1

Filed 9/30/21 P. v. Fontes CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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

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

publication or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, 

 

 Plaintiff and Respondent, 

v.

PETERSON WILLIAM FONTES,

Defendant and Appellant.

 A159406

 A162101

 (Napa County

 Super. Ct. No. 19CR001470)

 

As a result of cutting holes into porta-potty units and then using 

those holes to touch the genital openings of female victims who were 

urinating, defendant Peterson William Fontes was convicted by a jury 

of forcible sexual penetration by a foreign object (Pen. Code 1 § 289, 

subd. (a)(1)(a)) (two counts), second-degree burglary (§ 459), and 

vandalism (§ 594, subd. (b)(1)). He was sentenced to an aggregate term 

of 16 years and eight months.

On appeal, defendant seeks reversal of only the sexual 

penetration convictions on the basis of insufficient evidence (case No. 

1 All further undesignated statutory references are to the Penal 

Code.
2

A159406). Alternatively, he seeks a new trial based on erroneous 

admission of evidence, the prosecutor’s closing statements, jury 

instructions, and ineffective assistance of trial counsel. Defendant also 

contends he is entitled to an additional presentence credit. We remand 

for the trial court to award an additional two days of presentence credit 

and otherwise affirm the judgment. 

Defendant also appeals (case No. A162101) from an order which, 

in pertinent part, awards Jane Doe 1 restitution in the sum of 

$4,259.60 plus ten percent interest per annum from the date of 

sentencing. Defendant challenges this award on the basis that the 

victim’s chiropractic treatment expenses were not shown to be a direct 

result of his criminal conduct, and that certain transportation and hotel 

costs were not shown to be closely related to categories of recoverable 

economic losses. We affirm.

By our order filed August 23, 2021, the appeals have been 

consolidated for oral argument and decision. 

FACTUAL AND PROCEDURAL BACKGROUND

The sexual penetration charges arose from two separate incidents 

at outdoor festivals in 2019 – one in Napa County (Jane Doe 1) and the 

other in Alameda County (Jane Doe 2). The prosecution’s theory was 

that on each occasion defendant cut holes in the walls of adjacent portapotty units, surreptitiously watched through the holes as Jane Doe 1 

and Jane Doe 2 urinated, and reached through the holes and 

penetrated their genital openings with his fingers. 

1. May 12, 2019 Incident (Jane Doe 2)

On May 12, 2019, Jane Doe 2 was working at a festival in 

Alameda County. That afternoon she left her booth to use one of three 
3

porta-potty units, specifically the larger handicapped unit. She pulled 

down her pants and underwear and squatted above the toilet with her 

hands on her knees. She felt something touching her posterior and at 

first thought it was her shirt, but then realized it was a hand. She 

looked between her legs and saw a pale, white hand that looked male. 

“[T]he hand was pretty much in [her] vagina like touching [her], 

grabbing [her].” She felt fingers on her labia. At the time the fingers 

were grabbing between “[her] vaginal lips,” “[i]t was definitely 

discomforting. It was . . . a lot of pressure.” The hand was 

“[s]queezing” and the fingers were “wiggly.” She “freaked out,” could 

not believe there was a hand, felt scared, and did not feel like she could 

move – she felt like she “got stuck.” She screamed, jumped up, “peed 

all over” herself, pulled up her underwear, and got out of the bathroom. 

She felt “scared,” “[c]onfused,” “[n]ervous,” and “[e]mbarrassed.” After 

she screamed, the hand disappeared “back into the hole it came from.” 

She was “rattled,” felt “a tightness in [her] chest,” and her “head 

started hurting.” The touching lasted “three seconds.” The incident 

lasted “no more than 20 seconds” from the time she pulled down her 

pants to when she pulled them up. Once outside, Jane Doe 2 did not 

see anyone running but the people outside told her that they had seen 

someone run behind the porta-potty unit and down the street. 

Mark Gerhard, who was standing in line to use a porta-potty

unit, heard Jane Doe 2 screaming when she was inside. She exited and 

said, “there was a hand.” Gerhard saw a man exit the adjacent portapotty unit and run away in a hurry; Gerhard did not see the man’s face 

but described him as “[W]hite, Asian, or Hispanic,” and having very 

short hair, a slight to medium build, and wearing a black shirt. 
4

Gerhard was not asked to identify defendant as the man he saw fleeing 

the area. Gerhard pursued the man but was unable to find him. When 

Gerhard returned to the porta-potty unit area he saw Jane Doe 2 

“crying [and] shaking;” he called 911 and stayed with her until the 

police arrived. 

Alameda Police Officer Eric McKinley met with Jane Doe 2 at the 

police station one block from the festival. Visibly shaken, voice 

unsteady, and eyes puffy and watery as if she had been crying, Jane 

Doe 2 explained that a hand touched her genitalia as she was urinating

in a porta-potty unit. She initially estimated she was touched for three 

seconds, but then said it was two seconds. 

Officer McKinley walked to the festival and photographed the 

damaged porta-potty unit used by Jane Doe 2 and the damaged 

adjacent porta-potty unit; the units were “set up against each other,” 

with a small gap of approximately three or four inches between the 

units; and the jury was shown photographs of the damaged units. 

There was a small four-side rectangular hole (six inches by five inches)

in the wall of the unit used by Jane Doe 2, and there was also a small

third-sided hole cut to operate as a flap in the wall of the adjacent 

porta-potty unit. The holes in the units “were in line horizontally, but 

vertically they were askew.” However, the officer was able to see 

between the units when the flap was moved to reveal the hole in the 

porta-potty unit adjacent to the unit used by Jane Doe 2. The holes 

appeared to have been cut by hand with a sharp object and were 

approximately one and one-half feet above the ground.
5

2. May 25, 2019 Incident (Jane Doe 1)

On May 25, 2019, Jane Doe 1 attended a festival in Napa County. 

That evening, she entered the fifth porta-potty unit on the left bank of 

handicap units. Because the unit was dark, she turned on her cell 

phone light. She held her phone in her mouth, pulled down her 

underwear, hiked up her dress, squatted above the toilet seat, and 

started to urinate. “[M]aybe two seconds” later, she saw that her 

stream of urine “started to just spray everywhere.” She looked down 

and felt something “tap” or “poke[] her vagina.” The first poke was on 

her perineum. She looked more closely and saw a hand facing palm up 

with the index finger and thumb pointed up and the remaining fingers 

curled into the palm. The hand was clean, well-groomed, and belonged 

to a white man. Jane Doe 1 felt a second tap on her perineum and then 

a finger was asserted into her vagina; she was able to describe the 

manner of insertion. She quickly tried to grab the hand but could not 

do so. Approximately seven seconds elapsed between when she felt her 

urine spray and when she tried to grab the hand. She yelled and exited 

the unit while urinating; she yelled again for help and said someone 

stuck his finger in her vagina. 

Jane Doe 1 saw two security guards, but they were “dismissive” 

of her complaint. She showed the security guards the area behind the 

porta-potty units, which at approximately two feet wide was sufficient 

for someone to shimmy behind the units. She then showed one of the 

security guards the hole in the porta-potty unit she had used and the 

hole in the adjacent unit. Similar to the holes cut at the Alameda 

County fair, Jane Doe 1 described the hole in her unit as rectangular, 

approximately six by eight inches, with straight edges that were 
6

“meticulously cut,” and approximately one and a half feet above the 

ground, while the hole in the adjacent unit was similar but cut only on 

three sides so that it operated as a flap. 

Jane Doe 1 also spoke with the festival site operations 

coordinator, Michael Marzulli, who testified concerning the layout of 

the festival, including the porta-potty units. Marzulli confirmed that 

between the fence (enclosing the festival grounds) and the porta-potty 

units there was a space wide enough for him to sidestep along the rear 

of the porta-potty units. After speaking with Jane Doe 1, Marzulli 

pulled back the fence line, walked to the rear of the porta-potty units, 

and saw that someone had cut a hole in four units. After further 

investigation, festival employees discovered four additional porta-potty 

units had been cut with holes, for a total of eight units. 

Jane Doe 1 called 911 and Detective Brandt Keown responded to

the call at the festival. Keown and Jane Doe 1 went to the police 

station, where they spoke for approximately one and one-half to two 

hours; he testified she was angry and frustrated as well as frightened. 

She described the incident as “one touching” and as a “poke.” After 

speaking with the officer, Jane Doe 1 was examined by nurse 

practitioner Kari Cordero who photographed abrasions in her genital

area. Jane Doe 1 had a burning sensation in her vagina after the 

incident that lasted two days. Also, in attempting to grab the man’s 

hand she strained her lower back and subsequently received 

chiropractic treatment for the pain. She saw a therapist every week for 

post-traumatic stress disorder and depression. Cordero testified that 

she found multiple abrasions in Jane Doe 1’s perineum, which 
7

indicated blunt force trauma. The physical examination was consistent 

with Jane Doe 1’s report of the assault.

3. Police Investigation 

Following the May 25 assault on Jane Doe 1, the next day (May 

26), festival manager Marzulli arranged for the damaged porta-potty 

units to be repaired and patches were put over the holes. At 

approximately 9:00 p.m. Marzulli saw defendant slide out from behind 

the porta-potty area where Jane Doe 1 had been assaulted and exit 

through a break in the fence. Marzulli grabbed defendant by the arm, 

and asked him, “[w]hat are you doing back here?” Defendant said he 

was urinating. Marzulli noticed defendant did not have an admission 

wrist band for the festival. Defendant got aggressive and tried to leave, 

but Marzulli detained him. 

Defendant was transported to the Napa police department where 

he met with Detective Keown. A photograph of defendant was taken, 

and his hands were examined – they had some recent scratches and 

small cuts, but were otherwise well-cared for and clean. Defendant was 

described as five feet four inches tall and approximately 150 pounds. 

Keown later went to defendant’s apartment, where he found a doubleedged wallboard saw (serrated blade with teeth on both sides) and a 

flyer for a festival in Kern County. 

When the police detained defendant, he was found holding a 

Samsung Galaxy cell phone in his left hand. The police also recovered 

a key fob for a Lincoln vehicle that was later located and visible in the 

center console was an Apple iPhone. The police took custody of both 

cell phones. Dustin Dodd, an expert in cell phone and forensic analysis, 

testified he had prepared a report concerning the videos and digital 
8

photographs found on the phones. One cell phone’s history included 

internet searches concerning the Alameda and Napa festivals, while 

the other cell phone had several fliers for the Napa festival. One cell 

phone also contained videos and digital photographs. The videos 

included women urinating with their genital areas exposed inside 

porta-potty units and a woman “orally copulating a male in a portapotty” unit at the very end of which defendant “turns the phone around 

to stop the video and is captured briefly by the camera as he turns the 

phone around.” The digital photographs included images of women 

urinating and a selfie photograph of defendant inside a porta-potty 

unit; all the media appeared to have been taken at the Napa and 

Alameda festival grounds between May 11 and May 25, 2019.

4. Defendant’s Prior Uncharged Offense in Brazil 

The prosecution also presented the testimony of Leonardo Silva, 

“Chief of Police” of one of the over 30 police stations in Brasilia, Brazil. 

As Chief of Police, Silva managed the local police force and also had 

some “judicial powers” including “indicting suspects” and “conducting 

interrogations.” 

On October 14, 2018, Silva questioned defendant concerning his 

conduct at an event in a city park. Defendant admitted he had 

damaged temporary portable “chemical toilets” (the “same” as portapotty units), which were specifically designated for female use. 

Defendant said he was motivated to drill holes in the toilets after he 

had watched a video about watching women using toilets. When asked 

if his objective was to “satisfy his lewdness,” defendant “confirmed” that 

his objective was “to satisfy his sexual desires.” However, defendant 

denied being able to see any women inside the toilets even though he
9

had damaged six toilets and watched for 30 to 40 minutes. Defendant 

repeatedly said he was deeply ashamed and that it was the first time 

he had tried to view women urinating in portable units. 

5. Defense Case

Defendant did not testify or present any witnesses. 

In closing, defense counsel argued defendant was not the man 

who sexually assaulted the two women, noting that no one identified 

defendant as the assailant and his hands did not match the 

descriptions given by the women. Alternatively, counsel argued the 

assailant’s sexual penetrations were not accomplished with sufficient 

force to overcome the will of the victims, noting the brevity of 

penetrations and the lack of visible physical injuries suffered by the 

victims.

DISCUSSION

CASE NO. A159406

I. There Was Sufficient Evidence to Support Convictions for 

Forcible Sexual Penetration by Means of Force or Fear

Defendant contends his convictions for forcible sexual penetration 

must be reversed for insufficient evidence. We disagree.

A conviction for violating section 289, commonly referred to as 

forcible sexual penetration, requires the prosecution to prove several 

elements: defendant committed an act of penetration for the purpose of 

sexual gratification, arousal, or abuse; the act was committed by using 

a foreign object; the other person did not consent; and the penetration 

was accomplished by the coercive means of force, violence, duress, 

menace, or fear of immediate and unlawful bodily injury to the other 

person. (§ 289, subd. (a)(1)(A); italics added.) 
10

Defendant’s sole substantive argument is that there was 

insufficient proof that he accomplished the sexual penetrations by 

means of force.2 According to defendant, the evidence did not show 

coercive force because the digital penetrations were accomplished by 

“stealth or trick” or “furtiveness and subterfuge” in that he hid himself 

and touched the victims when they had voluntarily exposed their 

genitals and were in a vulnerable position. This argument is without 

merit. 

We review the record for “substantial evidence” by examining 

“the entire record” and “draw[ing] all reasonable inferences in favor of 

the judgment to determine whether there is reasonable and credible 

evidence from which a reasonable trier of fact could find the defendant

guilty beyond a reasonable doubt. [Citation.] Although circumstances 

might also reasonably be reconciled with a contrary finding, it does not 

warrant reversal of the judgment and . . . [the] verdict will not be set 

aside unless the record clearly shows that there is not sufficient 

evidence based upon any hypothesis whatsoever. [Citation.]” (People v. 

Thomas (2017) 15 Cal.App.5th 1063, 1071 (Thomas.) “The same 

standard also applies in cases in which the prosecution relies primarily 

on circumstantial evidence.” (People v. Young (2005) 34 Cal.4th 1149, 

1175.) 

2 While the jury was also asked to consider the other coercive 

means of violence, duress, menace, or fear of immediate and unlawful 

bodily injury, defendant presents no substantive argument challenging 

the sufficiency of the evidence as to those components. Rather, he 

merely argues, in a conclusory fashion, that the evidence is not 

sufficient to support violence, duress, menace or fear of immediate and 

unlawful bodily injury. Defendant explains his limited argument by 

asserting, “[a]s is apparent from the record, this case was prosecuted as 

one based on force.” 
11

We initially reject defendant’s argument that the convictions 

cannot be sustained because there was no “additional physical act 

constituting force beyond the mere sexual act itself,” as he simply

“inserted his fingers on and into the outer genitalia of these women,” 

thereby accomplishing the act without having to overcome their will. 

However, defendant’s argument too narrowly defines the element of 

“force” within the meaning of section 289. 

Section 289 “ ‘primarily guards the integrity of a woman’s will 

and the privacy of her sexuality from an act of [penetration] 

undertaken without her consent. Because the fundamental wrong is 

the violation of a woman’s will and sexuality, the law. . . does not 

require that “force” cause physical harm. Rather, in this scenario, 

“force” plays merely a supporting evidentiary role, as necessary only to 

insure an act of [penetration] has been undertaken against a victim’s 

will.’ ” (People v. Griffin (2004) 33 Cal.4th 1015, 1025 (Griffin)

[discussing the law of rape], citing People v. Cicero (1984) 157 

Cal.App.3d 465, 475 (Cicero), disapproved on other grounds in People v. 

Soto (2011) 51 Cal.4th 229, 248.) “ ‘Force’ includes circumstances 

where the victim did not want to engage in the act and the evidence 

does not otherwise establish the victim’s positive cooperation in act or 

attitude.” (Thomas, supra, 15 Cal.App.5th at p. 1071, citing People v. 

Young (1987) 190 Cal.App.3d 248, 258.) Our Supreme Court has 

explicitly rejected the suggestion that the necessary force “actually 

means force ‘substantially different from or substantially greater than’

the physical force normally inherent in an act of consensual sexual 

[penetration]. (Cicero, supra, 157, Cal.App.3d at p. 474, italics added).” 

(Griffin, supra, at p. 1023.) Instead, the Supreme Court has made it 
12

quite clear that “ ‘ “ ‘[t]he kind of physical force is immaterial; . . . it may 

consist in the taking of indecent liberties with a woman . . . .’ ” ’ ” 

(Griffin, supra, at p. 1024, first italics added by Griffin court, second 

italics added.) 

Given the broad definitions used to describe the “force” necessary 

to satisfy that element within the meaning of section 289, we reject 

defendant’s argument that the evidence was insufficient. The record 

undisputedly shows that the victims did not want to be penetrated and 

there is zero evidence establishing the victims’ “positive” cooperation or 

attitude. (Thomas, supra, 15 Cal.App.5th at p. 1072.) Although lack of 

consent and force are separate elements that must each be proven (In 

re Jose P. (2005) 131 Cal.App.4th 110, 116), the same evidence is often 

relevant to establish lack of consent and force, which elements are both

directly linked to the overbearing of the victim’s will. (People v. Maury

(2003) 30 Cal.4th 342, 403; see People v. Iniguez (1994) 7 Cal.4th 847, 

856 (Iniguez).) 

Moreover, even if the evidence were insufficient to show “force” 

within the meaning of section 289, the jury could have found defendant 

accomplished the penetrations by use of the coercive means of fear of 

immediate and unlawful bodily injury.3 Like the force necessary to 

overcome a victim’s will, “[i]n order to satisfy the [fear] component, the 

3 While the prosecutor and defense counsel focused their closings 

on the coercive means of “force” by which defendant accomplished the 

sexual penetrations, the jurors were free to consider other coercive 

means of accomplishing the acts, which included “fear of immediate 

and unlawful bodily injury.” Because the jurors were allowed to convict 

defendant if they found he used fear of immediate and unlawful bodily 

injury, we may sustain the convictions if there is substantial evidence 

demonstrating the use of that coercive means of accomplishing the 

sexual penetrations. 
13

extent or seriousness of the injury feared is immaterial.” (Iniguez, 

supra, 7 Cal.4th at p. 856.) Here, there is no question that defendant’s 

penetrations while the victims were urinating in the porta-potty units 

were acts of “ ‘[s]udden, unconsented[] to’ ” touching, and the ensuing 

penetrations of their genital openings, however brief, “ ‘would 

reasonably cause one to react with fear.’ ” (Thomas, supra, 15 

Cal.App.5th at p. 1071, quoting Iniquez, supra, at p. 858.) By his 

conduct, defendant violated “the [victims’] enhanced level of security 

and privacy,” providing him with the advantage of “ ‘shock and surprise 

which [might] incapacitate the victim(s).’ ” (Iniquez, supra, at p. 858.) 

“Any man or woman . . . [finding] himself or herself in this situation 

could reasonably react with fear of immediate or unlawful bodily 

injury.” (Ibid.) 

Accordingly, we conclude there was sufficient evidence to support 

the forcible sexual penetration convictions.4 

II. No Error in Jury Instructions

A. CALCRIM No. 1045

1. Relevant Facts 

Defense counsel requested the language in CALCRIM No. 1045, 

which states as follows. 

“The defendant is charged in counts one and six with sexual 

penetration by force. To prove that the defendant is guilty of this 

crime, the People must prove that, one, the defendant committed an act 

of sexual penetration with another person. Two, the penetration was 

accomplished by using a foreign object. Three, the other person did not 

consent . . . to the act. And four, the defendant accomplished the act by 

4 In light of our determination, we need not address whether the 

evidence was sufficient to demonstrate that the victims’ wills were 

overborne by other coercive means, i.e., violence, duress, or menace, 

which components were also submitted for the jury’s consideration. 
14

force, violence, duress, menace, or fear of immediate and unlawful 

bodily injury to the other person.

“Sexual penetration means penetration, however slight, of the 

genital or anal opening of the other person for the purpose of sexual 

abuse, arousal, or gratification.

“A foreign object, substance, instrument, or device includes any 

part of the body except a sexual organ. [In the pattern instruction at 

this point, it is suggested as optional language that the court advise the 

jury, “Penetration for sexual abuse means penetration for the purpose 

of causing pain, injury, or discomfort.”] 

“In order to consent, a person must act freely and voluntarily, 

and know the nature of the acts. 

“An act is accomplished by force if a person uses enough physical 

force to overcome the other person’s will.

“Duress means a direct or implied threat of force, violence, 

danger, hardship, or retribution that is enough to cause a reasonable 

person of ordinary sensitivity to do or submit to something that he or 

she would not otherwise do or submit to.

“When deciding whether the act was accomplished by duress, 

consider all the circumstances, including the age of the other person 

and her relationship to the defendant.

“Menace means a threat, statement, or act showing an intent to 

injure someone else.

“An act is accomplished by fear if the other person is actually and 

reasonably afraid or if she is actually but unreasonably afraid and the 

defendant knows her fear and takes advantage of it.” 

At the jury instruction conference, the court asked the parties if 

the optional language defining “penetration for sexual abuse” was 

necessary. Defense counsel took the position that the proposed 

language was not relevant as “penetration for sexual abuse” was not an 
15

issue, and the prosecutor agreed. Without objection, the trial court 

ruled the optional language regarding the definition of the phrase 

“penetration by sexual abuse” would not be given because there was no 

substantial evidence to support that theory. 

2. Analysis

On appeal, defendant argues the trial court erred in failing to 

instruct with the CALCRIM No. 1045 optional language for the 

definition of the phrase “penetration for sexual abuse” on the basis that 

the court had a sua sponte duty to do so based on People v. White (1986) 

179 Cal.App.3d 193 (White). We disagree. 

Defendant has forfeited his claim of instructional error by his 

failure to object and his specific request that the court not instruct the 

jury on the definition of “penetration for sexual abuse” using the 

optional language in CALCRIM No. 1045. (See People v. Ryan (1999) 

76 Cal.App.4th 1304, 1318-1319 [trial court has no sua sponte duty to 

provide amplifying instructions for commonly understood terms in the 

absence of a request]; People v. Ahsbahs (1946) 77 Cal.App.2d 244, 249 

[in the absence of a request the trial court is not required to define 

“lewd” and “lascivious” as it is not necessary to define to the jury every 

word found in a statute describing a crime].) 

Even if defendant had not requested the language be omitted, the 

trial court did not have a sua sponte duty to advise the jury of the 

definition of “penetration for sexual abuse.” CALCRIM No. 1045’s 

optional language is taken from the decision in White, supra, 179

Cal.App.3d 193, which held that the phrase “penetration for sexual 

abuse,” as used in section 289, means “ ‘penetration . . . accomplished 

for the purpose of causing pain, injury or discomfort” directed to a 
16

victim’s “sexual or ‘private’ parts” (179 Cal.App.3d at p. 205), thereby 

adopting the commonly understood dictionary definitions of “abuse” 

and “sexual.” 5 The White court did not hold, as defendant contends, 

that the phrase “penetration for sexual abuse” has a technical legal 

meaning in the context of the sexual penetration statute. Instead, it 

merely confirmed that the phrase “penetration for sexual abuse” as 

used in section 289 is to be interpreted as it is “ ‘ “ ‘commonly 

understood by those familiar with the English language and is not used 

in a technical sense particular to the law.’ ” ’ ” (Griffin, supra, 33 

Cal.4th at pp. 1022-1023.) “ ‘When a word or phrase “ ‘is commonly 

understood by those familiar with the English language and is not used 

in a technical sense peculiar to the law, the court is not required to give 

an instruction as to its meaning in the absence of a request.’ ” 

[Citations.] A word or phrase having a technical, legal meaning 

requiring clarification by the court is one that has a definition that 

differs from its nonlegal meaning. [Citation.]’ ” (Ibid., quoting People 

v. Estrada (1995) 11 Cal.4th 568, 574, italics in original.) 

5 “The ‘abuse’ of a person commonly means the mistreatment of the 

person ‘in a harmful, injurious, or offensive way.’ (Random House Dict. 

of English Language (2d ed. 1987) p. 9.) Abuse is not limited to causing 

physical injury to the person; it includes emotional harm by the use of 

offensive conduct. (Merriam-Webster’s Collegiate Dict. (11th ed. 2006) 

p. 6; Webster’s 3d New Internat. Dict. (1986) p. 8; American Heritage 

Dict. (2d college ed. 1985) p. 70; Funk & Wagnalls Standard College 

Dict. (1974) pg. 7.) Thus, for example, conduct intending to insult or 

humiliate a person is the ‘abuse’ of the person. (E.g., American 

Heritage Dict., supra, at p. 70.)” (In re Shannon T. (2006) 144 

Cal.App.4th 618, 622.) “Sexual” is defined as “[o]f pertaining to, 

affecting, or characteristic of sex, the sexes, or the sex organs and their 

functions.” (American Heritage Dict. (2d college ed. 1982) p. 1124.)
17

We also reject defendant’s contention that because the jurors 

were not instructed on the definition of “penetration for sexual abuse” 

they could have viewed the mere act of penetration of the genital 

opening as sufficiently abusive to convict him. The given instructions 

do not equate “penetration” with “abuse.” Instead, the jurors were 

specifically informed that to convict defendant they must find he had 

“the specific intent” to penetrate the women “for the purpose of sexual 

abuse, arousal or gratification.” (CALCRIM No. 252.)

We also are not persuaded by defendant’s complaint that his case 

is “unusual” in that it presents what is likely a rare instance where the 

penetration may have been for purposes other than sexual arousal, 

gratification, or abuse. According to defendant, in the absence of a 

definition of sexual abuse, “the jurors could have concluded that the 

mere act of genital penetration was sufficient to establish sexual abuse. 

However, had there been [an] instruction that sexual abuse requires an 

intent to injure or cause pain, at least some of the jurors likely would 

have voted to acquit [him] . . ., finding instead that his intent was to 

embarrass, humiliate and frighten the women. . . .” Defendant’s 

argument falters at the outset because it is premised on too narrow a 

definition of sexual abuse. Had the omitted definition be given, the 

jury would have been advised that defendant could also be found guilty 

if the sexual penetration was committed for “the purpose of causing 

pain, injury, or discomfort” to the women. (CALCRIM No. 1045; italics 

added.) Here, there was ample evidence to support a reasonable juror’s 

finding that defendant must have known that digital penetration of the 

women would cause discomfort. 
18

Lastly, we reject defendant’s argument that his trial counsel was 

ineffective because there could be no rational, tactical, or strategic 

purpose for failing to request an instruction on the definition of the 

phrase “penetration for sexual abuse.” Because the “discomforting” 

nature of defendant’s actions was self-evident, defense counsel could 

have determined, reasonably and strategically, that the optional 

language in CALCRIM No. 1045 would not inure to defendant’s benefit. 

Consequently, we reject defendant’s claim of ineffective assistance of 

counsel. 

For the stated reasons, defendant’s request for reversal based on 

the trial court’s failure to instruct the jury using the optional language 

in CALCRIM No. 1045 fails. 

B. CALCRIM No. 1191B

Over defense counsel’s objection, the court, using language in 

CALCRIM No. 1191B, advised the jury as follows: 

“The People presented evidence that the defendant committed 

the crimes Sexual Penetration by Force, Assault with Intent to Commit 

Sexual Penetration, and Sexual Battery as charged in Counts 1, 2, 5, 6, 

and 7. 

“If the People have proved beyond a reasonable doubt that the 

defendant committed one or more of these crimes, you may, but are not 

required to, conclude from that evidence that the defendant was 

disposed or inclined to commit sexual offenses, and based on that 

decision, also conclude that the defendant was likely to commit and did 

commit the other sex offenses charged in this case. 

“If you find that the defendant committed one or more of these 

crimes, that conclusion is only one factor to consider along with all the 

other evidence. It is not sufficient by itself to prove that the defendant 

is guilty of another crime. The People must still prove each charge and 

allegation beyond a reasonable doubt.” 
19

Defendant contends the instruction was “constitutionally infirm” 

as it interfered with the presumption of innocence and allowed the jury 

to infer guilt of the charged offenses and to make a finding based on a 

standard of proof less than beyond a reasonable doubt. 

He acknowledges that his constitutional challenge is foreclosed 

by People v. Reliford ((2003) 29 Cal.4th 1007 (Reliford) [reviewing 

CALJIC former No. 2.50.1]) and People v. Villatoro ((2012) 54 Cal.4th 

1152 [reviewing CALCRIM former No. 1191B]). In those cases, our 

high court upheld similar propensity evidence instructions against 

constitutional challenges that the instruction interfered with the 

presumption of innocence and impermissibly lowered the prosecutor’s 

burden of proof. (Reliford, supra, at pp. 1012-1016; Villatoro, supra, at 

pp. 1167-1168.) In any event, we agree with those cases and other 

appellate decisions in concluding that the trial court properly 

instructed the jury using CALCRIM No. 1191B. (See People v. Meneses

(2019) 41 Cal.App.5th 63, 67-68; People v. Phea (2018) 29 Cal.App.5th 

583, 608.)6

III. No Prejudicial Error in Prosecutor’s Closing Argument

Defendant contends the prosecutor committed prejudicial error 

by misstating California’s modified acquittal-first rule during closing 

argument. We disagree.

A. Relevant Facts

1. Trial Court’s Instructions

6 Because defendant presents his appellate argument for purposes 

of preserving the issue for later review by another court, we do not 

address his additional arguments that his constitutional challenge was 

not forfeited for review or his contention that his trial counsel was 

ineffective for failing to make a constitutional challenge in the trial 

court. 
20

Before closing arguments, the trial court informed the jury 

regarding their consideration of the charged crimes, lesser offenses, 

and the relevant evidence. The court also instructed regarding the 

verdict forms (CALCRIM No. 3519). 

The court specifically instructed the jurors on the elements of the 

charged offenses of forcible sexual penetration (charged in count one for 

Jane Doe 1 and in count six for Jane Doe 2), burglary (count 3), 

vandalism causing damage over $400 (count 4), assault with the intent 

to commit sexual penetration by force (lesser offense as charged in 

count two (Jane Doe 1) and count seven (Jane Doe 2)), misdemeanor 

sexual battery (lesser offense as charged in count five (Jane Doe 1)),

and the lesser offenses of attempted sexual penetration by force, 

attempted burglary, attempted vandalism, simple battery and simple 

assault. The jurors were then advised: 

“If all of you find that the defendant is not guilty of a greater

charged crime, you may find him guilty of a lesser crime if you are 

convinced beyond a reasonable doubt that the defendant is guilty of 

that lesser crime. A defendant may not be convicted of both a greater 

and lesser crime for the same conduct.

“Now I will explain to you the crimes affected by this instruction 

including lesser crimes of the lesser crimes:

“Attempted Sexual Penetration by Force is a lesser crime of 

Sexual Penetration by Force as charged in Counts [sic] 1 [.] 

“Assault with intent to commit sexual penetration by force, as 

charged in Counts 2 and 7, is a lesser crime of Sexual Penetration by 

Force as charged in Counts 1 and 6. 

“Sexual Battery as charged in Count 5 is a lesser crime of Sexual 

Penetration by Force. 

“Simple Battery is a lesser crime of Sexual Penetration by Force 

and is a lesser of the lesser crime of Sexual Battery. 
21

“Simple Assault is a lesser crime of Sexual Penetration by Force, 

and is a lesser of the lesser crime of Assault with Intent to Commit 

Sexual Penetration, and is a lesser of the lesser crime of Sexual 

Battery. 

“Attempted Burglary is a lesser crime of Burglary. 

“Attempted Vandalism is a lesser crime of Vandalism.

“It is up to you to decide the order in which you consider each 

greater and lesser crime and the relevant evidence, but I can accept a 

guilty verdict of the lesser crime only if you have found the defendant 

not guilty of the greater crime. 

“For the count in which a greater and lesser crime is charged, you 

will receive verdict forms of guilty and not guilty for the greater crime 

and the lesser crime. Follow these instructions before you give me any 

completed and signed, final verdict form. Return any unused verdict 

forms to me, unsigned. 

“1. If all of you agree the People have proved that the 

defendant is guilty of the greater crime, complete and sign the 

verdict form for guilty of that crime. Do not complete or sign any 

verdict form for the lesser crime. 

“2. If all of you cannot agree whether the People have 

proved that the defendant is guilty of the greater crime, inform 

me of your disagreement and do not complete or sign any verdict 

form for that crime or the lesser crime. 

“3. If all of you agree the People have not proved that the 

defendant is guilty of the greater crime and also agree the People 

have proved that he is guilty of the lesser crime, complete and 

sign the verdict form for not guilty of the greater crime and the 

verdict form for guilty of the lesser crime. Do not complete or 

sign any other verdict forms. 

“4. If all of you agree the People have not proved that the 

defendant is guilty of the greater or lesser crime, complete and 

sign the verdict form for not guilty of the greater crime and the 

verdict form for not guilty of the lesser crime. 
22

“5. If all of you agree the People have not proved that the 

defendant is guilty of the greater crime but all of you cannot 

agree on a verdict for the lesser crime, complete and sign the 

verdict form for not guilty of the greater crime and inform me of 

your disagreement on the lesser crime.” 

2. Prosecutor’s Closing Remarks

During closing arguments the prosecutor discussed the jurors’ 

obligations regarding completion of verdict forms and their 

consideration of the charged crimes, lesser offenses and relevant 

evidence. Defendant challenges the italicized portions of the 

prosecutor’s closing remarks set forth in context: 

“So we have seven charged offenses, but five different crimes. 

And for some of these crimes we have what are called lesser offenses. 

And we’ll talk about those a little later. But those are things you only

look at if you don’t think he committed the greater charged crimes. It 

looks tricky, and it looks like there’s a lot, . . ., but the good news is 

there’s a lot of overlap. 

“So, for example, sexual penetration by force in count one is our 

greater offense. And . . . [the] . . . offense . . . assault with intent to 

commit sexual penetration is a lesser offense to count one. And the 

same applies for count six and seven. 

“So you only look at counts two and seven if you don’t think he 

committed the greater charged crimes of count one and six. That’s just 

how it works. . . .”

After discussing the evidence that established defendant’s sexual 

penetration by force of Jane Doe 1, the prosecutor discussed proposed 

lesser included offenses for the charged offenses of sexual penetration, 

and then returned to a discussion of the sufficiency of evidence to show 

defendant had committed sexual penetration by force sufficient to 

overcome the victims’ wills. The prosecutor then argued: 

“Now assault with intent to commit sexual penetration is a lesser 

included crime of sexual penetration by force. 
23

“Again, you only look at this count, if you don’t believe he 

committed sexual penetration by force. So the greater count that we just 

went through. And you are instructed on this because it is the law. Not 

because they are in play. 

“So assault with the intent to commit sexual penetration, for 

example, would be if he did what he did but he was unsuccessful in 

penetrating her vagina. And we know that he did. We know that he 

penetrated her vagina, because she told us. She has the injury. 

There’s no question here. 

“Count one has been proven beyond a reasonable doubt, and he 

committed that crime, so you don’t even get here.” 

The prosecutor also discussed completion of the verdict forms as 

follows: 

“So verdict forms. You are going to get four different packets of 

verdict forms. So in the first packet, packet one, sexual penetration by 

force, you are going to have this verdict form. And you are going to 

write guilty here, and then whoever you choose to be the foreperson 

would date and sign it.

“After you write guilty here, you’re done with this packet. You 

don’t move on. The only way that you would move on is if you find not 

guilty. And then you’ll move on to the second page. And it is the same 

thing. So you don’t move on unless you find not guilty. But you’ll never 

get to those, because you’re going to write guilty here on this verdict 

form. 

“The next packet that you will get is for burglary. This one only 

has two pages. It’s the same thing. You’re going to choose a 

foreperson. That foreperson is going to write guilty right here. Sign 

and date and then you’re done. 

“For vandalism, you’re going to have three pages in your packet. 

Same thing. Except this one has a special allegation. So after you 

write guilty, and sign and date, then you move on to the special 

allegation. 

“The special allegation is for you to decide if the amount of 

damage is over $400. So you write true right here, the amount the 

damage is over $400, and you’re done with the packet.
24

“The last packet you will get is for count six. This is for the 

Alameda victim, so Jane Doe 2. Same exact things. You’re going to 

[write] guilty here, date and sign, and then you’re done with this 

packet. You never get to the back pages. 

“Now you may deliberate in any order, in any way that you like. 

I would suggest starting with the greater offense so the one on top of 

the packet.” 

B. Analysis

Defendant argues the prosecutor committed prejudicial error by 

making statements (italicized above) that erroneously misstated 

California’s modified acquittal-first rule by directing the jurors to first 

consider greater offenses, and only after rejecting the greater, to then 

discuss the lesser crimes. This claim is predicated on the principle that 

a jury may be restricted from returning a verdict on a lesser included 

offense before acquitting on a greater offense, but the jury may not be 

precluded from considering lesser offenses during deliberations. (See 

People v. Dennis (1998) 17 Cal.4th 468, 536 (Dennis), citing People v. 

Berryman (1993) 6 Cal.4th 1048, 1073 (Berryman), overruled on 

another ground in People v. Hill (1998) 17 Cal.4th 800, 823, fn.1 &

People v. Kurtzman (1988) 46 Cal.3d 322, 324-325 (Kurtzman).) In 

other words, a jury should not be told “it must first unanimously acquit 

the defendant of the greater offense before deliberating on or even 

considering a lesser offense.” (Dennis, supra, at p. 536, citing 

Kurtzman, supra, at pp. 328, 335.) 

We initially reject defendant’s argument as he failed “to satisfy 

the general rule requiring assignment of [error] and request for 

admonition as to any of the comments by the prosecutor of which he 

now complains.” (Berryman, supra, 6 Cal.4th at p. 1072; People v. Price

(1991) 1 Cal.4th 324, 460 (Price).) No exception is applicable to the 
25

general forfeiture rule in this case. Before the prosecutor’s closing 

argument the court had already instructed the jurors on the manner in 

which they were to consider the charged offenses, the lesser offenses, 

and the relevant evidence, using CALCRIM No. 3519, which 

instruction was a correct statement of law. (Dennis, supra, 17 Cal.4th 

at p. 536, Berryman, supra, at p. 1073, Kurtzman, supra, 46 Cal.3d at 

pp. 324-325.) Had an objection been made and admonition requested,

the court could have readily and easily remedied any prejudice by reinstructing the jury using CALCRIM No. 3519. (Price, supra, at p. 

460.) 

Nor do we see any merit to defendant’s claim that review is 

required because the prosecutor’s remarks “resulted in a due process 

violation, . . . [raising] a significant question of constitutional law based 

on undisputed facts.” An erroneous argument asserting “an acquittalfirst rule” “appears to implicate California law only.” (Berryman, 

supra, 6 Cal.4th at p. 1077, fn. 7.) Moreover, “[i]n the abstract, an 

acquittal-first [argument] appears capable of either helping or harming 

either the People or the defendant. [¶] Such an [argument] ‘has the 

merit, from the Government’s standpoint, of tending to avoid the 

danger that the jury will not adequately discharge its duties with 

respect to the greater offense, and instead will move too quickly to the 

lesser one. From the defendant’s standpoint, it may prevent any 

conviction at all; a jury unable either to convict or acquit on the greater 

charge will not be able to reach a lesser charge on which it might have 

been able to agree. But it entails disadvantages to both sides as well: 

By insisting on unanimity with respect to acquittal on the greater 

charge before the jury can move to the lesser, it may prevent the 
26

Government from obtaining a conviction on the lesser charge that 

would otherwise have been forthcoming and thus require the expense of 

a retrial. It also presents dangers to the defendant. If the jury is 

heavily for conviction on the greater offense, dissenters favoring the 

lesser may throw in the sponge rather than cause a mistrial that would 

leave the defendant with no conviction at all, although the jury might 

have reached sincere and unanimous agreement with respect to the 

lesser charge.’ (United States v. Tsanas (2d Cir. 1978) 572 F.2d 340, 

346, fn. omitted (per Friendly, J.).)” (Berryman, supra, at pp. 1077-

1078, fn. 7, italics in original.) We therefore reject defendant’s 

assertion that review is necessary as he has not shown the remarks “ 

‘so infected the trial with unfairness as to make the resulting conviction 

a denial of due process.’ ” (Darden v. Wainwright (1986) 477 U.S. 168, 

181.) 

Nor do we see any merit to defendant’s claim that his trial 

counsel’s failure to object to the prosecutor’s closing remarks 

constituted ineffective assistance. “[D]eciding whether to object is 

inherently tactical, and the failure to object will rarely establish 

ineffective assistance.” (People v. Hillhouse (2002) 27 Cal.4th 469, 502.) 

Defendant’s contention that there could be no rational, tactical or 

strategic purpose in failing to object to the prosecutor’s closing remarks 

is not persuasive. Defense counsel’s trial strategy in defending against 

the charges was two-fold: (1) defendant was not the man who assaulted 

the victims or alternatively, (2) defendant had not sexually penetrated 

the women by the use of “enough force to overcome” their wills. 

“[W]hile requesting an admonition was one tactical option, counsel 

could have also decided that objecting would focus the jury’s attention” 
27

on the evidence “in ways that would not be helpful to the defense.” 

(People v. Harris (2008) 43 Cal.4th 1269, 1290.) Thus, defendant’s 

claim that reversal is required based on ineffective assistance of trial 

counsel fails. 

Lastly, even if the claim of error were properly before us, we 

would reject it on the merits. “Plainly the prosecutor did not tell the 

jury it could not or should not consider a lesser offense unless it first 

acquitted of the greater offense. Instead, the prosecutor did no more 

than offer the jury a suggested approach to its formal decision making 

and completion of the verdict forms.” (Dennis, supra, 17 Cal.4th at p. 

536; italics added; see Berryman, supra, 6 Cal.4th at p. 1073 [no 

prejudicial error where in closing argument the prosecutor sought to 

elucidate certain aspects of the court’s instructions and “evidently used 

a demonstrative aid in the form of a chart ‘to make sure that all of you 

understand . . . how you would work down this ladder of lesser included 

offenses’ ”].) 

Moreover, a reasonable juror would have understood and applied 

the court’s instructions “as governing how to return the verdicts and 

findings after completing deliberations.” (Dennis, supra, 17 Cal.4th at 

p. 537.) And, here, both the court and the prosecutor informed the jury 

that they could consider the evidence in any order, with the court 

stating, “It is up to you to decide the order in which you consider each 

greater and lesser crime and the relevant evidence,” which was echoed 

by the prosecutor’s statement, “Now you may deliberate in any order, in 

any way that you like.” No reasonable likelihood exists the jury 

construed either the prosecutor’s closing remarks, singly or together 
28

with the instructions, “in a manner contrary to the rule of Kurtzman, 

supra, 46 Cal.3d 322.” (Dennis, supra, at p. 537.) 

We therefore conclude that reversal is not required based on the 

prosecutor’s closing remarks. The jury’s “deliberations were [not] 

channeled improperly toward a conviction [on greater crimes] to the 

exclusion of [the] lesser offenses” as the prosecutor’s closing remarks 

“did not impermissibly enhance the risk of unwarranted” convictions on 

the greater crimes. (Dennis, supra, 17 Cal.4th at p. 537.) 

IV. Admission of Evidence of Prior Offense in Brazil Was 

Harmless Error

A. Relevant Facts

The prosecution sought admission of evidence of the prior offense

in Brazil, including defendant’s incriminating statements made to 

Brazilian Chief of Police Silva. Defense counsel objected. In 

considering the request, the court viewed a videotape of the 

interrogation (approximately two minutes in length), reviewed a 

written transcript (translated from Portuguese to English) of the 

interrogation, and took the testimony of Silva at an Evidence Code 

section 402 hearing outside the presence of the jury. 

The transcript sets forth a series of questions posed by Silva and 

defendant’s responses. Defendant initially confirmed he had no 

wounds or injuries. Silva then said defendant had been criminally 

charged for “aggravated harm and sexual bothering,” and Silva, “the 

chief of police here,” was at the jail for defendant’s “interrogation.” 

Silva informed defendant of his “constitutional right to remain silent,” 

and defendant was asked if he was “going to use” his right to remain 
29

silent. Defendant replied, “No, I am going to give my . . . I want to 

speak.” 

In response to Silva’s substantive questions, defendant admitted 

he had damaged chemical toilets at “City Park.” When asked if he had 

used the knives he had been carrying and what was his objective, 

defendant said he was ashamed, had never done that kind of thing 

before, and had seen an Internet video about watching women in the 

bathroom. When Silva asked if defendant had acted in order to satisfy 

his “lewdness,” defendant replied, “Yeah, I . . . .” When Silva asked if 

defendant saw naked women inside the bathroom, defendant said he 

did not get to see any women inside the bathroom even though he had 

been watching for approximately a half hour or 40 minutes. Defendant 

denied an allegation made by an unidentified woman that he had tried 

to enter a toilet while the woman was inside. He also said he had 

taken a course for chaplains and that his clergy card was real. When 

Silva asked if defendant had anything else to say, defendant said, “Sir, 

I . . . I just, I, I have never done any of those things. I don’t have a 

record. I don’t . . . I’ve never done this, I haven’t. I am extremely 

ashamed.” When Silva asked if defendant had a record for contempt or 

failure to comply, defendant replied, “Oh, that . . . No. But this thing, I 

was . . . . There was, there was an agreement.” Silva said he 

understood and ended the questioning. 

At the Evidence Code section 402 hearing, Silva testified that one 

of his jobs as Chief of Police was to question suspects. At the outset, a 

suspect is informed of the right to either remain silent or speak with 

the officer. That is the only right the officer is required by law to give 

to the suspect. Before a suspect is entitled to invoke his right to remain 
30

silent, he must identify himself and inform the officer whether he has 

been injured during his imprisonment. 

At the October 14, 2018, interrogation there were two police 

officers and a “court reporter” present with Silva. Silva and the two 

officers were not in uniform, but one officer was wearing a shirt with 

“Police” on it. All of the officers were armed with guns. The officers 

remained outside the jail cell, one or two meters away, and not within 

reach of defendant, to prevent defendant from trying to “reach for a 

weapon” or “spit” on the officers. Silva’s gun remained concealed at all 

times, and the other officers did not take out their guns or point them 

at defendant. 

Silva questioned defendant while defendant was inside his jail 

cell and clad only in his underwear. While some suspects are 

handcuffed, defendant was not handcuffed because he was not 

aggressive. The place of interrogation and defendant’s state of undress 

were customary procedures for safety and security reasons. The police 

station was “grossly understaffed,” consisting of only the Chief of 

Police, and two police officers. The defendant was wearing only 

underwear for “safety reasons” because in the past sex offenders had 

killed themselves or attempted to kill themselves. Because Silva did 

not have officers available to remain at the cells to visually observe the 

suspects, most of the time Silva did not allow suspects to wear any 

clothing; Brazil “is very hot, so it’s not a problem.” It was “common for 

suspects to be in the cell with just their underwear” because it 

“reduce[d] the risk of suicide” and their ability to hide “weapon[s] or 

anything else.” 
31

Silva followed standard procedure by first asking the defendant if 

he had been injured (defendant replied he had not) and then asking if 

he wanted to exercise his right to remain silent (defendant chose to 

speak). When asked to describe defendant’s demeanor, the officer said 

he “was very ashamed. In at least three times he told me he was . . . 

extremely ashamed of what he did;” defendant was not “terribly 

nervous or aggressive, he was just embarrassed.” The officer’s 

demeanor was “professional,” as he understood it was his “job to remain 

calm and try to make the pertinent questions without much judgment.” 

He did not yell and instead spoke in the same manner as he was 

speaking in court. Silva did not do anything to make defendant speak 

and always remained approximately one meter from the cell. The 

questioning “was very quick” and the video recording of the 

interrogation was “one minute and 42 seconds long.” Silva spoke with 

defendant “the minimum necessary . . . to understand his version of the 

facts.” Defendant never said he did not want to talk. Defendant had 

the right not to answer one or more questions, but he chose to answer 

all the questions. 

On cross-examination, Silva confirmed that before being placed 

inside a cell defendant was strip-searched by another officer according 

to standard security procedures. Silva also confirmed that defendant 

did not have a constitutional right to have the assistance of a public 

defender at the police station; a public defender is provided in the 

“judicial hearing, not the police hearing.” Defendant was told he had 

the right to have his family or a private lawyer assist him, but 

defendant did not ask for his family or legal assistance and did not 

provide a telephone number to contact a lawyer on his behalf. 
32

B. Trial Court’s Admissibility Ruling 

The trial court issued a tentative ruling that “based on reviewing 

the case law, listening to the investigator’s statements regarding the 

conversation, as well as the Court’s understanding of the Brazilian 

right to remain silent, and right to counsel and family, and at the time 

that they apply, having watched the video and reviewing part of the 

transcript relating to the voluntariness and coerciveness, the Court 

could be admitting this under various theories of [Evidence Code 

section] 1101 . . . .” Following further argument by counsel, the trial 

court confirmed its tentative ruling, finding that defendant’s 

statements were not “coerced. [Defendant] does appear in his 

underwear, but he seems like he’s volunteering a statement. He’s 

asked, are you going to use your right to remain silent after being 

advised that he has that right. And he says no, I’m going to give my – I 

want to speak. And then he does so.” However, the court limited the 

admission of prior offense evidence pursuant to Evidence Code section 

1101 to the following facts: “this happened in a city park,” “there were 

damaged chemical toilets,” defendant tried to watch naked ladies for 

approximately a half hour or 40 minutes, and defendant said, “he was 

ashamed.” 

In explaining its ruling, the court stated that it looked at “the 

degree of distinctiveness of the individual shared marks of the crimes 

and the number of minimally shared marks. And this – when we are 

talking about identity, we are asking how similar are these crimes, and 

the way that they’re committed, as it relates to identity. And here we 

have holes cut into a porta-potty, and that’s really it. It’s a distinctive 

[modus] operandi. There’s one common mark and identifier, and 
33

actually there’s two, because there’s the cutting, and then the 

watching. And he states that he was watching for a half hour or 40 

minutes. And it happened at a public event. [¶ ] I never thought that I 

would have a case where there’s that calling card. But this is such a 

strange incident, in itself, cutting holes in a porta-potty at a public 

event. When you look at it in combination with the other marks and 

features of this particular crime, it’s so unique and distinct that I think 

it can go to identity.” 

The court then engaged in the probative/prejudicial balancing 

analysis required by Evidence Code section 352 and found the 

probative value of the testimony for purposes of identity, common plan 

or scheme, specific intent for lewdness (but not the specific intent to 

commit forceful penetration), motive, and lack of mistake or accident 

(for which it would later be admitted) would not create a danger of 

undue prejudice or necessitate an undue consumption of time. 

However, in exercising its discretion under Evidence Code section 352, 

the court precluded any mention that (1) an unidentified Brazilian 

woman said defendant had tried to go into the chemical toilet while she 

was inside; (2) defendant was a chaplain; and (3) defendant had no 

record, not even for contempt. At defense counsel’s request, the court 

also excluded any mention that as a result of the Brazilian offense

defendant had been arrested and later given a diversion-type 

suspended sentence providing for no criminal prosecution if he followed 

through with certain agreed upon terms. 

C. Trial Court Proceedings 

During the trial the prosecution presented only Silva’s testimony 

as set forth in the Factual and Procedural Background section, ante. 
34

The jury did not see the videotape of defendant’s interrogation and no 

portion of the transcript was given to the jury. The jury was instructed 

regarding the limited purposes for which the prior offense evidence was 

admitted and that it could consider the evidence only for those 

purposes and no other. 7 (CALCRIM No. 303, 375.) 

D. Analysis

7 Using the language in CALCRIM No. 375, the jury was advised, 

in pertinent part, as follows: “The People presented evidence that the 

defendant committed other offenses that were not charged in this case. 

[¶] You may consider this evidence only if the People have proved by a 

preponderance of the evidence that the defendant in fact committed the 

offenses and act. . . . [¶] If the People have not met this burden, you 

must disregard this evidence entirely. [¶] If you decide that the 

defendant committed the offenses and act, you may, but are not 

required to, consider that evidence for the limited purpose of deciding 

whether: [¶] The defendant was the person who committed the 

vandalism offenses alleged in the case; or [¶] The defendant acted with 

the intent for the crime of Sexual Penetration by Force . . . . [¶] The 

defendant acted with the intent for the crime of Attempted Sexual 

Penetration by Force . . . . [¶] The defendant acted with the intent for 

the crime of Assault with Intent to Commit Sexual Penetration by 

Force . . . . ¶] The defendant acted with the intent for the crime of 

Burglary . . . . [¶] The defendant acted with the intent for the crime of 

Attempted Burglary . . . . [¶] The defendant acted with the intent for 

the crime of Sexual Battery . . . ; or [¶] The defendant had a motive to 

commit the offenses alleged in this case; or [¶] The defendant’s alleged 

actions were not the result of mistake or accident; or [¶] The defendant 

had a plan or scheme to commit the offenses alleged in this case. [¶] In 

evaluating this evidence, consider the similarity or lack of similarity 

between the uncharged offenses and act and the charged offenses. [¶] 

Do not consider this evidence for any other purpose. [¶] Do not conclude 

from this evidence that the defendant has a bad character or is 

disposed to commit crime. [¶] If you conclude that the defendant 

committed the act, that conclusion is only one factor to consider along 

with all the other evidence. It is not sufficient by itself to prove that 

the defendant is guilty of the crimes charged in the case. The People 

must still prove every charge beyond a reasonable doubt.” 
35

Defendant contends the trial court committed prejudicial error by 

admission of the evidence of the prior offense in Brazil, arguing that (1) 

the proffered evidence was not relevant to prove intent, motive, identity

or common plan or scheme, as the offense was not sufficiently similar to 

be probative in connection with the forcible sexual penetration charges, 

and was not relevant on the “non-issue of absence of accident or 

mistake;” (2) the court’s refusal to exclude all of the proffered evidence 

under Evidence Code section 352 was an abuse of discretion; (3) his 

statements concerning the prior offense were involuntary and violated 

“his constitutional right to due process and against self-incrimination;” 

and (4) the admission of his statements violated the “corpus deliciti 

rule,” which requires proof of the occurrence of a crime independent of a 

defendant’s own statements. However, even assuming any merit to 

these arguments, reversal is not an appropriate remedy as defendant 

has failed to demonstrate prejudice under either state law (People v. 

Watson (1956) 46 Cal.2d 818, 836 (Watson)) or the federal Constitution 

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

It is well settled under state law that “[n]o judgment shall be set 

aside, or new trial granted, in any cause, on the ground of . . . the 

improper admission . . . of evidence, . . . unless, after an examination of 

the entire cause, including the evidence,” we are “of the opinion that 

the error complained of has resulted in a miscarriage of justice.” (Cal. 

Const., art. VI, § 13.) “[A] ‘miscarriage of justice’ should be declared 

only when” we find “it is reasonably probable that a result more 

favorable to the [defendant] would have been reached in the absence of 

the error.” (Watson, supra, 46 Cal.2d at p. 836.) As to the claim of 

federal constitutional error, the high court in Chapman, supra, 386 
36

U.S. 18, “rejected the argument that errors of constitutional dimension 

necessarily require reversal of criminal convictions. And since 

Chapman [the high court] . . . ‘[has] repeatedly reaffirmed the principle 

that an otherwise valid conviction should not be set aside if the 

reviewing court may confidently say, on the whole record, that the 

constitutional error was harmless beyond a reasonable doubt,’ ” that it 

was not “reasonably possible” that the error contributed to the verdict. 

(Rose v. Clark (1986) 478 U.S. 570, 576.) Despite defendant’s 

arguments to the contrary, we can confidently conclude it is neither 

reasonably probable (Watson, supra, 46 Cal.2d at p. 836) nor 

reasonably possible (Chapman, supra, 386 U.S. at p. 24) that an 

outcome more favorable to him would have resulted had the prior 

offense evidence and his statements not been admitted. 

Defendant contends the admission of the prior offense evidence 

was prejudicial because the evidence of forcible penetration was “fairly 

weak,” and thus his statements concerning his prior conduct and sexual 

motivation likely persuaded any skeptical jurors that he had, in fact, 

intended to and did accomplish two acts of sexual penetration. We 

disagree. 

There was nothing ambiguous or imprecise about the testimony 

of the victims. Jane Doe 1 specifically testified defendant penetrated 

her vagina, while Jane Doe 2 specifically testified defendant’s fingers 

were inside her genital lips and she felt a sensation of grabbing. 

(People v. Quintana (2001) 89 Cal.App.4th 1362, 1366-1367, 1371 

[penetration within the meaning of section 289 is not limited to 

penetration of the vagina but also includes “intrusion into a victim’s 

“ ‘ “genital opening” ’ ” by “contact ‘between the folds of the skin over 
37

[the] vagina’ ”].) While there are circumstances in which a person may 

intentionally penetrate another person for purposes other than sexual 

arousal, gratification, or abuse (People v. Ngo (2014) 225 Cal.App.4th 

126, 163), this is not one of those cases. Defendant’s conduct –

penetrating genital openings of victims while they are urinating in 

porta-potty units – supports no rational explanation other than for the 

purposes of sexual arousal, gratification, or abuse. Moreover, there is 

no question that defendant accomplished his penetrations by the 

coercive means of force or fear within the meaning of section 289. By 

his conduct, defendant violated “the [victims’] enhanced level of 

security and privacy,” providing him with the advantage of “shock and 

surprise,” demonstrating the necessary force and fear within the 

meaning of section 289. (Thomas, supra, 15 Cal.App.5th at p. 1071.) 

And, the videos and digital photographs taken from defendant’s cell 

phones comprised strong circumstantial evidence that defendant was 

the assailant and had acted for the purpose of sexual arousal, 

gratification, or abuse.

As to any prejudice arising from Silva’s trial testimony, we note 

the evidence “was no stronger” and far less “inflammatory than the 

testimony concerning the charged offenses.” (People v. Ewoldt (1994) 7 

Cal.4th 380, 405.) While the prior offense evidence was adverse to 

defendant, it “was not of such overwhelming force that it would have 

caused a reasonable juror to abandon the trial court’s instructions and 

presume defendant’s guilt” of the charged offenses based on the prior 

offense. (People v. Quartermain (1997) 16 Cal.4th 600, 627

(Quartermain).) Given the brief nature of Silva’s testimony concerning 

defendant’s conduct in Brazil, contained in seven pages of transcript, 
38

we reject defendant’s assertion that the jurors were misdirected from 

careful consideration of the evidence of the charged offenses and were 

instead distracted with evidence of defendant’s conduct in Brazil 

without knowing the punishment for that conduct. In addition to the 

court’s instruction on the limited nature for which the prior offense

evidence had been admitted, the jury was instructed on the specific 

elements of the charged offenses, that convictions required proof 

beyond a reasonable doubt, and for each offense a guilty verdict 

required “proof of the union, or joint operation of act and wrongful 

intent.” “No reasonable juror would believe those requirements could 

be satisfied solely by proof of” defendant’s statements concerning the 

prior offense in Brazil. (Reliford, supra, 29 Cal.4th at pp. 1013-1014.) 

Because the admission of the evidence of the prior offense and 

defendant’s statements “did not render the trial fundamentally unfair 

in violation of due process” (Quartermain, supra, 16 Cal.4th at p. 627), 

as it was in no way outcome determinative, we conclude the 

complained-of error was harmless under either the Chapman or Watson 

standard of review. 

V. Defendant is Entitled to Additional Presentence Credit

The parties agree, and we concur, that defendant’s presentence 

custody credits were miscalculated. Defendant was arrested on May 

26, 2019, and sentenced on January 14, 2020. Because custody is 

calculated to include both the first day in custody and last day in 

custody, even if only partial days, defendant was in custody for 234 

days, and not 233 days as calculated by the trial court. As a necessary 

corollary, defendant’s 34 days of conduct credit, calculated at fifteen 

percent for the violent felony conviction, should be increased by one day 
39

to 35 days for conduct credit. Accordingly, defendant is entitled to a 

total of 269 days of presentence credit for time served, rather than 267 

days as reflected in the sentencing minutes and abstract of judgment. 

CASE NO. A162101

I. No Error or Abuse of Discretion in Victim Restitution 

Order

A. Relevant Facts

At a January 14, 2020 sentencing hearing, Jane Doe 1 testified 

that she had attempted to put the incident behind her but was haunted 

“daily” and her life had “completely changed.” She was suffering from 

depression and post-traumatic stress disorder and was seeing a 

therapist. She even suffered back pain as a result of the incident, for 

which she had received chiropractic care. She had to pay for therapy 

appointments insofar as they were not covered by insurance, 

transportation to and from those appointments, and transportation 

from her home in San Francisco to the Napa court for appearances in 

the case. In light of defendant’s objection to the requested amount of 

restitution, the court set a date for a restitution hearing. 

In late 2020, the prosecution filed a written request seeking 

victim restitution for Jane Doe 1 in the following amounts: (1) $764.17 

for medical visits for gynecological, urgent, and chiropractic care; (2) 

$160 for therapy sessions; (3) $338.79 for additional chiropractic care; 

(4) $959.98 in transportation expenses; and (5) $160.29 for one-night 

hotel stay prior to the date of sentencing. 

Defendant opposed certain requests at issue on this appeal: (1) 

chiropractic care based on the argument that his brief touching of her 

genitalia in May 2019 would not have caused a back injury requiring 
40

such care; (2) transportation expenses for car service rides from San 

Francisco (Jane Doe 1’s home) to Napa (place of trial) on any date she 

did not actually attend court; and (3) a hotel stay the night before the 

sentencing hearing as the sentencing took place in the late morning 

and therefore she could have come from San Francisco (approximately 

50 miles away) that same morning.

Before the scheduled restitution hearing, Jane Doe 1 submitted a 

declaration, together with receipts for chiropractic treatment, 

transportation costs related to trial court proceedings, and the hotel 

stay on the day before sentencing. In that declaration, Jane Doe 1 

explained that “during the course of the assault,” she “quickly turned to 

try and grab the perpetrator’s hand, which caused an injury to her back 

for which she [sought] regular chiropractic care,” paid for “out of 

pocket.” She specifically sought reimbursement for an urgent care visit 

and back x-ray taken at that visit, explaining that about a month after 

the assault she “was on a work assignment where regular standing and 

walking for the assignment was required. While performing my 

regular job duties, my back locked up as a result of the injury [she] 

sustained during the assault, and I could not walk, sit, or stand. [She] 

needed to go to the Urgent Care in the city I was working in so that I 

could be prescribed pain medication in order to finish [her] job 

assignment.” She also sought to recover monies for a total of eight 

chiropractic visits. 

As to transportation costs associated with the trial court 

proceedings, Jane Doe 1 requested her expenses for 7 days (November 

1, 18, 19, 2019, December 3, 4, 5, 2019, and January 13, 2020). She 

explained that she “had to go to Napa for meetings with the district 
41

attorney’s office to prepare for trial, to testify in the trial, and for the 

sentencing.” As to her hotel stay in Napa on the day before sentencing, 

she lived in San Francisco. “The sentencing was in Napa early one 

morning at 8:30 a.m. I rely on [a car service] and the ferry to get to 

Napa. I could not risk commuting in that morning during rush hour, so 

I stayed in a hotel the night before.” 

At the January 7, 2021, restitution hearing, defense counsel did 

not present any evidence. The court heard argument from both counsel 

and took testimony from Jane Doe 1. She gave further explanations 

regarding chiropractic visits, and reiterated they were needed due to 

the injury she had incurred from the sexual assault. She explained 

that she had asked her physicians to write a statement (for which she 

was charged a fee) to document their impressions of her back injury. 

She also explained that some of the requested transportation expenses 

were for payments made for a car service to transport a “percipient 

witness who was with Jane Doe 1 the night that she was assaulted” to 

the airport.

Following Jane Doe 1’s testimony, defense counsel argued that, 

while typically a defendant had no ability to seek medical documents 

substantiating a victim’s claim that an injury is related to the incident, 

in this case Jane Doe 1 mentioned such documents and hence they 

should be provided to defendant. The prosecutor opposed the request 

as the information supplied to the court was sufficient to show the 

expenses were reasonably related to defendant’s conduct, retrieving the 

victim’s medical documents was not necessary, and the court could take 

a sworn affidavit or testimony from a victim. 
42

At the continued hearing on January 13, 2021, the court ruled, in 

pertinent part, as follows: “The court has read and considered the 

declaration as well as the supporting documents, and I had a chance to 

investigate some cases . . . . [¶] And the court is ordering restitution to 

Jane Doe [1] in the amount of $4,259.60 . . . . The court is awarding all 

of the therapy costs, the prescription costs, chiropractor costs, and 

other medical requests. The court is granting the transportation costs 

minus the . . . rounding up donations. [¶] When the court looks at the 

tip amount and the tips, the tips seem to be a reasonable cost of 

procuring a ride from [a car service] . . . . Generally tips are included in 

. . . government stipends for . . . transportation costs, . . . so the court 

will be awarding tips; however, the court could find no authority or 

basis for awarding the donations for rounding up [fares] for charity. 

But all of the rides are covered including out-of-pocket expenses [for] 

assisting in the . . . prosecution pursuant to [section] 1202.4[, subd.] 

(f)(3) and People [v.] Rowland [(1997)] 51 Cal.[App.]4th [1745] at [page] 

1754. This includes the hotel costs. The court [is] determining that 

those are reasonable. . . . So the amount was what was requested minus 

$5.81.” The court further ordered ten percent interest from the date of 

sentencing because the losses “were clearly incurred beforehand.”

B. Analysis

A trial court has the authority to order victim restitution under 

section 1202.4, subdivision (f), which provides that “in every case in 

which a victim has suffered economic loss as a result of defendant’s 

conduct, the court shall require that the defendant make restitution to 

the victim . . . in an amount established by court order, based on the 

amount of loss claimed by the victim . . . or any other showing to the 
43

court.” Section 1202.4, subdivision (f)(3) specifically provides that “[t]o 

the extent possible, the restitution order . . . shall identify each victim 

and each loss to which it pertains and shall be of a dollar amount that 

is sufficient to fully reimburse the victim . . . for every determined 

economic loss incurred as the result of the defendant’s criminal 

conduct, including, but not limited to, all of the following: . . . (B) 

Medical expenses. . . . (G) Interest, at the rate of 10 percent per annum, 

that accrues as of the date of sentencing or loss, as determined by the 

court.” 

Additionally, our state Constitution provides crime victims with 

certain rights “[i]n order to preserve and protect [their] rights to justice 

and due process,” including the right to “restitution,” “[t]o prevent the 

disclosure of confidential information or records to the defendant, the 

defendant’s attorney, or any other person acting on behalf of the 

defendant, which could be used to locate or harass the victim or the 

victim’s family or which disclose confidential communications made in 

the course of medical or counseling treatment, or which are otherwise 

privileged or confidential by law;” and “[t]o reasonable notice of all 

public proceedings, . . . upon request, at which the defendant and the 

prosecutor are entitled to be present and . . . , to be present at all such 

proceedings.” (Cal. Const., art. I, § 28, subd. (b)(4),(7),(13).) 

The applicable standard of review is abuse of discretion. “ ‘A 

victim’s restitution right is to be broadly and liberally construed.’ ” 

(People v. Prosser (2007) 157 Cal.App.4th 682, 686.) “ ‘ “ ‘When there is 

a factual and rational basis for the amount of restitution ordered by the 

trial court, no abuse of discretion will be found by the reviewing court.’ 

” ’ ” (People v. Baker (2005) 126 Cal.App.4th 463, 467.) “In reviewing 
44

the sufficiency of the evidence, the ‘ “power of the appellate court begins 

and ends with a determination as to whether there is any substantial 

evidence, contradicted or uncontradicted,” to support the trial court’s 

findings.’ [Citations.] Further, the standard of proof at a restitution 

hearing is by a preponderance of the evidence, not proof beyond a 

reasonable doubt. [Citation.] . . . We do not reweigh or reinterpret the 

evidence; rather we determine whether there is sufficient evidence to 

support the inference drawn by the trier of fact. [Citation.]” (Id. at pp. 

468-469.) 

In support of her claim for chiropractic treatment expenses, 

Jane Doe 1 proffered her chiropractic treatment bills listing diagnoses

of segmental and somatic dysfunction of the cervical, thoracic and

lumbar regions, low back pain, pain in the right and left hips, and

“other muscle spasm.” At trial and sentencing and at the restitution

hearing she explained she had strained her back when she resisted

defendant’s sexual penetration thereby necessitating chiropractic care.

Defendant’s claim that the trial court could not order restitution 

for the chiropractic treatment expenses in the absence of Jane Doe 1’s 

medical records is not persuasive. His reliance on the need for expert 

testimony to prove the element of causation in “the tort and Worker’s 

Compensation context,” is misplaced. “ ‘ “Section 1202.4 does not, by its

terms, require any particular kind of proof’. . . . ‘ “This is so because a

hearing to establish the amount of restitution does not require the

formalities of other phases of a criminal prosecution.” ’ ” ’ ” (People v.

Lockwood (2013) 214 Cal.App.4th 91, 96; see People v. Millard (2009)

175 Cal.App.4th 7, 30 [at restitution hearing the prosecution was “not

required to present vocational rehabilitation expert testimony
45

regarding the amount of [victim’s] future lost earnings”].) “ ‘Due

process does not require a judge to draw sentencing information

through the narrow net of courtroom evidence rules. . . [. S]entencing

judges are given virtually unlimited discretion as to the kind of

information they can consider and the source . . . whence it comes.’ ” 

(People v. Baumann (1985) 176 Cal.App.3d 67, 81.) Based on Jane Doe

1’s testimony at trial, statement at sentencing, her declaration, her

testimony at the restitution hearing, together with her medical bills,

the trial court reasonably found Jane Doe 1’s strained back injury,

necessitating chiropractic treatment, was due to defendant’s criminal

conduct. The court was free to accept the evidence supporting the

restitution award, especially as defendant presented no evidence

calling into question Jane Doe 1’s explanation as to how she strained

her back. Therefore, defendant’s challenge to the award of restitution

for chiropractic treatment expenses fails.

There is also no merit to defendant’s challenge to the award of

transportation expenses and hotel costs related to the trial proceedings. 

The trial court may compensate a victim for any economic loss which is

shown to be the direct result of defendant’s criminal conduct, even if it

is not enumerated in the restitution statute. (People v. Williams (2010)

184 Cal.App.4th 142, 147 [only limitation placed on victim restitution is

that loss must be an “economic loss” incurred as a result of defendant’s

criminal conduct]; People v. Moore (2009) 177 Cal.App.4th 1229, 1233

[“that the victim’s attendance [at trial proceedings] was not mandated

by statute, that he was not required to address the court at those

hearings, and that he chose to attend the proceedings of his own

volitation, [did] not relieve [the] defendant from the responsibility to
46

compensate [the victim] for the loss attributable to [the] defendant’s

criminal conduct]; People v. Crisler (2008) 165 Cal.App.4th 1503, 1509

[victim’s trial-related expenses need not fall within any of the

enumerated categories in statute to qualify for reimbursement].)

In sum, we reject defendant’s challenges to the victim restitution

awarded to Jane Doe 1 and affirm the award.

DISPOSITION

Case No. A159406

The matter is remanded to the trial court with directions to 

amend its sentencing minutes and the abstract of judgment to reflect 

an award of 234 days of presentence custody credit and 35 days of 

conduct credit, for a total of 269 days of presentence credit for time 

served, and to forward a certified copy of the amended abstract of 

judgment to the Department of Corrections and Rehabilitation. In all 

other respects, the judgment is affirmed. 

Case No. A162101

The January 13, 2021 order of restitution is affirmed.
47

_________________________

Petrou, J.

WE CONCUR:

_________________________

Fujisaki, Acting P.J.

_________________________

Chou, J.*

People v. Fontes/A159406/A162101

* Judge of the Superior Court of San Mateo County, assigned by the

Chief Justice pursuant to article VI, section 6 of the California 

Constitution.