Filed 8/23/21 P. v. Romero CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,

 Plaintiff and Respondent,

v.

DAVID ROMERO,

 Defendant and Appellant.

2d Crim. No. B298960

(Super. Ct. No. 2013020258)

(Ventura County)

David Romero appeals from the judgment after a jury 

convicted him of one count of forcible rape (Pen. Code, § 261, 

subd. (a)(2); count 1) and three counts of domestic violence (Pen. 

Code, § 273.5, subd. (a); counts 2-4), and found true an allegation 

that he kidnapped his victim to facilitate the rape (Pen. Code, 

§ 667.61, subds. (a), (c)(1), & (d)(2)). Romero admitted that he 

had suffered a prior strike conviction (Pen. Code, §§ 667, subds. 

(b)-(i), 1170.12, subds. (a)-(d)) and prior serious felony conviction 

(Pen. Code, § 667, subd. (a)). The trial court sentenced him to 50 

years to life in state prison.
2

Romero contends the trial court erred when it: (1) 

admitted evidence of his prior acts of domestic violence and 

sexual assaults, (2) denied his motion to strike his prior strike 

conviction, and (3) imposed two-year sentences on counts 3 and 4. 

We affirm.

FACTUAL AND PROCEDURAL HISTORY

Romero assaults and rapes B.

Romero and B. began dating in early 2013. On June 

21, Romero sent B. a series of text messages accusing her of 

cheating on him. She denied the accusations, and told Romero 

that she wanted to end their relationship.

Around 4:00 a.m. the next morning, B. awoke to a 

tapping sound on her window. She opened the curtains and saw 

Romero standing outside. He was agitated and asked who was in 

the room with her. B. said that no one was there and let Romero 

see inside.

Romero asked for B.’s phone. She showed it to him

through the window but refused to give it to him. Romero then 

pushed in the screen, pulled B.’s arm through the window, and 

took the phone. He bruised B.’s arms in the process.

Romero climbed through the window and onto B.’s 

bed. He again asked who she was cheating on him with. B. 

reassured Romero that she was not cheating on him and told him 

to leave.

B. was scared and opened the bedroom door so she 

could wake her aunt and uncle. Romero grabbed B.’s arm and 

closed the door. He pinned her to the bed and took her car keys.

Romero forced B. out of the house and into her car. 

When she tried to get away he punched her in the face. He 

locked the car doors and drove away.
3

Romero drove to a park and stopped the car. He told 

B. they should get into the back seat and have sex. When she 

refused, he grabbed her neck and slapped her in the face. They 

then left the park.

Romero drove to a residential neighborhood, where 

he parked the car and got into the back seat. He again said that 

he wanted to have sex. When B. refused, Romero said that she 

had already “fucked somebody else so [she] could do it again.” He 

pinned her down and raped her.

Romero told B. to say that she was a “slut” and 

wanted to have sex with him. He yanked her hair back when she 

refused. B. cried and asked Romero to take her home. He drove 

by her house but then made a U-turn. B. pleaded with Romero to 

let her out of the car. He instead hit her in the mouth, knocking 

several teeth loose.

Around 11:00 a.m., Romero took B. to the hospital. 

He told a nurse there that B. had hit her face on the dashboard of 

the car. He then ran away.

An examination revealed that several of B.’s teeth 

had been dislodged. Her mouth was swollen. She had a knot on 

the side of her face, damaged blood vessels in her eye, and bruises 

on her hand, wrist, and arms. There were fingerprint marks on 

her neck. B. told the nurse that Romero had caused her injuries.

Pretrial proceedings

Prosecutors charged Romero with one count of 

forcible rape and three counts of domestic violence. They alleged 

that he kidnapped B. to facilitate the rape and that he had 

suffered a prior strike conviction and prior serious felony 

conviction. Romero pled not guilty to the charges and denied the 

allegations.
4

In a pretrial motion, Romero sought to bar 

prosecutors from introducing evidence of prior sexual assaults 

and acts of domestic violence committed against M. Prosecutors 

argued the evidence was admissible pursuant to Evidence Code1

sections 1108 and 1109 because both M. and B. had been trapped

in moving vehicles with Romero and he had threatened and 

raped each of them.

M. testified at a pretrial hearing that she met 

Romero when she was 14 or 15 years old. They dated for about 

five years. Once, Romero picked her up to go to the movies. 

When she asked why he was driving in the wrong direction, 

Romero hit her. He later pushed her against a vehicle when she 

tried to retrieve her cell phone.

Another time Romero accused M. of flirting with a 

friend. M. told him he could find his own ride home and got into 

her car. Romero reached through the car window and choked M. 

He then got into the car and hit her. He later grabbed the 

steering wheel while she was driving, causing the car to careen

off a bridge. It was totaled.

In another incident, M. exited an office at her college 

and saw Romero standing outside. He told her that he would 

punch her if she did not let him walk her to class. M. asked him 

to leave her alone. When she walked toward the campus police 

station, Romero told her that he would “fuck [her] up” if she went 

inside.

On another occasion, Romero went to M.’s house and 

told her that he had her school identification. M. let him inside, 

and said that she no longer wanted to date him. He pushed M. 

into her bedroom and raped her.

1 Unlabeled statutory references are to the Evidence Code.
5

Romero showed up at M.’s college on another 

occasion. This time he followed her to her car and took her keys. 

He then demanded her cell phone so he could see if she had been 

talking to anyone else. M. gave him the phone so she could get 

her car keys back. When M. got in the car, Romero got into the 

back seat. M. said that she was driving to the campus police 

station. Romero grabbed the steering wheel and pointed it away 

from the station, toward his house. He hit her when she waved 

to a friend.

M. drove to Romero’s apartment. He told her that if 

she went inside she would only have to stay for 15 minutes and 

they would not have sex. Once inside, Romero started kissing M. 

She wanted to leave. Romero told her that he was going to rape 

her again if she did not have sex with him. He then hit her 

several times.

The trial court found that evidence of these incidents 

was admissible at trial, and denied Romero’s motion to exclude 

them.

Trial proceedings

M. testified at Romero’s trial. Her trial testimony 

was consistent with her testimony at the pretrial hearing.

Romero testified in his own defense. He denied that 

he raped M., but admitted that he pled guilty to threatening and 

stalking her.

Romero said that he met B. in early 2013. The two 

were “attached” and wanted a future together. They had sex in 

the car “all the time.”

On June 21, 2013, Romero and B. talked throughout 

the day. They expected to see each other around 2:00 a.m. the 

next morning. Romero went to B.’s house in the middle of the 
6

night and tapped on her window. He broke the screen on the 

window because he was drunk. B. voluntarily let him inside. He 

did not grab her arm or strike her. He did push her so he could 

take her keys, however.

Romero and B. left her house to go to Port Hueneme. 

He had to force her into the car, and she tried to get out twice. 

Romero forced her back into the car each time but did not punch 

her.

Romero drove to Port Hueneme so they could watch 

the surf. They then went to a park so they could “hook up.” They 

eventually drove to a residential neighborhood where they had 

consensual sex in the car.

Afterward, Romero and B. argued about text 

messages as they drove to his house. When Romero grabbed B.’s 

wrists, she slapped him. He then grabbed her by the neck and 

choked her. She kept slapping him, and he hit her in the face 

and head. She was spitting blood.

Romero drove B. to the hospital. He told a nurse that 

B. had hit her mouth on the dashboard. He ran away because he 

did not want to get arrested.

The jury found Romero guilty of all charges, and 

found the kidnapping allegation true. In a bifurcated proceeding, 

Romero admitted that he had suffered a prior strike conviction

and prior serious felony conviction.

Sentencing

Prior to sentencing, Romero moved to strike his prior 

strike conviction pursuant to People v. Superior Court (Romero) 

(1996) 13 Cal.4th 497 (Romero). He argued the trial court should 

grant his motion “to really just give him a chance at some hope in 

the future” given his relatively young age.
7

B. testified at the hearing on the Romero motion. 

She said that Romero tried to contact her after his arrest “in an 

attempt to sway [her] testimony, to get [her] to work with his 

defense attorneys and not to comply with” prosecutors. She still 

considered him a threat.

The trial court found that striking Romero’s prior 

strike would not be in the interests of justice. Romero was 

arrested in this case after he “did something similar” previously. 

His youthfulness when he committed his crimes did not excuse 

his behavior.

After denying the Romero motion, the trial court 

struck the prior serious felony enhancement and sentenced 

Romero to 50 years to life in prison on his forcible rape conviction 

(25 years to life, doubled due to the prior strike). The court also 

imposed and stayed a consecutive eight-year term on Romero’s 

domestic violence convictions: four years on count 2 (the low 

term of two years, doubled), and a consecutive two years each on 

counts 3 and 4 (one-third the middle term of three years, 

doubled).

DISCUSSION

Evidence of prior sexual assaults and acts of domestic violence

Romero first contends the trial court erred when it 

admitted evidence of his prior sexual assaults and acts of 

domestic violence against M. because those incidents were “so 

numerous and so inflammatory that they outweighed any 

probative value of [his] guilt and overwhelmed the jury’s ability 

to fairly determine guilt as to the charged offenses involving B.”2 

We disagree.

2 Romero also argues the trial court erroneously admitted 

the evidence because it did not consider that “recent law and 
8

In general, evidence of a defendant’s uncharged 

misconduct is inadmissible to prove their predisposition to 

commit such conduct. (§ 1101, subd. (a).) Section 1108 sets forth

an exception to this general rule, allowing evidence of uncharged 

sexual offenses to be admitted to prove the defendant’s 

propensity to commit a charged sexual offense. (People v. 

Villatoro (2012) 54 Cal.4th 1152, 1164.) Section 1109 provides 

another exception, permitting evidence of uncharged acts of 

domestic violence to be admitted to prove the defendant’s 

propensity to commit a charged act of domestic violence. (People 

v. Fruits (2016) 247 Cal.App.4th 188, 202.) Both exceptions are 

subject to the limitations of section 352, which precludes the 

admission of unduly prejudicial evidence. (People v. Brown

(2011) 192 Cal.App.4th 1222, 1233 [section 1109]; People v. Hollie

(2010) 180 Cal.App.4th 1262, 1274 [section 1108].) We review the 

trial court’s admission of evidence pursuant to these sections for 

abuse of discretion. (People v. Story (2009) 45 Cal.4th 1282, 1295 

[section 1108]; Brown, at p. 1233 [sections 352 and 1109].)

There was no abuse of discretion here. A trial court 

must “engage in a careful weighing process under section 352” 

before admitting evidence of a defendant’s uncharged offenses 

pursuant to sections 1108 and 1109. (People v. Falsetta (1999) 21 

Cal.4th 903, 917 (Falsetta).) This includes considering factors 

science recognize reduced culpability in juveniles and young 

adults under 25,” which would have informed its analysis 

regarding whether the incidents involving M. were too remote in 

time to be presented by the jury. But Romero did not raise this 

argument in the proceedings below. It is forfeited. (People v. 

Partida (2005) 37 Cal.4th 428, 435 [party cannot argue on appeal 

that trial court “erred in failing to conduct an analysis it was not 

asked to conduct”].)
9

such as the uncharged act’s “nature, relevance, and possible 

remoteness[;] the degree of certainty of its commission and the 

likelihood of confusing, misleading, or distracting the jurors from 

their main inquiry[;] its similarity to the charged offense[;] its 

likely prejudicial impact on the jurors[;] the burden on the 

defendant in defending against the uncharged offense[;] and the 

availability of less prejudicial alternatives to its outright 

admission, such as admitting some but not all of the defendant’s 

other . . . offenses, or excluding irrelevant though inflammatory 

details surrounding [them]. [Citations.]” (Ibid.)

The court below properly considered these factors 

when it admitted evidence of Romero’s acts against M. The 

offenses Romero committed against M. were similar to those he 

committed against B., rendering them highly probative. (People

v. Balcom (1994) 7 Cal.4th 414, 427.) In both cases, Romero’s 

victims were women with whom he had dating relationships. He 

was jealous and paranoid and accused each of them of having 

relationships with other men. He stalked them, showing up 

unexpectedly at their schools, jobs, and homes. He exploited 

their vulnerabilities, assaulting them when they were alone in 

vehicles or taking their cell phones so they could not call for help. 

His abuse escalated over time, culminating in the rape of each 

victim. (See, e.g., People v. Merchant (2019) 40 Cal.App.5th 1179, 

1192-1193 [evidence sufficiently similar where defendant hit 

victims in moving cars, took their cell phones, and tried to 

prevent their escape]; People v. Rucker (2005) 126 Cal.App.4th 

1107, 1120 [evidence sufficiently similar where defendant stalked 

different girlfriends].)

Admitting the evidence of Romero’s offenses against 

M. was not unduly prejudicial. The similarity of those offenses to 
10

those committed against B. decreased their inflammatory nature. 

(Falsetta, supra, 21 Cal.4th at p. 924; People v. Branch (2001) 91 

Cal.App.4th 274, 283-284.) There was little disparity in the 

strength of the evidence: Romero admitted to many of his 

assaults against both victims when he testified, including that he 

had been convicted of stalking and threatening M. That 

minimized the risk that jurors would be tempted to punish him 

for his prior offenses when deciding whether he committed those 

against B. (Falsetta, supra, 21 Cal.4th at p. 917; see also People

v. Ewoldt (1994) 7 Cal.4th 380, 405.) Additionally, evidence of 

the offenses against M. and those against B. “each came from 

independent sources,” minimizing any risk of distraction or 

confusion. (People v. Dejourney (2011) 192 Cal.App.4th 

1091, 1106; see also Ewoldt, at pp. 404-405 [where evidence of 

prior and current offenses comes from sources unaware of the 

other, probative value of evidence enhanced].) So, too, did the 

jury instructions on reasonable doubt (CALCRIM No. 220) and 

the use of evidence of uncharged offenses (CALCRIM Nos. 852B 

& 1191A). (People v. Mullens (2004) 119 Cal.App.4th 648, 661; 

People v. Frazier (2001) 89 Cal.App.4th 30, 42.) There was thus 

no abuse of discretion when the trial court admitted evidence of 

Romero’s offenses against M.

Prior strike conviction

Romero next contends the trial court erred when it 

denied his motion to strike his prior strike conviction. There was 

no error.

“‘The Three Strikes initiative . . . was intended to 

restrict courts’ discretion in sentencing repeat offenders.’ 

[Citation.]” (People v. Carmony (2004) 33 Cal.4th 367, 377 

(Carmony), alterations omitted.) “To achieve this end, ‘the Three 
11

Strikes law does not offer a discretionary sentencing choice . . . 

but [instead] establishes a sentencing requirement to be applied 

in every case where the defendant has at least one qualifying 

strike, unless the sentencing court “concludes that an exception 

to the scheme should be made because . . . [the] defendant should 

be treated as though [they] actually fell outside the Three Strikes 

scheme.”’ [Citation.]” (Ibid., alterations omitted.) To find such 

an exception, a court must consider the “nature and 

circumstances of [the] present felon[y] and prior serious and/or 

violent felony convictions” and “the particulars of [the 

defendant’s] background, character, and prospects.” (Ibid.)

We review a trial court’s denial of a Romero motion 

for abuse of discretion. (Carmony, supra, 33 Cal.4th at p. 374.) 

We will find such an abuse only “in limited circumstances”: e.g., 

if the court “considered impermissible factors” in denying the 

motion. (Id. at p. 378.) But it is “‘not enough to show that 

reasonable people might disagree about whether to strike one or 

more’ prior conviction allegations.” (Ibid.) So long as the “‘record 

demonstrates that the . . . court balanced the relevant facts and 

reached an impartial decision in conformity with the spirit of the 

law, we [will] affirm [its] ruling, even if we might have ruled 

differently in the first instance’ [citation].” (Ibid.)

The trial court balanced the relevant factors here. 

Romero put B. through a harrowing night of violence, assaulting, 

kidnapping, and raping her. And those were not his first 

offenses: At just 28 years old, he has an extensive juvenile and 

adult criminal record. In the 10 years prior to sentencing alone 

he suffered convictions for criminal threats (Pen. Code, § 422), 

stalking (Pen. Code, § 646.9, subd. (a)), lying to a police officer 

(Pen. Code, § 148.9, subd. (a)), illegally driving or taking a vehicle 
12

(Veh. Code, § 10851, subd. (a)), and driving with an open 

container (Veh. Code, § 23223, subd. (b)). He also previously 

committed offenses similar to those committed against B., 

putting M. through a years-long saga of domestic violence and 

sexual assaults—including rape. That evidences Romero’s 

violent and controlling nature toward women and his use of force 

to commit violent criminal acts against them. Such conduct 

exemplifies the recidivist behavior the Three Strikes law was 

designed to combat. (See, e.g., People v. Leavel (2012) 203 

Cal.App.4th 823, 837-838 [long criminal history and violence of 

current offense justify denial of Romero motion]; People v. Strong 

(2001) 87 Cal.App.4th 328, 340 [multiple recent felonies justifies 

denial of Romero motion].) 

Sentences on counts 3 and 4

Finally, Romero contends the trial court erred when 

it imposed two-year sentences on counts 3 and 4. He is incorrect.

If a defendant is convicted of two or more felonies, 

and the trial court imposes consecutive prison terms, the 

aggregate term of imprisonment is equal to the sum of the 

principal term, the subordinate term(s), and any applicable 

enhancement(s). (Pen. Code, § 1170.1, subd. (a).) Subordinate 

terms are equal to one-third of the middle term of imprisonment 

prescribed for that conviction. (Ibid.) For second-strike 

defendants, like Romero, any subordinate term is then doubled. 

(People v. Nguyen (1999) 21 Cal.4th 197, 207.)

The middle term of imprisonment prescribed for a 

defendant convicted of domestic violence is three years. (Pen. 

Code, § 273.5, subd. (a).) One-third is one year, and doubling 

that results in a term of two years. The sentences imposed on 

counts 3 and 4 were therefore correct.
13

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED.

TANGEMAN, J.

We concur:

GILBERT, P. J.

PERREN, J.
Anthony J. Sabo, Judge

Superior Court County of Ventura

______________________________

Diane E. Berley, 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, Steven D. Matthews and Rama R. 

Maline, Deputy Attorneys General, for Plaintiff and Respondent.