Filed 2/24/21 P. v. Cleveland CA2/8

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE,

Plaintiff and Respondent,

v.

LYNETTE CLEVELAND,

Defendant and Appellant.

 B301468

 (Los Angeles County

 Super. Ct. No. YA094785-04)

APPEAL from a judgment of the Superior Court of Los 

Angeles County. Edmund Wilcox Clarke, Jr., Judge. Affirmed in 

part and remanded with directions.

Jennifer A. Gambale, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, 

Chief Assistant Attorney General, Julie L. Garland, Assistant 

Attorney General, Charles C. Ragland and Stephanie H. Chow, 

Deputy Attorneys General, for Plaintiff and Respondent. 

_________________________
2

Lynette Cleveland appeals from a judgment which 

sentences her to state prison for her participation in the torture, 

kidnapping, false imprisonment, and assault of Ashleigh Wells 

over five days in August 2016. At trial, Cleveland asserted she 

participated in the crimes because she feared reprisal from her 

codefendants and others if she did not. On appeal, she contends 

the trial court prejudicially erred when it refused to instruct the 

jury on duress, to sever her trial from that of her codefendants, 

and to stay the sentences for three counts under Penal Code 

section 654.1 She also contends there was insufficient evidence to 

show she committed the crime of torture. Her arguments lack 

merit. However, we find the trial court imposed an unauthorized 

sentence and remand for the limited purpose of correcting that 

error. We otherwise affirm the judgment. 

FACTS

Cleveland met Wells and Shanavian “Shay” Liddell in 

March 2016 at Timothy Thomas’s apartment. Liddell and Wells 

both knew Thomas, a drug dealer with gang ties. At the time, 

Cleveland was 19 years old and Wells was 30. Thomas and 

Liddell were also much older than Cleveland. Cleveland, Wells, 

and Liddell quickly became close friends and saw one another 

almost every day. Cleveland confided to Wells that she was 

living with her aunt, who “pimped” her out in exchange for drugs 

or money. Wells attempted to help Cleveland, allowing her to 

move in with her in June or July of 2016. 

On August 20, 2016, Liddell and Cleveland returned from a 

barbecue to Thomas’s apartment on West Boulevard. They were 

robbed at gunpoint by three young black men. Each robber held 

1 All undesignated section references are to the Penal Code 

unless otherwise specified.
3

a handgun and demanded drugs and money. They took Liddell’s 

and Cleveland’s identification cards and wallets. Liddell believed 

they were Crip gang members because they wore blue rags over 

their faces and used gang slang. As they left, Liddell heard them 

say, “This is bullshit. She lied . . . There’s not shit in here.” 

Liddell immediately drove with Cleveland to speak with 

Thomas. Before she had time to tell him about the robbery, a car 

pulled up behind her. The same three men jumped out and 

began to shoot at them. Thomas fled with two of the men in 

pursuit. Liddell, whose car was boxed in by the robbers’ car, 

rammed their car and the car in front to get away. The robbers 

followed. 

The robbers stopped their pursuit when the police arrived. 

Liddell did not tell the officers about the earlier robbery because 

she was afraid they would discover that drugs were used and sold 

at the West Boulevard apartment. After speaking with the 

police, Liddell drove Cleveland and Thomas to Thomas’s home in 

Hemet, where they stayed until August 24, 2016. While in 

Hemet, Liddell called Wells, suggesting they meet soon at a motel 

room to hang out. Wells agreed. 

Day 1: August 24

Liddell arranged for her cousin, Steve Arnold, to drive 

Wells to Gardena, where Arnold had rented a motel room. 

Cleveland and Liddell met Wells and Arnold at a CVS drugstore 

near the motel. 

The women walked to the motel room and began to 

socialize and smoke marijuana. They returned to CVS for 

snacks. Later that night, they decided to go back to CVS a third 

time before it closed. As they were preparing to leave the room, 

Wells was unable to locate her phone, though she knew it was in 
4

the motel room because it was wirelessly streaming music to a 

speaker in the room. Cleveland and Liddell convinced her to 

leave without it. 

On the way to CVS, Arnold called, and they instead drove 

to a liquor store for cigarettes and tequila. Arnold joined them in 

the motel room, where they drank, used cocaine, and smoked 

marijuana together. 

Suddenly, Liddell’s demeanor changed. She locked the door 

and began to pull the curtains, declaring “I’m only going to ask 

you this one time about what happened on West.” She accused 

Wells of setting up the robbery, explaining that a mutual friend 

named Dominique Davis had implicated Wells. Davis and Wells 

had only recently reconciled after a longstanding feud. When 

Wells expressed confusion, Liddell told Wells what happened. 

Wells denied any involvement in the robbery. She stated 

she had just dropped Davis off at the bus station that morning 

and Davis had given her no indication anything was wrong. 

Liddell ordered Arnold, who was approximately six feet tall and 

200 pounds, to block the door. She threatened that her “cousins” 

wanted to hurt Wells in retaliation for the robbery. Liddell also 

pulled a handgun out of the nightstand by the bed, held it for a 

few seconds while looking at Wells, and then replaced it in the 

nightstand. 

Liddell brought out duct tape, latex gloves, and a hammer. 

She taped Wells’s hands and legs together. She did the same to 

Cleveland, explaining she suspected Cleveland because she lived 

with Wells. Cleveland denied any knowledge of the robbery. 

During her interrogation, Liddell struck Wells’s knees 

three times and Cleveland’s knees twice. Both continued to deny 

any knowledge about the robbery. Liddell also used Wells’s 
5

phone, which she apparently had hidden earlier, to call Davis, 

who did not answer. Liddell freed Cleveland sometime after the 

initial questioning, stating she believed Cleveland had nothing to 

do with the robbery. Liddell, Cleveland, and Arnold slept in the 

bed while Wells slept on a chair, still bound with duct tape. 

Day 2: August 25

Cleveland was left to watch Wells while Liddell and Arnold 

paid for another night at the motel and further investigated the 

robbery. Cleveland did not untie Wells, leave the room, or call for 

help while they were gone. Wells remained bound most of the 

day, though she was untied to use the restroom and eat a meal. 

Wells slept on the floor that night. 

Day 3: August 26

The following morning, the group left the motel. Wells’s 

restraints were cut, she changed her clothes, and Arnold drove 

them to Liddell’s brother’s house to retrieve Liddell’s car keys. 

Wells sat in the back seat of the car with Cleveland. As they 

approached her brother’s house, Liddell ordered Wells to duck 

down in the seat so he would not see her. They stopped at the 

liquor store for cigarettes and the grocery store for food. At no 

time was Wells left alone. 

Arnold also drove them to the Los Angeles Police 

Department Southwest Station because Liddell needed to speak 

with the detectives investigating the shooting incident. Arnold 

parked at a restaurant across the street from the police station. 

He gave Wells permission to use the restroom and Cleveland 

accompanied her. Wells passed a bystander walking to the 

restroom, but she did not ask for help. 
6

Wells did not try to escape or otherwise seek help because 

she hoped to defuse the situation with her friends and did not 

want to make a scene or involve the police. Wells also hoped to 

speak to Thomas and straighten out what she considered a 

misunderstanding with him. Although Wells feared for her 

safety, she did not, at that time, “know that there was a real 

reason to run away.” 

They all returned to Thomas’s apartment on West 

Boulevard. Liddell and Cleveland bound Wells’s wrists and 

ankles. She was told to remain in the second floor bedroom when 

Thomas arrived. After he left, Liddell removed Wells’s restraints 

and allowed her to take a shower and eat. 

After dinner, Liddell began to ask Wells about the robbery. 

She was suspicious that no one had answered the calls she made 

from Wells’s phone or appeared to be looking for Wells. She said, 

“They must know,” accusing Wells of lying. She and Cleveland 

bound Wells with extension cords, attaching the cords to a pole in 

the center of the living room. Wells overheard Liddell tell 

Arnold, “I still got that,” which Wells understood to be the gun 

she had seen in the motel room. 

Liddell continued to question Wells about the robbery. 

She used an electric cattle prod on Wells several times, causing 

her “excruciating” pain. Wells urinated on herself and screamed 

for Liddell to stop. Eventually, Arnold yelled from another room, 

“That’s enough.” Liddell stopped, but told Wells that she “better 

hope” Liddell fell asleep before she decided to interrogate Wells 

further. Liddell appeared angrier than when she hit Wells with 

the hammer at the motel. Wells remained tied to the pole the 

entire night. 
7

Day 4: August 27

The next morning, Davis called Wells’s phone. Liddell 

became even more suspicious when she heard Davis ask Wells 

unusual questions about Cleveland over the speakerphone. 

After the call ended, Liddell put on a pair of thick black gloves 

and punched Wells twice in the left eye. Wells, still tied to the 

pole, began to bleed profusely. 

Shortly afterwards, Wells was unbound, cleaned up, and 

taken to the dining area because Lewis had arrived with her 

children. Liddell spoke with Lewis in the bedroom and she left 

soon after. Liddell then told Wells to call her mother and son to 

say goodbye. Crying, Wells told her mother and son that she 

loved them. Her mother asked what was wrong, but Wells said 

she was just tired. Liddell and Cleveland tied Wells up again and 

led her to the bedroom. Wells heard voices in the other room, 

including new voices she did not recognize. 

After approximately two hours, Liddell and Arnold moved 

Wells to Arnold’s car, tying her bound legs and hands to the 

headrests. As she was escorted out of the apartment, she saw 

Thomas in the living room. Wells attempted to escape while she 

was in the car. She managed to free a hand, but set off the car 

alarm, which someone remotely deactivated. Arnold and Liddell 

untied Wells from the headrests, but left her arms and legs 

bound. They drove to a drive-through smoke shop. When they 

returned to the apartment, Cleveland, Lewis, and Thomas’s son, 

Marquis, were there. 

Wells was again tied to the pole. Marquis and Liddell 

questioned why Wells set up the robbery and attempted murder. 

Wells continued to proclaim her innocence. After Liddell 

punched Wells, she looked at Cleveland and asked, “Who wants 
8

to go?” and “Do you want to go? Do you want some of this?” 

Cleveland put on her tennis shoes and began to punch and kick 

Wells. 

After a few minutes, Liddell asked Lewis if she thought she 

could “bust” Wells’s other eye. Lewis said yes, and punched 

Wells’s right eye twice. Liddell goaded Lewis, “You can do better 

than that,” causing Lewis to hit Wells with more force. Liddell 

also hit Wells in the right eye. Wells felt her right eye begin to 

bleed.

Liddell then told Wells she would allow her the chance to 

defend herself. She instructed Wells to pick someone from the 

group to fight. Wells named Liddell, despite believing it would 

not be a fair fight regardless of whom she chose. Wells was 

untied. She swung at Liddell but missed. She was immediately 

hit in the back of the head. After she fell to the ground, the 

entire group began to hit and kick her. She felt something cold 

and hard hit her, like a hammer. She also felt something hot cut 

across her back and legs. She believed she was “tased” on her 

back and her feet. 

Wells tried to cover her head and block the blows but began 

to lose consciousness. She lost consciousness after she was hit in 

the jaw several times. When Wells woke, it was dark. She was 

lying on her stomach with her feet tied to the pole and a towel 

nearby. Her hands were free. She used the towel to wipe her 

face because she was spitting up blood. A female voice told Wells 

to stop getting blood everywhere. Wells covered her head with 

the towel and went back to sleep. 

Day 5: August 28

Wells woke the next morning in tremendous pain; she was 

unable to talk or see very well due to her injuries. Liddell gave 
9

her permission to use the restroom. Wells crawled most of the 

way to the restroom but when she attempted to use the wall to 

stand, Liddell told her not to get blood on the wall. Wells saw 

herself in the bathroom mirror and began to cry. Her eyes were 

“pretty much swollen shut” and her lips were “busted.” There 

was blood everywhere. She attempted to wash the blood from her 

face, but Liddell ordered her out of the bathroom. Cleveland and 

Liddell bound Wells to a chair in the bedroom. 

Liddell told Wells she and Cleveland were leaving for a 

couple of hours, but warned, “Don’t try no stupid shit.” She said 

her cousin was outside and Arnold would be back to check on 

Wells. 

The Escape

Wells, fearing for her life, freed herself and crept down the 

stairs after they left. When she saw no one in the apartment or 

outside, she ran for help. Wells asked several people if she could 

use their phone, but was rebuffed because they did not want to be 

involved. She ultimately ran into a television repair shop on 

West Boulevard where two men were inside. 

To the men, Wells looked like “she was beat up something 

terrible.” She told the men someone was trying to kill her and 

asked to use the phone to call her mother. The men refused, and 

said they were going to call 911 instead. Wells said she did not 

want to get the police involved because she was afraid Liddell 

and the others would be able to track her down and hurt her 

further. She “just wanted to get away.” The men called 911

when Wells collapsed and lost consciousness.

Paramedics observed that Wells’s face was completely 

swollen and her eyes shut. Wells told them she had been held 

captive for five days and kicked and hit repeatedly. She asked 
10

the paramedics to park the ambulance in the back of the store so 

Liddell and the others would not see it. Wells was transported to 

UCLA Medical Center, where medical staff treated her for 

multiple broken bones in her face, including her eye sockets and 

sinus area. She also suffered cuts to her face and legs, and had a 

first-degree burn on her shoulder. Wells reported she had been 

tased and tied up with extension cords and phone cords. 

The Criminal Proceedings

Liddell, Cleveland, and Lewis were charged with torture 

(count 1; § 206); kidnapping (count 2 against Liddell and 

Cleveland only; § 207, subd. (a)); false imprisonment by violence 

(count 3; § 236); and assault with means likely to produce great 

bodily injury (count 4; § 245, subd. (a)(4)). As to all counts, the 

information further alleged that each defendant personally 

inflicted great bodily injury. (§ 12022.7, subd. (a).) 

At trial, Wells testified to the events as described above. 

Wells also testified to the lasting effects of her ordeal, including 

numerous scars on her body, post-traumatic stress syndrome, 

impaired vision, migraines, and a cracked tooth. The People 

presented evidence corroborating Wells’s account, including 

surveillance video from CVS, testimony from one of the men at 

the repair shop, and testimony about her injuries from staff at 

UCLA Medical Center. 

The People also presented evidence from the police 

investigation. One of the detectives assigned to the matter 

testified that the West Boulevard apartment was completely 

empty when officers executed a search warrant there; it smelled 

of bleach and cleaning supplies. The pole in the living room had 

been removed, but there were corresponding plates still attached 

to the floor and the ceiling that indicated where the pole had 
11

been. The officers recovered a bundle of extension cords near the 

front door, one of which had blood splattered on it. A BB gun 

made to look like a semi-automatic pistol was recovered from 

Arnold’s apartment. 

Liddell testified on her own behalf. She admitted she was 

with Wells all five days, but claimed she only used force against 

her on August 27, 2016, after Thomas ordered her to do so. 

Liddell testified she complied because she was afraid of Thomas 

and his friends. She admitted to beating Wells and using the 

electric cattle prod on her feet. She confirmed she, Cleveland, 

Arnold, and Marquis, Thomas’s son, each punched, kicked, or cut 

Wells throughout the day. She further testified she never 

threatened Cleveland and was “shocked” when Cleveland cut 

Wells with a knife. She took the knife from Cleveland. 

Liddell denied Wells was harmed or bound at the motel, or 

that anyone prevented her from leaving during that time. She 

testified Wells used methamphetamine at the motel, causing her 

to become jittery. She believed Wells accompanied them willingly 

to the motel and to the apartment on West Boulevard. 

Liddell explained that during the time she and Cleveland 

stayed with Thomas at his home in Hemet, they discussed who 

could be behind the robbery and shooting. Thomas’s friend, who 

she believed had just been released from jail, accused Liddell of 

orchestrating the robbery. He also demanded, “Bitch, you need to 

find out what happened . . . .” Because Thomas already 

suspected her, Liddell was afraid she would end up like Wells if 

she did not obey him. 

Liddell testified Wells admitted that members of a Crip 

gang named Schoolyard were involved in the robbery and 

shooting. Liddell conveyed that information to Thomas’s friend, 
12

who had been calling for daily updates and threatening Liddell. 

Neither Cleveland nor Lewis testified at trial.

The jury found Cleveland guilty on all counts

2 and found 

true the great bodily injury allegations as to counts 2 through 4.3

As to count 1 for torture, Cleveland was sentenced to a life term 

with minimum parole eligibility of seven years. She was also 

sentenced to a determinate term of five years for the kidnapping 

charge in count 2, with counts 3 and 4 to run concurrently and 

the sentencing enhancements stayed under section 654.4 

Cleveland timely appealed. 

2 Liddell and Lewis were also found guilty on all counts. We 

affirmed the judgments against them in People v. Liddell et al.

(Oct. 23, 2019, No. B292304) [nonpub opn.].

3 The trial court struck the great bodily injury enhancement 

allegation as to count 1. 

4 The parties maintain, and we agree, the trial court 

improperly imposed and stayed the great bodily injury 

enhancements found true in counts 2 through 4. (§ 12022.7, 

subd. (a).) Except in circumstances not applicable here, the trial 

court had no discretion to impose and stay the enhancements. 

(People v. Haykel (2002) 96 Cal.App.4th 146, 152.) Rather, the 

court was required to either impose or strike the enhancements. 

(People v. Bradley (1998) 64 Cal.App.4th 386, 391; § 1385.) The 

sentences on the great bodily injury enhancements are 

unauthorized. (People v. Vizcarra (2015) 236 Cal.App.4th 422, 

432.) We decline to follow Cleveland’s suggestion to strike the 

enhancements, however, as it is unclear from the record what the 

trial court would have done had it known it had such discretion. 

We thus remand the matter for the limited purpose of allowing 

the trial court to exercise its discretion to impose the 

enhancements under section 12022.7, subdivision (a), or to strike 

them. (People v. Solorzano (2007) 153 Cal.App.4th 1026, 1041.)
13

DISCUSSION

I. The Trial Court Did Not Prejudicially Err When It 

Denied Cleveland’s Duress Instruction

Cleveland contends the trial court prejudicially erred when 

it refused to instruct the jury on duress. Cleveland’s defense at 

trial rested on her assertion she acted under duress because she 

feared she would be hurt by Liddell, Thomas, and the others if 

she did not comply with their instructions. According to 

Cleveland, she was just as much a victim as Wells, especially in 

the beginning when she was restrained and hit in the knees 

alongside Wells. Even after she was released, she witnessed the 

torture suffered by Wells and believed she would receive the 

same treatment if she did not do as she was told. 

Contrary to Cleveland’s assertions, however, there was no 

evidence of any direct or implied threat to her immediate safety. 

Moreover, there was no evidence of her state of mind to show she 

believed she was in imminent danger if she did not comply. As a 

result, the trial court did not err by refusing to instruct the jury 

on duress.

A. Applicable Law

“ ‘It is well settled that a defendant has a right to have the 

trial court . . . give a jury instruction on any affirmative defense 

for which the record contains substantial evidence [citation]—

evidence sufficient for a reasonable jury to find in favor of the 

defendant [citation]—unless the defense is inconsistent with the 

defendant's theory of the case [citation]. In determining whether 

the evidence is sufficient to warrant a jury instruction, the trial 

court does not determine the credibility of the defense evidence, 

but only whether “there was evidence which, if believed by the 

jury, was sufficient to raise a reasonable doubt . . . .” [Citations.]’ 
14

[Citations.] On appeal, we likewise ask only whether the 

requested instruction was supported by substantial 

evidence . . . .” (People v. Mentch (2008) 45 Cal.4th 274, 288.)

“Penal Code section 26 declares duress to be a perfect 

defense against criminal charges when the person charged 

‘committed the act or made the omission charged under threats 

or menaces sufficient to show that they had reasonable cause to 

and did believe their lives would be endangered if they refused.’ ” 

(People v. Vieira (2005) 35 Cal.4th 264, 289–290.) “Duress is an 

effective defense only when the actor responds to an immediate 

and imminent danger. ‘[A] fear of future harm to one’s life does 

not relieve one of responsibility for the crimes he commits.’ 

[Citations.] The person being threatened has no time to 

formulate what is a reasonable and viable course of conduct nor 

to formulate criminal intent. ‘The unlawful acts of the person 

under duress are attributed to the coercing party who supplies 

the requisite mens rea . . . .’ [Citation.] Thus, duress negates an 

element of the crime charged—the intent or capacity to commit 

the crime—and the defendant need raise only a reasonable doubt 

that he acted in the exercise of his free will. [Citation.]” (People 

v. Heath (1989) 207 Cal.App.3d 892, 900.)

B. Proceedings Below

At trial, Cleveland argued she had reasonable cause to 

believe she was in danger from Liddell, Thomas, and others if she 

did not comply with their instructions to restrain and harm 

Wells. During opening statements, her counsel explained, “Ms. 

Cleveland didn’t have the option to leave at any time. She stayed 

there after she was beaten. She stayed there after it was clear 

that someone was going to pay for what happened. . . . Many 

things happened to Ms. Wells while she was there, but not at the 

hands of Ms. Cleveland, so much so that the only involvement 
15

Ms. Cleveland had is doing exactly what she was told to do, at 

age 19, amongst some older people and some drug dealers.

So when she was [told], hey, take [Wells] from here to here, help 

her from here to here, wash her up, she did what she was told.” 

Shortly before closing arguments, Cleveland’s counsel 

requested the trial court instruct the jury with CALCRIM No. 

3402,5 the standard instruction on duress. The trial court was 

skeptical there was sufficient evidence to support an instruction 

on duress, noting the two hurdles to that instruction were 

immediacy and the seriousness of the threat. The trial court read 

section 26 strictly to apply only to fear of immediate death and 

found unpersuasive and nonbinding the cases that allowed a 

duress instruction where the evidence supported a finding of fear 

of great bodily injury. The court stated it saw no evidence anyone 

threatened Cleveland with immediate death. 

5 CALCRIM No. 3402 provides: 

“The defendant is not guilty of <insert crime[s]> if (he/she) acted 

under duress. The defendant acted under duress if, because of 

threat or menace, (he/she) believed that (his/her/ [or] someone 

else’s) life would be in immediate danger if (he/she) refused a 

demand or request to commit the crime[s]. The demand or 

request may have been express or implied. The defendant's belief 

that (his/her/ [or] someone else’s) life was in immediate danger 

must have been reasonable. When deciding whether the 

defendant’s belief was reasonable, consider all the circumstances 

as they were known to and appeared to the defendant and 

consider what a reasonable person in the same position as the 

defendant would have believed. A threat of future harm is not 

sufficient; the danger to life must have been immediate. [The 

People must prove beyond a reasonable doubt that the defendant 

did not act under duress. If the People have not met this burden, 

you must find the defendant not guilty of <insert crime[s]>.]”
16

Cleveland’s trial counsel argued the totality of the evidence 

supported a duress instruction, including the initial hammer 

blows to her knees on the first night and the involvement of 

dangerous drug dealers and gang members who were out for 

revenge.6 As a result, Cleveland could not leave and simply 

followed Liddell’s instructions. He further explained, “in the 

midst of that my client . . . is broached with the question, ‘Do you 

want some of this?’ ” 

The trial court was unpersuaded. It indicated Wells herself 

did not believe she was at risk of immediate death in the days 

before she was beaten to unconsciousness, including when she 

was hit by a hammer, when she was tied up in Arnold’s car, or 

when Liddell used a taser on her. According to the court, Wells 

“went through many, many times over what Ms. Cleveland went 

through, many, many times over, and she didn’t say until very 

late in the game and on the phone with her mother and message 

to her son that death had even occurred to her.” The court 

concluded, “So why would someone assume being hit with a 

hammer days before caused a lasting belief and fear that 

immediate death was about to occur if you didn’t [get] cut with 

the knife, tase[d] with the taser, tie[d] [ ] up? So to me it is 

speculative to say that Ms. Cleveland at any point in time, let 

alone a time when she did the acts which would constitute these 

crimes personally, that she was in fear of immediate death.” 

6 Cleveland also asserts she was raped by Arnold on the first 

night, lending further credence to her fear of Liddell, Arnold, and 

the others. Although there was testimony that Cleveland and 

Arnold had sex at the motel, there is no evidence that it was not 

consensual.
17

The trial court further found there was no evidence of 

Cleveland’s state of mind and indicated she would likely have to 

testify about it if she wanted a duress instruction. After 

consulting with Cleveland, her counsel advised the trial court she 

was unwilling to testify because she feared Thomas and her 

codefendants. As an alternative, counsel requested an 

instruction that evidence of duress may negate the specific intent 

required for torture, even if the evidence failed to support a 

complete duress defense. This request, too, was denied. 

After the verdicts, counsel filed a motion for new trial, 

asserting among other things, that denial of the duress 

instruction violated Cleveland’s right to due process, a fair trial, 

and competent counsel. The motion for new trial was denied. 

C. There Was No Evidence of a Threat of Imminent 

Harm

We agree with the trial court’s finding there was 

insufficient evidence of duress to support a jury instruction on 

the defense. There was no evidence of a direct or implied threat 

to Cleveland, much less that the threat was of imminent great 

bodily injury or death.

7

We are guided by the Supreme Court’s analysis of similar 

facts in People v. Powell (2018) 6 Cal.5th 136, 164–165 (Powell). 

In Powell, the defendant claimed he acted under duress when he 

shot the victim during a robbery. The Supreme Court found the 

evidence did not support an inference of duress because there was 

no evidence the codefendants were armed at the crime scene, and 

7 For purposes of this opinion, we need not determine 

whether section 26 limits the defense of duress only to fear of 

immediate death and not to situations involving fear of great 

bodily injury. As discussed below, there was no evidence anyone 

threatened Cleveland with immediate death or great bodily 

injury.
18

the evidence showed the defendant did not claim in his police 

statement the codefendants threatened him in any way, only that 

he felt “pressured.” Though the evidence showed the 

codefendants “coached” him to shoot the victim, the high court 

found “coaching is far from duress.” (Id. at p. 165.) The court 

noted the version of events in the defendant’s anticipated 

testimony included elements of duress. However, he elected not

to testify and thus that testimony was not in the record. 

Accordingly, the court concluded the trial court did not err to 

refuse to instruct the jury on duress. (Ibid.) 

In People v. Otis (1959) 174 Cal.App.2d 119 (Otis), Justice 

Tobriner, writing for the First District, also found an instruction 

on duress was not required. There, the defendant prison inmate 

was convicted of possession of three knives and a file. He 

testified another inmate stuck the point of a knife in him and told 

him that it was only a sample of what he would get if he did not 

hide the knives. (Id. at pp. 121–122.) The court found the threat 

of harm was not immediate. At the time of the threat, the inmate 

was in a different cell and the knife only pricked the defendant. 

The inmate was then moved to an entirely different part of the 

prison where he was murdered. The court found any threat of 

harm ended with the inmate’s death. Moreover, “the threats 

themselves had stretched over a period from May to September, 

so that to some extent they became stale and partially remote”

even before the inmate was killed. In any event, the defendant 

could have sought the protection of prison officials at any time

but did not. (Id. at p. 126.)

The evidence here was likewise insufficient to require an 

instruction on duress. No one directly threatened Cleveland after 

the initial interrogation at the Moonlight Motel. Indeed, there 

was no evidence she was a suspect after the first day. To the 

contrary, Wells was asked whether Davis’s phone call on the 
19

fourth day increased Liddell’s suspicions about Cleveland’s

involvement in the robbery. Wells responded, “No. She didn’t do 

anything to Netta, didn’t say anything to Netta. Still focused her 

attention on me. And that’s when she put on the gloves and 

began to hit me, but she didn’t threaten Netta or do anything 

towards her.” Indeed, Cleveland was trusted to watch over Wells 

unsupervised. 

Further, Powell informs us that Liddell’s instructions to 

Cleveland to restrain and harm Wells were “far from duress.” 

Although Cleveland claims she believed she was under threat of 

imminent harm, there was no evidence of her state of mind 

because she did not testify to it nor did anyone else testify she 

told them she feared for her life or safety. 

Even if an implied threat could be inferred from the totality 

of the circumstances, Otis informs us that the threat of harm was 

not sufficiently imminent. Instead, any threat to Cleveland 

during the first night had become “stale and partially remote” in 

the intervening days. We agree with the trial court that the 

evidence did not support an inference that Cleveland faced an 

imminent threat of harm when Wells, who arguably was under 

far greater threat, did not feel harm to her was imminent until 

Day 4. When asked why she did not run to the police station on 

Day 3 after she had been restrained and hit in the knees by 

Liddell, Wells testified she did not “know that there was a real 

reason to run away.” Additionally, as in Otis, Cleveland could 

have sought the protection of authorities but did not. We 

conclude the evidence failed to demonstrate an imminent threat 

of harm to Cleveland that necessitated an instruction on duress.

We likewise reject Cleveland’s argument that the trial 

court erred when it refused to instruct the jury that evidence of 

duress may negate the specific intent required for torture, even if 

the evidence failed to support a complete duress defense. Under 
20

appropriate circumstances, “a trial court may be required to give 

a requested jury instruction that pinpoints a defense theory of 

the case by, among other things, relating the reasonable doubt 

standard of proof to particular elements of the crime charged.

[Citations.] But a trial court need not give a pinpoint instruction 

if it is argumentative [citation], merely duplicates other 

instructions [citation], or is not supported by substantial evidence 

[citation].” (People v. Bolden (2002) 29 Cal.4th 515, 558.) For the 

same reasons set forth above, the trial court was not required to 

give the pinpoint instruction requested by trial counsel because 

there was insufficient evidence to support it. 

II. Joinder Was Proper

Cleveland next argues the trial court violated her 

constitutional rights when it declined to sever her trial from that 

of her codefendants’. Cleveland argues severance was required 

because Liddell’s defense was antagonistic to hers. At trial, 

Liddell testified Cleveland attacked Wells with a knife on her 

own. As a result, she claims, the prosecution’s burden of proof to 

show Cleveland committed torture and assault was lightened 

while Cleveland’s defense that she only acted upon Liddell’s 

orders was weakened. Cleveland also argues she feared Liddell 

to such an extent it prevented her from testifying during the joint 

trial, resulting in a violation of her due process rights. We are 

not persuaded.

A. Governing Law

“ ‘Our Legislature has expressed a preference for joint 

trials. [Citation.] Section 1098 provides in pertinent part:

“When two or more defendants are jointly charged with any 

public offense, whether felony or misdemeanor, they must be 

tried jointly, unless the court order[s] separate trials.” The court 

may, in its discretion, order separate trials if, among other 

reasons, there is an incriminating confession by one defendant 
21

that implicates a codefendant, or if the defendants will present 

conflicting defenses . . . . [¶] We review a trial court’s denial of a 

severance motion for abuse of discretion based on the facts as 

they appeared when the court ruled on the motion. [Citation.]

If we conclude the trial court abused its discretion, reversal is 

required only if it is reasonably probable that the defendant 

would have obtained a more favorable result at a separate trial. 

[Citations.] If the court’s joinder ruling was proper when it was 

made, however, we may reverse a judgment only on a showing 

that joinder “ ‘resulted in “gross unfairness” amounting to a 

denial of due process.’ ” [Citation.]’ [Citation.]” (People v. 

Homick (2012) 55 Cal.4th 816, 848 (Homick); People v. Letner and 

Tobin (2010) 50 Cal.4th 99, 150.)

“Severance is not required simply because one defendant in 

a joint trial points the finger of blame at another. ‘ “ ‘Rather, to 

obtain severance on the ground of conflicting defenses, it must be 

demonstrated that the conflict is so prejudicial that [the] defenses 

are irreconcilable, and the jury will unjustifiably infer that this 

conflict alone demonstrates that both are guilty.’ ” [Citation.] 

When, however, there exists sufficient independent evidence 

against the moving defendant, it is not the conflict alone that 

demonstrates his or her guilt, and antagonistic defenses do not 

compel severance.’ [Citation.]” (Homick, supra, 55 Cal.4th at p. 

850; see People v. Letner and Tobin, supra, 50 Cal.4th at p. 150.)

B. The Trial Court Did Not Abuse Its Discretion in 

Denying the Motion to Sever

Because Cleveland and Liddell were charged with having 

committed common crimes that involved the same victim and the 

same series of events, the joinder of their cases was proper. 

(Homick, supra, 55 Cal.4th at p. 850.) Indeed, this scenario 

presents the “classic” case for joinder. (People v. Letner and 

Tobin, supra, 50 Cal.4th at p. 150.) The trial court did not abuse 
22

its discretion when it denied Cleveland’s severance motion before 

trial. Neither did its decision result in “gross unfairness” during 

the trial. 

First, Cleveland’s guilt was not shown solely by Liddell’s 

attempt to cast blame on her. Independent evidence showed 

Cleveland was involved from the beginning and actively 

participated in the crimes against Wells. She was with Liddell at 

the time of the robbery and the subsequent attempt on Thomas’s 

life. She accompanied Thomas and Liddell to Thomas’s home in 

Hemet where Thomas and his friends demanded to know who 

orchestrated the plot against him. Liddell also testified 

Cleveland had an independent grievance against Wells because 

her friend assaulted Cleveland and Cleveland believed Wells 

could have stopped it. 

Although Liddell suspected Cleveland was complicit with 

Wells on that first night at the motel, Cleveland was quickly 

cleared of suspicion and freed. For the next four days, Cleveland 

was left alone with Wells but failed to attempt to help Wells 

escape or leave the group herself. It is also undisputed she 

participated in restraining and beating Wells. 

Aside from the independent evidence against her, 

Cleveland’s argument that Liddell’s antagonistic defense 

warrants severance is unavailing. Although Liddell testified she 

did not demand Cleveland attack Wells and was shocked when 

Cleveland brought out a knife to cut her, that testimony did not 

create an irreconcilable conflict such that the jury would 

unjustifiably infer the conflict alone demonstrated both 

defendants were guilty. (People v. Hardy (1992) 2 Cal.4th 86, 

168.) “ ‘ “That different defendants alleged to have been involved 

in the same transaction have conflicting versions of what took 

place, or the extent to which they participated in it, vel non, is a 

reason for rather than against a joint trial. If one is lying, it is 
23

easier for the truth to be determined if all are required to be tried 

together.” ’ [Citations.]” (People v. Morganti (1996) 43 

Cal.App.4th 643, 674–675.) Here, Liddell’s primary defense at 

trial centered on her fear that she would suffer the same fate as 

Wells if she did not obey Thomas’s instructions. No irreconcilable 

conflict was created because the jury could have accepted 

Liddell’s defense without also convicting Cleveland. 

Further, Cleveland was not deprived of her due process 

rights because she chose not to testify in a joint trial with Liddell. 

Cleveland presents no authority for the proposition that a 

defendant’s own decision not to testify in a joint trial results in a 

due process violation. 

Instead, Cleveland highlights a comment by the trial court 

when it denied the motion to sever prior to trial: “There is

circumstantial evidence that [Ms. Cleveland] was restrained and 

under duress. You could make that argument without her even 

testifying.” Cleveland argues the trial court’s subsequent refusal 

to instruct the jury on duress compromised her entire defense, 

resulting in “gross unfairness.” As we discussed above, the trial 

court’s refusal to give a duress instruction was proper because 

there was insufficient evidence of a threat of immediate harm to 

Cleveland. Moreover, Cleveland could have presented evidence of 

her state of mind through comments she made to other 

individuals. She did not. As a result, there was no evidence of 

her state of mind, whether by her own testimony or another 

witness’s testimony. 

III. Substantial Evidence Supports the Conviction for 

Torture

Cleveland next challenges her conviction for torture, 

arguing there was insufficient evidence of her specific intent to 

cause cruel or extreme pain and suffering to Wells for the 

purpose of revenge, extortion, persuasion, or for any sadistic 
24

purpose as required by section 206. We find substantial evidence 

supports the jury’s finding. 

A. Applicable Law

“ ‘In reviewing the 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.” ’ [Citation.] ‘Substantial evidence’ is evidence which is 

‘ “reasonable in nature, credible, and of solid value.” ’ [Citation.]” 

(People v. Morgan (2007) 42 Cal.4th 593, 613–614.)

Under section 206, “[e]very person who, with the intent to 

cause cruel or extreme pain and suffering for the purpose of

revenge, extortion, persuasion, or for any sadistic purpose, 

inflicts great bodily injury as defined in Section 12022.7 upon the 

person of another, is guilty of torture. [¶] The crime of torture 

does not require any proof that the victim suffered pain.” 

“Torture does not require the defendant act with 

premeditation and deliberation, and it does not require that he 

intend to inflict prolonged pain. [Citation.]” (People v. Massie

(2006) 142 Cal.App.4th 365, 371.) “The intent with which a 

person acts is rarely susceptible of direct proof and usually must 

be inferred from facts and circumstances surrounding the offense.

[Citations.]” (Ibid.)

B. Substantial Evidence Supported the Jury’s 

Finding Cleveland Harbored the Requisite Intent

Cleveland asserts the evidence shows she acted under 

duress and lacked the specific intent necessary for the crime. 

We find the record contains substantial evidence of the requisite 

intent. The evidence shows Cleveland helped Liddell restrain 

Wells and witnessed Liddell use a taser on and punch Wells over 
25

four days. Cleveland also “admittedly” participated in harming 

Wells. 

Wells testified Liddell did not tell Cleveland what to do or 

threaten Cleveland before she began to punch and kick her. 

Wells recalled Cleveland put on her shoes before the beating, 

indicating she gave thought to how she would harm Wells. For a 

“few minutes,” Cleveland punched her head and kicked her in the 

back and side. Cleveland also participated in the group beating 

that occurred shortly after she and Lewis each took turns 

striking Wells. Wells was again tased, kicked, and punched until 

she lost consciousness. 

“[T]he intent to cause severe pain need not be proven by 

direct evidence, but can be inferred from the circumstances of the 

offense, such as a focused attack on a particularly vulnerable 

area.” (People v. Hamlin (2009) 170 Cal.App.4th 1412, 1429.) In 

Hamlin, the court held substantial evidence supported a finding 

of an intent to commit torture where the defendant targeted the 

victim’s face and areas of her body that he knew were already 

hurt. (Id. at p. 1428.) Likewise, Cleveland targeted Wells’s face 

as well as the back of her head even after she witnessed Liddell 

punch her in the eye only hours before. 

Additionally, substantial evidence supports a finding 

Cleveland harmed Wells for the purpose of revenge. Liddell 

testified Cleveland blamed Wells for the robbery. Liddell also 

testified Cleveland was angry at Wells because she was 

previously assaulted by one of Wells’s friends and believed Wells 

should have stopped it. 

We are not persuaded to change our conclusion by 

Cleveland’s assertion she participated in torturing Wells because 

“she was afraid not to.” That there may have been evidence of an 
26

alternate or additional intent does not negate our finding that 

substantial evidence supports the jury’s conclusion that 

Cleveland intended to inflict cruel or extreme pain and suffering. 

Neither does People v. Pre (1994) 117 Cal.App.4th 413 (Pre), alter 

our analysis. Cleveland cites Pre for the proposition that there 

must be “no other apparent purpose” for the crime other than 

“revenge or sadistic pleasure” for a torture conviction to stand. 

Cleveland turns Pre on its head. Pre does not stand for the 

proposition that the intent element of torture is not supported if 

there is any other apparent purpose for a defendant’s actions. 

Again, evidence that an alternate or additional intent may exist 

does not negate our conclusion that substantial evidence supports 

a finding that Cleveland held the requisite intent for torture. 

IV. Section 654 Does Not Preclude Separate Sentences 

on Counts 2 through 4

Cleveland contends her sentences on counts 2 through 4 

should be stayed pursuant to section 654 because the offenses 

constituted an indivisible course of conduct with count 1 for 

torture and involved the same objective shared between her and 

Liddell: to extract information from Wells regarding the robbery 

and shooting. We disagree. 

A trial court’s section 654 determination is upheld if 

supported by substantial evidence. (People v. Brents (2012) 53 

Cal.4th 599, 618; People v. Coleman (1989) 48 Cal.3d 112, 162.) If 

the court makes no express section 654 finding, a finding that the 

crimes were divisible and thus subject to multiple punishments is 

implicit in the judgment and must be upheld if supported by 

substantial evidence. (People v. Lopez (2011) 198 Cal.App.4th 

698, 717.)
27

“Section 654 prohibits multiple punishment for a single 

physical act that violates different provisions of law.” (People v. 

Jones (2012) 54 Cal.4th 350, 358.) This prohibition extends to 

separate punishment for multiple crimes “committed during ‘a 

course of conduct deemed to be indivisible . . . .’ ” (People v. 

Harrison (1989) 48 Cal.3d 321, 335); People v. Islas (2012) 210 

Cal.App.4th 116, 129.) Where the defendant has only a single 

intent and objective and all her offenses were incidental to that 

single intent and objective, she may be punished only once. 

(People v. Britt (2004) 32 Cal.4th 944, 951–952, disapproved on 

another ground in People v. Correa (2012) 54 Cal.4th 331.)

Alternatively, “a course of conduct divisible in time, 

although directed to one objective, may give rise to multiple 

violations and punishment.” (People v. Beamon (1973) 8 Cal.3d 

625, 639, fn. 11 (Beamon).) “This is particularly so where the 

offenses are temporally separated in such a way as to afford the 

defendant opportunity to reflect and to renew his or her intent 

before committing the next one, thereby aggravating the violation 

of public security or policy already undertaken.” (People v. Gaio

(2000) 81 Cal.App.4th 919, 935; People v. Kwok (1998) 63 

Cal.App.4th 1236, 1255.)

In In re William S. (1989) 208 Cal.App.3d 313, 315-316

(William S.), the defendant entered a home, stole several items, 

and left the front door unlocked when he departed. He returned 

several hours later, entered through the unlocked door, took 

several more items, and again departed. The defendant argued 

he committed only one burglary, but that even if he had 

committed two, he could be sentenced only once because leaving 

the door unlocked during the first entry evinced a single criminal 
28

intent because it was done to facilitate the second entry. (Id. at 

pp. 318–319.) 

The court rejected these arguments. It first distinguished 

the multiple entries in the case before it from a hypothetical case 

involving multiple entries within a short period of time in order 

to load a getaway vehicle. (William S., supra, 208 Cal.App.3d at 

p. 317.) The hypothetical scenario could be viewed as one 

continuous course of conduct and one crime. (Ibid.) But the case 

before it involved two entries made several hours apart, with 

ample opportunity for the defendant to reflect after the first 

entry, and therefore the two entries constituted two burglaries.

(Ibid.) Additionally section 654 did not apply because the crimes 

were committed “by means of two distinct and different entries, 

separated both in time and place, and with the intent to steal 

entirely different property.” (Id. at p. 319.) The court further

noted “the grave risks of violent confrontation engendered in the 

initial burglary were repeated in the second,” and that, “[t]he 

second entry doubled the danger of violent confrontation.” (Id. at 

pp. 318–319.)

The court in People v. Trotter (1992) 7 Cal.App.4th 363 

(Trotter) found section 654 did not apply even in a case where 

mere moments separated the crimes. There, the defendant shot 

three times in rapid succession at a pursuing officer as he led 

police on a high-speed car chase. (Id. at pp. 366–367.) On 

appeal, he argued he should not have been sentenced 

consecutively in two of the three assaults, arguing they were part 

of a single course of conduct and were incidental to one objective. 

(Id. at p. 366.) 
29

The Trotter court rejected this contention, reasoning:

“The purpose behind section 654 is ‘to insure that a 

defendant’s punishment will be commensurate with his 

culpability. [Citation.]’ [Citation.] Defendant’s conduct became 

more egregious with each successive shot. Each shot posed a 

separate and distinct risk to [the pursuing officer] and nearby 

freeway drivers. To find section 654 applicable to these facts 

would violate the very purpose for the statute’s existence. [¶] 

Furthermore, this was not a case where only one volitional act 

gave rise to multiple offenses. Each shot required a separate 

trigger pull. All three assaults were volitional and calculated, 

and were separated by periods of time during which reflection 

was possible. None was spontaneous or uncontrollable. 

‘[D]efendant should . . . not be rewarded where, instead of taking 

advantage of an opportunity to walk away from the victim, he 

voluntarily resumed his . . . assaultive behavior.’ ” (Trotter, 

supra, 7 Cal.App.4th at pp. 367–368.)

As in William S. and Trotter, Cleveland’s conduct was 

separated by periods of time during which Cleveland had the 

opportunity to reflect and walk away. The events occurred over 

five days. Aside from the first night, Cleveland was not 

restrained and had ample opportunity to reflect on the events as 

they occurred and leave. Indeed, she was left alone with Wells on 

the second day while Arnold and Liddell investigated the 

shooting. On the third day, she accompanied Wells to the 

restroom in a restaurant located across the street from a police 

station. Rather than take the opportunity to leave, she continued 

to aid Liddell to restrain Wells and move her from place to place. 

On the fourth day, Cleveland put on her shoes and began to 

punch and kick Wells upon Liddell’s urging. She then watched 
30

Lewis punch Wells to “bust the other eye” and still chose to 

participate in the group beating that ensued. She then remained 

at the West Boulevard apartment that night while Wells lay 

unconscious on the floor and only left with Liddell the next day. 

We agree with Trotter that Cleveland should not be 

rewarded where, instead of taking advantage of multiple 

opportunities to walk away from the situation, she voluntarily 

participated in the offenses. (Trotter, supra, 7 Cal.App.4th at pp. 

367–368.) We are not persuaded by People v. Mejia (2017) 9 

Cal.App.5th 1036 (Mejia) to reach a different conclusion. 

Cleveland cites Mejia to argue section 654 applies where the 

underlying crimes were components of the course of conduct that 

constituted torture. Mejia did not address the Supreme Court’s 

holding that a course of conduct divisible in time, although 

directed to one objective, may give rise to multiple violations and 

punishment where the defendant is afforded the opportunity to 

reflect and renew her intent. (Beamon, supra, 8 Cal.3d at p. 639, 

fn. 11.) Mejia does not invalidate Beamon or our analysis. 

DISPOSITION

The matter is remanded with directions to the trial court to 

exercise its discretion to impose or strike the great bodily injury 

enhancement under section 12022.7, subdivision (a), as to counts 

2 through 4. The judgment is otherwise affirmed. 

BIGELOW, P. J.

We concur:

 GRIMES, J. WILEY, J.