1

Filed 7/24/15

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

GLEISTON PORCINODE ANDRADE,

Defendant and Appellant.

 A135438

 (Alameda County

 Super. Ct. No. C163011)

A jury convicted defendant Gleiston Porcinode Andrade of six counts of forcible 

oral copulation (Pen. Code,1§ 288a, subd. (c)(2)) and seven counts of forcible rape 

(§ 261, subd. (a)(2)). The jury also found true the allegation that defendant had 

committed the offenses against multiple victims. (§ 667.61, subd. (e)(4).) The trial court 

sentenced defendant to an aggregate term of 195 years to life in state prison, comprised of 

13 consecutive terms of 15 years to life. On appeal, defendant raises a plethora of 

evidentiary and instructional errors, as well as sentencing error. We affirm. 

I. EVIDENCE AT TRIAL

A. Rape of Jane Doe I

On April 17, 2009, 20-year-old Jane Doe I had been visiting with her sister at a 

friend’s house in Oakland. When it was time for Jane Doe I’s sister to go back home to 

Sacramento, she dropped Jane Doe I off near the Fruitvale Bay Area Rapid Transit

(BART) station. Jane Doe I admitted that she had done some prostituting, but testified 

that she was not working that night. As Jane Doe I was walking to the station, she saw a 

black two-door Mercedes drive by in the opposite direction. The car parked, and a man, 

 

1 All further undesignated statutory references are to the Penal Code.
2

later identified as appellant, got out and began walking behind her. Appellant soon 

caught up with her, grabbed her arm, and put a gun in her back. He told Jane Doe I not to 

say anything, pulled her back to the Mercedes, and put her in the passenger seat. Once in 

the car, appellant pointed the gun at Jane Doe I’s leg. Then he started to drive, stopping 

at two places, but moving on again, apparently uncomfortable with the amount of lighting 

in those areas. At some point, Jane Doe I asked appellant why he was doing this, and 

appellant struck her in the face. Eventually, after crossing High Street, he turned onto 

Tidewater Street and stopped in an industrial area. He demanded that Jane Doe I perform 

oral sex on him. He used a condom. Eventually, he said that was enough, climbed over 

to the passenger side, pulled off Jane Doe I’s shorts and underwear, and began having 

vaginal intercourse with her. At one point, he said he could not feel anything, so he took 

off the condom, and then put his penis back in Jane Doe I’s vagina. Appellant ejaculated 

into a napkin, which he threw out the window, along with the condom.

Appellant then drove the car to an alley. Appellant told Jane Doe I that he used to 

work for the Oakland Police Department, and that he would find her if she told anyone.

He told her to get out of the car. Jane Doe I began walking towards the BART station in 

a daze. Some passers-by came to her aid and drove her to Highland Hospital, where she 

was examined.

Lauri Paolinetti, a physician’s assistant at Highland Hospital, testified as an expert 

in sexual assault examinations. She performed a sexual assault exam on Jane Doe I

around 2:25 a.m. on April 18. Jane Doe I complained of mouth pain, and she had 

bruising and tenderness on her arms. There was also an abrasion to her right upper lip 

and bruising on her neck. Paolinetti noticed an injury to Jane Doe I’s posterior 

fourchette, which she explained was the most commonly injured area in sexual assault 

cases. Paolinetti collected oral, vaginal, and rectal swabs from Jane Doe I, as well as the 

clothing she was wearing.

Oakland Police Department Officer Michael Stolzman took Jane Doe I’s statement 

at the hospital. Afterwards, he used her description to find the location he believed was 
3

the scene of her rape, which was a “very industrial street with just commercial buildings; 

no retail shops.” However, he was unable to locate any evidence there.

Investigators showed Jane Doe I photo lineups on three occasions. In the first two

lineups, which occurred April 29 and 30, Jane Doe I did not recognize any suspects. In 

the third lineup, which Jane Doe I saw on October 28, she identified appellant as the man 

who raped her.

B. Rape of Jane Doe II

On the evening of April 19, 2009, 16-year old Jane Doe II was working as a 

prostitute near 46th Avenue and International Boulevard in Oakland. She saw a “bluish . . 

. Toyota or [] Chevrolet” truck pull up. Jane Doe II got in and noticed that the interior 

was leather, with bench-style seating in the front. She asked the driver, later identified as 

appellant, whether he was an undercover officer, and appellant responded that he was not. 

Jane Doe II did not have a condom with her and asked to get one. Appellant drove her to 

a liquor store, where Jane Doe II purchased a condom.

Appellant then drove Jane Doe II down High Street, saying he knew of a “little 

place” where they could park that was “comfortable.” He drove through a place with 

“nothing but a bunch of trucks and then just trees and dirt,” eventually stopping in an 

isolated area Jane Doe II asked for the money. Appellant reached underneath his seat 

and pulled out a black gun, then pointed it at Jane Doe II’s head. Jane Doe II panicked 

but could not open her door. Appellant told her to take her clothes off. He demanded 

that Jane Doe II perform oral sex on him, and Jane Doe II complied. Appellant was 

wearing a condom. Appellant then got on top of her and had vaginal intercourse with 

her. Eventually, he took the condom off and told her he had not finished. He placed his 

penis in Jane Doe II’s mouth, then her vagina, then her mouth again, where he ejaculated.

He threw the condom out the window.

As appellant began to drive Jane Doe II back to where he had picked her up, he

said, “ ‘I do this to a lot of the girls. . . . I take them back there.’ ” When Jane Doe II got 

out of the truck, appellant told her, “ ‘No matter who you run to or tell, I don’t exist.’ ”
4

Jane Doe II went to a gas station, where a lady let her use her phone and drove Jane Doe 

II home. Later, Jane Doe II went to the hospital.

Denae Reed, a physician’s assistant at Highland Hospital, performed a sexual 

assault exam on Jane Doe II. Reed testified as an expert on such exams. Using a special 

dye, Reed opined that Jane Doe II had sustained a minor injury to her posterior 

fourchette. Reed collected swabs and Jane Doe II’s clothing.

Oakland Police Department Officer David Mathison took Jane Doe II’s statement. 

He went to the location that Jane Doe II had described, which was the 4300 block of 

Tidewater Street. He was unable to locate a condom. Later, Jane Doe II was shown four 

photo lineups. She did not identify anyone in the first two. In the third, she identified an 

individual who looked similar to her rapist, but she said that it was not him. In the fourth 

lineup on October 30, 2009, she identified a picture of appellant as her rapist. She cried 

and shook as she made the identification.

C. Rape of Jane Doe III

On July 6, 2009, 25-year-old Jane Doe III was in Oakland hanging out with her 

friends. Later that evening, while she was alone and waiting for a ride on a side street 

near International Boulevard, she saw a small, light-colored, two-door car, possibly a 

Honda or Toyota pull up nearby. The driver and sole occupant of the car, later identified 

as appellant, asked if Jane Doe III “ha[d] anything.” Jane Doe III believed he was asking 

for drugs. Jane Doe III was carrying about $10 worth of crack cocaine. As she and 

appellant were talking, they saw some police officers pass nearby. Appellant told her to 

get in the car, and Jane Doe III complied.

Once Jane Doe III was inside the car, she agreed to sell appellant crack cocaine, 

and she asked to see the money. Appellant reached towards the driver’s side door and 

drew a black gun, which he pointed at Jane Doe III’s stomach. Scared, Jane Doe III

threw the drugs on his lap. Appellant told her to look forward and he began driving. 

During the drive, he told Jane Doe III he was a police officer. At one point, he spoke into 

a walkie-talkie. He showed Jane Doe III a silver badge. Jane Doe III noticed a FasTrak 

device in the middle of the front windshield.
5

Appellant parked the car in an industrial area near High Street. He told Jane Doe 

III to pull her pants down, and he threatened to kill her if she did not cooperate. Jane Doe 

III complied, and appellant pulled his own pants down. Appellant was wearing a condom

and demanded that she perform oral sex on him. Jane Doe III was crying so hard that she 

was unable to do as she was commanded. Appellant then told Jane Doe III to get on her 

hands and knees; he got behind her in the passenger seat, and began having vaginal 

intercourse with her. When appellant was finished, he told Jane Doe III to put her clothes 

on and he threw the condom out the door.

Appellant drove Jane Doe III a short distance, then made a u-turn and stopped the 

car. He told her to get out and run the opposite direction that the car was facing. He had 

taken Jane Doe III’s phone from her at some point, and returned it after wiping off his 

fingerprints with his shirt. Jane Doe III ran to a nearby McDonalds, where someone let 

her use their phone to call her friend, as Jane Doe III’s cell phone battery had gone dead.

Jane Doe III did not call 911 because she believed appellant was a police officer. Jane 

Doe III’s friend picked her up and drove her to a family member’s house in Richmond.

Later that night, she went to the hospital.

Martin Moran, a physician’s assistant at Highland Hospital, testified as an expert 

in sexual assault examinations. He performed a sexual assault exam on Jane Doe III on 

July 7, around 3:45 a.m. Jane Doe III complained of vaginal pain, and Moran noticed an 

injury to her posterior fourchette, which he said was the most commonly injured area in 

sexual assault cases.

Oakland Police Department Officer Dometrius Fowler took Jane Doe III’s 

statement at the hospital. Afterwards, he used Jane Doe III’s description to find a 

location that he believed was the scene of her rape. However, he was unable to locate 

any evidence at that location.

Jane Doe III was shown two photo lineups. In the first, she did not recognize 

anyone. In the second, she became visibly upset, started crying, and identified appellant 

as the man who had raped her.
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D. Rape of Jane Doe IV 2

On September 11, 2009, 15-year-old Jane Doe IV was working as a prostitute near 

19th Avenue and International Boulevard, when she saw a “tannish” Toyota Corolla pull 

up. Jane Doe IV had met the driver, later identified as appellant, a year earlier, when he 

claimed to be an undercover officer and did not pay her. Jane Doe IV and appellant 

agreed on a deal for “[a] blow job and sex.”

Jane Doe IV got into the car and appellant drove to an alley off of “East 23rd.” 

There, he pulled out a gun, pointed it at Jane Doe IV’s chest, and told her to pull her 

pants down. He told her that as long as she did what he wanted, he would not hurt her.

Jane Doe IV put a condom on appellant and performed oral sex while crying. Eventually, 

appellant climbed on top of Jane Doe IV and began having vaginal intercourse with her. 

When he was finished, he sat back in the driver’s seat and took the condom off.

Appellant said he was an undercover police officer. He told Jane Doe IV that he would 

drive her back, but if he caught her again, he would take her to jail. Jane Doe IV got out 

and went home. About a month later, she reported the rape and gave a statement to the 

police.

Some time after making her report, Jane Doe IV saw appellant again. He was 

driving a blue Chevrolet pickup truck near 17th Avenue and International Boulevard. 

Jane Doe IV called the officer who had taken her statement and told him about the 

sighting. Later, she identified appellant out of a photo lineup as “the guy that raped me, 

and pretended to be a police officer.”

E. Rape of Jane Doe V

In the early morning of September 12, 2009, 22-year-old Jane Doe V was working 

as a prostitute near 21st Avenue and International Boulevard, when she saw a small, 

light-colored car, possibly a Honda approach. Jane Doe V recognized the driver, later 

identified as appellant, as a man she had unsuccessfully negotiated with on a prior 

 

2

Jane Doe IV’s preliminary hearing testimony was read to the jury. 
7

occasion. Jane Doe V got in the car and agreed to perform sexual acts for money. They 

drove off to find a suitable location, eventually stopping near a garage. 

Appellant then reached over and locked Jane Doe V’s door. He pulled a gun from 

the driver’s side door and pointed it at Jane Doe V’s head. Jane Doe V was frightened 

and crying, but appellant told her that he would not do anything to her if she cooperated.

Jane Doe V put a condom on appellant and performed oral sex on him. Eventually, 

appellant stopped her, climbed into her seat, and began having vaginal intercourse with 

her. After approximately 10 minutes, appellant got off of Jane Doe V. He threw the 

condom out the window. He told Jane Doe V to get out and walk away; he backed the 

car away.

Jane Doe V called 911 and reported her rape. She then stayed at the scene until 

police arrived, and she directed them to the condom on the ground. Jane Doe V then 

went to Highland Hospital, where she submitted to a sexual assault exam. Saloni Patel, a 

physician assistant at Highland Hospital, testified as an expert in sexual assault exams. 

Although she did not observe any injuries, she explained that this was “very common.”

When shown a photo lineup, Jane Doe V immediately pointed to appellant’s 

picture and identified him as her rapist.

F. Police Investigation 

Around 8:50 p.m. on October 26, 2009, Emeryville Police Department Officer 

Edward Mayorga responded to 6701 Shellmound Street in Emeryville. There, he saw 

another officer’s car parked behind a blue Chevy pickup truck. Officer Mayorga ordered 

the driver out of the car and placed him in his patrol car. The driver was identified as 

appellant. Underneath the driver’s seat of the truck, Officer Mayorga saw what looked 

like a semi-automatic, black and silver pistol. The weapon was actually a BB gun.

Oakland Police Department Officer Carlos Gonzalez had been investigating Jane 

Doe III’s, Jane Doe IV’s, and Jane Doe V’s cases, and assisting with the other similar 

cases. When he learned of the circumstances of appellant’s arrest, he instructed other 

officers to distribute a new photo lineup, including appellant’s picture, to the victims.
8

On October 27, Officer Gonzalez supervised the execution of a search warrant at 

appellant’s home. There, officers found a small Toyota Corolla parked in front of the 

home, with a FasTrak device on the front windshield. Inside the car was a Mercedes 

Benz vehicle manual and a service receipt listing a Mercedes license plate.

On October 29, Officer Gonzalez went to the Santa Rita Jail and obtained an oral 

swab from appellant.

Chani Sentiwany, a criminalist with the Oakland Police Department, testified as an 

expert “in the examination of biological evidence, DNA typing and DNA analysis.” She 

examined the sexual assault exam kits obtained from Jane Doe III, Jane Doe I, Jane Doe 

V, and Jane Doe II. She was unable to identify sperm on any of the samples from Jane 

Doe III’s kit. She was able to find sperm in Jane Doe I’s kit, but the DNA profile she 

extracted matched Jane Doe I’s consensual sexual partner. She also found sperm on Jane 

Doe V’s underwear, but was unable to extract a DNA profile from the minimal sample. 

Sentiwany also found sperm on Jane Doe II’s oral swabs, and appellant’s DNA was a 1-

in-89-billion match. Finally, Sentiwany examined the condom recovered from Jane Doe 

V’s rape, and appellant’s DNA was a 1-in-96-sextillion match.

Mona Madaio was an investigator with the Department of Motor Vehicles (DMV).

Oakland Police Department Officer Bryant Ocampo had asked the DMV to investigate 

the Mercedes information recovered from appellant’s Corolla. Madaio testified that 

appellant had legal possession of a 2003 Mercedes sport coupe from June 20, 2007, until 

June 1, 2009.

II. DISCUSSION

A. Exclusion of Evidence Other Cases 

Appellant contends the trial court erred in excluding evidence of similar open 

cases and by limiting cross-examination on this topic. He further claims the trial court 

erred in denying his new trial motion based on this alleged error and that his due process 

rights were violated.
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1. Background

Prior to trial, the prosecution moved to exclude evidence of third party culpability 

absent an offer of proof. The trial court granted the motion. During trial, the prosecution 

elicited information from police witnesses about other suspects who were ultimately 

excluded after further investigation. The defense was permitted to cross-examine these 

witnesses regarding those eliminated suspects. The defense, however, was not permitted 

to cross-examine the witnesses about the possibility of other “police poser rape cases.”

During the prosecution’s case, the defense requested permission to cross-examine 

Officer Gonzalez “with reference to some other police reports . . . in an effort to establish 

third party culpability.” Defense counsel had the reports, but had not yet reviewed them 

to determine if she would raise the issue on cross-examination. Without ruling on the 

issue, the court noted that “there must be some direct or circumstantial evidence 

connecting a third person to the actual perpetration of the crime . . . [Case law] suggests 

that that must be a known person. In other words, you can’t for instance, show that other 

people might have had the same motive . . . .”

After the close of evidence, the defense placed on the record that the court had 

ruled in chambers that the defense could not cross-examine police witnesses about two 

particular police reports. The court responded with its reasoning for the ruling, 

explaining that “since there was no evidence that there was a known suspect [in those 

cases], . . . cross-examination on the matter would not be relevant.”

The defense reasserted the issue in its motion for a new trial. In its motion, the 

defense identified four police reports describing rapes under circumstances similar to 

those of the victims in appellant’s case. Each case involved an African-American female 

prostitute picked up on or near International Boulevard, threatened with a firearm, and 

raped. In some cases, the assailant would claim involvement with law enforcement, force 

the victim to orally copulate him, or take the victim to an area near High Street and 

Tidewater Street. In each case, the description of the assailant and his vehicle were 

similar to that of appellant and one of his vehicles. In each case, the victim did not 
10

identify appellant as the attacker. In one case, recovered DNA evidence did not match 

appellant.

The trial court denied the new trial motion, explaining that the challenged crossexamination would have been hearsay to the extent the defense would have tried to 

introduce evidence that those victims had not identified appellant, or that DNA evidence 

cleared him in one of the cases. The court also noted “there is no link to a known 

suspect.” Finally, the trial court explained that allowing the cross-examination may have 

opened the door to the prosecution presenting additional evidence on those cases, taking 

“substantial additional time.”

2. Analysis 

Appellant argues that the trial court erred by prohibiting cross-examination about 

the possibility of other “police poser rape cases.” We disagree.

“ ‘ “[T]o be admissible, evidence of the culpability of a third party offered by a

defendant to demonstrate that a reasonable doubt exists concerning his or her guilt . . . 

must link the third person either directly or circumstantially to the actual perpetration of 

the crime.” ’ (People v. Elliott (2012) 53 Cal.4th 535, 580.) ‘For evidence of an 

uncharged offense to be admissible to establish the third party’s identity as the 

perpetrator of the charged crimes, “ ‘[t]he pattern and characteristics of the crimes must 

be so unusual and distinctive as to be like a signature.’ ” [Citations.] A large number of 

common marks may, when viewed in combination, establish the required distinctive 

pattern.’ (Id. at p. 581; see People v. Page (2008) 44 Cal.4th 1, 39 [right to present all 

evidence of a significant probative value is not ‘inconsistent with the rule . . . that third 

party culpability evidence is admissible only if it links a third party to the crime’].)” 

(People v. Suff (2014) 58 Cal.4th 1013, 1063.) “A trial court’s ruling excluding third 

party culpability evidence is reviewed for abuse of discretion.” (People v. Elliott, supra, 

53 Cal.4th at p. 581.) There was no abuse of discretion here. 

The proffered evidence that, after appellant was arrested, prostitutes continued to 

be raped at gun point, by individuals claiming to be law enforcement officers, does not 

establish a link between a third person and the crimes charged against appellant. “None 
11

of these shared characteristics is unusual or distinctive . . . [P]rostitutes are vulnerable 

and tend to be victimized. (See, e.g., People v. Jones (2013) 57 Cal.4th 899 [two and 

perhaps three homicide victims were prostitutes, and the three had been left in 

dumpsters]; People v. Solomon (2010) 49 Cal.4th 792, 798 [six drug-abusing prostitutes 

murdered]; People v. Doolin (2009) 45 Cal.4th 390, 400, [defendant murdered two 

prostitutes and attempted to murder four more prostitutes]; People v. Rogers (2006) 39 

Cal.4th 826, 835 [two prostitutes murdered]; see also People v. Jennings [(1991)] 53 

Cal.3d at p. 363 [noting that prostitutes ‘could be seen as especially vulnerable’].)” 

(People v. Suff, supra, 58 Cal.4th at pp. 1063-1064.) Moreover, the use of guns by 

individuals posing as law enforcement officers is similarly unremarkable. Indeed, 

defense counsel argued below that the circumstances of the charged offenses and the 

uncharged offenses were “not unique in the least,” and were “so common that the 

Oakland Police Department ha[d] a 9[-]page document entitled ‘Rapists Posing as Law 

Enforcement.’ ”

3

We next consider whether the evidence was admissible to prove the bare fact that 

the rapes of prostitutes did not end with appellant’s arrest. Appellant asserts that the 

prosecutor, by arguing that “there were no similar attacks after appellant’s arrest” and by 

suggesting the charged attacks were “distinctive in MO” erroneously caused the jury to 

believe he was guilty despite the fact that “there were in fact dozens of similar open 

cases.” Therefore, he contends, the evidence of post-arrest rapes was relevant to rebut 

the prosecutor’s argument that appellant was guilty based on the “doctrine of chances” 

and pattern of the rapes. 

The prosecutor’s theory was not based on the fact that the victims were all 

prostitutes who were raped at gunpoint by an individual claiming to be a law enforcement 

officer. Rather, her argument relied on the repeated patterns of evidence of the charged 

offenses and their similarities to each other, including the location of the offenses and the 

sequence of the assaults. The prosecutor urged the jury not to ignore “the giant 

 

3 Appellate counsel likewise contends that this “was not a distinctive [modus 

operandi [(MO)] at all.”
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[e]lephant in the room of the similarities of the nearly identical nature of all of the details 

that are the same or similar in this case.” Moreover, contrary to appellant’s contention, 

the prosecutor did not argue that his guilt could be based on the “doctrine of chances.” 

Rather, the prosecutor argued that the circumstances of the rapes of the five young 

women were similar to each other, not that they represented such distinctive assaults that 

there was no other way to explain how “so many victims . . . would identify appellant.” 

Accordingly, the trial could did not abuse its discretion in limiting cross-examination 

and/or precluding evidence regarding the proffered third-party culpability theory. 

Similarly, the trial court did not abuse its discretion in denying appellant’s new 

trial motion based on the exclusion of third-party culpability evidence. (See People v. 

Homick (2012) 55 Cal.4th 816, 894.) 

Finally, inasmuch as the trial court’s ruling did not constitute an abuse of 

discretion under Evidence Code section 352, appellant’s constitutional claims fail on the 

merits. Barring rare circumstances not present here, “application of the ordinary rules of 

evidence under state law does not violate a criminal defendant’s federal constitutional

right to present a defense, because trial courts retain the intrinsic power under state law to 

exercise discretion to control the admission of evidence at trial.” (People v. Abilez (2007) 

41 Cal.4th 472, 503; People v. Snow (2003) 30 Cal.4th 43, 90 [“Application of the 

ordinary rules of evidence, such as Evidence Code section 352, generally does not 

deprive the defendant of the opportunity to present a defense”].)
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B. Admission of Preliminary Hearing Testimony of Jane Doe IV

Appellant contends that admission of Jane Doe IV’s preliminary hearing testimony 

deprived him of his constitutional rights to confrontation and due process. According to 

appellant, the trial court erred in admitting this testimony because: 1) the prosecution 

failed to exercise due diligence in securing this witness’s attendance at trial; and 2) 

appellant lacked an adequate opportunity for cross-examination at the preliminary 

hearing. 

1. Background 

Jane Doe IV was not available at the time of trial, although she had testified at 

appellant’s preliminary hearing on February 23, 2010. The trial court conducted a 

hearing on the prosecution’s efforts to procure Jane Doe IV’s appearance at trial. The 

prosecution presented the testimony of two witnesses detailing the efforts to locate Jane 

Doe IV.

Inspector Stephanie England testified that prior to the preliminary hearing, she had 

spoken with Jane Doe IV by calling the phone number provided on the police report. In 

December 2009, she met with Jane Doe IV in Oakland at Jane Doe IV’s boyfriend’s 

sister’s house. England had the phone numbers for Jane Doe IV, Jane Doe IV’s 

boyfriend, and Jane Doe IV’s grandmother’s boyfriend. Jane Doe IV testified at 

appellant’s preliminary hearing without issue.

However, after the preliminary hearing, Jane Doe IV’s phone number was no 

longer in service. Jane Doe IV, a juvenile at the time, had no reliable, known address. 

England ran Jane Doe IV’s criminal history, checked for a California Driver’s License or 

identification card, and called all of the phone numbers she had, all to no avail. England 

was unable to find addresses for Jane Doe IV’s parents, grandparents, or boyfriend. In 

August 2011, she handed the case off to another investigator, Inspector Lux, who had 

requested police reports from the El Cerrito Police Department related to Jane Doe IV’s 

grandmother and the grandmother’s boyfriend.

In November 2011, Inspector Harry Hu took over for Inspector Lux. Hu left a 

message at the phone number given for Jane Doe IV’s grandmother’s boyfriend in the El 
14

Cerrito police reports, but received no response. Hu checked local, state, and federal law 

enforcement databases for Jane Doe IV, but found nothing. He also looked for 

information on Jane Doe IV’s family in those databases, but again found nothing. He 

tried calling all of the phone numbers related to Jane Doe IV, but they were either 

disconnected or not receiving calls. He sent messages to Jane Doe IV on the Facebook 

and Myspace Web sites, but did not receive an answer. On Jane Doe IV’s Facebook 

account, she listed “Ray Hale” as her husband. Hu tracked down an address for two men 

named “Ray Hale” (father and son) in Richmond. He went there and spoke to them, but 

they did not know Jane Doe IV. He checked whether Jane Doe IV had received a 

driver’s license or identification card, owned a car, or had an adult criminal history, all 

without result. He ran her name through a “people-search database” without result. 

When he ran her family’s names through the database, he obtained phone numbers, but 

they were either disconnected or did not answer. Hu also checked whether Jane Doe IV

was in a local hospital, but found nothing. He had run checks on Jane Doe IV’s given 

name, Jane Doe IV with her mother’s last name, and Jane Doe IV with Hale’s last name, 

and found nothing. Hu had tried all of the contact information again on the day of 

hearing. 

Hu acknowledged that he had an address for Jane Doe IV’s grandmother but had 

not gone there. He also had Jane Doe IV’s mother’s last known address in San Francisco, 

but had not gone there either.

Defense counsel argued that the prosecution had not shown due diligence in 

attempting to bring Jane Doe IV to court. Defense counsel also argued that counsel did 

not have the same opportunity or motive to cross-examine Jane Doe IV at the preliminary 

hearing, since the purpose of the preliminary hearing was simply to show probable cause, 

and the defense attorney at that hearing had not previously met with appellant. The trial 

court disagreed and found that the prosecution had exercised due diligence and that the 

defense had a sufficiently similar motive and opportunity to cross-examine Jane Doe IV

at the preliminary hearing.
15

2. Applicable Law 

Under the state and federal Constitutions, a criminal defendant has the right to 

confront the prosecution’s witnesses. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15; 

People v. Herrera (2010) 49 Cal.4th 613, 620 (Herrera).) “Although important, the 

constitutional right of confrontation is not absolute. [Citations.]” (Id. at p. 621; accord, 

People v. Thomas (2011) 51 Cal.4th 449, 499.) An exception exists when a witness is 

unavailable, the witness testified against the defendant at a prior proceeding, and the 

witness was subjected to cross-examination. (Evid.Code, § 1291, subd. (a)(2); Herrera, 

supra, 49 Cal.4th at p. 621.) A witness is unavailable if the prosecution “has exercised 

reasonable diligence but has been unable to procure his or her attendance by the court’s 

process.” (Evid.Code, § 240, subd. (a)(5).) 

On appeal, “[w]e review the trial court’s resolution of disputed factual issues 

under the deferential substantial evidence standard [citation], and independently review 

whether the facts demonstrate prosecutorial good faith and due diligence [citation].”

(Herrera, supra, 49 Cal.4th at p. 623.)

3. Unavailability 

“A witness who is absent from a trial is not ‘unavailable’ in the constitutional 

sense unless the prosecution has made a ‘good faith effort’ to obtain the witness’s

presence at the trial. [Citation.] The United States Supreme Court has described the 

good faith requirement this way: ‘The law does not require the doing of a futile act. 

Thus, if no possibility of procuring the witness exists (as, for example, the witness’

intervening death), ‘good faith’ demands nothing of the prosecution. But if there is a 

possibility, albeit remote, that affirmative measures might produce the declarant, the 

obligation of good faith may demand their effectuation. ‘The lengths to which the 

prosecution must go to produce a witness . . . is a question of reasonableness. [Citation.] 

The ultimate question is whether the witness is unavailable despite good-faith efforts 

undertaken prior to trial to locate and present that witness.’ [Citation.]” (Herrera, supra,

49 Cal.4th at p. 622.)
16

This good faith obligation is reflected in the language of Evidence Code section 

240, subdivision (a)(5), which states that a witness is unavailable when he or she is 

“ ‘[a]bsent from the hearing and the proponent of his or her statement has exercised 

reasonable diligence but has been unable to procure his or her attendance by the court’s 

process.’ (Italics added.) The term ‘[r]easonable diligence, often called “due diligence” 

in case law, “ ‘connotes persevering application, untiring efforts in good earnest, efforts 

of a substantial character.’ ” ’ [Citations.]” (Herrera, supra, 49 Cal.4th at p. 622.) The 

due diligence requirement imposed by California law is essentially the same as the 

federal constitutional good faith requirement. (Ibid.)

“Considerations relevant to the due diligence inquiry ‘include the timeliness of the 

search, the importance of the proffered testimony, and whether leads of the witness’s

possible location were competently explored.’ [Citation.]” (Herrera, supra, at p. 622; 

Valencia, supra, at p. 292.) As long as “ ‘substantial good faith’ ” efforts are undertaken 

to locate a witness, the fact that “ ‘additional efforts might have been made or other lines 

of inquiry pursued’ ” does not indicate lack of diligence because “ ‘[t]he law requires 

only reasonable efforts, not prescient perfection.’ [Citation.]” (People v. Diaz (2002) 95 

Cal.App.4th 695, 706.)

Appellant contends the evidence summarized above does not support the trial 

court’s finding that Jane Doe IV was unavailable because the prosecution failed to 

establish that it exercised due diligence to secure Jane Doe IV’s attendance at trial. We 

disagree.

“[D]iligence has been found when the prosecution’s efforts are timely, reasonably 

extensive and carried out over a reasonable period. [Citations.]” (People v. Bunyard

(2009) 45 Cal.4th 836, 856.) In contrast, diligence has found to be lacking where the 

prosecution’s efforts were “perfunctory or obviously negligent. [Citations.]” (Id. at 

p. 855.)

Appellant acknowledges that the efforts of the investigators in “terms of contact 

information checks, telephone numbers, and [] email” appeared to be “substantial.” 

Nevertheless, he faults the investigators’ work in tracking down Jane Doe IV because 
17

“there was no subpoena” issued when “it became clear [that Jane Doe IV] and her . . .

contacts were not being responsive.” Under these circumstances, appellant argues that 

there should have been “physical checks” of the known “prominent physical addresses (a 

grandmother, the grandmother’s boyfriend, and [Jane Doe IV’s] mother) . . . .”

Preliminarily, appellant fails to explain how a subpoena would have any greater 

efficacy in keeping Jane Doe IV on the prosecutor’s radar screen. As discussed, Jane 

Doe IV was a juvenile prostitute with no fixed home, who appeared without incident at 

the preliminary hearing. “The prosecution is not required ‘to keep “periodic tabs” on 

every material witness in a criminal case . . . .’ [Citation.] Also, the prosecution is not 

required, absent knowledge of a ‘substantial risk that this important witness would flee,’ 

to ‘take adequate preventative measures’ to stop the witness from disappearing.” (People 

v. Wilson (2005) 36 Cal.4th 309, 342.)

Prior to trial, the investigators explored various avenues in attempting to locate 

her; making numerous calls to Jane Doe IV and her family; checking multiple statewide 

databases for Jane Doe IV and her family; attempting to contact Jane Doe IV on social 

media Web sites; following up on a possible spouse; and even checking local hospitals. 

Exercising our independent review, we conclude the prosecution’s efforts to produce Jane 

Doe IV for trial were reasonable under the circumstances. (See People v. Wilson, supra,

36 Cal.4th 309, 342.) That the investigators failed to conduct “physical checks” at the 

last known addresses for the grandmother and her boyfriend, and for Jane Doe IV’s 

mother does not transform this otherwise exhaustive effort into an unreasonable one, 

lacking the requisite diligence. The situation here is the same as repeatedly confronted 

by our Supreme Court: “[D]efendant has suggested other things the prosecution might 

have done. But these suggestions do ‘not change our conclusion that the prosecution 

exercised reasonable diligence. “That additional efforts might have been made or other 

lines of inquiry pursued does not affect this conclusion. [Citation.] It is enough that the 

People used reasonable efforts to locate the witness.” ’ ” (Valencia, supra, 43 Cal.4th at 

p. 293, quoting People v. Wilson, supra, 36 Cal.4th 309, 342.)
18

Accordingly, we conclude that the prosecution satisfied its good faith obligation 

and exercised reasonable diligence to secure Jane Doe IV’s attendance at trial.

4. Opportunity for Cross-Examination at Preliminary Hearing 

Appellant next argues that he did not have an adequate opportunity to crossexamine Jane Doe IV at the preliminary hearing because cross-examination is limited at 

preliminary hearings and because defense counsel did not have access to Jane Doe IV’s 

written statement to the police. 

Defense counsel was perfectly free to, and did in fact, question Jane Doe IV about 

her written statement to the police. That the written statement was not available at the 

time of the preliminary hearing did not prevent defense counsel from otherwise 

confronting Jane Doe IV about her accusations against appellant. “[A] prior opportunity 

to cross-examine a witness who has become unavailable is considered an adequate 

substitute for present cross-examination at trial.” (People v. Jones (1998) 66 Cal.App.4th 

760, 766.) Thus, “ ‘ “[a]s long as a defendant was provided the opportunity for crossexamination, the admission of preliminary hearing testimony under Evidence Code 

section 1291 does not offend the confrontation clause of the federal Constitution simply 

because the defendant did not conduct a particular form of cross-examination that in 

hindsight might have been more effective.” [Citations.]’ ” (People v. Hollinquest (2010)

190 Cal.App.4th 1534, 1548, italics omitted.)

Both the United States Supreme Court and the California Supreme Court “have 

concluded that ‘when a defendant has had an opportunity to cross-examine a witness at 

the time of his or her prior testimony, that testimony is deemed sufficiently reliable to 

satisfy the confrontation requirement [citation], regardless whether subsequent 

circumstances bring into question the accuracy or the completeness of the

earlier testimony. [Citation.]’ ” (People v. Wilson, supra, 36 Cal.4th at p. 343.) People 

v. Gonzales (2012) 54 Cal.4th 1234, cited by the Attorney General, provides a 

particularly apt discussion in this regard. In Gonzales, defense counsel did not have a 

child witness’s therapy records at the preliminary hearing. (Id. at p. 1261.) There, the 

record showed that before the hearing, the witness had been lying and possibly depressed 
19

or suffering from posttraumatic stress disorder. (Id. at p. 1262.) Nevertheless, our 

supreme court concluded that defense counsel had a meaningful opportunity to crossexamine the witness, and it upheld the trial court’s decision to admit the witness’s former 

testimony at trial. (Id. at pp. 1264-1265.) Similarly here, appellant had a meaningful 

opportunity to cross-examine Jane Doe IV despite not having seen her written statement 

to the police. Indeed, although appellant complains that he did not have Jane Doe IV’s 

written statement at the preliminary hearing, he has not identified any meaningful 

inconsistencies or material differences between her statement and her testimony to 

substantiate his claim of deprivation.

5. Constitutional Claims 

Finally, appellant argues that his claims that he was deprived of his federal 

constitution rights to a fair trial and to confront witnesses are cognizable on appeal, or 

alternatively that he received ineffective assistance of counsel if his claims were forfeited 

by failing to raise them below. There is no need to extend the length of this opinion by 

detailing the obvious. Inasmuch as we have found no error in the admission of Jane Doe 

IV’s preliminary hearing testimony, there is nothing to support appellant’s constitutional 

claims (state or federal) and his related ineffective assistance of counsel claim. 

C. Presence of Support Person 

In certain criminal cases, a prosecuting witness is entitled to the supporting 

attendance of two persons at trial, one of whom may accompany the witness to the 

witness stand. (§ 868.5, subd. (a).)

Prior to trial, the prosecutor, citing section 868.5, subdivision (a),4 moved to allow 

each victim to be accompanied to the witness stand by a support person. Defense counsel 

 

4 As pertinent here, section 868.5, subdivision (a) provides: (a) “Notwithstanding 

any other law, a prosecuting witness in a case involving a violation or attempted violation 

of Section . . . 288a, . . . shall be entitled, for support, to the attendance of up to two 

persons of his or her own choosing, one of whom may be a witness, at the . . . trial, . . .

during the testimony of the prosecuting witness. Only one of those support persons may 

accompany the witness to the witness stand, although the other may remain in the 

courtroom during the witness’ testimony.”
20

stipulated to the use of such support persons. Accordingly, the trial court granted the 

motion to allow each of the victims to be accompanied to the witness stand by a support 

person. It appears, however, that only Jane Doe III was accompanied by a victim witness 

advocate. Appellant now contends that, despite his lack of objection, his Sixth 

Amendment right to confront witnesses was violated by the presence of the victim 

witness advocate during Jane Doe III’s testimony because no constitutionally required 

inquiry on the necessity of support persons occurred. His argument is based primarily on 

People v. Adams (1993) 19 Cal.App.4th 412, 443-444 (Adams), which rejected a

constitutional challenge to the support person statute, but held that there must be a caseby-case showing of necessity for a support person presented at an evidentiary hearing.

In People v. Lord (1994) 30 Cal.App.4th 1718, our colleagues in Division Five of 

this court held that the defendant waived the claim that he was denied a constitutional 

right to an evidentiary hearing on the necessity of a support person by failing to request a 

hearing or otherwise objecting to the presence of a support person. (Id. at p. 1722.) Lord

stated that the showing required by Adams at such a necessity hearing is “debatable,” and 

in dicta, suggested that the showing required under section 868.5 is that the presence of 

the support person “ ‘is both desired by the prosecuting witness for support and will be 

helpful to the prosecuting witness’ [citations].” (Lord, supra, 30 Cal.App.4th at 

pp. 1721-1722.) In determining that the lack of a necessity hearing was waived, Lord

stated: “The absence of an objection deprived the trial court of the opportunity to correct 

any procedural error and make an evidence-based finding that [the witness] needed a 

support person.” (Id. at p. 1722.)

Appellant asserts that we should reject the holding in Lord or deem it inapplicable 

here because Adams and a case Adams relies upon, Maryland v. Craig (1990) 497 U.S. 

836, suggest the trial court has a sua sponte duty to ensure that the requisite necessity 

exists before presence of the support person is permitted. However, in Adams, an 

objection to the procedure was made (Adams, supra, 19 Cal.App.4th at p. 434), and, so, 

 
21

the case is not authority for a court’s duty to conduct a hearing in the absence of an 

objection. Appellant then cites People v. Keelin (1955) 136 Cal.App.2d 860, 870-871, 

for the proposition that courts have a sua sponte duty to ensure that minimum 

foundational evidentiary showings are met. In Keelin, the appellate court concluded that 

the trial court erroneously admitted certain statements under the spontaneous declaration 

exception to the hearsay rule without sufficiently assessing whether the evidentiary 

foundation for those statements qualified them as spontaneous declarations. (Id. at pp. 

868-872.) Given that the defendant had twice objected to the admission of the statements 

as spontaneous declarations, the Keelin court concluded that the defendant’s failure to 

tender the same objection regarding other witnesses did not constitute a waiver. (Id. at p. 

870.) Accordingly, Keelin is inapposite. The issue here does not concern the court’s role 

in admitting evidence, and unlike Keelin there was no objection at any time by appellant. 

Nevertheless, appellant argues, citing People v. Haston (1968) 69 Cal.2d 233, 256, 

footnote 28, that we should excuse his failure to object because the statute is apparently 

mandatory, discouraging an objection, yet the case law regarding whether a case-specific 

showing of necessity is required is unsettled. While it is not clear from Adams and Lord

precisely what showing is required in all cases, since Lord was decided in 1994, there is 

no dispute either that the failure to object to the absence of a showing of necessity 

constitutes a waiver, or that the defendant may require some type of antecedent showing 

before a support person is allowed to accompany a witness. Moreover, while section 

868.5, subdivision (b) does state that if the support person is also a prosecuting witness, 

the prosecutor “shall” present evidence the person’s attendance is desired by, and helpful 

to, the complaining witness, there is nothing in the statute or case law to suggest that the 

prosecutor cannot be relieved of that burden where, as here, the support person is not a 

prosecuting witness and the defense counsel actually agrees to the support person’s 

presence without evidence that the person’s presence was desired by the victim and 

helpful. 

Finally, appellant asks us to exercise our discretion to review the issue despite his 

failure to object, or alternatively to find he was denied effective assistance of counsel. 
22

Even assuming for the sake of argument that appellant has preserved his claim of error, it 

fails on the merits. The components of the confrontation clause are “(1) the face-to-face 

confrontation, (2) the oath, (3) the cross-examination, and (4) the jury’s observation of 

the witness’s demeanor.” (People v. Johns (1997) 56 Cal.App.4th 550, 554, citing 

Maryland v. Craig, supra, 497 U.S. at p. 846.) In Maryland v. Craig, a necessity hearing 

was required where the minor victim testified via a one-way closed circuit television. (Id.

at pp. 855-857.) Adams required a necessity hearing where the support person was also a 

witness at trial and there was an allegation that the support person, who was also the 

victim’s father, had abused the victim, which could have motivated her to report the 

offenses as she did. (People v. Adams, supra, 19 Cal.App.4th at p. 434.) Thus, the court 

found that a hearing was necessary because the presence of the support person potentially 

affected the victim’s trial performance and demeanor. (Id. at p. 438.)

Here, the dangers addressed in Adams and Maryland v. Craig are not present.

Jane Doe III testified in person, permitting face-to-face confrontation, and her support 

person was not a testifying witness. In addition, the record does not suggest that the 

presence of the support person during her testimony had any impact on the jury’s 

perception of Jane Doe III’s demeanor, or in any way influenced Jane Doe III’s 

testimony.5(See People v. Johns, supra, 56 Cal.App.4th at pp. 555-556.) Accordingly, 

we conclude that no constitutional error has been demonstrated.

D. Instructions Regarding Appellant’s Statements 

The trial court did not instruct the jury with CALCRIM No. 358 (Evidence of 

Defendant’s Statements) or CALCRIM No. 359 (Corpus Delicti: Independent Evidence 

of a Charged Crime), nor did appellant request these instructions. Appellant argues the 

trial court erred because it had a sua sponte duty to give these instructions. The Attorney 

General concedes the trial court had a sua sponte duty to instruct with both instructions, 

but claims the error was harmless. We agree.

 

5

The record does not disclose support person’s proximity to Jane Doe III as she testified 

on the witness stand.
23

We begin with the corpus delicti rule embodied in CALCRIM No. 359, which 

provides: “The defendant may not be convicted of any crime based on (his/her) out-ofcourt statement[s] alone. You may rely on the defendant’s out-of-court statements to 

convict (him/her) only if you first conclude that other evidence shows that the charged 

crime [or a lesser included offense] was committed. . . . [¶] That other evidence may be 

slight and need only be enough to support a reasonable inference that a crime was 

committed. [¶] The identity of the person who committed the crime [and the degree of 

the crime] . . . may be proved by the defendant’s statement[s] alone. [¶] You may not 

convict the defendant unless the People have proved (his/her) guilt beyond a reasonable 

doubt.”

“Whenever an accused’s extrajudicial statements form part of the prosecution’s 

evidence, the cases have additionally required the trial court to instruct sua sponte that a 

finding of guilt cannot be predicated on the statements alone. [Citations.]” (People v. 

Alvarez (2002) 27 Cal.4th 1161, 1170.) “Error in omitting a corpus delicti instruction is 

considered harmless, and thus no basis for reversal, if there appears no reasonable 

probability the jury would have reached a result more favorable to the defendant had the 

instruction been given. [Citations.]” (Id. at p. 1181.)

Here, it is not reasonably probable the jury would have reached a different result 

since there was more than sufficient independent evidence of the corpus delicti of the 

crimes. Each of the five victims testified against appellant, giving detailed accounts how 

the rapes occurred. The testimony of the victims was corroborated in part by the various 

sexual assault examiners who testified, as well by the DNA evidence, plus by the 

evidence from the criminal investigation, which connected appellant to the vehicles and 

weapon used in the crimes. This independent evidence is more than adequate to 

establish, as a matter of law, that the failure to give the instruction was harmless under 

state and federal standards. (People v. Alvarez, supra, 27 Cal.4th at p. 1181; People v. 

Watson (1956) 46 Cal.2d 818, 836; Chapman v. California (1967) 386 U.S. 18, 24.)

CALCRIM No. 358, on the other hand, would have provided some benefit to 

appellant because it specifically informs the jury that it must consider “with caution”
24

evidence of a defendant’s oral statement “unless the statement was written or otherwise 

recorded.” Appellant argues that prejudice was inherent in the failure to give this

instruction because the statements attributed to him by the victims “went directly to 

identification based on supposedly similar MOs, as well as lack of consent.” Appellant 

argues that CALCRIM No. 358 would have provided “some instructional guidance 

highlighting the fact reported statements are as easily fabricated or mistaken . . . .” 

We are not convinced a different result would have been reached had the jury been 

properly instructed. The issue of witness believability was squarely before the jury. The 

trial court instructed the jury with CALCRIM No. 226, which sets forth the factors in 

assessing the credibility and believability of witnesses. Considering the detailed account 

of the five victims and the ample, independent corroborating evidence of appellant’s 

guilt, it is not reasonably probable that appellant would have obtained a better result if 

CALCRIM No. 358 had been given. (People v. Watson, supra, 46 Cal.2d at p. 836.) 

Moreover, on this record, any error in failing to give this instruction was harmless beyond 

a reasonable doubt. (Chapman v. California, supra, 386 U.S. at p. 24.)

Finally, we reject appellant’s claim that the aforementioned harmless errors 

violated his rights to due process and a fair trial. As our Supreme Court explained in 

People v. Dickey (2005) 35 Cal.4th 884, 905 “ ‘[m]ere instructional error under state law 

regarding how the jury should consider evidence does not violate the United States 

Constitution,’ ” nor does “ ‘[f]ailure to give the cautionary instruction . . . make the trial 

fundamentally unfair.’ ” 

E. Defense of Consent Instruction

Appellant next argues that the trial court had a sua sponte duty to instruct the jury, 

pursuant to People v. Mayberry (1975) 15 Cal.3d 143 (Mayberry), that it should find 

appellant not guilty if he held a reasonable and good faith but mistaken belief that his 

victims consented to engage in sexual intercourse. We disagree.

“In the absence of a request for a particular instruction, a trial court’s obligation to 

instruct on a particular defense arises ‘ “only if [1] it appears that the defendant is relying 

on such a defense, or [2] if there is substantial evidence supportive of such a defense and 
25

the defense is not inconsistent with the defendant’s theory of the case.” ’ [Citations.]”

(People v. Dominguez (2006) 39 Cal.4th 1141, 1148 [defendant not entitled to Mayberry

instruction].) Here, appellant satisfies neither prong of this test. The defense did not 

claim that appellant reasonably believed the victims had consented, and did not request a 

Mayberry instruction or object to its omission. Rather, the defense focused on 

identification issues. Appellant claims on appeal that defense counsel also raised 

“reasonable doubt issues regarding [the] consent as to some victims.” Appellant insists 

that a Mayberry instruction “was fully consistent with [his] identification defense, 

coupled with alternate arguments about actual consent . . . .” Appellant, however, points 

to nothing suggesting that he relied on the belief-as-to-consent defense at trial, rather he 

points to evidence that might have supported a theory of actual consent, i.e. prostitution 

negotiations, use of condoms, and in the case of Jane Doe IV—a possible motive for 

lying based on prior transaction where appellant allegedly “stiffed or shorted” her on 

money. In sum, appellant did not rely on a Mayberry defense at trial. (People v. 

Dominguez, supra, 39 Cal.4th at p. 1148.)

As for the second prong of the test, there was no substantial evidence supporting a 

Mayberry defense. (People v. Dominguez, supra, 39 Cal.4th at p. 1148.) A Mayberry

instruction “should not be given absent substantial evidence of equivocal conduct that 

would have led defendant to reasonably and in good faith believe consent existed where it 

did not.” (People v. Williams (1992) 4 Cal.4th 354, 362.) In Williams, appellant testified 

that the victim initiated sexual contact and willingly had intercourse with him, testimony 

which, if believed, established actual consent. (Ibid.) The victim testified that appellant

raped her after he prevented her from leaving a hotel room, punched her in the eye, 

pushed her onto the bed, and ordered her to disrobe. (Id. at pp. 360, 362.) The Williams

court concluded that there was no substantial evidence of equivocal conduct warranting a 

Mayberry instruction, because the “wholly divergent accounts create no middle ground 

from which [appellant] could argue he reasonably misinterpreted [the victim’s] conduct.” 

(Williams, supra, 4 Cal.4th at p. 362.)
26

The Mayberry defense has both a subjective and an objective component. (People 

v. Williams, supra, 4 Cal.4th at p. 360.) In order to satisfy the subjective component, an

appellant must present evidence of the victim’s equivocal conduct that showed why he 

had an honest and good faith, albeit mistaken, belief as to consent. (Id. at pp. 360-361.) 

In order to satisfy the objective component, the appellant must show that his mistake was 

reasonable under the circumstances. (Id. at p. 361.) “[R]egardless of how strongly a 

defendant may subjectively believe a person has consented to sexual intercourse, that 

belief must be formed under circumstances society will tolerate as reasonable in order for 

the defendant to have adduced substantial evidence giving rise to a Mayberry

instruction.” (Ibid.)

In arguing that a Mayberry instruction was required here, appellant relies on the 

following passage from Williams: “We note for the guidance of the lower courts that 

there may be cases, as in Mayberry, in which there is evidence of equivocal conduct that 

could be reasonably and in good faith relied on to form a mistaken belief of consent, but 

also evidence that this equivocal conduct occurred only after the defendant’s exercise or 

threat of ‘force, violence, duress, menace, or fear of immediate and unlawful bodily 

injury on the person or another.’ (§ 261, subd. (a)(2); [citations].) No doubt it would 

offend modern sensibilities to allow a defendant to assert a claim of reasonable and good 

faith but mistaken belief in consent based on the victim’s behavior after the defendant

had exercised or threatened ‘force, violence, duress, menace, or fear of immediate and 

unlawful bodily injury on the person or another.’ [Citations.] However, a trier of fact is 

permitted to credit some portions of a witness’s testimony, and not credit others. Since a 

trial judge cannot predict which evidence the jury will find credible, he or she must give 

the Mayberry instruction whenever there is substantial evidence of equivocal conduct that 

could be reasonably and in good faith relied on to form a mistaken belief of consent, 

despite the alleged temporal context in which that equivocal conduct occurred. The jury 

should, however, be further instructed, if appropriate, that a reasonable mistake of fact 

may not be found if the jury finds that such equivocal conduct on the part of the victim 

was the product of ‘force, violence, duress, menace, or fear of immediate and unlawful 
27

bodily injury on the person or another.’ ” (People v. Williams, supra, 4 Cal.4th at 

p. 364.)

Appellant apparently contends that, even though his victims testified that he used 

“force, violence, duress, menace, or fear of immediate and unlawful bodily injury” 

(§ 261, subd. (a)(2)) against them, it was up to the jury to decide whether appellant

nonetheless had a good faith but mistaken belief that they consented to sexual acts with 

him. A review of the relevant evidence as to each of the victims does not support this 

argument.

Jane Doe III testified that after she agreed to sell crack to appellant, he pulled a 

gun on her and threatened to kill her. She cried during her rape. At one point, Jane Doe 

III was crying so hard that she was unable to perform oral sex on appellant. 

Jane Doe I testified that appellant grabbed her on the street, put a gun in her back, 

and pulled her into his car. Appellant told her not to say anything, struck her in he face, 

and pointed a gun at her. He held the gun to her head while she performed oral sex. Jane 

Doe V initially agreed to have sex with appellant in exchange for money, but then 

appellant pointed a gun at her head. Jane Doe V told him not to kill her and cried during 

her assault. Similarly, Jane Doe IV initially agreed to have sex with appellant. Jane Doe 

IV told appellant not to kill her, and she cried during her assault. Jane Doe II also 

reached an agreement with appellant, before he pointed a gun at her head. She told 

appellant not to hurt her and was crying.

Here, no matter what the jury could have believed about appellant’s subjective 

understanding when Jane Doe V, Jane Doe IV, and Jane Doe II agreed to exchange sex 

for money, the evidence was unequivocal, and overwhelming that the consent ended 

when appellant pulled out his gun and threatened the victims. (See People v. Ireland

(2010) 188 Cal.App.4th 328, 338 [any previous consent ceased once appellant used knife 

and threatened victims].) Moreover, with respect to the crimes committed against Jane 

Doe I and Jane Doe III there was no evidence suggesting there had been any agreement to 

have sex. Given the detailed evidence that appellant threatened each of the victims with a 

gun and that the young women cried and were terrified during the assaults, it is 
28

inconceivable that the jury, if given a Mayberry instruction, would have found appellant

actually believed he had their consent to the charged acts; it stretches credulity yet further 

to suggest the jury could have found that such a belief, even if subjectively held, was 

objectively reasonable. On this record any failure to give a Mayberry instruction was 

harmless under both state and federal standards. (People v. Watson, supra, 46 Cal.2d at 

p. 836; Chapman v. California, supra, 386 U.S. at p. 24.)

F. Reasonable Doubt Instructions

Pursuant to CALCRIM No. 220, the trial court instructed the jury, in pertinent 

part: “Proof beyond a reasonable doubt is proof that leaves you with an abiding 

conviction that the charge is true. [¶] . . . In deciding whether the People have proved 

their case beyond a reasonable doubt, you must impartially compare and consider all the 

evidence that was received throughout the entire trial. Unless the evidence prove[d] the 

defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must 

find him not guilty.” (Italics added.)

Pursuant to CALCRIM No. 222, the jury was further told: “You must decide what 

the facts are in this case. You must use only the evidence that was presented in this 

courtroom. ‘Evidence’ is the sworn testimony of witnesses, the exhibits admitted into 

evidence, and anything else I told you to consider as evidence.” (Italics added.)

Appellant now complains these instructions denied him due process, a fair trial, 

and his right to a jury determination on all issues beyond a reasonable doubt, because 

1) jurors were told, in CALCRIM No. 222 and other instructions, that they had to decide 

the facts based solely on the evidence presented in court, whereas reasonable doubt may 

be based on the absence of evidence, and 2) the “ ‘abiding conviction’ ” language is 

“archaic and incomplete” and conveys “an insufficient standard of proof akin to clear and 

convincing evidence and going only to jurors’ duration of belief in guilt, not their degree 

of certainty.” His arguments lack merit. Numerous appellate courts have rejected the 

argument that CALCRIM Nos. 220 and 222 eliminate the doctrine of reasonable doubt 

due to lack of evidence. (See People v. Zavala (2008) 168 Cal.App.4th 772, 781; People 

v. Flores (2007) 153 Cal.App.4th 1088, 1091-1093; People v. Hernández Ríos (2007) 
29

151 Cal.App.4th 1154, 1156-1157;.g., People v. Garelick (2008) 161 Cal.App.4th 1107,

1117–1119; People v. Campos (2007) 156 Cal.App.4th 1228, 1237–1238; People v. 

Guerrero (2007) 155 Cal.App.4th 1264, 1267–1269; People v. Westbrooks (2007) 151 

Cal.App.4th 1500, 1509–1510; cf. People v. Taylor (2010) 48 Cal.4th 574, 631 & fn. 15 

[rejecting claim CALJIC No. 2.90 failed to inform jury reasonable doubt could be based 

on lack of evidence].) 

Likewise, the United States Supreme Court and the California Supreme Court 

have rejected challenges to the constitutionality of CALJIC No. 2.90, which is worded 

similarly to CALCRIM No. 220. (See, e.g., Victor v. Nebraska (1994) 511 U.S. 1, 16–

17; People v. Farley (2009) 46 Cal.4th 1053, 1122.) In Victor v. Nebraska, supra, 511 

U.S. at pages 14-15, the United States Supreme Court stated: “An instruction cast in 

terms of an abiding conviction as to guilt, without reference to moral certainty, correctly

states the government’s burden of proof. [Citations.]” (Italics added.) Courts 

universally have rejected challenges to CALCRIM No. 220’s use of the phrase “abiding 

conviction,” including that it conflates the separate concepts of duration and weight. 

(See, e.g., People v. Zepeda (2008) 167 Cal.App.4th 25, 28-32; People v. Garelick, 

supra, 161 Cal.App.4th at p. 1119; People v. Stone (2008) 160 Cal.App.4th 323, 332–

334; People v. Campos, supra, 156 Cal.App.4th at pp. 1238–1239; cf. People v. Freeman

(1994) 8 Cal.4th 450, 504 & fn. 9 [suggesting modification of CALJIC No. 2.90 to refer 

to “abiding conviction” without references to “ ‘moral evidence’ ” and “ ‘moral 

certainty’ ”].) 

Appellant says he disagrees with these opinions, but does not cite a single case 

supporting his view. We see no reason to revisit the issue.

Accordingly, we conclude the trial court properly instructed the jury regarding 

reasonable doubt. 

G. Sentencing Issues

1. Multiple Life Sentences 

The trial court sentenced appellant to 13 consecutive terms of 15 years to life 

pursuant to section 667.61, commonly known as the “One Strike Law.” (See People v. 
30

Anderson (2009) 47 Cal.4th 92, 99.) Specifically, appellant was sentenced pursuant to 

subdivision (b) of section 667.61, which provides for a sentence of 15 years to life when 

a defendant is convicted of certain enumerated sexual offenses (including, as relevant 

here, violation of §§ 288a (forcible oral copulation) & 261 (forcible rape)) and where the 

prosecution pleads and proves one or more specified aggravating circumstances 

(§ 667.61, subd. (b)). Here, the jury made a true finding on one such aggravating factor, 

namely that “[t]he defendant has been convicted in the present case or cases of 

committing [an enumerated sexual offense] against more than one victim.” (§ 667.61, 

subd. (e)(4).) 

Appellant contends that he should have been sentenced “at the most” to only five 

15-years-to-life terms “one for each victim.” According to appellant, applying the 

multiple victim circumstance set forth in section 667.61, subdivision (e)(4) more than 

five times in this case violated the prohibition against multiple punishment set forth in 

section 654. We reject his claims.

a. Section 667.61

The Legislature enacted section 667.61 to ensure serious sexual offenders receive 

long prison sentences regardless of their prior criminal records. (People v. Wutzke (2002) 

28 Cal.4th 923, 926, 929; see also People v. Luna (2012) 209 Cal.App.4th 460, 465.) To 

this end, section 667.61, subdivision (b) provides, in relevant part, “any person who is 

convicted of an offense specified in subdivision (c) under one of the circumstances 

specified in subdivision (e) shall be punished by imprisonment in the state prison for 15 

years to life.” Subdivision (e)(4) of section 667.61 lists the following circumstance: “The 

defendant has been convicted in the present case or cases of committing an offense 

specified in subdivision (c) against more than one victim.” (Italics added.) 

Appellant argues that section 667.61, subdivision (e)(5), authorizes only one life 

term per victim. (People v. DeSimone (1998) 62 Cal.App.4th 693, 698.) He argues that a 

contrary interpretation violates “the plain language and spirit of section 654.” He 

acknowledges that other appellate courts have applied the multiple victim circumstance 

more than once in a single case. (See People v. Murphy (1998) 65 Cal.App.4th 35, 40-
31

41; People v. DeSimone, supra, 62 Cal.App.4th at pp. 697-698.) However, he contends 

these cases are distinguishable because neither case involved the issue of imposing more 

than one multiple victim circumstance per victim. Nevertheless, People v. Valdez (2011) 

193 Cal.App.4th 1515 (Valdez) addresses this very issue and is directly on point.

In Valdez, the defendant committed, among other things, multiple One Strike offenses 

against three victims. (Id. at p. 1518.) There, the trial court sentenced the defendant to 

consecutive terms of 15 years to life on four counts, two of which involved the same 

victim. (Ibid.) There, as here, the defendant claimed the One Strike law permitted only 

one such sentence for each crime victim. (Ibid.)

Valdez rejected the argument as a matter of statutory interpretation of section 

667.61, subdivision (e)(5). In particular, Valdez stated, “As did the defendant in [People 

v. Stewart (2004) 119 Cal.App.4th 163 (Stewart)], defendant contends the multiplevictim circumstance is different in kind from the other enumerated circumstances because 

all of the others refer to aggravating factors, such as kidnapping or the use of a dangerous 

weapon, occurring in the commission of the present offense. The Stewart court, however, 

cogently explained why that distinction makes no difference in terms of the statute’s 

application: ‘The statutory intent and scheme of Penal Code section 667.61, subdivision 

(e) is not difficult to discern. Where the “present offense” against a victim is a qualifying 

offense and the gravity of that offense is enhanced by one of the circumstances 

enumerated in subdivision (e)(1), (2), (3), (4), (6), or (7), the life sentence mandated by 

the statute shall apply. But even in circumstances where the subdivisions enumerated 

above do not apply, if a qualifying offense has been committed against more than one 

victim, the criminal conduct is considered equally severe and that conduct merits 

application of the statute so long as those offenses are prosecuted “in the present case or 

cases.” ([]§ 667.61, subd. (e)(5).)’ (Stewart, supra, 119 Cal.App.4th at p. 171; see [] 

Murphy[,supra,] . . . 65 Cal.App.4th [at p.] 41 . . . [‘[I]n making multiple convictions for 

violent sex offenses punishable by multiple life sentences, the Legislature was expressing 

the view that multiple violent sex offenses deserve more severe punishment than a single 
32

violent sex offense because of the predatory nature of the perpetrator’].)” (Valdez,

supra, 193 Cal.App.4th at p. 1522; italics added.)

In this case, appellant was convicted of committing multiple offenses against five 

different persons, with a multiple victim circumstance finding as to each offense. To that 

extent, the facts in this case are the same as those in Valdez. Valdez upheld One Strike 

law sentences imposed on each of the offenses in that case. We believe the same result 

obtains here. The only real difference between the facts in Valdez and those in this case 

is that every offense the defendant committed in Valdez apparently was committed on a 

separate occasion (Valdez, supra, 193 Cal.App.4th at pp. 1519-1520) while, in the 

present case, appellant committed all his offenses on the same occasion as against each 

victim. As previously noted, appellant committed all of his offenses against: 1) Jane 

Doe I on April 17, 2009; 2) Jane Doe II on April 19, 2009; 3) Jane Doe III on September 

11, 2009; and 4) Jane Doe IV on September 12, 2009. Nevertheless, the claims of the 

defendant in Valdez and appellant are the same, i.e., once a One Strike law sentence is 

imposed for an offense a defendant committed against a person, no such sentence can be 

imposed in the same case for another offense that defendant committed against that same 

person. (See Valdez, at p. 1522.) 

However, as explained in People v. Rodriguez (2012) 207 Cal.App.4th 204, 213 

(Rodriguez), the plain language of the One Strike law “establishes that such a 

[consecutive] sentence must be imposed on each offense.” (Italics added.) In reaching 

this conclusion, the court explained as follows: “Before September 2006, the One Strike 

law contained former subdivision (g), which stated that a One Strike sentence ‘shall be 

imposed on the defendant once for any offense or offenses committed against a single 

victim during a single occasion.’ [Citation.] If there are multiple victims during a single 

occasion, the term specified in subdivision (a) or (b) shall be imposed on the defendant 

once for each separate victim. ‘Terms for other offenses committed during a single 

occasion shall be imposed as authorized under any other law, including Section 667.6, if 

applicable.’ ” (Rodriguez, supra, 207 Cal.App.4th at p. 212, italics added.) In People v. 

Jones (2001) 25 Cal.4th 98, 100, 103, 107 (Jones), our Supreme Court concluded that the 
33

Legislature, in enacting former subdivision (g), “ ‘intended to impose no more than one 

[One Strike] sentence per victim per episode of sexually assaultive behavior.’ [¶] . . . [¶]

However, in September 2006, prior to appellant’s offenses in 2009, the Legislature 

amended the One Strike law to eliminate section 667.61, former subdivision (g) 

(Stats.2006, ch. 337, § 33, pp. 2165–2167), and the version of the One Strike law 

applicable to appellant’s offenses does not contain it. The sole provision relevant to the 

sentencing of multiple offenses under the applicable One Strike law is section 667.61, 

subdivision (i), which states that ‘the court shall impose a consecutive sentence for each 

offense that results in a conviction under this section if the crimes involve separate 

victims or involve the same victim on separate occasions as defined in subdivision (d) of 

Section 667.6.’ ” (Rodriguez, supra, 207 Cal.App.4th at pp. 212-213, fn. omitted.)

Rodriquez further explained that “[a]s the Legislature eliminated subdivision (g), 

which the courts had interpreted to limit the number of One Strike sentences properly 

imposed on multiple offenses against a single victim on a single occasion, we infer that 

the Legislature intended to abrogate this restriction.” (Rodriguez, supra, 207 Cal.App.4th 

at pp. 213-214.) Thus, the court concluded that “the applicable version of the One Strike 

law mandated the imposition of a 25-years-to-life sentence on each of appellant’s eligible 

offenses . . . .” (Id. at p. 214, italics added.) 

Here, appellant committed 13 offenses against five victims. The plain language of 

the One Strike law simply does not support a limitation of single life term per victim. 

Accordingly, the trial court did not err in sentencing appellant to a 15-years-to life 

sentence for each of appellant’s eligible offenses. 

b. Section 654 

Alternatively, appellant argues the imposition of multiple life terms violates the 

proscription against multiple punishment contained in section 654. Again, we disagree.

Preliminarily, the Attorney General asserts section 654 does not apply because the 

One Strike law is an alternative sentencing scheme, citing People v. Anderson (2009) 47 

Cal.4th 92, 102 [“Like the Three Strikes law, the One Strike law is an alternative 

sentencing scheme”].) While appellant appears to concede the issue, he argues that a One 
34

Strike term “plainly is added punishment under section 654 . . . .” (Italics omitted.) As 

we shall explain, even if section 654 is applicable, it does not preclude the sentence 

imposed.

Section 654 states an act or omission made punishable in different ways by 

different provisions may be punished under either of such provisions, “but in no case 

shall [it] be punished under more than one . . . .” Section 654 bars multiple punishment 

when a defendant is convicted of two or more offenses that are incident to one objective. 

(Neal v. State of California (1960) 55 Cal.2d 11, disapproved on another point in People 

v. Correa (2012) 54 Cal.4th 331, 341; People v. Latimer (1993) 5 Cal.4th 1203 

[reaffirming Neal].) “Whether a course of criminal conduct is divisible and therefore 

gives rise to more than one act within the meaning of section 654 depends on the intent 

and objective of the actor. If all of the offenses were incident to one objective, the 

defendant may be punished for any one of such offenses but not for more than one.” 

(Neal v. State of California, supra, 55 Cal.2d at p. 19, italics added.)

Here, the trial court found appellant committed multiple criminal acts on separate 

occasions. He is not being subjected to multiple punishments for the same act, nor is he 

being punished for the same act under different sections of the Penal Code. (See People 

v. Massie (1967) 66 Cal.2d 899, 908 [“A defendant may not bootstrap himself into 

section 654 by claiming that a series of divisible acts, each of which had been committed 

with a separate identifiable intent and objective, composes an ‘indivisible transaction’ ”]; 

see also People v. Britt (2004) 32 Cal.4th 944, 952, [“[C]ases have sometimes found 

separate objectives when the objectives were . . . consecutive even if similar”]; People v.

Surdi (1995) 35 Cal.App.4th 685, 689 [Multiple offenses were not subject to section 654 

where “they were separated by considerable periods of time during which reflection was 

possible”]; People v. Andra (2007) 156 Cal.App.4th 638, 640 [In reviewing a defendant’s 

claim that the court erred in failing to stay a sentence pursuant to section 654, the 

“defendant’s intent and objective present factual questions for the trial court, and its 

findings will be upheld if supported by substantial evidence”].) Rather, he was convicted 

of 13 sex offenses that were committed against five different victims on five different 
35

occasions. Consequently, section 654 does not bar imposition of the 13 consecutive 

sentences because appellant is not being punished for a course of conduct with but one 

intent and objective. 

c. Constitutional Claims 

Appellant contends that trial court’s “failure to follow state law–or at least 

exercise discretion . . . deprived appellant of his liberty interest in the correct application 

of state law and, hence, of due process of law.” This contention is without merit. As 

discussed, the trial court did not err in applying the One Strike law and imposing 13 

indeterminate sentences. Moreover, we are not convinced the trial court abused its 

discretion in imposing the 13 consecutive terms. Here, the trial court implicitly 

concluded the aggravating factors cited in the probation report outweighed the sole 

mitigating factor, i.e., appellant’s lack of a prior criminal record. In short, appellant fails 

to establish the trial court’s determination in this regard results in an arbitrary or 

capricious sentence. (People v. Castellano (1983) 140 Cal.App.3d 608, 615.) 

Finally, appellant makes a passing claim that application of the One Strike law 

“implicates constitutional principles of double jeopardy.” This contention is without 

merit. He acknowledges that in the “ ‘multi-punishment’ ” context, double jeopardy 

precludes a court from imposing cumulative sentences for the same conduct only when 

the Legislature fails to specifically authorize such punishment. (DeSimone, supra, 62 

Cal.App.4th at p. 700.) He, however, claims that the Legislature has not specifically 

authorized the punishment imposed in his case. He is mistaken. We will not rehash our 

analysis of this issue. Simply stated, the Legislature has authorized the punishment 

imposed in appellant’s case, so double jeopardy concerns are not implicated. (Ibid.)

2. Cruel and Unusual Punishment 

Appellant next contends that his sentence of 195 years to life constitutes cruel and 

unusual punishment. We disagree.

Preliminarily, the Attorney General argues that appellant has forfeited this issue by 

not objecting below on the grounds he raises on appeal. Electing to avoid a subsequent 

ineffective assistance of counsel claim, we exercise our discretion (see In re Sheena K.
36

(2007) 40 Cal.4th 875, 887) and review this otherwise forfeited claim, and conclude that 

it fails on the merits. 

Under Article I, section 17 of the California Constitution courts have typically 

looked to the following factors: 1) the degree of danger the offender and the offense pose 

to society; 2) how the punishment compares with punishments for more serious crimes in 

the same jurisdiction; and 3) how the punishment compares with punishments for the 

same offense in other jurisdictions. (In re Lynch (1972) 8 Cal.3d 410, 425-427 (Lynch); 

People v. Dillon (1983) 34 Cal.3d 441, 479-482.) The Eighth Amendment to the United 

States Constitution also contains a “ ‘narrow proportionality principle,’ ” but application 

of that principle is reserved for “ ‘extreme sentences that were grossly disproportionate to 

the crime.” (Ewing v. California (2003) 538 U.S. 11, 20, 23.)

Appellant’s argument focuses on the first prong of the Lynch analysis, i.e., the 

nature of the offense and the danger he poses to society. He asserts that his punishment is 

disproportionate given his lack of a criminal record, his education and employment 

history, together with the fact that “[t]esting placed him in the low risk category for 

sexual reoffending.” Appellant’s lack of criminal history aside, his convictions involved 

numerous sexually violent crimes against five young women. True, the probation 

department report assessed him as a low risk for recidivism, but his pattern of targeting 

young, vulnerable women, coupled with his threats and statements that he was affiliated 

with law enforcement, demonstrated an intent to avoid detection by intimidating his 

victims. Under the circumstances, his sentence is neither shocking nor inhumane when 

the nature of the offenses and offender are considered. (See, e.g., People v. Dillon, 

supra, 34 Cal.3d 441, 479, 482-488 [determinations whether a punishment is cruel or 

unusual may be based solely on the nature of the offense and offender]; People v. Weddle

(1991) 1 Cal.App.4th 1190, 1198–1200.)
37

3. Conduct Credits 

Appellant contends, and the Attorney General concedes, he is entitled to 

presentence conduct credits. We agree.

Section 4019 governs the award of presentence conduct credits. Section 2933.1, 

subdivision (c), provides in relevant part: “Notwithstanding Section 4019 or any other 

provision of law, the maximum credit that may be earned against a period of confinement 

in . . . a county jail . . . following arrest and prior to placement in the custody of the 

Director of Corrections, shall not exceed 15 percent of the actual period of confinement 

for any person specified in subdivision (a).” Section 2933.1, subdivision (a), applies to 

“any person who is convicted of a felony offense listed in subdivision (c) of Section 

667.5 . . . .” Forcible rape is listed in section 667.5, subdivision (c)(3). Forcible oral 

copulation is listed in section 667.5, subdivision (c)(5). 

Appellant was in county jail for 880 actual days prior to being placed in the 

custody of the Director of Corrections to begin serving his prison sentence. 

Consequently, appellant is entitled to a 15 percent credit for his time in presentence 

custody. (§ 2933.1, subd. (c).) Thus, appellant should have been awarded 132 days of 

conduct credit, for a total of 1012 days credit. We shall order the abstract of judgment be 

modified accordingly.

4. Clerical Error 

Appellant argues, and the Attorney General concedes, the sentencing minute order 

and the abstract of judgment must be amended to eliminate a stated sentence on count 11. 

We agree. 

The trial court declared a mistrial as to count 11 after the jury deadlocked. 

Accordingly, the abstract of judgment and sentencing minutes must be amended to 

remove the reference to a conviction for count 11. (See People v. Mitchell (2001) 26 

Cal.4th 181, 185 [appellate courts may order correction of clerical errors].) 
38

H. Cumulative Error 

Finally, appellant contends that the cumulative effect of the alleged errors warrant 

reversal. We reject this contention. The premise behind the cumulative error doctrine is 

that while a number of errors may be harmless taken individually, their cumulative effect 

requires reversal. (People v. Bunyard (1988) 45 Cal.3d 1189, 1236-1237.) Here, we 

have rejected nearly all of appellant’s claims of error. To the extent any instructional 

errors were identified above, they “were harmless, whether considered individually or 

collectively. [Appellant] was entitled to a fair trial but not a perfect one. [Citations.]” 

(People v. Cunningham (2001) 25 Cal.4th 926, 1009.) We have found no prejudice when 

considering his claims of error separately. Viewed cumulatively, our conclusion is the 

same. Appellant was not deprived of a fair trial.

III. DISPOSITION 

The abstract of judgment and sentencing minute order are corrected to reflect : 

1) 1012 days of presentence conduct credit pursuant to sections 4019 and 2933.1; and 

2) appellant’s acquittal on count 11. The superior court clerk is directed to prepare and 

forward the amended abstract of judgment to the Department of Corrections and 

Rehabilitation. As so modified, the judgment is affirmed. 
39

_________________________

REARDON, J.

We concur:

_________________________

RUVOLO, P. J.

_________________________

RIVERA, J.

People v. Andrade A135438
40

Trial Court: Alameda County Superior Court

Trial Judge: Hon. Allan Hymer

Counsel for Defendant and Joseph Shipp

Appellant:

Counsel for Respondents: Attorney General of California

Kamala D. Harris

Arthur Beever

People v. Andrade A135438