasions, and in failing to 

submit the separate occasions to the jury for fact finding.

We agree the trial court erred in failing to instruct on the 

lesser included offenses of domestic battery. We cannot find the 

1 Undesignated statutory references are to the Penal Code.
3

error harmless, and so we reverse the conviction on count 1 and 

remand to permit the People to retry appellant on this charge or 

to accept a reduction to the lesser included offense of simple 

assault or battery, whichever offense has the longer term under 

the circumstances of this case. Appellant and the People agree 

that the eight-year determinate terms for the sexual offenses are 

unauthorized and must be stricken. We agree as well and order 

them stricken. We affirm the judgment of conviction in all other 

respects.

BACKGROUND

Kenia, the victim in this case, met appellant at her aunt’s 

birthday party. Kenia was using drugs at the time. Appellant 

gave her cocaine. The two exchanged telephone numbers. 

Thereafter, they texted each other and spent time together. As 

set forth in more detail in section C of the Discussion below, 

Kenia gave somewhat inconsistent accounts of the relationship. 

She told police she was dating appellant, but at trial she testified 

that their relationship was a transactional one, in which she had 

sex with appellant in exchange for drugs or money.

The last time Kenia had consensual sex with appellant was 

in May 2019. Kenia contacted appellant twice after that, once in 

July to ask for cocaine for her godmother and once in September 

to ask for help with her boyfriend. Appellant did not respond to 

either message.

On the morning of October 12, 2019, appellant called Kenia 

repeatedly from a blocked number. Cell phone records showed 

that appellant called Kenia 53 times that day, starting at 

8:37 a.m., mostly using a blocked number. Kenia did not answer 

most of the calls. When she finally answered, she told appellant 

to stop calling and to leave her alone. Appellant said he was “too 
4

fucked up to drive.” He offered to let Kenia use his car if she 

agreed to help him by driving him to another car. She agreed to 

help him, but said it would be the last time. Appellant said he 

was waiting outside her house.

Kenia went outside and saw that appellant was in a gray 

car which she had not seen before. Kenia got into the driver’s 

seat. Appellant was drinking and had possibly used drugs.

2

Kenia drove, following appellant’s directions, and told him 

she did not want to see him anymore. Appellant eventually told 

her to pull over and step on the brake. When she did so, 

appellant started punching her in the face. He said, “I can make 

you do things you don’t want to do.” Kenia tried to call 911, but 

appellant took away her phone. Appellant grabbed her around 

the neck and forced her toward the back of the car, into the floor 

area behind the driver’s seat. Appellant applied pressure to her 

neck, strangling her. According to Kenia, appellant had never 

before been violent toward her.

Appellant eventually stopped strangling Kenia, got into the 

driver’s seat and drove to a parking lot. There, he took cocaine 

and began stroking her knee. Kenia asked him to take her home. 

Appellant began driving again. He drove to the bottom level of 

an underground parking garage of a building where he used to 

work. It was empty at that level. There, as set forth in more 

detail in section D of the Discussion below, he forcibly orally 

copulated her, forced her to insert a foreign object into her vagina 

and forcibly raped her.

2 Kenia initially asked her sister to come with her, but 

appellant objected when Kenia’s sister got into the back seat of 

the car, and so she left.
5

After appellant completed the sexual offenses, he seemed 

calmer. He told Kenia he would return her phone to her and take 

her home. Appellant was unable to find the phone in the car. He 

retraced the route they had taken and found the phone in the 

street in front of the restaurant where Kenia worked.

Kenia ran into the restaurant and called her mother and 

told her what had happened. Her mother called an Uber for her. 

Kenia also called her aunt, who was a friend of appellant, and 

told her what had happened. Her aunt told her to go to the 

police.

Kenia went home in the Uber, then to the police station 

with her cousin. At the police station, she made a report.

Los Angeles Police Department (LAPD) Officers Daniel 

Battles and William Thomas noticed that Kenia’s nose was 

swollen and she had a bruise on her neck. She looked like she 

had been crying. After interviewing Kenia for about an hour, the 

officers took her to the Santa Monica Hospital Rape Treatment 

Center.

The Sexual Assault Response Team (SART) nurses 

examined Kenia and took photographs. Their report showed a 

bruise on Kenia’s leg, bruising to her eyes, and an abrasion on 

her neck. The latter two injuries were consistent with 

strangulation. The eye bruising was also consistent with being 

punched in the nose. Kenia told the nurses the last time she had 

consensual sex was with her boyfriend three days earlier.

Samples taken during the SART exam were analyzed. 

Appellant contributed all of the male DNA on Kenia’s cervical 

swab, external genital swab, mons pubis swab, and perianal 

swab, and 98 percent of the male DNA on her vaginal swab. 

DNA was also found on a swab from Kenia’s neck; appellant 
6

contributed 11 percent of that DNA, while Kenia contributed 

86 percent.

Appellant’s former girlfriend, Carissa Hayden, testified 

that on October 12, 2019 (the same day as the assault on Kenia), 

she and appellant drove her mother’s car, a gray Honda, to visit 

some of Carissa’s family members in Mentone in San Bernardino 

County, arriving at 9:00 or 10:00 a.m. Appellant then left, saying 

he was going to pick up some money and meet someone to buy 

cocaine. Cell phone records show appellant’s phone was moving 

from San Bernardino toward Los Angeles at 9:11 a.m. According 

to Carissa, appellant was gone a long time, at least four to five 

hours.3 Carissa became angry and called and texted him 

numerous times. Cell phone records show she called him 

146 times; most calls went unanswered. When appellant 

returned, Carissa discovered the gas tank, which previously had 

enough gas to get them home, was now empty. Appellant did not 

have the drugs he said he was going to pick up.

Location data showed appellant’s phone at Kenia’s house 

the morning of October 12, 2019 and at each of the three 

locations she described driving to that morning. Kenia’s phone 

was in the same place as appellant’s phone, with the exception of 

the underground garage, until 11:15 a.m. The phones diverged at 

that point. Appellant’s phone moved toward San Bernardino. 

Kenia’s phone went to her home and the police station.

3 At the preliminary hearing, Carissa had testified appellant 

was with her all day in Mentone. At trial, she explained she lied 

because she was afraid of appellant and the people he knew. 

Appellant told her people were going by her house and it would 

be in her best interest to say they were together. Appellant had 

once grabbed her arm and hurt her shoulder.
7

LAPD had difficulty locating appellant after his attack on 

Kenia. Detectives suggested she message appellant’s cell phone. 

When appellant responded, he was angry that Kenia had sent 

police to his house. Appellant threatened Kenia, as detailed in 

section B of the Discussion below. One of the threats was a 

statement that he was going to talk to “Jay from Sinaloa.”

The parties stipulated that appellant had suffered a prior 

misdemeanor conviction for domestic violence; the prosecutor 

offered the details of his attack on the victim pursuant to 

Evidence Code section 1109 to prove appellant’s propensity for 

such violence. The victim, Jazmina Soto, testified she lived with 

appellant for about four years. Their relationship was a difficult 

one and he once choked her. In September 2014, she moved out 

while he was at work, and ended the relationship.

In October 2014, appellant showed up unannounced at 

Jazmina’s new home, and knocked on her bedroom window. She 

told him to go away. He tried to enter the house through the 

window but was unsuccessful and appeared to leave. Jazmina

went back to bed, but a few minutes later, she heard the kitchen 

window open. She looked out and saw appellant half way 

through the window. Jazmina ran out of the house, called her 

mother, then 911, as appellant chased her. Appellant caught her 

by the hair, threw her to the ground, kicked her in the ribs and 

said, “You fucking bitch. Nobody tells me no.”

Jazmina’s mother arrived at the scene. Appellant dragged 

Jazmina by her hair for a few feet. He then took her phone and 

left. Jazmina obtained a restraining order, which appellant 

repeatedly violated by coming to her home. Appellant was 

convicted in May 2016 of misdemeanor domestic battery.
8

Appellant testified on his own behalf at trial. He admitted 

that things sometimes became “physical” when he and Jazmina

disagreed. He denied climbing through the window into her 

house, pulling her to the ground or kicking her. He pled no 

contest to the misdemeanor because he did not want to miss 

work.

Appellant denied ever selling drugs and claimed he had 

only used cocaine once. He made money by gambling. He did not 

own a gun.

Appellant and Kenia’s aunt were friends; he met Kenia at 

her aunt’s birthday party. He was 34 years old and Kenia was 

about 18 years old. She asked him for a ride and he gave her one. 

She asked him for his phone number, hoping he could help her 

with her brother, who was “following bad footsteps.” Kenia 

texted him a few days later and they met up. She often asked 

him for rides and money, which he gave her. He helped her get 

marijuana.

They began having sex a few months later, in a park, at 

Kenia’s instigation. Thereafter, Kenia contacted him when she 

needed something. They would sometimes have sex.

Appellant testified he saw Kenia three times in the week 

before October 12, 2019. On October 7, Kenia asked him to drive 

her and her aunt to a cleaning job in West Los Angeles, and he 

did so.4 On October 9, Kenia asked appellant to pick her up from 

school because her boyfriend had hit her. Appellant picked her 

4 Data from appellant’s cell phone showed calls between 

Kenia and appellant and movement of their phones together to 

West Los Angeles, but on October 9, not October 7.
9

up and they went to a motel and had sex. Kenia’s neck was red 

from being hit by her boyfriend.

On October 11, 2019, appellant picked Kenia up and they 

had sex in the back of his car. He did not wear a condom. When 

appellant took Kenia to her home, her boyfriend was there, and 

he and appellant got into a physical fight. Kenia tried to 

intervene and her nose was broken.

That night, appellant went out and left his phone in a 

friend’s car. The next morning, on October 12, 2019, appellant 

went with Carissa to Mentone. They went to a bar and then to 

her father’s house. Appellant used Carissa’s phone to call his 

phone many times, hoping that someone would answer it. 

Around 3 p.m., appellant drove to Covina to get money and then 

returned to Mentone. He did not see Kenia that day. Appellant 

gave conflicting testimony about whether he spoke to Kenia on 

the telephone.

In rebuttal, the prosecution offered the expert testimony of 

LAPD Detective Lyman Doster that several text messages on 

appellant’s phone were indicative of drug sales. Two of the 

messages referred to Sinaloa: “Cartelly. My family is Sinaloa” 

and “I have my regular Sinaloa shit.” Detective Doster testified 

there is a drug cartel in Sinaloa.

DISCUSSION

A. The Trial Court Properly Admitted Evidence of Appellant’s 

Prior Incident of Domestic Violence.

Appellant was charged with one count of domestic battery 

violence for his attack on Kenia near the beginning of the drive. 

He contends the trial court abused its discretion in admitting 

evidence of a past act of domestic violence against a former 
10

girlfriend, Jazmina, which resulted in a misdemeanor conviction. 

Appellant acknowledges that Evidence Code section 1109 permits 

the admission of past acts of domestic violence. He contends the

evidence was nevertheless inadmissible under Evidence Code 

section 352, because the evidence had a “severe” risk of causing 

undue prejudice and confusion, which substantially outweighed 

the minimal probative value of the cumulative evidence. He 

contends the erroneous admission of the evidence violated his 

state and federal right to due process.

In a criminal action “in which the defendant is accused of 

an offense involving domestic violence, evidence of the 

defendant’s commission of other domestic violence is not made 

inadmissible by [Evidence Code] [s]ection 1101 if the evidence is 

not inadmissible pursuant to [Evidence Code] section 352.” 

(§ 1109, subd. (a)(1).) Thus, other acts of domestic evidence are 

admitted to show the defendant’s propensity to commit such 

crimes. (People v. Brown (2011) 192 Cal.App.4th 1222, 1232–

1233.)

Evidence Code section 352 requires the court to determine 

whether the probative value of the evidence is “substantially 

outweighed by the probability that its admission will 

(a) necessitate undue consumption of time or (b) create 

substantial danger of undue prejudice, of confusing the issues, or 

of misleading the jury.” (Evid. Code, § 352.) We review a trial 

court’s ruling under [Evidence Code] section 352 for an abuse of 

discretion. (People v. Mani (2022) 74 Cal.App.5th 343, 358.)

Appellant complains of the brevity of the trial court’s ruling 

on the evidence, specifically the court’s failure to expressly 

address the relevant Evidence Code section 352 factors. It is well 

settled that the trial court “ ‘need not expressly weigh prejudice 
11

against probative value or even expressly state that it has done 

so, if the record as a whole shows the court was aware of and 

performed its balancing functions under Evidence Code section 

352.’ ” (People v. Rivera (2019) 7 Cal.5th 306, 344.)

The record shows such awareness by the trial court. The 

prosecutor filed two briefs on the admissibility of the evidence. 

These briefs discussed both Evidence Code sections 1109 and 352, 

and specifically applied the Evidence Code section 352 factors to 

the facts of this case. Both appellant and his attorney were able 

to raise objections to the admission of the evidence at three 

different hearings. Appellant, when in pro per, objected that the 

evidence was not relevant. Later, his counsel objected that the 

prejudicial impact of the evidence significantly outweighed its 

probative value and would require a mini-trial and undue 

consumption of time. Subsequently, counsel also argued that the 

prior incidents were nothing like the incident in this case, due to 

the sexual assaults.

Substantively, appellant contends the Jazmina incident

had minimal probative value because it was not similar to the 

charged incident. Specifically, appellant claims the Jazmina

incident did not involve allegations of sexual offenses as did the 

charged incident. The Jazmina incident also included a claim 

that appellant violated a restraining order and broke into 

Jazmina’s home but the charged incident did not.

Although appellant’s entire course of conduct included 

sexual assaults on Kenia, the battery which was the basis of the 

domestic violence charge occurred first and in a separate location 

from the sexual offenses and was charged separately. The jury 

was instructed that the domestic violence against Jazmina could 

only be considered in deciding the domestic violence charge. 
12

We reject appellant’s argument that Evidence Code section 

1109 evidence can only be introduced where only domestic 

violence is at issue and there are no other charges alleging sexual 

criminal conduct. There is no such restriction in that section.

Because use of the prior incident was limited to the 

domestic violence offense, the appropriate comparison to 

determine probative value is between appellant’s initial conduct 

in this case and his prior act of domestic violence against 

Jazmina. Appellant is correct that even with this narrower view, 

the two incidents are not identical. But, as the People point out, 

there are significant similarities. In both cases, the victim was 

an ex-girlfriend, and appellant showed up at the victim’s house 

unannounced. In both cases, when the victim told appellant that 

she wanted him to leave her alone, appellant physically assaulted 

her. He told both victims, in essence, that he would not take no 

for an answer. More specifically, when Jazmina told appellant to 

go away, he broke into her house. When she fled, he caught her, 

kicked her and dragged her along the ground. He said, “Nobody 

tells me no.” When Kenia told appellant that she did not want to 

see him anymore and wanted him to leave her alone, he told her 

to pull over and then started punching her. He told her, “I can 

make you do things you don’t want to do.” Then he started 

choking her. Given these similarities, we find the probative value 

of the prior incident to be strong.

Turning to the factors which weigh against the 

admissibility of probative evidence, appellant contends Jazmina’s 

testimony was completely unnecessary to the prosecution’s case, 

which depended on whether the jury believed Kenia’s testimony 

or not. We fail to see the logic of this argument.
13

As the jury was correctly instructed in this case, in evaluating 

the credibility of a witness, the jury could consider anything that 

reasonably tends to prove or disprove the truth of the witness’s 

testimony, including how reasonable that testimony is “when you 

consider all the other evidence in the case” and whether “other 

evidence [in the case] prove[d] or disprove[d] any fact about 

which the witness testified.” Jazmina’s testimony that appellant 

committed a prior act of domestic violence could show that he was 

disposed to commit domestic violence and likely to commit the 

charged act of domestic violence. This would certainly support 

Kenia’s testimony.5

Appellant also contends Jazmina’s testimony was 

cumulative because the prosecutor could simply have introduced 

appellant’s record of conviction to prove the prior conviction

allegation attached to the current domestic battery charge. That 

argument might have some force if the only reason to introduce 

Jazmina’s testimony was for this purpose, but it was not.

Appellant next contends Jazmina’s testimony had a severe 

risk of undue prejudice. Because the prior incident was more 

inflammatory than the current conduct, the jury might seek to 

5 To the extent appellant contends that Jazmina’s testimony 

was cumulative on the issue of Kenia’s credibility, appellant has 

failed to provide factual argument or record cites to support such 

an argument. In appellant’s cited case of People v. Mincey (1992) 

2 Cal.4th 408, the Court found the challenged evidence about the 

defendant’s girlfriend’s behavior, proffered as third-party 

culpability evidence, to be cumulative because four other 

separate pieces of evidence directly supported that challenged 

behavior. (Id. at pp. 439–440.) Appellant has not cited any such 

additional evidence concerning Kenia’s testimony about the 

domestic violence.
14

punish him for his prior conduct, and the evidence of the prior 

conduct was stronger and bolstered the comparatively weaker 

current case.

Evidence is unduly prejudicial “ ‘ “when it is of such nature 

as to inflame the emotions of the jury, motivating them to use the 

information, not to logically evaluate the point upon which it is 

relevant, but to reward or punish one side because of the jurors’

emotional reaction. In such a circumstance, the evidence is 

unduly prejudicial because of the substantial likelihood the jury 

will use it for an illegitimate purpose.” ’ ” (People v. Megown

(2018) 28 Cal.App.5th 157, 164.)

Appellant contends Jazmina’s testimony was more 

inflammatory than the charged act because it involved claims 

that appellant broke into Jazmina’s house and violated a 

restraining order. We cannot agree.

Appellant’s attack on Jazmina was short and so involved 

less physical violence. Once Jazmina’s mother arrived, appellant 

left. His attack on Kenia lasted longer and resulted in more 

severe injuries. When appellant stopped choking Kenia, she 

remained imprisoned in his car and at his mercy. Further, in 

terms of undue prejudice, we do compare the totality of 

appellant’s behavior with Jazmina to the totality of his attacks on 

Kenia, and his attacks on Kenia involved sexual assaults as well 

as the initial physical assault. In this context, his prior conduct 

with Jazmina is significantly less inflammatory than the charged 

offenses.

Appellant also contends that because his attack on Jazmina

was punished as a misdemeanor, the jury might be tempted to 

convict him of the charged offense as a way of punishing him for 

his uncharged acts of breaking into Jazmina’s house and 
15

violating a restraining order. Appellant is simply speculating 

that a jury would believe a misdemeanor conviction was not 

punishment enough. Generally, a conviction for the prior conduct 

reduces the prejudicial potential of the conduct underlying the 

conviction. (People v. Jones (2011) 51 Cal.4th 346, 371–372.)

Appellant’s argument that this case is an exception to the general 

rule is based in large part on his claim that the prior conduct was 

more inflammatory than the conduct in this case. We have 

rejected that argument and so necessarily reject the conclusion 

based on it as well.

Appellant contends evidence of the prior incident was 

stronger because appellant pled no contest to it, and so it was 

deemed conclusively proven, while in this case appellant denied 

the charged conduct, making the present case relatively weaker. 

(See People v. Jandres (2014) 226 Cal.App.4th 340, 356.)

Appellant denied kicking or pulling Jazmina to the ground, as 

well.6 Further, appellant’s testimony concerning the events of 

October 12, 2019 was contradicted by Carissa, and his claim that 

his cell phone was in a friend’s car (and just happened to be in 

the places described by Kenia) was not particularly credible.

Thus, we do not view the evidence of the prior incident with 

Jazmina stronger than the evidence in this case.

Appellant next contends Jazmina’s testimony was likely to 

confuse the jury because he disputed the specifics of what 

happened during his battery of Jazmina, and a mini-trial on this 

collateral topic was required. He again contends the jury’s main 

6 Appellant testified that he pled no contest to a 

misdemeanor arising from the October 19, 2014 incident because 

he had a good job that he did not want to lose by going to court a 

lot.
16

inquiry was Kenia’s credibility. This is simply a rehash of prior 

arguments.

The prior incident did have a bearing on Kenia’s credibility, 

as we have just discussed. Similarities between the prior 

incident and the charged incident increase the probative value of 

the prior incident, as appellant has acknowledged, and so the 

details of the prior incident were relevant to the prior incident’s 

admission under Evidence Code section 1109.

Appellant also contends the lower standard of proof for the 

prior incident created a risk of confusion, as did the limitation of 

using the prior incident only for the domestic violence charge and 

not the sexual offense charges. The jury learned of the different 

standards of proof via CALCRIM 852A.

In considering substantially similar language in an 

instruction explaining the admission of prior sexual offenses 

under Evidence Code section 1108, the California Supreme Court 

stated, “We do not find it reasonably likely a jury could interpret 

the instructions to authorize conviction of the charged offenses 

based on a lowered standard of proof.” (People v. Reliford (2003) 

29 Cal.4th 1007, 1016; People v. Johnson (2008) 164 Cal.App.4th

731, 738–739 [rejecting argument that Evidence Code section 

1108 instruction confuses and misleads the jury about the burden 

of proof].) Appellant provides no basis to distinguish the 

instruction in this case for Evidence Code section 1109 from the 

instruction for Evidence Code section 1108.

As for confusion about the use of the prior incident, the 

limiting language of the instruction is clear, and this limitation 

makes logical sense. Having once engaged in a specific type of 

conduct, a person may be more likely to repeat that specific 

conduct again. There is no logical reason to think such past 
17

conduct makes it more likely that a person will engage in a new 

and different type of conduct. In addition, as respondent points 

out, the placement of the limiting instruction reinforces the 

limited use of the prior incident. The instruction on the current 

domestic violence charge was given first, then the prior conviction 

allegation for that count, then CALCRIM 852A on the prior 

incident. Only after that were instructions on the other offenses 

given.

In sum, we find the evidence of the Jazmina incident to 

have strong probative value, with no potential for undue

prejudice. It was not likely to cause confusion and did not result 

in undue consumption of time. Thus, there was no abuse of 

discretion in admitting the evidence. Because we find no error in 

the admission of the evidence, there was no violation of 

appellant’s due process rights.

B. The Trial Court Properly Admitted Appellant’s Statement 

Indicating Affiliation with a Drug Cartel and Related 

Explanatory Evidence.

Appellant contends the trial court abused its discretion in 

admitting evidence that appellant was affiliated with a Mexican 

drug cartel because its probative value was minimal and was far 

outweighed by its severe risk of causing undue prejudice and 

confusion. He further contends the erroneous admission of this 

evidence violated his federal constitutional due process rights.

The evidence of appellant’s affiliation with a cartel was 

raised by appellant himself, in a statement threatening Kenia for 

contacting the police. He initially told her he was going to speak 

with Jay from Sinaloa, and Jay was his “homie that [was] in 

charge.” As the result of this statement, appellant was charged 

with violating section 140, subdivision (a), which prohibits using 
18

“force or threaten[ing] to use force or violence upon the person of 

a witness to, or a victim of, a crime or any other person, or to 

take, damage, or destroy any property of any witness, victim, or 

any other person, because the witness, victim, or other person 

has provided any assistance or information to a law enforcement 

officer, or to a public prosecutor in a criminal proceeding.” (§ 140, 

subd. (a).)

The statute penalizes “only ‘those threatening statements 

that a reasonable listener would understand, in light of the 

context and surrounding circumstances, to constitute a true 

threat, namely, “a serious expression of an intent to commit an 

act of unlawful violence.” ’ ” (People v. Pineda (2022) 13 Cal.5th 

186, 248.)

Even when a gang enhancement is not charged, gang 

evidence may be relevant to the charged offense, and admissible 

so long as it is not more prejudicial than probative and is not 

cumulative. (People v. Albarran (2007) 149 Cal.App.4th

214, 223.) Thus, evidence of gang membership can help prove the 

means of “applying force or fear.” (People v. Hernandez (2004) 

33 Cal.4th 1040, 1049.) More specifically, a reference to knowing 

gang members can reasonably be understood as a threat of 

violence. (See People v. Mendoza (1997) 59 Cal.App.4th 

1333, 1341 [defendant told witness he was going to talk to his 

fellow gang members, and witness became fearful for her life 

because she knew they were capable of violence and would not 

hesitate to retaliate against her].)

Any reference to gang affiliation carries some potential for 

undue prejudice, but there was no information here which 

increased that potential. There was, for example, no evidence of 

the activities of the drug cartel in Sinaloa, apart from drug sales. 
19

There was ample other evidence from Kenia and Carissa that 

appellant himself sold drugs. 

Appellant contends the Sinaloa evidence was cumulative 

because Kenia testified she was already afraid of appellant before 

receiving the Sinaloa message. Appellant has not cited any cases

where the charged offense involves making threats, and the court 

held that one in the series of threats should be excluded because 

it was too prejudicial.

Here, appellant’s threats built in intensity. He texted: 

“After I saw you, [Kenia], people were mad. If I get locked up, 

they gonna come for people.” As appellant points out, Kenia did 

react to this threat. She testified she was scared because she 

understood that this meant that her brother would be shot. No 

such threat is obvious from appellant’s actual statement. Kenia

explained that her fear was based on a prior statement by 

appellant that he “knows people that can . . . take care of a job 

and . . . that [she] should be afraid of” those people. Without any 

indication of who these people were, the evidence is not 

overwhelming that this was a serious threat or that it was 

reasonable for the recipient to be afraid.

The next threat was “I wouldn’t want anything to come 

down on you or your family.” Kenia did not offer any testimony 

about this threat, which is a broad vague statement. Again, 

without more information, the evidence is not overwhelming that 

this was a serious threat or that it was reasonable for the 

recipient to be afraid.

Then came the third threat, in which appellant said he 

would talk to “Jay from Sinaloa.” Kenia testified she became 

scared when she heard this, because Sinaloa is “cartel.” On 

redirect, she testified appellant explained that Jay was “my 
20

homie that is in charge.” Kenia explained this was the first time 

appellant had ever mentioned the name of anyone he worked 

with, and she wondered why he was doing so now. She also 

explained, “I’m from Mexico, so I know how Sinaloa is and I know 

there’s a bunch of cartel out there and [appellant] deals with 

cocaine, so I tried to add everything up.”

Thus, the revelation that Sinaloa were the people appellant 

worked with made his previous vague threats much more serious 

and compelling, and made the implication of violence more 

believable. We do not view this evidence as cumulative,

unnecessary, or only tangentially relevant.

We also do not view the Sinaloa reference as cumulative or 

unnecessary because Kenia was already afraid of appellant

before hearing the Sinaloa reference. She knew him to be a 

violent, armed drug dealer who had already physically hurt her. 

Appellant’s threats explicitly indicate that someone other than 

appellant will harm Kenia or her family. Put differently, 

appellant is conveying that if he ends up in police custody, Kenia

will still not be safe, because someone will harm her or her family 

on his behalf. The identity of those others is highly relevant.

In sum, the reference to Sinaloa was highly probative on 

the section 140 charge, did not have undue prejudicial potential 

and was not cumulative. The trial court did not abuse its 

discretion by admitting the evidence. Since there was no error in 

the admission of the evidence, there was no violation of 

appellant’s federal constitutional due process rights.

C. The Trial Court Erred in Failing to Instruct the Jury on the 

Lesser Included Offenses of Domestic Violence.

Appellant contends the trial court erred in failing to 

instruct the jury sua sponte on the lesser included offenses of 
21

domestic violence under section 273.5, specifically assault (§ 240) 

and battery (§ 242), and the error was prejudicial. We agree the 

trial court erred. We do not find the error harmless, and so we 

reverse the conviction on this count.

As charged in this case, a violation of section 273.5, 

subdivision (a), occurs when the defendant willfully inflicts a 

traumatic condition on the victim, and the defendant and the 

victim had one of the relationships listed in section 273.5, 

subdivision (b). The relevant relationship here was a “dating” 

one, which is defined as “frequent, intimate associations 

primarily characterized by the expectation of affectional or sexual 

involvement independent of financial considerations.” (§ 243, 

subd. (f)(10).) Both simple assault and misdemeanor battery are 

lesser included offenses of domestic violence in violation of 

section 273.5. (People v. Gutierrez (1985) 171 Cal.App.3d 

944, 952.)

“ ‘When there is substantial evidence that an element of the 

charged offense is missing, but that the accused is guilty of a 

lesser included offense, the court must instruct upon the lesser 

included offense, and must allow the jury to return the lesser 

conviction, even if not requested to do so.’ ” (People v. Huggins

(2006) 38 Cal.4th 175, 215.) “ ‘ “ ‘Substantial evidence’ in this 

context is ‘ “evidence from which a jury composed of reasonable 

[persons] could . . . conclude[]” ’ that the lesser offense, but not 

the greater, was committed.” ’ ” (Ibid.) “In deciding whether 

evidence is ‘substantial’ in this context, a court determines only 

its bare legal sufficiency, not its weight.” (People v. Moye (2009) 

47 Cal.4th 537, 556 (Moye).)

We independently review a trial court’s failure to instruct 

on a lesser included offense. (People v. Cook (2006) 39 Cal.4th
22

566, 596.) We assess the sufficiency of the evidence without 

evaluating the credibility of the witnesses. (People v. Wyatt

(2012) 55 Cal.4th 694, 698.) “[W]e review the evidentiary support 

for an instruction ‘in the light most favorable to the defendant’

[citation] and should resolve doubts as to the sufficiency of the 

evidence to warrant instructions ‘in favor of the accused.’ ” 

(People v. Wright (2015) 242 Cal.App.4th 1461, 1483.)

Appellant contends the jury could have found that Kenia’s 

“intimate” relationship with him was a financial one, based on 

what he characterizes as her testimony she had sexual relations 

with appellant in exchange for money and drugs. We agree.

Viewing the evidence in the light most favorable to the 

omitted instructions, Kenia repeatedly testified that her 

relationship with appellant was a transactional one, in which she 

exchanged sex for drugs or money, as set forth below. This is 

substantial evidence that they were not in a dating relationship. 

Put differently, this is substantial evidence that an element of 

the charged offense is missing. As also set forth below, this 

evidence was contradicted at times by Kenia’s own testimony, but 

it was for the jury to decide what portions of Kenia’s testimony to 

believe.

We review the failure to instruct on a lesser included 

offense pursuant to People v. Watson (1956) 46 Cal.2d 818. 

Under that standard, we consider what a reasonable “ ’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 
23

defendant complains affected the result.’ ” (Moye, supra,

47 Cal.4th at p. 556.)

The details of the relationship, as provided by Kenia, were 

that she met him at her aunt’s party and wanted to buy cocaine 

from him, but he just gave it to her. They exchanged phone 

numbers. She called him and he gave her cocaine. She “[hung] 

out with him and [became] friends with him.” At some point, the 

relationship turned into a “romantic” relationship. He “hooked 

[her] up” and kept saying he wanted to be with her, but she told

him she was not interested because he was pursuing other 

women. She thought they were dating. He took her to parks 

sometimes and they would hang out. They did not go out to 

restaurants or movies or out dancing.

When asked if she had sex with appellant, she replied that 

she did, because he “would tell [her] he would give [her] money if 

[she] had sex with him, and he would always give [her] cocaine to 

sell or to use.” She would text him that she would have sex with 

him if he gave her money. She later clarified that when they 

went to the parks, it was late at night to have sex in exchange for 

money or drugs.

Kenia was asked if her connection with appellant was “a 

mutually beneficial situation where you got money and drugs and 

he got sex? Was it that or was this a, I love you, I love you, we’re 

a boyfriend/girlfriend maybe one day we’ll get married 

relationship?” She testified: “Simple money, drugs, and sex.”

Kenia did testify that “for a while” she thought appellant 

wanted to have a relationship with her, because he said he liked 

her, but then she discovered he was talking to other women. She 

told him that she did not “ ‘want to pursue anything, like, further 

than what we have going on already.’ ” She was then asked, “[A]t 
24

that point, you no longer wanted to give him sex in exchange for 

money or drugs?” and she replied, “Correct.”

Kenia also testified that after her boyfriend passed away, 

appellant “kind of kept taking advantage of that” saying he 

wanted to help her out or help her financially because that was 

what her boyfriend had done. He told her he would take care of 

her and she could live with him and his grandmother in exchange 

for cleaning.

We cannot say that the evidence of a transactional 

relationship is comparatively much weaker than the evidence of a 

dating relationship. If anything, we would say the reverse. 

Thus, we cannot say that there is no reasonable probability that 

the omission of the lesser included instructions did not affect the 

verdict. Accordingly, we reverse the conviction and remand to 

permit respondent to retry this charge.

D. There Are No Errors to Cumulate.

Because we have found only one error, we need not and do 

not consider appellant’s claim that the cumulative effect of the 

trial court’s error requires reversal.

E. There Is Sufficient Evidence to Support the Trial Court’s 

Findings That the Three Sex Offenses Were Committed on 

Separate Occasions.

Appellant was sentenced to indeterminate terms of 

25 years to life pursuant to section 667.61, subdivisions (a) and 

(d)(2) on the three sex offenses. Pursuant to section 667.61, 

subdivision (i), the trial court imposed the terms consecutively, as 

required by the trial court’s finding that the offenses occurred on 

“separate occasions” as defined in section 667.6, subdivision 

(d)(2). Section 667.6, subdivision (d)(2) provides: “In determining 
25

whether crimes against a single victim were committed on 

separate occasions under this subdivision, the court shall 

consider whether, between the commission of one sex crime and 

another, the defendant had a reasonable opportunity to reflect 

upon the defendant’s actions and nevertheless resumed sexually 

assaultive behavior. Neither the duration of time between 

crimes, nor whether or not the defendant lost or abandoned the

opportunity to attack, shall be, in and of itself, determinative on 

the issue of whether the crimes in question occurred on separate 

occasions.”

Appellant contends the evidence is insufficient to support 

the trial court’s finding that the sexual offenses took place on 

separate occasions. Appellant contends the offenses were part of 

a continuous course of conduct that occurred in one location 

without time to reflect between the offenses.

The trial court agreed with the prosecutor that appellant 

had time to reflect because he “could [not] become erect, and as a 

result he forced the victim to violate herself by using a foreign 

object and also perform oral copulation until he was able to 

become erect.”

“[O]nce the trial judge resolves the issue of ‘separate 

occasions,’ an appellate court is ‘not at liberty to overturn the 

result unless no reasonable trier of fact could decide that there 

was a reasonable opportunity for reflection.’ ” (People v. Pena

(1992) 7 Cal.App.4th 1294, 1314–1315 (Pena); People v. Garza

(2003) 107 Cal.App.4th 1081, 1092 (Garza).)

We cannot find that “no reasonable trier of fact could decide 

there was a reasonable opportunity for reflection” between the 

sexual offenses. Put differently, a reasonable court could decide 

there was an opportunity to reflect.
26

Here, Kenia testified appellant first orally copulated her 

while she was in the back seat of the car. Appellant made her 

take her pants off, but he was clothed. He was on top of her, 

holding her legs open. At the same time, he was “grabbing 

himself, getting himself hard.” Kenia believed appellant was 

finding it difficult to get an erection. When he finished the oral 

sex, he moved to a normal sitting position and took off his pants 

and shoes. He retrieved a vibrator from somewhere, gave it to 

Kenia, and told her to use it on herself. She initially said, “No,” 

but he told her “Do it” and she complied. He touched himself to 

get an erection. During this time period, they were not physically 

touching each other. They were effectively sitting side by side. 

Then, at some point, he stopped touching himself, and put his 

penis in her vagina; at that point he had an erection.

Appellant contends these acts were a single continuous 

period of assaultive behavior in a single location with no break or 

stop and hence no opportunity to reflect before resuming. He

contends his case is similar to Pena, People v. Dearborne (2019) 

34 Cal.App.5th 250 (Dearborne) and People v. Corona (1988) 

206 Cal.App.3d 13 (Corona), where the courts found no 

opportunity to reflect.

In both Corona and Dearborne, the description of the sexual 

offenses is terse. In Corona, the defendant “removed [the 

victim’s] pants and after more kissing put his finger into her 

vagina. He then kissed her genitals. He then put his penis in her 

vagina.” (Corona, supra, 206 Cal.App.3d at p. 15.) In Dearborne, 

the opinion states only that that the defendant forcibly orally 

copulated the victim, then raped her. (Dearborne, supra,

34 Cal.App.5th at pp. 265–266.) The reason for the brevity is 

presumably the same in both cases. In Corona, the Attorney 
27

General “tacitly concede[d]” there was no evidence of an interval 

between the acts allowing time for reflection. (Corona, at p. 18.) 

In Dearborne, the People explicitly conceded that the evidence did 

not show a significant break. (Dearborne, at pp. 265–266.) In 

Pena, the evidence affirmatively showed there was no time to 

reflect. As the court explained, the defendant raped the victim, 

then “simply flipped the victim over and orally copulated her.” 

(Pena, supra, 7 Cal.App.4th at p. 1316.)7

The evidence in this case is much more detailed, and we 

find it similar to the evidence before the court in Garza. In that 

case, “[a]fter the defendant forced the victim to orally copulate 

him, he let go of her neck, ordered her to strip, punched her in 

the eye, put his gun to her head and threatened to shoot her, and 

stripped along with her” before inserting his finger into her 

vagina. (Garza, supra, 107 Cal.App.4th at p. 1092) The Garza

Court found “[t]hat sequence of events afforded him ample 

opportunity to reflect on his actions” between the two acts.

(Ibid.) After the defendant inserted his finger in the victim’s 

vagina, he “(1) began to play with the victim’s chest; (2) put his 

gun on the back seat; (3) pulled the victim’s legs around his 

shoulders and, finally, (4) forced his penis inside her vagina.” 

(Id. at pp. 1092–1093.) The Garza Court found that this 

sequence of events also afforded the defendant had “adequate 

opportunity for reflection” between the two sex acts. (Id. at 

p. 1093.)

7 To the extent these cases suggest there must be a clear 

break between the sexual offenses, we do not agree. There need 

not be an “obvious break in a perpetrator’s behavior.” (People v.

Irvin (1996) 43 Cal.App.4th 1063, 1070.)
28

Here, appellant similarly engaged in other activities 

between his sex acts. Between the first and second acts, 

appellant let go of Kenia’s legs, changed his own position, took off 

his pants and shoes, and retrieved the vibrator. He then had a 

verbal exchange with Kenia before she began using the vibrator.

This is clearly a break in the sex acts and this series of events 

gave appellant ample time to reflect before the second act began. 

Once Kenia started using the vibrator, appellant sat by himself 

and touched himself to get an erection, then when he had one, he 

stopped self-touching and necessarily changed positions before 

getting on top of and raping Kenia. This series of events, 

particularly the break which occurred when appellant realized he 

had an erection and stopped touching himself, gave him time to 

reflect before he raped Kenia.

F. Section 667.61’s Mandatory Consecutive Sentencing 

Provision Does Not Violate Appellant’s Constitutional

Rights.

In his opening brief, appellant contended that the 

consecutive sentencing requirement of section 667.61, subdivision 

(i), effectively raised the mandatory minimum sentence for his 

crimes, and so the underlying factual question of whether the 

crimes occurred on separate occasions should have been 

submitted to the jury. He claimed the failure to do so violated his 

federal constitutional rights to due process and a jury trial.

As the parties acknowledge in supplemental briefing, the 

California Supreme Court recently considered a similar claim in 

People v. Catarino (2022) 14 Cal.5th 748 (Catarino). In that case, 

the defendant raised the constitutionality of section 667.6, 

subdivision (d), which requires full consecutive terms upon a 

finding the offenses took place on separate occasions. The People 
29

contend the reasoning of the case shows appellant’s argument 

has no merit. In his supplemental brief, appellant contends that 

the case is distinguishable because he was sentenced to 

consecutive sentences under section 667.61.

Appellant’s claim is premised on Apprendi v. New Jersey 

(2000) 530 U.S. 466 (Apprendi), Blakely v. Washington (2004) 

542 U.S. 296 (Blakely), and Alleyne v. United States (2013) 

570 U.S. 99. Apprendi and Blakely hold that due process 

requires any fact, other than a prior conviction, that increases the 

maximum possible sentence must be found true by a jury.

(Apprendi, at p. 490; Blakely, at p. 303.) In Alleyne, the Court 

held that this rule also applied to any fact that raises the 

mandatory minimum. (Alleyne, at pp. 111–117.)

As appellant acknowledges, the United States Supreme 

Court subsequently held in Oregon v. Ice (2009) 555 U.S. 160 (Ice)

that Apprendi and Blakely do not require a jury determination of 

any fact which permits the imposition of consecutive sentences.

(Ice, at pp. 163–165.) The Court in Ice explained that it was 

“ ‘[f]irmly rooted in common law . . . that the selection of either 

concurrent or consecutive sentences rests within the discretion of 

sentencing judges.’ ” (Id. at pp. 168–169.)

Appellant contends that the decision in Ice rests on the 

permissive and protective nature of the sentencing scheme 

involved. The sentencing provision at issue in Ice required 

additional fact finding by the sentencing court in order for the 

court to have the option of consecutive sentencing. Thus, as the 

Ice Court noted, “the defendant—who historically may have faced 

consecutive sentences by default—has been granted by some 

modern legislatures statutory protections meant to temper the 
30

harshness of the historical practice.” (Ice, supra, 555 U.S. at 

p. 169.)

Appellant takes too narrow a view of the reasoning of Ice. 

The Court certainly recognized and endorsed the notion that the 

sentencing provision at issue benefited defendants, but this had 

no bearing on its substantive decision. As the Court explained,

Apprendi and other opinions of the Court “make clear that the 

Sixth Amendment does not countenance legislative encroachment 

on the jury’s traditional domain. [Citation.] We accordingly 

considered whether the finding of a particular fact was 

understood as within ‘the domain of the jury . . . by those who 

framed the Bill of Rights.’ [Citation.]” (Ice, supra, 555 U.S. at 

p. 168.) Historical practice counsels “against extending 

Apprendi’s rule to the imposition of sentences for discrete crimes. 

The decision to impose sentences consecutively is not within the 

jury function that ‘extends down centuries into the common law.’

[Citation.] Instead, specification of the regime for administering 

multiple sentences has long been considered the prerogative of 

state legislatures.” (Ibid.) “The historical record demonstrates 

that the jury played no role in the decision to impose sentences 

consecutively or concurrently. Rather, the choice rested 

exclusively with the judge.” (Ibid.) “The historical record further 

indicates that a judge’s imposition of consecutive, rather than 

concurrent, sentences was the prevailing practice.” (Id. at 

p. 169.) Thus, the Ice Court concluded: “In light of this history, 

legislative reforms regarding the imposition of multiple sentences 

do not implicate the core concerns that prompted our decision in 

Apprendi. There is no encroachment here by the judge upon facts 

historically found by the jury, nor any threat to the jury’s domain 

as a bulwark at trial between the State and the accused.” (Ibid.) 
31

States could, if they chose, impose a more detrimental 

requirement than existed at the common law. As the Court 

noted, “All agree that a scheme making consecutive sentences the 

rule, and concurrent sentences the exception, encounters no Sixth 

Amendment shoal.” (Id. at p. 162.)

The California Supreme Court has previously made it clear 

that this historical analysis is the determinative analysis under 

Ice. (See, e.g. People v. Mosley (2015) 60 Cal.4th 1044, 1049–1050 

[The “Ice [C]ourt determined [that] Apprendi has no application 

to sentencing decisions in which juries played no factfinding role 

at common law.”].) This is the analysis our Supreme Court 

applied in Catarino as well. The Court quoted the historical 

analysis in Ice which we have set forth above. (Catarino, supra,

14 Cal.5th at p. 755.)

Appellant argues the California Supreme Court was only 

approving of a scheme which made a defendant better off than he 

would have been at common law. We do not believe this was a 

factor at all in the Court’s analysis. As the Catarino Court 

explained, “A state could, consistent with the Sixth Amendment, 

require full-term consecutive sentencing in all cases.” (Catarino, 

supra, 14 Cal.5th at p. 757.) This would indisputably make 

defendants worse off than they were at common law.

We do agree with appellant that the Court in Catarino

found section 667.6, subdivision (d) benefitted defendants as 

common law did not, but this does not assist appellant. As the 

California Supreme Court emphasized, the Court in Ice found 

that “judges traditionally had ‘unfettered discretion’ to decide 

‘whether sentences for discrete offenses shall be served 

consecutively or concurrently.’ ” (Catarino, supra, 14 Cal.5th at 

p. 755, italics added.) Viewed in this light, any requirement that 
32

limits judges’ discretion by requiring fact finding before imposing 

consecutive sentences is beneficial to defendants. It may not 

appear so to the defendant whose facts require the consecutive 

sentences, but it does to the defendant whose facts do not support 

consecutive sentences. Thus, “[b]y conditioning the imposition of 

such consecutive sentences on ‘certain predicate factfindings’ (Ice, 

[supra, 555 U.S.] at p. 164), section 667.6[, subdivision] (d) may 

be understood ‘to temper the harshness’ of a historically 

authorized practice. (Ice, at p. 169)” (Catarino, at p. 757.)

Appellant contends that the Court in Catarino did not 

consider the mandatory nature of the consecutive sentencing

provision before it (§ 667.6, subd. (d)), while he is challenging the 

mandatory nature of the consecutive sentencing provision 

applicable to his sentence (§ 667.61, subd. (i)). He claims that 

Catarino therefore is not binding authority in this case. We read 

Catarino differently.

The Court explicitly stated in Catarino: “The question here 

is whether section 667.6[, subdivision] (d), in requiring that a 

sentencing court impose ‘full, separate, and consecutive term[s]’

for certain sex crimes if it finds certain facts, complies with the 

Sixth Amendment. We hold that it does.” (Catarino, supra, 

14 Cal.5th at p. 750, italics added.) The Court later explicitly 

remarked upon the mandatory nature of section 667.6, 

subdivision (d): “As noted, if Catarino had been sentenced under 

the determinate sentencing law or under section 

667.6[, subdivision] (c), the trial court could have imposed 

concurrent sentences or partial consecutive sentences on 

Catarino’s seven counts of conviction, i.e., a full term on one 

principal count and partial terms on six subordinate counts. 

Section 667.6[, subdivision] (d), by contrast, requires full-term 
33

consecutive sentencing upon a finding that ‘the crimes involve 

separate victims or involve the same victim on separate 

occasions.’ Like the statutes in Ice, section 667.6[, subdivision] 

(d) is a ‘specification of the regime for administering multiple 

sentences,’ which ‘has long been considered the prerogative of 

state legislatures.’ ” (Catarino, at p. 755, italics added.)

G. The Eight-Year Determinate Terms for the Sex Offenses

Must Be Stricken.

Appellant contends and the People agree that the 

determinate terms for the three sexual offenses (counts 2, 3, 

and 4) are unauthorized and should be stricken. We agree as 

well.

On each of these counts, the trial court imposed the 

indeterminate term of 25 years to life pursuant to section 667.61, 

subdivision (a), often referred to as the One Strike law.

8 The trial 

court also imposed a consecutive determinate term of eight years 

for each count; this is the high term for each offense. (§§ 287, 

subd. (c)(2)(A) & 289, subd. (a)(1)(A).)

“Because the One Strike law constitutes a separate

sentencing scheme for offenses within its scope, punishment for 

such offenses is not subject to other sentencing schemes, except 

where the One Strike law so provides.” (People v. Rodriguez

(2012) 207 Cal.App.4th 204, 214.) Thus, a defendant may not be 

sentenced to both an indeterminate term under section 667.61 

and a determinate term for the same count. (Rodriguez, at p. 214

8 This term was based on the jury’s true finding on the 

allegation that appellant kidnapped Kenia within the meaning of 

section 667.61, subdivision (d)(2).
34

[court erred in imposing section 667.61 term as an enhancement 

to the determinate term].)

DISPOSITION

We reverse the count 1 conviction for domestic violence in 

violation of section 273.5, and remand to permit the People to 

retry appellant on this count if they choose. We strike the eightyear determinate terms for counts 2, 3, and 4. We affirm the 

judgment in all other respects.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

STRATTON, P. J.

We concur:

GRIMES, J.

WILEY, J.