Filed 11/27/23 P. v. Perry CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE,

Plaintiff and Respondent,

v.

LARRY EUGENE PERRY,

Defendant and Appellant.

 B314950

 (Los Angeles County

 Super. Ct. No. TA150355)

ORDER MODIFYING

OPINION AND

DENYING REHEARING 

(No change in the appellate 

judgment)

THE COURT:

It is ordered that the opinion filed herein on November 3, 

2023 be modified as follows:

1. The following language shall be inserted as the last 

sentence to footnote 10 on page 32:

Because the record on appeal is devoid of affirmative 

evidence that defense counsel had no conceivable 
2

tactical purpose for not objecting, Perry’s additional 

claim that the failure to object constituted ineffective 

assistance is more appropriately made in a petition for 

habeas corpus. (See People v. Lopez (2008) 42 Cal.4th 

960, 972; People v. Avena (1996) 13 Cal.4th 394, 419.)

There is no change in the appellate judgment. Appellant’s 

petition for rehearing is denied.

____________________________________________________________

SEGAL, Acting P. J. MARTINEZ, J. PERLUSS, J. (assigned)
Filed 11/3/23 P. v. Perry CA2/7 (unmodified opinion)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE,

Plaintiff and Respondent,

v.

LARRY EUGENE PERRY,

Defendant and Appellant.

 B314950

 (Los Angeles County

 Super. Ct. No. TA150355)

APPEAL from a judgment of the Superior Court of 

Los Angeles County. Ricardo R. Ocampo, Judge. Affirmed in 

part, vacating sentence with directions.

Stephen M. Vasil, under appointment by the Court of 

Appeal, for Defendant and Appellant.

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

Assistant Attorney General, Susan Sullivan Pithey, Senior 

Assistant Attorney General, Noah P. Hill, Supervising Deputy 

Attorney General, and Thomas C. Hsieh, Deputy Attorney 

General, for Plaintiff and Respondent.
2

INTRODUCTION

A jury convicted Larry Eugene Perry of forcible rape of a 

minor 14 years old or older (Pen. Code, § 261, subd. (a)(2)) and 

sexual penetration by a foreign object of a minor 14 years old or 

older (§ 289, subd. (a)(1)(C)).1 The victim was his daughter S.P. 

On appeal, Perry raises several arguments. First, he contends

the trial court erred under Miranda v. Arizona (1966) 34 U.S. 436 

(Miranda) by admitting a recording of his police interrogation.

Second, according to Perry, the court should have excluded the 

victim’s pretrial statements offered at trial. Third, he maintains

the prosecution committed prejudicial error during its rebuttal 

closing argument by suggesting to the jury the defense 

strategically withheld certain recordings the prosecution had 

successfully excluded. Fourth, Perry argues his case should be 

remanded for resentencing under amended section 1170, 

subdivision (b).

The convictions are affirmed, but we vacate the sentence

and remand for resentencing based on amended section 1170, 

subdivision (b).

FACTUAL AND PROCEDURAL HISTORY

A. The Information

In December 2019 the People filed a three-count 

information against Perry, alleging the following charges: 

continuous sexual abuse of a minor under 14 years old in 

1 Statutory references are to the Penal Code unless 

otherwise noted.
3

violation of section 288.5, subdivision (a) (count 1), sexual 

penetration by a foreign object of a minor 14 years old or older in 

violation of section 289, subdivision (a)(1)(C) (count 2), and

forcible rape of a minor 14 years old or older in violation of 

section 261, subdivision (a)(2) (count 3).2

B. Prosecution Evidence

1. Perry’s Adult Daughter, Nakeya Perry, Takes Custody 

of S.P. and Perry Has Regular Visits with S.P.

The information alleged the victim was S.P., Perry’s minor 

daughter. S.P. was born in August 2003 and was 17 years old at 

trial. Perry’s adult daughter Nakeya Perry, S.P.’s guardian, was 

36 years old at trial.

Nakeya testified she first met Perry when she was 23 years 

old, and he informed her she had a younger half-sister, S.P. 

Nakeya gained custody of S.P. when she was 11 or 12 years old, 

at Perry’s request, after S.P.’s mother died and S.P. was in foster 

care. S.P. had a learning disability and received special 

education services in elementary and middle school, but was in 

regular classes by high school. Perry retained parental rights

and had his disability benefits go to Nakeya for S.P.’s benefit.

Perry and S.P. first met when S.P. was 11 years old and 

Perry was living at a homeless shelter. He subsequently moved 

into senior housing. Starting around sixth grade, when she was 

12 years old, S.P. stayed alone with Perry at his apartment from 

2 The People additionally alleged, as to counts 1 and 3, that 

Perry had a prior serious felony conviction constituting a “strike.” 

(§§ 667, subd. (a)(1), (d), 1170.12, subd. (b).) The trial court 

granted the prosecutor’s motion to dismiss the prior conviction 

allegations.
4

3:15 p.m. to 8:00 p.m. after school, as well as some weekends. 

This arrangement continued until December 2017, when S.P., 

then 14 and in eighth grade, told Nakeya that Perry was sexually 

abusing her.

2. Perry Sexually Abuses S.P.

S.P. testified that, when she was 12 years old and visiting 

Perry, he directed her to take down her pants and underwear and 

get on the bed. S.P. felt “weird[ed] out,” but followed Perry’s 

directions. Perry donned disposable latex gloves, “like doctor 

gloves,” he took from his nightstand. Perry told S.P. he was 

going to put his finger inside of her vagina and told her to lie

down, then put his fingers inside her and moved them around. 

After he stopped, he told S.P. to put her clothes back on, and S.P. 

asked why he had put his finger inside her. Perry replied it was 

“to see if [you’re] a virgin.” Perry told S.P. he would get in 

trouble with the police and go to jail if she told Nakeya what 

happened, so S.P. said nothing to Nakeya that day. S.P. felt 

confused and embarrassed.

S.P. testified this “same routine” continued about once 

every week after that first instance, through her seventh grade

year. Perry also sometimes began asking S.P. to take off her 

shirt, starting when she was 12, and would touch her breasts. 

When S.P. was 13, Perry began using two gloved fingers. Perry

continued this “routine” until a family cruise in August 2017 at 

the start of S.P.’s eighth grade year, when she was 14. S.P. also 

testified that in March 2017, Perry asked her to perform oral sex 

on him. In August 2017 S.P. went on a weeklong family reunion 

cruise to the Bahamas with Perry, S.P.’s half-sister Shantai 

Lofton (Perry’s eldest daughter, who was about a dozen years 
5

older than Nakeya), and several other extended family members. 

Nakeya did not go. Perry and S.P. shared a room throughout the 

cruise. On the fourth day, while S.P. was resting in bed, Perry

asked S.P. to take down her pants and underwear and kiss him. 

Perry kissed her and put two fingers inside her without using a 

glove. S.P. did not say anything to her family members on the 

cruise because she felt embarrassed and did not want them to 

know.

The weekend after the cruise, while S.P. was at his 

apartment, Perry told S.P. to lie down on the bed and said he was 

going to put his penis inside her. Perry then raped S.P. He used 

a condom and when he removed it he told S.P. he used it so she

would not get pregnant, then flushed it down the toilet. S.P. did 

not tell Nakeya what happened because she was embarrassed 

and did not want Nakeya to be disappointed or angry with Perry. 

Perry raped S.P. again the following week, and again two weeks 

later.

The abuse continued intermittently during S.P.’s eighth 

grade year until the end of 2017. At trial, S.P. described it as 

occurring “many more times” and “once in a while” with no 

regular schedule. When she was in eighth grade, S.P. once 

pushed Perry off her and told him she did not want to “do it”

anymore, and he “left [her] alone” and did not abuse her on that 

occasion. Another time, also in eighth grade, she kicked him 

when he approached her bed at night, and he walked away. The 

last time Perry raped S.P. was around December 2017; S.P. could 

not recall the last instance.
6

S.P. believed Perry’s neighbors and building manager could 

see something was bothering her. Perry’s next-door neighbor 

would ask her if he was treating her well, seeming concerned.

S.P. testified Perry once yelled at her in front of building 

manager Estrella “Starr” Garcia, and Garcia looked shocked. 

S.P. testified she attended a residents’ meeting where Garcia 

stated toilets were being clogged with toilet paper, food, 

wrappers, and condoms. Perry “paused” and looked at the 

ground during the meeting.

3. S.P. Discloses Perry’s Abuse to Nakeya

Nakeya had a falling out with Perry and did not bring S.P. 

to his apartment between Thanksgiving and Christmas 2017.

The dispute was about whether Nakeya was using Perry’s 

disability benefits for S.P., and because Perry disliked Nakeya’s 

boyfriend, Robin Dozier. Nakeya testified she and Perry resolved 

their differences by Christmas 2017 and planned for S.P. to stay 

with Perry for a week after Christmas.

On December 26, 2017 S.P. told Nakeya that Perry had 

been touching her. S.P. did not tell Nakeya everything at first 

because she was embarrassed and scared. Nakeya testified S.P. 

initially told her she did not want to stay at Perry’s house after 

Christmas because he had been “checking” her “private area.”

Immediately after S.P.’s initial conversation with Nakeya, 

Nakeya called Perry and told him S.P. said he had been 

“checking her,” including on the cruise. Perry replied S.P. had 

asked him about sex, but he was otherwise quiet and did not give 

any other response or deny touching S.P. Nakeya told Perry she 

was going to tell “everybody,” including her older sister, Lofton. 

When Nakeya could not reach Lofton, she called her mother, 
7

Chandra Battee, who was previously married to Perry, and 

relayed S.P.’s allegations. Battee testified she and Perry 

remained friends after their divorce, and that she was close with 

S.P., who called her “Granny.” Nakeya and Battee had a threeway call with Perry, 20 minutes after Nakeya’s first call with 

Perry, during which Battee cursed at Perry, said “Oh, my God, 

you molested your daughter,” and asked how he could do this. 

Perry said nothing until the end of the call, when he stated, 

“Well, you guys do what you got to do.”

Later that day, Nakeya asked S.P. more about what had 

happened, and S.P. disclosed to Nakeya that Perry had raped

her. Nakeya asked S.P. if she wanted to file a police report and 

press charges or “leave it alone,” and S.P. said she wanted Perry

to go to jail. S.P. felt it was the right thing to do, and did not feel

pressured by Nakeya.

4. Investigation and Interviews of S.P.

The following day, Nakeya took S.P. to the Compton 

sheriff’s station, where Deputy Adonay Molina interviewed S.P.

separately from Nakeya. According to Deputy Molina, S.P. said 

her father had been sexually abusing her for about a year and 

recounted the details of the abuse.

On January 2, 2018 Sheriff’s Detective Maricruz Perez met 

with S.P. and Nakeya. She spoke “briefly” with S.P. S.P. said 

Perry would check her “privacy area” when she would visit him, 

and that it also happened on a cruise around the beginning of 

September. The first occurrence was when she was 13 years old, 

on the last day of seventh grade. Perry was “always checking”

S.P. because he thought she was having sex. Detective Perez set 

up appointments for S.P. to have a forensic interview and 
8

physical examination. Nakeya told the detective S.P. had 

learning disabilities and a tendency to lie about small things at 

school, but not at home.

Two days later, children’s social worker (CSW) Tuyet Dang

conducted a forensic interview of S.P. that Detective Perez 

monitored. A video recording of the interview was played at trial

during Dang’s testimony. S.P. recounted the details of Perry’s 

abuse. S.P. also told her Perry was “spreading rumors about 

[her] sister and her friend” and that, in November, Nakeya 

stopped allowing S.P. to visit Perry’s apartment.

The following day, sexual assault nurse examiner Jennifer 

Rivera examined S.P. Rivera testified she noticed no observable 

trauma or healed injury to S.P.’s genitals, but this was not 

inconsistent with sexual abuse and did not mean S.P. had not 

been penetrated.

5. Detective Perez Interrogates and Arrests Perry

In April 2018 Detective Perez called Perry and asked if he 

would meet with her to discuss the case. Perry agreed, and the 

next day they met at the Compton sheriff’s station. During the 

interrogation, Perry repeatedly denied abusing S.P., but made 

two incriminating statements: he touched S.P. while adjusting a 

menstrual pad, and he kissed S.P. on the lips. The entire 

interrogation was played to the jury during the detective’s crossexamination. The interrogation and Miranda-related rulings are 

covered in greater detail below.
9

C. Defense Evidence

At trial, the defense theory was that Nakeya coached S.P. 

to falsely accuse Perry because of her dispute with him over 

money and her boyfriend. Perry did not testify but called several 

defense witnesses. Perry’s next-door neighbor, Rochelle Collins,

testified she met S.P. and saw her “quite a bit” when she stayed

after school at Perry’s apartment, but never spoke to S.P. alone or 

for long. She described S.P. as a “happy child” who never 

appeared uncomfortable or upset with Perry, who bragged about 

S.P. to the other residents. Collins said the walls were thin, and 

she never heard screaming, yelling, or a girl raising her voice in 

Perry’s apartment.

Deborah Price lived several doors down and across the hall 

from Perry and testified she often saw Perry waiting for the 

school bus to drop S.P. off and had short conversations with S.P.

S.P.’s demeanor was pleasant, she did not appear upset when she 

came to see Perry, and Price never observed any harsh behavior 

toward S.P. from Perry or heard any screaming or noises from 

Perry’s apartment. Price noticed no change in S.P.’s demeanor 

over time, and never got any notification or heard discussions

from the apartment manager about condoms clogging building 

toilets.

Garcia was the property manager at Perry’s apartment 

complex. When S.P. visited Perry, she sometimes stopped by 

Garcia’s office to say hello and chat briefly with Garcia alone.

Garcia testified S.P. appeared in good spirits and never seemed 

upset or uncomfortable with Perry. Garcia received no noise 

complaints about Perry, and the building had no plumbing issues

involving condoms.
10

Deidra Murphy, Perry’s niece, testified she had known

Perry for 53 years. In 2017 Murphy and several family members, 

including Perry and S.P., went on a family reunion cruise. S.P. 

seemed happy to be there, and Murphy did not notice any tension 

or anything strange or inappropriate between Perry and S.P.

Murphy and her husband, Emmanual Huff, testified they never 

had any concern about Perry’s interaction with their three 

daughters. When they got off the flight home, S.P. accused Huff 

of misplacing her iPad, but a flight attendant ultimately returned 

it and said it was left on a backseat.

Lofton, who is the older half-sister of Nakeya and S.P., 

testified she did not have a “personal relationship like a sister”

with S.P. or a “sister bond” with Nakeya. S.P. and Lofton had 

never talked privately or spent any time one-on-one. Lofton had 

a strained relationship with Nakeya because Lofton believed 

Nakeya was jealous of her closer relationship with Perry. When 

Nakeya called Lofton and told her about S.P.’s allegations, 

Nakeya said she did not know whether to believe S.P. because 

S.P. lied a lot. Lofton told Nakeya to take S.P. to the doctor the 

next day and not to call Perry because he was on sleep 

medication and would not know what he was saying. Perry never 

inappropriately touched or checked Lofton.

Lofton testified S.P. was quiet on the family cruise but did 

not appear upset or scared. Lofton said S.P. lied to her on the 

cruise, saying she had bought a certain towel Lofton knew S.P. 

had not actually purchased. Lofton opined S.P. lied, S.P. was not 

truthful, and S.P. believed anything anyone told her. Nakeya 

told Lofton S.P. lied a lot. Lofton talked to Perry about S.P.’s 

allegations, which he denied. Lofton testified Perry never told 
11

her he accidentally touched S.P. while helping her put on a 

menstrual pad.

On recall, Detective Perez testified that when she 

interviewed Lofton in April 2018, Lofton said Perry told her he 

had helped S.P. with a menstrual pad. Detective Perez also 

testified Battee told her that when Battee and Nakeya called 

Perry to confront him about abusing S.P., Perry sounded like he 

was asleep.

D. Jury Verdict and Sentencing

The jury convicted Perry of sexual penetration by a foreign 

object of a minor 14 years old or older (§ 289, subd. (a)(1)(C)) and 

forcible rape of a minor 14 years old or older (§ 261, subd. (a)(2)). 

The jury was unable to reach a verdict on the continual sexual 

abuse count, and the court declared a mistrial on that count.

In September 2021 the court denied probation and 

sentenced Perry to the upper term of 11 years on the forcible rape 

count as the base count, and a full consecutive upper term of 

10 years on the sexual penetration by a foreign object count, for 

an aggregate prison term of 21 years. The court found six 

aggravating and no mitigating circumstances, stating it “selected 

the high term based on the aggravating factors substantially 

outweighing or the nonexistence of mitigating factors.”

Perry timely appealed.

DISCUSSION

On appeal, Perry raises several arguments: (1) his police 

interrogation should have been excluded under Miranda; 

(2) S.P.’s statements to others about the abuse should have been 
12

excluded under the hearsay rule; (3) the prosecution’s rebuttal 

closing argument contained prosecutorial error; and (4) he is 

entitled to resentencing under amendments to section 1170, 

subdivision (b). We consider each in turn. 

A. Perry’s Interrogation Did Not Violate Miranda Because He 

Was Not in Custody

Perry contends the trial court erred by admitting the

recording of his entire police interrogation because it became

custodial under Miranda at the “midway” point. The trial court 

did not err.3

1. Governing Law and Standard of Review

“A defendant who is in custody . . . must be given Miranda

warnings before police officers may interrogate him,” and

generally statements obtained in violation of Miranda are 

inadmissible. (See People v. Haley (2004) 34 Cal.4th 283, 300.) 

Custodial interrogation is “questioning initiated by law 

enforcement officers after a person has been taken into custody or 

otherwise deprived of his freedom of action in any significant 

way.” (Miranda, supra, 384 U.S. at p. 444; see People v. Thomas

(2011) 51 Cal.4th 449, 476.) Interrogation “‘refers not only to 

express questioning, but also to any words or actions on the part 

of the police . . . that the police should know are reasonably likely 

to elicit an incriminating response from the suspect.’” (People v. 

3 The People concede Perry’s interview was “reasonably 

likely to elicit an incriminating response” and thus an

“‘interrogation’” within the meaning of Miranda. (Rhode 

Island v. Innis (1980) 446 U.S. 291, 301; People v. Elizalde (2015) 

61 Cal.4th 523, 531.) 
13

Mickey (1991) 54 Cal.3d 612, 648, quoting Rhode Island v. Innis, 

supra, 446 U.S. at p. 301.) “‘Absent “custodial interrogation,”

Miranda simply does not come into play.’” (People v. Ochoa

(1998) 19 Cal.4th 353, 401.) 

We use an objective standard to determine whether a 

person was in custody for Miranda purposes. (See People v. 

Leonard (2007) 40 Cal.4th 1370, 1400.) Whether a person is in 

custody under Miranda presents a mixed question of law and 

fact. (Ibid.; see also People v. Ochoa, supra, 19 Cal.4th at p. 401). 

“[T]he pertinent inquiry is whether there was ‘“‘a “formal arrest 

or restraint on freedom of movement” of the degree associated 

with a formal arrest.’”’” (Leonard, at p. 1400.) If no formal arrest 

has taken place, the relevant question is “whether a reasonable 

person in defendant’s position would have felt he or she was in 

custody.” (People v. Stansbury (1995) 9 Cal.4th 824, 830

(Stansbury).) 

“In reviewing the trial court’s denial of a suppression 

motion on Miranda . . . ‘“‘we accept the trial court’s resolution of 

disputed facts and inferences, and its evaluations of credibility, if 

supported by substantial evidence. We independently determine 

from the undisputed facts and the facts properly found by the 

trial court whether the challenged statement was illegally 

obtained.’”’” (People v. Duff (2014) 58 Cal.4th 527, 551, quoting

People v. Enraca (2012) 53 Cal.4th 735, 753.)

2. The Trial Court’s Miranda Ruling

During pretrial proceedings, the trial court denied Perry’s 

motion to suppress after hearing testimony from Detective Perez. 

She testified she called Perry and asked if he would come in for 

an interview. Perry agreed and met her at the sheriff’s station 
14

the next day. Detective Perez met him in the station lobby and 

walked Perry by herself to a small interview room on the second 

floor containing a table and two chairs. Perry was not 

handcuffed and went voluntarily. Detective Perez did not make 

physical contact with Perry, search him, or draw a weapon.

Detective Perez told Perry she was investigating a case, he 

was not under arrest, and he was free to leave at any time. Perry 

sat closer to the door than she did. Detective Perez informed him 

the door was not locked and he could leave the same way he had 

come up. Perry never asked to leave the room, never physically 

tried to leave the room, and Detective Perez never physically 

restrained Perry from leaving. Perry generally appeared to be 

comfortable and in a good mood. Perry consented to recording. 

Detective Perez spoke to Perry alone for approximately an hour 

and a half. During the interrogation, Perry answered three cell 

phone calls, and Detective Perez did not prevent him from taking 

the calls.

Over the course of the interrogation, Perry became upset 

with Detective Perez’s questions. He then said the following: 

“But we—we’re going to stay on the same conversation until I get 

pissed off. You know, walk out of here. Look. Why am I going to 

do that? We’re not going to solve anything by arguing. You 

know?” Perry then asked if he needed to get a lawyer. Detective 

Perez then said, “I’m done,” arrested Perry, and read him his 

Miranda rights. Perry then confirmed incriminating statements 

he made during the interrogation (including that he touched S.P. 

while adjusting a menstrual pad and that he kissed her on the 

lips). Detective Perez testified she spoke to Perry “just like [she 

was] speaking” to the court during the hearing.
15

The trial court ruled Perry was not in custody under 

Miranda, noting that Detective Perez’s demeanor was 

inconsistent with an “accusatory style interrogation.”

3. Under the Totality of the Circumstances Perry Was 

Not in Custody for Purposes of Miranda

To determine if Perry was in custody for Miranda purposes, 

we consider “all the circumstances regarding the interrogation,”

to determine if they constituted a “‘“restraint on freedom of 

movement” of the degree associated with a formal arrest.’” 

(Stansbury, supra, 9 Cal.4th at p. 830.)

Relevant factors include: “whether contact with law 

enforcement was initiated by the police or the person 

interrogated, and if by the police, whether the person voluntarily 

agreed to an interview; whether the express purpose of the 

interview was to question the person as a witness or a suspect; 

where the interview took place; whether police informed the 

person that he or she was under arrest or in custody; whether 

they informed the person that he or she was free to terminate the 

interview and leave at any time and/or whether the person’s 

conduct indicated an awareness of such freedom; whether there 

were restrictions on the person’s freedom of movement during the 

interview; how long the interrogation lasted; how many police 

officers participated; whether they dominated and controlled the 

course of the interrogation; whether they manifested a belief that 

the person was culpable and they had evidence to prove it; 

whether the police were aggressive, confrontational, and/or 

accusatory; whether the police used interrogation techniques to 

pressure the suspect; and whether the person was arrested at the 

end of the interrogation. [Citations.].” (People v. Aguilera (1996) 
16

51 Cal.App.4th 1151, 1162 (Aguilera); accord, In re I.F. (2018) 

20 Cal.App.5th 735, 759; People v. Saldana (2018) 19 Cal.App.5th 

432, 459 (Saldana).) “No one factor is dispositive. Rather, we 

look at the interplay and combined effect of all the circumstances 

to determine whether . . . they created a coercive atmosphere 

such that a reasonable person would have experienced a restraint 

tantamount to an arrest.” (Aguilera, at p. 1162.) 

On appeal, Perry concedes the first half of the interrogation

was not custodial. We agree. Perry voluntarily agreed to the

interview and came to the station. He was not searched, 

handcuffed, or otherwise restrained or restricted in his freedom of 

movement. He sat closer to the door than Detective Perez. He 

was interrogated by a single officer. Perry was told at the outset

he was not under arrest, could leave at any time, the door was 

unlocked, and he could exit the station by taking the same route 

that had brought him there. Under these circumstances there 

were no indicia of coercion or restraint, and “telling [defendant]

he was not under arrest and was free to leave indicates the 

beginning of the interrogation was not custodial.” (Saldana, 

supra, 19 Cal.App.5th at p. 457.)4 

We reject Perry’s contention the interrogation turned 

custodial at the midway point, having independently reviewed 

the transcript and recording. According to Perry, at that point 

“[Detective] Perez informed [Perry] that [S.P.] had told her 

[Perry] had touched her inappropriately and she believed [S.P.].”

Specifically, Perry maintains that because the detective “[1.] 

interrogated [him] for an hour and a half, [2.] behind the closed 

4 Perry concedes at least one incriminating statement early 

in the interview (that he touched S.P. while adjusting her 

menstrual pad) was not the product of custodial interrogation.
17

door of an interview room at the sheriff’s station, [3.] dominated 

the interrogation, [4.] informed [him] she believed he was guilty 

and she had the evidence to prove it, [5.] interrogated [him] in an 

accusatory, confrontational, and aggressive manner, [6.] used 

interrogation techniques to try to elicit incriminatory admissions, 

and [7.] arrested [him] at the end of the interrogation, a 

reasonable person would have believed he was not free to leave.”

First, it is clear that despite the length of the interrogation, 

Perry felt free to leave when he stated toward the end that he 

was ready to, “You know, walk out of here.” (See Howes v. Fields

(2012) 565 U.S. 499, 509 [a person is in custody if he or she feels 

that he or she cannot end the interrogation and leave].) Earlier 

in the interrogation he answered his cell phone two times, and 

Perry answered a third call after the midway point of the 

interrogation, telling the caller he would return the call after he 

was done. Further, as Perry’s authorities confirm, the length of 

the interrogation itself is not dispositive. (See People v. Moore

(2011) 51 Cal.4th 386, 402 (Moore) [interview of “one hour 45 

minutes” interview at station house noncustodial]; Green v. 

Superior Court (1985) 40 Cal.3d 126, 131-135 [two-hour interview 

at station noncustodial]; Saldana, supra, 19 Cal.App.5th at 

p. 463 [duration may be a “tipping point” in close case, but “the 

more significant factor is the nature of the questioning, the 

character and quality of the interaction” between officer and 

suspect].) 

Next, it is true Perry was arrested at the end of the 

interrogation, but that arrest did not necessarily make the 

challenged part of the interrogation custodial. (E.g., Moore, 

supra, 51 Cal.4th at p. 403 [no Miranda violation under the 
18

totality of the circumstances, despite “indications of police 

skepticism” and formal arrest of suspect at end of interview].) 

As to the remaining factors going to the location and the 

nature of the interrogation, that Perry’s interrogation took place 

at a sheriff’s station and had some accusatory or strategic 

interrogation aspects to it does not inevitably render it custodial. 

(See Oregon v. Mathiason (1977) 429 U.S. 492 (Mathiason); 

Stansbury, supra, 9 Cal.4th at p. 833.) As summarized by our 

Supreme Court, “in [Mathiason] . . . the high court found that the 

defendant was not in custody, though he was questioned in the 

allegedly coercive environment of the police station. In that case, 

the defendant acceded to a police officer’s request to be 

interviewed at the police station. The officer told the defendant 

he was not under arrest, but the interview was accusatory to the 

extent that the officer told the defendant he was a suspect in a 

burglary, and falsely told him that his fingerprints had been 

found on the scene. The court nevertheless found that custody 

had not been established.” (Stansbury, at p. 833, quoting 

Mathiason, at p. 495.)

The court in Stansbury continued: “‘Such a noncustodial 

situation is not converted to one in which Miranda applies simply 

because a reviewing court concludes . . . the questioning took 

place in a “coercive environment.” Any interview of one 

suspected of a crime by a police officer will have coercive aspects 

to it, simply by virtue of the fact that the police officer is part of a 

law enforcement system which may ultimately cause the suspect 

to be charged with a crime. But police officers are not required to 

administer Miranda warnings to everyone whom they question. 

Nor is the requirement of warnings to be imposed simply because 

the questioning takes place in the station house, or because the 
19

questioned person is one whom the police suspect.’” (Stansbury,

supra, 9 Cal.4th at p. 833, quoting Mathiason, supra, 429 U.S. at 

p. 495, italics added.) 

“Indeed, ‘[e]ven a clear statement from an officer that the 

person under interrogation is a prime suspect is not, in itself, 

dispositive of the . . . issue, for some suspects are free to come and 

go until the police decide to make an arrest. The weight and 

pertinence of any communications regarding the officer’s degree 

of suspicion will depend upon the facts and circumstances of the 

particular case.’” (People v. Zamudio (2008) 43 Cal.4th 327, 345, 

quoting Stansbury v. California (1994) 511 U.S. 318, 325.) Even 

where “police indicate to the defendant their resolute belief he 

committed the crime, the custody inquiry becomes whether a 

reasonable person in the defendant’s situation . . . would think he 

was free to break off the interview and leave.” (Saldana, supra, 

19 Cal.App.5th at pp. 457-458 [although interrogation was not 

initially custodial, subsequent “unrelenting number of accusatory 

questions” made defendant feel he could not leave until he 

confessed and rendered subsequent interrogation custodial].) 

We are persuaded Perry was not in custody even after the 

midpoint of his interrogation because his actions confirmed he 

felt free to leave until the moment he was arrested. The overall 

tone and tenor of the interrogation was generally conversational

rather than one where the detective dominated. Although the 

detective falsely stated she had forensic and DNA evidence 

indicating Perry’s guilt, her use of this interrogation technique 

was not unrelenting. Detective Perez was not confrontational or

aggressive, let alone threatening or intimidating. She expressed

skepticism about Perry’s explanations, but asked open-ended 

questions, and generally stated “something happened” for which
20

she wanted an explanation. To be sure, Detective Perez accused 

Perry of dishonesty, but she was not unduly accusatory, and did 

not raise her voice or threaten Perry. Perry also agreed with 

Detective Perez that she was not arguing with him and that she 

had not yelled at him.5 Further, as noted above, Perry answered 

a cell phone call after the midway point and told the caller he 

would call back and, near the end of the interrogation, told 

Detective Perez he would “walk out of here” if he got “pissed off.”

These are not circumstances where a reasonable person would 

believe he was in custody. 

Perry’s interrogation was like that in Moore, supra,

51 Cal.4th 386. There, “[t]he interview was fairly long—one hour 

45 minutes—but not, as a whole, particularly intense or 

confrontational . . . . For a substantial period, while defendant 

filled in his previous statements with details, the questioning did 

not convey any suspicion of defendant or skepticism about his 

statements. [¶] After a while, to be sure, the detectives 

interjected some more accusatory and skeptical questions.” (Id.

at p. 402.) Our Supreme Court observed such “police expressions 

of suspicion . . . are not necessarily sufficient to convert voluntary 

presence at an interview into custody” and “a reasonable person 

in defendant’s circumstances would have believed, despite 

indications of police skepticism, that he was not under arrest and 

5 The trial court gave this factor significant weight, on the 

assumption Detective Perez had a similar demeanor at the 

Miranda hearing as she did in the interview. We note that, in 

other circumstances, a “professional demeanor” and “pleasant 

and conversational tone of voice” is not inconsistent with custody; 

rather, “a professional and calm demeanor is a police technique to 

keep a suspect there, answering questions.” (People v. Torres, 

supra, 25 Cal.App.5th at p. 179.) 
21

was free to terminate the interview and leave if he chose to do 

so.” (Id. at pp. 402-403.)

Perry’s authorities are inapposite. Aguilera, supra,

51 Cal.App.4th 1151 dealt with two officers engaging in a “tag

team” interrogation lasting two hours that “was intense, 

persistent, aggressive, confrontational, accusatory, and, at times, 

threatening and intimidating” (id. at p. 1165). Saldana, supra,

19 Cal.App.5th 432 involved questioning that was “persistent, 

confrontational, and accusatory.” The detective there “did much 

more than simply confront Saldana with adverse evidence. He 

confronted Saldana with unqualified assertions of his guilt, 

despite Saldana’s repeated denials.” (Id. at p. 459.) By contrast, 

Detective Perez’s questioning, while pointed and disbelieving of 

Perry’s version of the events, was not impermissibly accusatory 

and confrontational. (See id. at p. 460 [“Over and over again, 

Detective Gonzales conveyed the message that Saldana had no 

meaningful choice but to admit to some version of the crime 

because continued denials—in light of the extensive and 

irrefutable evidence against him—was simply futile. Insisting on 

the ‘truth’ until Saldana told him what he sought, the objective 

message conveyed was that Saldana would be interrogated until 

he admitted touching the girls.”].) Nor are the circumstances

here like Torres, supra, 25 Cal.App.5th 162, where the detectives 

“essentially [told] Torres they would not leave, and Torres could 

not return home, until Torres stopped lying and confessed to 

what the detectives could prove scientifically with the DNA test 

running in the trunk.” (Id. at p. 179.)

6

6 Perry’s cases involving interrogation of minors do not help 

him. (In re I.F., supra, 20 Cal.App.5th at p. 772 [12-year-old 

defendant]; In re Matthew W. (2021) 66 Cal.App.5th 392, 407 [17-
22

In sum, we conclude that based on the totality of the 

circumstances Perry was not in custody for Miranda purposes.7 

4. The Trial Court Did Not Err by Admitting the Entire 

Interrogation

Perry’s counsel twice asked the court to admit the entire 

interrogation rather than allow the prosecution to play excerpts. 

After reviewing the interrogation, the court agreed. On appeal, 

Perry now challenges admission of the entire interrogation. 

There was no error because the entire interrogation was 

noncustodial, and Perry advances no other argument why it

should have been excluded. (See People v. Waldon (2023) 

14 Cal.5th 288, 304 [“‘“The doctrine of invited error is designed to 

prevent an accused from gaining a reversal on appeal because of 

an error made by the trial court at his behest. If defense counsel 

intentionally caused the trial court to err, the appellant cannot be 

heard to complain on appeal. . . . [I]t also must be clear that 

counsel acted for tactical reasons and not out of ignorance or 

mistake.”’”]; see also Behr v. Redmond (2011) 193 Cal.App.4th 

517, 538 [appellant’s failure to brief issue on appeal forfeits it].)

year-old defendant].) Perry does not argue he was vulnerable due 

to his age.

7 Because we conclude the interview was noncustodial and 

no Miranda admonition was required, we need not address 

Perry’s argument Detective Perez employed a deliberate “twostep” interrogation process violating Missouri v. Seibert (2004) 

542 U.S. 600, 622 (police may not deliberately question suspect to 

elicit confession, give Miranda warnings and then re-question the 

suspect). 
23

B. The Trial Court Did Not Abuse Its Discretion by Admitting 

S.P.’s Pretrial Statements

At trial, the court admitted several of S.P.’s pretrial

statements alleging Perry had abused her. Perry challenges

admission of three sets of statements S.P. made to Nakeya, 

Detective Perez, and CSW Dang. According to Perry, the trial 

court prejudicially erred by admitting these statements as prior 

consistent statements. We review for abuse of discretion. 

(People v. Clark (2016) 63 Cal.4th 522, 590; accord, People v. 

Waidla (2000) 22 Cal.4th 690, 725 [“an appellate court applies 

the abuse of discretion standard of review to any ruling by a trial 

court on the admissibility of evidence, including one that turns on 

the hearsay nature of the evidence in question”].)

1. The Hearsay Rule and Relevant Exceptions

“Hearsay is an out-of-court statement offered to prove the 

truth of its content.” (People v. Valencia (2021) 11 Cal.5th 818, 

831; see Evid. Code, § 1200, subd. (a).) Any out-of-court 

statement made by a testifying witness, offered to prove the truth 

of the matter asserted, is inadmissible hearsay unless it falls 

within a recognized exception. (Evid. Code, § 1200, subds. (a) & 

(b); People v. Alvarez (1996) 14 Cal.4th 155, 185.) Evidence Code 

sections 791 and 1236 set forth an exception for a testifying 

witness’s prior consistent statements.

Evidence Code section 1236 provides: “Evidence of a 

statement previously made by a witness is not made inadmissible 

by the hearsay rule if the statement is consistent with his 

testimony at the hearing and is offered in compliance with 

Section 791.” 
24

Evidence Code section 791 in turn provides: “Evidence of a 

statement previously made by a witness that is consistent with 

his testimony at the hearing is inadmissible to support his 

credibility unless it is offered after: [¶] (a) Evidence of a 

statement made by him that is inconsistent with any part of his 

testimony at the hearing has been admitted for the purpose of 

attacking his credibility, and the statement was made before the 

alleged inconsistent statement; or [¶] (b) An express or implied 

charge has been made that his testimony at the hearing is 

recently fabricated or is influenced by bias or other improper 

motive, and the statement was made before the bias, motive for 

fabrication, or other improper motive is alleged to have arisen.”

An out-of-court statement may be hearsay or nonhearsay 

depending on the purpose for which it is offered. Under Evidence 

Code section 1250, relevant evidence of a declarant’s existing 

state of mind, emotion, or physical sensation “is not made 

inadmissible by the hearsay rule when: [¶] (1) The evidence is 

offered to prove the declarant’s state of mind, emotion, or 

physical sensation at that time or at any other time when it is 

itself an issue in the action; or [¶] (2) The evidence is offered to 

prove or explain acts or conduct of the declarant.” (Evid. Code, 

§ 1250, subd. (a); People v. Riccardi (2012) 54 Cal.4th 758, 823

(Riccardi), disapproved on another ground in People v. Rangel 

(2016) 62 Cal.4th 1192, 1216.) A declarant’s descriptions or 

assessments of the victim’s actions affecting her state of mind or 

conduct are admissible nonhearsay, “to the extent they were 

admitted to prove circumstantially [the victim’s] state of mind or 

conduct, and not to prove the truth of matters asserted regarding 

defendant’s conduct.” (Riccardi, at p. 823; see Evid. Code, § 1250, 

subd. (b) [“This section does not make admissible evidence of a 
25

statement of memory or belief to prove the fact remembered or 

believed”].) 

Perry contends the challenged statements were

inadmissible hearsay because they fail the temporality 

requirement of Evidence Code section 791, subdivision (b). The 

People argue the statements were admissible under section 791, 

subdivision (a), and under the state of mind exception. We 

address each witness’s statements in turn.

2. S.P.’s Statements to Nakeya

a. Nakeya’s initial testimony recounting S.P.’s 

statements was properly admitted to show S.P.’s

state of mind

Nakeya was the first witness to testify. During her 

testimony, the trial court overruled hearsay objections regarding: 

S.P.’s statements to Nakeya relating to S.P.’s preliminary 

hearing testimony; whether S.P. voluntarily wanted to report the 

allegations and testify in court; and whether S.P. understood the 

seriousness of the allegations. Nakeya testified S.P. “always told 

me she wants to see [Perry] go to jail,” and that S.P. always 

answered “yes” she wants to continue even though “[s]he dreads 

coming to court” and getting on the stand. The court instructed 

the jury each time that Nakeya’s answers to those questions were 

offered to prove S.P.’s state of mind, not for the truth of the 

matter.

Contrary to Perry’s argument, these statements were not 

admitted as prior consistent statements. Although the trial court

admitted S.P.’s statements to Nakeya under the state of mind 

exception, Perry made no argument in his opening brief that 

these statements were improperly admitted under that exception, 
26

and offered no response in his reply brief to the People’s 

argument these statements were properly admitted under the 

state of mind exception. Perry has thus forfeited any objection. 

(See Golden Door Properties, LLC v. Superior Court (2020) 

53 Cal.App.5th 733, 786 [issues not addressed as error in a 

party’s brief with legal analysis and citation to authority are 

forfeited].)

In any event, the statements were admissible because they 

were relevant to S.P.’s credibility and to her state of mind on a 

key theory at issue in the action: whether S.P. testified 

voluntarily, or whether S.P. was pushed to do so or was coached 

by Nakeya. In Perry’s opening statement, his counsel set forth 

the defense’s theory that S.P. made the accusations against Perry 

because of a family conflict between Nakeya and Perry, and that 

Nakeya pushed S.P. to testify. Nakeya’s testimony described 

S.P.’s statements to clarify the conversations the sisters had 

before S.P. decided to report the conduct and testify in court. 

S.P.’s statements to Nakeya tended to show S.P. voluntarily 

chose to report the abuse, wanted to see Perry go to jail for his 

actions, and appreciated the seriousness of her testimony. The

trial court was within its discretion in admitting these 

statements as they went to S.P.’s credibility and state of mind

with regard to whether she was voluntarily testifying against 

Perry, particularly given the court’s limiting instructions to the 

jury. (See Evid. Code, § 1250; Riccardi, supra, 54 Cal.4th at 

pp. 822-823 [out-of-court statement may be admissible 

nonhearsay for purpose of providing circumstantial evidence of 

the declarant’s state of mind].)
27

b. Nakeya’s recalled testimony regarding S.P.’s 

descriptions of abuse were properly admitted as 

prior consistent statements

S.P. testified after Nakeya, but was impeached with several 

prior inconsistent statements. These included her testimony 

from the preliminary hearing and statements to the police and to 

CSW Dang regarding: her age and grade when the abuse began;

the frequency, timing, and number of instances of the abuse; and

whether she consistently reported Perry making her put her 

mouth on his penis. Perry’s counsel sought to show her story was 

inconsistent and S.P. had been coached by Nakeya.

Nakeya was recalled to the stand and testified about her

first conversation with S.P. in December 2017 regarding Perry’s 

abuse, over defense counsel’s standing hearsay objection. Nakeya

relayed the following additional hearsay statements from S.P.: 

(1) Perry had been “checking her”; (2) Perry put his fingers in her 

private parts; (3) Perry checked S.P. on the cruise; (4) Perry had 

sexual intercourse with S.P.; and (5) S.P. was certain that the 

sexual abuse happened.

Perry concedes these prior “statements were consistent 

with [S.P.]’s trial testimony,” but contends they did not satisfy 

Evidence Code section 791, subdivision (b)’s temporality 

requirement (because they were made after the family dispute

that purportedly motivated S.P. to fabricate the allegations) and 

the admitted statements “did not rehabilitate any of [S.P.]’s 

inconsistent statements.”

The trial court properly admitted these statements under 

Evidence Code section 791, subdivision (a), which only requires 

that “evidence of a prior inconsistent statement [made by the 

witness] has already been introduced to impeach that witness, 
28

and the consistent statement was made before the inconsistent 

one.” (People v. Cook (2007) 40 Cal.4th 1334, 1357.) S.P.’s 

statements preceded the inconsistent statements used to impeach 

her, and were consistent with her trial testimony. Section 791, 

subdivision (a), does not require more, and Perry cites no 

authority the statements also had to be separately admissible 

under subdivision (b). (People v. Manson (1976) 61 Cal.App.3d 

102, 144 [“Whether or not subdivision (b) of Evidence Code 

section 791 is applicable is of no consequence to the application of 

subdivision (a) of that section. Even if it is assumed the [prior 

consistent statement] postdated the inception of any bias or 

motive to fabricate on the part of [the witness], that fact would 

only bear on its introduction within the circumstances described 

in subdivision (b) of section 791. It certainly would not preclude 

application of subdivision (a) of section 791 and the introduction 

of the [prior consistent statement] predating the [prior 

inconsistent statement]. The statement was properly 

admitted.”].)

Perry asserts these statements were inadmissible under 

Evidence Code section 791, subdivision (a), because they did not 

specifically rehabilitate certain details of S.P.’s prior inconsistent 

statements to Detective Perez and CSW Dang (including that 

Perry’s abuse was less frequent than she testified at trial and 

that her statements to Detective Perez and CSW Dang omitted

that Perry forced her to put his penis in her mouth, as she 

testified at trial). Perry further argues these statements “simply 

bolstered” S.P.’s testimony, citing People v. Gentry (1969) 

270 Cal.App.3d 462, 473 (“it cannot help the trier of fact in 

deciding between [two witnesses] merely to show that one of the 

witnesses has asserted the same thing previously”). 
29

To be admissible, a prior consistent statement offered to 

support the witness’s credibility need only be consistent with the 

witness’s trial testimony, and there is no requirement that it 

directly address each specific statement used to impeach the 

witness. (See Evid. Code, § 791, subd. (a); see also People v. 

Brents (2012) 53 Cal.4th 599, 616 [where defense counsel 

suggests a witness’s entire testimony is unreliable, “not just that 

[she] had fabricated some specific point,” this “broad charge of 

fabrication” warrants the admission of a prior consistent 

statement]; cf. People v. Calhoun (2019) 38 Cal.App.5th 275, 317-

318 [charge of fabrication under section 791, subdivision (b), 

allowed the admission of prior statements that “were for the most 

part consistent” with the witness’s trial testimony].) Further, 

S.P.’s statements were not admitted for impermissible bolstering 

purposes—that is, to show she said the same thing previously—

but, instead, to rehabilitate her testimony after defense counsel 

impeached her, which is wholly permissible under Gentry.

For the first time on reply, Perry argues the trial court 

erred in admitting the hearsay statements because they did not 

concern “the same fact or facts” as the prior inconsistent 

statements with which S.P. was impeached, citing People v. 

Ervine (2009) 47 Cal.4th 745, 780 (Ervine), and People v. Breaux 

(1991) 1 Cal.4th 281, 302 (Breaux).

8 According to Perry, these 

cases stand for the proposition that “a prior consistent statement 

is admissible under Evidence Code section 791, subdivision (a),

only if [it] concerns the same fact or facts as the prior 

8 Although we have no obligation to discuss arguments 

raised for the first time on reply (Gee v. Greyhound Lines, Inc.

(2016) 6 Cal.App.5th 477, 489, fns. 9 & 10), we exercise our 

discretion to do so here. 
30

inconsistent statement with which the witness has been 

impeached.” Neither case announces any rule that prior 

consistent statements admitted under Evidence Code section 791, 

subdivision (a), must directly contradict the prior inconsistent 

statements (nor could they because that would be contrary to the 

text of subdivision (a), which imposes no such requirement). At 

most, these cases support the unremarkable proposition that 

courts retain their discretion to exclude prior hearsay statements 

that are either consistent with the prior inconsistent statements 

(as in Ervine) or are wholly unrelated to the prior inconsistent

statements (as in Breaux).

3. S.P.’s Statements to Detective Perez

At trial, Perry objected to Detective Perez’s testimony 

regarding S.P.’s statements to her at their January 2018 

interview. The trial court overruled Perry’s hearsay objection 

regarding what S.P. said to Detective Perez about her family and

allowed a standing objection that S.P.’s statements describing her 

abuse were “not even consistent.” On appeal, Perry objects to

Detective Perez’s testimony relating S.P.’s statements regarding

the abuse.9

9 Specifically, Perry objects to the following testimony that 

Perry: was “checking” her with his index finger while wearing 

gloves; asked her to raise her legs; told her it was for her own 

good; told her he was checking her because he thought she was 

having sex; put his fingers inside S.P. and wiggled them around;

was told by S.P. that it hurt and to remove his finger; removed 

his gloves in the bathroom; and that he sexually assaulted her on 

the cruise.
31

The trial court explained it overruled Perry’s hearsay 

objection under Evidence Code sections 1236 and 791 because 

“there was an implication that the testimony [S.P.] gave here [at 

trial] or in the preliminary hearing was fabricated or influenced 

and this [is] a prior consistent statement for her testimony here.”

The trial court did not cite a specific subdivision of Evidence Code 

section 791, but its “fabricated or influenced” language suggests 

it admitted under subdivision (b). 

Perry argues the trial court misapplied Evidence Code 

section 791, subdivision (b), because S.P.’s statements to 

Detective Perez in January 2018 came after Thanksgiving 2017

(when S.P. allegedly had a motive to fabricate her statements), 

and because they “did not rehabilitate any of [S.P.]’s inconsistent 

statements.” To the extent the trial court admitted this 

testimony under section 791, subdivision (b), it misapplied that 

rule. To refute a charge of fabrication or bias under Evidence 

Code section 791, subdivision (b), “a prior consistent statement is 

admissible as long as the statement is made before the existence 

of any one of the motives that the opposing party expressly or 

impliedly suggests may have influenced the witness’s testimony.”

(People v. Noguera (1992) 4 Cal.4th 599, 629, italics added.) But 

“if the consistent statement was made after the time the 

improper motive is alleged to have arisen, the logical thrust of 

the evidence is lost and the statement is inadmissible.” (Cal. Law 

Revision Com. Report, West’s Ann. Evid. Code (2022 ed.) foll. 

§ 791, italics added.)

We conclude, however, there was no reversible error. Just 

as with S.P.’s statements to Nakeya, S.P.’s statements to 

Detective Perez were admissible under Evidence Code 

section 791, subdivision (a), because they were consistent with 
32

her trial testimony and were introduced to rehabilitate her after 

she was impeached. (See People v. Mani (2022) 74 Cal.App.5th 

343, 369, fn. 9 [“‘We will affirm the trial court’s evidentiary ruling 

if it is correct on any theory of law applicable to the case, even if 

for reasons different than those expressly stated by the trial 

court.’”], quoting People v. Fruits (2016) 247 Cal.App.4th 188, 

205.) And, as we explained above, there is no separate 

requirement under subdivision (a) that prior statements 

consistent with her trial testimony “rehabilitate” her inconsistent 

statements.10

4. S.P.’s Statements to CSW Dang (Forensic Interview)

During the direct examination of CSW Dang, over Perry’s 

hearsay objection, the prosecution played the entire video 

recording of Dang’s forensic interview of S.P. in January 2018. 

Perry argues S.P.’s hearsay statements in the interview were 

inadmissible under Evidence Code section 791, subdivision (b), 

and that these statements “did not rehabilitate her inconsistent 

statements.” We conclude S.P.’s statements to CSW Dang were

admissible under section 791, subdivision (a), for the same 

reasons set forth above, i.e., they were prior consistent 

statements offered to rehabilitate S.P.’s trial testimony after the 

defense impeached her with prior inconsistent statements. 

10 Perry concedes he raised no hearsay objection to Detective 

Perez recounting S.P.’s statements during the forensic interview 

with CSW Dang. Perry forfeited any objection. (Evid. Code,

§ 353, subd. (a); People v. Stevens (2015) 62 Cal.4th 325, 333 

[failure to object to hearsay testimony at trial forfeits appellate 

claim improperly admitted].) 
33

Perry also maintains that even if parts of the forensic 

interview were admissible, it was error to admit the entire

interview, citing Riccardi, supra, 54 Cal.4th at p. 803. According 

to Perry, many details in the forensic interview were inconsistent 

with S.P.’s trial testimony and “did more than rehabilitate” S.P.

11

(Evid. Code, § 791; Riccardi, at p. 803 [trial court erred in 

admitting portions of audio-recorded police interview of witness 

with “little relation” to the relevant inconsistencies, went beyond 

the scope of her trial testimony, and “did more than rehabilitate”

the challenged testimony”].) Here, however, S.P.’s statements 

from the forensic interview were directly related to her trial 

testimony recounting her allegations and descriptions of Perry’s 

abuse. The trial court was well within its broad discretion to 

permit the entire interview to be played.

5. The Challenged Statements Were All Admissible, and 

There Was No Federal Due Process Violation

Because we find all the challenged hearsay statements 

were admissible, there was no federal due process violation. 

(People v. Kraft (2000) 23 Cal.4th 978, 1035-1036 [“Application of 

the ordinary rules of evidence generally does not impermissibly 

infringe on a . . . defendant’s constitutional rights. [Citation.] 

Defendant fails to persuade us this case constitutes an exception 

to that general rule.”].) 

11 Specifically, Perry claims the following hearsay statements 

from the forensic interview “did more than rehabilitate [S.P.]” 

and “should not have been admitted”: (1) S.P.’s statements that 

when Perry inserted his finger, he was laughing and refused to 

take it out when she said it hurt; (2) S.P.’s statement that when 

she tried to move Perry’s hands away from her chest, he

threatened to hit her with a belt.
34

C. Any Prosecutorial Error in the Closing Argument Was 

Harmless

Perry contends the prosecutor committed prejudicial error 

under state and federal law during closing arguments by 

suggesting the defense strategically shared only certain portions 

of Nakeya’s recorded calls with Dozier rather than their entirety. 

The prosecutor had previously successfully limited Perry’s use of 

the two jail calls. Perry argues the trial court erroneously 

overruled his objection. We conclude any error was harmless.

1. Governing Law and Standard of Review

The prosecution’s closing argument to the jury is subject to 

review for prosecutorial error under state law and federal law. 

Such error occurs “as a matter of state law, when a prosecutor 

‘engage[s] in deceptive or reprehensible tactics in order to 

persuade the trier of fact to convict.’ [Citation.] Federal 

constitutional error occurs only when the prosecutor’s actions 

‘comprise a pattern of conduct that is serious and egregious, such 

that the trial is rendered so unfair that the resulting conviction 

violates the defendant’s right to due process of law.’” (People v. 

Daveggio and Michaud (2018) 4 Cal.5th 790, 854 (Daveggio), 

quoting People v. Lightsey (2012) 54 Cal.4th 668, 718; accord, 

People v. Seumanu (2015) 61 Cal.4th 1293, 1331-1332 [“‘“A 

prosecutor’s conduct violates the Fourteenth Amendment to the 

federal Constitution when it infects the trial with such unfairness 

as to make the conviction a denial of due process. Conduct by a 

prosecutor that does not render a criminal trial fundamentally 

unfair is prosecutorial misconduct under state law only if it 

involves the use of deceptive or reprehensible methods to attempt 

to persuade either the trial court or the jury.”’”].) Bad faith by 
35

the prosecutor is not required. (People v. Hill (1998) 17 Cal.4th 

800, 821; accord, People v. Lloyd (2015) 236 Cal.App.4th 49, 61.) 

In this regard, “‘[t]he term prosecutorial “misconduct” is 

somewhat of a misnomer to the extent that it suggests a 

prosecutor must act with a culpable state of mind. A more apt 

description of the transgression is prosecutorial error.’” (People v. 

Centeno (2014) 60 Cal.4th 659, 666-667; see People v. Sandoval

(2015) 62 Cal.4th 394, 438.) “[T]he burden of proof is on the 

defendant to show the existence of misconduct.” (People v. Van 

Houten (1980) 113 Cal.App.3d 280, 292.)

“When attacking the prosecutor’s remarks to the jury, the 

defendant must show that, ‘[i]n the context of the whole 

argument and the instructions’ [citation], there was ‘a reasonable 

likelihood the jury understood or applied the complained-of 

comments in an improper or erroneous manner. [Citations.] In 

conducting this inquiry, we “do not lightly infer” that the jury 

drew the most damaging rather than the least damaging 

meaning from the prosecutor’s statements.” (People v. Centeno, 

supra, 60 Cal.4th at p. 667.)

We review a trial court’s ruling regarding prosecutorial 

error for abuse of discretion. (See People v. Alvarez, supra, 

14 Cal.4th at p. 213.) “‘“To preserve a claim of prosecutorial 

misconduct for appeal, a defendant must make a timely and 

specific objection and ask the trial court to admonish the jury to 

disregard the improper argument.”’” (People v. Charles (2015) 

61 Cal.4th 308, 327.)
36

“In evaluating whether prosecutorial error is prejudicial, 

the standard for prejudice depends on whether the error violates 

the federal Constitution or the California Constitution.” 

(People v. Collins (2021) 65 Cal.App.5th 333, 342.) “‘In order to 

be entitled to relief under state law, defendant must show that 

the challenged conduct raised a reasonable likelihood of a more 

favorable verdict.’ [Citation.] Under federal law, relief is not 

available if ‘the challenged conduct was . . . harmless beyond a 

reasonable doubt.’” (Daveggio, supra, 4 Cal.5th at p. 854, quoting 

People v. Blacksher (2011) 52 Cal.4th 769, 828, fn. 35; accord, 

People v. Rivera (2019) 7 Cal.5th 306, 333-334.)

2. Relevant Background: The Court Admitted Only 

Limited Portions of Nayeka and Dozier’s 

Conversations at Trial Due to the Prosecution’s 

Objections

Perry’s primary defense theory at trial was that Nakeya 

coached S.P. to fabricate the accusations against him because of 

Nakeya’s dispute with Perry regarding his disapproval of 

Nayeka’s live-in boyfriend, Dozier, and the use of money. To 

impeach Nakeya at trial, the defense played six excerpts from

two telephone calls between Nakeya and Dozier, which were

recorded when Dozier was in jail for unrelated charges. The 

parties and court previously had several exchanges regarding the 

admissibility of the calls, and defense counsel provided the court 

with transcripts of the calls.

The court initially admitted excerpts germane to “two 

areas”: (1) whether Dozier and Nakeya had a public fight that 

impeached Nakeya’s testimony denying or not remembering the 

fight; and (2) whether Nakeya had coached S.P. during the lunch 
37

break at the preliminary hearing.12 The court subsequently

admitted additional excerpts to show: (1) Nakeya spoke to S.P. 

during the lunch break at the preliminary hearing; (2) Nakeya’s 

tone and demeanor; (3) Nakeya told S.P’s foster parents that S.P. 

lied a lot; and (4) Nakeya and Dozier were more than just friends.

At trial, Nakeya and S.P. both denied that Nakeya coached 

S.P. at the preliminary hearing. Defense counsel used Nakeya’s 

calls to Dozier to impeach Nakeya regarding whether she spoke 

to S.P. at the preliminary hearing and whether she had a public 

verbal fight with Dozier. Nakeya testified at trial she lied to 

Dozier on the recorded call and did not in fact speak to S.P. about 

her testimony until that evening after S.P. finished testifying.

On redirect examination, Nakeya testified she remembered 

when she had that conversation with Dozier, but had not heard 

the whole recording and did not remember the context. The 

prosecutor showed Nakeya what she described as the “actual 

transcript, this 54-page transcript,” and asked Nakeya whether 

any of “these little snippets of conversations that you had with 

Mr. Dozier” were different from what Nakeya testified to at trial, 

to which Nakeya responded, “No, it isn’t.” At sidebar, defense 

counsel argued the prosecutor’s questioning implied defense 

12 At the preliminary hearing, S.P. answered “no” to questions 

from defense counsel regarding whether she went to Perry’s 

house after school or was ever alone with Perry. Nakeya’s friend 

(or cousin) Raquel was in the courtroom, which Nakeya was 

excluded from as a witness. On one of the recorded calls, Nakeya 

later told Dozier that Raquel recounted S.P.’s testimony to her 

and that Nakeya pulled S.P. aside at lunch, asked why she was 

lying and whether she wanted Perry “to go free?” After the lunch 

break, S.P. testified she visited Perry’s house, where he would 

touch her.
38

counsel was “cherry-picking information” by introducing “limited 

snippets” of Nakeya’s conversation with Dozier. Perry’s counsel 

moved to have the entire conversation admitted “to give the full 

context.” He argued it was prosecutorial misconduct to say

evidence was “non-existen[t],” and the jury was getting the 

misimpression the defense limited the calls and “there’s more out 

there that would somehow explain this.” The prosecutor 

responded she had played only portions that counsel had 

highlighted and it was not misconduct to have Nakeya explain 

her statements.

The trial court found “absolutely no prosecutor misconduct 

or any conduct by [the prosecutor] that was the context that she 

was able to or provide [Nakeya] the transcript so [Nakeya] can 

review more of her conversation to remind her and give context to 

that what she said.” The court denied defense counsel’s request

for a jury instruction that the court had restricted what had been 

presented, and the court instead said it would instruct the jury

that “these are part of a conversation” and they were not to 

speculate further.

On further cross-examination, defense counsel asked 

Nakeya if it would be helpful for her to hear the whole 

conversation “in order to know the context.” Nakeya responded 

“No” and that she had read the transcript.

The trial court instructed the jury: “You have heard parts 

of a conversation, the parts that were played for you. You are not 

to speculate as to what the contents of the other parts that you 

did not hear are. You’re not to speculate as to why you did not 

hear the other parts of the conversation. All you have to

understand is that these conversations were, in fact, legally 
39

recorded and provided to both counsel in the regular course of

trial preparation.”

3. Any Error in the Prosecutor’s Closing Argument Was 

State Law Error and Harmless

On appeal, Perry does not challenge the trial court’s rulings 

above, but instead argues the prosecutor’s rebuttal closing 

argument constituted prosecutorial error.13

In its rebuttal, the prosecution noted defense counsel had 

argued Nakeya was targeting Perry by having S.P. falsify sexual 

abuse allegations against him. The prosecutor argued defense 

counsel was trying to manufacture a “Perry Mason” or “Law and 

Order” moment catching Nakeya in lies, and stated: “[Defense 

counsel] wanted to show you portions—the only audio that you 

didn’t hear the entirety of is that one thing, those phone calls 

that she had with her ex-boyfriend.”

Defense counsel objected and asked to approach. The trial 

court denied the request, then told the jury: “But ladies and 

gentlemen, like I indicated to you, what the lawyers say during 

their closing argument is not evidence. And if it’s different from 

your own recollection of the facts, you must rely on you own 

recollection of the facts and not speculate whatsoever.” Defense 

counsel asked to explain his objection at sidebar but the court 

denied the request, stating it could be discussed later. The 

prosecutor continued, stating “Nakeya explained to you on the 

stand the portions that you couldn’t hear,” and arguing the 

13 The trial court denied Perry’s motion for new trial asserting 

the court had erred in ruling that only part of Nakeya’s calls with 

Dozier was admissible.
40

telephone call excerpts heard at trial did not prove Nakeya was 

dishonest or hiding anything.

Defense counsel, without the jury present, argued the 

prosecutor committed misconduct by suggesting to the jury the 

defense failed to present the entirety of the phone calls when the 

prosecutor had objected to his attempt to admit the entirety of 

the audio into evidence. The prosecutor responded that Nakeya 

explained the context of her statements made in the phone calls, 

including “what was not recorded or presented in the recording.”

The prosecutor argued she had “at no point commented that 

[defense counsel] somehow failed or chose not to present any 

evidence about the rest of that transcript,” and that “to discuss 

what was discussed in testimony in front of this evidence after an 

objection was overruled is certainly not prosecutorial 

misconduct.” The trial court agreed, concluding: “There was no 

comment whatsoever about the failure of the defense to bring on 

something that was not permitted to be brought in. The exact 

statements had—basically was, these are the statements. You 

didn’t hear the rest, but [Nakeya] explains it. And that was the 

extent of that statement so I do not find that there is any 

prosecutorial misconduct whatsoever.”

As Perry explains, “The prosecutor committed error by 

successfully preventing the defense from presenting the entirety

of Nakeya’s two jail calls with Dozier and then arguing that the 

absence of this evidence was somehow the defense’s fault.” The 

People argue that “[i]n making these comments, the prosecutor

was arguing that counsel had taken Nakeya’s words out of 

context, not that counsel had withheld the entire calls.” But 

whatever the prosecutor’s intent might have been, the words 

used in rebuttal were that Perry’s counsel “wanted to show you 
41

portions” and “the only audio that you didn’t hear the entirety of”

was the Nakeya-Dozier calls.14

We conclude, however, that any such error was harmless 

state law error because there is no reasonable likelihood Perry 

would have obtained a more favorable verdict in the absence of 

the error. Perry’s counsel directly impeached Nakeya with the 

key portions of the calls, and any suggestion by the prosecutor

the full context of the calls might have mitigated Nakeya’s 

impeachment is minimal and speculative in light of the entire 

proceeding. There was also strong evidence of Perry’s guilt at 

trial from witnesses other than Nakeya. Further, there was no 

prejudice in light of the trial court’s instructions to the jury that 

it was not to speculate why it did not hear the entirety of the 

calls. (People v. Katzenberger (2009) 178 Cal.App.4th 1260, 1268 

[arguments of counsel “‘“generally carry less weight with a jury 

than do instructions from the court,”’” and if they conflict we 

ordinarily conclude the jury followed the court’s instructions]; 

People v. Thomas (2012) 54 Cal.4th 908, 940 [reiterating the

“‘sound presumption of appellate practice, that jurors are 

reasonable and generally follow the instructions they are 

given’”].) We conclude that any possible error was harmless, 

because Perry has failed to establish “‘a reasonable likelihood the 

14 The People rely on People v. Peterson (2020) 10 Cal.5th 409, 

465 and quote its language that it is “not misconduct for the 

prosecutor to argue in closing that there was no evidence 

supporting a particular proposition after the trial court has 

properly excluded evidence the defense had sought to introduce 

on that point.” Unlike Peterson, the prosecutor here was not 

commenting on an evidentiary vacuum, but rather on the 

defense’s purported motivation for not presenting the entirety of 

the Nakeya-Dozier telephone calls. 
42

jury understood or applied the complained-of [statements] in an 

improper or erroneous manner.’” (People v. Carter (2005) 

36 Cal.4th 1114, 1205.)

We conclude there was no federal constitutional error. The 

rebuttal argument was a single instance that did not constitute a

pattern of conduct so “‘serious and egregious’” that “‘the trial 

[was] rendered so unfair that the resulting conviction violates the 

defendant’s right to [federal] due process of law.’” (Daveggio, 

supra, 4 Cal.5th 790 at pp. 853-854; id. at p. 857 [“mild and 

fleeting” sympathetic descriptions of victim not reasonably likely

to improperly sway the jury where court instructed jury not to be 

influenced by sentiment or sympathy]; People v. Forrest (2017) 

7 Cal.App.5th 1074, 1085 [“prosecutor’s fleeting misstatements of 

the legal standard regarding provocation were not so egregious as 

to amount to a denial of due process” and not part of a pattern of 

conduct throughout the case].)

D. No Cumulative Error

Because we conclude any prosecutorial error was harmless, 

and, as discussed above, find no error in the other contentions on 

appeal, there is no cumulative error. (See People v. Duff, supra,

58 Cal.4th at p. 562 [“In the absence of error, there is nothing to 

cumulate.”].)

E. The Trial Court’s Sentence Did Not Comply with Amended 

Section 1170, Subdivision (b), and the Error Was Not 

Harmless

Perry argues his case should be remanded for resentencing 

because the trial court imposed the upper terms on both counts 
43

without complying with the requirements of amended 

section 1170, subdivision (b). Perry’s contention has merit.

1. Section 1170, Subdivision (b)

At the time the trial court sentenced Perry in September 

2021, former section 1170, subdivision (b), provided, “When a 

judgment of imprisonment is to be imposed and the statute 

specifies three possible terms, the choice of the appropriate term 

shall rest within the sound discretion of the court.” (Stats. 2020, 

ch. 29, § 14.) 

Effective January 1, 2022, Senate Bill No. 567 amended 

section 1170, subdivision (b), to provide “(1) When a judgment of 

imprisonment is to be imposed and the statute specifies three 

possible terms, the court shall, in its sound discretion, order 

imposition of a sentence not to exceed the middle term, except as 

otherwise provided in paragraph (2). [¶] (2) The court may 

impose a sentence exceeding the middle term only when there are 

circumstances in aggravation of the crime that justify the 

imposition of a term of imprisonment exceeding the middle term, 

and the facts underlying those circumstances have been 

stipulated to by the defendant, or have been found true beyond a 

reasonable doubt at trial by the jury or by the judge in a court 

trial. [¶] (3) Notwithstanding paragraphs (1) and (2), the court 

may consider the defendant’s prior convictions in determining 

sentencing based on a certified record of conviction without 

submitting the prior convictions to a jury.” (Stats. 2021, ch. 731, 

§ 1; see People v. Dunn (2022) 81 Cal.App.5th 394, 401-403, 

review granted October 12, 2022, S275655 (Dunn); accord,

People v. Lopez (2022) 78 Cal.App.5th 459, 464 (Lopez).) 
44

Perry contends, the People concede, and we agree Senate 

Bill No. 567’s amendments are ameliorative changes that apply 

retroactively to Perry’s nonfinal judgment. (Dunn, supra,

81 Cal.App.5th at p. 403 [“As Senate Bill 567’s amendments to 

section 1170, subdivision (b), lessen punishment, and there is no 

indication that the Legislature intended it to apply prospectively 

only, the new law must be retroactively applied.”]; People v. 

Zabelle (2022) 80 Cal.App.5th 1098, 1108 (Zabelle); Lopez, supra, 

78 Cal.App.5th at p. 465; People v. Flores (2022) 73 Cal.App.5th 

1032, 1039.)

2. The Trial Court Imposed the Upper Terms for Both 

Counts Without the Requisite Jury Findings or 

Defendant Admissions

The trial court imposed the upper terms for both of Perry’s 

convictions, 11 years on count 3 (forcible rape of a minor 14 years 

old or older) and 10 years on count 2 (sexual penetration by a 

foreign object of a minor 14 years old or older). It found six 

circumstances in aggravation and none in mitigation, specifically:

1. “The crime involved great violence, threat of great 

bodily injury, and other acts disclosing a high degree 

of cruelty and callousness.” (Cal. Rules of Court, rule 

4.421(a)(1).) 

2. “[T]he victim was particularly vulnerable, a minor, 

his daughter, someone he exerted his authority over.”

(Id., rule 4.421(a)(3).) 

3. “[I]t did take some sophistication and planning, the 

escalating nature, the rewards, and then threats.”

(Id., rule 4.421(a)(8).) 
45

4. “[T]he defendant took advantage of the position of 

trust he has—had as the victim’s father.” (Id., 

rule 4.421(a)(11).) 

5. “[H]e was engaged in a violent conduct that indicates 

a seriousness—or serious danger to society.” (Id., 

rule 4.421(b)(1)).) 

6. “The defendant’s . . . prior convictions are numerous 

and increasing in seriousness,” although the court 

noted that Perry had a period of no criminal history 

from 2002 until the present events. (Id., 

rule 4.421(b)(2).)

The trial court also considered the probation officer’s report 

listing Perry’s prior convictions.

Perry did not stipulate to and the jury did not find beyond a 

reasonable doubt the facts underlying any of the aggravating 

circumstances. (People v. Ross (2022) 86 Cal.App.5th 1346, 1353, 

review granted Mar. 15, 2023, S278266 (Ross) [imposition of 

upper term based on trial court’s findings on aggravating factors 

erroneous under amended section 1170, subdivision (b)]; Zabelle, 

supra, 80 Cal.App.5th at pp. 1109-1111 [“the trial court’s 

imposition of the upper term based on its own factfinding violated 

defendant’s rights under the Sixth Amendment” and 

section 1170, subdivision (b)].) Perry also argues the probation 

officer’s report is not a “certified record of conviction” within the 

meaning of section 1170, subdivision (b)(3). (Dunn, supra,

81 Cal.App.5th at p. 401 [“a probation report is not a certified 

record of conviction”].) And the People concede the prosecution 

did not provide certified copies of Perry’s prior convictions. As 
46

such, the trial court’s sentence did not comply with amended 

section 1170, subdivision (b).

As the parties note, there is a split of authority regarding 

the applicable prejudice standard when determining whether a 

case should be remanded for resentencing under amended 

section 1170, subdivision (b). Our Supreme Court granted review 

in People v. Lynch (May 27, 2022, C094174) [nonpub. opn.], 

review granted August 10, 2022, S274942, to decide the matter. 

Until the high court resolves the issue, we apply the two-step 

harmless error test set forth in Zabelle, supra, 80 Cal.App.5th at 

pages 1111 to 1112 and the related approach in Lopez, supra,

78 Cal.App.5th at pages 465 to 467.15

First, we evaluate whether the Sixth Amendment error is 

harmless under the Chapman standard as formulated by 

People v. Sandoval (2007) 41 Cal.4th 825, 839: “‘[I]f a reviewing 

court concludes, beyond a reasonable doubt, that the jury, 

applying the beyond-a-reasonable-doubt standard, 

unquestionably would have found true at least a single 

aggravating circumstance had it been submitted to the jury, the 

Sixth Amendment error properly may be found harmless.’”

(Zabelle, supra, 80 Cal.App.5th at p. 1111.) Second, we apply the 

Watson harmless-error standard to evaluate state law error by 

considering “whether it is reasonably probable that the trial court 

would have chosen a lesser sentence in the absence of the error.”

15 The parties also cite Dunn, supra, 81 Cal.App.5th at 

pp. 409-410. Dunn’s analysis is similar to that of Lopez, but the 

court in Dunn was “unconvinced that the Chapman standard of 

harmless error . . . must be applied to all aggravating 

circumstances in the Lopez court’s first step” and it applied a rule 

modifying that step to incorporate Watson. (Id. at p. 408.)
47

(Id. at p. 1112.) As Zabelle explained, “Resolving this issue 

entails two layers of review. We must first, for each aggravating 

fact, consider whether it is reasonably probable that the jury 

would have found the fact not true. We must then, with the 

aggravating facts that survive this review, consider whether it is 

reasonably probable that the trial court would have chosen a 

lesser sentence had it considered only these aggravating facts.”

(Ibid.)

Applying the two-step harmless error analysis to Perry’s

case, we conclude remand for resentencing is warranted. On this 

record, we cannot conclude beyond a reasonable doubt that the 

jury would have found beyond a reasonable doubt at least one 

aggravating circumstance had the circumstance been submitted 

to the jury. (Zabelle, supra, 80 Cal.App.5th at pp. 1111-1112.) As 

noted above, one of the six aggravating circumstances cited by 

the trial court, Perry’s history of prior convictions, was not 

supported by a certified record of conviction. (§ 1170, subd. (b)(3);

Dunn, supra, 81 Cal.App.5th at p. 410.) And the other five—

great violence and high degree of cruelty and callousness, the 

particular vulnerability of the victim, sophistication of the crime, 

taking advantage of a position of trust, and violent conduct 

indicating serious danger to society—all involve “vague or 

subjective standard[s]” requiring “an imprecise quantitative or 

comparative evaluation of the facts” such that it is “difficult for a 

reviewing court to conclude with confidence that, had the issue 

been submitted to the jury, the jury would have assessed the 

facts in the same manner as did the trial court.” (Sandoval, 

supra, 41 Cal.4th at p. 840.) We also cannot “assume that the 

record reflects all of the evidence that would have been presented 

had aggravating circumstances been submitted to the jury.” (Id.
48

at p. 839.) Likewise, the state law error was not harmless under 

Watson because we cannot conclude the trial court “would have 

imposed the upper term sentence even absent the error.”

(Zabelle, at p. 1112.)

The People argue the jury could have found two 

aggravating circumstances true beyond a reasonable doubt. 

First, that “the victim was particularly vulnerable, since she was 

a minor and appellant’s daughter” because the jury “necessarily 

found that both crimes involved a child.” Second, “that appellant 

took advantage of a position of trust as S.P.’s father.” But even if 

the jury could have found either of these two aggravating 

circumstances true beyond a reasonable doubt, the trial court did 

not weigh any factor against the others, leaving us to speculate 

about the impact fewer aggravating factors may have had on its

decision-making. (Lopez, supra, 78 Cal.App.5th at p. 468 

[remand required where trial court relied on “long list” of 

aggravating factors but gave no indication what decision it would 

make if fewer factors were available].) Overall, we cannot say 

with certainty how the court would have assessed fewer 

aggravating factors.

Accordingly, we vacate the sentence and remand for the 

trial court to resentence Perry under amended section 1170, 

subdivision (b). On remand, “full resentencing” is warranted,

including applicable retroactive changes in the law. (See 

People v. Jones (2022) 79 Cal.App.5th 37, 46 [“the need to apply 

amended sections 1170, subdivision (b) and 654 creates 

sufficiently ‘“changed circumstances’” [citation] to warrant a full 

resentencing”]; People v. Garcia (2022) 76 Cal.App.5th 887, 902 

[“the trial court may revisit all of its sentencing choices in light 

of” the amendments to section 1170, subdivision (b)].)
49

DISPOSITION

The convictions are affirmed. We vacate the sentence and 

direct the trial court to resentence Perry in accordance with 

section 1170, subdivision (b), and any other applicable 

ameliorative legislation.

MARTINEZ, J.

We concur:

PERLUSS, P. J.

SEGAL, J.