1

Filed 7/13/15 P. v. Neaves CA3

NOT TO BE PUBLISHED

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

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 This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

THE PEOPLE,

Plaintiff and Respondent,

v.

LORENZO EDWARDO NEAVES,

Defendant and Appellant.

C071676

(Super. Ct. No. 11F06194)

A jury convicted defendant Lorenzo Edwardo Neaves of oral copulation with 

T.M., a child 10 years of age or younger (Pen. Code, § 288.7, subd. (b)--count one),1 but 

acquitted him of both digital penetration of T.M. (§ 288.7, subd. (b)--count two) and 

touching T.M.’s vagina (§ 288, subd. (a)--count three). In a trial by court, the court found 

defendant had a prior strike conviction (first degree burglary). Defendant was sentenced 

to 30 years to life.

 

1

 Undesignated statutory references are to the Penal Code.
2

On appeal, defendant contends the court erred by (1) instructing the jury, in 

accordance with People v. Moore (2002) 96 Cal.App.4th 1105 (Moore), to continue 

deliberating after it declared itself deadlocked, (2) admitting evidence of uncharged 

sexual offenses, and (3) miscalculating his presentence custody credits by two days. We 

reject defendant’s first two contentions, but agree with his third claim.

Statement of Facts

Prosecution’s Case

Charged Acts

In July 2011, Ty.L. was living in an apartment with her nine-year-old daughter

T.M., her two sons aged four and five, a female roommate, and defendant who was her 

boyfriend. On July 7, several people were partying at the apartment because Ty.L. was 

moving out. Catherina Wilson and her boyfriend, Charles Fisher, were at the apartment 

and were intending to stay the night. Ty.L. told Wilson that when she and Fisher wanted 

to lie down she could take T.M. off of the bed and put her on the couch in the living 

room. Around 10:00 or 11:00 p.m., Wilson put T.M. on the couch.

T.M. testified that while she was sleeping on the couch, she was awakened by 

defendant kneeling beside her and taking off her pajamas, which consisted of a 

combination skirt and shirt and her underwear. Defendant touched her vagina with his 

hand, poked inside her vagina with his finger, which hurt, and licked her vagina. This 

activity lasted about 10 minutes. Defendant told her not to tell anyone and then went 

back into Ty.L.’s bedroom. T.M. cried, put her skirt and underwear back on, but got her 

underwear on backwards, which others noticed after she got up in the morning.

That same morning, T.M. told her mother and several others that “Gator,” 

defendant’s nickname, had used his hand to open her vagina and then licked her vagina. 

An investigating officer testified that T.M. told him that defendant had orally copulated 

her, but she denied that digital penetration had occurred. T.M. denied having told the 

officer that digital penetration had not occurred.
3

Uncharged Acts

Nathan B., 24 years old at the time of trial, testified he was defendant’s brother. 

Nathan denied that defendant had done anything to him sexually when he was eight or 

nine years old. However, David Ford, formerly a detective with the Sacramento Police 

Department, testified that when Nathan was nine years old he interviewed him at an 

elementary school regarding his having been sexually assaulted. Nathan told Ford that 

while Nathan was lying on the bed in defendant’s bedroom playing with some puppies, 

defendant masturbated and got “cum” on one of the puppy’s heads. Defendant then 

“made the dog suck his penis.” Defendant, who was wearing boxer shorts, then got 

behind Nathan and started humping him. Nathan told their mother and she called the 

police. Nathan B. also told Ford that when he was eight years old, defendant got into the 

shower with him and put “the dick on my bootie and pushed it inside my butt.”

Jessica J., 26 years old at the time of trial, testified that in March 1999 she was 

about 13 years old and a student in junior high school and had gone to Rancho Cordova 

High School looking for her cousin and a friend when she saw defendant, with whom she 

was acquainted. Defendant offered to help her look and took her hand. As they walked 

by a bathroom defendant pushed her partway into it, grabbed her hand and put it down 

his pants. When she pulled away he tried to unbutton her pants, but she was able to pull 

away and run. After finding and telling her friend what happened, she was taken to the 

office to report the matter to the police.

Defense Case

Tianna Saffel, who was pregnant with defendant’s child, testified that about a 

week after defendant purportedly molested T.M. she moved with him to Reno. There, 

they had an on-and-off relationship until he was arrested in October 2011 on the 

molestation charge. While in Reno, defendant received text messages and naked 

photographs from a cell phone with a phone number similar to Ty.L.’s. Saffel also 

overheard the woman say, “You are not with me, how could you leave us, how could you 
4

leave my children.” After defendant’s arrest, Saffel examined defendant’s cell phone and 

discovered text messages that he was still communicating in a romantic way with the 

woman who she believed was Ty.L.

Defendant’s mother, Lynette Baker, testified that Ty.L. called her and asked her to 

come to Ty.L.’s apartment. Baker complied and Ty.L. took her into a bedroom and told 

her that defendant had touched her daughter. Baker asked Ty.L. if she had called the 

police and she responded that she had not. Baker asked T.M. what happened and T.M 

said that defendant had touched her. Baker went home and, for the purpose of protecting

defendant, called the police.

The next day, Ty.L. came to Baker’s apartment and told Baker that she had made 

up the accusations against defendant because she did not want defendant to move with 

her. Ty.L. was chuckling as she told this to Baker. Baker told Ty.L. that she should call 

the police and let them know the accusations were made up.

Patricia Antonetti testified that she was an employee of Folsom Cordova Unified 

School District and defendant was one of the students she worked with. In March of 

1999 she saw defendant and a female against a wall hugging and kissing. Antonetti had 

no recollection of whether force was being used, but stated if the contact had appeared 

forceful she would have intervened.

Discussion

I

Defendant contends that the trial court’s instructing the jury, over his objection, to 

continue deliberating after it had declared itself deadlocked coerced the jury into reaching 

a decision, thereby violating his right to due process. We reject the contention.

Trial testimony was given over four days, ending on June 11, 2012. On June 12 

the trial court completed instructing the jury and the jury commenced deliberations. On 

June 13, at noon, the jury sent the court a note stating the jury could not come to a 

unanimous decision. The court informed the parties that it was going to give “the 
5

Firecracker instruction,” an instruction approved by this court in Moore, which directed 

the jury to continue deliberations. Defendant objected on grounds that giving the 

instruction “invades the province of the jury” and “impermissibly intrudes on the jury’s 

deliberations” in violation of federal and state due process and equal protection clauses. 

Unswayed, the trial court gave the Moore instruction, which, in its entirety, read as 

follows: 

“In the course of your further deliberations, you should not hesitate to re-examine 

your own views or to request your fellow jurors to re-examine their’s. You should not 

hesitate to change a view you once held if you are convinced it is wrong, or to suggest 

that other jurors change their views if you are convinced they are wrong.

“Fair and effective jury deliberations require a frank and forthright exchange of 

views. I remind you of that discussion we had earlier about the ideal juror respecting the 

views of every jurors [sic] and respecting their own views.

“As I previously instructed you, each of you must decide the case for yourself, and 

you should do so only after a full and complete consideration of all of the evidence with 

your fellow jurors. It is your duty as jurors to deliberate with the goal of arriving at a 

verdict on the charges, if you can do so without violence to your individual judgment.[2] 

 

2

 In the original reporter’s transcript filed in this case the last sentence of the quote 

omitted the italicized “if” and instruction read: “It is your duty as jurors to deliberate 

with the goal of arriving at a verdict on the charges. You can do so without violence to 

your individual judgment.” After the briefs in this case were filed, the court reporter filed 

a correction to the transcript such that the instruction reads as we have quoted. Relying 

on the uncorrected version of the instruction, defendant has argued the instruction’s 

omission of the word “if” caused the instruction to become “improperly coercive.” 

Although we have not heard anything from defendant with regard to the reporter’s 

correction, the corrected record obviates the need for us to address this argument.
6

“Both the People and the defendant are entitled to the individual judgment of each 

juror. As I previously instructed you, you have the absolute discretion to conduct your 

deliberations in any way you deem appropriate. 

“May I suggest that since you have been under--since you have not been able to 

arrive at a verdict using the method you have chosen that you consider changing the 

methods you have been following, at least temporarily and trying new methods.

“For example, you may wish to consider having different jurors lead the 

discussions for a period of time, or you may wish to experiment with reverse role playing 

by having those on one side of an issue present and argue the other side’s position and 

vice versa. This might enable you to better understand the other’s positions. 

“My suggestion you should consider changes in your methods of deliberations, I 

want to stress that I am not dictating or instructing you as to how to conduct your 

deliberations. I merely suggest that you may find it productive to do whatever is 

necessary to ensure each juror has a full and fair opportunity to express his or her views 

and consider and understand the views of the other jurors.

“I also suggest you re-read CALCRIM Instruction 200, CALCRIM Instruction 

3550. These instructions pertain to your duties as jurors, and they make 

recommendations on how you should deliberate. 

“The integrity of a trial requires that jurors at all times during their deliberations 

conduct themselves as required by the instructions. 

“CALCRIM Instruction 200 defines duties of a juror.

“The decision the jury renders must be based on the facts and the law. You must 

determine what facts have been proved from the evidence received in the trial, and not 

from any other source. 

“A fact is something proved by the evidence or by stipulation. Second, you must 

apply the law I state to you to the facts as you determine them, and in this way arrive at 
7

your verdict. You must accept and follow the law as I state it to you regardless of 

whether you agree with the law. 

“If anything concerning the trial said by the attorneys in their arguments or at any 

other time during the trial conflicts with my instructions on the law, you must follow my 

instructions. 

“CALCRIM 3550 defines the jury’s duty to deliberate and recommends how 

jurors should approach their task. The decisions you make in this case must be based on 

the evidence received in the trial and the instructions given by the Court. These are 

matters--these are the matters this instruction requires you to discuss for the purpose of 

reaching a verdict. 

“You should keep in mind the recommendations this instruction suggests when 

considering the additional instructions, comments and suggestions I have made in the 

instructions now presented to you. I hope my comments and suggestions may have been 

some assistance to you. 

“You are ordered to continue your deliberations at this time. If you have any other 

questions, concerns, requests, or any communication you desire to report to me, please

put those in writing on the form my bailiff has provided you with. Have them signed and 

dated by your foreperson, and then please notify the bailiff.” (Italics added.)

Defendant argues the Moore instruction was coercive because it indicated the 

court’s preference for a verdict, told the jurors to reexamine their view and change it if 

they were convinced that it was wrong, told them that it was their duty to deliberate with 

the goal of reaching a verdict, and failed to give the jury a cautionary instruction that a 

hung jury was a permissible result. The argument is meritless.
8

As to defendant’s complaint that the instructions show the court’s “preference for 

a verdict,” rule 2.1036 of the California Rules of Court3supports such a preference. Rule 

2.1036 provides in pertinent part: “After a jury reports that it has reached an impasse in 

its deliberations, the trial judge may, in the presence of counsel, advise the jury of its duty 

to decide the case based on the evidence while keeping an open mind and talking about 

the evidence with each other.” In accordance with rule 2.1036, the court instructed the 

jury as follows: “As I previously instructed you, each of you must decide the case for 

yourself, and you should do so only after a full and complete consideration of all of the 

evidence with your fellow jurors. It is your duty as jurors to deliberate with the goal of 

arriving at a verdict on the charges, if you can do so without violence to your individual 

judgment.”

There is no significant distinction between rule 2.1036 and the instruction given 

by the court. Both the rule and instruction simply represent the common-sense 

proposition that to the extent one becomes convinced that their position is wrong, change 

it.

As to defendant’s complaint that the Moore instruction was coercive because “[i]t 

told [the jury] that it was their duty to deliberate with a goal of reaching a verdict” 

without informing them “that a hung jury was a permissible result,” again he is wrong. In 

People v. Gurule (2002) 28 Cal.4th 557, the California Supreme Court observed that such 

an instruction need not be given because it could “improperly diminish[] the jury’s duty 

to deliberate and reach a verdict if possible.” (Id. at p. 660.) Accordingly, there was no 

error in not so instructing the jury.

Finally, we note, as do the People, that defendant’s citations to United States v. 

Bonam (9th Cir. 1985) 772 F.2d 1449, at page 1450, and United States v. Mason (9th Cir. 

 

3

 Undesignated rule references are to the California Rules of Court.
9

1981) 658 F.2d 1263, at page 1268, as authorities for the proposition that the trial court’s 

failure to instruct the jury that a hung jury was a permissible result, “weighs heavily in 

favor of the conclusion that the defendant’s right to a fair trial and impartial jury has been 

violated,” do not stand for any such proposition. Nor has our research disclosed any case 

that does. 

In sum, defendant has failed to establish that the Moore instruction was coercive in 

any aspect. Accordingly, his challenge on such grounds is rejected.

II

Defendant contends the trial court abused its discretion under Evidence Code 

section 3524in admitting evidence of his prior uncharged sexual offenses against Nathan

B. and Jessica J. for the purpose of proving his criminal disposition to commit sex 

offenses under Evidence Code section 1108, thereby violating his right to due process.

As to Nathan B., defendant argues that “although the evidence [of the acts] was 

not particularly inflammatory,” evidence of them ran the danger of the jury’s wanting to 

convict him as “revenge” for his having escaped punishment for the offenses; the 16 and 

19 year remoteness of the acts deprived him of the ability to defend himself because of an 

inability to recall facts;5 and the acts being only generally similar to the charges in the 

present case severely decreased their relevance. Indeed, as defendant sees it, the acts 

were no more than “teenage hormones and roughhousing between brothers.”

 

4

 Evidence Code section 352 provides: “The court in its discretion may exclude 

evidence if its probative value is substantially outweighed by the probability that its 

admission will (a) necessitate undue consumption of time or (b) create substantial danger 

of undue prejudice, of confusing the issues, or of misleading the jury.”

5

 In his opening brief, defendant cited the offenses against Nathan B. and Jessica J. as 

being 23 and 26 years old and 26 and 29 years old. Following the People’s noting 

defendant’s math was inaccurate, defendant, in his reply brief, acknowledges the error, 

but still maintains his remoteness argument.
10

As to Jessica J., defendant argues the evidence’s “probative value [was] so 

minimal, that it was non-existent” because the conduct was nothing more than a 15-yearold boy wanting to have sex with his 13-year-old female friend or girlfriend, which is 

“common teenage behavior which is not even criminalized.”

Defendant’s section 352 analysis is far from persuasive. “Before section 1108 was 

enacted, Evidence Code section 1101 governed the admission of prior criminal conduct, 

and a body of law developed concerning how similar the prior conduct had to be to the 

charged crime; the required degree of similarity varied depending on the use for which 

the evidence was offered. [Citation.] ‘All of that radically changed with respect to sex 

crime prosecutions with the advent of section 1108. . . . [S]ection 1108 now “permit[s] 

the jury in sex offense . . . cases to consider evidence of prior offenses for any relevant 

purpose” [citation], subject only to the prejudicial effect versus probative value weighing 

process required by [Evidence Code] section 352.’ [Citation.] ‘In enacting Evidence 

Code section 1108, the Legislature decided evidence of uncharged sexual offenses is so 

uniquely probative in sex crimes prosecutions it is presumed admissible without regard to 

the limitations of Evidence Code section 1101.’ [Citation.] Or, as another court put it, 

‘[t]he charged and uncharged crimes need not be sufficiently similar that evidence of the 

latter would be admissible under Evidence Code section 1101, otherwise Evidence Code 

section 1108 would serve no purpose. It is enough the charged and uncharged offenses 

are sex offenses as defined in section 1108.’ [Citation.]” (People v. Loy (2011) 52 

Cal.4th 46, 63.)

Nathan B. was nine years old when defendant sodomized him in the shower and 

Jessica J. was 13 years old when defendant forcefully pulled her into a bathroom and 

tried to put her hand down his pants to touch his penis. These acts are a far cry from 

“roughhousing between brothers” and “common teenage behavior which is not even 

criminal”; instead, the acts constitute, at the least, felony conduct under section 288, 

subdivision (a), lewd and lascivious conduct with a child under age of 14 years. And 
11

since section 288 is an offense specified in Evidence Code section 1108, subdivision 

(d)(1)(A), evidence of defendant’s prior commission of such act or acts is “uniquely 

probative,” and therefore highly relevant as to his commission of the presently charged 

acts.

As to defendant’s claim that the jurors were inclined to convict him out of revenge 

for the lack of punishment for the uncharged offenses, this is not a reasonable possibility 

given defendant’s admission that the evidence of the uncharged acts was “not particularly 

inflammatory” and that the jury acquitted him of the other two felony charges.

Accordingly, we find no abuse of the court’s discretion in admitting the uncharged 

offenses.

III

Defendant contends, and the People agree, that he is entitled two more days of 

presentence custody credit. We too agree. The trial court awarded defendant 273 days of 

actual custody plus 40 days for conduct, a total of 313 days.6 The calculation apparently 

left out the day of defendant’s arrest in Washoe County, Nevada. We will direct the court 

to credit defendant with 274 days actual custody plus 41 days for conduct, a total of 315 

days of presentence custody credit.

 

6

 Because a violation of section 288.7, subdivision (b) is a violent felony (§§ 288.7, 

subd. (b), § 289, subds. (k)(1), (k)(2)), defendant’s conduct credits are limited to 15 

percent of days earned.
12

Disposition

The trial court is directed to award defendant one additional day for actual custody 

and one additional day for conduct, a total of 315 days of presentence custody. The trial 

court is directed to prepare an amended abstract of judgment and forward a copy of the 

amended abstract to the Department of Corrections and Rehabilitation. In all other 

respects the judgment is affirmed.

 BLEASE , J.

We concur:

 RAYE , P. J.

 HULL , J.