1

Filed 9/29/21 P. v. Purewal Received for postin g on 9/30/21. Opinion after vacat ing opinion filed on 5/27/21. NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.
RAJDEV SINGH PUREWAL,

Defendant and Appellant. C079406 (Super. Ct. No. 12F05261)

D efendant Rajdev Singh Purewal and a codefendant , Sarbjit Singh Sandu , 1 were jointly tried before separate juries and each found guilty of one count of kidnapping to commit rape (Pen. Code, § 209, subd. (b)(1)

— count 1) , 2 seven counts of forcible oral copulation in concert (former § 288a, subd. (d)

— counts 2, 5, 8, 11, 14, 17 , & 20), 3 six

1 Sandu is not a party to this appeal.

2 Undesignated statutory references are to the Penal Code.

3 This offense has been renumbered and now constitutes a violation of section 287, subdivision (d)(1).2

counts of forcible sodomy in concert (§ 286, subd. (d)

— counts 3, 6, 9, 12, 15 , & 18), and six counts of forcible rape in concert (§ 264.1

— counts 4, 7, 10, 13, 16 , & 19). ( People v.
Sandhu (Oct. 1, 2019, C079402 [nonpub. opn.]. ) With respect to counts 2 through 20, the jury also found true that defendant and Sandhu kidnapped the victim (§ 667.61, subds. (d)(2) & (e)(1)), acted in concert (§ 667.61, subds. (d)( 5 ) and (e)(7)), and tied or bound
the victim (§ 667.61, subd. (e)(5)). The trial court sentenced defendant to 482 years to life; seven years to life for count 1, and consecutive terms of 25 years to life for counts 2 through 20. Defendant appeals, arguing : (1) the trial court erred in admitting evidence that he was reluctant to provide a DNA sample to police and allowing the prosecutor to rely on
that eviden ce to show consciousness of guilt; (2) the trial court gave the jury impermissibly one

- sided instructions for evaluating his postcrime conduct ; (3) the trial court erred in admitting evidence that he and Sandhu considered stealing or borrowing a license pl ate one week before the kidnapping ; (4) the trial court’s instructions on oral copulation in concert and sodomy in concert conflicted with the instructions on aiding and abetting on the issue of intent , violating his right to due process ; and (5) section 2 09, subdivision (d) required the trial court to stay his sentence of seven years to life for count
1

. We will modify the judgment to stay the sentence on count 1. In all other respects, the judgment is affirmed.
I. BACKGROUND
A. The Crimes
Victim Jan e Doe drove home from her part

- time job on the evening of January 24, 2012. ( People v. Sandhu, supra, C079402 .) She pulled into her driveway around 9:00
p.m

. ( Ibid. ) As she was gathering her things, a man opened the driver’s side rear door and got into the backseat. ( Ibid. ) He placed what she thought was a gun to her head and ordered her to drive. ( Ibid. ) The man told Doe she would not get hurt if she cooperated. ( Ibid. ) Doe did as she was told.3

T he man instructed Doe to pull over after a minute or so. ( People v. Sandhu,

supra, C079402 .) He ordered her to put up her hands and then bound them with zip ties. ( Ibid. ) He then pushed her into the back seat and b lindfolded her with a black covering secured with duct tape. ( Ibid. ) The man also covered Doe’s mouth with duct tape. 4 ( Ibid. ) The man got into the driver’s seat and started driving. ( People v. Sandhu, supra,
C079402 .) After 10 minutes, the ma n stopped the car and got into the back seat with Doe. ( Ibid. ) A second man got into the car and started driving. ( Ibid. ) The man in the backseat made Doe drink two liquids: one that tasted like NyQuil and another that tasted
like v odka. ( Ibid. ) The car came to a stop after approximately 40 minutes of driving. ( Ibid. ) Doe was carried into a building of some kind and ordered to walk up a flight of carpeted stairs. ( Ibid. ) She was then pushed onto a bed. ( Ibid. ) The man with the gun ordered Doe to remove her clothes. ( People v. Sandhu,

supra, C079402 .) The man cut Doe’s zip ties so she could undress and t hen zip tied her hands again. ( Ibid. ) The man with the gun then left the room. ( Ibid. ) Another man
entered the room sometime l ater. He spoke with a voice that was somehow disguised to sound robotic. ( Ibid. ) He ordered Doe to suck his penis, and she did so, against her will (count 2). ( Ibid. ) The man with the robotic voice made Doe orally copulate him two more times (counts 5 & 8), inserted his penis into her anus multiple times (counts 3, 6 , & 9), and inserted his penis into her vagina (count 4). ( Ibid. ) He then left the room. ( Ibid. ) The man with the gun reentered the room. ( People v. Sandhu, supra, C079402

. )
He made D oe orally copulate him four times (counts 11, 14, 17 , & 20), and inserted his penis into her anus (counts 12 & 15) and vagina (counts 7, 10 , & 13) multiple times. ( Ibid. ) The man with the gun then left the room, and the man with the robotic voice

4 Doe remained blindfolded throughout her hours

- long ordeal. ( People v. Sandhu, supra, C079402.) The duct tape wa s removed from her mouth at some point. ( Ibid. )4

returne d. ( Ibid. ) The man with the robotic voice then put his penis in Does’ mouth, anus (count 18) , and vagina (counts 16 & 19). ( Ibid. ) When they were done, the man with the gun helped Doe into her clothes and
escorted her to her car. ( People v. Sandhu, supra, C079402

. ) He sat beside Doe in the
back seat and forced her to copulate him as the other man drove. He then made her drink more of the liquid that tasted like NyQuil. ( Ibid. ) The car came to a stop after approximately 40 minutes. ( Ibid. ) The driver left the car. The man with the gun removed Doe’s blindfold and zip ties and told her that her phone , which had been taken
from her , was in the cupholder and she could find her way home. ( Ibid. ) He warned her that she would get hurt if she told anyone what happened. He then got out of the car and walked away. Doe called her boyfriend, who called 911. ( People v. Sandhu, supra, C079402 .)
She then drove herself home. She reached home shortly after 2:00 a.m. ( Ibid. ) Police
officers arri ved around 20 minutes later. ( Ibid. ) An officer took photographs of Doe and observed red marks on her wrists and duct tape in her hair . ( Ibid. )
B. The Investigation Dr. Angela Rosas, a pediatrician specializing in child abuse and adult sexual
assault , completed a sexual assault forensic examination on Doe in the predawn hours of January 25, 2012. Doe reported that her wrists hurt, and she was experiencing pain in her vagina and anus. Doe told Dr. Rosas that she believed one of the perpetrators had w orn a condom. Dr. Rosas observed abrasions on Doe’s wrists, fresh bruises on her knees, and duct tape in her hair. Dr. Rosas also observed genital abrasions consistent with sexual contact

. Dr. Rosas could not say, however , whether the contact was cons ensual or nonconsensual.
Dr. Rosas collected swabs from Doe’s breasts, the right side of her neck, the area outside her mouth, and her vagina, cervix , and rectum

. Dr. Rosas also collected samples of Doe’s urine and blood.5

Doe was interviewed by City of Sacramento Police Detective Terri Castigli a later
that same morning

. During the course of the interview, Castiglia asked Doe for permission to search her phone an d computer , which Doe gave. Doe also provided access to her email and Facebook accounts. At the end of the interview, Doe showed Castiglia the route she had been ordered to drive by the man with the gun. Police later returned to the area and found a zip tie on the ground. Police also searched Doe’s car and found zip ties on the front passenger seat, the back seat, and the back floorboards. ( People v. Sandhu, supra, C079402. ) Police found a toy gun on the front passenger’s seat underneath Doe’s book ba g. ( Ibid. ) The toy had been painted to look real. Castiglia interviewed Doe a second time on January 31, 2012 . The interview was precipitated by Doe after she discovered a new email account on her phone

. The account,
which was created on the night o f the kidnapping, had been used to send photographs from Doe’s phone t o an unfamiliar yahoo.com email address. The photographs were
intimate self

- portraits, which Doe had taken before the kidnapping to share with her boyfriend. During the second inter view, Doe disclosed that she suspected Sandhu may have
been one of the perpetrators. Sandhu w as her cousin’s boyfriend, and Doe had visited his apartment in Yuba City on two occasions, both times as part of a group. Sandhu had previously expressed a roma ntic interest in Doe ; an interest she did not reciprocate. Although Doe had exchanged a few text messages with Sandhu years before, nothing
came of the correspondence . Doe had not communicated with Sandhu by text or email in the year preceding the kidnapping and had not sent photographs of herself to him. Nevertheless, she suspected him because he was the only person she knew who lived 30 minutes away and had his own apartm ent with carpeted stairs. Doe did not know
defendant and had never communicated with him by phone, t ext , or email. Castiglia obtained a search warrant for Sandhu’s apartment in Yuba City. The
search uncovered black zip ties in a nightstand in an ups tairs bedroom , bottles of NyQuil6

in a kitchen cabinet, and a bag containing vinyl gloves and duct tape. The search also
uncovered several cell phones. Castiglia interviewed Sandhu and then placed him under arrest. Castiglia obtained a DNA sample from Sandhu , which was compared with DNA extracted from t he cervical, vaginal, and rectal swabs collected from Doe, and found to match. DNA analysis also indicated the presence of another contributor, confirming Doe’s account of having been assaulted by two me n. Castiglia set out to determine the identity of the second man. She contacted Sandhu’s girlfriend, who provided the names of Sandhu’s close friends and family
members

. Defendant , who is Sandhu’s cousin, was among the men so identified

. Castiglia be gan contacting the men on the list

. Each of the m agreed to provide a DNA sample and was soon eliminated as a suspect. Defendant was another story. Castiglia went to defendant’s home in Davis, but he was not home. She left a
business card. Defendant called Castiglia later that day or the next day. Castiglia requested a meeting. Defendant, a college student , explained that he was busy with midterms. Nevertheless, he agreed to a meeting.
The time for the meetin g came and went, but defendant was a no show . He called Castiglia afterwards and explained that he forgot the appointment. Ca stiglia recorded the
call , which would later be played for the jury. During the call, defendant stated he was generally aware of the circumstances surrounding Sandhu’s arrest from articles he had
read online , but he was otherwise unfamiliar with the case and was not especia lly close to
his cousin. Castiglia explained that she was collecting DNA samples from Sandhu’s
close friends and family members in an attempt to identify a second suspect. She asked whether defendant would be willing to provide a sample , and he demurred, stating , “I don’t know how comfortable I am with that idea.” Defendant explained that he had spent
time at S a ndhu’s apartment in Yuba City and expressed concern that DNA testing might place him at the scene of the crime. Castiglia responded that the sample would not be7

compared to anything found in S a ndhu’s apartment. She went on to explain that
defendant was one of several men she was contacting and collecting samples from

. Defendant then said that he was not familiar with the process for collecting DNA
and would like some time to research it. Castiglia offered to explain the process, and then proceeded to do so. She concluded her explanation by saying defendant’s sample would be compared to one police already had from a second suspect and then destroyed, assuming there was no match. The following exchange then took place: “[DEFENDANT] : So basically it’s

— it’s like

— if a

— if a person you’re a sking like doesn’t voluntarily do that he’s kind of considered a suspect if

— if. “[CASTIGLIA]: Well I’m

— I mean I understand your concern.

“ [ DEFENDANT]: Uh

- huh. “[CASTIGLIA]: But yes, I mean, I would

— the thing is if you haven’t done anything wrong . . . “[DEFENDANT]: Mm

- hm. “[CASTIGLIA]: . . . there’s nothing to fear is my thing.” The conversation continued along these lines for a brief period. The following exchange then took place: “[DEFENDANT]: Um , so you guys have been doing DNA tests so, um, I don’t know if I’m allowed to ask this, but didn’t my , uh, cousin get arrested on the grounds
of

— of DNA evidence or

— or? “[CASTIGLIA]: Yeah. “[DEFENDANT]: Oh, wow. “[CASTIGLIA]: Yes he did. And

— and the t hing is that I’ve gone to plenty of other people and they’ve, um, been more than willing to give up . . . “[DEFENDANT]: Mm

- hm. “[CASTIGLIA]: . . . a DNA sample. “[DEFENDANT]: Yeah.8

“[CASTIGLIA]: So because, you know, when you explain the whole
circumsta nces and if you know, truly in your heart there’s nothing you’ve done wrong. “[DEFENDANT]: Mm

- hm. “[CASTIGLIA]: Then there’s really no reason to . . . “[DEFENDANT]: Mm

- hm. “[CASTIGLIA]: . . . to worry about it so. “[DEFENDANT]: Yeah. “[CASTIGLIA]: I mean I’ve

— I’ve contacted other family members of [S a ndhu’s] and gotten samples. I’ve contacted his friends and gotten samples. So. “[DEFENDANT]: Mm

- hm. “[CASTIGLIA]: I mean it would

— it concerns me that

— that maybe you’re not wanting to give me a sample because maybe there’s something else that’s going on. “[DEFENDANT]: Oh, no

— no

— no, nothing like that. It’s

— it’s

— it’s just the
idea of

— of

— of giving a

— a DNA sample is just

— is scary to me. I mean, I don’t know,
but I mean bas

— like, you know what I mean, fr om what you’re telling me it

— it does
make me feel a little bit more comfortable and everything and

— and, um, like I said, yeah, uh, I mean I didn’t do anything wrong so I mean I shouldn’t have anything to worry about and so, yeah I mean, I guess sometime ne xt week maybe.” Defendant and Castiglia discussed possible times for a meeting, with Castiglia offering to come to Davis the next day and defendant pushing for the following w eek. They ultimately agreed t o meet on the following Monday morning, five days from the
date of the call. Defendant did not appear for that meeting either. Just before the scheduled meeting time, defendant called Castiglia and said that he was not comfortable meeting. He indicated that he still did not understand the process for collecting DNA and wanted to conduct further research. He also indicated that a roommate’s family member had passed away, and he needed to help his roommate. Castiglia offered to come to9

Davis right away, but defendant said he was not available. He offered to contact
Cas tiglia when he became available, but he never did. In the meantime, police were examining the phones recovered from Sandhu’s apartment. They found that one of Sandhu’s phones had been used to search for the beauty supply store where Doe worked

. The sa me phone contained a video o f a woman with her eyes covered with duct tape and her hands tied behind her back with black zip
ties. 5 Another phone contained photographs of Doe that appeared to have been taken on the night she was kidnapped. Police also found a treasure trove of text messages between
S a ndhu and defendant.
Sandhu searched fo r Doe’s beauty supply store on January 13, 2012. 6 Three days later, on January 16, 2012, Sandhu sent a text message to defendant asking, “U up?” Defendant responded , “Yeah.” Sandhu then asked, “RU down to do that on Wednesday?” Defendant responded, “Yes.” Sandhu then wrote, “She gets off at nine.
Gon na B to [ sic ] late then.” Defendant responded, again, “Yes.” On January 17, 2012, Sandhu sent defendant a text message stating, “We need a license plate.” Defendant responded, “Get Polly’s?” Sandhu replied, “His car’s not there.” Sandhu then wrote, “Jack Gurdevs” ; a n apparent reference to stealing a license plate from someone named Gurdev. Defendant responded, “ I can. Will be able to put

5 The video has not been made part of the record on appeal ; however, defendant’s opening brief characterizes the content of the video as “Ms. Doe being sodomized by someone wearing a latex glove.”

6 A screenshot reflecting the name and address of Doe’s store was also later found on defendant’s phone.10

‘em back on. N it’s nuggets. LOL.” Sandhu responded, “LOL, K, cool, yeah, we could put it back on.” 7 On January 19, 2012, defendant sent Sandhu a text message asking, “Guns still drying?” On January 24, 2012 (the day of the kidnapping), at approximately 2:30 a.m., defendant sent a text message to Sandhu stating, “Cymbalta is for depression, and it’s
dela yed release, but one of the side effects is tiredness. Cellebrex [ sic ] is an arthritis pain reliever, but fuck those, get some NyQuil and we set.” Sandhu responded, “LOL, K, cool.” Defendant wrote, “Aite night,” and Sandhu replied, “We can buy it tomorr ow aite, night.” That evening, at approximately 7:00 p.m., Sandhu sent defendant a text message stating, “About to leave. Can you buy the stuff?” An hour later, Sandhu sent defendant a text message stating, “LOL, cherry?” Defendant responded, “Origi nal is better.” Sandhu replied, “K.” A short time later, defendant sent Sandhu a text message asking, “Where are you at?” Sandhu responded, “By u.” Defendant replied, “K.” Moments later, defendant wrote, “Fuck. They taking forever, it’s been ten min. ” Sandhu responded, “Go ask them. B like WTF?” Defendant replied at 8:30 p.m., “They only have two people worken [ sic ].” On the evening of January 25, 2012, after the kidnapping, Sandhu sent a text to defendant asking, “Did you find the toy?” As not ed, police found a toy gun on the front passenger’s seat of Doe’s car. Castiglia returned to Davis, armed with search and arrest warrants

. A search of defendant’s house uncovered a bottle of NyQuil in a shared bathroom but little else.
Defendant waive d his Miranda 8 rights and told Castiglia, again , that he had no firsthand

7 As discussed in greater detail post , there was no evidence that defendant or Sandhu followed through on the scheme to borrow or steal a license plate.

8 United States v. Miranda (1966) 384 U.S. 436 ( Miranda ).11

knowledge of the circumstances giving rise to Sandhu’s arrest

. Castiglia obtained a DNA sample from defendant at the time of his arrest

. Subsequent DNA analysis confirmed
that def endant’s sample matched DNA extracted from the swabs collected from Doe ’s
neck and breast

. C. The Trial Sandhu and defendant were tried together before two juries in April 2015

. Defendant’s jury heard evidence over the course of eight days. The prosecution’s witnesses testified substantially as described ante

. The jury also heard the evidence
described post

. During the course of the combined trial, j urors were informed by stipulation that blood and urine samples collected from Doe after t he kidnapping had been analyzed by the Sacramento County Crime Lab and found to be negative for alcohol, but positive for doxylamine

. Criminalist Michael Toms testified that doxylamine is an antihistamine commonly found in cold and flu preparations, inclu ding NyQuil. Presented with a hypothetical involving a person forced to consume the same quantities of alcohol and NyQuil as Doe, at the same times, Toms opined that he would not expect to see alcohol in blood or urine collected from the person the next m orning. Detective Eugene Shim, an expert in cell phone and computer forensics, testified
tha t he analyzed Doe’s phone, and he found no contacts for Sandhu or defendant and no evidence of incoming or outgoing calls or text messages to or from either one. Shim testified that an email account bearing Doe’s name had been created on January 24, 2012, at 9:49 p.m., and used to send photographs to the unfamiliar yahoo.com email account shortly thereafter

. Shim further testified that t he newly created email ac count had not been used again, while the email address for the unfamiliar yahoo.com email account had been found on Sandhu’s computer. The jury also heard that an incriminating note had been found outside defendant’s jail cell while awaiting trial in th is case. The note was addressed to defendant’s12

girlfriend, N.B. The note instructed N.B. to hack into Doe’s email and Facebook accounts and offered detailed instructions on how this might be done. Once N.B. had hacked her way into Doe’s Facebook account , she was to send defendant a message, posing as Doe, in w hich she would offer to recant her statements to police in exchange for money. Thus, if N.B. were successful in hacking into Doe’s accounts, defendant would receive a message, ostensibly from Doe, stating, “I will tell the detective I lied and
that we had consensual sex

. . . [ ¶]



### . . . but [i]f you want my help, I need $25,000.” The
note further instructed N.B. to call Doe and offer as much as $35,000 in exchange for her recanting her sexual assault allegations. Defendant did not testify or present any witnesses. However, defense counsel extensively cross

- examined Doe, and sought to undermine her credibility with evidence that she fought wit h her boyfriend in the weeks leading up to the kidnapping and , upon learning that he had attempted to initiate suggestive conversations with her coworkers, sent him a text message stating, “Fuck you. I can hide shit too, you fucking slut.”
Defense counse l also elicited evidence that Doe d ownloaded Pinger, an application that allows users to send messages and place phone calls from different phone numbers. Doe testified that she used Pinger only once, to “mess with” her boyfriend.
Defense counsel also attempted to undermine Doe’s credibility with evidence that
she told Castiglia she “always” deleted intimate photographs from her phone, but failed to delete the photographs that had been emailed to the unfamiliar yahoo.com email

account , and evidence tha t she had not warned her cousin, Sandhu’s girlfriend, that she suspected Sandhu may have been one of the perpetrators.
D. Closing Arguments The jury heard closing argument over the course of two days. The prosecutor’s closing argument framed the case a s a credibility contest between Doe and defendant on the question of consent. The prosecutor emphasized defendant’s changing story, noting that he initially told Castiglia he had no information concerning the circumstances13

surrounding Sandhu’s arrest, and only later pro f fered a consent defense, upon learning of
the existence of DNA evidence against him. The prosecutor reminded the jury that several suspects ha d been contacted during the i nvestigation and all agreed to provide DNA samples except for defendant. The prosecutor theorized that defendant had been the man with the gun and
Sandhu the man with the robotic voice , as Sandhu would have wanted to avoid being recognized by Doe, with whom he was acquainted. The prosecutor argued ther e was no evidence of consent, but extensive evidence that Sandhu and defendant plotted to kidnap and sexually assault Doe, including physical evidence ( such as the toy gun, duct tape , and zip ties ) and electronic evidence ( such as the photographs, video , a nd text messages )

. The prosecutor emphasized that there was no evidence of phone calls, text messages, or
other communications between Doe , on one hand, and Sandhu or defendant, on the other,
and no evidence that Doe communicated with Sandhu or defendant using Pinger. Defense counsel agreed that the case boiled down to a credibility contest between Doe and defendant. However, defense counsel found ample reason to question Doe’s credibility . Defense counsel observed that Dr. Rosa’s sexual assault fore nsic
examination had been inconclusive as to whether the contact with Doe had been
consensual or nonconsensual. Defense counsel further observed there was no evidence of alcohol in Doe’s blood or urine and no biological or other evidence that defendant ha d ever been in Doe’s car. Defense counsel suggested that Doe had participated in a consensual ménage à trois with defendant and Sandhu, using Pinger to cover her tracks. Defense counsel reminded the jury that Doe sent her boyfriend an angry text in the p eriod preceding the kidnapping, warning that, “I can hide shit, too.” Defense counsel theorized that Doe “set this whole thing up” in a bid for sympathy from her boyfriend. Defense counsel observed that some people use NyQuil recreationally , adding tha t the text messages between Sandhu and defendant were not necessarily inconsistent with

a n eagerly anticipated consensual encounter. Defense counsel acknowledged that14

defendant had been reluctant to provide a DNA sample but argued that defendant was
merel y confused and dismayed at a consensual encounter gone badly wrong. Defense
counsel noted that defendant ’s conduct after being contacted by police demonstrated a “consciousness of innocence,” as defendant continued his college studies a nd made no attempt to flee the country or destroy evidence

. As for the jailhouse note, defense counsel argued that defendant was merely frustrated at being locked up. In summary,
defense counsel concluded , defendant “was forced to live a nightmare when all of a
sud den a consensual sexual encounter turned into some nightmare of forced kidnapping and forced sexual assault; it never happened. ”
E. Deliberations and Verdict The jury retired for deliberations on Thursday, April 23, 2015, at 2:02 p.m

. A
little more t han an hour later, the trial court received a jury note requesting the testimony of Doe and Castiglia, the zip ties found on the ground and in Doe’s car, and the toy gun. The trial court also received a jury note requesting “DNA evidence (all).” The tria l court released the jury for the day a short time later. Deliberations resumed on Friday, April 24, 2015. The trial court arranged for the zip ties and toy gun to be sent to the jury deliberation room and asked whether jurors
wanted all of Castiglia’s lengthy testimony read back, or just a portion. The trial court
also sought clarification of the jury’s request for “DNA evidence (all).” The jury responded with a third note a short time later. The third note requested a read back of Doe’s testimony “ from the point where she describes what happened on January 24, 2012 from being taken in her driveway to the point she was returned and released (back in [her community] in her car).” The court reporter went into the jury deliberation room and
read back t he requested testimony. 9 That afternoon, at 3:23 p.m., the trial court received

9 The clerk’s minutes do not reveal whether any portion of Castiglia’s testimony was read back.15

a fourth jury note stating, “We are at an impasse, we believe we are a hung jury, what are your further instructions?” The trial court released the jury for the weekend with
instructions to return o n Monday

. The jury returned for further deliberations on Monday, April 27, 2015. At noon,
the trial court received a fifth jury note requesting the videotape of the interview of defendant following his arrest, the testimony of the officer who responded to the 911 call on January 25, 2012, and a copy of a PowerPoint presentation summarizing the DNA
evidence. The videotape and PowerPoint presentation were provided , and the testimony

was read back. Towards the end of the day, the trial court received a s ixth jury note requesting copies of the texts between Sandhu and defendant and confirmation of the date of the recorded telephone call between defendant and Castiglia. The jury was released for the day a short time later. The jury returned for another day of deliberations on Tuesday, April 28, 2015. The text messages and date of the recorded telephone call (October 12, 2012 ) were provided. At 11:58 a .m., the trial court received a seventh jury note, stating “After review instructions #220, we would li ke further explanations as to the differences between reasonable doubt and possible doubt, and how those differences should impact our decisions. Can you give us examples of reasonable doubt and possible doubt?” The jury also requested a copy of the vide o from Sandhu’s phone. A short time later, the trial court sent a response, encouraging the jury to reread CALCRIM No. 220 and indicating that a copy of the video had been provided. Later that day, the trial court received an eighth jury note, requesting clarification of the findings required by CALCRIM No.
31 82

. The jury was released for the day a short time later. The jury returned for further deliberations on Wednesday, April 29, 2015. Around noon, the trial court received a ninth jury note, reque sting a read back of “Doe’s testimony where she is describing the different sexual acts, the various positions she was16

in, and the order of the act.” 10 The trial court responded to the jury’s previous note, and the jury adjourned for the day. 11 The jury returned for further deliberations on Thursday, April 30, 2015. Around noon, the trial court received word that a verdict had been reached

. As noted, the jury found defendant guilty as charged. The jury was polled , and all jurors affirmed the

v erdicts. Nearly a month later, on May 26, 2015, one of the jurors called the trial court to say that “she now feels that she did not make the right decision in convicting Mr. Purewal.”
F. Sentencing Defendant appeared for sentencing on May 29, 2015. T he trial court sentenced defendant to seven years to life for the aggravated kidnapping charged in count 1 (§ 209, subd. (b)(1)), and consecutive terms of 25 years to life for each of the offenses charged in counts 2 through 20. Defendant filed a timely notice of appeal.
II. DISCUSSION
A. Evidence of Defendant’s Reluctance to Provide DNA Sample Defendant contends the trial court erred in admitting evidence of his reluctance to provide a DNA sample and allowing the prosecutor to rely on that evidence in closing argument. The People concede the error, but argue it was harmless beyond a reasonable doubt. We agree with the People.

10 The clerk’s minutes identify the ninth jury note as “Request No. 7,” but this appears to have been an error.

11 The clerk’s minutes do not indicate whether or when the jury received the read back requested by the ninth jury note.17

1. Additional Background Prior to trial, defendant filed a motion in limine to exclude evidence that he failed to coope rate with Detective Castiglia after his name was brought to her attention. The motion referred to defendant’s reluctance to provide a DNA sample and sought to exclude all evidence of his failure to cooperate. The trial court denied the motion pursuant to Evidence Code section 352. During the trial, the prosecutor presented evidence that Castiglia contacted five male suspects in the course of her investigation, not counting defendant and Sandhu. 12 For each suspect, the prosecutor elicited testimony that Castiglia contacted the suspect, requested and collected a voluntary DNA sample, and eventually eliminated him as a suspect. Later, the prosecutor questioned Castiglia about her attempts to schedu le a meeting with defendant. The prosecutor played the recording of the Castiglia’s telephone conversation with defendant (summarized ante ), and then asked a series of follow

- up questions. As relevant here, the prosecutor briefly questioned Castiglia abo ut her offer to come to Davis to collect defendant’s DNA sample, stating, “And when you offered to come right then to get

— to take the DNA test, what did he say?” Castiglia responded, “He wasn’t available to do that.” The prosecutor’s direct examination t hen moved on to
other matters

. Defense counsel returned to the subject of collecting a DNA sample on cross

examination of Castiglia. Defense counsel posed a series of questions confirming the substance of Castiglia’s recorded conversation with defendan t, and then elicited her agreement that she was not in a position to compel defendant to provide a DNA sample at

12 Some of these suspects had been identified by Sandhu’s girlfriend.18

the time of the call, and his unwillingness to provide a sample did not mean he was guilty of anything. Defendant’s reluctance to provide a DNA sample came up again in closing argument. The prose cutor reminded the jury that Castiglia contacted several suspects, all of whom agreed to provide DNA samples. The prosecutor continue d : “Detective Castiglia detailed out for you about these attempte d meetings with Mr. Purewal. He doesn’t want any part of it. He doesn’t want to give a DNA sample. You heard him say, hey, can I ask you a question? If I don’t want to provide a DNA sample, am I a suspect? Am I automatically a suspect? And, hey can I ask you another question? How did you catch my cousin? Wasn’t it DNA evidence? Oh, it was. Wow. That’s his response: Wow. I don’t think I want to give a DNA sample. [¶] That’s what he said. And he doesn’t. He won’t meet with the detectives. He will not provide a DNA sample .” The prosecutor continued to recount the investigative steps that led Castiglia to
defendant. She described some of the text messages found o n Sandhu’s phone, and then
stated : “Mr. Purewal, after the discovery of those text messages and the phot o s

— this is after he’s refused to meet with the detective, he’s refused to provide a DNA sample

— after those text messages and photos, that was enough for the arrest and search warrant for Mr. Purewal. He’s located and he’s followed in the c ity of Davis. He’s arrested by detectives. And the DNA sample is taken from him.” The prosecutor then conclu ded her argument without making further mention of defendant’s reluctance to provide a DNA sample.
2. Analysis Defendant argues the trial court committed constitutional error in admitting evidence that he refused to provide a DNA sample and allowing the prosecutor to rely on
that implicit assertion of Fourth Amendment rights to show consciousness of guilt . The People concede the error, and we accept the concession. ( People v. Wood (2002) 103 Cal.App.4th 803, 807

- 810 [ trial court erred in allowing animal control officer to testify,19

over defendant’s objection, that defendant refused officer’s request to enter property without a warrant] ; People v. Keener (1983) 148 Cal.App.3d 73 , 78

- 79 [ trial court erred in admitting evidence of defendant’s refusal to cons ent to warrantless entry into his residence]; see also Griffin v. California (1965) 380 U.S. 609, 614 [error for the prosecutor to comment on the defendant’s exercise of his Fifth Amendment right not to testify at trial].) Having done so, we can turn dire ctly to the question of prejudice.
We review federal constitutional errors

— including violations of the privilege to be free from comment upon the assertion of a constitutional right

—under the “ harmless beyond a reasonable doubt ” standard set forth in Chapman v. California (1967) 386 U.S. 18, 24. ( People v. Wood, supra, 103 Cal.App.4th at p. 810 [applying Chapman standard to erroneous admission of statement invoking Fourth Amendment right against warrantless search] .) Under Chap man , we “must determine whether it is clear beyond a reasonable doubt that a rational jury would have rendered the same verdict absent the error.” ( People v. Merritt (2017) 2 Cal.5th 819, 831.) “To find the error harmless we must find beyond a reasonable doubt that it did not contribute to the verdict, that it was unimportant in relation to everything else the jury considered on the issue in question.” ( People v. Song (2004) 124 Cal.App.4th 973, 984.)
The error here was harmless beyond a reasonable doubt. Defendant’s reluctance to provide a DNA sample was memorialized in the recording of his telephone conversation with Castiglia, which was admitted to show consciousness of guilt. But the telephone conversation show ed consciousness of guilt in several ways, some of which
were distinct from defendant’s constitutionally protected assertion of Fourth Amendment rights. During the course of the conversation, defendant offered excuses for missing an earlier appointment wi th Castiglia and reasons why he could not commit to a new meeting time. He also led Castiglia to believe that he was not close to Sandhu and had no firsthand knowledge of the circumstances surrounding his cousin’s arrest. These
evasions and untruths , whi ch are not said to have been improperly admitted, conveyed20

the same information as the improperly admitted evidence that defendant was reluctant to provide a DNA sample. That defendant refused to cooperate with the police investigation, for example, was c onveyed by the properly admitted evidence that he failed to appear for appointments with Castiglia. Likewise, that defendant had cause to be concerned about DNA evidence, and changed his story to account for the presence of his
DNA on swabs collected from Doe, was conveyed by properly admitted evidence that he offered one version of events to Castiglia and another, very different version at trial, after lawfully obtained DNA established that he had been in contact with Doe. The improperly admitted evidenc e that defendant was reluctant to provide a DNA sample was thus cumulative of properly admitted evidence on the issue of consciousness of guilt.
And there was more such evidence , quite apart from the incriminating telephone conversation with Castiglia

. As previously discussed , the jury also heard evidence that Sandhu and defendant were searching for the toy gun the day after the kidnapping, an exercise that would likely have been unnecessary had the toy gun been used as a mere prop in consensual role playing. More damning, t he jury heard evidence that defendant wanted his girlfriend to hack into Doe’s email and Facebook accounts to compose phony messages exonerating him. Against this properly admitted evidence , the admittedly improper evidence that
d efendant was reluctant to provide a DNA sample, and the prosecutor’s equally improper comment on that evidence, can only be viewed a s nonessential

. We therefore conclude
that the evidence concerning defendant’s reluctance to provide a DNA sample, and the prosecutor’s comment on that evidence, did not contribute to the verdict and was unimportant in relation to everything else the jury considered on the issue of consciousness of guilt, as revealed in the record. ( People v. Song, supra, 124 Cal.App.4th at p. 984 .) People v. Schindler (1980) 114 Cal.App.3d 178 ( Schindler ), on which defendant relies, does not convince us otherwise. There, the defendant shot and killed her husband21

and was tried for second degree mu rder. ( Id. at p. 181.) The defense presented “extensive evidence” that the defendant was suffering from diminished capacity and
acted in self

- defense. ( Ibid. ) Among other things, the defense introduced evidence that
the defendant was afraid of her husb and, who had shot and killed a previous wife. ( Ibid. ) The evidence was undisputed that the defendant killed her husband , but a defense psychiatrist testified she did so in a “state of panic” brought about by the husband’s threat to kill her. ( Id. at p. 182.) The prosecutor, in an attempt to rebut the defendant’s diminished capacity defense, elicited evidence that she exercised her Miranda rights in an interview shortly after the shooting, and requested, as her attorney, the man who prosecuted her husban d for the murder of his first wife. ( Id. at pp. 182

- 185.) The prosecutor commented on this evidence in closing argument, arguing that the defendant’s assertion of rights showed she was not suffering from diminished capacity. ( Id. at p p. 184

- 186.)
Th e defendant was convicted, and the court of appeal reversed. ( Schindler, supra, 114 Cal.App.3d at pp. 181 , 191.) The court found: “The prosecution not only impermissibly introduced evidence concerning [the] defendant’s exercise of her right [to
remain s ilent] but also affirmatively used this evidence in argument to convey the impression that her defense of a ‘panic state’ was fabricated.” ( Id. at p. 186.) The court further found that the prosecution impermissibly used the defendant’s “choice of defense attorney to impeach her and rebut her defense of diminished capacity.” ( Id . at p. 187.) The court concluded the errors were prejudicial, explaining: “The only issue at trial was [the] defendant’s intent and mental capacity at the time of the commission of the offense. The defense evidence was substantial. The rebuttal evidence directly attacked her defense, and the prosecutor’s argument that the evidence showed she was fabricating her ‘panic’ state was most prejudicial. ” ( Id. at p. 190.)
Schindler is distinguishable. There, the prosecutor’s improper evidence and argument struck at the heart of the defendant’s theory that she was suffering from22

diminished capacity when she shot and killed her husband. ( Schindler, supra, 114 Cal.App.3d at p. 190.) That theory was not only supported by “substantial” defense evidence, it was also “[t]he only issue at trial.” ( Ibid .) Here, by contrast, there was no evidence that Doe consented to anything that happened that night. Although Doe’s consent may ha ve been the only issue at trial, her consent could have been manifested in any number of ways (unlike the defendant’s state of mind in Schindler ), and the evidence that defendant was reluctant to provide a DNA sample was only a small piece of a much larger body of evidence showing consciousness of guilt. As we have discussed , t he improper evidence was cumulative of properly admitted evidence on the same issue,
which was not the case in Schindler . Furthermore, the inculpatory significance of the
evidence , in the context of all the other evidence received by the jury, was not that
defendant invoked his Fourth Amendment rights, but that he went from denying firsthand knowledge of the crimes against Doe in conversation with Castiglia to asserting an inconsiste nt defense at trial; namely, that she participated in a consensual sexual

encounter with him. On the record before us, we conclude that the erroneous admission of evidence showing that defendant was reluctant to provide a DNA sample, and the prosecutor’s impermissible comment on that evidence, were harmless beyond a
reasonable doubt.
Def endant resists this conclusion, pointing to the jury’s lengthy deliberations

. 13 Our Supreme Court has “sometimes inferred from unduly lengthy deliberations that the quest ion of guilt was close.” ( People v. Cooper (1991) 53 Cal.3d 771, 837.) But the re

13 Defendant also points to the fact that one of the jurors expressed regret about the verdict weeks later. However, jurors were polled the day they returned their verdict and all affirmed the verdict in open court. We cannot infer anything about the jury’s deliberations or the closeness of the case from the fact that a juror had second thoughts after the fact . ( People v. Steele (2002) 27 Cal.4th 1230, 1262 [“Not all thoughts ‘by all jurors at all times will be logical, or even rational, or, strictly speaking, correct. But such [thoughts] cannot impeach a unanimous verdict; a jury verdict is not so fragile ’ ” ].)23

was nothing to support such an inference in this case. Jurors heard eight days of testimony from 20 witnesses

. They were presented with hundreds of exhibits and numerous stipulations, many of them dealing with complex scientific and electronic
evidence. Jurors were confronted with 20 counts, 19 of which required additional findings for each of five special allegations. (§ 667.61, subds. (d)(2), (d)(6), (e)( 1), (e)(5) , and (e)(7).) They were also required to parse Doe’s hours

- long ordeal into discrete offenses and determine which were committed by defendant and which by Sandhu. Under the circumstances, it should come as no surprise that jurors requested
mul tiple readbacks and items of evidence, and even faced an impasse on the second day
of deliberations. But the jury continued to deliberate , and ultimately reached a verdict four days later. On the record before us, we cannot say that the jury’s deliberati on over the course of six days (only four of which were full days) supports a conclusion that the
case was close. Given the number and complexity of the counts, and the complicating presence of a co

- defendant , the jury’s lengthy deliberations “could as ea sily be reconciled with [its] conscientious performance of its civic duty, rather than its difficulty in reaching
a decision. ” ( People v. Walker (1995) 31 Cal.App.4th 432, 438

- 439 [declining to infer any difficulty in reaching a decision from length of de liberations where jury deliberated for six and one half hours following a two and one half hour long trial]; People v.
Houston (2005) 130 Cal.App.4th 279, 301 [concluding that four days of jury deliberations suggested “diligence” rather than a close case w here the trial involved “over three dozen witnesses occurring on 10 different days spread over three weeks, as well as lengthy closing arguments and jury instructions spread over two additional days”].)
That the jury sought clarification of the reasonab le doubt standard does not
convince us that the error was prejudicial. The jury requested an explanation of the difference between reasonable doubt and possible doubt on the fourth day of deliberations. The trial court directed the jury to reread CALCRIM No. 220, and the jury
continued to deliberate. The jury then quickly sent another note, seeking clarification of24

another instruction (CALCRIM No. 3182)

. While such requests could suggest a close case ( People v. Pearch (1991) 229 Cal.App.3d 1282, 1295), they are just as likely to suggest that jurors were carefully working their way through the instructions and asking questions as they arose. But even assuming the case was close (an assumption undermined by the consistency of the verdict), we would still find that the error was harmless beyond a reasonable doubt. Given the strength of the prosecution’s case , the weakness of the defense (which posited that Doe consented to rough sex with a stranger to garner sympathy from her boyfriend) , and the cumulative nature of the improper evidence, we perceive no reasonable possibility that the verdict would have been more
favorable to defendant had the e vidence been excluded. We therefore reject the claim of

error. B. Instructions on Post c rime Conduct
Defendant next challenges the trial court’s instructions on postcrime conduct : C ALCRIM No. 362 (false statements), CALCRIM No. 371 (suppression or fabric ation of evidence), and CALCRIM No. 372 (flight). 14 He argues that some or all of these

14 The jury was instructed with CALCRIM No. 362 as follows: “If the defendant made a false or misleading statement before this trial relating to the charged crime, knowing the statement was false or intending to mislead, that conduct may show he was a ware of his guilt of the crime and you may consider it in determining his guilt. [¶] If you conclude that the defendant made the statement, it is up to you to decide its meaning and importance. However, evidence that the defendant made such a statement cannot prove guilt by itself.” The jury was instructed with CALCRIM No. 371 as follows: “If the defendant tries to hide evidence or discourage someone from testifying against him, that conduct may show that he was aware of his guilt. If you conclude th at the defendant made such an attempt, it is up to you to decide its meaning and importance. However, evidence of such an attempt cannot prove guilt by itself. [¶] If the defendant tried to create false evidence or obtain false testimony, that conduct m ay show that he was aware of his guilt. If you conclude that the defendant made such an attempt, it is up to you to decide its meaning and importance. However, evidence of such an attempt cannot prove guilt by itself.”25

instructions violated his right to due process by informing the jury that evidence of his postcrime conduct could be used to convict, without also explaining that such evidence
could be used to acquit. Specifically , he argues jurors should have been instructed that evidence he cooperated with police by speaking with Castiglia , and evidence he remained
in Davis rather than flee ing the country , could s upport an acquittal

. 15 We are not persuaded.
N one of the instructions told jurors that defendant’s postcrime conduct could only be considered to support a finding of guilt. Rather, the instructions informed jurors that certain types of conduct could demonstrate consciousness of guilt. Each of the challenged instructions directed jurors to first determine whether the postcrime conduct occurred, and then determine the signific ance of that conduct. If , for example, jurors
determined that defendant did not make false statements to Castiglia, th ey would have no

reason to apply CALCRIM No . 362. Likewise, if jurors determined that defendant did not attempt to create false evidence or flee, they would have no occasion to apply
CALCRIM No. 371 or CALCRIM No. 372. Nothing in the instructions barred jurors from considering defendant’s other postcrime conduct. Defendant was thus free to argue
that his willingness to speak with Castigl ia and decision to remain in Davis were
evidence of innocence.

The jury was instructed with CALC RIM No. 372 as follows: “If the defendant fled immediately after the crime was committed, that conduct may show that he was aware of his guilt. If you conclude that the defendant fled, it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled cannot prove guilt by itself.”

15 Although defendant purports to challenge CALCRIM No. 371, he does not explain how evidence that he wanted N.B. to hack into Doe’s email and Facebook accounts might have support ed an acquittal.26

Furthermore, the instructions plainly informed jurors that they could not rely on evidence of defendant’s postcrime conduct as the sole basis for finding guilt. As our Supreme Court has exp lained, these instructions “made clear to the jury that certain types of deceptive or evasive behavior on a defendant’s part could indicate consciousness of guilt, while also clarifying that such activity was not of itself sufficient to prove a defendant’s guilt, and allowing the jury to determine the weight and significance assigned to such behavior. The cautionary nature of the instructions benefits the defense, admonishing the jury to circumspection regarding evidence that might otherwise be
considered decisively inculpatory

. [Citations.] We therefore conclude that these
consciousness

- of

- guilt instructions did not improperly endorse the prosecution’s theory or lessen its burden of proof.” ( People v. Jackson (1996) 13 Cal.4th 1164, 1224 [discussing CAL JIC versions of CALCRIM Nos. 361, 371 , and 372] ; see also People v.
Famalaro (2011) 52 Cal.4th 1, 35 [consciousness of guilt instruction did not violate federal constitutional rights to due process or a fair trial]; People v. Jurado (2006) 38 Cal.4th 72, 1 25 [consciousness of guilt instructions were not impermissibly argumentative or misleading, and did not permit the jury to draw irrational inferences].)
Defendant directs our attention to Cool v. United States (1972) 409 U.S. 100 ( Cool ), which, he says , “controls this case.” There, the defense relied almost exclusively on the testimony of the defendant’s alleged accomplice, which was completely exculpatory in nature. ( Id. at p. 101.) The trial court instructed the jury on accomplice testimony, in rele vant part, as follows: “ ‘I charge you that the testimony of an accomplice is competent evidence and it is for you to pass upon the credibility thereof. If the testimony carries conviction and you are convinced it is true beyond a reasonable doubt, the j ury should give it the same effect as you would to a witness not in any respect implicated in the alleged crime and you are not only justified, but it is your duty, not to throw this testimony out because it comes from a tainted source.” ( Id. at p. 102.)27

The United States Supreme Court concluded the instruction on accomplice testimony was flawed in two respects. ( Cool, supra, 409 U.S. at p. 102.) First, the court explained that “there is an essential difference between instructing a jury on the care wi th which it should scrutinize certain evidence in determining how much weight to accord it and instructing a jury, as the judge did here, that as a predicate to the consideration of certain evidence, it must find it true beyond a reasonable doubt.” ( Id

. a t p. 104

. ) Such an instruction, the court said, “impermissibly obstructs the exercise of [the right to present accomplice testimony] by totally excluding relevant evidence unless the jury makes a preliminary determination that it is extremely reliable.” ( Ibid. ) Furthermore, the court found, “the instruction . . . has the effect of substantially reducing the Government’s burden of proof.” ( Ibid. ) None of these deficiencies are present in the instructions here. As we have
discussed , the instructions did not tell jurors they could convict on the basis of postcrime conduct alone. Rather, they told jurors that evidence of false statements, attempts to create false evidence, and flight may show consciousness of guilt, but do not, by
th emselves, prove guilt. (CALCRIM Nos. 361, 371 , and 372.) As such, defendant’s analogy to Cool is inapt. (See People v. Peterson (2020) 10 Cal.5th 409, 456 [distinguishing Cool where, as here, challenged instruction could not be said to have “put
a thumb on the scale of the jury’s deliberations by informing them they could return a guilty verdict based entirely on one piece of the prosecution’s evidence”].) We therefore reject the claim of instructional error.28

C. Admission of License Plate Evidence
Defendant next argues the trial court erred in admitting , over defense objection, a
series of text messages suggesting that defendant and Sandhu contemplated stealing or borrowing a license plate a week before the kidnapping. 16 We perceive no error. Evidence Code section 350 provides that only relevant evidence is admissible. Evidence is relevant if it has some “tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code, § 210.) “The test of relevance is whether the evidence tends ‘ “logically, naturally, and by reasonable inference” to establish material facts such as identity, intent, or motive.’ ” ( People v. Carter (2005) 36 Cal.4th 1114, 1166.) A trial court has bro ad discretion in determining the relevance of evidence. ( Id. at pp. 1166

- 1167.) Even relevant evidence may be excluded if its “ probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption
of t ime or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” (Evid. Code, § 352.) We review for abuse of discretion a trial court’s ruling to admit or exclude relevant evidence under Evidence Code section 352. ( People v. Hamilton (2009) 45 Cal.4th 863, 929

- 930.) An abuse of discretion is “established by ‘a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of just ice.’ ” ( People v. Carrington (2009) 47 Cal.4th 145, 195.) Defendant argues the text messages were irrelevant and inflammatory. He emphasizes that there was no evidence anyone actually followed through on a plan to

16 As noted ante , the series began with a text message from Sandhu to defendant stating, “We need a license plate.” Defendant responded, “Get Polly’s?” Sandhu replied, “His car’s not there.” Sandhu then wrote, “Jack Gurdevs.” Defe ndant responded, “I can. Will be able to put ‘em back on. N it’s nuggets. LOL.” Sandhu replied, “LOL, K, cool, yeah, we could put it back on.”29

borrow or steal a license plate and claims that any connection between the text messages and charged crimes was speculative. We disagree. The evidence showed that Sandhu searched for Doe’s place of employment on January 13, 2012. Sandhu exchanged one series of text messages with defendant on January 16, 2012, confirming that defendant was “down” to do something on Wednesday, noting that , “She gets off at nine.” Sandhu and defendant exchanged the challenged text messages on January 17, 2012, discussing the possibility of stealing or borrowing a license plate. Defendant sent Sandhu a text message inquiring whether the
guns were “ still drying ” on January 19, 2012. Defendant and Sandhu exchanged additional text messages on the day of the kidnapping, covering such topics as NyQuil,
the side effects of other medications, and their impatience with some sort delay

. The evidence thus showed that Sandhu and defendant discussed the possibilit y of stealing a license plate around the time they were researching Doe’s place of employment, painting a toy gun, and considering the side effects of various medications. The substance and timing of the challenged text messages, considered in the

conte xt of the other communications between Sandhu and defendant in the period preceding the charged crimes , raise d a reasonable inference that Sandhu and defendant considered kidnapping Doe in a car disguised with stolen plates , and thus had a tendency
in reas on to show planning. Evidence that Sandhu and defendant were planning a kidnapping in a car disguised with stolen plates was relevant and admissible to show that they committed a kidnapping, albeit in a different car, one week later. ( People v. Case (201 8) 5 Cal.5th 1, 39

- 40 [evidence that the defendant was planning to commit one robbery was relevant and admissible to show that he later committed another robbery];
see also People v. Balcom (1994) 7 Cal.4th 414, 424 [“Evidence that the defendant possessed a plan to commit the type of crime with which he or she is charged is relevant

to prove the defendant employed that plan and committed the charged offense”].) That Sandhu and defendant may have changed their planning with respect to the car used to30

carry Doe away does not render evidence of their original plan irrelevant or inadmissible. On the record before us, t he trial court could reasonably conclude that the challenged messages were relevant to show planning to commit the charged crimes and were
nowhe re near as inflammatory as the crimes themselves. We therefore find no abuse of
discretion in the admission of this evidence. And because there was no abuse of discretion, there was no violation of defendant’s right to due process and a fair trial. ( Peo ple v. Panah (2005) 35 Cal.4th 395, 482, fn. 31; People v. Benavides (2005) 35 Cal.4th 69, 95.)

D. “In Concert” Instructions Defendant next challenges the trial court’s instructions on oral copulation in concert (counts 2, 5, 8, 11, 14, 17 , & 20) and sodomy in concert (counts 3, 6, 9, 12, 15 , & 18). He argues the trial court’s in concert instructions (CALCRIM No s . 1016 and 1031 )
conflicted with the court’s instructions on aiding and abetting (CALCRIM No s

. 400 and 401). He notes the in concert ins tructions define oral copulation and sodomy as general intent offenses, while the aiding and abetting instruction requires a specific intent to assist the perpetrator. He argues the supposed conflict on the issue of intent allowed jurors to find him guilt y of oral copulation and sodomy in concert without finding that he intended to aid and abet Sandhu in the commission of the crimes, and thus violated his right to due process. Defendant’s argument lacks merit. The trial court instructed the jury on aidin g and abetting with CALCRIM Nos. 400
and 401 as follows: “A person may be guilty of a crime in two ways. One, he may have directly committed the crime. I will call that person the perpetrator. Two, he may have aided and abetted a perpetrator, who direc tly committed the crime. [¶] A person is guilty of a crime whether he committed it personally or aided and abetted the perpetrator.” (CALCRIM No. 400.) “To prove that the defendant is guilty of a crime based on aiding and abetting that crime, the Peopl e must prove that: [¶] (1) The perpetrator committed31

the crime; [¶] (2) The defendant knew that the perpetrator intended to commit the crime; [¶] (3) Before or during the commission of the crime, the defendant intended to aid and abet the perpetra tor in committing the crime; [¶] AND [¶] (4) The defendant’s words or conduct did in fact aid and abet the perpetrator’s commission of the crime. [¶]
Someone aids and abets a crime if he knows of the perpetrator’s unlawful purpose and he specificall y intends to, and does in fact, aid, facilitate, promote, encourage, or instigate the perpetrator’s commission of that crime. [¶] If all of these requirements are proved, the defendant does not need to actually have been present when the crime was commit ted to be guilty as an aider and abettor.” (CALCRIM No. 401.) The trial court instructed the jury on oral copulation in concert with CALCRIM No. 1016, which provides, in part, as follows: “To prove that the defendant is guilty of this crime, the Peopl e must prove that: [¶] (1) The defendant personally committed oral copulation and voluntarily acted with someone else who aided and abetted its commission; [¶] OR [¶] (2) The defendant voluntarily aided and abetted someone else who personally commit ted oral copulation.” The trial court instructed the jury on sodomy in concert with CALCRIM No. 1031, which tracks CALCRIM No. 1016. The trial court’s in concert instructions thus provided two ways defendant could be found guilty: H e could either be f ound to have personally committed the offense and voluntarily acted with someone else who aided and abetted its commission, or he could be found to have voluntarily aided and abetted someone else who personally committed the offense. (CALCRIM Nos. 1016 an d 1031.) Defendant appears to focus on the
second way he could have been found guilty of an in concert sexual offense , through aiding and abetting. To find guilt under an aiding and abetting theory, the jury would32

have been required to find that defendan t voluntarily aided and abetted Sandhu, who personally committed oral copulation or sodomy. 17 Reading the instructions as a whole, as we must, we are satisfied that a reasonable jury would have had no difficulty discerning the requisite intent for findi ng guilt for an in concert offense under an aiding and abetting theory. ( People v. Wilson (2008) 44 Cal.4th 758, 803

- 804.) Each of the challenged in concert instructions referred the jury back to the aiding and abetting instructions, which made clear tha t to find that defendant aided
and abetted in the commission of a crime , the jury had to find beyond a reasonable doubt that he had the intent to aid and abet the perpetrator in committing the crime: “Before or during the commission of the crime, the defe ndant intended to aid and abet the perpetrator in committing the crime.” (CALCRIM No. 401; see also CALCRIM Nos. 1016 and 1031.) In order to find defendant guilty of an in concert offense under an aiding and abetting theory, the jury would have had to fi nd that he a specific intent to encourage, facilitate , or instigate Sandhu’s commission of the offense. (CALCRIM No. 401.) Contrary to defendant’s contention, therefore, the jury could not have found him guilty of an in

- concert offense on an aiding and abetting theory unless jurors found that

17 To find defendant guilty under the first theory, the jury would have been required to find that he perso nally committed oral copulation or sodomy (both general intent crimes) and that he voluntarily acted with Sandhu who aided and abetted its commission. The in concert instructions refer the jury to the aiding and abetting instructions, which make clear tha t it must be proven beyond a reasonable doubt that “[b]efore or during the commission of the crime, the defendant intended to aid and abet the perpetrator in committing the crime.” (CALCRIM No. 401 ; see also CALCRIM Nos. 1016 and 1031.) To find defendant guilty under this theory, then, the jury would have had to conclude that defendant committed the sexual offense and that Sandhu had the specific intent to aid and abet him. Defendant’s argument that he could have been found guilty of an in concert sexual offense without having the requisite specific intent to aid and abet does not appear to apply to this basis for criminal liability, for under this theory, defendant would have been aided and abetted by Sandhu, rather than defendant aiding and abetting him

.33

he had the specific intent to encourage, facilitate , or instigate Sandhu as the perpetrator of
th e offense. The trial court correctly instructed the jury that to find defendan t guilty for oral copulation and sodomy in concert, the prosecution was required to prove that defendant either personally committed the offense while voluntarily acting with someone else (Sandhu) who aided and abetted its commission, or that defendant spe cifically intended to encourage, facilitate , or instigate Sandhu’s commission of the offense. These
instructions properly informed the jury of the intent required for the in concert sexual
offenses . (See People v. Keovilayphone (2005) 132 Cal.App.4th 491 , 496

- 497.) We therefore reject defendant’s claim of instructional error.
E. Sentence for Aggravated Kidnapping Finally, defendant argues his sentence of seven years to life for aggravated kidnapping to commit rape (§ 209, subd. (b)(1)

— count 1 ) should have been stayed pursuant to section 209, subdivision (d), which prohibits punishment for the same act (here, kidnapping) that constitutes a violation of both section 209, subdivision (b) and section 667.61. (§ 209, subd. (d).) The People concede the is sue, and we accept the
concession. (See People v. Adams (2018) 28 Cal.App.5th 170, 192

- 194 [sentence for aggravated kidnapping must be stayed based on section 667. 61 , subdivision (d)(2) qualifying circumstances].)34 III. DISPOSITION The judgment is modified to stay the sentence on count 1. As so modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment and to forward a certified copy to the Department of Corrections and
Rehabilitation

.

/S/
RENNER, J.

We concur:

/S/ BLEASE, Acting P. J.

/S/
HOCH, J.