P. v. Sherman

Filed 08/28/17 P. v. Sherman CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
RAYMOND SHERMAN et al.,
Defendants and Appellants.
B263502
(Los Angeles County
Super. Ct. No. BA406798)
APPEAL from a judgment of the Superior Court of
Los Angeles County, Ronald S. Coen, Judge. Affirmed.
Edward J. Haggerty, under appointment by the Court of
Appeal, for Defendant and Appellant Raymond Sherman.
Patricia J. Ulibarri, under appointment by the Court of
Appeal, for Defendant and Appellant Everett Allen.
Gideon Margolis, under appointment by the Court of
Appeal, for Defendant and Appellant Troy Hammock.
Kamala D. Harris, Attorney General, Gerald A. Engler,
Chief Assistant Attorney General, Lance E. Winters, Assistant

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Attorney General, Victoria B. Wilson and Carl N. Henry, Deputy
Attorneys General, for Plaintiff and Respondent.
_________________________
Defendants and appellants Raymond Sherman, Troy
Hammock and Everett Allen were convicted of various crimes,
including robbery, stemming from an after-hours takeover of a
Nordstrom Rack during which 14 employees were held.
Defendants appeal their convictions and contend, among other
things, that the prosecutor committed misconduct by asking
“were they lying” questions. Defendant Sherman, unlike the
other defendants, was also convicted of forcible rape, forcible oral
copulation and aggravated kidnapping, and he raises several
contentions regarding those convictions. We reject these and
defendants’ other contentions regarding sentencing errors and
affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
I. Factual background
A. The prosecution’s case
1. The robberies, assault and sexual assaults
at Nordstrom Rack
Nordstrom Rack is a large department store in the Howard
Hughes Center located off the 405 Freeway. From 2003 to 2006,
defendant Sherman worked there as a loss prevention agent.
Defendant Allen, who is Sherman’s brother, also worked at that
store between 2006 and 2007. There are two ways to enter or exit
Nordstrom Rack: through the front public entrance and through
the third floor employee exit, which leads directly to the parking
structure. There is a long, nonpublic hallway off the employee

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exit which leads to a “cash room,” store manager’s room, coffee
room and employee restroom.1
On the night of January 10, 2013, fourteen people were
working at the store: Rochelle Evans, Kameron Davie, Buelynn
Sullens, Rachel Klewicki, Aida Mendoza, Priscilla Hernandez,
Sean Davis, Luisa “Janet” Bautista, Yoselin Jacinto, Jennifer
Cabrera, Dorian McCoy, Laneisha Williams, Nancy Gutierrez,
and Rhonda A.
The store closed at 10:00 p.m. The employees commenced
with their closing procedures, which included putting money into
the safe located in the cash room, which was locked with a key
pad.
Once the employees were done with their closing routine,
they lined up at the employee exit at 11:00 p.m. Williams armed
the store alarm. When one of the employees opened the exit door,
Sherman rushed in with a gun and a knife. Allen and Hammock
also entered.2
Sherman told the employees to lie facedown on the ground
and not to “fucking” look at them. Sherman kicked Davie. The
employees were ordered to strip down to their underwear, then
ushered into the employee restroom and made to stand facing the
1 The employee restroom is about half the size of the jury box
but deeper in width.
2 Although the men wore some kind of head or face
coverings, employee Davis identified Allen and Hammock as the
men with Sherman. Davis said that one man (not Sherman)
wore a “stocking cap.” According to Davis, Allen also had a gun.
Employees Evans and Hernandez heard one man call, “ ‘Hey, E.’ ”
Bautista heard someone refer to “E,” or “G” or “D.”

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wall. They were told they would be shot or killed if they did not
comply.
One man demanded, “ ‘Who is L.P?’ ” (loss prevention).
When Williams identified herself, someone kicked her. A knife
was put to her back, and she was taken to disarm the store
alarm.
Sherman also wanted someone to open the cash room and
its safe. Sherman pointed at Sullens and said, “ ‘You, you can,’ ”
and took her to the cash room. After she entered the code,
Hammock went into the room with her. When Sullens had
trouble opening the safe, Sherman warned her to open it on the
count of five or he would “ ‘start shooting people and it will be on
you.’ ” Sullens managed to open the safe.
Initially, two employees, Bautista and Jacinto, hid in the
locker room. Bautista called her husband and told him to call
911. She secreted her phone inside her bra. On discovering
Bautista and Jacinto, Allen grabbed Bautista by her hair and
fondled her breast. He took her phone and asked if she’d called
“ ‘the cops, bitch?’ ” She denied it, but he stuck a knife to the
back of her head, leaving a puncture wound, and told her she was
going to die. Allen “bashed” her head against the doorway. One
man “kept on saying, ‘Just kill them. Just kill them. They called
the cops.’ ”
Jacinto and Bautista were taken into the hall and told to
face the wall. Sullens was pushed into the hall and fell. When
Bautista tried to help Sullens, Allen kicked Bautista and said,
“ ‘No one told you to help her, bitch. Stop trying to be a hero.’ ”
Allen told Bautista she would be the first to die, and he hit her
with the gun all over her face, neck and shoulders. Allen told
Bautista to “ ‘[g]et ready to die, bitch,’ ” and he put the gun to her

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head. Bautista, Jacinto and Sullens were taken into the restroom
with the others.
At some point, Sherman took employee Rhonda from the
restroom to look for Williams’s purse, where Williams had said
she put the loss prevention office keys. Rhonda retrieved the
keys and gave them to Sherman. Sherman then took her to the
loss prevention office. They went through a “combination door”
into the stock room, through the stock room, through double
doors, and across the sales floor. Sherman unlocked the door to
the loss prevention office and led Rhonda to the darker portion of
the room. Unbuckling his pants, he asked if she wanted to die.
Sensing what was coming, she replied, “ ‘I’d rather die.’ ”
Sherman raped Rhonda and forced her to orally copulate him,
ejaculating into her mouth.3 After, she heard him breaking
“some machines.” Sherman returned Rhonda to the restroom
with the others. Crying and hysterical, she told them she had
been raped. She had semen on her leg, which she wanted to
wash off, but the others told her not to.4
The employees waited in the small restroom. After not
hearing anything for some time, Davie left the restroom and
called 911. Police came in to get the employees at 3:00 a.m.
3 The next day, Rhonda had a SART examination. Rhonda
had some superficial lacerations to her external genital area.
The physical examination was consistent with the history
Rhonda gave, although the nurse could not say the lacerations
resulted from a forceful sexual act.
4 DNA analysis confirmed that Sherman’s semen was on
Rhonda’s leg and the carpet in the loss prevention office.

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2. The investigation
Bautista’s husband called the police. He went to
Nordstrom Rack, where he waited outside. Officer Joseph
Rooney first responded to the scene. He saw a white Ford
Explorer backed into a parking space near the employee exit and
heard it start. The driver ignored an officer’s order to stop.
Three people were in the car, but Officer Rooney could only
identify Sherman.
Meanwhile, Bautista’s husband was monitoring the
location of Bautista’s phone. At some point, her phone was no
longer at the store; it was in Culver City, at Globe Avenue and
Washington. At approximately 2:00 a.m., officers went to that
location, where they found the Explorer parked sideways in a
driveway. They found latex gloves, a knit cap and black ski mask
with a visor in the car. Three $20 bills were on the street to the
side of the car and, scattered throughout the area, officers found,
among other things, cell phones, latex gloves, a knife, a gun
registered to Sherman, and, next to the gun, a loaded magazine.
While securing the area around the Explorer, officers
discovered defendant Hammock and Rochelle Sherman5
(defendants Sherman’s and Allen’s sister) walking in the area.
Hammock had nothing on him. During the patdown, Rochelle got
a phone call from “Ray.”
The Explorer used in the crimes belonged to Everesha
Allen, another sister of defendants Sherman and Allen, and
defendant Hammock’s girlfriend. The night after the robbery,
detectives interviewed Everesha and she told them the following:
5 To avoid confusion, we refer to members of defendants
Sherman’s and Allen’s family by their first names.

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she had let Sherman borrow the Explorer the previous night.6
Sherman, Allen, Hammock and Im’Unique Sherman (Rochelle’s
daughter and Sherman’s niece) went to Sherman’s house so that
Im’Unique could babysit Sherman’s children. Later, at
approximately 11:30 p.m., Hammock called Everesha and asked
her to pick him up in Culver City. Everesha and Rochelle went to
pick up Sherman and Allen, using Rochelle’s car. At some point,
Everesha, Rochelle, Im’Unique and Hammock returned to get the
Explorer, but they did not have the car keys. Hammock and
Rochelle got out of the car and went to look for street signs, so
they could give their location to AAA.
On January 12, 2013, officers arrested Allen, who was with
his fiancée, Paula Bradley, at a hotel on Western Avenue.
Officers recovered approximately $3,718, some of which was
hidden under the carpet and in the toilet, from the room and
Allen’s person.
Sherman was also arrested on January 12, 2013, at a bus
station in Arizona. He had $3,112 in cash and two cell phones.
Almost $10,000 in cash and $5,000 in checks were taken
from Nordstrom Rack.
An analysis of cell phone records showed that on the night
of the robberies, from approximately 10:00 p.m. to 10:16 p.m., cell
phones associated with defendants were either at or near
Nordstrom Rack. The last calls made at or near Nordstrom Rack
were at approximately 11:18 p.m., and then the phones travelled
down the 405 Freeway.
6 However, Everesha testified that she did not let anyone
borrow her car on January 10, 2013 and indeed had reported it
stolen.

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Bautista identified Allen from a photographic six-pack.
She did so on the basis of his eyes, because he wore a bandana
during the robbery.
DNA from items recovered from the Explorer (e.g., the
black knit mask and baseball cap) matched Allen’s DNA profile.
A palm print on the outside driver’s side rear door of the Explorer
matched Hammock’s print.
B. Sherman’s testimony
Sherman testified in his defense. He admitted to
committing the robberies, but he denied that Allen and Hammock
were involved. Sherman claimed instead that he had committed
the robberies with “Nendel” or “Nadell” Dowers, a homeless
crackhead, and Troy Starks. Only Sherman had a gun that
night, and it was unloaded. However, he let Dowers and Starks
use the gun during the robbery. Sherman also gave his brother
Allen’s cell phone to Starks to use.
Sherman also denied raping Rhonda. Instead, he claimed
that he and Rhonda were in cahoots. In January 2013, he saw
Rhonda at the Howard Hughes Center, introduced himself, and
she said her name was “Vera.” Over four meetings and phone
calls, they concocted the robbery scheme, and they also talked
about her suing Nordstrom Rack for assault.7 When Sherman
talked to Rhonda over the phone, he used a prepaid cell phone,
which he lost the night of the robbery. Rhonda told him that an
older, White lady with blonde hair could open the safe. During
the robbery, when he took Rhonda to the loss prevention office,
his plan was to disable the surveillance equipment. Because
7 Rhonda did file a civil lawsuit against the Howard Hughes
Center.

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Sherman was worried that Bautista had called the police,
Rhonda voluntarily orally copulated him to calm him down.
Sherman, Dowers and Starks drove the Explorer to Culver
City and left it near Globe Street. Dowers left with the money.
Starks and Sherman hid in the area, afraid that police officers
were looking for them. Sherman hid the gun, not wanting to get
caught with it. He had no idea how the magazine could have
been recovered with the gun, because the gun was unloaded and
his magazines were at his house.
Sherman called his sister, Rochelle. He did not call anyone
from his brother Allen’s phone, although Sherman had retrieved
that phone from Starks. Sherman got on a bus to Dallas.
C. Hammock’s defense
Hammock introduced the testimony of an eyewitness
identification expert. He also introduced evidence that Sullens
was unable to identify him from a photographic line-up three
days after the robbery.
II. Procedural background
Sherman, Hammock and Allen were jointly tried for crimes
arising out of these events. On March 6, 2015, a jury found them
guilty of the following offenses and allegations.
A. Sherman
Sherman was convicted of: count 2, forcible rape (Pen.
Code, § 261, subd. (a)(2)),8 with true findings on enhancement
allegations (§ 667.61, subds. (a) & (d), (a) & (e), (b) & (e))9; count
8 All further undesignated statutory references are to the
Penal Code.
9 The jury acquitted Sherman of count 1, forcible rape (§ 261,
subd. (a)(2)).

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3, forcible oral copulation (§ 288a, subd. (c)(2)(a)), with true
findings on enhancement allegations (§ 667.61, subds. (a) & (d),
(a) & (e), (b) & (e)); count 4, kidnapping to commit rape (§ 209,
subd. (b)(1)) with a true finding on a gun allegation (§ 12022.53,
subd. (b)); and counts 5-18, second degree robbery (§ 211), with
true findings on gun allegations (§§ 12022, subd. (a)(1), 12022.53,
subd. (b)).
B. Hammock
Hammock was convicted of counts 5-18, second degree
robbery (§ 211) with true findings on gun allegations (§ 12022,
subd. (a)(1)).
C. Allen
Allen was convicted of: counts 5-18, second degree robbery
(§ 211) with true findings on gun allegations (§ 12022, subd.
(a)(1)) as to counts 5, 6, and 9-18 and true findings on personal
gun use allegations (§ 12022.53, subd. (b)) as to counts 7
(Jacinto), 8 (Davis) and 18 (Bautista); and of count 19, assault
with a deadly weapon (§ 245, subd. (a)(1), Bautista).
D. Sentencing
Defendants were sentenced on April 8, 2015. After a court
trial on prior conviction allegations, the trial court found that
Sherman and Hammock each had a prior conviction within the
meaning of the “Three Strikes” law (§§ 1170.12, subds. (a)-(d),
667, subds. (b)-(i)).
The court denied Sherman’s Romero10 motion. The court
imposed consecutive sentences on Sherman as follows: count 5,
the midterm of three years doubled due to the prior strike to six
10 People v. Superior Court (Romero) (1996) 13 Cal.4th 497
(Romero).

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years, plus 10 years (§ 12022.53, subd. (b)), plus one year stayed
(§ 12022, subd. (a)(1)), counts 6-18, one year doubled to two years,
plus three years four months each (§ 12022.53, subd. (b)), plus
four months stayed (§ 12022, subd. (a)(1)); count 2, 25 years to
life doubled to 50 years to life (§ 667.61, subds. (a) & (d)), plus 50
years to life stayed (§ 667.61, subds. (a) & (e)), plus two terms of
30 years to life, each stayed (§ 667.61, subds. (b) & (e)); count 3,
25 years to life doubled to 50 years to life consecutive to count 2
(§ 667.61, subds. (a) & (d)), plus 50 years to life stayed (§ 667.61,
subds. (a) & (e)), plus two terms of 30 years to life, each stayed
(§ 667.61, subds. (b) & (e)); and count 4 (stayed), life plus 10 years
(§ 12022.53, subd. (b)). Sherman’s total sentence therefore was
100 years to life plus 85 years four months.
The trial court imposed consecutive sentences on Allen as
follows: count 7 (base term), the midterm of three years, plus 10
years (§ 12022.53, subd. (b)), plus one year stayed (§ 12022, subd.
(a)(1)), count 5, one year, plus four months (§ 12022, subd. (a)(1));
count 6, one year, plus four months (§ 12022, subd. (a)(1)); count
8, one year, plus three years four months (§ 12022.53, subd. (b)),
plus four months stayed (§ 12022, subd. (a)(1)); counts 9-14, one
year each, plus four months each (§ 12022, subd. (a)(1)); counts
15-17, one year each, plus four months each (§ 12022, subd.
(a)(1)); count 18, one year, plus three years four months
(§ 12022.53, subd. (b)), plus four months stayed (§ 12022, subd.
(a)(1)); and count 19, one year. Allen’s total sentence was 37
years four months in prison.
As to Hammock, the trial court selected the high term for
the base term because Hammock was on parole when he
committed the robberies. The court imposed consecutive
sentences as follows: count 5, the high term of five years doubled

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based on the prior strike to 10 years, plus one year (§ 12022,
subd. (a)(1)); and counts 6-18, one year doubled to two years each,
plus four months each (§ 12022, subd. (a)(1)). Hammock’s total
prison sentence therefore was 41 years four months.
DISCUSSION
I. Exclusion of Sherman’s statements to the police
about the alleged plan with Rhonda
At his arrest, Sherman told detectives that he and Rhonda
were accomplices and that he did not sexually assault her. The
trial court excluded this statement, rejecting Sherman’s theory
that the evidence was admissible as a prior consistent statement.
Sherman contends that his statements, which he concedes were
hearsay (Evid. Code, § 1200), were admissible under Evidence
Code section 791. Under the applicable abuse of discretion
standard of review (People v. Kopatz (2015) 61 Cal.4th 62, 85;
People v. Waidla (2000) 22 Cal.4th 690, 717), we reject that
contention.
Evidence Code section 791, in combination with Evidence
Code section 1236,11 “makes evidence of a witness’s prior
11 Evidence Code section 1236 provides: “Evidence of a
statement previously made by a witness is not made inadmissible
by the hearsay rule if the statement is consistent with his
testimony at the hearing and is offered in compliance with
Section 791.”
Evidence Code section 791 provides:
“Evidence of a statement previously made by a witness that
is consistent with his testimony at the hearing is inadmissible to
support his credibility unless it is offered after:

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consistent statement admissible if it is offered after an ‘implied
charge has been made that [the witness’s] testimony at the
hearing is recently fabricated . . . and the statement was made
before the . . . motive for fabrication . . . is alleged to have
arisen.’ ” (People v. Brents (2012) 53 Cal.4th 599, 615.) The
exception thus has a “temporal” requirement. (Id. at p. 616.)
That is, the prior consistent statement must be made before the
existence of any one of the motives to lie. (People v. Noguera
(1992) 4 Cal.4th 599, 628; People v. Hillhouse (2002) 27 Cal.4th
469, 492.)
Sherman cannot satisfy the temporal requirement. His
statement to detectives on January 12, 2013 (when he was
arrested) postdated his motive to lie about the sexual assault.
His motive to lie arose at the time he committed the crimes on
January 10. And it undoubtedly arose at the moment he was
arrested. Indeed, Sherman admits that “some motive to
exonerate himself of the sexual offense charges existed as early
as the commission of the crimes.” But he suggests that an “even
greater motivation arose” when he was arrested and the rape
charges were filed, thereby exposing him to multiple life prison
terms. Other than making this bare assertion in his opening
“(a) Evidence of a statement made by him that is
inconsistent with any part of his testimony at the hearing has
been admitted for the purpose of attacking his credibility, and the
statement was made before the alleged inconsistent statement; or
“(b) An express or implied charge has been made that his
testimony at the hearing is recently fabricated or is influenced by
bias or other improper motive, and the statement was made
before the bias, motive for fabrication, or other improper motive
is alleged to have arisen.”

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brief on appeal, Sherman points to no evidence in the record of
such a “motivation.” (See, e.g., People v. Hillhouse, supra,
27 Cal.4th at pp. 491-492 [defendant implied at trial that plea
agreement provided an additional motive; prior consistent
statement admissible].)
In any event, Sherman parses “motive” too finely. His
incentive to lie might have increased when charged with rape, but
his motive to do so was no different than when he committed the
crimes. There was but one motive and it arose before he made
the statements to detectives. The statement therefore was not
admissible under Evidence Code sections 791 and 1236.
II. Aggravated kidnapping
Sherman contends that his conviction for aggravated
kidnapping should be reversed because (1) the aggravated
kidnapping statute (§ 209, subd. (b)) is void for vagueness, and
(2) there is insufficient evidence to support the asportation
element of the crime. We reject both contentions.
A. Void for vagueness
Sherman contends that recent United States Supreme
Court authority, Johnson v. U.S. (2015) 135 S.Ct. 2551 (Johnson),
changed the law regarding void-for-vagueness challenges to
criminal statutes, and, under this “new” law, the aggravated
kidnapping statute (§ 209, subd. (b)(2)), is unconstitutionally
vague. We disagree.
Johnson did not change the law concerning “void for
vagueness” challenges to criminal statutes. That law is well-
settled. (See generally Kolender v. Lawson (1983) 461 U.S. 352,
357-358.) Johnson merely applied those principles to the Armed
Career Criminal Act of 1984 (18 U.S.C. § 924). That act imposed
a more severe punishment on a defendant convicted of being a

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felon in possession of a firearm if the defendant had three or
more prior convictions for a “ ‘violent felony.’ ” The act’s “residual
clause” defined “violent felony” to include any felony involving
“ ‘conduct that presents a serious potential risk of physical injury
to another.’ ” (Johnson, supra, 135 S.Ct. at pp. 2555 & 2556.)
Johnson held the residual clause unconstitutionally vague
for two reasons. First, it leaves “grave uncertainty about how to
estimate the risk posed by a crime,” since it “ties the judicial
assessment of risk to a judicially imagined ‘ordinary case’ of a
crime, not to real-world facts or statutory elements.” (Johnson,
supra, 135 S.Ct. at p. 2557.) Second, the clause provides no
guidance as to how much risk is necessary to qualify as a violent
felony. (Id. at p. 2558.) “It is one thing to apply an imprecise
‘serious potential risk’ standard to real-world facts; it is quite
another to apply it to a judge-imagined abstraction.” (Ibid.) The
residual clause thus combined “indeterminacy about how to
measure the risk posed by a crime with indeterminacy about how
much risk it takes for the crime to qualify as a violent felony,”
rendering it unconstitutionally vague. (Ibid.; see generally
People v. Morgan (2007) 42 Cal.4th 593, 605 [federal and state
constitutions require a criminal statute be definite enough to
provide a standard of conduct for those whose activities are
proscribed and a standard for police enforcement and for
ascertainment of guilt].)
Section 209, subdivision (b)(2) does not suffer from a
similar constitutional deficiency. The subdivision applies “if the
movement of the victim is beyond that merely incidental to the
commission of, and increases the risk of harm to the victim over
and above that necessarily present in, the intended underlying

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offense.”12 (Ibid.) This standard requires the trier of fact to
consider the scope and nature of the movement, including the
actual distance a victim is moved. (People v. Vines (2011)
51 Cal.4th 830, 870 (Vines).) The subdivision also requires the
trier of fact to consider factors such as the decreased likelihood of
detection, the danger inherent in a victim’s foreseeable attempts
to escape, and the attacker’s enhanced opportunity to commit
additional crimes. (People v. Rayford (1994) 9 Cal.4th 1, 13.) The
subdivision thus does not rely on judicial abstractions but is
instead tethered to “real-world” facts. (See People v. Daniels
(1969) 71 Cal.2d 1119, 1128-1129 [rejecting notion that an
attempt to define necessary movement of a victim renders statute
vague].)
Sherman, however, cites numerous aggravated kidnapping
cases to suggest there exists a lack of uniformity in applying the
asportation element of section 209, subdivision (b)(2). Vagueness
becomes a problem when there is “pervasive disagreement about
the nature of the inquiry one is supposed to conduct and the
kinds of factors one is supposed to consider.” (Johnson, supra,
135 S.Ct. at p. 2560.) But mere division about whether the
statute “covers this or that crime (even clear laws produce close
cases)” does not necessarily implicate vagueness. (Ibid.) The
cases Sherman cites merely apply a concrete legal standard to
real-world facts. (Id. at p. 2561 [“As a general matter, we do not
doubt the constitutionality of laws that call for the application of
a qualitative standard such as ‘substantial risk’ to real-world
conduct; ‘the law is full of instances where a man’s fate depends
12 In 1997, the Legislature modified section 209 to eliminate
the requirement the movement be substantial. (See generally
People v. Robertson (2012) 208 Cal.App.4th 965, 979-980.)

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on his estimating rightly . . . some matter of degree’ ”].) The
cases do not represent disagreement about the nature of the
inquiry to be conducted when one is accused of aggravated
kidnapping.
We therefore reject Sherman’s void-for-vagueness challenge
to section 209, subdivision (b)(2) and turn to his next contention,
whether there is sufficient evidence to support his conviction of
that crime.
B. Sufficiency of the evidence
In assessing a claim of insufficiency of the evidence, “we
review the whole record in the light most favorable to the
judgment below to determine whether it discloses substantial
evidence—that is, evidence that is reasonable, credible and of
solid value—from which a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt. [Citations.]”
(People v. Snow (2003) 30 Cal.4th 43, 66; see also Vines, supra,
51 Cal.4th at p. 869.) We presume in support of the judgment the
existence of every fact the trier of fact could reasonably deduce
from the evidence. (People v. Medina (2009) 46 Cal.4th 913, 919.)
“ ‘Conflicts and even testimony [that] is subject to justifiable
suspicion do not justify the reversal of a judgment, for it is the
exclusive province of the trial judge or jury to determine the
credibility of a witness and the truth or falsity of the facts upon
which a determination depends. [Citation.] We resolve neither
credibility issues nor evidentiary conflicts; we look for substantial
evidence. [Citation.]’ [Citation.] A reversal for insufficient
evidence ‘is unwarranted unless it appears “that upon no
hypothesis whatever is there sufficient substantial evidence to
support” ’ the jury’s verdict. [Citation.]” (People v. Zamudio

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(2008) 43 Cal.4th 327, 357; see also Jackson v. Virginia (1979)
443 U.S. 307.)
As we have explained, aggravated kidnapping requires
movement of the victim that, first, is not merely incidental to the
commission of the underlying crime and, second, that increases
the risk of harm to the victim over and above that necessarily
present in the underlying crime itself. (People v. Daniels, supra,
71 Cal.2d at p. 1139; see also People v. Martinez (1999) 20 Cal.4th
225, 232.) These two elements are interrelated. (Vines, supra,
51 Cal.4th at p. 870.)
As to the first prong, “the jury considers the ‘scope and
nature’ of the movement, which includes the actual distance a
victim is moved.” (Vines, supra, 51 Cal.4th at p. 870.) There is,
however, no minimum distance a victim must be moved to satisfy
this element. (Ibid.; People v. Martinez, supra, 20 Cal.4th at
p. 233; People v. Rayford, supra, 9 Cal.4th at p. 12.) The second
prong refers to whether the movement subjects the victim to an
increase in risk of harm above and beyond that inherent in the
underlying crime. (Martinez, at p. 232.) “This includes
consideration of such factors as the decreased likelihood of
detection, the danger inherent in a victim’s foreseeable attempts
to escape, and the attacker’s enhanced opportunity to commit
additional crimes.” (Rayford, at p. 13.)
Here, the movement of Rhonda to the loss prevention office
was not merely incidental to the sexual assaults. Although the
actual distance Rhonda was moved is unclear, it is clear that it
was some distance from where she had been held with 13 other
employees in the employee restroom. Sherman took Rhonda, who

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was wearing just her undergarments,13 from the employee
restroom to the loss prevention office, where the sexual assaults
occurred. The loss prevention office was “at the other end of the
store,” and it took “less than, maybe, two minutes” to get there
from the employee restroom. To get to that office, Sherman led
Rhonda “through a combination door to get into our stock room,”
through the stock room, and through double doors to the main
sales floor. They had to make a slight left through the children’s
department to get to the loss prevention office. Sherman
unlocked the door to the loss prevention office with the key.
The scope and nature of this movement shows it was not
merely incidental to the rape. (Compare People v. Shadden
(2001) 93 Cal.App.4th 164, 167-169 [moving victim nine feet from
front counter to a backroom hidden from open view was sufficient
to support a conviction for kidnapping to commit rape], with
(People v. Daniels, supra, 71 Cal.2d at p. 1126 [brief movements
of victims within their homes from room to room 18 feet, five or
six feet, and 30 feet, respectively, were incidental to the
associated offenses]; People v. Hoard (2002) 103 Cal.App.4th 599.)
This movement of Rhonda across the store, to where she was
completely isolated from others, was “excess and gratuitous”
(People v. Washington (2005) 127 Cal.App.4th 290, 299) and
designed to separate her from the other employees (see, e.g.,
Shadden, at p. 169 [where movement changes victim’s
environment, it does not have to be great in distance to be
substantial]). The movement was not, as Sherman argues in his
brief, a mere attempt to obtain the “privacy that even a rapist
13 Sherman did give Rhonda his hoodie to wear when they
walked across the main sales floor.

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20
would prefer.” This argument is based on the dated notion that
rape is a crime about sex. Rather, as it is widely recognized
today, rape is a crime of violence.
Second, the movement subjected Rhonda to an increase in
risk of harm above and beyond that inherent in rape. Although
Rhonda was moved within the confines of the store, the
movement from the crowded restroom to the isolated loss
prevention office increased the risk of harm to her. (People v.
Dominguez (2006) 39 Cal.4th 1141, 1153 [“The movement thus
changed the victim’s environment from a relatively open area
alongside the road to a place significantly more secluded,
substantially decreasing the possibility of detection, escape or
rescue.”].) Sherman makes the argument that raping Rhonda in
the privacy of the loss prevention office somehow “spared” her the
anguish of being assaulted in front of others.14 To the contrary,
raping Rhonda in the loss prevention office spared her nothing.
It increased the risk of harm to her and decreased the likelihood
of detection, because the rape occurred across the store from
where the other employees were held, and, it may reasonably be
inferred, behind a locked door. The movement to the loss
prevention office thus prevented anyone from coming to Rhonda’s
aid, including the other employees and perhaps even Sherman’s
accomplices.
14 This argument calls to mind the word “chutzpah” and the
person who kills his parents and pleads for the court’s mercy on
the ground of being an orphan. (Checkpoint Systems v. U.S.
Intern. Trade Com’n (Fed.Cir.1995) 54 F.3d 756, 763, fn. 7.)
Sherman’s “chutzpah” arises in suggesting that raping Rhonda in
privacy was an act of kindness.

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III. Instruction on the lesser included crime of simple
kidnapping
Sherman contends that the trial court’s refusal to instruct
the jury on the lesser included offense of simple kidnapping was
reversible error. We disagree.
A trial court has a sua sponte duty to instruct on all
theories of a lesser included offense which find substantial
support in the evidence. (People v. Breverman (1998) 19 Cal.4th
142, 162; see also People v. Haley (2004) 34 Cal.4th 283, 312.)
Because substantial evidence is required, “the existence of ‘any
evidence, no matter how weak’ will not justify instructions on a
lesser included offense.” (Breverman, at p. 162.) A court need not
instruct on a lesser included offense when a defendant, if guilty
at all, could only be guilty of the greater offense, or when the
evidence, even construed most favorably to the defendant, would
not support a finding of guilt of the lesser included offense but
would support a finding of guilt of the offense charged. (See, e.g.,
People v. Ortiz (2012) 208 Cal.App.4th 1354, 1367.)
Simple kidnapping is a lesser included offense of
aggravated kidnapping. (See People v. Lewis (2008) 43 Cal.4th
415, 518, overruled on other grounds by People v. Black (2014)
58 Cal.4th 912.) As a type of aggravated kidnapping, the crime of
kidnapping for rape is committed only if the defendant formed
the specific intent to commit a rape at the time the kidnapping
begins. (See People v. Davis (2005) 36 Cal.4th 510, 565-566.) In
contrast, the crime of simple kidnapping generally requires the
same elements as the crime of kidnapping for rape under section
209, subdivision (b), but it does not require the defendant to have
the intent to commit a rape at the time the kidnapping began.
(§ 207, subd. (a).)

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Sherman thus posits that he was only guilty of simple
kidnapping because the jury could have believed he moved
Rhonda to get the key to the loss prevention office, where he
intended to disable the surveillance equipment, and formed the
intent to rape her once inside that office. If he did not form the
intent until he got to the office, then he was only guilty of simple
kidnapping.15
There is insufficient evidence to support this theory.
Sherman testified that he did not sexually assault Rhonda;
rather, the sex was consensual. Thus, according to him, he had
no intent to rape Rhonda at any point in time. Of course,
according to Rhonda, Sherman raped her. Therefore,
determining when he formed the intent to do so must be inferred
from other evidence. That evidence shows that Williams
identified herself as the loss prevention officer. Although
Sherman knew that Williams—not Rhonda— was the loss
prevention officer, Sherman made Rhonda retrieve the key to the
loss prevention office from Williams’s purse. Sherman then made
Rhonda—not Williams—accompany him to the loss prevention
office. Notwithstanding Sherman’s belief that he could disable
the surveillance equipment by himself, it was Williams—not
15 Sherman’s trial counsel made this argument in closing:
“She is removed from the bathroom. The initial purpose of
removing her from the bathroom was to have her get the keys
from the purse of the L.P. person so that Mr. Sherman would
have access to the security room, to the L.P. office. [¶] If you
believe that that was the purpose initially, or if you believe that
it’s a reasonable possibility that that was the purpose to initially
move her from the bathroom, then he is not guilty under the jury
instructions of kidnapping with the intent to commit rape.”

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Rhonda—who was more likely to be able to assist him. This
evidence shows that Sherman selected Rhonda at the outset with
the intent to rape her. He had no reason to take her to that office
other than to assault her.
Rhonda thus was either kidnapped for a rape or the rape
did not happen. Stated otherwise, if Sherman was guilty of any
crime, it was aggravated kidnapping. The trial court did not err
in refusing to instruct on simple kidnapping.
IV. Prosecutorial misconduct16
Defendants contend that the prosecutor committed
misconduct by asking Sherman “were they lying” questions.
A. Additional facts
While cross-examining Sherman, the prosecutor asked him
whether other witnesses were lying. When, for example,
Sherman denied being with Allen and Hammock the night of the
robberies, the prosecutor asked about the testimony of other
witnesses, including Sherman’s family members. She asked,
“So now Im’Unique’s lying also?” After Sherman responded that
Im’Unique could have been telling the truth; he simply was
saying he did not know if Hammock was in the car, the
prosecutor said:
“Q. So let’s just make a list here. [¶] You say that
Detective Dupree and Detective Marcia lied about whatever you
just said? That’s what you’re telling us; right?
“A. Well, I didn’t see my sister’s signature on any
statement. So—
“Q. So yes or no, are they lying or telling the truth?
“A. Well, I believe they’re lying.
16 Hammock and Allen join this contention.

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“Q. Okay, And –
“A. ‘Cause they – police lie all the time. Right?
“Q. And Rhonda is lying about being raped. That’s what
your testimony is?
“A. She was definitely lying.”
Later, the prosecutor revisited the veracity issue:
“Q. So who else is lying in this case? You said Detective
Dupree, Detective Marcia, Rhonda, Im’Unique was wrong; the
magazine just for some weird reason materialized next to your
gun. [¶] What else? Who else is lying? You said all police lie.
But do you actually have any names of any other police officers
that lie? Just so I know who’s lying. Who’s lying?
“A. Well, I was just being vague.
“Q. Okay. But –
“A. I don’t know who’s lying. [¶] I know Rhonda is lying.
“Q. Okay.
“A. That’s for sure.
“Q. All right. So your testimony is that those are the only
people lying and everyone else told the truth?
“A. Well, my testimony is that that gun is my gun and it
was buried underneath that brush. So if that’s the way they
found it, then I’m not sure how it ended up like that.”
Thereafter, in her closing statement, the prosecutor
referred to Sherman’s gall in “com[ing] in here and accus[ing]
Rhonda of lying – that is offensive – and that he would accuse all
these other victims of not telling the truth about everything that
they saw, and that was very troubling.”
B. Any prosecutorial misconduct was harmless.
“The applicable federal and state standards regarding
prosecutorial misconduct are well established. ‘ “A

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prosecutor’s . . . intemperate behavior violates the federal
Constitution when it comprises a pattern of conduct ‘so egregious
that it infects the trial with such unfairness as to make the
conviction a denial of due process.’ ” ’ [Citations.] Conduct by a
prosecutor that does not render a criminal trial fundamentally
unfair is prosecutorial misconduct under state law only if it
involves ‘ “ ‘the use of deceptive or reprehensible methods to
attempt to persuade either the court or the jury.’ ” ’ [Citation.]
. . . Additionally, when the claim focuses upon comments made
by the prosecutor before the jury, the question is whether there is
a reasonable likelihood that the jury construed or applied any of
the complained-of remarks in an objectionable fashion.
[Citation.]” (People v. Samayoa (1997) 15 Cal.4th 795, 841.)
Generally, to “preserve a misconduct claim for review on
appeal, a defendant must make a timely objection and, unless an
admonition would not have cured the harm, ask the trial court to
admonish the jury to disregard the prosecutor’s improper
remarks or conduct.” (People v. Martinez (2010) 47 Cal.4th 911,
956; see also People v. Chatman (2006) 38 Cal.4th 344, 380;
People v. Zambrano (2004) 124 Cal.App.4th 228, 242.) Here,
defendants did not object to the prosecutor’s “were they lying”
questions. Therefore, the issue is forfeited. (People v. Gonzales
and Soliz (2011) 52 Cal.4th 254, 318.) Nonetheless, because
defendants raise ineffective assistance of counsel claims, we
address the issue.
“Were they lying” questions are not categorically proper or
improper. (People v. Chatman, supra, 38 Cal.4th at pp. 381-382.)
Such questions may be proper when, for example, a defendant
who is a percipient witness might be able to provide insight on
whether witnesses whose testimony differs from the defendant’s

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26
are intentionally lying or merely mistaken. (Id. at p. 382.) This
is especially true when the defendant knows the other witnesses;
“he might know of reasons those witnesses might lie.” (Ibid.)
But when argumentative or designed to elicit irrelevant or
speculative testimony, “were they lying” questions are improper.
(Id. at pp. 381-382, 384 [was the safe “lying” argumentative].)
“An argumentative question is a speech to the jury masquerading
as a question. The questioner is not seeking to elicit relevant
testimony. Often it is apparent that the questioner does not even
expect an answer. The question may, indeed, be unanswerable.”
(Id. at p. 384.) Thus, there “is a difference between asking a
witness whether, in his opinion, another is lying and asking that
witness whether he knows of a reason why another would be
motivated to lie.” (Id. at p. 381.)
Here, to the extent the prosecutor asked questions about
Im’Unique’s veracity, Sherman knew the witness and could
provide insight into her testimony. As to Rhonda, according to
Sherman, he would have had specific insight into why Rhonda
would lie, as he claimed she was his accomplice who was lying to
save herself. Those questions, therefore, were proper. Closer to
the line between proper and argumentative are the questions
about the veracity of specific detectives’ testimony, whether
“police lie all the time” and the prosecutor’s request that
Sherman list the names of other police officers who were lying.
(See, e.g., People v. Zambrano, supra, 124 Cal.App.4th at p. 242.)
Even if those questions were improper, the prosecutor’s
conduct was harmless under both federal and state law. (See,
e.g., People v. Gonzales and Soliz, supra, 52 Cal.4th at p. 319.)
These limited questions did not comprise a pattern of conduct so
egregious that it denied defendants due process. (People v.

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27
Samayoa, supra, 15 Cal.4th at p. 841.) Nor does the prosecutor’s
closing argument regarding Sherman’s accusations about Rhonda
show a pattern of egregious conduct. The prosecutor was merely
commenting on the credibility of witnesses based on the evidence
adduced at trial. (People v. Martinez, supra, 47 Cal.4th at
p. 958.) Such comments do not amount to misconduct.
Nor is it reasonably probable that the jury would have
reached a result more favorable to defendants had any
misconduct not occurred. (People v. Zambrano, supra,
124 Cal.App.4th at p. 243.) As to Sherman, he admitted
committing the robberies. He also admitted using a gun,
although he said it was unloaded. Any improper questions thus
could have had no impact on the outcome on robbery counts.
Indeed, Sherman concedes that the alleged misconduct would
require reversal of only the kidnapping, rape and forcible oral
copulation counts.
First, it is not reasonably probable that any improper
“were they lying” questions specifically impacted the kidnapping
or sexual assault offenses, which Sherman denied committing.
The officers’ and detectives’ testimony had no connection to the
kidnapping or sexual assaults. Rather, Sherman’s culpability for
the kidnapping and sexual offenses depended primarily on the
jury’s evaluation of his and Rhonda’s credibility. Rhonda’s
version of events was corroborated by her fellow employees, who
said that when Rhonda returned to the restroom, she was crying
and hysterical, had semen on her leg, and said she’d been raped.
There was no evidence, however, corroborating that Sherman
knew Rhonda before the night of the robberies.
Nor is it reasonably probable that the questions specifically
impacted the robbery offenses. Sherman also denied committing

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28
the robberies with Allen and Hammock. Other than Sherman’s
denial, the evidence showed that that Allen and Hammock
committed the robberies with Sherman. Various employees
identified them. Davis identified Allen and Hammock; Sullens
identified Hammock;17 and Bautista identified Allen. Allen’s and
Hammock’s cell phones were used at or near Nordstrom Rack at
the time of the robberies. Members of Sherman’s and Allen’s own
family implicated them in the crimes. Everesha told detectives
that Sherman borrowed the Explorer the night of the robberies,
and, some time after the robberies, she picked Hammock up in
Culver City, where the getaway car had been abandoned.
Im’Unique also testified that Sherman, Allen and Hammock took
her that night, prior to the robberies, to Sherman’s house to
babysit Sherman’s children. Also, Hammock was arrested near
the abandoned Explorer. Officers found instrumentalities of the
robbery in or near the Explorer, including a mask, gloves, cell
phones, Sherman’s gun and a knife. When Allen was arrested, he
had over $3,700 in cash, some of it hidden. Also, Allen’s DNA
was on the black knit mask found in the Explorer. Based on this
evidence, there is no reasonable probability of a more favorable
outcome as to Allen and Hammock, even if we assumed that the
prosecutor’s questions improperly impugned Sherman’s
credibility. (See, e.g., People v. Gonzales and Soliz, supra,
52 Cal.4th at pp. 319-320 [not reasonably probable “were they
lying” questions so undercut the value of testifying defendant’s
17 Although Sullens identified Hammock, the parties
stipulated that Sullens testified at the preliminary hearing that
she did not attempt to or deliberately look at the person in the
cash room with her.

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29
credibility that it undercut the value that testimony might have
had for the other defendants].)
We therefore conclude that any misconduct was not
prejudicial. Based on that conclusion, we reject defendants’
related contention that trial counsel provided ineffective
assistance of counsel by failing to object to the “were they lying”
questions. (See generally People v. Scott (1997) 15 Cal.4th 1188,
1211-1212 [an ineffective assistance of counsel claim requires a
showing of error and prejudice]; see also Strickland v.
Washington (1984) 466 U.S. 668, 694.)
Moreover, a trial attorney’s decision whether to object or to
seek a jury admonition is a strategic one, and the failure to do so
seldom establishes constitutionally ineffective assistance of
counsel. (See, e.g., People v. Castaneda (2011) 51 Cal.4th 1292,
1335; People v. Collins (2010) 49 Cal.4th 175, 233; People v.
Huggins (2006) 38 Cal.4th 175, 206.) Indeed, Sherman’s trial
counsel did object to the prosecutor’s question, asked during the
“were they lying” line of questioning, whether the “gun fairy” got
the magazine from Sherman’s house and dropped it next to the
gun. The trial court sustained counsel’s objection on the ground
the question was argumentative. Defense counsel could have
concluded that additional objections would have drawn closer
attention to the questions, causing greater harm. (See
Castaneda, at p. 1335; Collins, at p. 233.) Or counsel could have
believed that the prosecutor’s aggressive manner of questioning
made Sherman more sympathetic. Thus, because there are
possible reasonable explanations for counsel not taking
additional steps to address any alleged misconduct, “[w]e cannot
find on this record that counsel’s performance was deficient.”
(Huggins, at p. 206.)

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V. Sentencing issues as to Sherman
Sherman raises the following issues concerning his
sentence: (1) his juvenile adjudication did not qualify as a strike;
(2) using his juvenile adjudication as a prior serious or violent
felony violated Apprendi v. New Jersey (2000) 530 U.S. 466
(Apprendi); (3) the trial court abused its discretion by denying
his Romero motion; and (4) the restitution fine violated
Apprendi.
A. Sherman’s 1995 juvenile adjudication qualified as a
“strike” under the Welfare and Institutions Code
The amended information alleged that Sherman had a
prior juvenile adjudication of second degree robbery. After
finding that allegation true, the trial court used it to sentence
Sherman as a second-strike offender. Sherman now contends
that this was improper because the juvenile adjudication was not
a qualifying strike under Welfare and Institutions Code
section 707, subdivision (b) at the time he committed it in 1995.
(§ 667, subd. (d)(3)(B) & (D).) As we explain, this contention has
been rejected. (People v. Superior Court (Andrades) (2003)
113 Cal.App.4th 817 (Andrades); People v. Bowden (2002)
102 Cal.App.4th 387.)
The Three Strikes law, section 667, subdivision (d),
provides that a juvenile adjudication qualifies as a strike if four
requirements are met. Here, the requirement Sherman places at
issue is in subdivision (d)(3)(D). Section 667, subdivision
(d)(3)(D) requires that “[t]he juvenile was adjudged a ward of the
juvenile court within the meaning of Section 602 of the Welfare
and Institutions Code because the person committed an offense
listed in subdivision (b) of Section 707 of the Welfare and
Institutions Code.” At the time Sherman’s juvenile petition for

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robbery was sustained in 1995, robbery was not an offense listed
in Welfare and Institutions Code section 707, subdivision (b).
(See, e.g., Andrades, supra, 113 Cal.App.4th at p. 825.) Sherman
thus reasons he could not have been adjudged a ward “because”
he committed “an offense listed” in subdivision (b) of the Welfare
and Institutions Code, given that the offense was not so listed at
the time of adjudication.
This argument was considered and rejected by Andrades.
Andrades pointed out that Proposition 21 was enacted in 2000,
and, among other things, added simple robbery to offenses listed
in that subdivision. (Andrades, supra, 113 Cal.App.4th at
p. 825.) Proposition 21 also “modified the cutoff date of the Three
Strikes law” by adding section 667.1, a lock-in provision.18
(People v. Bowden, supra, 102 Cal.App.4th at p. 390.) Thus, an
offense committed after Proposition 21’s passage qualifies as a
strike if it was a serious felony within the meaning of the Three
Strikes law as of March 8, 2000. (Id. at p. 391; People v. James
(2001) 91 Cal.App.4th 1147, 1151.) Stated otherwise, after
passage of Proposition 21, “determination of whether a prior
offense constituted a strike [is] based on whether it was a strike
when the current offense was committed, not when the prior
offense was committed.” (People v. Alvarez (2002)
100 Cal.App.4th 1170, 1179; see also Andrades, at pp. 826-827.)
18 Former section 667.1 provided: “Notwithstanding
subdivision (h) of Section 667, for all offenses committed on or
after the effective date of this act, all references to existing
statutes in subdivisions (c) to (g), inclusive, of Section 667, are to
those statutes as they existed on the effective date of this act,
including amendments made to those statutes by this act.”

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Andrades explained why, under Proposition 21 and section
667.1, a robbery committed before its passage nonetheless falls
under Welfare and Institutions Code section 707, subdivision (b)
for the purpose of the Three Strikes law: “On its face, section
667.1 applies to ‘all references to existing statutes in subdivisions
(c) to (g), inclusive, of Section 667.’ Nothing in the language of
section 667.1 limits its application or excepts paragraph (D)’s
reference to Welfare and Institutions Code section 707,
subdivision (b). There is no ambiguity in section 667.1; it applies
to ‘all references to existing statutes in subdivisions (c) to (g),
inclusive.’ This clearly includes paragraph (D).” (Andrades,
supra, 113 Cal.App.4th at p. 829.)
We agree with Andrades and Bowden. Because Sherman’s
current offenses were committed in 2013, long after the passage
of Proposition 21, his 1995 juvenile adjudication for robbery
qualifies as a strike.
B. The juvenile adjudication qualified as a strike under
Apprendi
Sherman was sentenced as a second-striker based on the
prior juvenile adjudication. Although he contends that this was
constitutional error under Apprendi, supra, 530 U.S. 466 and its
progeny, he concedes that our Supreme Court rejected that
argument in People v. Nguyen (2009) 46 Cal.4th 1007. Nguyen
held that “the Fifth, Sixth, and Fourteenth Amendments, as
construed in Apprendi, do not preclude the sentence-enhancing
use, against an adult felon, of a prior valid, fair, and reliable
adjudication that the defendant, while a minor, previously
engaged in felony misconduct, where the juvenile proceeding
included all the constitutional protections applicable to such
matters, even though these protections do not include the right to

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33
jury trial.” (Nguyen, at p. 1019.) We are bound to follow Nguyen.
(Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450,
455.)
C. The Romero motion
Next, Sherman contends that the trial court abused its
discretion by denying his Romero motion. We disagree.
In the furtherance of justice, a trial court may strike or
dismiss a prior conviction allegation. (§ 1385, subd. (a); Romero,
supra, 13 Cal.4th at p. 504.) A court’s ruling on a Romero motion
is reviewed under the deferential abuse of discretion standard;
that is, the defendant must show that the sentencing decision
was irrational or arbitrary. (People v. Carmony (2004) 33 Cal.4th
367, 375, 378.) It is not enough to show that reasonable people
might disagree about whether to strike a prior conviction. (Id. at
p. 378.) The Three Strikes law “not only establishes a sentencing
norm, it carefully circumscribes the trial court’s power to depart
from this norm . . . [T]he law creates a strong presumption that
any sentence that conforms to these sentencing norms is both
rational and proper.” (Ibid.) Only extraordinary circumstances
justify finding that a career criminal is outside the Three Strikes
law. (Ibid.) Therefore, “the circumstances where no reasonable
people could disagree that the criminal falls outside the spirit of
the three strikes scheme must be even more extraordinary.”
(Ibid.)
When considering whether to strike prior conviction
allegations, the factors a sentencing court considers are “whether,
in light of the nature and circumstances of his present felonies
and prior serious and/or violent felony convictions, and the
particulars of his background, character, and prospects, the
defendant may be deemed outside the scheme’s spirit, in whole or

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in part, and hence should be treated as though he had not
previously been convicted of one or more serious and/or violent
felonies.” (People v. Williams (1998) 17 Cal.4th 148, 161.)
The trial court below carefully considered and balanced
these factors. In looking at the circumstances of Sherman’s
current crimes, the court noted that Sherman “not only acted as
the leader, he was the leader.” The court was “hard-pressed” to
fathom how Sherman could be outside the spirit of the Three
Strikes law. In the interests of justice, and after balancing the
factors, the court therefore declined to strike the prior conviction.
We are similarly hard-pressed to find an abuse of the trial
court’s discretion. That Sherman committed his prior strike
when he was 16 and remained free of any arrests or convictions
until the current offenses was certainly a factor the court could
consider. But the court’s failure to be persuaded by it does not
evidence an abuse of discretion.
D. The restitution fines
Finally, Sherman contends that the trial court violated his
rights to a jury trial and to proof of facts beyond a reasonable
doubt when it imposed a $10,000 restitution fine under section
1202.4, subdivision (b). He relies on Southern Union Co. v. U.S.
(2012) 567 U.S. 343 [132 S.Ct. 2344], to support his contention
that jury findings were required on whether he had the ability to
pay a restitution fine above the statutory minimum. The
statutory fine imposed in Southern Union Co., however, was tied
to the number of days the statute was violated, which number
was found by the trial court and not by the jury. It was this
finding by the court that Southern Union Co. found violated
Apprendi, supra, 530 U.S. 466.

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But, as found by Justice Turner in People v. Kramis (2012)
209 Cal.App.4th 346, 351, “Apprendi and Southern Union Co. do
not apply when, as here, the trial court exercises its discretion
within a statutory range.” In 2013, former section 1202.4,
subdivision (b)(1) set a statutory range of $280 (the minimum) to
$10,000 (the maximum). All the court below did was select an
amount within that range. “The trial court did not make any
factual findings that increased the potential fine beyond what the
jury’s verdict—the fact of the conviction—allowed.” (Kramis, at
p. 352.)
VI. Hammock’s upper term sentence
Because Hammock was on parole at the time he committed
the current offenses, the trial court selected the upper term on
count 5. Under Apprendi, supra, 530 U.S. 466, Blakely v.
Washington (2004) 542 U.S. 296 and Cunningham v. California
(2007) 549 U.S. 270, Hammock contends that imposing the upper
term violated his the Fifth, Sixth and Fourteenth Amendment
rights. However, he recognizes that his contention has been
rejected (People v. Towne (2008) 44 Cal.4th 63) and that we are
bound by that precedent (Auto Equity Sales, Inc. v. Superior
Court, supra, 57 Cal.2d at p. 455).
VII. Allen’s consecutive sentences for the assault with a
deadly weapon and for the robberies
The trial court sentenced Allen to consecutive sentences on
counts 18 (robbery of Bautista) and 19 (assault with a deadly
weapon on Bautista).19 Allen now contends that the sentence on
the assault should have been stayed under section 654.
19 Allen’s counsel requested a low term sentence as to the
base count and to run the sentences concurrently. The trial court
generally said at the time of sentencing that it was choosing

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Section 654, subdivision (a), provides that an act or
omission punishable in different ways by different provisions of
law shall be punished under the provision that provides for the
longest potential term of imprisonment, but not under more than
one provision. The section thus bars multiple punishments for
offenses arising out of a single occurrence where all were incident
to an indivisible course of conduct or a single objective. (People v.
Correa (2012) 54 Cal.4th 331, 335 [“the relevant question is
typically whether a defendant’s ‘ “course of conduct . . . comprised
a divisible transaction which could be punished under more than
one statute within the meaning of section 654” ’ ”]; People v.
Jones (2012) 54 Cal.4th 350, 358 [“Section 654 prohibits multiple
punishment for a single physical act that violates different
provisions of law.”]; People v. McKinzie (2012) 54 Cal.4th 1302,
1368, abrogated on other grounds by People v. Scott (2015)
61 Cal.4th 363, 391, fn. 3; People v. Galvez (2011)
195 Cal.App.4th 1253, 1262.) Whether a course of criminal
conduct is divisible depends on the actor’s intent and objective.
(People v. Jones (2002) 103 Cal.App.4th 1139, 1143.) If all the
offenses were merely incidental to, or were the means of
accomplishing one objective, the defendant may be found to have
harbored a single intent and therefore may be punished only
once. (People v. Capistrano (2014) 59 Cal.4th 830, 885; People v.
Sok (2010) 181 Cal.App.4th 88, 99-100.) But if the defendant
harbored multiple or simultaneous objectives, independent of and
not merely incidental to each other, the defendant may be
consecutive sentences because “there were different victims, and
each suffered separate acts.” Allen’s counsel did not argue that
the sentence on count 19 should be stayed under section 654.

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punished for each violation committed in pursuit of each objective
even though the violations share common acts or were parts of an
otherwise indivisible course of conduct. (Jones, supra,
103 Cal.App.4th at p. 1143; Sok, at p. 99.)
Whether section 654 applies is a question of fact for the
trial court, and its findings will not be reversed on appeal if there
is any substantial evidence to support them. (People v.
Capistrano, supra, 59 Cal.4th at p. 886; People v. Jones, supra,
103 Cal.App.4th at p. 1143.) A trial court’s implied finding of a
separate intent and objective for each offense will be upheld on
appeal if supported by substantial evidence. (People v. McKinzie,
supra, 54 Cal.4th at p. 1368.)
When the crimes are robbery and assault, “[t]he rule is
that . . . a defendant . . . can be punished for both crimes if the
assault was not incident to the robbery and was motivated by a
separate criminal objective [citation], but if the assault was
committed in order to accomplish the robbery, then the defendant
can be punished for only one of the crimes.” (People v. Martinez
(1984) 150 Cal.App.3d 579, 606, overruled on other grounds by
People v. Hayes (1990) 52 Cal.3d 577, 628, fn. 10; see also
In re Jesse F. (1982) 137 Cal.App.3d 164, 171.) “[A] separate act
of violence against an unresisting victim or witness, whether
gratuitous or to facilitate escape or to avoid prosecution, may be
found not incidental to robbery for purposes of section 654.”
(People v. Nguyen (1988) 204 Cal.App.3d 181, 193.) “When there
is an assault after the fruits of the robbery have been obtained,
and the assault is committed with an intent other than to
effectuate the robbery, it is separately punishable.” (In re
Jesse F., at p. 171.)

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There is more than substantial evidence that Allen
harbored multiple criminal intents, independent of and not
merely incidental to each other, with respect to the assault and to
the robbery. When Allen discovered Bautista and Jacinto in the
locker room, he took Bautista’s phone. When Bautista denied
calling the police, he violently pressed a knife against her neck,
leaving a wound, and bashed her head against the door. Then,
when Bautista tried to help Sullens, Allen kicked and beat
Bautista with a gun, telling her not to be a hero. Thus, by the
time Allen assaulted Bautista, he had already taken her phone,
and, moreover, there is no evidence that assaulting Bautista was
connected to robbery of the cash from the safe. Instead, the
evidence shows that Allen assaulted Bautista to punish her for
calling the police, not to prevent her from so doing. Similarly, he
punished Bautista for trying to be a “hero.” These acts were
gratuitous and had nothing to do with furthering the robbery.
(Compare People v. Nguyen, supra, 204 Cal.App.3d at p. 191
[section 654 “cannot, and should not, be stretched to cover
gratuitous violence or other criminal acts far beyond those
reasonably necessary to accomplish the original offense”], In re
Jesse F., supra, 137 Cal.App.3d at p. 171, with People v. Flowers
(1982) 132 Cal.App.3d 584, 590 [assault during a robbery to quiet
victim and to counter victim’s resistance was for purpose of
facilitating robbery; section 654 applied].)

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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BACHNER, J.
We concur:
EDMON, P. J.
LAVIN, J.
 Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.

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