Filed 4/25/22 P. v. Salinas CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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

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or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

PEDRO SALINAS,

Defendant and Appellant.

F079629

(Super. Ct. No. VCF353719)

OPINION

APPEAL from a judgment of the Superior Court of Tulare County. Gary L. 

Paden, Judge.

Audrey Rene Chavez, under appointment by the Court of Appeal, for Defendant 

and Appellant.

Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief 

Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. 

Bernstein and Darren K. Indermill, Deputy Attorneys General, for Plaintiff and

Respondent.

-ooOoo-
2.

INTRODUCTION

Between October 2008 and July 2017,1 defendant Pedro Salinas sexually abused 

his girlfriend’s young daughter and the daughter’s cousin multiple times. A jury 

convicted defendant of multiple counts of lewd acts upon a child under 14 years of age

(some committed by force), sodomy of a child under 14 years of age, forcible sodomy of

a minor, and sexual penetration of a minor. The trial court sentenced defendant to a total 

term of 122 years to life in prison, including five separate terms of 15 years to life, 

pursuant to the “One Strike” law (Pen. Code, § 667.61).

2

Defendant contends on appeal (1) the evidence was insufficient to prove that the 

victim was under 14 years of age at the time of the lewd act charged in count 5; (2) the 

evidence was insufficient to prove forcible sexual penetration of a child 14 years of age 

or older, as charged in count 12, because the act of penetration involved use of 

defendant’s penis which is not a foreign object for purposes of the statute; (3) the trial 

court erred in not staying his sentence as to count 8 because it involved the same act of 

forcible sodomy as charged in count 9; and (4) the trial court erred in instructing the jury 

to commence deliberations anew after substituting an alternate juror and, therefore, 

deprived defendant of his Sixth Amendment right to a unanimous jury. The People 

concede that we must stay the sentence on count 8 and overturn the convictions on 

counts 5 and 12 but argue that we may modify count 12 to the lesser included offense of 

sexual battery. The People also argue the trial court’s instructions were not in error and, 

if erroneous, did not prejudice defendant. We accept the People’s concessions but 

modify count 12 to the lesser included offense of assault on a person under 18 years of 

age with intent to commit rape (§ 220, subd. (a)(2)). We remand for resentencing and 

otherwise affirm the judgment.

1 Subsequent references to dates are to dates in the year 2017, unless otherwise stated.

2 All further statutory references are to the Penal Code unless otherwise indicated.
3.

PROCEDURAL BACKGROUND

The District Attorney of Tulare County filed an information on April 10, 2018, 

charging defendant with forcible lewd acts upon a child under 14 years of age (§ 288, 

subd. (b)(1); counts 1–3), lewd acts upon a child under 14 years of age (§ 288, subd. (a); 

counts 4–8, 14–16),3 aggravated sexual assault of a child under 14 years of age by 

forcible sodomy (§ 269, subd. (a)(3); count 9), forcible sodomy of a child 14 years of age

or older (§ 286, subd. (c)(2)(C); counts 10, 11), and forcible sexual penetration of a child 

14 years of age or older (§ 289, subd. (a)(1)(C); counts 12, 13).4 As to counts 1 through 

5, 7, 8, and 10 through 16, the information alleged that defendant committed the offenses 

against more than one victim within the meaning of the One Strike law. (§ 667.61, 

subds. (b), (e).) In addition, counts 1 through 5, 8, 14, and 15 each alleged that defendant 

had substantial sexual conduct with a child under 14 years of age. (§ 1203.066, 

subd. (a)(8).)

Defendant pled not guilty to the charges and denied all allegations in the

information.

After a four-day trial, on June 12, 2019, the jury convicted defendant of counts 1

through 6 and 8 through 155 and acquitted him of counts 7 and 16.

6 The jury found true 

the multiple victim circumstances (§ 667.61, subds. (b), (e)) as to counts 2, 3, 14, and 15 

and the allegations that defendant had substantial sexual conduct with a child under 

14 years of age (§ 1203.066, subd. (a)(8)) as to counts 1 through 5, 8, 14, and 15.

3 Count 6 alleged an attempted lewd act upon a child under 14 years of age.

4 Counts 1 through 13 relate to victim G.S., counts 14 and 15 relate to victim M.C., and 

count 16 relates to victim I.C.

5 As to counts 1 and 3, the jury acquitted defendant of forcible lewd acts upon a child but 

convicted him of the lesser included offense of lewd acts upon a minor.

6 Count 7 charged defendant with committing lewd conduct upon a child by touching the 

victim’s buttocks and count 16 charged defendant with committing lewd conduct upon a child by

pulling at her pants.
4.

On July 15, 2019, the court denied probation and sentenced defendant to 

consecutive terms of 15 years to life on each of counts 2, 3, 9, 14, and 15, for a total 

indeterminate term of 75 years to life. The trial court also sentenced defendant to a total 

consecutive determinate term of imprisonment of 47 years7 and imposed a 

$350 restitution fine (former § 1202.4, subd. (b)), a stayed $350 parole revocation 

restitution fine (§ 1202.45, subd. (a)), $300 sex offender fine (§ 290.3), a $1,000 sexual 

offense restitution fine (§ 294, subd. (b)), a $560 court operations assessment (§ 1465.8), 

and a $420 criminal conviction assessment (Gov. Code, § 70373).

8

Defendant timely appealed that same day.

FACTS

I. People’s Evidence

A. Defendant Sexually Abused G.S., His Girlfriend’s Daughter (counts 1–13)

G.S. was six or seven years old when her mother, Estella,

9

started dating 

defendant in May of 2008 or 2009.

10

 Defendant moved in with Estella and G.S. shortly 

thereafter. After they had been together approximately one to two years, in 2010, 

defendant and Estella had a son, Brian. Estella was with defendant for eight or nine 

years, ending their relationship in July after she learned defendant sexually abused G.S.

When defendant first moved in with Estella and G.S., they lived with Estella’s 

sister, Celia, and her two daughters, Yasbel and Jennifer. One or two years later (while 

7 The trial court sentenced defendant to six years on count 1 and consecutive one-third 

terms on counts 4, 5, 6, and 8 (two years, two years, one year, & two years, respectively), plus 

nine years on count 10, nine years on count 11, eight years on count 12, and eight years on 

count 13.

8 The court ordered that victim restitution remain open. (Former § 1202.4, subd. (f).)

9 We will refer to the victims and their family by first names and/or initials to preserve the 

privacy of G.S., M.C., and I.C. No disrespect is intended.

10 G.S. testified that she was born 2001.
5.

Estella was pregnant with Brian), defendant, G.S., and Estella moved in with Estella’s 

sister, Salustia, and Salustia’s daughters, Livoria, M.C., and I.C.

G.S. described a time while living at Celia’s house, before she was 14 years old,

when defendant showed his penis to G.S., M.C., and I.C.11 Defendant offered to let them 

touch it, but the girls hid behind curtains because they did not want to look. G.S. 

described another time, before she turned 14 years old, when she was sitting on the bed 

and defendant touched her. Defendant put his finger into her anus.

12

 Her cousin, Yasbel, 

was home and almost saw it happen, but G.S. never told Yasbel.

G.S. would sometimes sleep with her mother, Estella, and defendant. One time, 

while Estella was pregnant, defendant reached over and grabbed G.S.’s buttocks over her 

pajamas. G.S. was in third grade when that happened.13 Another time, G.S. was playing 

with a friend and defendant twirled her while holding her on his shoulder. G.S.’s friend 

later told G.S. that defendant had touched her buttocks while twirling her in the air.14

Later, while Estella was in the hospital giving birth, defendant touched G.S.

again.15 Defendant went into Estella’s bedroom and pulled G.S.’s pants down despite her 

resistance. He then put his fingers into her vagina for approximately 20 minutes. G.S. 

11 On cross-examination, G.S. remembered that another cousin, Iris, was also present.

12 During closing argument, the prosecutor argued this incident supported conviction on 

count 1, a forcible lewd act upon a child under 14 years of age in violation of section 288, 

subdivision (b)(1). The jury convicted defendant of the lesser included offense of a lewd act 

upon a child under 14 years of age. (§ 288, subd. (a).)

13 During closing argument, the prosecutor argued this incident supported conviction on 

count 7, a lewd act upon a child under 14 years of age in violation of section 288, 

subdivision (a).

14 The prosecutor argued this incident also supported conviction on count 7, a lewd act upon 

a child under 14 years of age in violation of section 288, subdivision (a) and reminded the jury to 

agree on which incident supported conviction.

15 As Brian was born in 2010, this incident would have occurred when G.S. was 

approximately eight years old. During closing argument, the prosecutor argued this incident 

supported conviction on count 2, a forcible lewd act upon a child under 14 years of age in 

violation of section 288, subdivision (b)(1).
6.

said that defendant caused her pain and she noticed blood after the incident. Defendant 

threatened to do worse to G.S. if she told anyone what he had done, and she became 

afraid that he would rape her.

G.S. testified about another incident where defendant had touched her vagina 

while in a vehicle in a store parking lot.16 She had accompanied defendant to purchase 

dog food, but when they reached the parking lot, defendant reached back to where she 

was sitting and put his fingers into her vagina. Although G.S. cried and attempted to 

avoid him, defendant was able to insert his fingers. G.S. bled onto her underwear and 

defendant threw them away when they arrived home so Estella would not see. This 

incident occurred before G.S. turned 14 years old.

G.S. described that her mother would leave to work in the fields at 5:00 a.m. or 

6:00 a.m. most mornings, leaving G.S. with defendant and her brother Brian. While 

Brian was sleeping, defendant would wake G.S., take her to his bedroom, and sexually 

assault her before he left for work. Until G.S. reported the abuse to the police on July 19, 

defendant sexually abused her approximately five to six times per week, mostly when her 

mother was at work, at the store, helping family members, or doing laundry in a detached 

part of the residence.

Estella testified that during her relationship with defendant, she worked in the 

fields, stopping only for the birth of their son, Brian. Estella also testified that she left for 

work every morning, approximately five or six days a week, between 5:00 a.m. and 

6:00 a.m. (or 4:30 a.m.–5:30 a.m., depending on the time of year), leaving G.S. and Brian 

home with defendant until he left for work. Defendant worked for an irrigation company 

and would leave for work after Estella, sometimes as early as 6:00 a.m.

16 During closing argument, the prosecutor argued this incident supported conviction on 

count 3, a forcible lewd act upon a child under 14 years of age violation of section 288, 

subdivision (b)(1).
7.

G.S. testified that defendant threatened her several times during the years of sexual 

abuse and said that he would hurt her if she ever told anyone of the abuse. She was afraid 

of defendant because defendant continually threatened and forced her to comply with the 

abuse.

One time, before G.S. was 14 years old, defendant ordered G.S. into the bedroom 

for sexual abuse, and G.S. refused to go. Her mother was sleeping by the couch, so G.S. 

laid down near her. Defendant brought a knife from the kitchen and told G.S. to go to 

defendant’s bedroom while using the knife to cut his fingernails. G.S. interpreted the 

action as a threat to compel her to obey. G.S. woke Estella, Estella asked defendant why 

he had the knife, and defendant claimed he was using it to cut his nails. Estella 

remembered waking up and seeing defendant with a knife but testified that he often 

cleaned his nails with a knife.

G.S. testified that when she was in third or fourth grade, she told Estella defendant 

had been touching her. According to G.S., Estella discussed it with defendant that 

evening and, the next day, defendant punished G.S. by putting his fingers into her vagina. 

Estella testified that G.S. did not tell her defendant had been sexually abusing her.

G.S. testified that between the time that defendant first sexually abused her and the 

day that she reported the abuse to the police, defendant tried to force his penis into her 

vagina several times.17 He would touch his penis to her vagina, and it would not go all 

the way inside. G.S. initially testified that this happened more than five times but 

clarified she could not remember the specific days, just that it happened more than once 

before she turned 14 years old.

17 During closing argument, the prosecutor argued this incident supported conviction on

count 6, an attempted lewd act upon a child under 14 years of age (§ 288, subd. (a)).
8.

In addition to the other acts of sexual abuse, defendant also put his mouth on 

G.S.’s vagina at least 50 times and at least one time before she turned 14 years old.

18

Defendant also made G.S. put her mouth on his penis approximately 10 times, but she did 

not remember if any of those incidents occurred before she turned 14 years old.

19

G.S. testified that defendant put his finger into her anus approximately 30 times 

over the years, and more than three of those incidents occurred before she was 14 years 

old. Defendant put his penis into her anus approximately 10 to 15 times in that period but 

only once before she turned 14 years old.

20

 Defendant would use lubricant or saliva on 

his finger before inserting it into her anus, and usually inserted his finger first before 

inserting his penis.

As G.S. got older, defendant would put his penis into her anus with increasing 

frequency. Defendant did this to her both in his bedroom and in the living room. During 

one incident, in the living room, defendant bent her over the couch, with her feet on the 

floor and her upper body on the cushions. While defendant put his penis into her anus, 

she cried and screamed into the cushion because of the pain.21

18 During closing argument, the prosecutor explained that this conduct was the basis of 

count 4, a lewd act upon a child under 14 years of age (§ 288, subd. (a)).

19 During closing argument, the prosecutor explained that this conduct was the basis of 

count 5, a lewd act upon a child under 14 years of age (§ 288, subd. (a)).

20 During closing argument, the prosecutor explained that this conduct was the basis of 

count 8, a lewd act upon a child under 14 years of age (§ 288, subd. (a)).

21 During closing argument, the prosecutor explained that this conduct was the basis of 

count 9, aggravated sexual assault of a child under 14 years of age by forcible sodomy (§ 269, 

subd. (a)(3)). The prosecutor explained that counts 10 and 11, forcible sodomy, related to the 

first time and last time defendant put his penis in G.S.’s anus when she was 14 years of age or 

older (§ 286, subd. (c)(2)(C)).
9.

G.S. revealed defendant’s sexual abuse on July 19. G.S. testified that the day 

before reporting the sexual abuse, on July 18,22 defendant told G.S. that he would be 

gradually inserting his penis into her vagina to expand her vagina so that by the time she 

turned 18 years old, he would be able to fully insert his penis. Defendant inserted his 

penis into her vagina, but it did not go all the way inside.23 Defendant also put his finger 

into G.S.’s anus before he inserted his penis. He rubbed his penis between her legs until 

sperm came out.24 G.S. used toilet paper to wipe the sperm from her body. G.S. 

showered the next day.

On July 19, G.S. told the police that earlier that day defendant had sexually abused 

her by putting his penis into her anus and was interrupted by the arrival of his 

coworker.25 G.S. did not recall anyone else arriving at the residence that morning.

B. Discovery of Defendant’s Sexual Abuse of G.S., M.C., and I.C.

On July 18, I.C. and M.C. told their cousin, Daisy, that defendant had sexually 

abused them. The following day, G.S.’s cousin (either M.C. or I.C.) texted G.S. and 

invited her to M.C.’s house. G.S.’s other cousins, Daisy and Iris, picked G.S. up to take 

her to M.C.’s house. During the car ride, Daisy asked G.S. if defendant ever touched her. 

G.S. denied it because she did not “want to say it.” Daisy asked again and told G.S. that 

M.C. and I.C. had told Daisy that defendant touched them. G.S. broke down crying and 

admitted that defendant had been sexually abusing her. Upon arriving at M.C.’s house, 

22 G.S. testified to sexual assaults by defendant on both July 18 and 19. During direct 

testimony, she described that defendant had put his penis in her anus and ejaculated on July 19,

the same day the abuse was reported to the police. Defense counsel elicited that those events 

occurred the day before, on July 18.

23 In closing argument, the prosecutor explained to the jury that this incident was charged in 

count 12, forcible sexual penetration of a child 14 years of age or older (§ 289, subd. (a)(1)).

24 In closing argument, the prosecutor explained that this incident was charged in count 11, 

forcible sodomy upon a child 14 years of age or older (§ 286, subd. (c)(2)(C)).

25 In closing argument, the prosecutor explained that this incident was charged in count 13, 

forcible sexual penetration of a child 14 years of age or older. (§ 289, subd. (a)(1)).
10.

Salustia (Estella’s sister and the mother of M.C. and I.C.) called the police and reported 

what defendant had done.

Estella testified that she learned about the allegations against defendant from Celia 

when G.S. did not return from M.C.’s house. When she called defendant, he denied the 

allegations. Estella then called the police and, while the police were with her, she called 

defendant again. Defendant continued to deny the allegations. Estella asked defendant to 

return to their residence, but defendant refused. He told Estella that he was not stupid 

and would not go to jail. Defendant sounded as if he had been drinking, although he had 

not had a drink for more than a year before that day. Defendant claimed that whatever 

was being said was not true. Defendant demanded to speak to G.S. and became upset

when Estella refused.

After speaking with the police, G.S. submitted to a sexual assault examination that 

included swabbing the inside and outside of her anus and vagina. G.S. testified that she 

did not sit on any furniture while unclothed, rub defendant’s clothing on her genitals, or 

rub any other item with his DNA on her genitals. The family shared a single bathroom. 

G.S. further testified that she had told the truth to the police, no one told her what to say, 

and that her testimony was truthful.

Angela Yarbrough, a nurse, testified that G.S.’s sexual assault examination

involved a visual inspection of her external genitalia, vaginal area, perineum, and rectal 

area. Because of the invasiveness of the exams, G.S. refused to allow a speculum exam 

or anus scope exam. G.S. advised Yarbrough that G.S. had showered earlier that day. 

The examination resulted in no physical findings, which is not uncommon, though there 

were some abnormal secretions coming out of her vagina. The findings were consistent 

with the history given by G.S.

Yarbrough obtained a vaginal swab, rectal swab, and an external genitalia swab 

and submitted them for DNA analysis. Adrian Mendoza, a senior criminalist with the 

Department of Justice at the Fresno Regional Laboratory, testified that he extracted DNA 
11.

from the swabs and separated the DNA extractions into a “sperm fraction” and a “nonsperm fraction.”

According to Mendoza, the vaginal swab tested negative for both sperm and p30, a 

protein found in seminal fluid. The rectal swab and external genitalia swab both tested 

negative for sperm but positive for p30. A mixture of DNA was found for the sperm 

fraction of the external genitalia swab, consistent with G.S. as a major contributor and a 

minor male contributor, although it could not be determined whether the male DNA was 

from semen, blood, or skin cells. Defendant could not be eliminated as the male 

contributor. However, the minor contributor types are expected to occur in randomly 

selected individuals of one in approximately 96 quadrillion African Americans, 

18 quadrillion Caucasians, and 91 quadrillion Hispanics.

Mendoza could not opine as to when defendant’s DNA was transferred to G.S. or 

how it was transferred. Mendoza acknowledged that individuals sharing a residence 

would have contact with the DNA of other occupants and transfer could take place. If 

such a transfer happened, the number of cells transferred would be small. Upon 

questioning by the defense, Mendoza testified that male ejaculate could remain detectable 

up to five days, depending upon the environment and whether the victim had a bowel 

movement, wiped the area, or showered after the transfer.

C. Defendant Sexually Abused G.S.’s Cousin, M.C. (counts 14 & 15)

M.C., 16 years old at the time of trial, testified her aunt Estella, G.S., and 

defendant lived with her family when she was six years old. Estella and defendant’s son,

Brian, had not yet been born when they moved into the house. One day, G.S. and M.C. 

arrived home from school and only defendant was present. At some point, M.C. went 

into G.S.’s room looking for her. G.S. shared the room with defendant and Estella. G.S. 

was not there, having used the sliding glass door to go outside. However, defendant was 
12.

in the room. He took down M.C.’s pants, put his fingers inside her vagina, and moved 

them around. She never told anyone.

M.C. also described when defendant touched her vagina a second time, several 

months later. M.C. and her sister, I.C., accompanied Estella, defendant, and G.S. to a 

lake where they went swimming. M.C. thought that Brian might have been there, but she 

was not sure. Defendant joined her in the water and again put his fingers into her vagina. 

M.C. did not tell anyone. M.C. testified that “at the time [Estella, G.S., defendant, and 

Brian] moved out of [her] house” and she “just stopped going to their house after that. 

[She] wouldn’t go there.”

When M.C. was 14 years old, in July, she told the police about these incidents. 

She had spoken of them to her older cousin, Daisy, who then told M.C.’s sister, Livoria, 

and Livoria contacted the police the following day. Daisy believed that if defendant had 

touched M.C., he most likely also touched G.S., and Daisy arranged to talk to G.S. 

However, M.C. did not discuss the incidents with G.S.

D. Testimony of G.S.’s Cousin I.C. (count 16)

M.C.’s sister, I.C., was approximately seven years old when she first felt 

uncomfortable around defendant because of the way he stared at her. When she was 9 or 

10 years old, she stayed at G.S.’s house and defendant tried to touch her.26 I.C. was 

entering the bathroom when defendant prevented her from closing the door. She left the 

bathroom and defendant followed her into the kitchen where he attempted to pull down 

her pants. She held onto her pants and defendant grabbed her hands so he could pull 

them down. Defendant promised I.C. that if she let him pull down her pants, he would 

buy her whatever she wanted. I.C. was able to get away from defendant.

26 I.C. testified that she stayed at G.S.’s house for one week. Estella and G.S. testified that 

they did not remember I.C. ever staying at their house for that length of time.
13.

I.C. told her parents that she did not want to return to G.S.’s house but did not tell 

them the reason. I.C. did not tell anyone about the incident until she was 13 years old

when she told her cousin, Daisy, and the next day, the police. I.C. did not discuss this 

incident with M.C., and while I.C. knew M.C. never wanted to go to G.S.’s house, she 

did not know the reason.

II. Defense Evidence

Lola Yarbrough27 worked as a public health nurse, and in July, defendant was her

patient. As part of her duties, Lola would take medication to defendant and watch him 

take it. Lola arrived at defendant’s residence Mondays through Thursdays, at 

approximately 6:45 a.m. (before he left for work at 7:00 a.m.) and would leave after 5 or 

10 minutes. During the visits, she stayed just inside the residence by the front door. She 

last visited defendant on July 18 and 19.

DISCUSSION

I. Sufficiency of the Evidence as to counts 5 and 12

A. Lewd Act Upon a Child Under 14 Years of Age (count 5)

Defendant argues that the evidence is insufficient to support his conviction on 

count 5 because the prosecution failed to present evidence that G.S. was under 14 years

of age at the time. The People agree. We have reviewed the record and accept this 

concession.

1. Background

Defendant was charged in count 5 with committing a lewd act upon a child under 

14 years of age, “to wit, mouth to penis,” in violation of section 288, subdivision (a). 

(Capitalization omitted.) During closing argument, the prosecutor explained to the jury 

that count 5 applied to G.S.’s testimony that defendant forced G.S. to put her mouth on 

27 Because another witness has the same surname, we refer to Lola Yarbrough by her first 

name. No disrespect is intended.
14.

his penis approximately 10 times. During this testimony, the prosecutor asked G.S., 

“And was at least one of those times before you turned 14 years old?” G.S. replied, “I 

don’t remember.” The record contains no additional testimony regarding G.S.’s age 

when the act charged in count 5 occurred.

2. Applicable Law and Standard of Review

In reviewing the sufficiency of evidence to support a conviction, we examine the 

entire record and draw all reasonable inferences therefrom in favor of the judgment to 

determine whether it discloses substantial credible evidence from which a reasonable trier 

of fact could find the defendant guilty beyond a reasonable doubt. (People v. Brooks

(2017) 3 Cal.5th 1, 57.) We do not redetermine the weight of the evidence or the 

credibility of witnesses. (People v. Albillar (2010) 51 Cal.4th 47, 60; People v. Young

(2005) 34 Cal.4th 1149, 1181 [“Resolution of conflicts and inconsistencies in the 

testimony is the exclusive province of the trier of fact.”].) We must accept logical 

inferences that the trier of fact might have drawn from the evidence although we would 

have concluded otherwise. (People v. Streeter (2012) 54 Cal.4th 205, 241, overruled on 

other grounds as stated in People v. Harris (2013) 57 Cal.4th 804, 834.) “If the 

circumstances reasonably justify the trier of fact’s findings, reversal of the judgment is 

not warranted simply because the circumstances might also reasonably be reconciled with 

a contrary finding.” (Albillar, at p. 60.) “Moreover, unless the testimony is physically 

impossible or inherently improbable, testimony of a single witness is sufficient to support 

a conviction.” (Young, at p. 1181.)

To prove that defendant is guilty of committing a lewd or lascivious act upon a 

child under 14 years of age, in violation of section 288, subdivision (a), the People were 

required to prove that: (1) defendant willfully touched any part of a child’s body either

on the bare skin or through the clothing; (2) defendant committed the act with the intent 

of arousing, appealing to, or gratifying the lust, passions, or sexual desires of himself or 
15.

the child; and (3) the child was under 14 years of age at the time of the act. (CALCRIM 

No. 1110.)

3. Analysis

In this case, the only evidence regarding G.S.’s age at the time defendant made her 

place her mouth on his penis was her testimony that she could not recall whether this 

happened before she turned 14 years old. As the evidence is insufficient to prove beyond 

a reasonable doubt that the crime occurred before G.S. was 14 years old, we agree that 

we must reverse the conviction. (People v. Mejia (2007) 155 Cal.App.4th 86, 97.)

B. Sexual Penetration (count 12)

Defendant argues that the prosecution’s evidence that he penetrated G.S. with his 

penis is insufficient to support his conviction on count 12, forcible sexual penetration of a 

child 14 years of age or older with a foreign object (§ 289, subd. (a)(1)(C)), because a 

penis cannot be a foreign object (except under circumstances not applicable here). The 

People agree. We have reviewed the record and accept this concession.

The People argue, however, that we may find defendant guilty of sexual battery 

(§ 243.4, subd. (a)) as a lesser included offense. Defendant argues that sexual battery 

requires contact with the victim’s skin, an element not necessarily found by the jury’s 

verdict of guilt as to sexual penetration, and that section 243.4, subdivision (g) defines 

sexual battery in such a way as to exclude acts defined as rape (§ 261) and sexual 

penetration (§ 289). We do not decide whether forcible sexual battery is a lesser included 

offense of sexual penetration when the charging instrument identifies the foreign object 

as a penis because we unquestionably find that assault of a person under 18 years of age

with intent to commit rape (§ 220) is a lesser included offense in these circumstances. 

We conclude that application of the accusatory pleading test permits us to exercise our 

discretion to reduce defendant’s conviction on count 12 to assault of a person under 18 
16.

years of age with intent to commit rape (§ 220, subd. (a)(2)) and will remand for 

resentencing.

1. Background

Count 12 of the information charged defendant with the following:

“On or about and between October 5, 2015 and July 20, 2017, in the 

County of Tulare, the crime of SEXUAL PENETRATION BY FOREIGN 

OBJECT-MINOR VICTIM OVER 14, TO WIT, PENIS TO VAGINA, in 

violation of PENAL CODE SECTION 289A1C, a FELONY, was 

committed by PEDRO SALINAS, who unlawfully committed an act of 

sexual penetration against the will of G.S. who was a minor over the age of 

14 years, by means of force, violence, duress, menace and fear of 

immediate and unlawful bodily injury on G.S. and another person.”

During closing argument, the prosecutor explained to the jury that count 12 applied to 

G.S.’s testimony that defendant forced his penis part way into G.S.’s vagina on July 18, 

the day before defendant’s conduct was reported to the police.

G.S. testified that the day before reporting the sexual abuse, defendant told G.S. 

his plan to gradually insert his penis into her vagina to expand her vagina so that by the 

time she turned 18 years old, he would be able to fully insert his penis. Defendant then 

inserted his penis into her vagina, although it did not go all the way inside.28 Defendant 

also put his finger into G.S.’s anus before he inserted his penis. He then rubbed his penis 

between her legs until sperm came out.

2. Applicable Law and Standard of Review

a. Standard of Review

We set forth the applicable law and standard of review for challenges to the 

sufficiency of the evidence in part I.A.2. of the Discussion. (Ante, at p. 14.)

28 Although this act would have provided sufficient evidence of sexual penetration, it was 

not the act alleged in count 12 and was not mentioned during the prosecutor’s closing argument.
17.

b. Sexual Penetration

To prove that defendant is guilty of committing sexual penetration by force, in 

violation of section 289, subdivision (a)(1)(C), the People were required to prove that: 

(1) defendant committed an act of sexual penetration with another person; (2) the 

penetration was accomplished by using a foreign object, or substance, instrument, device, 

or unknown object; (3) the other person did not consent to the act; and (4) defendant 

accomplished the act by force, violence, duress, menace, or fear of immediate and 

unlawful bodily injury to another person. (CALCRIM No. 1045.) Section 289 defines a

foreign object, substance, instrument, or device as including any part of the body except a 

sexual organ. (§ 289, subd. (k)(2).) A penis can be an unknown object only if it is not 

known what object actually penetrated the opening. (Id., subd. (k)(3); CALCRIM 

No. 1045.)

c. Modification of Verdict

“We have ‘long recognized that under Penal Code sections 1181, subdivision (6), 

and 1260, an appellate court that finds that insufficient evidence supports the conviction 

for a greater offense may, in lieu of granting a new trial, modify the judgment of 

conviction to reflect a conviction for a lesser included offense.’ [Citations.] We have 

applied two tests in determining whether an uncharged offense is necessarily included 

within a charged offense: the ‘elements’ test and the ‘accusatory pleading’ test. 

[Citation.] The elements test is satisfied if the statutory elements of the greater offense 

include all of the statutory elements of the lesser offense, such that all legal elements of 

the lesser offense are also elements of the greater.” (People v. Bailey (2012) 54 Cal.4th 

740, 748, fn. omitted (Bailey).) “Under the accusatory pleading test, a lesser offense is 

included within the greater charged offense if the facts actually alleged in the accusatory 

pleading include all of the elements of the lesser offense.” (Ibid.) “ ‘Courts should 

consider the statutory elements and accusatory pleading in deciding whether a defendant 
18.

received notice, and therefore may be convicted, of an uncharged crime ....’ ” (Id. at 

p. 751.)

Our authority to reduce a conviction to a lesser included offense is based on 

section 1181, subdivision (6), which states that “if the evidence shows the defendant to be 

not guilty of the degree of the crime of which he was convicted, but guilty of a lesser 

degree thereof, or of a lesser crime included therein, the court may modify the verdict, 

finding or judgment accordingly without granting or ordering a new trial ....” (§ 1181, 

subd. (6).) Similarly, section 1260, states that “[t]he court may ... reduce the degree of 

the offense ... or the punishment imposed, and may set aside, affirm, or modify any or all 

of the proceedings subsequent to, or dependent upon, such judgment or order, and ... 

may, if proper, remand the cause to the trial court for such further proceedings as may be 

just under the circumstances.” (§ 1260; see People v. Navarro (2007) 40 Cal.4th 668, 

671 (Navarro).) The statute’s use of the word “may” indicates that a court’s authority to 

modify a judgment of conviction to reflect a lesser included offense is permissive, not 

mandatory. (People v. Hamilton (2018) 30 Cal.App.5th 673, 685; see People v. Hill

(1953) 116 Cal.App.2d 212, 216 [“the statute is merely permissive”].)

To modify a judgment under sections 1181, subdivision (6), and 1260, we must 

“decide whether the jury, in finding defendant guilty ... necessarily found all of the 

elements of [the lesser included offense]. In modifying a judgment under sections 1181, 

subdivision (6), and 1260, an appellate court ‘merely brings the jury’s verdict in line with 

the evidence presented at trial’ [Citation.] In other words, an appellate court may make a 

modification, ‘ “not by finding or changing any fact, but by applying the established law 

to the existing facts as found by the jury.” ’ ” (Bailey, supra, 54 Cal.4th at p. 752.)

3. Analysis

Section 289, subdivision (a) was enacted in 1978 to correct a deficiency in existing 

law as forcible rape, oral copulation, and sodomy were subject to fairly severe penalties 
19.

but did not include the forcible insertion of objects into a victim’s vagina or anus, which 

was punishable only as a battery under section 242. (People v. Kusumoto (1985) 

169 Cal.App.3d 487, 491, disapproved on other grounds as recognized in People v. 

McCann (2019) 41 Cal.App.5th 149, 157.) “According to a report prepared for the 

Senate Committee on Judiciary, section 289[, subdivision ](a) was intended to correct the 

discrepancy by making the punishment for forcible rape-by-object the same as that for 

rape. In 1980, Assembly Bill No. 3420 was passed in order to increase the penalties for 

object rape to correspond to those for all other forcible sexual assaults. (Stats. 1980, 

ch. 409, § 1, p. 798.)” (Kusumoto, at p. 491.) Therefore, section 289, subdivision (k)(2) 

excludes a sexual organ from the definition of a foreign object because other statutes 

address crimes committed by using a sexual organ.

In this case, the information charged defendant with using his penis to penetrate 

G.S.’s vagina against her will by means of force, violence, duress, menace, and fear. 

However, penetration of a vagina with a penis is “sexual intercourse,” and an act of 

sexual intercourse against a person’s will by force is rape in violation of section 261, 

subdivision (b). (People v. Holt (1997) 15 Cal.4th 619, 676 [“ ‘[A]ny penetration of the 

male sex organ into the female sex organ, however, slight, constitutes an engaging in an 

act of sexual intercourse’ ”]; CALCRIM No. 1000.) Despite citation to section 289, the 

charging language of count 12 was sufficient to charge a violation of rape pursuant to 

section 261, subdivision (a). (People v. Thomas (1987) 43 Cal.3d 818, 826 [recognizing 

that valid accusatory pleading does not require a specific statutory enumeration, that 

specific allegations of accusatory pleading constitute measuring unit for determining 

what offenses are included in a charge, and that even a reference to the wrong statute has 

been viewed of no consequence]; People v. Eppinger (1894) 105 Cal. 36, 38–39 

[information describing crime as forgery (§ 470) immaterial in light of specific acts 

alleged describe crime under fictitious check statute (§ 476)].)
20.

Had the prosecutor requested the jury be instructed on the elements of rape, we are 

confident that under the facts of this case, the jury’s verdict on count 12 would have not 

changed. However, the prosecutor proceeded to conviction, arguing facts that legally 

could not support a violation of section 289. Neither section 1181 nor section 1260 

permit us to substitute the crime of rape for that of sexual penetration because the jury 

was not instructed as to rape or asked to render a verdict as to rape. We may, however, 

decide whether the jury, in finding defendant guilty of sexual penetration, necessarily 

found all of the elements of a lesser included offense.

a. Sexual Battery as a Lesser Included Offense

The People argue that forcible sexual battery (§ 243.4, subd. (a)) is a lesser

included offense of count 12 under the accusatory language test, relying upon People v. 

Ortega (2015) 240 Cal.App.4th 956, 967–971 (Ortega). Section 243.4, subdivision (a) 

proscribes the touching of an intimate part of another person while that person is 

unlawfully restrained, and if the touching is against the will of the person touched and is 

for the purpose of sexual arousal, sexual gratification, or sexual abuse. In Ortega, the 

defendant argued that sexual battery was a lesser included offense of forcible sexual 

penetration under the statutory elements test because forcible sexual penetration could 

not be committed without also committing sexual battery. Ortega agreed that penetration 

by “ ‘force, violence, duress, menace, or fear of immediate and unlawful bodily injury’ ” 

as required by section 289 could not occur without the victim also being unlawfully 

restrained as required by section 243.4. (Ortega, at p. 966.) Ortega similarly agreed that 

“ ‘sexual,’ as used in the phrase ‘sexual arousal, gratification, or abuse’ in section 289, 

subdivision (k) (defining ‘sexual penetration’)” had the same meaning as the “ ‘sexual 

arousal, sexual gratification, or sexual abuse’ element of sexual battery.” (Ibid.) 

However, sexual battery was not a lesser included offense under the elements test 

because “physical contact” required that the offender’s body contact the victim’s skin 
21.

either directly or through the offender’s clothing (§ 243.4, subd. (f)) while sexual 

penetration included penetration by any foreign object, substance, instrument, or device, 

or by any unknown object (§ 289, subd. (k)(1)). Thus, sexual penetration could be 

committed without committing sexual battery where the perpetrator accomplished it by 

use of something other than a body part.

Having found sexual battery was not a lesser included offense of sexual 

penetration under the elements text, Ortega next applied the accusatory pleading test of 

People v. Marshall (1957) 48 Cal.2d 394 (Marshall). (Ortega, supra, 240 Cal.App.4th at 

p. 967.) Marshall concluded that the specifically charged allegations contained in the 

accusatory pleading, rather than the statutory definition of the charged offense, 

constituted the measuring unit for determining what offenses are necessarily included in 

the charge. (Marshall, at p. 405.) In Marshall, the information alleged that the defendant 

committed robbery (§ 211) by willfully, unlawfully, feloniously, and forcibly taking an 

automobile from the immediate presence of another person. (Marshall, at p. 396.) After 

a bench trial, the court found the defendant guilty of taking another’s vehicle without 

consent, under former Vehicle Code section 503. (Marshall, at p. 396.) The defendant 

argued that the statutory definition of robbery did not necessarily include offenses 

prohibited under former Vehicle Code section 503. (Marshall, at p. 396.) In concluding 

that the lesser included offense inquiry was determined by the specific allegations in the 

accusatory pleading, as opposed to the statutory elements of robbery, the court stressed 

that the defendant was put on notice by the information that he should be prepared to 

defend against a showing that he took the automobile. (Id. at p. 405.)

Ortega similarly concluded that if the information had identified the defendant’s 

finger as the means of penetration in the same way the information in Marshall identified 

the automobile as the victim’s property, the information would have contained the 

elements of a felony sexual battery, and sexual battery instructions would have been 

required as a lesser included offense. (Ortega, supra, 240 Cal.App.4th at pp. 966–968.) 
22.

In Ortega, however, the information did not allege the means the defendant used to 

violate the statute. In finding that sexual battery was a lesser included offense using the 

accusatory pleading test, Ortega expanded its analysis to include the evidence adduced at 

the preliminary hearing.29 (Id. at p. 969.)

Defendant makes additional arguments against sexual battery being considered a 

lesser included offense of sexual penetration not addressed by Ortega: (1) sexual battery 

requires contact with the victim’s skin, an element not alleged in count 12 nor necessarily 

found by the jury’s verdict of guilt as to sexual penetration; and (2) section 243.4, 

subdivision (g)(2) defines sexual battery to exclude the crimes defined in sections 261

(rape) and 289 (sexual penetration).

Addressing defendant’s first argument, count 12 alleged that defendant penetrated 

G.S.’s vagina using his penis, and we conclude that this allegation is sufficient to allege 

defendant touched G.S.’s bare skin. Defendant also argues that the jury’s verdict as to 

count 12 was not required to find that defendant penetrated G.S.’s vagina without any 

clothing or barrier to her skin. However, as to the act alleged in count 12, G.S. testified 

that the day before reporting the sexual abuse, defendant inserted his penis into her 

vagina and rubbed his penis between her legs until sperm came out. That G.S. was 

unclothed at the time of defendant touched her is evidenced by G.S.’s testimony that she 

used toilet paper to wipe the sperm from her body. In addition, G.S. and Yarbrough both 

testified that G.S. participated in an examination from which Yarbrough obtained swabs 

29 Both parties recognize that Ortega has been criticized for expanding the accusatory 

pleading test to look beyond the language of the information and permit consideration of 

preliminary hearing testimony. (People v. Alvarez (2019) 32 Cal.App.5th 781, 787–790; People 

v. Munoz (2019) 31 Cal.App.5th 143, 157–158; People v. Macias (2018) 26 Cal.App.5th 957, 

964 [“We decline to adopt Ortega’s ‘expanded accusatory pleading test’ because it is contrary to 

[People v.]Montoya [(2004) 33 Cal.4th 1031]. As explained by the Supreme Court in Montoya: 

‘Consistent with the primary function of the accusatory pleading test—to determine whether a 

defendant is entitled to instruction on a lesser uncharged offense—we consider only the pleading 

for the greater offense.’ ”].)
23.

of G.S.’s vagina, rectal area, and external genitalia. The rectal and external genitalia 

swab tested positive for p30, a protein found in seminal fluid, again evidencing that 

G.S.’s bare skin was touched by defendant during the sexual abuse.

Defendant’s second argument, that crimes defined in sections 261 and 289 are 

excluded from the definition of sexual battery is less straightforward. (See § 243.4.) We 

could find no case explaining the effect of this statute. Regarding the instant case, 

defendant’s sexual abuse of G.S., as we have concluded, is not the crime of sexual 

penetration in violation of section 289 because it was not committed using a foreign 

object. However, count 12 alleges that defendant forcibly penetrated G.S.’s vagina, some 

of the elements of rape. Given that defendant has not been convicted of rape, 

section 243.4, subdivision (g)(2) does not necessarily preclude us from modifying 

defendant’s conviction of count 12 to the lesser included offense of sexual battery in 

violation of section 243.4, subdivision (a). However, we decline to do so in light of our 

conclusion that assault of a person under 18 years of age with intent to commit rape 

(§ 220, subd. (a)(2)) is a lesser included offense of count 12 as discussed below. 

(Navarro, supra, 40 Cal.4th at p. 681 [“However, it seems logical that, where there are 

multiple lesser included offenses supported by the evidence at trial, a court exercising its 

discretion to modify the judgment pursuant to these provisions should choose the offense 

with the longest prescribed prison term so as to effectuate the fact finder’s apparent intent 

to convict the defendant of the most serious offense possible.”].)

b. Assault with Intent to Commit Rape as a Lesser Included 

Offense

We asked the parties for supplemental briefing as to whether assault of a person 

under 18 years of age with intent to commit rape (§ 220, subd. (a)(2)) is a lesser included 

offense of count 12 in light of its language alleging that defendant forcibly penetrated 

G.S.’s vagina against her will while she was a minor over the age of 14 years. Both 

parties argue that we may not reduce the charge because the information failed to allege 
24.

that G.S. was not defendant’s spouse. However, as we discuss below, assault with intent 

to commit rape includes both spousal and nonspousal rape, and the victim’s status is not 

required to be alleged in the information. We conclude that application of the accusatory 

pleading test permits us to exercise our discretion to reduce defendant’s conviction on 

count 12 to assault of a person under 18 years of age with intent to commit rape (§ 220, 

subd. (a)(2)), and we will remand for resentencing.

Marshall concluded that the specifically charged allegations contained in the 

accusatory pleading, rather than the statutory definition of the charged offense, 

constituted the measuring unit for determining what offenses are necessarily included in 

the charge. (Marshall, supra, 48 Cal.2d 394 at p. 405.) Under the accusatory pleading 

test, we determine whether the perpetrator can commit the greater included offense 

without necessarily committing the lesser included offense as a matter of fact in view of 

the allegations. (People v. Sanchez (2001) 24 Cal.4th 983, 995, disapproved on other 

grounds in People v. Reed (2006) 38 Cal.4th 1224, 1228–1229.)

Section 220, subdivision (a)(2) provides: “Except as provided in 

[section 220, ]subdivision (b), any person who assaults another person under 18 years of 

age with the intent to commit rape, sodomy, oral copulation, or any violation of 

Section 264.1, 288, or 289 shall be punished by imprisonment in the state prison for five, 

seven, or nine years.” (§ 220, subd. (a)(2).) “Section 240—unchanged since its initial 

enactment in 1872—defines assault as ‘an unlawful attempt, coupled with a present 

ability, to commit a violent injury on the person of another.’ ” (People v. Williams

(2001) 26 Cal.4th 779, 784.) Despite use of the term “violent injury,” assault only 

requires an intentional act and actual knowledge of those facts sufficient to establish that 

the act by its nature will probably and directly result in the application of physical force 

against another. (Id. at p. 790.) Our Supreme Court has also described it as an “act that 

by its nature will probably and directly result in injury to another, i.e., a battery.... The 

evidence must only demonstrate that the defendant willfully or purposefully attempted a 
25.

‘violent injury’ or ‘the least touching,’ i.e., ‘any wrongful act committed by means of 

physical force against the person of another.’ ” (People v. Colantuono (1994) 7 Cal.4th 

206, 214.) “ ‘[A]ny harmful or offensive touching constitutes an unlawful use of force or 

violence’ ” and thus is a battery. (People v. Pinholster (1992) 1 Cal.4th 865, 961, 

disapproved on other grounds People v. Williams (2010) 49 Cal.4th 405, 459; see People 

v. Bradbury (1907) 151 Cal. 675, 676–677 [for assault with intent to commit rape, 

“ ‘ “[t]he kind of physical force is immaterial” ’ ” and may “ ‘ “consist in the taking of 

indecent liberties with a woman, or laying hold of and kissing her against her will” ’ ”].)

Our Supreme Court has recognized that assault with intent to commit rape is a 

lesser included offense of rape. (People v. Chavez (1894) 103 Cal. 407, 407–408 [“it 

may be conceded that an assault with intent to commit rape, as well as a simple assault, 

are included [in rape]”]; see People v. Ramirez (1969) 2 Cal.App.3d 345, 353; In re 

Jose M. (1994) 21 Cal.App.4th 1470, 1477 [“[o]ne charged with rape by force or violence 

may be found guilty of assault with intent to commit rape”]; but see People v. Leal (2009) 

180 Cal.App.4th 782, 793 [holding assault with intent to commit rape and sexual 

penetration are not lesser included crimes of rape and sexual penetration by artifice, 

pretense, or concealment since the latter have no element of force].)

Similarly, we conclude that assault with intent to commit sexual penetration is a 

lesser included offense of forcible sexual penetration. As we have noted, section 220, 

subdivision (a)(2) prohibits assaulting a person under 18 years of age “with the intent to 

commit rape, sodomy, oral copulation, or any violation of Section ... 289.” (§ 220, 

subd. (a)(2).) Violations of section 289 include sexual penetration of a minor 14 years of 

age or older “by means of force, violence, duress, menace, or fear of immediate and 

unlawful bodily injury.” (§ 289, subd. (a)(1)(C).) As previously noted, an assault is an 

unlawful attempt, coupled with a present ability, to commit a harmful or offensive 

touching. (See § 240.) “ ‘[A]ny harmful or offensive touching constitutes an unlawful 

use of force or violence’ ” and is thus a battery. (People v. Pinholster, supra, 1 Cal.4th at 
26.

p. 961; see People v. Bradbury, supra, 151 Cal. 675 at pp. 676–677.) We conclude that 

an act of attempting to sexually penetrate someone using force, violence, duress, or 

menace would be both a harmful and offensive touching. The trial court in this case also 

instructed the jury that “[a]ssault with intent to commit sexual penetration is a lesserincluded offense to the charge[] in Count[] 12.”

While assault with intent to commit rape is not a lesser included offense of 

forcible sexual penetration, we conclude that it is a lesser included offense of sexual 

penetration as alleged in the information because the information alleged that defendant 

used his penis to forcibly penetrate G.S.’s vagina. When the jury convicted defendant of 

forcibly using his penis to penetrate G.S.’s vagina, the jury necessarily found that the 

defendant committed an act that likely would have resulted in a harmful and offensive 

touching of G.S. and that defendant intended to use his penis to penetrate G.S.’s vagina.

The parties argue that the information failed to allege that G.S. was not 

defendant’s spouse and, therefore, we cannot modify count 12 to assault of a minor with 

intent to commit rape or sexual penetration. However, in 1879 our Supreme Court held 

that an information charging assault with intent to commit rape need not allege that the 

victim was not the defendant’s spouse. (People v. Estrada (1879) 53 Cal. 600, 601.)

Furthermore, “[u]nder the accusatory pleading test, a lesser offense is included 

within the greater charged offense if the facts actually alleged in the accusatory pleading 

include all of the elements of the lesser offense.” (Bailey, supra, 54 Cal.4th at p. 748, 

italics added.) As we have discussed, the information in this case alleged that defendant 

committed the crime of sexual penetration of a minor when he used his penis to penetrate 

G.S.’s vagina, against her will and by means of force, violence, duress, menace, and fear 

of immediate and bodily injury on G.S. These facts are sufficient to establish that 

defendant assaulted G.S. and intended to use his penis to sexually penetrate her vagina by 

use of force, violence, duress, menace, and fear of immediate bodily injury, a crime under 

section 220, subdivision (a)(2).
27.

Defendant relies on two cases in support of his argument that the information is 

required to specifically allege that G.S. was not defendant’s spouse. In People v. Miles

(1908) 9 Cal. App. 312, the defendant was charged with rape in violation of section 261. 

(Miles, at p. 313.) The information failed to allege specifically that the woman was not 

the defendant’s wife, and the court dismissed the information after concluding that all 

elements of an offense must be alleged in the charging document. (Ibid.) In People v. 

Everett (1909) 10 Cal. App. 12, the court applied Miles to an information that charged 

assault with intent to commit rape and then described the elements of the crime, but 

omitted a statement that the victim was not the spouse of the defendant. (Everett, at 

pp. 13–14.) While the information would have been sufficient had it merely charged that 

the defendant assaulted the victim with the intent to commit rape, the court found the 

information defective because it chose to set forth the elements of rape and then did so 

incompletely. (Ibid; but see People v. Bonfanti (1919) 40 Cal. App. 614, 615 [failure to 

allege victim of assault with intent to commit rape was not defendant’s spouse would not 

result in dismissal in light of recent amendment to California Constitution that prevented 

setting aside a conviction based upon any matter of pleading or error of procedure unless 

the court found a miscarriage of justice].)

In addition, the rules of pleading have changed significantly since Everett and 

Miles were decided in 1909 and 1908, respectively. Section 951, as last amended in 1927

(Stats. 1927, ch. 613, § 1), sets forth the form of an information and permits the name of 

the crime and a statement of the “act or omission, as for example, ‘murdered C.D.’ ” 

(§ 951.) Section 952, as last amended in 1929 (Stats. 1929, ch. 159, § 1), provides that 

each count of an information shall contain “a statement that the accused has committed 

some public offense therein specified. Such statement may be made in ordinary and 

concise language without any technical averments or any allegations of matter not 

essential to be proved. It may be in the words of the enactment describing the offense or 
28.

declaring the matter to be a public offense, or in any words sufficient to give the accused 

notice of the offense of which he is accused.” (§ 952.)

Our Supreme Court explained that the 1929 amendment to section 952 permits

pleading the conclusion that a defendant murdered someone without pleading the words 

of section 187 that define murder. (People v. Jordan (1955) 45 Cal.2d 697, 709; see 

People v. Quinn (1949) 94 Cal.App.2d 112, 115–116 [upholding robbery conviction 

when information failed to allege all elements of offense and distinguishing older cases 

decided before § 951 was adopted].) Therefore, a valid information need not allege the 

elements of the offense.

We also find it significant that when the cases relied upon by defendant were

decided, California did not criminalize rape committed on a spouse and, therefore, 

defendant would not have committed any crime if G.S. was his spouse. In 1979, the 

Legislature enacted former section 262, which addressed rape of a spouse. (Former 

§ 262, added by Stats. 1979, ch. 994, § 2, p. 3384.)30 Thus, section 220, subdivision (a) 

encompasses “rape” as defined in both former section 262 (as to one’s spouse) and 

section 261 (a nonspouse victim). (People v. Hillard (1989) 212 Cal.App.3d 780, 783–

784 [“It is evident that the Legislature added [former] Penal Code section 262 for the sole 

purpose of eliminating the marital exemption for forcible spousal rape, and not to define 

a new and separate offense, apart from rape by a stranger, of spousal rape.”].) Because 

section 220, subdivision (a)(2) encompasses both rape of a spouse and a nonspouse, it 

does not matter that the information fails to specify whether G.S. was defendant’s spouse. 

30 Former section 262 was repealed effective January 1, 2022 (Stats. 2021, ch. 626, § 20), 

and section 261 applies to all rape victims regardless of their relationship to their rapist except in 

one circumstance. (See Legis. Counsel’s Dig., Assem. Bill No. 1171 (2020–2021 Reg. Sess.) 

[“This bill would repeal the provisions relating to spousal rape and make conforming changes, 

thereby making an act of sexual intercourse accomplished with a spouse punishable as rape if the 

act otherwise meets the definition of rape, except that sexual intercourse with a person who is 

incapable of giving legal consent because of mental disorder or developmental or physical 

disability would not be rape if the 2 people are married.”].)
29.

(See People v. Hillard, at p. 783.) Further, as we discussed above, by specifically 

identifying the victim of the crime, the information provided defendant adequate notice 

of his relationship to the victim.

We will modify the judgment to reflect a conviction for assault of a person under 

18 years of age with intent to commit rape in violation of Penal Code section 220, 

subdivision (a)(2) and remand for resentencing.

The reversal of a sentence on one of several counts authorizes the trial court on 

remand to consider its discretionary sentencing choices on all counts. “ ‘[U]pon remand 

for resentencing after the reversal of one or more subordinate counts of a felony 

conviction, the trial court has jurisdiction to modify every aspect of the defendant’s 

sentence on the counts that were affirmed, including the term imposed as the principal 

term[.]’ ” (People v. Navarro, supra, 40 Cal.4th at p. 681; see also People v. Buycks

(2018) 5 Cal.5th 857, 893 [“when part of a sentence is stricken on review, on remand for 

resentencing ‘a full resentencing as to all counts is appropriate, so the trial court can 

exercise its sentencing discretion in light of the changed circumstances’ ”].)31

31 Effective September 9, 2010, section 667.61, subdivision(j)(2) was amended to increase 

the punishment for specified crimes on a minor under 14 years of age from a term of 15 years to 

life to a term of 25 years to life. (Stats. 2010, ch. 219, § 16, p. 1027.) We asked the parties for 

supplemental briefing as to whether the trial court erred in sentencing defendant to 15 years to 

life on counts 2, 3, 14, and 15 and conclude that it did not. “The federal and state prohibitions 

against ex post facto laws apply to any statute that punishes as a crime an act previously 

committed which was not a crime when done or that inflicts greater punishment than the 

applicable law when the crime was committed.” (People v. Alvarez (2002) 100 Cal.App.4th 

1170, 1178.) Defendant’s crimes occurred both before and after the penalty for violating 

section 667.61 increased. Where the jury was not instructed to find that an offense occurred on 

or after the effective date of the statute and did not, in fact, make such a finding, we consider 

whether the evidence “leaves no reasonable doubt” the offense occurred on or after that date. 

(People v. Hiscox (2006) 136 Cal.App.4th 253, 261.) The victims’ testimony was not specific 

enough to leave no reasonable doubt whether the offenses triggering the increased penalty 

occurred on or after September 9, 2010. A reviewing court may not “infer that certain acts 

probably occurred after that date” or “hypothesize ... what dates might be attached to certain acts 

based on ambiguous evidence.” (Ibid.)
30.

II. Count 8 Should Be Stayed Pursuant to section 654 Because it Involved the 

Same Act of Forcible Sodomy as Charged in Count 9

A. Background

G.S. testified that defendant sodomized her approximately 10 to 15 times, but only 

once before she turned 14 years old. During closing argument, the prosecutor explained 

that this conduct was the basis of count 8, a lewd act upon a child under 14 years of age

(§ 288, subd. (a)). She also argued the single time defendant sodomized G.S. before she 

was 14 years old as the basis of the crime of aggravated sexual assault of a child under 

14 years of age by forcible sodomy as charged in count 9 (§ 269, subd. (a)(3)).

B. Applicable Law

Former section 654 provided, in relevant part, “An act or omission that is 

punishable in different ways by different provisions of law shall be punished under the 

provision that provides for the longest potential term of imprisonment, but in no case 

shall the act or omission be punished under more than one provision.” (Former § 654, 

subd. (a).)32 The statute “expressly prohibits separate punishment for two crimes based 

on the same act, but has been interpreted to also preclude multiple punishment for two or 

more crimes occurring within the same course of conduct pursuant to a single intent.” 

(People v. Vargas (2014) 59 Cal.4th 635, 642; accord, People v. Harrison (1989) 

48 Cal.3d 321, 335.) Determining “[w]hether a defendant may be subjected to multiple

punishment under section 654 requires a two-step inquiry.” (People v. Corpening (2016) 

2 Cal.5th 307, 311.) “We first consider if the different crimes were completed by a 

‘single physical act.’ [Citation.] If so, the defendant may not be punished more than 

once for that act. Only if we conclude that the case involves more than a single act—i.e., 

32 Section 654 has been amended since defendant was sentenced, but the language “in no 

case shall the act or omission be punished under more than one provision” remains unchanged. 

(§ 654.)
31.

a course of conduct—do we then consider whether that course of conduct reflects a single 

‘intent and objective’ or multiple intents and objectives.” (Ibid.)

“Whether a defendant will be found to have committed a single physical act for 

purposes of section 654 depends on whether some action the defendant is charged with 

having taken separately completes the actus reus for each of the relevant criminal 

offenses.” (People v. Corpening, supra, 2 Cal.5th at p. 313.) The relevant inquiry is 

whether “ ‘a separate and distinct act can be established as the basis of each 

conviction.’ ” (People v. Beamon (1973) 8 Cal.3d 625, 637, overruled on another ground 

in People v. Mendoza (2000) 23 Cal.4th 896, 908; accord, Corpening, at p. 316.)

C. Analysis

In the present case, defendant argues that his convictions for lewd acts upon a 

child and aggravated sexual assault of a child by forcible sodomy are based on the single 

time that defendant sodomized G.S. before she turned 14 years old. The People agree 

that section 654 requires the execution of the sentence on count 8 be stayed. We agree 

that defendant cannot be sentenced on both count 8 and count 9 and that one of these 

sentences must be stayed. We will remand to the trial court with directions to stay the 

sentence on either count 8 or count 9.

At the time of sentencing, former section 654, subdivision (a), required that a

defendant who committed an act punishable by two or more provisions of law to be 

punished under the provision that provided for the longest possible term. (Stats. 1997, 

ch. 410, § 1.) Effective January 1, 2022, Assembly Bill No. 518 (2021–2022 Reg. Sess.) 

amended section 654, subdivision (a), to permit an act or omission punishable under two 

or more provisions of law to “be punished under either of such provisions.” (§ 654, 

subd. (a), as amended by Stats. 2021, ch. 441, § 1.) Thus, under the new law, a trial court 

now has the discretion to punish a defendant under any of the applicable laws.
32.

Under In re Estrada (1965) 63 Cal.2d 740, “[w]hen the Legislature has amended a 

statute to reduce the punishment for a particular criminal offense, we will assume, absent 

evidence to the contrary, that the Legislature intended the amended statute to apply to all 

defendants whose judgments are not yet final on the statute’s operative date.” (People v. 

Brown (2012) 54 Cal.4th 314, 323, fn. omitted.) Where an ameliorative statute like this 

one is retroactive, a remand is appropriate unless “the record ‘clearly indicate[s]’ that the 

trial court would have reached the same conclusion ‘even if it had been aware that it had 

such discretion.’ ” (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391.)

Because we are remanding for resentencing due to our modification of the 

conviction on count 12, at resentencing the trial court will have the opportunity to 

exercise its discretion to apply section 654 to stay execution of the sentence on either 

count 8 or 9 under the new law.

III. Defendant Was Not Deprived of His Sixth Amendment Right to a Unanimous 

Jury by the Trial Court’s Instructions to the Jury After Substituting an 

Alternate Juror

Defendant argues that the trial court deprived him of his state and federal rights to 

a unanimous jury when it substituted an alternate juror after the first day of deliberations. 

The People initially responded and argued that the error was merely one of state law. 

After the People filed their responding brief, the United States Supreme Court held that 

the Sixth Amendment right to a unanimous jury is applicable to the states through the 

Fourteenth Amendment. (Ramos v. Louisiana (2020) ___ U.S. ___, ___ [140 S.Ct. 1390, 

1391] (Ramos).) Defendant relies upon Ramos to argue that the trial court’s instructional 

error is a structural error and not subject to harmless error review. We ordered 

supplemental briefing by the People as to this issue. We conclude the trial court did not 

err. Even if the trial court did err, we conclude the error is subject to review for 

harmlessness and apply the harmless error test for federal constitutional error—whether it 

appears beyond a reasonable doubt that the error complained of did not contribute to the 
33.

verdict obtained—to the trial court’s instructional error in substituting the alternate juror. 

(See Chapman v. California (1967) 386 U.S. 18, 24 (Chapman).)

A. Background

Prior to the jury deliberating, the trial court advised the alternate jurors:

“To my alternate jurors, you two at the end, the jury will soon begin 

deliberations, but you are still alternate jurors and bound by my earlier 

instructions on your conduct. Do not talk about the case or about any of the 

people or any subject involved with anyone, not even family, friends, not 

even with each other. Don’t have any contact with the deliberating jurors. 

Do not decide how you would vote if you were deliberating. Do not form 

or express any opinions about the issues in this case unless you are 

substituted in as one of the deliberating jurors.

“You two, as long as I have a phone number where I can reach you, 

that you can come back and be back within an hour, you are free to go. 

You can wait around if you want to do that this afternoon. That’s fine, but 

you just can’t participate in the deliberations.”

The jury began deliberations on June 11, 2019, at approximately 1:30 p.m. At 

4:37 p.m., the trial court brought the jury to the courtroom to ascertain whether to send 

them home until the next day. The court inquired as to whether the jury’s deliberations 

might be resolved in the next 15 or 20 minutes. One juror replied, “We are on number 11 

for the counts. [¶] We definitely need more than 20 minutes. [¶] We’re going to ask for 

read back.” The juror later added, “I don’t think we’re going to take that much longer. 

[¶] We are putting a request for Adrian Mendoza’s testimony, though.”33 The court 

commented that the court reporter could read back that testimony the following day in the 

jury room. After the court instructed the jurors that they were being sent home for the 

day, one juror reminded the court that the juror was scheduled to fly the next day and the 

court excused that juror. The court then explained to the remaining 11 jurors:

“One of the things that will happen is when you all get here, I will 

read you an instruction. We’ll substitute the [alternate] juror in, but, in 

33 Mendoza was the criminalist who testified concerning the DNA test results.
34.

effect, your deliberations have to start all over. It shouldn’t take long for 

the [alternate] to get caught up to date.”

The following colloquy then took place:

“JUROR: I know we have to start our deliberation all over. Will we 

get to keep our previous deliberations to refer back to them or are they 

destroyed?[34]

“THE COURT: You need to make sure that [the alternate] juror is 

up to date. Se[e] if that juror can agree. If you start anew, in effect those 

verdicts have to be redone.

“JUROR: Okay. If they do agree, they are still hunkeydorie [sic], 

correct?

“THE COURT: I can tell you if you want to return those verdicts, 

right now we can take those verdicts.[35]

“JUROR: No, he probably wants us to start over.

“THE COURT: Okay. See you tomorrow at 9:00[ a.m].

“[THE PROSECUTOR]: If [the alternate] juror agrees with what 

has already been decided on, it’s okay? 

“THE COURT: It is.”

34 The juror’s reference to keeping or destroying their “previous deliberations” was not 

clarified but appears to refer to completed verdict forms as to the 10 or 11 counts for which they 

had completed deliberations (the juror previously advised the court the jury was “on 

number 11”).

35 “[W]hen the court is going to discharge a deliberating juror and replace that juror with an 

alternate, the court should determine whether any verdicts have been reached before discharging 

the juror.... The juror may then be discharged, an alternate seated to replace the juror, and the 

newly constituted jury instructed to begin its deliberations anew on any remaining charges and 

allegations.” (People v. Garcia (2012) 204 Cal.App.4th 542, 552, italics omitted; see People v. 

Thomas (1990) 218 Cal.App.3d 1477, 1485 [trial court did not err in receiving partial verdict 

before replacing juror]; People v. Aikens (1988) 207 Cal.App.3d 209, 211 [same]; People v. Cain

(1995) 10 Cal.4th 1, 67–68, overruled on other grounds in People v. Moon (2005) 37 Cal.4th 1, 

17.) However, the court is not required to accept partial verdicts under such circumstances. 

(People v. Sanborn (2005) 133 Cal.App.4th 1462, 1468.)
35.

The trial court excused the jury until the following day. When proceedings 

resumed, the trial court advised the parties that it would need to formally substitute the 

alternate juror in and brought the jury into the courtroom. The court then instructed the 

jury, reading CALCRIM No. 3575:

“So, ladies and gentlemen of the jury, one of your fellow jurors has 

been excused, and you were aware of that yesterday, and our alternate juror 

has been selected to join you.

“Do not consider this substitution for any purpose. The alternate 

juror must participate fully in the deliberations that lead to any verdict.

“The People and the defendant have a right to a verdict reached only 

after full participation of the jurors whose votes determine the verdict. This 

right will only be assured if you begin your deliberations again from the 

beginning. Therefore, you must set aside and disregard all past 

deliberations and begin your deliberations all over again.

“Each of you must disregard your earlier deliberations and decide 

this case as if those earlier deliberations had not taken place.

“Now, please return to the jury room and start your deliberations 

from the beginning.

“One of the things that was discussed yesterday is that you may want 

the testimony of Adrian Mendoza be read. So when you get in there and 

you are ready for that, please let me know and I will send [the court 

reporter] in to read back that testimony. 

“With that in mind, please retire to the jury room and begin your 

deliberations. Thank you.” 

The jury returned to the jury room to commence deliberations at 9:07 a.m. At 

10:03 a.m., the jury sent a question to the court: “May we have Adrian Mendoza’s, 

[M.C.]’s, and [G.S.]’s testimonies?” The court reporter entered the jury room at 

10:06 a.m. and completed readback of the requested testimony at 11:43 a.m. The jury 

submitted a second question to the court at 1:17 p.m.: “Can you better explain the 

‘multiple victims’ special allegation?” The court provided a written response to the jury 

at 1:30 p.m. At 2:05 p.m., the foreperson informed the bailiff that the jury had reached its 
36.

verdicts. After reading the verdicts into the record, the trial court asked, “Ladies and 

gentlemen of the jury, are these your verdicts?” The jury responded, “Yes.” Responding 

to an inquiry by the trial court, the prosecutor and defense counsel advised they did not 

desire to have the court poll the jury.

B. Applicable Law

1. California Constitutional Right to Jury Trial

Section 1089 provides in relevant part:

“If at any time, whether before or after the final submission of the case to 

the jury, a juror dies or becomes ill, or upon other good cause shown to the 

court is found to be unable to perform his or her duty, or if a juror requests 

a discharge and good cause appears therefor, the court may order the juror 

to be discharged and draw the name of an alternate, who shall then take a 

place in the jury box, and be subject to the same rules and regulations as 

though the alternate juror had been selected as one of the original jurors.” 

(§ 1089, 5th par.)

Our Supreme Court addressed the constitutionality of this provision in People v. 

Collins (1976) 17 Cal.3d 687 (Collins). “The principal question before us is whether the 

substitution of an alternate for an original juror is constitutionally permissible after 

deliberations have begun.... [W]e conclude that such substitution is permissible when 

good cause has been shown and the jury has been instructed to begin deliberations anew.” 

(Id. at p. 691, superseded by statute on another ground as stated in People v. Boyette

(2002) 29 Cal.4th 381, 462, fn. 19.) Collins recognized that an essential element of the 

right to trial by jury included that a jury in a felony prosecution consist of 12 persons and 

that its verdict be unanimous. (Collins, at p. 693.) Collins also agreed that this element 

was part of the broader right that requires each juror to have engaged in all of the jury’s 

deliberations and elaborated:

“The requirement that 12 persons reach a unanimous verdict is not met 

unless those 12 reach their consensus through deliberations which are the 

common experience of all of them. It is not enough that 12 jurors reach a 

unanimous verdict if 1 juror has not had the benefit of the deliberations of 
37.

the other 11. Deliberations provide the jury with the opportunity to review 

the evidence in light of the perception and memory of each member. 

Equally important in shaping a member’s viewpoint are the personal 

reactions and interactions as any individual juror attempts to persuade 

others to accept his or her viewpoint. The result is a balance easily upset of 

a new juror enters the decision-making process after the 11 others have 

commenced deliberations. The elements of number and unanimity combine 

to form an essential element of unity in the verdict. By this we mean that a 

defendant may not be convicted except by 12 jurors who have heard all the 

evidence and argument and who together have deliberated to unanimity.” 

(Collins, supra, 17 Cal.3d at p. 693.)

To protect this right, Collins construed section 1089 to require that deliberations begin 

anew when a substitution is made after final submission to the jury. (Collins, supra,

17 Cal.3d at p. 694.) The trial court, therefore, when replacing an alternate juror during 

deliberations must:

“[I]nstruct the jury to set aside and disregard all past deliberations and 

begin deliberating anew. The jury should be further advised that one of its 

members has been discharged and replaced with an alternate juror as 

provided by law; that the law grants to the People and to the defendant the 

right to a verdict reached only after full participation of the 12 jurors who 

ultimately return a verdict; that this right may only be assured if the jury 

begins deliberations again from the beginning; and that each remaining 

original juror must set aside and disregard the earlier deliberations as if they 

had not been had. We are confident that juries made aware of the rights 

involved will faithfully follow such instructions.” (Collins, supra,

17 Cal.3d at p. 694.)

2. Sixth Amendment

“Unanimity in jury verdicts is required where the Sixth ... Amendment appl[ies].” 

(Andres v. United States (1948) 333 U.S. 740, 748 [“In criminal cases this requirement of 

unanimity extends to all issues—character or degree of the crime, guilt and punishment—

which are left to the jury.”].) The United States Supreme Court held in 2020 that the 

Sixth Amendment’s right to a unanimous jury applies to state criminal trials through the 

Fourteenth Amendment. (Ramos, supra, ___ U.S. at p. ___ [140 S.Ct. at p. 1397] [“So if 

the Sixth Amendment’s right to a jury trial requires a unanimous verdict to support a 
38.

conviction in federal court, it requires no less in state court.”].) The United States 

Supreme Court has also described the essential feature of a jury trial:

“The purpose of the jury trial ... is to prevent oppression by the 

Government. ‘Providing an accused with the right to be tried by a jury of 

his peers gave him an inestimable safeguard against the corrupt or 

overzealous prosecutor and against the compliant, biased, or eccentric 

judge.’ [Citation.] Given this purpose, the essential feature of a jury 

obviously lies in the interposition between the accused and his accuser of 

the commonsense judgment of a group of laymen, and in the community 

participation and shared responsibility that results from that group’s 

determination of guilt or innocence.” (Williams v. Florida (1970) 399 U.S. 

78, 100 [holding that criminal jury may be less than 12 members].)

However, the United States Supreme Court has not considered whether the Sixth 

Amendment permits the substitution of an alternate juror after deliberations have begun, 

and if so, whether the Sixth Amendment mandates any specific procedures, such as an 

instruction to deliberate anew. We could find no federal case that found a Sixth 

Amendment violation when the trial court failed to instruct the jury to begin its 

deliberations anew after the substitution of juror.36 “The only circuit court that has 

addressed this issue concluded that substituting an alternate juror without instructing the 

jury to commence its deliberations anew is not constitutional error.” (Peek v. Kemp

(11th Cir. 1986) 784 F.2d 1479, 1485 (Peek), citing United States v. Evans (4th Cir. 

1980) 635 F.2d 1124, 1127–1128 (Evans).)

36 Until 1999, the federal rules did not permit federal district courts to substitute alternates 

after deliberations had commenced. (See, e.g., United States v. Houlihan (1st Cir. 1996) 92 F.3d 

1271, 1285, quoting Fed. Rules Crim.Proc., former rule 24(c), 18 U.S.C. [“The imperative of 

Rule 24(c) is clear and categorical: ‘An alternate juror who does not replace a regular juror shall 

be discharged after the jury retires to consider its verdict.’ [Citation.] The rule reflects the 

abiding concern that, once a criminal case has been submitted, the jury’s deliberations shall 

remain private and inviolate.”].) Effective December 1, 1999, rule 24(c)(3) of the Federal Rules 

of Criminal Procedure (18 U.S.C.) was amended to permit a district court to substitute an 

alternate juror during deliberations if the court instructs the jury to “begin its deliberations 

anew.” (Fed. Rules Crim.Proc., rule 24(c)(3), as amended Apr. 26, 1999, 18 U.S.C.)
39.

The federal circuit courts that have considered the issue have done so in the 

context of holding or impliedly finding that the Sixth Amendment does not categorically 

prohibit the mid-deliberation substitution of an alternate juror, as well as addressing the 

violation of former rule 24(c)(3) of the Federal Rules of Criminal Procedure (18 U.S.C.) 

that prohibited substitution. (See United States v. James (3d Cir. 2020) 955 F.3d 336, 

348 (James) [finding no constitutional violation “[b]ecause all deliberating jurors heard 

all of the evidence and were properly instructed, and there is nothing in the record 

suggesting that the deliberating jurors lacked impartiality or the competence to 

understand the evidence and the instructions, or that the excused juror tainted or 

otherwise impaired the reconstituted jury that delivered the verdict” (fn. omitted)]; United 

States v. Oscar (11th Cir. 2017) 877 F.3d 1270, 1289–1290 [holding district court did not 

abuse its discretion in substituting two jurors after jury had been deliberating for 21 hours 

where instructed jury to begin deliberations anew, jury renewed deliberations for 9 hours 

thereafter and acquitted the defendant of two counts, thus indicating it fairly and 

thoroughly evaluated the evidence]; United States v. Cencer (6th Cir. 1996) 90 F.3d 

1103, 1109–1110 [holding defendant may waive Fed. Rules Crim.Proc., former rule 

24(c), 18 U.S.C., which permitted substitution of alternate only before deliberations 

commence]; Claudio v. Snyder (3d Cir. 1995) 68 F.3d 1573, 1576 (Claudio) [“federal 

courts have generally ruled that the substitution of a juror after deliberations have begun 

does not violate the United States Constitution, provided that defendants suffered no 

prejudice as a result”]; Peek, supra, 784 F.2d at pp. 1484–1485 (en banc) [no Sixth 

Amendment violation even where no instruction to jury to start deliberations anew where 

defense counsel did not object to the lack of supplementary instructions when alternate 

juror was substituted, and the jury was not prevented from starting its deliberations from 

the beginning on its own]; Miller v. Stagner (9th Cir. 1985) 757 F.2d 988, 995 (Miller)

[holding, in conclusory terms, that substitution of alternate jurors during deliberations did 

not violate federal constitutional rights because § 1089 and trial court’s procedures 
40.

preserved “the ‘essential feature’ ” of the jury required by the 6th Amend.]; United States 

v. Hillard (2d Cir. 1983) 701 F.2d 1052, 1057 (Hillard) [finding no 6th Amend. violation 

by substitution of alternate where length of deliberations and “discriminating verdicts” 

supported substitution not prejudicial]; United States v. Phillips (5th Cir. 1981) 664 F.2d 

971, 990–993 (Phillips) [substitution of alternate juror in violation of Fed. Rules 

Crim.Proc., former rule 24(c), 18 U.S.C. does not violate 6th Amend.], overruled on other 

grounds by United States v. Huntress (5th Cir.1992) 956 F.2d 1309, 1317; Evans, supra, 

635 F.2d at pp. 1126–1128 [defendant permitted to waive prohibition of substitution of 

juror after deliberations commenced and no fundamental unfairness and nothing 

precluded jury from starting deliberations anew even though jury not instructed to do so]; 

Henderson v. Lane (7th Cir. 1980) 613 F.2d 175, 178–179 [while substitution might 

undermine unanimity requirement of Fed. Rules Crim.Proc., rule 23(b), 18 U.S.C., relies 

upon Supreme Court case that upheld nonunanimous verdicts in state cases to find no 

constitutional violation].)

These courts are split on the importance of an instruction to deliberate anew in 

assessing the constitutional validity of a mid-deliberation juror substitution and have not 

addressed whether the court must specifically instruct the jurors to disregard the prior 

deliberations. The Second, Third, Fifth, and Ninth Circuit Courts of Appeals have 

generally concluded that an instruction to deliberate anew is a procedural safeguard to 

preserve the “essential feature” of the Sixth Amendment right to trial by jury and have 

generally found no Sixth Amendment violation and no prejudice where the trial court 

expressly or constructively instructed the jury to begin deliberations anew. (See James, 
41.

supra, 955 F.3d at pp.341, 348;

37 Claudio, supra, 68 F.3d at p. 1577;38 Miller, supra, 

757 F.2d at p. 995; Hillard, supra, 701 F.2d at pp. 1055–1057; Phillips, supra, 664 F.2d 

at pp. 990–993.) When determining the existence of a Sixth Amendment violation or 

assessing prejudice, these courts have made highly fact-specific inquiries and 

(1) considered any other procedural safeguards that preserved the jury’s “essential 

feature,” and (2) compared the length of pre-substitution deliberations with the length of 

post-substitution deliberations.

The Fourth, Sixth, Seventh, and Eleventh Circuit Courts of Appeals have placed 

less emphasis on supplemental instructions to begin deliberations anew, have generally 

found it more relevant whether the reconstituted jury was actively prevented from 

deliberating anew, but like the other circuit courts of appeals discussed above, have also 

made fact-specific inquiries focused on the overall procedural safeguards that were in 

place to preserve the jury’s “essential feature.” (See United States v. Cencer, supra, 

90 F.3d at pp. 1109–1110; Peek, supra, 784 F.2d at pp. 1484–1485; Evans, supra, 

635 F.2d at pp. 1126–1128; Henderson v. Lane, supra, 613 F.2d at pp. 178–179.)

Not unexpectedly, we have been unable to find any published California opinion 

addressing the Collins issue in the context of the Sixth Amendment since Ramos was 

37 The district court instructed the jury: “(1) to ‘restart’ its deliberations ‘as though you are 

starting from scratch,’ ... (2) ‘there is no rush to reach a verdict;’ ... (3) the verdict ‘must be 

considered and deliberate;’ ... and (4) the new juror ‘should feel as though he is beginning anew, 

not ... interposing or becoming someone who is interrupting an ongoing process.’ ” (James, 

supra, 955 F.3d at p. 341.)

38 “The trial court instructed the original jurors to ‘take whatever time is necessary’ to 

completely inform the replacement juror of all previous deliberations and of each juror’s 

individual point of view. It also instructed the replacement juror to guard against the inclination 

to proceed before she was thoroughly familiar with the evidence and the views of the other 

jurors.... The instructions were designed to eliminate any disadvantage that the alternate juror 

may have felt as a result of her late introduction into the deliberations and to ensure her full, 

effective, and uncoerced participation in all aspects of the deliberations.” (Claudio, supra, 

68 F.3d at p. 1577, italics added; but see Collins, supra, 17 Cal.3d at p. 694 [jury must be 

instructed “that each remaining original juror must set aside and disregard the earlier 

deliberations as if they had not been had” (italics added)].)
42.

decided. However, our review of the federal cases above demonstrate that a jury need 

only be instructed as to deliberate anew while the California Constitution requires 

additional advisements, including that the jurors set aside all prior deliberations. (See 

Collins, supra, 17 Cal.3d at pp. 694, 697.) Therefore, we will assume that the Sixth 

Amendment right is coextensive with California’s constitutional right to a jury trial as we 

have concluded that the trial court’s instructions complied with the California 

Constitution.

3. Ambiguous Jury Instructions

An ambiguous jury instruction amounts to a federal constitutional violation only if 

there is “ ‘a reasonable likelihood that the jury has applied the challenged instruction in a 

way’ that violates the Constitution.” (Estelle v. McGuire (1991) 502 U.S. 62, 72, quoting 

Boyde v. California (1990) 494 U.S. 370, 380.) These cases articulate a standard that 

applies to “claims that allegedly ambiguous instructions caused jury confusion.” (Jones 

v. United States (1999) 527 U.S. 373, 390.) Instructional errors that violate defendant’s 

rights under both the United States and California Constitutions are subject to harmless 

error review under Chapman, supra, 386 U.S. at p. 24. (People v. Mil (2012) 53 Cal.4th 

400, 409.)

4. Harmless Error Review

We disagree with defendant’s assertion that an error in instructing the jury upon 

substitution of an alternate juror is a structural error that is not subject to harmless error 

review. The United States Supreme Court has recognized structural error in a very 

limited class of cases. These include: (1) the total deprivation of the right to counsel 

(Gideon v. Wainwright (1963) 372 U.S. 335); (2) a biased trial judge (Tumey v. 

Ohio (1927) 273 U.S. 510); (3) unlawful exclusion of grand jurors of the defendant’s race 

(Vasquez v. Hillery (1986) 474 U.S. 254); (4) denial of self-representation at trial 

(McKaskle v. Wiggins (1984) 465 U.S. 168); (5) denial of right to a public trial at a 
43.

suppression hearing (Waller v. Georgia (1984) 467 U.S. 39); (6) a defective reasonable 

doubt instruction (Sullivan v. Louisiana (1993) 508 U.S. 275); and (7) a defendant’s right 

to have all critical stages of a criminal trial conducted by a person with jurisdiction to 

preside (Gomez v. United States (1989) 490 U.S. 858, 876 [harmless error analysis does 

not apply in a felony case in which, despite the defendant’s objection and without any 

meaningful review by a district judge, an officer exceeds his jurisdiction by selecting a 

jury]).

Other than in these limited, restricted classes of cases, the Supreme Court has 

failed to find structural error in the wide range of errors presented to it. When the 

Supreme Court speaks of a structural defect, it means that “[t]he entire conduct of the 

trial from beginning to end is obviously affected by the [error].” (Arizona v. Fulminante

(1991) 499 U.S. 279, 309–310 (Arizona).) It is clear that when the Supreme Court speaks 

of structural error, the court is referring to something which affects the entire framework 

of the trial and not something which may have differing degrees of impact, depending on 

other trial factors. (United States v. Olano (1993) 507 U.S. 725, 737, citing & quoting 

Fed. Rules Crim.Proc., rule 52(b), 18 U.S.C. [the “presence of alternate jurors during jury 

deliberations is not the kind of error that ‘affect[s] substantial rights’ independent of its 

prejudicial impact”].) “[I]f the defendant had counsel and was tried by an impartial 

adjudicator, there is a strong presumption that any other errors that may have occurred 

are subject to harmless-error analysis.” (Rose v. Clark (1986) 478 U.S. 570, 579.)

39

“ ‘Under article VI, section 13 of our state Constitution, trial error does not merit 

reversal of a judgment unless “the error complained of has resulted in a miscarriage of 

justice.” Typically, a defendant who has established error under state law must 

demonstrate there is a reasonable probability that in the absence of the error he or she 

would have obtained a more favorable result.’ ” (People v. Anzalone (2013) 56 Cal.4th 

39 Defendant has not argued that the jury was biased or coerced.
44.

545, 553; see People v. Watson (1956) 46 Cal.2d 818, 836.) As our Supreme Court has 

recognized, “Categorization of an error as structural represents ‘the exception and not the 

rule.’ ” (People v. Sivongxxay (2017) 3 Cal.5th 151, 178; see People v. Marshall (1996) 

13 Cal.4th 799, 851 [“[t]here is a strong presumption any error” is susceptible to harmless 

error analysis].) “The fact that an error implicates important constitutional rights does 

not necessarily make it structural.” (Sivongxxay, at p. 178.) “The ‘miscarriage of justice’

language within article VI, section 13 of the California Constitution likewise 

contemplates a limited class of structural errors ... ‘ “that ... may result in a ‘miscarriage 

of justice’ because they operate to deny a criminal defendant the constitutionally required 

‘orderly legal procedure’ (or, in other words, a fair trial)—for example, the denial of the 

defendant’s right to a jury trial or to an impartial trial judge [citation]—[and] all involve 

fundamental ‘structural defects’ in the judicial proceedings ....” ’ ” (Id. at p. 179.)

Our Supreme Court recognized that instructional error regarding a jury’s duty to 

deliberate anew upon substitution of an alternate juror is not structural and subject to state 

harmless error review. (Collins, supra, 17 Cal.3d at pp. 697–698.) The court explained, 

“When as here the error is not of federal constitutional dimensions and does not fall 

within certain exceptions not here applicable, we are committed to the prejudicial error 

rule enunciated in People v. Watson, supra, 46 Cal.2d 818, without regard to whether the 

error offends fundamental as compared to other rights. [Citation.] We noted with 

approval in Watson ‘that generally, error involving the infringement of a constitutional 

right, like any other error, requires a further determination whether the defendant has 

been prejudiced, and the final test is the “opinion” of the reviewing court, in the sense of 

its belief or conviction, as to the effect of the error ....’ ” (Id. at p. 697, fn. 5.)

Of course, at the time Collins was decided, the United States Supreme Court had 

ruled that the Sixth Amendment (as applied to the states through the Fourteenth 

Amendment) did not require unanimous jury verdicts in state criminal trials. (Apodaca v. 

Oregon (1972) 406 U.S. 404, 406.) The United States Supreme Court now recognizes 
45.

that the Sixth Amendment requires juror unanimity in state courts as well as federal 

courts. (Ramos, supra, ___ U.S. at p. ___ [140 S.Ct. at p. 1397.) We see no reason to 

conclude that our Supreme Court would revisit applying harmless error analysis now that 

juror unanimity is required by the Sixth Amendment as well as the California 

Constitution.

40

 If the error were structural, our Supreme Court would have recognized it 

as such under the California Constitution because it uses United States Supreme Court 

authority for that analysis. (See, e.g., People v. Lewis (2021) 11 Cal.5th 952, 973–974

[relying on Arizona, supra, 499 U.S. 279 to conclude that failure to appoint counsel at 

outset of § 1170.95 petition to pursue collateral relief is state error not rising to structural 

error]; People v. Gonzalez (2018) 5 Cal.5th 186, 195–199 [citing Arizona, at pp. 306–310 

when analyzing the type of error resulting from failure to instruct on lesser included 

offenses]; People v. Merritt (2017) 2 Cal.5th 819, 825–831 [rejecting argument that 

failure to instruct on multiple elements of robbery was structural error not amenable to 

harmless error review, though recognizing that an instructional error or omissions 

amounting to total deprivation of jury would be reversible per se]; People v. Reese (2017) 

2 Cal.5th 660, 712–715 [relying on Arizona, at pp. 307–310 to hold that erroneous 

withholding of portion of trial transcript subject to Chapman harmless error review even 

though total denial of transcript is a structural error reversible per se].)41

Moreover, defendant has failed to identify a single case that treated the trial 

court’s instructional error when substituting an alternate juror during deliberations as 

reversible per se. As our review of the federal cases above indicates, federal courts have 

40 Of course, because the instructional error would now affect defendant’s rights under both 

the United States and California Constitutions, it subject to harmless error review under 

Chapman, supra, 386 U.S. 18 as discussed above.

41 “Although the question whether a constitutional violation is structural or trial error is 

generally thought to be categorical, the harmless error status of certain constitutional violations is 

neither binary nor fixed. Certain errors can shift between being structural or subject to harmless 

error review depending on the nature and extent of the violation.” (People v. Reese, supra, 

2 Cal.5th at p. 712.)
46.

not set aside convictions where an alternate has been replaced during deliberations 

without a finding of prejudice. (See James, supra, 955 F.3d at p. 341;42 Claudio, supra, 

68 F.3d at p. 1577; Miller, supra, 757 F.2d at p. 995; Hillard, supra, 701 F.2d at 

pp. 1055–1057; Phillips, supra, 664 F.2d at pp. 990–993.)

We reject defendant’s argument that the instructional error in this case is structural 

and incapable of review for harmlessness.

C. Analysis

1. The Trial Court Did Not Err in Instructing the Jury to Deliberate 

Anew

As discussed above, Collins held that in situations where a juror is replaced with 

an alternate juror, the court must instruct the jury: (1) to set aside and disregard all past 

deliberations and begin deliberating anew; (2) that one of its members has been 

discharged and replaced with an alternate juror as provided by law; (3) that the law grants 

to the People and to the defendant the right to a verdict reached only after full 

participation of the 12 jurors who ultimately return a verdict and that this right may only 

be assured if the jury begins deliberations again from the beginning; and (4) that each 

remaining original juror must set aside and disregard the earlier deliberations. (Collins, 

supra, 17 Cal.3d at p. 694.) In this case, after seating the alternate juror, the trial court 

advised the jury as follows: (1) one juror had been excused and replaced with an 

alternate (and not to consider the substitution for any purpose); (2) the alternate juror 

must participate fully in the deliberations that lead to any verdict; (3) the People and the 

defendant have a right to a verdict reached only after full participation of the jurors 

whose votes determine the verdict and this right will only be assured if the jurors begin 

42 The district court instructed the jury: “(1) to ‘restart’ its deliberations ‘as though you are 

starting from scratch,’ ... (2) ‘there is no rush to reach a verdict;’ ... (3) the verdict ‘must be 

considered and deliberate;’ ... and (4) the new juror ‘should feel as though he is beginning anew, 

not ... interposing or becoming someone who is interrupting an ongoing process,’ ” but did not 

instruct the jury to disregard its prior deliberations. (James, supra, 955 F.3d at p. 341.)
47.

their deliberations again from the beginning; (4) each juror must set aside and disregard 

all past deliberations; and (5) all jurors should begin their deliberations all over again. 

The court repeated, “Each of you must disregard your earlier deliberations and decide this 

case as if those earlier deliberations had not taken place. [¶] Now, please return to the 

jury room and start your deliberations from the beginning.”

Defendant acknowledges the trial court correctly instructed the jury to begin 

deliberations anew but takes issue with the court’s comments made the day before and 

after reading the formal instruction. The day before substituting the alternate juror, the 

trial court dismissed one of the original jurors and explained to the remaining jurors the 

procedure that would follow: “I will read you an instruction. We’ll substitute the 

[alternate] juror in, but, in effect, your deliberations have to start to all over. It shouldn’t 

take long for the [alternate] juror to get up to date.” One juror acknowledged that they 

would start deliberations over but asked, “Will we get to keep our previous deliberations 

to refer back to them or are they destroyed?” In context, we conclude that the juror was 

referring to verdict forms for the 10 or 11 counts that had been reviewed prior to the 

substitution. When the court replied, “Se[e] if that juror can agree” and that “those

verdicts have to be redone,” we understand the trial court was advising that if the 

decisions as to those counts were unchanged after deliberations with the alternate juror, 

then the jury would not need to complete the verdict forms again. The trial court 

confirmed this understanding when it immediately offered to accept the completed 

verdict forms. The juror indicated their understanding of the trial court’s comments when 

the juror responded, “No, he probably wants us to start over.” The juror’s statement 

communicated that instead of continuing deliberations with the alternate juror as to only 

the remaining counts, the jury wished to start over to include the alternate juror on 

deliberations for the counts that had already been subject to their deliberations.

If there had been any confusion, we believe such confusion was dispelled by the 

formal instruction provided to the jury the following day. In light of the trial court’s 
48.

unequivocal statements when seating the alternate juror that the jury needed to start 

deliberating all over and that all 12 jurors had to discuss the case to reach a verdict, we do 

not believe that the jury could have been confused about its obligation to start the 

deliberations over. The alternate juror was not present the previous day and could not 

have been confused by any earlier statements. Based upon the trial court’s instruction 

that morning, the alternate juror would be expecting full deliberations on all of the 

charges. The original jury did not return the 10 completed verdict forms the prior day 

and elected to deliberate over again with the alternate juror. If the alternate juror had not 

been permitted to deliberate as to all of the charges because any juror failed to understand 

the trial court’s instructions, we believe that the resulting confusion would have resulted 

in a question to the court for guidance.

Before the alternate juror was substituted, the original jury had indicated to the 

court its intent to request readback of Mendoza’s testimony but had not done so. The 

trial court, after reading the formal instruction to deliberate anew to the newly constituted 

jury, reminded the jury that there was discussion the day before regarding readback of 

testimony. The trial court commented to the jury, “So when ... you are ready for that, 

please let me know and I will send [the court reporter] to read back that testimony.” 

Defendant argues that the trial court’s statement created confusion that caused the jury 

disregard the formal instruction to deliberate anew.

Citing to People v. Guillen (2014) 227 Cal.App.4th 934, 1029–1031 (Guillen), 

defendant claims the trial court’s comments, made after the required admonition,

undermined its instruction to restart deliberations. In Guillen, the trial court properly 

gave CALCRIM No. 3575 (as the trial court did here) but made other comments the 

appellate court concluded implied the jury should not disregard previous deliberations. 

(Guillen, at p. 1030.) In Guillen, the jury submitted a request to the trial court that 

included questions and a request for readback of testimony. (Id. at pp. 979–980.) While 

the trial court was consulting with counsel on responding to the request, but before the 
49.

jury had returned for deliberations, a juror became incapacitated. (Id. at p. 980.) The 

trial court and counsel agreed to replace the juror with an alternate, respond to the 

questions posed, and to arrange for the readback despite the change to the jury. When the 

trial resumed, the court advised the original 11 jurors and the alternate juror that it had 

responded to the questions on the original jury’s form and had arranged for the court 

reporter to reread testimony. (Ibid.) The trial court then read CALCRIM No. 3575, 

complying with Collins, supra, 17 Cal.3d at p. 694. (Guillen, at p. 981.) Immediately

thereafter, the trial court stated, “The first thing you’re going to get is a reread.” (Ibid.) 

The court held:

“Here, based on a complete reading of the trial court’s statements, 

we conclude the court improperly implied the jury should not disregard 

previous deliberations. After the court clerk swore in the alternate juror, 

the court stated it had received the jury’s request for readback of testimony. 

But those requests were from the original jury. By having the testimony 

read back, the court answered the original jury’s request despite the fact one 

juror was excused and the alternate juror did not participate in the 

deliberations that led to the requests. Although the court then instructed the 

jury with the proper instruction, CALCRIM No. 3575, which included the 

directive the alternate juror must fully participate in the deliberations, the 

court’s prior statements, like in [People v.] Odle [(1988) 45 Cal.3d 386, 

405], implied the jury should not disregard previous deliberations but 

should instead attempt to bring the alternate juror ‘up to speed’ on the 

matters already discussed and possibly decided based on the requests the 

original jury submitted to the trial court.” (Guillen, supra, 227 Cal.App.4th 

at p. 1030.)

In People v. Odle (1988) 45 Cal.3d 386 (Odle), the trial court made the following 

statements to the jury: “ ‘The court is compelled under the law to admonish you that you 

are to start your deliberations from scratch because, obviously, ... [the alternate] has not 

had the benefit of whatever discussions you have had so far.... Start your discussions 

from scratch so that [the alternate juror] has full benefit of everything that has gone on 

between the jury up to the present time.’ ” (Id. at p. 405, second bracketed insertion 

added, abrogated on another ground as stated in People v. Prieto (2003) 30 Cal.4th 226, 
50.

256.) Our Supreme Court noted that by instructing the jury to “ ‘start from scratch,’ ” the 

court correctly implied the jury should disregard its previous deliberations and start anew. 

(Ibid.) However, when the trial court added that the jury should start from scratch so the 

alternate juror could have the “ ‘benefit’ ” of “ ‘everything’ ” that had previously “ ‘gone 

on,’ ” it implied the jury should not disregard its previous deliberations. (Ibid.) Our

Supreme Court determined that this interpretation of the trial court’s comments would 

defeat the purpose of the instruction required under Collins. (Odle, at p. 405; but see 

Claudio, supra, 68 F.3d at p. 1577 [approving trial court instruction for original jurors to 

“completely inform the replacement juror of all previous deliberations and of each juror’s 

individual point of view” because instruction “designed to eliminate any disadvantage 

that the alternate juror may have felt as a result of her late introduction into the 

deliberations and to ensure her full, effective, and uncoerced participation in all aspects 

of the deliberations”].) However, our Supreme Court ultimately “assumed error” 

occurred and found the error was not prejudicial. (Odle, at pp. 405–406.)43

We note that the trial court’s instruction in Odle was decidedly less 

comprehensive, allowed for confusion, and stated two contrary concepts with equal force. 

CALCRIM. No. 3575, however, clearly mandates the jurors to set aside prior 

deliberations and to deliberate anew. The instruction, as given by the trial court in this 

case, states no less than four times that all deliberations must begin anew: “this right will 

only be assured if you begin your deliberations again from the beginning,” “you must set 

aside and disregard all past deliberations and begin your deliberations all over again,” 

43 Subsequent to Odle, our Supreme Court found no error where “the trial judge advised the 

jury to resume its deliberations, stating it ‘would be helpful and in connection with commencing 

your deliberations again, that you kind of start, start from scratch, so to speak, so that [the 

alternate juror] has the benefit of your thinking as well as give him an opportunity for his input 

also.’ ” (People v. Proctor (1992) 4 Cal.4th 499, 536.) The court held that this instruction 

comported with Collins, explaining in part: “By instructing the jury to ‘kind of start, start from 

scratch, so to speak,’ the court implied that the jury should disregard its previous deliberations.” 

(Proctor, at p. 537.)
51.

“[e]ach of you must disregard your earlier deliberations and decide this case as if those 

earlier deliberations had not taken place,” and “please return to the jury room and start 

your deliberations from the beginning.”

In Guillen, although the trial court instructed the jury in compliance with Collins, 

the court held these advisements were insufficient because, “like in Odle,” the trial court 

implied that the jury should not disregard the prior deliberations by honoring the original 

jury’s request. (Guillen, supra, 227 Cal.App.4th at p. 1030.) We disagree that the trial 

court’s instruction in this case was like the instruction given in Odle in light of its 

unequivocal and repeated instruction to “start over,” or that an implication arising from 

the trial court’s action would be sufficient to override the trial court’s explicit 

instructions. However, Guillen is distinguishable as well because the implication there 

arose because the original jury formally communicated a request to the trial court, and the 

trial court actually answered the original jury’s question, instructed the jury to deliberate 

anew, and then sent the court reporter to them to read back testimony as originally 

requested without providing the new jury the option to determine if and when such 

readback was needed.

In this case, however, the trial court did not arrange for the court reporter to read 

back the testimony and did not provide answers to the original jury’s questions. The trial 

court here instructed the reconstituted jury to communicate when it was ready for 

readback. The court never expressly contradicted its admonition to the jury to restart 

deliberations. We conclude that the effect of the trial court’s comment was not sufficient 

to imply to the jury to disregard their obligation to start deliberations over. Had the 

reconstituted jury not sent another request, then the court reporter would not have read 

back any testimony. In essence, the trial court advised the reconstituted jury to decide 
52.

when and if it needed testimony to be read back and thereby permitted the jurors to 

determine for themselves whether any readback was necessary.

44

In addition, if the trial court’s instructions were susceptible of the interpretation 

defendant now asserts, counsel likely would have objected at trial on this basis. Such an 

omission suggests that “ ‘ “the potential for [confusion] argued now was not apparent to 

one on the spot.” ’ (People v. Keenan (1988) 46 Cal.3d 478, 535 [failure to object to trial 

court’s remarks about potential jury investigation suggested the potential for coercion 

was not discernible], quoting Lowenfield v. Phelps (1988) 484 U.S. 231, 240.)” (People 

v. Young, supra, 34 Cal.4th at p. 1203.)

“The better practice would have been for the trial court to inform the newly 

impaneled jury the original jury’s requests were void, jury deliberations were to begin 

anew, and the court would consider all requests from the newly impaneled jury.” 

(Guillen, supra, 227 Cal.App.4th at p. 1030.) However, given the trial court’s reading of 

CALCRIM No. 3575 and its failure to honor the original jury’s request, we do not 

believe a reasonable juror would rationally infer that the court intended to override its 

previous directives based on the trial court’s comment.

2. Any Err in Instructing the Jury to Deliberate Anew Was Harmless

Assuming that the failure to adequately instruct the jury to commence 

deliberations anew after a juror substitution is violative of the Sixth Amendment as well 

as the California Constitution, we find any error to be harmless beyond a reasonable 

doubt. (See Chapman, supra, 386 U.S. at p. 24.)

In assessing whether any error in the instructions was harmless, we consider the 

strength of the evidence and compare the time deliberating before and after the alternate 

juror was substituted. (See Collins, supra, 17 Cal.3d at pp. 697, 691, 690 [“The case 

44 When the jury communicated with the court, the request was different than what had 

been mentioned by the original jury; more than Mendoza’s testimony was requested.
53.

against defendant is very strong.” “The error was thus harmless and nonprejudicial.”

(jury deliberated for approximately one hour and 15 minutes before substitution and “few

hours” thereafter)]; Griesel v. Dart Industries, Inc. (1979) 23 Cal.3d 578, 585, 583

[finding prejudice where case was close and jury deliberated seven days before 

substitution and only four hours after]; Odle, supra, 45 Cal.3d at p. 405 [“we observed 

that the closeness of the case and the comparison of time spent deliberating before and 

after the substitution of the alternate juror”—part of an afternoon versus two and one-half 

days—“were factors to be considered when determining prejudice”]; People v. Proctor, 

supra, 4 Cal.4th at p. 537 [evidence was overwhelming and deliberation prior to

substitution of juror was minimal (little more than one hour) compared to deliberations 

after substitution (several hours)].)

Federal cases have also considered whether the jury was prevented from starting 

deliberations over and if the time deliberating after substitution evidenced the alternate’s 

participation in deliberations. (See Peek, supra, 784 F.2d at pp. 1482 & fn. 2, 1485 

[finding no prejudice where not instructed to begin deliberations anew or equivalent and 

jury deliberated for two hours before substitution and 15–30 minutes thereafter]; Claudio, 

supra, 68 F.3d at pp. 1575, 1577 [jury not instructed to begin deliberations anew or 

equivalent and jury deliberated for six and one-half hours before substitution and nine 

and one-half hours thereafter]; United States v. Virgen-Moreno (5th Cir. 2001) 265 F.3d

276, 289 [jury not instructed to begin deliberations anew or equivalent but jury 

deliberated for 15 minutes before substitution and three hours thereafter]; United States v. 

Oscar, supra, 877 F.3d at p. 1289 [jury deliberated two and one-half days before 

substitution and nine hours after indicated alternate not coerced.)

Courts have also considered whether the jury, after substitution of the alternate, 

returned verdicts indicating discrimination and consideration of the charges. (See, e.g.,

Hillard, supra, 701 F.2d at pp. 1055–1057 [noting jury deliberated two days before the 

substitution and two days after, requested testimony and exhibits, and also returned 
54.

separate verdicts (both guilty and not guilty) as to each defendant and charge during that 

time].)

In the instant case, the original jury deliberated for three hours before retiring for 

the day. One juror reported to the trial court that they estimated needing more than 

20 minutes because the jury would be requesting readback of Mendoza’s testimony, but 

they did not believe it would “take that much longer.” However, after substitution of the 

alternate juror, the jury took longer than originally estimated, indicating the deliberations 

included more than the remaining counts. The reconstituted jury commenced 

deliberations at 9:07 a.m. After deliberating for an hour, the jury sent a note requesting 

readback of G.S.’s and M.C.’s testimonies in addition to Mendoza’s testimony.

45

 This 

was completed at 11:43 a.m., and the jury notified the court of its verdicts at 2:05 p.m. 

The record does not indicate the jury took any breaks and, excluding time with the court 

reporter, the jury deliberated no less than two and as much as three hours after the 

alternate juror joined the jury. While this may have been the same or shorter than 

original jury’s deliberations, the difference is not vastly significant.

The actual, deliberative conduct of the reconstituted jury indicates the jury started 

deliberations anew. The original jury reviewed 10 or 11 of the counts relating to G.S. 

within the first three hours of deliberation and indicated it would not take much longer 

than 20 minutes to review of the remaining five or six counts. However, the jury 

deliberated longer than originally anticipated if it were only considering the remaining 

counts. In addition, after substitution of the alternate, the reconstituted jury requested 

more testimony than just Mendoza’s as previously indicated, including M.C.’s and G.S.’s

in their request even though the original jury reported having reviewed 11 of the 13 

counts relating to G.S. These factors are also indicative that the jury did not continue its 

45 Mendoza’s provided expert testimony as to the DNA results which was pertinent to 

counts 12 and 13 (the sexual abuse that occurred just prior to G.S.’s report to the police).
55.

prior deliberations but started their deliberations anew. We also consider the jury’s 

decision not to return verdicts on the counts they had reviewed before the alternate was 

substituted and comment that the alternate juror would want to participate in the 

decisions as to those counts. These factors and the actual instructions by the trial court,

which included an admonition to start deliberating over again at least four times, causes 

us to conclude that the jury did not disregard the court’s admonitions.

We agree with the People that this was not a close case and the evidence was 

strong in support of the guilty verdicts. The information contained 16 counts of child 

abuse, including 13 counts involving G.S. G.S. testified that defendant committed the 

various acts against her. Her testimony was essentially unimpeached. As to counts 12 

and 13, G.S. testified that the sexual assaults occurred just before they were reported to 

the police and this was corroborated by DNA evidence that was obtained from G.S. at 

that time. The DNA contained a sperm protein and, while defendant could not be 

eliminated as a contributor, the statistical evidence showed that the same DNA profile 

would be expected to occur randomly in only one in 91 quadrillion Hispanics (a virtual 

statistical certainty). This evidence corroborated G.S.’s testimony regarding the recent 

sexual assault given the unlikelihood it resulted from inadvertent contact.

G.S.’s mother, Estella, testified that just after the abuse was reported to the police, 

she spoke with defendant who refused to return home because he feared he would be 

arrested, which supported an inference that he was conscious of his guilt. In addition, the 

testimony of G.S., M.C., and I.C. corroborated that defendant sexually assaulted them. 

Defendant’s only evidence was from Lola, a nurse who testified that she never saw 

anything unusual when she regularly visited defendant’s residence during the several 

weeks preceding G.S.’s report of the abuse. However, Lola also testified that during the 

visits, she stayed just inside the residence by the front door and was only present for 5 to 

10 minutes at a time. This testimony did not convincingly contradict G.S.’s testimony 
56.

concerning defendant’s early morning abuse of her during that time period or respond to 

G.S.’s testimony of the preceding years of abuse.

We conclude that, even if the Sixth Amendment required the trial court to instruct 

the reconstituted jury to deliberate anew, any error in doing so was harmless beyond a 

reasonable doubt.

DISPOSITION

The conviction on count 5 is reversed. The conviction on count 12 is modified to

assault of a person under 18 years of age with intent to commit rape in violation of Penal 

Code section 220, subdivision (a)(2). The case is remanded to the trial court with 

directions to reverse the conviction on count 5, modify the conviction on count 12, 

resentence defendant, and exercise its discretion under Penal Code section 654, as 

amended by Assembly Bill No. 518 (Stats. 2021, ch. 441, § 1), to stay the sentence on 

either count 8 or count 9. The judgment is affirmed in all other respects.

HILL, P. J.

WE CONCUR:

DETJEN, J.

SMITH, J.