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Filed 5/24/23 P. v. Estrella CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

LUIS ESTRELLA,

Defendant and Appellant.

E076273

(Super. Ct. No. RIF1705258)

OPINION

APPEAL from the Superior Court of Riverside County. Samuel Diaz, Judge. 

Affirmed.

Christine Vento, under appointment by the Court of Appeal, for Defendant and 

Appellant.

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

General, Charles C. Ragland , Assistant Attorney General, Arlene A. Sevidal and Randall 

D. Einhorn, Deputy Attorneys General, for Plaintiff and Respondent.
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I.

INTRODUCTION

A jury convicted defendant and appellant Luis Estrella of various offenses arising 

from his sexual abuse of his step-daughter, Jane Doe. The trial court sentenced him to a 

term of 270 years to life. Defendant argues the trial court erroneously instructed the jury 

in two respects. We find no prejudicial error and affirm the judgment.

II.

FACTUAL AND PROCEDURAL BACKGROUND1

Doe, born in 2004, and her mother, R.P., moved in with defendant in 2007. In 

2012, when Doe was eight years old, defendant began sexually abusing her. Over the 

course of many years, defendant abused her on a virtually daily basis. Defendant orally 

copulated her, forced her to orally copulate him, fondled her chest and crotch, vaginally 

penetrated her, and sodomized her. Defendant routinely threatened violence against her 

and her family if she told anyone about his abuse. Defendant was also consistently mean 

to Doe, and told her she was “nothing” and had “no control.”

When Doe was around 11 or 12 years old, she eventually told R.P. about 

defendant’s abuse in December 2017. Shortly afterward, R.P. took Doe to the police 

station. Personnel at the station directed R.P. to take Doe to a hospital for a sexual 

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Our recitation of the facts and procedural background is truncated given the 

nature of defendant’s arguments on appeal and our resolution of them.
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assault examination. A vaginal swab contained sperm, but there was insufficient genetic 

information to determine whose it was.

After the examination was performed, R.P. returned to the station with Doe and 

made a pretext call to defendant. Defendant denied ever hitting Doe, but he was often

evasive about R.P.’s questions about whether he sexually abused her and insisted that she 

come home to discuss things in person. At other points during the call, however, 

defendant denied ever abusing Doe. The call concluded with defendant saying, “[t]he 

cops are here” and that he was “going to be messed up for so long.”

A scrotal swab of defendant contained DNA from defendant and someone else, 

which contained “strong evidence” that it was Doe’s DNA. Three t-shirts in the family 

house had defendant’s sperm on them and Doe’s DNA, while Doe’s DNA was 

“possibl[y]” on a fourth t-shirt with defendant’s sperm on it.

A jury convicted defendant of 14 counts of sex offenses against Doe: six counts 

of sexual intercourse with a child 10 years of age or younger (Pen. Code, § 288.7, subd. 

(a); counts 1-6),

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two counts of oral copulation with a child 10 years of age or younger 

(§§ 288.7, subd. (b), 289; counts 7 & 8), two counts of aggravated oral copulation of a

child under 14 years of age (§§ 269, subd. (a)(4), 288a; counts 9 & 10), two counts of

aggravated sodomy of a child under 14 years of age (§§ 269, subd. (a)(3), 288a; counts 

11 & 12), and two counts of aggravated rape of a child under 14 years of age (§§ 261, 

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All further statutory references are to the Penal Code.
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subd. (a)(2)(6), 269, subd. (a)(1); counts 13 & 14). The trial court sentenced defendant to 

an aggregate term of 270 years to life.

III.

DISCUSSION

Defendant argues the trial court erred by instructing the jury with CALCRIM No. 

1190 and erroneously responding to the jury’s question about the age of consent. We 

conclude the trial court properly gave CALCRIM No. 1190 and any error in its response 

to the jury’s question was harmless.

1. CALCRIM NO. 1190

The trial court gave the jury CALCRIM No. 1190, which stated in full:

“Conviction of a sexual assault crime may be based on the testimony of a complaining 

witness alone.” The court also gave CALCRIM No. 301, which told the jury that “The 

testimony of only one witness can prove any fact. Before you conclude that the 

testimony of one witness proves a fact, you should carefully review all the evidence.” 

Defendant contends that the instructions unconstitutionally lowered the prosecution’s 

burden by telling the jury that Jane Doe’s testimony “need not be scrutinized as closely as 

other evidence.”3

But, as defendant concedes, our Supreme Court rejected a similar argument in

People v. Gammage (1992) 2 Cal.4th 693 (Gammage). There, the defendant challenged 

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The People argue defendant forfeited the argument. We exercise our discretion 

to address it on the merits.
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CALCRIM Nos. 301 and 1190 predecessor instructions, respectively CALJIC 2.274and 

CALJIC 10.60.5 (Gammage, supra, at pp. 700-702.) The court held the instructions were 

legally correct and did not imply “that the victim’s testimony is more credible than the 

defendant’s testimony.” (CALCRIM No. 1190, Bench Notes; Gammage, supra, at pp. 

700-702.)

Defendant argues Gammage was wrongly decided and suggests that we should 

“voice [our] disagreement” with it. We decline to do so, follow it here, and conclude the 

trial court properly gave CALCRIM Nos. 301 and 1190 to the jury. (See Auto Equity 

Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455; Gammage, supra, 2 Cal. 4th at 

pp. 700-702.)

2. Answer to Jury Question

During deliberations, the jury submitted a question asking, “Is there a ‘age of 

consent’ or an age when consent could be made by another person or an age when a 

person’s consent cannot be made.” The trial court indicated that it would respond in part 

by telling the jury that the age of consent is 18, which the court thought was appropriate 

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CALJIC 2.27 states in full: “You should give the [uncorroborated] testimony of 

a single witness whatever weight you think it deserves. Testimony concerning any fact by 

one witness, which you believe, [whose testimony about that fact does not require 

corroboration] is sufficient for the proof of that fact. You should carefully review all the 

evidence upon which the proof of that fact depends.”

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CALJIC 10.60 states in full: “It is not essential to a finding of guilt on a charge 

of [rape] [unlawful sexual intercourse] [(sexual activity)] that the testimony of the 

witness with whom sexual relations is alleged to have been committed be corroborated by 

other evidence.”
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under People v. Soto (2011) 51 Cal.4th 299. Defendant objected because Soto involved 

only to lewd and aggravated lewd acts with a minor under the age of 14 (§ 288, subd. (a)-

(b)(1)), an offense defendant was not charged with.

The court disagreed and answered the jury’s question as follows: “The legal age 

of consent is 18. [¶] Counts 1-6 require sexual intercourse of a child ten years of age or 

younger. Refer to Calcrim 1127. [¶] Counts 7-8 require oral copulation of a child ten 

years of age or younger. Refer to Calcrim 1128. [¶] Counts 9-14: Specified sexual acts 

with a child under fourteen. In charges 9-14, the People have the additional element of 

proving, beyond a reasonable doubt, the sexual act was accomplished by use of force, 

violence, duress, menace or fear of immediate and unlawful bodily injury to the child or 

someone else. Refer to Calcrim 1123, then the underlying Calcrim for the separate acts: 

Calcrim 1000 for rape; Calcrim 1015 for oral copulation and Calcrim 1030 for sodomy. 

As to lesser included offenses of battery for counts 9-14, please refer to Calcrim 960.”

Aggravated sexual assault on a child by means of oral copulation (counts 9 & 10) 

requires an act of “[o]ral copulation, in violation of paragraph (2) or (3) of subdivision 

(c), or subdivision (d), of [s]ection 287 or former [s]ection 288a.” (§ 269, subd. (a)(4).) 

Aggravated sodomy of a child (counts 11 & 12) requires “[s]odomy, in violation of 

paragraph (2) or (3) of subdivision (c), or subdivision (d), of [s]ection 286.” (§ 269, 

subd. (a)(3).) Aggravated sexual assault on a child by means of rape (counts 13 & 14) 

requires an act of “[r]ape, in violation of paragraph (2) or (6) of subdivision (a) of 

[s]ection 261.” (§ 269, subd. (a)(1).)
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Subdivisions (c)(2) of section 287 (oral copulation) requires that “the act is 

accomplished against the victim’s will by means of force, violence, duress, menace, or 

fear of immediate and unlawful bodily injury on the victim or another person . . . .” 

Subdivision (c)(3) requires that “the act is accomplished against the victim’s will by 

threatening to retaliate in the future against the victim or any other person . . . .” The 

same language is used in the corresponding subdivisions for sections 286 (sodomy) and 

261 (rape).

Defendant argues the language in these subdivisions imposes a consent element 

for the offenses of aggravated sexual assault based on oral copulation, sodomy, and rape

(counts 9-14). He further argues the consent element was reflected in jury instructions 

for the offenses because CALCRIM Nos. 1015 (counts 9 & 12) and 1030 (counts 11 &

12) said the jury had to find Jane Doe “did not consent to the act” while CALCRIM No. 

1000 (counts 13 & 14) said the jury had to find she “did not consent to the intercourse.” 

Defendant thus argues that the trial court’s instruction that the legal age of consent is 18 

removed a required element of the offenses from the jury’s consideration, which was a 

violation of state and federal law.

We assume without deciding that defendant is correct that the trial court erred, the 

error violated his federal constitutional rights, and thus the federal standard for harmless 

error applies. (Chapman v. California (1967) 386 U.S. 18; People v. Cole (2004) 33 

Cal.4th 1158, 1208-1209.) We conclude any error was harmless beyond a reasonable 

doubt.
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First, defendant never argued that Jane Doe consented. His defense theory was 

that Jane Doe lied about everything and that she was manipulated into doing so by her 

mother to help with her divorce with defendant. Defense counsel never suggested Jane 

Doe did or did not consent. In fact, defendant’s counsel did not mention “consent” in 

closing argument. Counsel instead focused on attacking Jane Doe’s credibility, 

explaining why her testimony was inconsistent or otherwise not credible, and the reasons 

why R.P. had a motive to pressure Jane Doe to lie about defendant’s abuse. In other 

words, the entire defense was that the abuse never happened, not that it was consensual, 

which suggests the trial court’s answer to the jury’s question was harmless. (See People 

v. Chandler (2014) 60 Cal.4th 508, 525 [instruction purporting to remove element of 

offense harmless in part because it was irrelevant to defense theory].)

Second, even if the trial court had instructed the jury that defendant was guilty of 

counts 9 through 14 only if Jane Doe did not consent to the sexual acts, Jane Doe’s 

testimony—which the jury necessarily believed—made clear that she did not consent.

From the time defendant began abusing Jane Doe when she was eight until she was about 

11 or 12, defendant repeatedly told her that he would hurt her and her family if she told 

anyone about his abuse, so she was afraid to talk about it. She remained afraid to reveal 

defendant’s abuse up until she finally told her mother.

She testified that defendant physically forced her to orally copulate him and that 

she was afraid to resist because he was mean and much bigger. She explained that when 

she did not follow his orders, he would “painful[ly]” sodomize her. On the first occasion 
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when he sodomized her, she told him to stop, but he refused. On other occasions when 

she did not obey him, defendant would pin her on the floor and hit her with hard objects.

The only evidence that defendant cites to support his argument that Jane Doe 

consented is her testimony that he stopped threatening her or her family with violence if 

she reported the abuse when she was 11 or 12 and asked him to start using condoms.

But neither shows that she consented to his abuse. In addition to testifying that 

defendant repeatedly used force and threats to abuse her, Jane Doe testified that she did 

never told anyone about defendant’s abuse until telling her mother because she remained 

afraid of defendant. And when she finally told her mother, she was scared that defendant 

was going to hurt her, or she would end up hurting herself. When telling her mother 

about defendant’s abuse, Jane Doe appeared like “a scared child” and said she was afraid 

of defendant. Finally, Jane Doe testified she asked defendant to use a condom—which he 

refused to do—only because she did not want to get pregnant and planned on reporting 

his abuse, not because she consented to intercourse.

Lastly, we note that defendant argues the trial court’s answer to the jury’s question 

was prejudicial because there was insufficient evidence that defendant ever abused Jane 

Doe. But Jane Doe testified at length and in detail about defendant’s abuse, and her 

testimony was buttressed by other evidence. Among other things, T-shirts at the family 

residence had Jane Doe’s DNA and defendant’s sperm on them, and her DNA was found 

on a scrotal swab on defendant. A vaginal swab on Jane Doe contained sperm, although 

it could not be determined whether it was defendant’s. Defendant was evasive when R.P.
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asked him during a pretext call whether he abused Jane Doe. And when R.P. told 

defendant not to sleep in the same room as Jane Doe and to stop all sexual activity with 

him, he agreed without denying the accusations. (See People v. Combs (2004) 34 Cal.4th 

821, 843 [jury can construe “equivocal or evasive” answer to accusation as evidence of 

guilt].)

This case largely turned on Jane Doe’s credibility. By convicting defendant as 

charged, the jury necessarily found her testimony credible. Because Jane Doe 

unambiguously testified that she never consented to defendant’s abuse, no rational juror,

who found her testimony credible, would have found that she consented or that defendant 

did not use force, violence, duress, menace, or fear. As a result, we conclude the trial 

court’s answer to the jury’s question, even if erroneous, was harmless.

IV.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON

J.

We concur:

RAMIREZ

P. J.

McKINSTER

J.