P. v. Lewis

Filed 11/27/02 P. v. Lewis CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or
ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
WILLIAM LEWIS,
Defendant and Appellant.
B152939
(Los Angeles County
Super. Ct. No. KA051229)
APPEAL from the judgment of the Superior Court of Los Angeles County.
Francis A. Gately, Judge. Affirmed in part and reversed in part.
Allison H. Ting, under appointment by the Court of Appeal, for Defendant and
Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney
General, Pamela C. Hamanaka, Assistant Attorney General, Victoria B. Wilson and
Jim E. Hart, Deputy Attorneys General, for Plaintiff and Respondent.
______________________

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William Lewis appeals from the judgment entered upon his conviction by jury of
assault by means likely to produce great bodily injury, kidnapping, and forcible rape
(Pen. Code, §§ 245, subd. (a)(1), 207, subd. (a), 261, subd. (a)(2)), with the finding that,
in the commission of the rape, he was engaged in the crime of kidnapping (Pen. Code, §
667.61, subd. (b)). He admitted a prior serious felony conviction within the meaning of
Penal Code section 667, subdivision (a) and the three strikes law (Pen. Code, §§ 1170.12,
subds. (a)-(d), 667, subds. (b)-(i)) and a prior felony conviction for which he served a
prison term within the meaning of Penal Code section 667.5, subdivision (b).1 He was
sentenced to 30 years to life plus 18 years in prison, comprised of five years for
kidnapping, which was doubled under the three strikes law, one year for assault, doubled
under the three strikes law, six years for the prior conviction enhancements, and 15 years
to life for forcible rape under the one strike law, section 667.61, which was also doubled
under the three strikes law.
Appellant contends that (1) the trial court erred in ruling on his Marsden (People
v. Marsden (1970) 2 Cal.3d 118) motions; (2) the trial court erred in refusing to admit
good-character evidence as to his prior guilty pleas or, alternatively, the trial court abused
its discretion in admitting numerous prior convictions for impeachment purposes; (3) the
trial court erred in failing to instruct the jury sua sponte on reasonable and good faith
belief in consent as to the rape charge; (4) the trial court erred in failing to instruct the
jury sua sponte with CALJIC No. 10.61.1 on the victim’s prior sexual conduct; (5) the
trial court erred in giving CALJIC No. 2.62 on appellant’s failure to explain or deny;
(6) the 10-year sentence imposed for kidnapping must be stayed pursuant to section 654
because it was based on the same act as the section 667.61, subdivision (b) enhancement;
(7) section 667.61, subdivision (b) is an enhancement not subject to the doubling
provision of the three strikes law; (8) his sentence constitutes cruel and unusual
1 Unless otherwise specified, all further statutory references are to the Penal Code.

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punishment under the circumstances of this case; and (9) cumulative error requires
reversal.
We requested that the parties address the issue of whether appellant’s admission of
the prior conviction allegation was voluntary and intelligent within the meaning of
People v. Howard (1992) 1 Cal.4th 1132.
In addition, we requested that the parties address the matter of the effect, if any, of
section 667.1, subdivision (f) on the issue of whether the sentence for kidnapping was
properly imposed.
We strike the 10-year term for kidnapping, remand the matter for resentencing and
for proceedings on the prior conviction allegations, and otherwise affirm the judgment.
FACTS
The prosecution evidence established that appellant and Terrese F. began dating in
January 2000. The relationship became serious by August and they became engaged to
be married in October 2000. They had engaged in sex on four occasions. In mid-
October, Terrese broke off their engagement, but by the date of the instant offenses, she
was again wearing the diamond engagement ring appellant had given her.
On the evening of October 19, 2000, appellant picked up Terrese and took her to
Knotts Berry Farm, where they were to meet appellant’s cousins, but they left soon after
they arrived because Terrese was afraid of “Knott’s Scary Farm.” Appellant drove her to
his residence in Walnut, first stopping to buy some wine and a rose. Appellant lit candles
and Terrese removed her overalls and lay under the covers as they watched television in
his room. Appellant tried to give her a massage, but she told him she did not want him
to. She put on her overalls and stated that she had to go home because she had to get up
at a certain time the next morning.
Appellant told her he was angry, and Terrese said she needed time to herself. She
believed that appellant assumed she was attempting to break up with him. Although his
roommates were in the house, he jumped on top of her and tried to remove her overalls.
She yelled, and he covered her mouth. She struggled with him, and eventually he

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stopped and said he would take her home. He took from her the engagement ring and a
cell phone he had given her and put them in a drawer. She told him he could keep the
ring and concluded that he had ended their relationship.
Terrese walked out of appellant’s residence, intending to go to a pay phone and
summon a ride or call the police. Appellant followed her out and told her to get into his
car. When she refused, he forced her into the car, sat on her, and shut the door, injuring
her knee in the process. Although he said he would take her home, a five-minute drive to
West Covina, he began driving and eventually told her he was not taking her home.
Despite her repeated pleas to be taken back to her residence, he drove onto the 60
Freeway. As he drove, he tried to unbuckle her overalls and placed his hand inside her
pants. Terrese tried to grab the steering wheel in an attempt to pull over and escape, and
honked the horn to get attention. They continued to argue, appellant wanting to have sex
with her and Terrese wanting to get out of the car and go home. Appellant grabbed her
hair, unbuckled his own overalls, and tried to force her head down on his lap.
Appellant drove onto the 605 Freeway, then to the 10 Freeway, the 57 Freeway
and the 210 Freeway. He told Terrese he was angry because he could not get his way,
mentioning sex and people taking advantage of him and his being tired of being nice to
people. When she asked him why he was doing this and told him he had a good career,
he said he had been in jail before and did not care. He then drove to his cousin’s
apartment in Azusa, stating he was going to pick up his mail.
Appellant parked in a dimly lit, deserted parking area. He continued to complain
about not getting his way. Terrese hugged him for approximately three minutes, hoping
this would “pacify” him so she could get out of the car, because she had to go to the
bathroom. She did not hug him as a gesture of affection. She told appellant she had to
go to the bathroom, but he told her she did not have to go.
Appellant then asked Terrese to turn toward the window, said, “Sorry,” and began
choking her with his arm around her neck. Although she tried to scream and kick the
window out, her circulation was cut off and she began to lose her breath. Appellant then

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put both hands around her throat from behind, applying a great deal of pressure, and put
her face between the seats. Her nose began bleeding severely and she began losing her
ability to hear. She was afraid he was going to kill her. Appellant slightly loosened his
hold on her neck and asked if she would do what he said. She understood that that meant
having sex, and she nodded her head because she could hardly breathe and feared for her
life. Appellant let her get up. He pulled down his overalls and said he wanted her to do
something for him. Although she said, “No,” he pushed her head into his lap and forced
her to orally copulate him.
Appellant then “went back to the point of him trying to get [Terrese to] go back to
the house with him and sleep with him.” She had agreed to have sex with him while he
was strangling her so he would take his hands off her neck, not because she wanted to
have sex with him, and she asked if he could wait another day. He said, “No.” She
agreed to go, although she did not want to have sex with him either then or on any other
day, just so she could get away and to keep him from hurting her any further. She did not
say anything on the 20- or 25-minute drive back to his house on surface streets, because
she was “sitting there scared and still in shock.” She only recalled stopping at one red
light and although she saw a police officer there, when she looked again the police
vehicle was gone, and she did not open the car door and run out because she was afraid
of being hurt again.
When they arrived at appellant’s house, at approximately 2:00 a.m., he cleaned
some blood off her face and they approached the door. He did not have his key and his
housemate, Lee, opened the door. Lee, who was half awake, did not pay any attention to
Terrese as they entered. Terrese went to the bathroom and cleaned more blood from her
face. She considered running from the bathroom to the front door, but she had to pass
appellant’s room and appellant was in his room waiting for her in his underwear.
Appellant lit some candles and they then engaged in sexual intercourse. She did not yell
for help, because appellant had already attacked her earlier that evening when Lee and his

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wife were in the house, and she did not think appellant would have hesitated even if she
had tried to involve them.
Terrese explained that she had sex with appellant “[b]ecause he had asked me to in
the car when he was choking me in the car and then on the way back to the house.” She
stated, “I guess I felt that was my only way ever getting away from him and returning
back home,” and that her fear was “based on the beginning of me not sleeping with him
in the first place before the whole incident took place and in the car when he was choking
me and asking me to sleep with him still,” which occurred only 20 or 25 minutes before
she finally had sex with him. She had not made up with him after he choked her.
After they engaged in sex, appellant put the engagement ring back on her finger,
although she said she did not want it and was not going to marry him. She did not resist
so as to avoid another dispute.2
Appellant drove Terrese home from his house at approximately 4:00 a.m. Her
mother, who was waiting up for her, saw that her face, nose and jacket were bloody.
Terrese told her mother that appellant had tried to kill her. She did not tell her mother
that she had been raped because she was embarrassed, but after she took a shower she
told her mother that appellant had choked her and raped her. She did not want to report
the matter to the police, believing that appellant would not be prosecuted for rape because
they were engaged. However, she requested a restraining order against appellant. When
an officer asked what had happened to her face, she reported the attack.
Terrese was taken to the U.S.C. Medical Center, where she was examined by Gina
McConnell, a registered nurse who specialized in sexual assault and who testified as an
expert witness. McConnell observed that Terrese had bilateral subconjunctival
hemorrhages, which meant bleeding under both conjunctiva, a sign that she had been
2 She subsequently received a bill from the jeweler for the as yet unpaid-for ring.
She pawned the ring in February 2001 to pay bills resulting from the assault and because
she no longer wanted it.

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choked. McConnell testified that “to get the kind of hemorrhage like that, there would
have to be enough of a force that would block the return of blood flow from the brain to
the heart. So it would have to be a constricting injury to prevent that blood clot.
[¶] . . . [¶] You would have to push pretty hard to cause that kind of pressure.” An
individual most likely could not inflict that kind of injury upon herself. McConnell
further testified that blood coming from the nose was common with severe strangulation.
McConnell also saw bruising on Terrese’s hip, knee and elbow which had
occurred within the previous 72 hours. Terrese had abrasions and irritated tissue at the
entrance to her vaginal area, which McConnell testified was common in sexual assault
cases and was consistent with forced penetration. This could also be consistent with
consensual sex. There was evidence of a lack of lubrication, which was consistent with
force or with a couple having had sex after an argument. Terrese’s injuries were “very
consistent” with her report that she had had nonconsensual sex. McConnell testified that
sex occurring 45 minutes after the victim was choked almost to the point of
unconsciousness would be forcible rape.
Police officers went to appellant’s residence to arrest him. Although they knew he
was inside, they received no answer when they knocked and announced their presence at
the door or when they called him on the telephone. Appellant’s housemate eventually
permitted the officers to enter. The officers found appellant sitting in a closet. Appellant
subsequently waived his rights under Miranda v. Arizona (1966) 384 U.S. 436. He stated
that when he and Terrese returned to his house from Knott’s Berry Farm, they argued
over the possibility of her having an affair.3 She asked him to take her home. As he
drove to pick up some mail in Azusa on his way to driving her home, she tried to grab the
steering wheel as they argued in the car. He pushed her away, to maintain control of the
3 Prior to appellant’s testimony, Terrese was recalled to testify with respect to three
inquiries posed by the jury. She stated that she and appellant never had any argument
concerning either of them seeing someone else.

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car, and he then noticed her nose was bleeding. When he parked in Azusa, they argued
and she continued to yell, so he grabbed her neck and shook her to “knock some sense
into her.” He stated that he loved her and did not intend to choke her. They made up and
embraced, and they agreed to go back to his house. Back in his room, they embraced and
“made love.” He denied asking or forcing her to orally copulate him. He explained that
when the police came to his house, he refused to open the door because he was afraid of
them.
Further evidence established that appellant called Terrese’s mother from jail and
said that he loved Terrese and that he had “lost it” the previous night but that he would
never hurt her. He sent Terrese a letter in which he asked for her forgiveness and did not
deny that he raped her. Appellant telephoned her in January 2001, telling her that he did
not want to serve any time in jail and that if he had to go to jail, he would “hurt
somebody” when he got out. In several other calls, he tried to get her to drop the charges.
She acknowledged that in December 2000, after she had received one letter from
appellant and he had called her a few times, she had written to him saying that she missed
him for the holidays. She testified that she had written this because it was what he
wanted to hear. She had also written that she wished she could trust him and feel safe
around him, based both on his conduct that night and on his aggressive attitude the week
before the offenses.
Testifying on his own behalf, appellant denied kidnapping Terrese or forcing her
to have sexual intercourse or to orally copulate him that evening. He stated that he and
Terrese had been in a relationship for eight months before the incident occurred and they
had engaged in sex more than 10 times. In early October 2000, he gave her an
engagement ring worth nearly $2,400, and she agreed to marry him. She had never
called off the engagement prior to the night of the incident.
On October 19, 2000, after appellant bought Terrese a pair of designer overalls
and spent $80 on tickets to Knott’s Berry Farm, Terrese said she was scared and did not
want to stay. He was upset about losing the ticket money and they argued, but they went

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back to his house, first stopping at a store where he bought her roses and some wine. At
his house, he lit candles and she took off her overalls as they watched television on his
bed. When she told him she wished they had gone to Disneyland, he became angry,
concluding that he was being used, and he took the ring from her finger and said the
engagement was over. He put the ring and a cell phone he had given her into a drawer.
When appellant and Terrese went outside, they yelled at each other about the ring
and Terrese said she would not get into his car without the ring and cell phone.
However, he claimed she got into his car voluntarily. He told her he was going to pick
up his mail at his cousin’s house and then drive her home. As he drove, she hit him and
tried to take over the steering wheel. He pushed her away, touching her neck and causing
her face to hit the window. She tried to kick out the door and window and told him that
her nose was bleeding. He did not see any blood but told her to get a shirt from the back
seat to wipe her nose.
In the parking lot of appellant’s cousin’s residence, the two argued and called each
other names. Terrese angrily told him she could ruin his life and career, but he took this
as a joke. She swung at him, trying to hit his head, so he grabbed her for a minute or
minute and a half and shook her at her collarbone, acting in self-defense. He explained
that this was “in the heat of . . . argument” and he “just react[ed].” He was not trying to
choke her. At trial, he demonstrated his actions, indicating that she was facing him and
his hands were on her upper chest, fingers near the top of her shoulders, and thumbs in
the middle of her sternum. His fingers ended up on her Adam’s apple but to his
knowledge he had not applied pressure to her neck area.
Terrese told him that her nose was bleeding again. He saw blood on the car seat
and said he was sorry. Crying, she said she was sorry, too, and she hugged him. He told
her he was going to take her home but she said she wanted to go to his house, make up,
and make love. They agreed to go back to his house and discussed their relationship, and
she repeatedly told him that they could make it work.

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At approximately 2:00 a.m., they drove back to appellant’s residence, stopping
about four times at red lights. Lee, appellant’s housemate, let them in. Terrese went to
wash up in the bathroom, although appellant saw no blood on her, and she then joined
him in his bedroom, where they “made love.”
He drove her home at approximately 3:00 a.m. and they hugged and kissed some
more. Appellant understood that the engagement was off but that they were going to try
to work things out. He later found that the engagement ring was missing from the drawer
where he had put it.
When the police knocked on the door, appellant attempted to avoid them because
of a prior bad experience and, when they called him on the phone, he lied to them about
his whereabouts. He did not know what they wanted and “never thought it was because
of the argument me and Terrese had.” He was charged with attempted murder but never
told the detective who spoke to him that Terrese had hit him or that he had acted in self-
defense, although he stated that he grabbed Terrese and shook her to get her to stop, and
he did not tell the detective that Terrese had told him she could ruin his life. He
acknowledged that he had written to her although there was a restraining order which
stated he was to have no written contact with her.
Appellant and Terrese agreed in their testimony that their relationship had become
strained in the week preceding the offenses. They also agreed that on the ride to
appellant’s home from his cousin’s residence, neither of them spoke much.
Appellant acknowledged two prior convictions each of grand theft, grand theft of
a vehicle, grand theft of an access card, theft by deception, and burglary. He conceded
that he had lied on his job application for the executive chef position he held at the time
of the offenses, in that he had not listed these prior convictions on the application.
Lee Ditterline, appellant’s boss and housemate, testified that when he let appellant
and Terrese in the early morning hours, Terrese did not appear to have any problems and
he did not see any blood on her. Appellant and Terrese went directly to appellant’s
bedroom.

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In rebuttal, the detective who interviewed appellant testified that appellant never
stated that Terrese had hit him before the alleged choking incident. A deputy who was
present at an interview with Terrese shortly after the offenses testified he saw a large red
area from her chin to the bottom of her throat and redness on her jaw line under the chin,
which were consistent with her version of the attack.
PROCEDURAL BACKGROUND
Appellant was originally charged with assault by means likely to produce great
bodily injury. The prosecutor offered a sentence of four years in return for a guilty plea,
informing appellant that he would refile the case and add the remaining charges if
appellant did not accept the plea bargain. The trial court advised appellant that in view of
the other offenses which had not been charged, and the potential sentence he would face
if convicted of those charges, this plea bargain was “like the biggest Christmas present
anybody was ever offered.” However, appellant declined the offer. An information was
then filed in the present case, charging him with assault, assault with intent to commit
rape or oral copulation, kidnapping, forcible oral copulation, and forcible rape. Appellant
declined an offer of a seven-year term in return for a plea based on this information. The
jury found him guilty of assault, kidnapping, and forcible rape, and not guilty of assault
with intent to commit rape or oral copulation or of forcible oral copulation.
DISCUSSION
I. Appellant’s requests to substitute counsel
On January 25, 2001,4 the judge in the master calendar department, department F,
transferred the original assault case, case No. KA050272, for trial to department P. In
department P, after the prosecutor indicated he had offered appellant a four-year term if
appellant would plead guilty to assault, appellant informed the trial court he wished to
continue the matter to bring in retained counsel. The trial court ruled that the request was

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not timely, since counsel had not appeared in court to request a continuance and had not
even returned the trial court’s call. Appellant’s appointed counsel indicated that he
believed appellant wanted to make a Marsden motion. The court informed appellant that
a Marsden motion was “simply if there is a conflict between your present attorney where
he can’t represent you,” such as the situation where counsel had represented the
complaining witness in another matter. In the presence of the prosecutor, the court asked
appellant for his reason for wanting to relieve appointed counsel.
Appellant stated that “evidence to help [his] case ha[d] not been obtained yet” and
referred to files in the police department in West Covina. The court observed that a
return on appointed counsel’s subpoena stated that the information sought could not be
found there. Counsel stated that appellant had just informed him that there was another
name under which the documents, apparently pertaining to Terrese F., might be found.
The trial court stated, “Mr. Lewis, I don’t have too much sympathy, based on just
what I’ve read in this report of your conduct and the potential conduct that could be
brought against you. [¶] What I am saying is if you want to enter a plea to the charge
that’s here, fine. If you don’t, then if the district attorney moves to dismiss the case, I’m
going to dismiss it and you’ll have plenty of time to get an attorney, cuz it’s going to start
all over again, new preliminary hearing and everything else. But if you’re convicted,
you’re going to be looking at the rest of your life in prison. [¶] . . . And you’re being
offered four [years]. You either take the four at 1:30 or the case will be dismissed and
we’ll start all over again. That’s it.”
That afternoon, case No. KA050272 alleging assault was dismissed. The court
informed appellant, “[I]f you want to have a new attorney, what will happen on it is this,
is that you’ll be arraigned on the new [c]omplaint, and the matter will be set for
preliminary hearing, and then it has to be set for trial within 60 days. So from today
4 Unless otherwise indicated, all subsequent dates mentioned in the discussion of
this issue occurred in 2001.

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you’d have probably pretty close to three months before the matter came up to trial again.
So you’ve got all that time to hire a new attorney, and if you do, why, [appointed
counsel] will be relieved, but until that time -- well, at this time -- ” Counsel interjected,
“It may be reassigned.” The court concluded, “It could be reassigned to somebody else.
And so your attorney is relieved and this case is dismissed . . . .”
On February 20, in department N, with appellant present in court, the new
information was filed charging five counts. The same attorney was appointed to
represent him. He was arraigned on the new information and entered not guilty pleas. A
pretrial conference was scheduled for March 8. On March 8, appellant was present in
lockup and the matter was set for readiness conference on March 29. On March 29, with
appellant present in court, a motion for continuance was granted and the readiness
hearing was set for April 24, with trial set for April 26. On April 24, appellant was
present in court, a motion for continuance was granted and the readiness hearing was set
for May 11, with trial set for May 15. On May 11, with appellant present in lockup, the
readiness conference was held and trial remained set for May 15. These hearings were all
held in department N and no reporter’s transcripts for these hearings are included in the
record.
On May 15, the matter was called for trial in department 3. The prospective jurors
were administered the oath and the matter was continued to the next day. The next
morning, May 16, while the jury panel was waiting in the hallway, the trial court placed
on the record the status of plea negotiations, ascertaining that appellant had refused the
offer of seven years. Defense counsel indicated that he had advised appellant to take the
offer and that appellant had refused to take his advice. Appellant then informed the trial
court that he had “asked for a Marsden motion which is in Division F. Judge was going
to grant it next time I came into court. When I came back from my, [sic] I was switched
from Division F to P and I have a new judge then.” He explained that he had been in
division F and had been told that he could “have [his] Marsden motion” when he “c[a]me
back,” but he was brought back to division P for one day and was then sent to division N,

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and never went back to division F. He continued, “See, I have been trying to get a state
appointed attorney. My life is on the line here and I don’t feel comfortable with this man
representing me. And I have been clearly stating that, but nobody have been helping me.
I am talking to him, he has never came to see me. Every time I call him, he had nothing
to say. I don’t -- nothing going on with this case, what is going to happen right here. I
am walking here. I don’t know nothing. [¶] And my life is on the line, and he is here
representing me. And all he’s telling me is, [‘G]o to prison, go to prison. You will be
found guilty. This is Pomona court . . . . Our jury is all white. You will be convicted.
You are gonna loose [sic] this case.[’] It was never no kidnapping. This whole thing was
my fiance[e]. All it was domestic argument. That’s it. [¶] The argument was over an
amusement park one night. That’s after we made love. Why would I want to kidnap my
fiance[e] after we make love over argument?”
The court asked appellant if he wanted to bring a motion to relieve his attorney.
Appellant replied, “Definitely. I do. I have been wanting this since day one.” The trial
court asked defense counsel if any Marsden motion had been brought. Counsel stated he
believed it had. Appellant explained that he had raised the issue before, in department F,
but that he had “never had a Marsden motion” because the judge in department F “stated,
when you come back to court, we can make that motion for the Marsden motion, but I
never went back into his court.” The trial court asked appellant if he had ever renewed
the motion. Appellant replied, “I was never able to. When I come to court, if I don’t see
the judge or I come in here, you just waived time, and we need more time to do, we can’t
find this person, and that’s it. I wasn’t able to say nothing. He knows how I feel.”
Counsel stated, “Any time a client of mine says he wants state appointed counsel,
which is the usual way our clients expressed they wanted to make a Marsden motion or
any other way express that desire, I always immediately make that known to the judge.
And that was done in this case. I can guarantee the court that. [¶] I think I know -- I
remember now what Mr. Lewis is talking about. When Mr. Lewis came back on the time
when he had been told that his Marsden motion would be addressed, he had changed his

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mind and didn’t want to bring a Marsden motion at that point, so it wasn’t pursued. [¶]
Mr. Lewis goes off again and on again as to whether or not he wanted me to represent
him or not. And that’s been the course of conduct throughout this case.”
Appellant replied, “I have never said I wanted you to represent me. I never
changed my mind. Never. You have not asked me since I told you to tell the judge I
didn’t want you to represent me. You have not asked me, [‘H]ave you changed your
mind?[’] God as my witness you are lying. I never said I want you to represent me.
[¶] . . . [¶] I am not -- I have no confidence in you. Your whole conversation to me,
[‘G]o to prison.[’] You tell me this is Pomona, this is how they do in Pomona. This is
not L.A. I never live in L.A. in my life, . . . [¶] Throughout me being incarcerated, that
is how it’s been. He know I never wanted him as my attorney. I advised that opinion.
Especially -- I am afraid. [¶] If the whole thing was domestic argument, if I was brought
a deal on the grounds of a domestic argument, I would have took it. But have me for
assault, the, I never assaulted nobody, nobody for nothing. I never kidnapped no one
. . . . From day one, he’s forced to me to, force me to a prison deal . . . .”
The court inquired of appellant as to whether he thought it was important for an
attorney to tell his client the truth in the client’s best interest, even if it was news the
client did not want to hear. Appellant replied affirmatively.
The trial court then ruled, “Let me indicate on the record in this case, the court is
not going to entertain the Marsden motion as it being untimely.”
Appellant raises several complaints regarding the January 25, 2001, hearing.
These claims are not properly before us. There is no notice appeal from case No.
KA050272, and for good reason, since that matter was dismissed and there is no
judgment from which to appeal. (§ 1237; People v. Joseph (1957) 153 Cal.App.2d 548,
551; see People v. Croxton (1958) 162 Cal.App.2d 187, 189.)
Appellant further contends that the trial court at the May 16, 2001, hearing
erroneously ruled that his request to substitute counsel was untimely and failed to
entertain his motion. This claim lacks merit. Appellant was present in court on the day

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counsel was appointed in the refiled case and on at least three other occasions prior to
May 16.5 Although he claimed that he had not been able to bring his motion at those
times, counsel stated that “[a]ny time a client of mine says he wants state appointed
counsel, which is the usual way our clients expressed they wanted to make a Marsden
motion or any other way express that desire, I always immediately make that known to
the judge. And that was done in this case. I can guarantee the court that.” He further
stated, “When Mr. Lewis came back on the time when he had been told that his Marsden
motion would be addressed, he had changed his mind and didn’t want to bring a Marsden
motion at that point, so it wasn’t pursued. [¶] Mr. Lewis goes off again and on again as
to whether or not he wanted me to represent him or not.” The trial court was entitled to
accept counsel’s statement. (People v. Smith (1993) 6 Cal.4th 684, 696.) Appellant’s
May 16 request was made on the second day of trial, after the jury was administered the
oath and just as jury selection was about to commence. Such a motion is untimely
(People v. Shoals (1992) 8 Cal.App.4th 475, 495, 497), and we find no abuse of
discretion in the trial court’s ruling on the ground of untimeliness.
II. Evidence of appellant’s prior guilty pleas as good character evidence and as
impeachment evidence
Before appellant took the stand, the trial court considered whether he could be
impeached with evidence of his prior convictions. The prosecutor indicated that
appellant had two 1990 or 1991 convictions each of grand theft of a vehicle and grand
theft of an access card, two 1992 convictions of grand theft of property, and a 1992
conviction of first degree burglary, all felonies sustained in California, as well as a 1985
conviction of larceny, a 1990 conviction of fraudulent use of a credit card, 1996
convictions of theft by deceit and fraudulent use of a credit card, and a 1995 conviction
of burglary, all felonies sustained in New Jersey. Defense counsel argued that although
5 As appellant acknowledges, the refiled case is not a continuation of the dismissed

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all the convictions involved crimes of moral turpitude, they were too remote in time and
therefore too prejudicial to be allowed for impeachment. The prosecutor conceded that
the 1985 conviction was too remote. The trial court permitted impeachment use of the
remaining convictions, each of which had been sustained within the prior 10 years.
On direct examination, defense counsel asked appellant whether he had suffered
10 of these prior convictions, and whether they were all theft-related matters. Appellant
replied affirmatively. Counsel then asked, “On all of these convictions, did you ever
request a trial?” Appellant replied, “No.” Counsel asked, “Did you plead guilty to all?”
The prosecutor objected on the ground that this was irrelevant. The trial court sustained
the objection. A conference was held which was not reported, and the trial court then
admonished the jury, “Objection is sustained, answer is stricken. Jury is to disregard.”
Appellant contends that the trial court prejudicially erred in refusing to permit
introduction of good-character evidence of his guilty pleas or, alternatively, that the trial
court abused its discretion in admitting evidence of the numerous prior convictions
because this constituted prosecutorial “overkill” in a credibility-based case.
Apart from the absence in this record of any showing by appellant as to the
relevance of the proposed testimony, which constitutes waiver of the issue on appeal
(People v. Price (1991) 1 Cal.4th 324, 488; People v. Hendricks (1992) 11 Cal.App.4th
126, 133), this first claim must fail.6
case. (Paredes v. Superior Court (1999) 77 Cal.App.4th 24, 34.)
6 Appellant asserts that the evidentiary ruling may have violated his right to due
process, implicating the Chapman (Chapman v. California (1967) 386 U.S. 18) standard
of review. This ruling did not substantially implicate his constitutional rights. (People v.
Davis (1995) 10 Cal.4th 463, 501-502, fn. 1.) Moreover, since the prosecutor’s objection
was sustained on relevance grounds, and no Evidence Code section 352 objection
appears in the record, the trial court was not required to reach the issue of whether the
evidence was more prejudicial than probative. (People v. Fierro (1991) 1 Cal.4th 173,
238.)

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On appeal, appellant asserts that his testimony in response to the question whether
he pled guilty to each of his prior convictions was intended to rehabilitate him with good
character evidence and evidence of his truth and veracity, by showing that he accepted
responsibility for his past crimes. This, he claims, would serve to distinguish his prior
cases from the instant case. Even if we accept this assertion, this evidence merely would
have produced a speculative inference. A defendant may have many reasons to enter a
guilty plea other than an acknowledgement or consciousness of guilt, and the further
inference that the defendant must then be innocent if he pleads not guilty is even more
speculative. For that reason, such evidence is irrelevant and was properly excluded.
(People v. Babbitt (1988) 45 Cal.3d 660, 681-682; People v. De La Plane (1979) 88
Cal.App.3d 223, 242-245, disapproved on other grounds in People v. Green (1980) 27
Cal.3d 1, 39, fn. 25.)
Moreover, there was no abuse of discretion in the trial court’s ruling permitting
the prosecutor to impeach appellant with numerous prior felony convictions. As defense
counsel acknowledged, each prior conviction involved moral turpitude. Most of the prior
convictions were for similar theft-related offenses and none was similar to any of the
current charges. The trial court excluded impeachment with the 1985 conviction. The
remaining convictions were not remote and were not followed by a legally blameless life.
(People v. Mendoza (2000) 78 Cal.App.4th 918, 925-926.) Particularly because this case
was so heavily dependent on the jury’s determination of the credibility of Terrese and
appellant, appellant was not entitled to a false aura of veracity, and “a series of crimes
relevant to credibility is more probative than is a single such offense.” (People v.
Dillingham (1986) 186 Cal.App.3d 688, 695.) The trial court’s ruling permitting
impeachment of appellant with all the convictions sustained within the prior 10 years was
within the sound exercise of its discretion. (People v. Muldrow (1988) 202 Cal.App.3d
636, 649; see People v. Mendoza, supra, at pp. 927-928.)

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III. Instruction on reasonable, good faith belief in consent as to the rape charge
The trial court instructed the jury on consent with respect to the charges of rape
and forcible oral copulation in accordance with CALJIC No. 1.23.1. It did not instruct
the jury that appellant was not guilty of rape if he entertained a reasonable, good faith
belief that Terrese consented to have sexual intercourse, in accordance with CALJIC
No. 10.65. Appellant contends that the trial court erred in failing to instruct the jury sua
sponte on reasonable and good faith belief in consent as to the charge of rape. This claim
lacks merit.
CALJIC No. 10.65 provides, as here relevant, “In the crime of [forcible rape] . . .
criminal intent must exist at the time of the commission of the [crime charged]. There is
no criminal intent if the defendant had a reasonable and good faith belief that the other
person voluntarily consented to engage in [sexual intercourse] . . . . Therefore, a
reasonable and good faith belief that there was voluntary consent is a defense to such a
charge. [¶] [However, a belief that is based upon ambiguous conduct by an alleged
victim that is the product of force, violence, duress, menace, or fear of immediate and
unlawful bodily injury on the person of another is not a reasonable good faith belief.] [¶]
If after a consideration of all of the evidence you have a reasonable doubt that the
defendant had criminal intent at the time of the [sexual intercourse] . . . you must find
[him] [her] not guilty of the crime.” (Original brackets.)
A trial court has a duty to instruct sua sponte on a defense “‘only if it appears that
the defendant is relying on such a defense, or if there is substantial evidence supportive
of such a defense and the defense is not inconsistent with the defendant’s theory of the
case.’ [Citations.]” (People v. Barton (1995) 12 Cal.4th 186, 195.) The Use Note to
CALJIC No. 10.65 states, in part, “The court is not required to sua sponte instruct on a
good faith but mistaken belief of consent (where defense is actual consent and court
instructs on actual consent) where defendant does not claim a good faith belief that
victim consented and there is no evidence to support such a defense. (People v. Romero

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(1985) 171 Cal.App.3d 1149, 1153.)” In this case, neither of these conditions was
present.
CALJIC No. 10.65 is known as the Mayberry instruction. In People v. Mayberry
(1975) 15 Cal.3d 143, 155 (Mayberry), the Supreme Court stated, “If a defendant
entertains a reasonable and bona fide belief that a prosecutrix voluntarily consented to . . .
engage in sexual intercourse, it is apparent he does not possess the wrongful intent that is
a prerequisite under Penal Code section 20 to a conviction of . . . rape by means of force
or threat . . . .” Accordingly, when there is substantial evidence of a defendant’s
reasonable and good faith mistake of fact regarding the complaining witness’s consent to
sexual intercourse, an instruction consistent with CALJIC No. 10.65 must be given.
(People v. Williams (1992) 4 Cal.4th 354, 360-361 (Williams).)
To establish that the Mayberry instruction is required, the defendant must adduce
evidence of the victim’s equivocal conduct on the basis of which he erroneously believed
there was consent (the subjective component), and the mistake regarding consent must
have been reasonable under the circumstances (the objective component). (People v.
Williams, supra, 4 Cal.4th at pp. 360-361.) The Supreme Court explained, “Thus,
because the Mayberry instruction is premised on mistake of fact, the instruction should
not be given absent substantial evidence of equivocal conduct that would have led a
defendant to reasonably and in good faith believe consent existed where it did not.” (Id.
at p. 362.) In other words, “If the defense evidence is unequivocal consent and the
prosecution’s evidence is of nonconsensual forcible sex, the [Mayberry] instruction
should not be given. [Citation.]” (People v. Burnett (1992) 9 Cal.App.4th 685, 690.)
The Supreme Court in Williams held that the evidence in that case, consisting of
two wholly divergent accounts of the event, one establishing that the victim was raped
and one establishing actual consent, did not warrant an instruction on reasonable and
good faith belief in consent. The court stated, “These wholly divergent accounts create

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no middle ground from which Williams could argue he reasonably misinterpreted [the
victim’s] consent.” (People v. Williams, supra, 4 Cal.4th at p. 362.)7
In his opening statement, appellant’s counsel aptly characterized the anticipated
evidence, indicating that “there are two very definite different versions of this case.” The
parties thereafter did in fact testify to “wholly divergent accounts” of events, and based
on the evidence, defense counsel then argued to the jury that Terrese was lying and that
the sexual intercourse was consensual. Appellant testified that after he grabbed Terrese
because she swung at him, they both said they were sorry. She hugged him and, although
he said he was going to take her home, she told him she wanted to go back to his house
and make love. He testified that he and Terrese then engaged in consensual intercourse.
If believed by the jury, this testimony would establish actual consent. Terrese, on the
other hand, testified that she had hugged appellant prior to the assault to pacify him,
hoping to get out of the car to go to the bathroom, and that she only agreed to what
7 After finding that the evidence did not warrant the mistake of fact instruction, the
court added, “We note for the guidance of the lower courts that there may be cases, as in
Mayberry, in which there is evidence of equivocal conduct that could be reasonably and
in good faith relied on to form a mistaken belief of consent, but also evidence that this
equivocal conduct occurred only after the defendant’s exercise or threat of ‘force,
violence, duress, menace, or fear of immediate and unlawful bodily injury on the person
or another.’ [Citations.] No doubt it would offend modern sensibilities to allow a
defendant to assert a claim of reasonable and good faith but mistaken belief in consent
based on the victim’s behavior after the defendant had exercised or threatened ‘force,
violence, duress, menace or fear of immediate and unlawful bodily injury on the person
or another.’ [Citations.] However, a trier of fact is permitted to credit some portions of a
witness’s testimony, and not credit others. Since a trial judge cannot predict which
evidence the jury will find credible, he or she must give the Mayberry instruction
whenever there is substantial evidence of equivocal conduct that could be reasonably and
in good faith relied on to form a mistaken belief of consent, despite the alleged temporal
context in which that equivocal conduct occurred. The jury should, however, be further
instructed, if appropriate, that a reasonable mistake of fact may not be found if the jury
finds that such equivocal conduct on the part of the victim was the product of ‘force,

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appellant wanted, to have sex, because he was choking her and she wanted to prevent
him from hurting her any further. She testified that the ensuing sex act was not
consensual. If believed by the jury, this testimony “would preclude any reasonable belief
of consent. These wholly divergent accounts create no middle ground from which
[appellant] could argue he reasonably misinterpreted [Terrese’s] conduct.” (People v.
Williams, supra, 4 Cal.4th at p. 362.)
On appeal, appellant now claims that this is a “middle ground” case.8 He states
that although Terrese testified she hugged him for three minutes before the choking
occurred, he testified that after he grabbed her and shook her to knock some sense into
her and to get her to stop yelling, she decided to “kiss and make up,” they hugged each
other, and she agreed to go back to his house and make love. He argues that such
evidence, particularly in light of their relationship and their history of sexual activity,
warranted the mistake of fact instruction. However, as in Williams and in People v.
Burnett, supra, 9 Cal.App.4th 685, the evidence here established either actual consent or
none. There was no evidence on which a reasonable jury could have found a mistaken
but good faith belief in consent based on ambiguous or equivocal conduct. On a record
which established either that Terrese consented to have sex or that she was raped, there
was no substantial evidence to warrant the mistake of fact instruction. (People v. Burnett,
supra, at p. 690; see People v. Balcom (1994) 7 Cal.4th 414, 422; see also People v.
Rodriguez (1997) 53 Cal.App.4th 1250, 1275-1276.)
violence, duress, menace, or fear of immediate and unlawful bodily injury on the person
or another.’” (People v. Williams, supra, 4 Cal.4th at p. 364, italics in original.)
8 We observe that, in his opening brief, during his discussion of the impeachment
issue, appellant concedes that “[i]n this case, there was a pure credibility contest with
regard to the consent, or lack thereof, to sexual intercourse.”

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IV. CALJIC No. 10.61.1
Appellant contends that the trial court erred in failing to instruct the jury sua
sponte in accordance with CALJIC No. 10.61.1 on prior consensual sexual conduct
between him and Terrese. This contention is unavailing.
CALJIC No. 10.61.1 provides, “Evidence has been introduced for the purpose of
showing that the defendant and [the alleged victim] engaged consensually in sexual
intercourse on one [or more] occasions prior to the charge against the defendant in this
case. [¶] If you believe this evidence, you should consider it only for the limited purpose
of tending to show that [the alleged victim] consented to the act[s] of intercourse charged
in this case] [,or] [the defendant had a good faith reasonable belief that [the alleged
victim] consented to the act of sexual intercourse]. [¶] You must not consider that
evidence for any other purpose.” (Original brackets.)
This instruction derives from section 1127d, which provides, in pertinent part, that
“if evidence was received that the victim consented to and did engage in sexual
intercourse with the defendant on one or more occasions prior to that charged against the
defendant in this case, the jury shall be instructed that this evidence may be considered
only as it relates to the question of whether the victim consented to the act of intercourse
charged against the defendant in the case, or whether the defendant had a good faith
reasonable belief that the victim consented to the act of sexual intercourse. The jury shall
be instructed that it shall not consider this evidence for any other purpose.” The Use
Note to CALJIC No. 10.61.1 states that the instruction “appears to be required in
prosecutions for rape, . . . or an attempt or assault with intent to commit such crime . . . .”
Although the trial court erred in failing to so instruct the jury, such error was
harmless. Appellant argues that CALJIC No. 10.61.1 was necessary to counteract the
potential prejudicial effect of the last sentence of the instruction on actual consent in
CALJIC No. 1.23.1, under which the jury was informed that “[t]he fact, if established,
that the defendant and the alleged victim engaged in a current or previous dating
relationship does not by itself constitute consent.” He claims that since the jurors were

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given this instruction, relating to the couple’s previous dating relationship, they “could
not possibly understand” that they were entitled to consider the couple’s previous sexual
relationship, and he argues that prejudice is shown because “CALJIC No. 1.23.1’s
admonition that a prior dating relationship could not constitute consent effectively
vitiated any consideration whatsoever of the intimacy between appellant and Terrese[.]”
This claim misinterprets CALJIC No. 1.23.1 and underestimates the ability of the
jury to evaluate the evidence in light of the given law. We have determined that an
instruction on reasonable and good faith belief in consent was not warranted, and thus in
this case CALJIC No. 10.61.1 pertained only to actual consent. The instruction in
CALJIC No. 1.23.1, relating to actual consent, informed the jury that the fact of the
parties’ prior dating relationship did not “by itself constitute consent,” which necessarily
indicates that it could, with other evidence, in fact demonstrate consent. As the jurors
were aware, from the testimony of both appellant and Terrese, their previous dating
relationship included consensual sex. CALJIC No. 1.23.1 did not admonish the jury
either that a prior dating relationship could not constitute consent or that the jury could
not consider the fact that the couple had a prior sexual relationship. Nothing more would
have been added by the giving of CALJIC No. 10.61.1, which contained additional
language resulting from the enactment of a series of laws intended to limit “the
admissibility of evidence of a complainant’s sexual history except under narrowly
defined conditions . . . .” (Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 222,
conc. opn. of Arabian, J.) Appellant was not prejudiced by the omission of CALJIC No.
10.61.1. (People v. Watson (1956) 46 Cal.2d 818, 836.)
V. CALJIC No. 2.62
The jury was instructed in accordance with CALJIC No. 2.62 as follows: “In this
case defendant has testified to certain matters. [¶] If you find that a defendant failed to
explain or deny any evidence against him introduced by the prosecution which he can
reasonably be expected to deny or explain because of facts within his knowledge, you
may take that failure into consideration as tending to indicate the truth of this evidence

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and as indicating that among the inferences that may reasonably be drawn therefrom
those unfavorable to the defendant are the more probable. [¶] The failure of the
defendant to deny or explain evidence against him does not, by itself, warrant an
inference of guilt, nor does it relieve the prosecution of its burden of proving every
essential element of the crime and the guilt of the defendant beyond a reasonable doubt.
[¶] If the defendant does not have the knowledge that he would need to deny or to
explain evidence against him, it would be unreasonable to draw an inference unfavorable
to him because of his failure to deny or explain this evidence.”
Appellant contends that this instruction was not supported by the evidence, as is
required by People v. Saddler (1979) 24 Cal.3d 671, 681. He asserts that the giving of
the instruction was prejudicial and violated his constitutional rights to due process and a
fair trial. The constitutional claims are waived because they were not raised below.
(People v. Williams (1997) 16 Cal.4th 153, 250.) Moreover, appellant’s contention is
unavailing.
As respondent asserts, a delay in disclosing information may constitute a sufficient
basis for the giving of this instruction (People v. Redmond (1981) 29 Cal.3d 904, 911),
and appellant’s failure to tell the police when he was arrested for attempted murder that
Terrese hit him and that he struck her in self-defense, or that she had threatened that she
could ruin his life, was such a delay warranting the instruction. As respondent also points
out, a defendant’s “‘bizarre and implausible’ explanation” warrants the giving of this
instruction. (People v. Sanchez (1994) 24 Cal.App.4th 1012, 1029-1030.) Appellant’s
description of how he grabbed Terrese at the time of the charged choking incident was
implausible given nurse McConnell’s description of the nature of the injuries the victim
sustained and her explanation of the degree of force necessary to cause such injuries, and
appellant failed to explain how she could have sustained such injuries, which only he
could have inflicted. The instruction was properly given. (People v. Belmontes (1988)
45 Cal.3d 744, 784; People v. Ramirez (1980) 109 Cal.App.3d 529, 543.)

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Moreover, any error in the giving of CALJIC No. 2.62 would be harmless.
CALJIC No. 2.62 “does not direct the jury to draw an adverse inference. It applies only
if the jury finds that the defendant failed to explain or deny evidence. It contains other
portions favorable to the defense (suggesting when it would be unreasonable to draw the
inference; and cautioning that the failure to deny or explain evidence does not create a
presumption of guilt, or by itself warrant an inference of guilt, nor relieve the prosecution
of the burden of proving every essential element of the crime beyond a reasonable
doubt).” (People v. Ballard (1991) 1 Cal.App.4th 752, 756-757.) In addition, the jury
was instructed in accordance with CALJIC No. 17.31 that it was to disregard any
instruction which applied to facts which it determined did not exist. (People v. Kondor
(1988) 200 Cal.App.3d 52, 58.) It is not reasonably probable a more favorable verdict
would have resulted absent the instruction. (People v. Watson, supra, 46 Cal.2d at
p. 836.)
VI. Cumulative error
Appellant contends that the effect of the Marsden and instructional errors,
combined, denied him due process and require reversal. Any errors were harmless,
individually or collectively. Appellant was not denied a fair trial, and reversal is not
warranted. (People v. Cunningham (2001) 25 Cal.4th 926, 1009.)
VII. Section 667.61 and the three strikes law
Appellant was sentenced to 5 years for kidnapping and to a consecutive term of 15
years to life under the one strike law (§ 667.61) for rape which was committed under the
circumstance that he kidnapped the victim of the rape. The terms of 5 years for
kidnapping and of 15 years to life for rape under the one strike law were then doubled
under the provisions of the three strikes law. Appellant contends that section 667.61, the
one strike law, is an enhancement not subject to the doubling provision of the three

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strikes law. This claim has been rejected by the Supreme Court in People v. Acosta
(2002) 29 Cal.4th 105, 118.9
VIII. Section 667.61, subdivision (f)
Appellant contends, and respondent agrees, that under the plain language of
section 667.61, subdivision (f), the 10-year sentence imposed for kidnapping pursuant to
section 207 was improperly imposed. This claim is well taken.
Section 667.61, subdivision (b) provides for a term of 15 years to life when a
defendant is convicted of an offense specified in subdivision (c) of that section under
“one of the circumstances specified in subdivision (e).” Appellant was convicted of
forcible rape in violation of section 261, subdivision (a)(2), an offense specified in
subdivision (c)(1). The jury found that in the commission of rape, appellant was engaged
in the crime of kidnapping in violation of section 207, a circumstance set forth in section
667.61, subdivision (e)(1).
Subdivision (f) of section 667.61 provides, in pertinent part, “If only the minimum
number of circumstances specified in subdivision . . . (e) which are required for the
punishment provided in subdivision . . . (b) to apply have been pled and proved, that
circumstance . . . shall be used as the basis for imposing the term provided in subdivision
. . . (b) rather than being used to impose the punishment authorized under any other law,
unless another law provides for a greater penalty.” The kidnapping circumstance was the
only circumstance pled and proved under subdivision (e) of section 667.61. The
punishment set forth in subdivision (b) based upon the kidnapping circumstance specified
9 Since the Supreme Court has addressed and rejected appellant’s contention, we
decline appellant’s request for judicial notice of legislative history materials pertaining to
section 667.61. We further decline to address appellant’s argument that People v.
Jefferson (1999) 21 Cal.4th 86, addressing a related three-strikes issue where the
Supreme Court held that the life term imposed under section 186.22, subdivision (b)(4) is
an alternate penalty rather than an enhancement, should be reconsidered because it
elevated form over substance in light of Apprendi v. New Jersey (2000) 530 U.S. 466.

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in subdivision (e) is greater than that for kidnapping set forth in section 207, which
carries a sentence of three, five or eight years. (§ 208.) The term for kidnapping must be
stricken. (People v. Mancebo (2002) 27 Cal.4th 735, 743-744, 754.) Since the ten-year
sentence for kidnapping was the base term for the determinate sentence, the matter must
be remanded to permit the trial court to select among the range of three terms for the
remaining count, assault by means likely to produce great bodily injury.
IX. Section 654
Appellant also contends that the sentence for kidnapping must be stayed because it
was based on the same act as the section 667.61, subdivision (b) “enhancement” and thus
violates the prohibition against multiple punishment of section 654.10 Since we have
determined that the sentence for kidnapping must be stricken in accordance with the
dictates of section 667.61, subdivision (f), we need not address this issue.
X. Admission of the prior conviction allegations
After the verdicts were read, defense counsel informed the trial court that
appellant would admit the prior conviction allegations. The prosecutor indicated he
would dismiss one of the two alleged prison priors. The trial court then asked appellant,
“Sir, do you admit having suffered a conviction of the prior alleged in this case, being the
strike prior, a serious or violent felony conviction for the charge of Penal Code section
459, a burglary out of Riverside County, a conviction date being January 16, 1992; do
you admit the truth of that conviction?” Appellant said, “Yes.” The court then asked,
“Sir, do you admit you suffered a conviction in case KA006595, Penal Code section
487.1, a theft offense, grand theft offense, on April 2nd of 1992, out of Los Angeles
Superior Court?” Appellant said, “Yes.” The court asked, “You understand in each of
10 Section 654 provides, in pertinent part, “An act or omission that is 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 in no case shall the act or
omission be punished under more than one provision.”

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these admissions that you’re waiving and giving up your right to have those matters
determined by a jury trial?” Appellant said, “Yes.” The court asked if counsel joined,
and when defense counsel said, “Yes,” the court accepted the two admissions.
Appellant contends that his admission of the prior conviction allegations was not
voluntary and intelligent.
In People v. Howard, supra, 1 Cal.4th 1132, the Supreme Court “emphasize[d]
that explicit admonitions and waivers are still required in this state,” explaining that such
admonitions and waivers “are the only realistic means of assuring that the judge leaves a
record adequate for review.” (Id. at pp. 1178-1179.) In Howard, the trial court advised
the defendant that he had the right to jury trial on the truth of the prior conviction
allegations, and told him he had “’the right to force the District Attorney to prove this and
to bring in evidence and witnesses[.] [¶] . . . [¶] And be confronted by them[.]’” The
defendant waived his rights to jury trial and confrontation. The Supreme Court looked to
the totality of the circumstances to determine whether the defendant’s admission of a
prior conviction was voluntary and intelligent. The Supreme Court concluded that
although the defendant had not been advised of the privilege against self-incrimination,
his admission of his prior conviction was voluntary and intelligent, because the trial court
had specifically informed him of his right to force the prosecutor to prove the prior
conviction in a trial, where he would have the rights to a jury and to confront adverse
witnesses; he was represented by counsel and was preparing for trial on the charges; and
there was a strong factual basis for the plea, which the prosecution subsequently proved
at the penalty phase. (Id. at p. 1180.)
However, appellant was not advised of and did not waive either his right of
confrontation or his privilege against self-incrimination, and, unlike the case in Howard,
there was no explanation of the prosecutor’s burden to prove the prior convictions in a
trial. In People v. Johnson (1993) 15 Cal.App.4th 169, 177-178, as here, the trial court
did not advise the defendant or obtain waivers of the right to confrontation or the
privilege against self-incrimination; in addition, it did not obtain a waiver of the right to

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trial by jury. The reviewing court concluded that although it had “no doubt that [the
defendant] was in fact aware of his right to a jury trial, his right to confront witnesses,
and his right to remain silent, all of which he had just exercised in trial,” it was
impossible to determine from the silent record whether he was not only “aware of these
rights, but was also prepared to waive them as a condition to admitting his prior
offenses.” (Id. at p. 178.) The court reversed the findings on the prior conviction
allegations. In People v. Torres (1996) 43 Cal.App.4th 1073, as here, the defendant
waived his right to jury trial but was not advised of, and did not waive his right to
confrontation or his privilege against self-incrimination. Citing People v. Johnson, the
court in Torres reversed the findings on the prior conviction allegations. (People v.
Torres, supra, at pp. 1080-1083; accord, People v. Howard (1994) 25 Cal.App.4th 1660,
1665.) We conclude that appellant’s admissions similarly were not voluntary and
intelligent and must be reversed.11
XI. Cruel and unusual punishment
Finally, appellant contends that his life sentence constituted cruel and unusual
punishment under the circumstances of this case. We have determined that the sentence
for kidnapping in violation of section 207 cannot stand and the matter will be remanded
for resentencing as a result, as well as for a new trial limited to the issue of the prior
conviction allegations. We nevertheless address his contention, which targets the 30-
year-to-life sentence imposed for rape under the one strike and three strikes laws after he
rejected a pretrial offer of a seven-year term. Appellant argues that his sentence was a
punishment for his choice to go to trial and is disproportionate to the crime. These claims
are without merit.
11 The issue of whether the trial court reversibly erred in failing to expressly advise
the defendant of his constitutional rights and to obtain a waiver of those rights before
accepting his admission to a prior conviction allegation is before the Supreme Court in
People v. Mosby (2002) 95 Cal.App.4th 967, review granted May 1, 2002, S104862.

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A trial court may not impose a more severe sentence because a defendant has
elected to go to trial. (In re Lewallen (1979) 23 Cal.3d 274, 281.) However, “[t]he mere
fact . . . that following trial defendant received a more severe sentence than he was
offered during plea negotiations does not in itself support the inference that he was
penalized for exercising his constitutional rights.” (People v. Szeto (1981) 29 Cal.3d 20,
35.) Appellant must demonstrate that the higher sentence was imposed as punishment for
the exercise of his right to trial. (People v. Angus (1980) 114 Cal.App.3d 973, 989-990.)
When appellant rejected the first plea offer based on the assault count, the trial
court advised him of the merits of that offer, in view of the offenses which had not then
been charged and the possible sentence of life plus 30 years were he to be convicted of
those charges. Appellant was also advised, at the time he refused the seven-year plea
offer based on the current information, that he faced a life term if convicted. The record
fully supports the trial court’s sentence choices, apart from the imposition of the term for
kidnapping. (People v. Huston (1989) 210 Cal.App.3d 192, 223.) There is nothing in the
record to evidence a retaliatory motive for appellant’s exercise of his right to go to trial.
(People v. Aragon (1992) 11 Cal.App.4th 749, 759.)
The jury considered all the evidence presented at trial, found appellant not guilty
of assault with intent to commit rape or oral copulation or of forcible oral copulation, and
found him guilty of the remaining charges. The evidence amply supports his guilt of
those offenses and the finding under the one-strike law. This case is unlike People v.
Dillon (1983) 34 Cal.3d 441, on which appellant relies, in that appellant is not an
immature 17-year-old and his crime was not the panicked response to a “‘suddenly
developing situation’” (People v. Estrada (1997) 57 Cal.App.4th 1270, 1279-1280);
moreover, it does not appear that either the jury or the trial court here expressed any
reluctance to impose the sentence required by law.
The Legislature has broad discretion in determining the appropriate punishment
for crimes. (People v. Dillon, supra, 34 Cal.3d at pp. 477-478.) Appellant’s current
offenses were crimes of violence, and his prior record is comprised of a continuing

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history of offenses commencing in 1983 and continuing until 1998. The probation report
indicates that he was a fugitive from justice, having failed to appear for a hearing in New
Jersey in 1998. Considering the nature of the offense and the nature of the offender, we
cannot find that his sentence was so disproportionate to his crimes that it shocks the
conscience or offends fundamental notions of human dignity. (People v. Alvarado
(2001) 87 Cal.App.4th 178, 199-201; People v. Estrada, supra, 57 Cal.App.4th at pp.
1277-1280.)
DISPOSITION
The 10-year term imposed for kidnapping in count 4 is stricken, the findings
entered upon appellant’s admissions of the prior conviction allegations pursuant to the
three strikes law and section 667.5, subdivision (b) are reversed, and the sentence is
vacated. The matter is remanded for proceedings limited to the issue of the truth of the
prior convictions alleged in the information and for resentencing, including the selection
of a new base term for assault by means likely to produce great bodily injury. In all other
respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________________, J.
DOI TODD
We concur:
_____________________________, P.J.
BOREN
______________________________, J.
NOTT

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