Filed 3/2/23 P. v. Record CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

IDRIS MALIK RECORD,

Defendant and Appellant.

 H048100

 (Santa Clara County

 Super. Ct. No. B1794389)

R.D. was attacked in her apartment by an intruder who forcibly subdued her, 

dragged her into her bedroom, and sexually assaulted her, eventually fleeing. A jury 

convicted Idris Malik Record, R.D.’s neighbor, of burglary, misdemeanor assault, 

forcible sexual penetration, and kidnapping. On appeal, Record argues that (1) there was 

insufficient evidence to support the kidnapping conviction, (2) the sexual penetration 

conviction was fatally inconsistent with his acquittal on the charge of assault with intent 

to commit the same sex offense, (3) the trial court erred by excluding evidence that he 

was not the source of epithelial cell DNA that was found on R.D.’s underwear, and 

(4) the trial court violated his constitutional right to be personally present at critical stages 

of the proceedings when it discussed limitations on his testimony. In a supplemental 

brief, he also argues that Assembly Bill No. 518 (2021-2022 Reg. Sess.) retroactively 

applies to his case and requires reversal of the judgment. 

We affirm the judgment.
2

I. BACKGROUND

A. The Information

On May 31, 2018, the Santa Clara County District Attorney filed an information 

charging Record with assault with the intent to commit a specified sex crime during the 

commission of a first degree burglary (Pen. Code, § 220, subd. (b); count 1),1sexual 

penetration by force (§ 289, subd. (a)(1); count 2), kidnapping to commit a sexual offense 

(§ 209, subd. (b)(1); count 3), and criminal threats (§ 422; count 4). As to counts 1 and 2, 

it was alleged that Record personally inflicted great bodily injury (§§ 12022.8, 1203, 

subd. (e)(3)). And as to count 2, it was alleged that Record committed the offense during 

the commission of a burglary with the intent to commit a sexual offense within the 

meaning of the “One Strike” law (§ 667.61, subds. (a) & (d)). 

B. The Prosecution’s Case

1. The Offense

R.D., a middle school teacher, lived alone in an apartment located in a two-story 

complex in Sunnyvale. Her approximately 650-square foot unit was on the top floor, 

accessible by an exterior staircase. Her front door opened onto the living room, which 

was adjacent to the kitchen. Her bedroom, to the rear of the unit, had a window 

overlooking the two-story drop to the ground. The distance from R.D.’s living room 

couch to her bedroom was approximately five to eight feet. R.D. knew the couple who 

lived in an adjacent two-story unit that shared a wall with her bedroom, but she was 

unfamiliar with the rest of the complex’s tenants. 

On October 10, 2017, R.D. fell asleep on her living room couch while watching 

television. Her living room blinds were closed, though movement and light within the 

1 Unspecified statutory references are to the Penal Code.
3

apartment could be detected from outside at certain angles. She was wearing a shirt,

underwear, and a FitBit. 

According to R.D.’s FitBit, it was 11:49 p.m. when she fell asleep and 5:37 a.m. 

the next morning when she awoke. On waking, she noticed that everything was dark; the 

television and lights were off, but she could see “a figure rushing” toward her. The 

intruder sat on her midsection and pressed something—possibly a pillow and a sweater—

over her face. The pressure was great enough to make R.D. feel like her throat was 

closed and she could not breathe. She turned her head to the right and tried to scream, 

“Motherfucker, stop. Asshole, stop.” Her assailant replied, “Shut up. Shut up or I’ll kill 

you.” 

R.D. reached up with her left arm and tried to scratch her assailant. She felt what 

seemed like a Bluetooth device around his neck and tried to click its buttons. R.D. felt 

herself being lifted from behind, and she could no longer touch the ground. The man had 

his arm around her throat and was moving her away from the couch. R.D. tried to claw 

behind her and at the man’s arm to get back onto the ground. 

R.D. could tell that her assailant was moving her toward her bedroom, which made 

her “[m]ore afraid.” To keep him from putting her face-down on the bed, she started 

pushing against the bed with her arms and legs. She urinated on herself during the 

struggle and told the man that she had urinated, but he did not let go of her. R.D. could 

feel her shin and leg scrape the metal edge of the bed frame. Her attacker’s arm still 

around her throat, R.D. asked to go clean up. 

R.D. then felt the man’s hand go under the bottom of her shirt and into her 

underwear. Crouched over the edge of her bed, with her attacker right behind her, R.D. 

felt the man’s finger go “inside of [her].” In a surge of energy, R.D. pushed off the bed, 

ending up on the floor. The man straddled her chest, and she felt more material over her 

face, smothering her and forcing her face to one side. R.D. twisted her lower body and 
4

tried to buck the man off her. As she tried to call for help, her attacker punched her in the 

ribs, and she heard him tell her to “shut up.” 

Still trying to shout, R.D. lost consciousness. When she came to, she was still on 

the floor with the man still straddling her, but her body had been rotated so her head was 

now in the direction of the rear window. She had no knowledge of how long she had 

been out. R.D. screamed for help. At R.D.’s scream, the man ran out of the apartment. 

2. The Police Investigation

a. At the Scene

When officers arrived about 6:00 a.m., R.D. was crying, her voice seemed raspy 

and hoarse, and her face looked swollen. R.D. told officers that her assailant was a “large 

man” wearing a Bluetooth device, a dark hooded sweatshirt, and jeans with a belt or 

something “really tight.” She thought that the man might have been Hispanic based on 

his accent, but she had never been able to make out his face. R.D. reported that she had 

scratched her assailant. 

In a canvass of R.D.’s neighbors, police spoke with a tenant in apartment 4—the 

unit sharing a wall with R.D.’s bedroom—who reported hearing someone in a hurry to 

leave and a car starting at around 5:30 or 5:45 a.m. 

Around 6:26 a.m., an officer saw Record walking along the driver’s side of a car 

toward the stairwell in the parking garage. Record had a cut or scratch on his face. He 

also had a shirt in his hand. Record told the officer that he had just left for his job as an 

electrician but returned on realizing he had forgotten his work uniform. While being 

questioned, Record became increasingly nervous and appeared eager to leave. Record 

initially said the cut on his face was from shaving. But Record had a five o’clock shadow 

and did not look like he had shaved that morning. Record then attributed the cut to him

“scrubbing” his face really hard in the shower that morning. When asked earlier for a 
5

detailed timeline of his activities since the night before, however, Record omitted the fact 

that he had taken a shower. 

In Record’s car, officers found a gray sweatshirt and a pair of jeans with a 

Bluetooth headset and charger in the pocket. Police never found a hoodie, but the gray 

sweatshirt had a large black collar. 

R.D. was unable to identify Record and had never seen him around the apartment 

complex before. 

b. Record’s Post-Arrest Statements

Interviewed at the police station post-arrest, Record said that a call or text from his 

wife woke him shortly before 6:00 a.m. and that he left for work shortly after waking. 

From the parking garage, he saw that R.D.’s door was open, so he went up to her 

apartment to tell her about her door. 

Record said “hello” or knocked before he went inside. It was dark inside the 

apartment, and Record saw R.D. sleeping on the couch. When he approached her, R.D. 

woke up and became hysterical. Record tried to restrain her and told her to shut up. 

Record said that he picked her up from behind with his arm around her throat and 

dragged her into her bedroom. 

Record initially said that he pushed her into her bedroom, locked the door, and 

left. He later said that R.D. continued to fight and struggle with him, but that at one point

R.D. stopped struggling and calmed down, to the point that Record became concerned. 

Once satisfied that R.D. was still breathing, however, Record started to leave. He then 

decided to go back to her, but she “woke up” and started to yell again. R.D. held onto 

him to prevent him from leaving. 

Record said that he told R.D. to be quiet, fled the apartment, went down the street, 

and got into his car. He then drove around to a stoplight. He decided to go back to the 
6

apartment so he could tell R.D. that everything was just a misunderstanding. Record 

denied that he touched R.D. in a sexual way. 

Record was adamant that in R.D.’s apartment he had been wearing the same 

clothes—white shirt, blue sweatpants, and flip-flops—that he had been wearing when 

officers first stopped him; he also told officers that he had been wearing the blue uniform 

shirt that he had in his hand when first contacted by the officers. 

3. SART Examination and DNA Evidence

Nurse Linda Richards, an expert in the collection and preservation of sexual 

assault evidence, conducted R.D.’s Sexual Assault Response Team (SART) examination. 

Richards noted a red spot with a darker red spot in the center on R.D.’s perihymenal 

tissue. Richards then applied toluidine blue gel and reexamined R.D. with a colposcope. 

During this examination, Richards saw an abrasion from the bottom of the vaginal 

opening, near the posterior fourchette, on the labia minora and the perihymenal tissue. 

She also saw an abrasion in the anal area. Richards opined that these injuries were 

consistent with penetration. 

R.D. indicated in the examination that she had not had intercourse within 

five days. R.D. had a Nuvaring birth control device that Richards did not take note of 

during her initial exam. At trial, R.D. estimated that she had reinserted the Nuvaring 

device a day before the attack. The Nuvaring itself is a “very smooth rubber or latex” 

item; its insertion—using a thumb and forefinger to compress the ring then place it 

around the cervix—would, in Richards’s view, involve “a different friction area” than the 

location of R.D.’s injuries and was therefore unlikely to have caused them. 

Results from forensic testing of R.D.’s vaginal and cervical swabs were 

presumptively negative for the enzyme found in seminal fluid. Samples swabbed from 

R.D.’s right nails and lips tested presumptively positive for blood. 
7

A DNA expert testified that analysis of R.D.’s vaginal swab was not performed, 

because a vagina’s constant sloughing of cells makes the likelihood of detecting contact 

DNA in a digital penetration case “very low.” Examining R.D.’s left finger swab for 

“male specific only DNA,” the DNA expert found a mixture of at least five profiles, of 

which the major Y-STR male profile matched Record’s profile at 16 locations. The rest 

of R.D.’s swabs came back as a mixture of DNA, but little conclusion could be drawn 

from the analysis. 

The DNA expert also examined a sweatshirt found inside R.D.’s apartment that 

officers thought may have been used to smother R.D. One stain on the sweatshirt tested 

positive for blood, but little could be concluded from the DNA analysis aside from a 

finding that R.D. was a possible source of major DNA on the shirt collar, which had a 

mixture of DNA from two individuals. The front waistband and interior front of R.D.’s 

underwear had a mixture of DNA from at least two individuals—a major contributor 

matching R.D. and at least one male minor contributor, but the low levels of minor DNA

precluded further conclusions. Urine, however, could wash away DNA. 

C. The Defense Case

1. Record’s Testimony

Record and his sister, A.R., moved into apartment number 2 of R.D.’s complex in 

April 2017. Record had moved to Sunnyvale from San Diego because he thought his 

earning potential in Northern California would be higher. His wife and two daughters did 

not move with him because Record wanted to finish his vocational program first and get 

settled. Record was proficient in electronics and mechanics and had previously been in 

the United States Navy. After his move, he started working as the staff electrician for a 

recycling company. 

Record would typically wake up around 5:00 to 5:30 a.m., take a shower, and 

leave for work by 6:30 a.m. 
8

The morning of October 11, 2017, Record walked to his car in the parking garage

and saw that R.D.’s door was open. When it continued to remain open as Record tidied 

the interior of his car, he became concerned and went up to R.D.’s apartment, leaving his 

keys and wallet in his car. Record said hello one or two times when he got to the front 

door but heard no response. The lights were off, but he could see a hand on the couch 

inside the apartment. 

Thinking something might be wrong, Record went to the front of the couch and 

leaned over. The person on the couch, R.D., moved. Record tapped on the couch, and 

R.D. moved again and had a look of fear on her face. Record then made “a stupid 

decision” to tap again on the couch, and R.D. woke up, opening her eyes. She then 

“stretched her hands towards [Record’s] face like a cat.” Record tried to move his hands 

out to indicate that he was not going to hurt her, but R.D. started to hit him. 

Because R.D. was hitting him, Record tried to restrain her and told her to stop. 

Record put his hands on her but never grabbed R.D. by the neck or tried to choke her. 

Record just wanted to push R.D. into her bedroom so he could get some space to find one 

of his sandals, which he had lost during his altercation with R.D., and then leave. R.D. 

tried to grab Record’s genitals, so he pushed her and walked out of the bedroom. 

Record looked for his sandal in the living room. When he went back to the 

bedroom, he saw R.D. on the floor holding something. She said she was going to kill 

him and started walking towards him. Record left to avoid further confrontation. 

After leaving R.D.’s apartment, Record stood on the stairs for about a minute to 

see if R.D. would come out. Feeling bad about what had happened, he wanted to explain 

himself. He went downstairs and paced, but R.D. still did not come out. Record then left 

in his car, but upset, he decided while at a stoplight to return to the apartment complex.

On his return, Record saw that there were officers everywhere. Suspecting the 

officers were there because of what had happened with R.D., he felt nervous and 
9

frustrated with himself. He initially wanted to go talk to his sister but decided to take 

responsibility for his actions, so he walked back toward his car, where an officer 

approached him. 

Record, however, did not initially tell the truth about what happened, because he 

was embarrassed and was feeling “really stupid.” After he was arrested and taken to the 

police station, he realized that the officers mistakenly thought that he had done something 

“sexual” to R.D. because they took a penile swab. 

Record did not enter the apartment with the intent to rape R.D., and the last time 

he had seen her in the complex was several months before the incident. 

2. Record’s Sister

Record’s sister, A.R., was a nurse at a nearby hospital. The siblings were raised 

by their grandparents in Panama “on a very strict Christian background.” Record was 

living with A.R. and her two sons while his wife and his two daughters were in Mexico. 

Record typically woke up around 5:00 a.m. and left for work between 5:30 and 6:00 a.m. 

The night before R.D. was attacked, A.R. had the flu, which kept her awake 

coughing. She got up in the middle of the night at around 4:00 or 4:30 a.m. to take 

medication. At that time, she heard Record snoring in the other room. After taking 

medication, A.R. stayed up reading. Around 5:30 a.m. or 6:00 a.m., A.R. heard Record 

get ready in the morning and leave. Although A.R. initially told officers she heard 

Record leave around 6:20 or 6:25 a.m., she was in “severe shock and trauma” at the time.

3. Forensic Evidence

Nurse practitioner Nicole Yadon testified as an expert in forensic SART nurse 

examinations, findings, and opinions. Yadon disagreed with Richard’s finding that there 

was a red spot on the perihymenal tissue based off the photographs from R.D.’s SART 

exam. Yadon also disagreed with the finding that there was an abrasion near the 

posterior fourchette area. 
10

According to Yadon, a red spot on the perihymenal area could be the result of 

various factors ranging from poor hygiene, wearing a menstrual pad, or general friction 

from walking or moving or wearing tight clothing. Yadon opined that insertion of R.D.’s

Nuvaring could produce a red spot and an abrasion in the vaginal area. 

D. The Prosecution’s Rebuttal

1. SART Program Coordinator

Kim Walker was the program coordinator for the Sexual Assault Forensic Exam 

Team at Santa Clara Valley Medical Center and testified as an expert in the collection 

and preservation of sexual assault evidence and in determining whether a patient’s 

injuries are consistent with her history of sexual assault. Walker reviewed photographs 

and injury findings from R.D.’s SART exam. Based on her review of the photographs, 

Walker confirmed the injuries Richards had noted.

Walker could not tell whether the abrasion injury to the labia minora would be 

consistent with the digital penetration R.D. had described but noted that R.D.’s reported 

loss of consciousness prevented R.D. from giving a comprehensive account of what 

happened. Walker also noted that due to the breadth of the abrasion near the posterior 

fourchette, she would expect that the object that abraded the area would be “a little bit 

bigger and a little bit rougher than a finger.” Walker theorized that the abrasion could 

have been caused by two fingers. Walker opined that the abrasion would not be 

consistent with R.D.’s voluntary insertion of a Nuvaring or tampon: “there would not be 

this level of abrasion, because there would be pain associated with it, and I don’t imagine 

someone would be using an object that would create pain like that.” The red spot, 

however, could be consistent with many things—including blunt force trauma or hygiene, 

or a personal physical characteristic. 
11

2. Nuvaring Expert

Dr. Eileen Schneider, a family medicine doctor, saw R.D. as her patient. 

Schneider testified as an expert in the Nuvaring and types of injuries or lack thereof that 

the device can cause. According to Schneider, it is “highly, highly, highly unlikely” that 

a Nuvaring could cause an abrasion at the posterior fourchette. Schneider opined that an 

abrasion is caused by a scraping motion by something that is kind of rough, but the 

Nuvaring is “very, very smooth.” It is possible to not even touch the posterior fourchette 

when inserting a Nuvaring. She had never seen any of her patients who have been 

prescribed a Nuvaring have an abrasion at the posterior fourchette area. 

E. The Verdict and Sentencing 

On April 16, 2019, the jury returned a verdict. As to count 1, the jury found 

Record not guilty of assault with the intent to commit sexual penetration by force while 

committing first degree burglary (count 1; §220, subd. (b)) and not guilty of the lesser 

included offense of assault with intent to commit sexual penetration (§ 220, subd. (a)) but 

guilty of the lesser included offenses of first degree burglary (§§ 450, 460) and simple 

assault (§ 240). As to count 2, the jury found Record guilty of sexual penetration by 

force (§ 289, subd. (a)(1); count 2) and found true the allegations that he inflicted great 

bodily injury (§ 289, subd. (a)(1)) and that he committed the charged offense while 

committing a first degree burglary (§ 667.61, subds. (a) & (d)). As to count 3, the jury 

found Record not guilty of kidnapping to commit sexual penetration (§ 209, subd. (b)(1); 

count 3) but guilty of the lesser included offense of simple kidnapping (§ 207, subd. (a)). 

And finally, the jury found Record not guilty of criminal threats (§ 422; count 4). 

On March 13, 2020, the trial court sentenced Record to 25 years to life for sexual 

penetration by force in the commission of a first degree burglary (count 2) under the One 

Strike law (§ 667.61, subds. (a) & (d)) and five years for the allegation that he had 

inflicted great bodily injury. The trial court also imposed a concurrent six-month 
12

sentence for misdemeanor assault and stayed the sentences for kidnapping (five years)

and burglary (four years) under section 654. 

II. DISCUSSION

A. Sufficiency of the Evidence

Record argues there is insufficient evidence to support his conviction for simple 

kidnapping (§ 207, subd. (a)) because R.D. was moved a distance of only five to eight 

feet, from the living room couch to her bedroom, and the movement actually increased

his likelihood of detection as her bedroom wall was shared with a neighbor’s kitchen. In 

reviewing a claim of sufficiency of the evidence, we must determine “ ‘ “whether, after 

viewing the evidence in the light most favorable to the prosecution, any rational trier of 

fact could have found the essential elements of the crime beyond a reasonable doubt.” ’ ” 

(People v. Young (2005) 34 Cal.4th 1149, 1175.) “We presume in support of the 

judgment the existence of every fact the trier of fact reasonably could infer from the 

evidence. [Citation.] If the circumstances reasonably justify the trier of fact’s findings, 

reversal of the judgment is not warranted simply because the circumstances might also 

reasonably be reconciled with a contrary finding. [Citation.] A reviewing court neither 

reweighs evidence nor reevaluates a witness's credibility. [Citation.]” (People v. 

Lindberg (2008) 45 Cal.4th 1, 27.)

1. Legal Principles

Under section 207, subdivision (a), “[e]very person who forcibly, or by any other 

means of instilling fear, steals or takes, or holds, detains, or arrests any person in this 

state, and carries the person into another country, state, or county, or into another part of 

the same county, is guilty of kidnapping.” Thus, “[t]he prosecution must prove that the 

defendant unlawfully moved the victim by the use of physical force or fear, without the 

person’s consent, and the movement was for a substantial distance (the asportation 

element).” (People v. Williams (2017) 7 Cal.App.5th 644, 670 (Williams).)
13

“For simple (rather than aggravated) kidnapping, the jury is to ‘ “consider the 

totality of the circumstances,” ’ not simply distance, in deciding whether the movement 

was substantial.” ’ ” (Williams, supra, 7 Cal.App.5th at pp. 670.) In People v. Martinez

(1999) 20 Cal.4th 225 (Martinez), overruled on a different point as stated in People v. 

Fontenot (2019) 8 Cal.5th 57, 70, our high court described some of the contextual factors 

that may be considered when determining whether a movement is substantial. For 

example, “in a case where the evidence permitted, the jury might properly consider not 

only the actual distance the victim is moved, but also such factors as whether that 

movement increased the risk of harm above that which existed prior to the asportation, 

decreased the likelihood of detection, and increased both the danger inherent in a victim’s 

foreseeable attempts to escape and the attacker’s enhanced opportunity to commit 

additional crimes.” (Martinez, supra, at p. 237, fn. omitted.) 

Additionally, if there is an associated crime—a criminal act that the defendant 

intends to commit where the defendant also moves the victim by force or fear against his 

or her will—the jury should be instructed to consider whether the distance the victim was 

moved was incidental to the associated crime. (People v. Bell (2009) 179 Cal.App.4th 

428, 439; People v. Perkins (2016) 5 Cal.App.5th 454, 466 (Perkins).)

The Martinez court acknowledged that “[t]he asportation requirement for simple 

kidnapping has historically been less clear” than that of aggravated kidnapping. 

(Martinez, supra, 20 Cal.4th 225, 233.) Unlike a conviction for aggravated kidnapping, 

asportation for simple kidnapping does not require an increase in harm so long as the 

victim was moved a “substantial distance.” (Williams, supra, 7 Cal.App.5th at p. 671.) 

And in contrast to aggravated kidnapping, in a case involving simple kidnapping, a jury 

may convict a defendant without finding an increase in harm, “or any other contextual 

factors”—“the jury need only find that the victim was moved a distance that was 
14

‘substantial in character.’ ” (Martinez, supra, 20 Cal.4th at p. 237.) In other words, no 

single contextual factor controls.

Martinez did not purport to set forth a minimum threshold for distance, but our

high court did state that “contextual factors, whether singly or in combination, will not 

suffice to establish asportation if the movement is only a very short distance.” (Martinez,

supra, 20 Cal.4th at p. 237.) Martinez, however, did not quantify what constitutes a 

“very short” distance. And following Martinez, multiple courts have upheld kidnapping 

convictions where a victim was moved only a minimal distance, especially where the 

movement changes the victim’s environment—for example, going from the inside of a 

house to the outside, or going from a place of public view to the interior of an apartment. 

(See People v. Nieto (2021) 62 Cal.App.5th 188, 200 [sufficient evidence of asportation 

where minor victim was lured from inside of house to outside even though no actual 

distance was proven]; People v. Arias (2011) 193 Cal.App.4th 1428, 1435 [sufficient 

evidence of asportation when defendant moved victim approximately 15 feet from 

outside of apartment to the apartment’s interior].) 

2. Analysis

Record argues that his movement of R.D. was not of a “substantial distance” as is

required for a conviction of simple kidnapping. He points out that the distance from the 

living room couch to the bedroom was short, approximately five to eight feet. Moreover, 

R.D. testified that the door from the bedroom to the living room remained open during 

the entirety of the assault. And due to the configuration of R.D.’s apartment complex, 

R.D.’s closest neighbors’ kitchen shared a wall with her bedroom. Thus, Record argues 

that his movement of R.D. from the living room to the bedroom arguably increased his 

risk of detection because he was, effectively, moving R.D. to an area where she was more 

likely to be heard. Moreover, he insists that given Record’s size, it was unlikely that the 
15

physically smaller R.D. would have been able to escape from whatever room he moved 

her to within the confines of the apartment. 

Record’s argument, in essence, asks us to reweigh the evidence and override the 

jury’s apparent reliance on contrary evidence in the record. We agree that the distance 

between the living room couch and the bedroom was apparently short, but absent a 

minimum required distance, we are unable to disregard contextual factors present in the 

trial record. Viewed in the light most favorable to the judgment, the evidence supports 

the jury’s conclusion that the movement was not merely incidental to the underlying 

sexual penetration offense. In People v. Shadden (2001) 93 Cal.App.4th 164, for 

example, the Second District found sufficient evidence to support even aggravated 

kidnapping in the defendant’s movement of the victim from the front of a store to a back 

room—a distance of nine feet—in part because the movement was not merely incidental 

to the rape: “ ‘a rape . . . does not necessarily require movement to complete the crime.’

[Citation.] Where a defendant drags a victim to another place, and then attempts a rape, 

the jury may reasonably infer that the movement was neither part of nor necessary to the 

rape.” (Id. at p. 169.) Record’s movement of R.D. from the living room to her bedroom 

prior to the sexual penetration is not materially distinguishable. 

Critically, the jury had ample evidence from which to determine that Record’s 

movement of R.D. was itself violent, thereby increasing the risk of physical harm to her 

beyond either nonphysical coercion or the force inherent in forcible sexual penetration. 

(See People v. Griffin (2004) 33 Cal.4th 1015, 1028 [reversing court of appeal for 

requiring force “ ‘substantially different from or substantially greater’ ” than force needed 

to accomplish intercourse with victim against her will]; see also People v. McCann

(2019) 41 Cal.App.5th 149, 157 [applying Griffin to forcible sexual penetration].) That

R.D. was physically outmatched by Record in terms of height and weight is not, as 

Record argues, a factor that would support our finding the movement here insubstantial 
16

as a matter of law: Record himself confirmed that R.D was tenacious in her physical 

resistance to his presence in the apartment and that he therefore moved her into the 

bedroom “to get some space.” The jury could have reasonably inferred that moving R.D.

into another room deeper in the apartment decreased her likelihood of escape, if only by 

limiting her avenues for escape to the breadth of the bedroom doorway. 

The jury could have also reasonably found that the movement into the bedroom 

increased the risk of psychological harm to R.D. (See, e.g., People v. Leavel (2012) 203 

Cal.App.4th 823, 834 [increased risk of harm to victim can include psychological harm]; 

see also CALCRIM No. 1215 [risk of harm also includes psychological harm].) Contrary 

to Record’s representation in his reply brief, R.D. testified that she became “[m]ore 

afraid” as Record carried her into the bedroom and that she became intent on resisting 

Record’s efforts to put her on the bed. Drawing all inferences in favor of the judgment, 

as we must, we construe R.D.’s testimony about her increased fear and redoubled 

resistance as reflecting an intensified desperation as the movement to her bedroom 

presaged a more intimate violation to come, in a more intimate space.

Record analogizes his case to Perkins, supra, 5 Cal.App.5th 454, which we find 

factually distinguishable.2 In Perkins, the defendant sodomized the 11-year-old victim in 

the apartment’s bathroom then ordered her to move to the bedroom—a distance of 10 to 

30 feet—where he resumed the sexual assault. (Id. at pp. 459, 470.) The Third District 

concluded there was insufficient evidence to support both the kidnapping enhancements 

and aggravated kidnapping enhancements. (Id. at p. 471.) There was no evidence that 

2 Record also relies on In re Crumpton (1973) 9 Cal.3d 463 (Crumpton) and 

People v. Williams (1970) 2 Cal.3d 894; both cases are distinguishable, however, in that 

the high court in each analyzed the sufficiency of the evidence for aggravated 

kidnapping, which noted above requires an increase in a risk of harm. (Crumpton, supra, 

at p. 465 [defendant was convicted of aggravated kidnapping under section 209]; People 

v. Williams, supra, at p. 899 [same].)
17

the manner of movement increased the risk of harm or decreased the likelihood of 

detection.

3

 (Id. at p. 470.) There was also no evidence that the movement of the victim 

increased the danger in the victim’s foreseeable escape as the defendant’s “significant 

size” rendered it unlikely that the 11-year-old victim could have fled from either location; 

nor was there evidence that moving the victim enhanced the defendant’s opportunity to 

commit additional crimes as the defendant could have committed whatever crime he 

wanted in both rooms. (Ibid.) In other words, there were no contextual factors in Perkins

that supported a finding that the movement was substantial in character, unlike here.

Thus, considering the totality of the circumstances, we conclude that a reasonable 

jury could find that Record moved R.D. a substantial distance. (Williams, supra, 7 

Cal.App.5th at p. 670. In reaching our conclusion, we are mindful that our review is for 

substantial evidence, and we must affirm even if a reasonable trier of fact could have 

reached a different result. (See People v. Jason K. (2010) 188 Cal.App.4th 1545, 1553.)

B. Inconsistent Verdicts

Next, Record argues that the jury’s verdict is fatally inconsistent because the jury 

acquitted him of assault with the intent to commit sexual penetration during a burglary

(§ 220, subd. (b)) but found him guilty of sexual penetration by force (§§ 289, subd. 

(a)(1)) and found true the allegations that Record had inflicted great bodily injury 

(§ 12022.8) and had committed the charged offense while committing a first degree 

burglary (§ 667.61, subds. (a) & (d)). 

Preliminarily, we observe that the two verdicts are not necessarily inconsistent. 

The jury acquitted Record of violating section 220, subdivision (b), which states that 

“[a]ny person who, in the commission of the burglary of the first degree . . . assaults 

3 Although R.D.’s closest neighbors shared a wall with her bedroom, the jury had 

little basis to infer that Record was aware of this feature.
18

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

Section 264.1, 288, or 289 shall be punished . . . .” Yet the jury found Record guilty of 

sexual penetration by force under section 289, subdivision (a)(1), which states that “[a]ny 

person who commits an act of sexual penetration when the act is accomplished against 

the victim’s will by means of force, violence, duress, menace, or fear of immediate and 

unlawful bodily injury on [the person] shall be punished by imprisonment in the state 

prison . . . .” The jury also found true the enhancement that the offense was committed 

“during the commission of a burglary of the first degree” under the One Strike law. 

(§ 667.61, subd. (d)(4).) 

The two crimes do not have identical elements, nor is one necessarily included 

within the other, whether as a matter of law or on these facts. A violation of section 220, 

subdivision (b) requires an intent to commit a sexual penetration but not necessarily the 

act of sexual penetration, whereas forcible sexual penetration committed during a 

burglary does not require an antecedent assault. The jury could have concluded that 

Record did not initially assault R.D. with the intent to commit sexual penetration and 

only later formed the requisite intent to commit a sexual penetration after he had already 

assaulted R.D. in the living room and had dragged her into the bedroom. 

Moreover, we conclude that even if we assume that the verdicts are inconsistent, 

reversal is not required. Section 954 provides in pertinent part: “An accusatory pleading 

may charge . . . different statements of the same offense . . . under separate counts . . . . 

An acquittal of one or more counts shall not be deemed an acquittal of any other count.” 

Thus, for example, “ ‘if an acquittal of one count is factually irreconcilable with a 

conviction on another, or if a not true finding of an enhancement allegation is 

inconsistent with a conviction of the substantive offense, effect is given to both.’ ” 

(People v. Avila (2006) 38 Cal.4th 491, 600 (Avila).)
19

Accordingly, as a general rule, inconsistent verdicts are permitted if the guilty 

verdicts are supported by substantial evidence. (People v. Lewis (2001) 25 Cal.4th 610, 

655-656 (Lewis); People v. Bell (2020) 48 Cal.App.5th 1, 9-10.) “Although ‘ “error,” in 

the sense that the jury has not followed the court’s instructions, most certainly has 

occurred’ in such situations, ‘it is unclear whose ox has been gored.’ [Citation.] It is 

possible that the jury arrived at the inconsistent conclusion through ‘mistake, 

compromise, or lenity.’ [Citation.] Thus, if a defendant is given the benefit of an 

acquittal on the count on which he was acquitted, ‘it is neither irrational nor illogical’ to 

require him to accept the burden of conviction on the count on which the jury convicted.” 

(Avila, supra, 38 Cal.4th at p. 600.) 

There is a limited exception precluding inconsistent verdicts in conspiracy cases, 

which was established by our high court in In re Johnston (1935) 3 Cal.2d 32 (Johnston). 

In Johnston, the defendants were convicted of conspiracy to violate certain provisions of 

the Corporate Securities Act but were acquitted of the actual overt acts. (Johnston, 

supra, 3 Cal.2d at pp. 33-34.) Johnston noted that the principal question before the court 

was: “[D]o the acquittals on the thirteen counts charging the defendants with the specific 

crimes of violating the Corporate Securities Act amount to special findings that the 

defendants did not commit the overt acts alleged in the count charging conspiracy?” (Id.

at pp. 34-35.) Johnston held that if the answer was yes, “it must follow by reason of the 

specific controlling the general, that the court was without jurisdiction to pronounce a 

judgment of conviction on that count.” (Id. at p. 35)

Record, however, relies on People v. Hamilton (1978) 80 Cal.App.3d 124

(Hamilton), overruled on a different point as stated in People v. Flood (1998) 18 Cal.4th 

470, and argues that a broader exception to section 954’s general rule prohibits 

inconsistent verdicts “ ‘where all of the essential elements of which the crime of which 

the defendant was acquitted are identical to some or all of the essential elements of the 
20

crime of which he was convicted, and proof of the crime of which the defendant was 

acquitted is necessary to sustain a conviction of the crime of which the defendant was 

found guilty.’ ” (Id. at p. 130.) Record argues that Hamilton noted that the exception to 

the general rule concerning inconsistent verdicts “occurs, for example, where a 

conspiracy count alleges as the only overt act a crime set forth specifically in another 

count, and the defendant is found not guilty of the specific crime, but is found guilty of 

conspiracy; such an inconsistency invalidates the conspiracy conviction.” (Id. at p. 130, 

italics added.) In other words, Record reads Hamilton as applying the Johnston

exception to nonconspiracy cases.

Yet this broad language in Hamilton has since been questioned by other courts. 

(See People v. Pahl (1991) 226 Cal.App.3d 1651 (Pahl).) The language in Hamilton

upon which Record relies is derived from Johnston, but Johnston itself limited its 

application to conspiracy cases. (Pahl, supra, at p. 1658; Johnston, supra, 3 Cal.2d at 

p. 36, italics added [“we cannot construe [section 954] to mean that an indictment or 

information charging conspiracy is sufficient” without an allegation of an overt act or 

when a defendant has been acquitted of all overt acts].) Hamilton accurately describes 

the conspiracy exception, “but it generalizes as if the exception applies to all crimes. 

Because it does not, [the language in Hamilton] is inaccurate and misleading.” (Pahl, 

supra, at p. 1660.) Moreover, the language that Record relies on in Hamilton is dicta; 

Hamilton did not apply Johnston’s limited judicial exception to the case at bench—the 

Hamilton court ultimately declined to apply any exception as two charged offenses were 

not identical. (Hamilton, supra, 80 Cal.App.3d at pp. 130-131.) 

Finally, Record claims that there are several post-Johnston cases that have applied 

the exception described in Johnston to non-conspiracy cases. Yet none of the cases that 

Record cites—affirmances all— support his position, as those courts ultimately 

concluded that the offenses at issue were either not identical or were not necessary to 
21

sustain a conviction for the other offense. (People v. Hickman (1939) 31 Cal.App.2d 4, 

11-12 [defendant’s offenses of grand theft and attempt to commit grand theft were not 

identical]; People v. Federico (1981) 127 Cal.App.3d 20, 31-33 [allegation that the 

defendant was armed with a firearm was not necessary to support conviction for murder]; 

People v. Amick (1942) 20 Cal.2d 247, 254 [verdicts acquitting the defendant of 

manslaughter but finding him guilty of negligent homicide was permissible as the crimes 

were not identical under section 954].) 

Moreover, accepting Record’s position would nullify section 954 and run counter 

to recent California Supreme Court decisions that have upheld inconsistent verdicts. For 

example, in Avila, our high court concluded that the jury’s acquittal of the defendant on 

the charge of rape did not entitle him to have stricken the jury’s true finding on the rapemurder special circumstance. (Avila, supra, 38 Cal.4th 491, 600.) As noted in Avila, “a 

‘criminal defendant already is afforded protection against jury irrationality or error by the 

independent review of the sufficiency of the evidence undertaken by the trial and 

appellate courts . . . . [No] further safeguards against jury irrationality are necessary.’ ” 

(Avila, supra, 38 Cal.4th 491, 601, quoting United States v. Powell (1984) 469 U.S. 57, 

67.) 

Here, Record does not challenge the sufficiency of the evidence that he committed 

forcible sexual penetration during a burglary. And upon our review, we are satisfied that 

there is sufficient evidence—particularly given R.D.’s extensive testimony—to uphold 

his conviction on this count. (See Lewis, supra, 25 Cal.4th at pp. 655-656.; People v. 

Duncan (2008) 160 Cal.App.4th 1014, 1018 [testimony of one witness can constitute 

substantial evidence].) For these reasons, we conclude that no inconsistency in Record’s 

verdicts warrants reversal of his convictions. 
22

C. Exclusion of Epithelial Skin Cell Evidence

Record argues that the trial court prejudicially erred by excluding evidence that he 

was excluded as a contributor of epithelial skin cells found in a cutting from the crotch of 

R.D.’s underwear. Record argues that the exclusion of the evidence violated his 

constitutional right to present a defense. Although we question the relevance on this 

record of epithelial skin cells of an unidentified male under Evidence Code section 782, 

we assume without deciding that the trial court erred by excluding testimony that Record 

was excluded as a contributor of any DNA found in the one cutting. We conclude, 

however, that any error was harmless.

1. Background

Before trial, Record filed a motion under Evidence Code section 782 seeking to 

introduce evidence of R.D.’s prior sexual conduct—that Craig Lee, the DNA expert who 

analyzed cuttings from the underwear that R.D. wore during the attack, had found sperm 

from an unknown male on the underwear. Defense counsel argued that the evidence was 

relevant because the SART exam findings of the red spot could also be consistent with 

consensual digital penetration or some other sexual act. 

At the hearing on the motion, Lee testified that a five millimeter by five millimeter 

cutting from the interior crotch of R.D.’s underwear was analyzed in the laboratory. 

Because the analyst who selected the cutting did not testify, no evidence was presented as 

to how the location of the cutting from the interior crotch panel was selected. Present on 

the cutting were more than 10 sperm cells that did not match Record’s DNA. Also found 

were a smaller number of epithelial cells from at least two individuals including R.D. and 

an unidentified male. Record was excluded as a contributor of the epithelial cells. 

According to Lee, the sperm cells could have survived even if R.D. had washed 

the underwear prior to testing. “[T]here’s no actual timeframe” for how long sperm cells 

may last, and they can last “years even, if the underwear is kept in certain conditions.” 
23

Epithelial cells do not last as long as sperm cells, but epithelial cells can still survive a 

washing. When asked if epithelial cells would last one or two weeks, assuming the 

underwear was not laundered, Lee answered that the cells could last, depending on the 

conditions the underwear was kept in. 

The following day, defense counsel argued that he wanted to admit “all the 

scientific findings” made by Lee. Defense counsel argued that the presence of sperm on 

R.D.’s underwear raised doubts as to the credibility of R.D.’s denial of recent sexual 

intercourse and could support an alternative explanation for findings made by Richards

about the injuries she saw during the SART exam. Defense counsel argued that 

excluding the evidence would violate Record’s Sixth Amendment right to confront his 

accuser and his due process right to present a defense. 

After considering the parties’ arguments, the trial court excluded “evidence of 

the . . . sperm [and] epithelial cells,” and further excluded questioning R.D. about her 

sexual history. The following day, the trial court reaffirmed its earlier ruling and further 

reasoned under Evidence Code section 352 “that [the evidence] was unrelated to the 

charged crimes; it would be prone to cause confusion; and it will lead the jury to consider 

irrelevant evidence; and thus, lead to speculation and will add significant time to 

introduce the lab results.” The trial court also denied under Evidence Code section 352 

the defense request to generally present a “sanitized version” of the evidence that Record 

had been excluded as a source of “unlabeled deposits” on R.D.’s underwear because 

presenting the evidence in generic from “would immediately circle back to what that 

evidence is, epithelial cells and the sperm cells, whose is it, and why is it there.” 

2. Legal Principles and Standard of Review

“Except as otherwise provided by statute, all relevant evidence is admissible.” 

(Evid. Code, § 351.) Under California’s rape shield law, however, “[e]vidence of the 

sexual conduct of a complaining witness is admissible in a prosecution for a sex-related 
24

offense only under very strict conditions,” and it is not admissible for certain purposes, 

such as to prove the victim’s consent. (People v. Fontana (2010) 49 Cal.4th 351, 362 

(Fontana); Evid. Code, § 1103, subd. (c).) Such evidence may be admissible “when 

offered to attack the credibility of the complaining witness and when presented in 

accordance with the procedures under [Evidence Code] section 782.” (Fontana, supra, at 

p. 362.) 

Evidence that is otherwise relevant and admissible may nonetheless be excluded 

under Evidence Code section 352 if “its probative value is substantially outweighed by 

the probability that its admission will (a) necessitate undue consumption of time or (b) 

creates substantial danger of undue prejudice, of confusing the issues, or of misleading 

the jury.” 

On appeal, we review the trial court’s decision on the admissibility of evidence

under Evidence Code sections 352 and 782 for an abuse of discretion. (People v. 

Gonzalez (2021) 12 Cal.5th 367, 408; People v. Bautista (2008) 163 Cal.App.4th 762, 

782.)

3. Analysis

On appeal, Record no longer argues that the trial court erred by excluding 

evidence of the sperm cells, that the presence of male DNA was relevant to the credibility 

of R.D.’s account of her prior sexual history, or that the presence of DNA from another 

male offers an alternative explanation for R.D.’s injuries. Rather, he argues that the trial 

court erred by excluding evidence of (1) male epithelial cell DNA present on the cutting 

from the crotch of R.D.’s underwear and (2) Record’s exclusion as the contributor of that 

DNA, as the evidence was exculpatory, critical to his defense, and not prohibited by 

Evidence Code section 782.4 As a threshold matter, to the extent Record still appears to 

4 The Attorney General argues that Record has forfeited this argument as it was 

not raised below to the trial court. (See Evid. Code, § 354, subd. (a).) We disagree—
25

argue that the presence of another man’s DNA in R.D.’s underwear was relevant and 

admissible to show that Record never touched her underwear, he is mistaken. Traces of 

R.D.’s consensual sexual contact at a remote point in time5 had no tendency in reason to 

prove or disprove the allegations against Record. What nonetheless remained relevant, 

however, was that Record’s DNA was absent from the cutting, irrespective of whether 

anyone else’s DNA was also present. Assuming for argument’s sake that the trial court 

erred by excluding testimony that R.D. was excluded as a contributor of any DNA found 

in this underwear cutting, we nevertheless conclude that any error was harmless.

Record argues that the error deprived him of his constitutional right to present a 

defense, requiring application of the harmless-beyond-a-reasonable-doubt standard 

articulated in Chapman v. California (1967) 386 U.S. 18 (Chapman). “[C]ompletely 

excluding evidence of an accused’s defense” infringes an accused’s due process right to 

present a defense, but “excluding defense evidence on a minor or subsidiary point” does 

not. (People v. Fudge (1994) 7 Cal.4th 1075, 1103 (Fudge).) “As a general matter, the 

‘[a]pplication of the ordinary rules of evidence . . . does not impermissibly infringe on a 

defendant’s right to present a defense.’ ” (Id. at pp. 1102-1103.) In such cases, prejudice 

is evaluated by the standard of review articulated in People v. Watson (1956) 46 Cal.2d 

818, 836 (Watson)—that is, reversal is required if it is reasonably probable that the 

although defense counsel initially sought admission of the evidence under Evidence Code 

section 782, he later attempted to clarify whether he would be prohibited from “even 

generically” eliciting that the laboratory had examined cells from the crotch of R.D.’s 

underwear and had determined that Record was excluded as a contributor of the DNA 

found. Defense counsel’s statements adequately apprised the trial court of “[t]he 

substance, purpose, and relevance of the excluded evidence.” (Evid. Code, § 354, 

subd. (a).)

5 R.D. testified that she last had a sexual encounter had been a few months before 

the assault. 
26

defendant would have received a more favorable verdict in the absence of error. (Fudge, 

supra, at p. 1103.)

In this case, the trial court’s refusal to admit the fact that Record was excluded as a 

contributor of DNA in the cutting did not completely exclude evidence of Record’s 

defense. Other evidence supported Record’s assertion that he did not digitally penetrate 

R.D.—as his counsel argued to the jury, the prosecution was unable to match Record to 

any DNA found on R.D.’s underwear, and Record was able to present the testimony of 

his expert, Yadon, who disputed Richards’ findings and opinions as to the red spot and 

the abrasion in the SART examination. Accordingly, we do not consider the failure to 

admit sanitized testimony to the effect that Record was positively excluded as a 

contributor of DNA on a particular cutting to have completely precluded Record’s 

defense. (See Fudge, supra, 7 Cal.4th at p. 1103.) Thus, we examine prejudice under the 

standard of state of law error under Watson, supra, 46 Cal.2d at page 836.

And under Watson, we conclude that it is not reasonably probable that in the 

absence of error, Record would have received a more favorable verdict. The probative 

value of Record’s exclusion from the epithelial DNA evidence was limited by the

relatively miniscule portion sampled. The record is silent as to how this particular cutting 

from the crotch was selected for testing, or as to the likelihood that the fleeting digital 

penetration R.D. described would have resulted in the presence of the perpetrator’s 

epithelial cells in this particular sector of underwear that at the time of the offense would 

have been freshly wet with urine, which Lee testified could wash away DNA. 

Accordingly, on this record, we are unable to conclude that Record’s exclusion from the 

cutting would have been particularly probative. 

In contrast, there was ample evidence from which the jury, if properly presented 

with the absence of Record’s DNA on this cutting, would nonetheless be able to find

Record’s guilt. There was no dispute that it was Record who entered R.D.’s apartment, 
27

grabbed her and forced her into her bedroom in a struggle that resulted in her temporary

loss of consciousness. At issue was whether Record’s intention was sexual and whether 

he penetrated R.D.’s vagina with his finger. Although Yadon contested the SART 

findings of injury, Walker concurred in Richards’ findings of an abrasion and a red spot, 

consistent with R.D.’s unequivocal testimony.

6

 Both Walker and Schneider disputed 

Yadon’s Nuvaring theory for an abrasion Yadon opined did not exist. And although R.D. 

was unaware of what happened when she was unconscious, she was unequivocal in her 

testimony regarding her resistance and the sexual penetration before that loss of 

consciousness. Record, equally unequivocal in his trial testimony, had made a number of 

prior inconsistent statements to law enforcement, including an admittedly false denial of 

any contact with R.D., from which the jury was entitled to infer his consciousness of 

guilt. We are therefore unable to conclude that Record has demonstrated a reasonable 

probability of a more favorable result, absent the assumed error.

Record nonetheless asserts that the prosecutor amplified the prejudicial effect of

the exclusion of the evidence by arguing in closing, “The lack of DNA. They’re saying 

the lack of DNA on her underwear . . . creates reasonable doubt. We know that she had 

male DNA on her shirt, on her underwear, other places on her body, but it was too low of 

a level for them to actually compare to the defendant.” But the prosecutor also added, 

“[H]is DNA isn’t on her underwear . . . Don’t be thrown off by that.” 

It is not apparent how this argument would have prejudiced Record. The 

prosecutor correctly summarized the evidence that was admitted in the first part of the 

quoted argument: there was male DNA found on R.D.’s shirt and on the waistband of her 

6 Although Walker opined that due to the breadth of the abrasion near the posterior 

fourchette, she could expect that the object that abraded the area would be “a little bit 

bigger and a little bit rougher than a finger.” Walker, however, opined that the abrasion 

could have been caused by two fingers. 
28

underwear, but the low level of DNA precluded any meaningful conclusions. The second 

part of the prosecutor’s statement—that Record’s DNA was not on R.D.’s underwear—

was in fact consistent with the evidence Record asserts was erroneously excluded: in 

other words, the prosecutor did not impermissibly argue a fact that she knew to be untrue

when she asserted that Record’s DNA was not found on the underwear. (See, e.g., 

People v. Daggett (1990) 225 Cal.App.3d 751, 757-758 [prosecutor may not ask “jurors 

to draw an inference that they might not have drawn if they had heard . . . evidence the 

judge had excluded”].) Taken in context, the prosecutor’s argument was that the absence 

of identifiable DNA profiles on R.D.’s clothing did not detract from the credibility of 

R.D.’s account or enhance the credibility of Record’s.

Record’s reliance on the length of deliberations here as an indicator of prejudice is 

similarly unavailing. To be sure, the jury deliberations persisted for 18 hours over the 

course of four days, the jury asked a number of questions, and the jury requested 

readback of R.D.’s testimony. But the duration of the jury’s deliberation could also be 

attributed to the jury’s consideration of other issues—for example, the asportation 

element of count 1, or the difference between counts 2 and 3. None of the jury questions 

specifically targeted the issue of whether Record sexually penetrated R.D. or any aspect 

of the forensic analysis; rather, a number of the questions related to the jury’s technical 

difficulties with DVD players and laptop speakers. We cannot conclude based solely on 

the length of the jury deliberations that the jury found the evidence of the sexual 

penetration to be a close issue.

For these reasons, it is not reasonably probable that in the absence of the assumed 

error, Record would have received a more favorable verdict. (Watson, supra, 46 Cal.2d 

at p. 836.)
29

D. Right to be Present at Critical Proceedings 

Record next argues that the trial court violated his constitutional right to be present 

at a critical stage of the proceedings when it discussed limitations on his testimony in 

chambers outside his presence. We conclude that Record has not demonstrated that his 

presence at the chambers conference would have contributed to the fairness of the 

proceeding.

1. Background

Before trial, the prosecutor moved in limine to admit evidence of Record’s prior 

alleged sexual misconduct in Mexico. In response, defense counsel moved to exclude 

any reference to Record’s prior arrests or convictions from Mexico. 

In March 2019, Record was present during a hearing held on various in limine 

motions, where his prior criminal record was discussed. At the time, the prosecutor 

represented that Record had a prior conviction for rape in Mexico. Defense counsel 

argued that there was no record that Record had been convicted of a crime and that his 

information was that the result of a three-person appellate review in Mexico had led to 

Record’s release. According to defense counsel, the Department of Justice (DOJ) had 

indicated that it would take several weeks to receive more information about Record’s 

prior conviction. The prosecutor countered that Record had a conviction but that she was

waiting to receive documentation about why the appellate court in Mexico later 

overturned the conviction. The prosecutor argued that a district attorney investigator in 

San Diego had provided a Spanish copy of Record’s criminal history that showed that he 

had served time in prison for rape and weapons charges. The trial court preliminarily 

decided to preclude any mention of Record’s prior conviction until further notice. 

During trial, the prosecutor did not seek to introduce evidence of Record’s prior 

convictions during his case-in-chief. However, when Record’s sister, A.R., testified that 

Record was a compassionate, caring person raised as a Christian to help others, the trial 
30

court and counsel had an unreported sidebar about Record’s prior convictions, which the 

trial court later memorialized on the record in Record’s presence.

7 On the record, the 

trial court stated that the prosecutor had asked to approach for permission to ask A.R. if 

she knew of the allegations that Record had raped two women at knifepoint in Mexico. 

The trial court, however, ruled that the evidence would not be admissible “unless and 

until we had all the information which the [DOJ]’s office was supposed to be working on 

and translating which so far has not come to fruition.” 

The prosecutor made a further record and stated that she had had received four 

certified DOJ reports but was still waiting on the certified conviction from the DOJ. The 

records, which were in Spanish, disclosed that there were four separate instances where

Record was the subject of a sexual assault investigation: these included a criminal 

investigation in 2011 where his vehicle was linked to an alleged rape or sexual abuse and

another sexual assault investigation in 2008 where a victim was pulled off the street, 

kidnapped, and raped. The prosecutor argued that if Record testified and “open[ed] the 

door” to the evidence by claiming that he would never hurt anyone, she should be 

permitted to examine him regarding his alleged prior acts. 

Although defense counsel argued that the DOJ reports were inadmissible hearsay, 

counsel also stated, “[I]t is not my intention to have my client say he has not suffered a 

conviction or an arrest. I’m not going to ask him that question. He’s already on tape 

before the jury where he said, I would not rape; I have not raped; I’m not that kind of 

guy.”

The trial court stated that it had not been presented with the particular evidence of 

the sexual assault but also that it had not precluded the evidence pending the additional 

7

It is unclear whether this unreported sidebar is the meeting in chambers that 

Record takes issue with. However, there is no dispute that the meeting in chambers at 

issue here took place before Record testified on behalf of his own defense.
31

paperwork. The trial court thereafter reiterated that the prosecutor should not mention the 

prior convictions, but she could request a sidebar if she believed that Record had opened 

the door to elicit the evidence by his testimony. Record made no comments on the record 

during the court and counsel’s discussions of his prior convictions and subsequently 

proceeded to testify on behalf of his own defense.

In a first hearing on Record’s posttrial Marsden8 motion, defense counsel recalled

a discussion in chambers outside Record’s presence about the scope of his testimony and 

impeachment. Defense counsel represented that the trial court had indicated to counsel at 

the time that “it would not be fair and proper for Mr. Record to say, specifically ‘I have 

no criminal record,’ ” when we knew there was something lingering from Mexico.”

Defense counsel later stated, “[Y]ou asked me to go advise him that he’s not to say 

anything about a record in Mexico, which strategically I wouldn’t have done anyway.” 

The trial court clarified: “[T]he gist of it was that although the prosecution was unable to 

prove the prior, they had a good faith basis to ask the question if Mr. Record said he had 

no criminal activity in his past. She was positing that she would be allowed to say, ‘Well, 

didn’t you rape two women in Mexico?’ We were attempting to not go down that road, 

one, because it couldn’t be proved and a negative couldn’t be proved.” 

At a further posttrial hearing, Record again argued that the trial court had violated 

his right to be present at critical stages of the trial when it held discussed his criminal 

history outside his presence. Record argued he should not have been excluded from a 

discussion about the scope of his testimony, as he was the person most knowledgeable 

about his own criminal record.

Finally, during the sentencing hearing approximately a week later, the trial court 

recounted that the prosecutor had represented that she had been trying to get the DOJ to 

8 People v. Marsden (1970) 2 Cal.3d 118.
32

authenticate certain records from Mexico. The trial court, however, indicated that 

defense counsel had at the time represented that he had been provided a copy from 

Record’s prior attorney of “a dismissal or something of that nature” related to the Mexico 

case. Nonetheless, the trial court stated that had Record testified that he did not have any 

criminal record, the court would “most likely have allowed the DA to present evidence of 

those rapes.” 

Defense counsel confirmed that Record was indeed absent from a chambers 

conference where the trial court discussed with counsel the nature of his testimony. 

Following the discussion, defense counsel told Record that his examination was not 

going to “make any mention of anything in Mexico or that he was a law-abiding citizen 

because of the pending request by the People to get the [DOJ] to give them a complete 

file from Mexico.” Defense counsel stated: “The documents that were produced back at 

the preliminary examination, of which the People had a copy of, was a translated Court 

acquittal out of Tijuana of those charges. [The prosecutor] was not satisfied. She wanted 

a more complete file.” Defense counsel also added: “I made my decision strategically at 

trial perfectly clear. I did not want to litigate any facts about what happened in Mexico in 

this Court. So I did everything I could to avoid any mention of it.” 

2. Legal Principles

The Sixth Amendment of the United States Constitution and the California 

Constitution both guarantee a defendant the right to be present at critical stages of the 

criminal process. (Iowa v. Tovar (2004) 541 U.S. 77, 80-81; Cal. Const. art. 1, § 15.) A 

defendant’s right to be present is also statutorily required under sections 977 and 1043. 

However, “ ‘ “[n]either the state nor the federal Constitution, nor the statutory 

requirements of sections 977 and 1043, require the defendant’s personal appearance at 

proceedings where his presence bears no reasonable, substantial relation to his 
33

opportunity to defend the charges against him.” ’ ” (People v. Blacksher (2011) 52 

Cal.4th 769, 799.) 

“[A] defendant’s right to be present depends on two conditions: (1) the 

proceeding is critical to the outcome of the case, and (2) the defendant’s presence would 

contribute to the fairness of the proceeding.” (People v. Perry (2006) 38 Cal.4th 302, 

312 (Perry).) “Thus a defendant may ordinarily be excluded from conferences on 

questions of law, even if those questions are critical to the outcome of the case, because 

the defendant’s presence would not contribute to the fairness of the proceeding. 

Examples include the exclusion of a defendant from a conference on the competency of 

child witnesses [citation], a conference on whether to remove a juror [citation], and a 

conference on jury instructions [citation.].” (Ibid.)

On appeal, we apply an independent or de novo standard of review to the trial 

court’s exclusion of a defendant from trial or a part of trial. (Perry, supra, 38 Cal.4th at 

p. 311.) “Erroneous exclusion of the defendant is not structural error that is reversible 

per se, but trial error that is reversible only if the defendant proves prejudice.” (Id. at 

p. 312.) We review a violation of a federal constitutional right for prejudice under 

Chapman, supra, 386 U.S. 18, and must determine whether a defendant’s absence was 

harmless beyond a reasonable doubt. (People v. Basler (2022) 80 Cal.App.5th 46, 59.)

3. Analysis

Based on the record before us, even if we assume that the trial court’s unreported 

conference was a critical stage of the proceedings, Record has not demonstrated that his 

presence would have contributed to the fairness of the proceedings. His argument to the 

contrary depends on an incorrect factual implication that his counsel was unaware of the 

disposition of Record’s Mexican criminal proceedings, and an incorrect legal assumption 

that the Mexican adjudication entitled him to put his character at issue risk-free.
34

As a factual matter, defense counsel, well before the unreported chambers 

conference, was demonstrably aware that Record’s criminal charges in Mexico did not 

ultimately result in a conviction. And neither on appeal nor in the trial court has Record 

identified what additional facts he might have provided about the disposition of his 

charges that were otherwise unknown to defense counsel. It was the prosecutor who 

remained unconvinced by the available records and sought further confirmation from the 

DOJ. 

We note as well that defense counsel made clear that it was his tactical decision to

not elicit testimony to the effect that Record had no prior criminal history, not because 

counsel doubted the favorable resolution of the charges in Mexico, but because counsel 

did not want to “litigate any facts about what happened in Mexico.” Record may have 

wanted to testify that he had no criminal convictions or “no criminal record,” but 

“ ‘ “[w]hen a defendant chooses to be represented by professional counsel, that counsel is 

‘captain of the ship’ and can make all but a few fundamental decisions for the defendant.” 

’ ” (People v. Roldan (2005) 35 Cal.4th 646, 682, disapproved of on a different point as 

stated in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; see People v. M.H. (2022) 

81 Cal.App.5th 299, 307 [“fundamental rights include whether to plead guilty, to waive 

the right to trial by jury, to waive the right to counsel, and to waive the right to be free 

from self-incrimination”].)

Counsel’s tactical decision to avoid litigating any facts about Record’s criminal 

record appear to reflect counsel’s recognition of the legal flaw in Record’s insistence that 

the Mexican adjudication left him free to put his good character at issue without 

consequence. In the initial Marsden hearing, Record asserted that he “had the right to tell 

the jurors, ‘Hey. I have no criminal record. I have no conviction. Take that into 

account.’ This is relevant evidence of my credibility, my character and intent.” Leaving 

aside whether the disposition of Record’s arrests and prosecution constituted a “criminal 
35

record” as distinct from a conviction, the absence of a conviction did not immunize him 

from impeachment as to his credibility and—had he put them at issue—as to his lawabiding, nonpredatory character. “A witness may be impeached with any prior conduct 

involving moral turpitude whether or not it resulted in a felony conviction, subject to the 

trial court’s exercise of discretion under Evidence Code section 352.” (People v. Clark

(2011) 52 Cal.4th 856, 931, fn. omitted.)9 If Record had in fact testified as he wished to, 

the trial court would have had the discretion to permit the prosecution to cross-examine 

Record about the original allegations underlying the Mexican arrests and prosecutions, if 

satisfied the available records provided the prosecutor a basis to so inquire in good faith. 

(People v. Pearson (2013) 56 Cal.4th 393, 434 [requiring only “a good faith basis for 

asking the question”]; Evid. Code, §§ 773, subd. (a) [witness may be cross-examined 

“upon any matter within the scope of the direct examination”].) That Record would 

surely have denied any culpability would not necessarily have dispelled the concerns of 

experienced trial counsel as to the potential impact of such cross-examination on a jury

that had already heard Record in his post-arrest interview protesting, “What? I never 

tried to do nothing like that. I’m not—I’m not that type of person; . . . [¶] I would never 

do something like that.” 

Furthermore, based on Record’s statements during the Marsden hearing and at 

sentencing, the conference where he was excluded must have taken place sometime 

9 Record notes that whether he had a prior criminal conviction was important to 

the jury, as during deliberations, the jury asked whether Record “has been convicted of 

any other crimes previously.” Yet the jury’s interest merely underscores why defense 

counsel could reasonably have considered it wiser to rely on Record’s unimpeached prior 

denial of a relevant history and to avoid any testimony as to Record’s criminal record. 

Despite the disposition of Record’s sexual assault proceedings in Mexico, there remained 

the possibility that the trial court would agree with the prosecutor that she had a goodfaith basis to question him in detail about alleged misconduct, either as impeachment or 

as evidence under Evidence Code section 1108.
36

before he testified on his own behalf because Record claims that following the 

conference, his attorney advised him not to testify that he had no criminal convictions. 

Yet right before Record testified, the subject of his criminal convictions was discussed at 

length by defense counsel, the prosecutor, and the trial court, and the reporter’s transcript 

reflects that Record was present when the discussions took place. Record accordingly

had the opportunity to interject when the prosecutor stated that she was still waiting on a 

certified conviction from Mexico from the DOJ, but he elected either to make no 

comment or to limit any response to his attorney. Nor did Record make any comments 

when the trial court stated that the prosecutor could request a sidebar if she believed that 

Record had opened the door to elicit testimony about his prior convictions during his 

testimony. 

Thus, even assuming Record could have clarified that he had no prior convictions 

at the unreported conference, he had an equal opportunity to raise his concerns to defense 

counsel, the prosecutor, and the trial court during the subsequent proceeding where the 

same issues were raised in his presence. 

Accordingly, we conclude that Record is unable to demonstrate that his presence 

at the unreported conference would have contributed to the fairness of the proceedings. 

(See Perry, supra, 38 Cal.4th at p. 312.) Moreover, for the same reasons—defense 

counsel already knew of Record’s acquittal and further strategically chose not to make 

any mention of Record’s criminal record, and Record had opportunities to raise his 

concerns at other proceedings—we conclude that his absence at the unreported 

conference is harmless beyond a reasonable doubt. (Chapman, supra, 386 U.S. at p. 23.) 

E. Assembly Bill No. 518 

In a supplemental brief, Record argues that remand for resentencing is required 

under Assembly Bill No. 518, which recently amended section 654. We conclude that 
37

remand for resentencing is not required because the trial court cannot stay sentences 

imposed under the One Strike law (§ 667.61).

Here, Record was sentence to 25 years to life for sexual penetration by force

committed during a burglary under the One Strike law (§ 667.61, subds. (a), (d)). During 

the sentencing hearing, the trial court also stayed the sentences for kidnapping, which we 

have reversed, and burglary under section 654. 

At the time Record was sentenced, section 654 provided that when an act or 

omission was “punishable in different ways by different provisions of law,” the trial court 

was required to punish the defendant “under the provision that provides for the longest 

potential term of imprisonment.” (Former § 654, subd. (a).) Effective January 1, 2022, 

section 654, subdivision (a) now “afford[s] sentencing courts the discretion to punish the 

act or omission under either provision,” and the trial court is no longer required to impose 

the longest term of imprisonment. (People v. Mani (2022) 74 Cal.App.5th 343, 351 [as 

an ameliorative change in the law, amendments to section 654 apply retroactively to 

cases not yet final on appeal].) “When a defendant is convicted of two offenses for 

which section 654 prohibits multiple punishment (as is the case here), the trial court 

imposes sentence for one of them, and then imposes and stays the sentence for the other 

offense. [Citation.] A stay is a type of suspension.” (People v. Caparaz (2022) 80 

Cal.App.5th 669, 689 (Caparaz).)

Record’s sentence of 25 years to life, however, is mandated by the One Strike law, 

which provides: “Notwithstanding any other law, probation shall not be granted to, nor 

shall the execution or imposition of sentence be suspended for, a person who is subject to 

punishment under this section.” (§ 667.61, subd. (h).) Thus, under section 667.61, 

subdivision (h), a trial court is not permitted to stay a sentence that was imposed under 

the One Strike law. (Caparaz, supra, 80 Cal.App.5th at p. 689.) Rejecting the 

defendant’s contention that section 667.61, subdivision (h) prohibited only a grant of 
38

probation, the court in Caparaz reasoned, “this interpretation of section 667.61(h) renders 

the phrase ‘nor shall the execution or imposition of sentence be suspended for’ 

meaningless, and ‘interpretations that render statutory terms meaningless as surplusage 

are to be avoided’ [citation].” (Ibid.)

Record argues that the analysis in Caparaz is wrong because it relied on language 

in People v. Santana (1986) 182 Cal.App.2d 185 defining a “stay” as a “temporary 

suspension,” without appreciating the Santana court’s proviso that the trial court’s “stay” 

of a five-year enhancement alleged under section 667, subdivision (a) in that case had the 

“functional effect” of striking the enhancement for all purposes. (Id. at pp. 190-191; see 

also Caparaz, supra, 80 Cal.App.5th at p. 689.) Even if we did not find the textual

analysis of the statute in Caparaz to be dispositive, Record’s focus on Caparaz’s 

treatment of Santana is unavailing. The trial court in Santana did not purport to act 

under section 654 in staying the five-year enhancement there; rather, the Santana court

invoked former section 1385, which did not then permit a trial court to stay all or part of 

a sentence. (Santana, supra, at p. 192.) A sentence that is stayed under section 654 is 

not functionally equivalent to striking a sentence or enhancement precisely because it can

be resurrected if the related offense is somehow reversed. (See People v. Alford (2010) 

180 Cal.App.4th 1463, 1469.) 

There is therefore no need to remand the matter for resentencing.

III. DISPOSITION

The judgment is affirmed.
____________________________

LIE, J.

WE CONCUR:

____________________________

GREENWOOD, P.J.

_____________________________

GROVER, J.

People v. Record

H048100