Filed 1/21/16 P. v. Harrington CA2/4
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION FOUR


THE PEOPLE,                                                             B255185

         Plaintiff and Respondent,                                      (Los Angeles County
                                                                        Super. Ct. No.GA084500)
         v.

BRIAN WILLIAM HARRINGTON,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County, Stanley
Blumenfeld and Michael D. Carter, Judges. Affirmed in part. Reversed and remanded in
part with directions.
         Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant
and Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Steven D. Matthews and David
E. Madeo, Deputy Attorneys General, for Plaintiff and Respondent.
                                       INTRODUCTION

          Defendant Brian Harrington appeals from the judgment entered following his
conviction by jury of multiple crimes related to his imprisonment and rape of his
sometime girlfriend in her home between October 4 and 5, 2011. Defendant asserts
multiple bases for appeal, including the court’s refusal to grant his request to replace his
retained counsel during the trial, instructional error, erroneous evidentiary rulings, an
improper division of a single course of conduct into two false imprisonment counts, and
several sentencing errors. We agree that his conviction on one of the two false
imprisonment counts must be reversed, and remand for resentencing. We otherwise
affirm.
                        FACTUAL AND PROCEDURAL HISTORY
A. Procedural Background
          Defendant was charged by information with the following counts: first degree
burglary with a person present (Pen. Code, § 459)1 (counts 2, 13, and 14); forcible rape
(§261, subd. (a)(2)) (count 3); attempted forcible oral copulation (§§ 664/288a, subd.
(c)(2)) (count 4); dissuading a witness by force or threat (§ 136.1, subd. (c)(1)) (count 5);
criminal threats (§ 422, subd. (a)) (count 6); assault by means likely to produce great
bodily injury (§ 245, subd. (a)(1)) (count 7); false imprisonment (§236) (counts 8 and 9);
vandalism over $400 (§ 594, subd. (a) (count 10); and solicitation of murder (§ 653f,
subd. (b)) (count 12). The information further alleged that counts three and four were
committed in the commission of a burglary within the meaning of section 667.61,
subdivisions (a), (b), (d), and (e).
          At the conclusion of trial, the jury found defendant guilty of rape, attempted
forcible oral copulation, both counts of false imprisonment, and vandalism (counts 3, 4,



          1
        All further statutory references herein are to the Penal Code unless otherwise
indicated.


                                                2
8, 9, and 10), as well as the lesser included offense of simple assault (§ 240) on count 7.
The jury found defendant not guilty of the remaining counts and allegations.
       The trial court sentenced defendant to a total term of 16 years and 10 months in
prison—the upper term of eight years on count three, a consecutive upper term of four
years on count four, a consecutive six month term on count seven, a consecutive term of
three years on count eight, and consecutive eight month terms (one-third the midterm)
each on counts nine and ten. Defendant timely appealed.
B. Prosecution Case
       1. Defendant’s Relationship With Catherine2
       As of October 2011, defendant and the victim, Catherine, had been involved in an
on-and-off dating relationship for about four years. Catherine testified that initially
defendant was kind to her and her two young children, but defendant drank a lot and had
a “very angry temper.” He told Catherine that he was a former Navy Seal and a former
police officer and that he worked for Blackwater. When he drank too much, defendant
would become “very volatile, very condescending” and would verbally abuse Catherine.
Defendant would become angry and say “I am the police. Nobody can do anything for
you.” As a result, Catherine testified that she was afraid of defendant and “didn’t know
where to turn.” Defendant told her that since he was a Navy Seal, “he could snap [her]
neck easily,” that she would not leave the relationship unless she had “a tag on [her] toe,”
that he could use anything as a weapon, and he could kill her with a pencil.3 In fact, the
parties stipulated that defendant had “never been employed as a sworn peace officer by
any law enforcement agency or any military organization.”




       2
       Catherine was referred to by her first name during the trial for privacy reasons.
We adopt the same convention; no disrespect is intended.
       3
        Catherine stated that she believed defendant’s representations about his past
because, among other things, he had government stickers on his car, kept separate cell
phones, claiming one was for his “business with Blackwater,” claimed to be on missions
constantly, and would dress in military fatigues.
                                              3
       At his urging and based on his claim that he was a loan broker, defendant also
became involved in Catherine’s finances. About a year into their relationship, she gave
him around $175,000 of her money to invest. She also gave him money to pay her
mortgage, because he claimed he was handling a loan modification on her home. She
never received her investment, or money, back from defendant. When Catherine started
to question defendant about the finances, he told her “you will never see your money
again.”
       Catherine testified that she repeatedly attempted to break off their relationship due
to defendant’s abusive behavior, but she then resumed the relationship because defendant
would start to act more kindly toward her and she hoped to be able to get her money
back. The weekend prior to the incident, they took a short vacation together, which
Catherine believed defendant had paid for, but it turned out he had used her credit card.
The weekend went well, defendant said that he had stopped drinking, and Catherine
wanted to resume dating him. They had consensual sex that weekend.
       2. Incident on October 4 and 5, 2011
       On October 4, 2011, Catherine and defendant had plans to go to dinner. Her
children were with their father. Defendant arrived at her house with his driver. When
she got into the car, defendant seemed lethargic and his demeanor seemed “off.” He said
he had had a tough day at work and then fell asleep for most of the ride.
       At the restaurant, defendant drank and became agitated. He loudly called
Catherine a “whore” and a “stupid cunt,” and accused her of seeing other men.
Defendant continued to drink during dinner, and continued his loud and offensive
behavior. Catherine tried to calm him and asked him to stop. Eventually, she ran out of
the restaurant and told defendant’s driver: “Please take me home. He’s drinking. I am
really scared. I want to get out of here.” The driver waited for defendant, who told him
not to leave. Catherine waited in the car while defendant went back inside to pay the bill.
When he returned, defendant began to “berate” and yell at Catherine. He told her they
were going to get married and that she could no longer communicate with her ex-


                                             4
husband. Catherine responded “I’m not marrying you. You scare me and I want you to
get away from me.”
       When they arrived at Catherine’s house, she ran out of the car and told defendant
not to follow her and to leave her alone. He followed her, saying that he would not leave
her alone. Catherine entered her back door and closed and locked it. Defendant began to
bang on the glass portion of the back door and she thought it might break. Defendant
said that he would calm down if she let him in, that he just wanted to talk. Catherine
agreed to let him in, hoping he would “be reasonable” and “go away.” Once inside,
defendant began yelling at Catherine again. Catherine ran to the front of the house,
opened the front door and called to the driver, “Please, please, come help me. Brian is
being really crazy and I’m afraid.” The driver went to the back door and spoke to
defendant. She could not hear their conversation but asked the driver to take defendant
with him. The driver then left the premises but he left defendant’s car in Catherine’s
driveway, blocking her car.
       Defendant became angry again, telling Catherine “you’re my woman. You’re
going to be with me.” Catherine said she would call the police if he did not leave, and
defendant said “You are not going to do any such thing.” He grabbed her cordless phone
and said she was not going to call anyone. At some point, he also took her cell phone.
Defendant told Catherine he could snap her neck, which made her “really scared.” She
testified that she thought he was going to kill her, “because he was just so violent and so
angry and he had threatened to do so, so many times before.” She ran into her bedroom
and locked two locks on the bedroom door, including a deadbolt. She took off her dress
and changed into a T-shirt, shorts, and a robe. Defendant began banging on the door,
saying “You stupid bitch, you better let me in.” Catherine told him to leave. He started
pushing on the door so hard that the frame started coming off and Catherine tried to brace
it with her weight to keep it from breaking. The door frame split off the hinge and
defendant entered the bedroom. Catherine grabbed a camera and took several
photographs of defendant as he entered the room, pushed the broken door aside, and
grabbed her. The photographs were shown to the jury at trial.

                                             5
       Catherine tried to fight him off by hitting, kicking, and doing “whatever I could to
get him off of me.” Defendant grabbed her and was shaking and yelling at her.
Sometimes he would throw her to the ground, and at one point her head slammed against
a clock on the floor. Catherine kept telling him to leave. Defendant also put his finger in
her mouth and shook her head like a rag doll, causing a cut to the interior of Catherine’s
mouth. He also put Catherine in a choke hold. When she was on the ground, Catherine
curled up into the fetal position to protect herself. She testified that it would then “quiet
down a bit and then he’d start yelling, getting angry, shaking and it would start up again.”
Defendant screamed “You’re my woman. You are not going anywhere. You are not
calling the cops. I am the cops. You can’t do anything without me.” Catherine testified
that the assault continued off and on throughout the night.
       At one point, defendant allowed Catherine to get an ice pack from the kitchen for
her neck. He followed her, and made her return to the bedroom. Catherine laid down on
the bed with the ice pack and defendant would “either lay down next to me or stand over
me and watch me.” Catherine stated she was “never out of his gaze” the entire night.
Catherine had to use the bathroom during the night, and defendant went with her.
Catherine stated she did not feel she could leave. At some point in the early morning,
Catherine grabbed her car keys with the intent of leaving. Defendant told her, “You are
not going anywhere.” Catherine saw that her car was blocked in by defendant’s car. At
this point, she “pretty much gave up.” She was exhausted, in extreme pain and “didn’t
have any more fight” in her, so she “curled up in a ball” on the bed. Defendant laid next
to her and watched her. Neither of them slept.
       In the morning, Catherine felt sick and needed to use the bathroom. While she
was sitting on the toilet, defendant came into the bathroom and “took his penis out and
tried to put it in [her] mouth.” He began rubbing his penis “all over [her] face” and said
that she “needed to suck his cock.” Catherine said “don’t” and turned her face away.
She felt “horrid” and “sick” and told him to get away from her and “get out of here” and
that she was sick. She told him “no” repeatedly. After several minutes, defendant
backed away to let Catherine wipe herself. She then went back to the bedroom.

                                              6
       Catherine had been trying to find a way that defendant would let her out of the
house, and she decided to use an appointment with her chiropractor as an excuse to leave.
Defendant let her use the phone, and she called her son, ostensibly to remind him about a
morning practice. Defendant stood next to her during the call. When defendant was not
looking, she also texted his driver for help, saying that she was hurt. She also called her
chiropractor and made an appointment. She was too afraid to call the police, because
defendant always had told her that he knew all of the police officers. In addition,
defendant told her that night that he would kill her if she called the police.
       After she used the phone, defendant turned to Catherine and said “you are not
getting out of here until you get fucked.” Catherine told him “I am in so much pain and I
am hurt, just leave me alone. Just go away.” Defendant started getting “angry and
excited” and told her “you are going to like this.” He removed her shorts, positioned her
on her back on the bed and raped her for five to ten minutes.
       Afterward, Catherine got up and tried to be as quiet as possible, hoping defendant
would let her leave. Defendant told her he would get the door fixed so “there wouldn’t
be any evidence of what had happened.” He agreed to let Catherine leave and moved his
car so that she could drive out of her driveway. Catherine thought about calling the
police as soon as she drove away, but she was scared and in “shock,” so she drove around
for a while.
       At 9:55 a.m., Catherine called her friend, Jennifer Bradley. She told Bradley what
had happened, and Bradley told her to call the police.4 Catherine asked Bradley to take
pictures of the broken door. Bradley agreed and said she would watch Catherine’s
children that day after school.
       Next, Catherine went to the chiropractor. She testified that she did not go to the
police at that point because she was still in shock and still afraid defendant would hurt her


       4
         Catherine’s testimony was inconsistent regarding whether she told Bradley she
had been raped, or just attacked, during their first phone conversation on October 5, 2011.
Bradley testified that Catherine did not tell her about the rape until they met in person
that afternoon.
                                              7
or her children. Her chiropractor, Dr. Mike De Napoli, observed bruises on Catherine’s
arms, hands, feet, neck, breasts, and the side of her face, as well as scratch marks. It also
appeared that she had not slept. He asked her what had happened. Catherine said “I
guess my ex-boyfriend doesn’t like being an ex-boyfriend anymore.” She also told Dr.
De Napoli that defendant had ripped her bedroom door off its hinges.
       After leaving the chiropractor, Catherine spoke with Bradley, who told her not to
go home because defendant was still in the house. During the course of the morning,
Catherine spoke to defendant during a series of phone calls in which he apologized. He
also promised to give her the money he owed her and stated he would do a wire transfer
into her account. During one phone conversation, defendant asked Catherine to meet him
and said he would “explain everything.” He said he would “take care of everything.”
Catherine agreed to meet in a public place. That afternoon, they met in the parking lot of
a grocery store. Catherine stayed in her car, and defendant asked her to let him in
because it was raining and he needed to show her some paperwork related to the money
transfer on his iPad. Catherine agreed to let him into the car and noted that defendant
was behaving calmly. Defendant then left. Catherine never received any of her money.
       Catherine also testified that she received a call from her credit card company
regarding an unpaid bill, which defendant had promised to pay. She received this call
before she went to the police on October 5.
       Once her children were out of school that afternoon, Catherine met Bradley at her
house, so Bradley could watch the children while Catherine went to the police.
       3. Investigation
       Catherine reported the assault and rape to the San Marino Police Department later
in the day on October 5, 2011. Her multiple bruises were photographed. She also agreed
to submit to a sexual assault exam. That examination was conducted at 11:00 p.m. on
October 5, 2011. Toyetta Beukes, a sexual assault response team director, testified
regarding extensive bruising she observed on Catherine’s left and right arms, her wrists,
her breast, her legs and feet, as well as a scratch along her left jawline and a bruise on her
chin. Catherine also complained of soreness in her neck, back, throat, knees, and vagina,

                                              8
nausea, headache, and lightheadedness. Her injuries were consistent with sexual assault
and strangulation. Semen from Catherine’s vaginal swab contained defendant’s DNA.
      Catherine subsequently learned that her home was in foreclosure, because
defendant had not made the promised mortgage payments for approximately 15 months.
She also discovered that defendant had been writing checks on her bank account without
her permission.
      4. Prior Incidents
      Catherine and her friend Jennifer Bradley testified regarding several prior
incidents with defendant. Once, while they were not dating, defendant showed up in
Yosemite while Catherine was vacationing there with her children. He told her he could
find her wherever she went and knew what she was doing. On another occasion,
Catherine and Bradley took their children to an indoor playground called Jump ‘n
Jammin. Defendant started calling her cell phone constantly, almost every 15 seconds.
After the group moved to a restaurant, defendant showed up, sat down at the table, and
said “You can’t hide from me. I know where you are.” Catherine and Bradley went to
the ladies’ room to get away from him, but he followed them inside. They left the
restaurant and took their children to get yogurt nearby. Defendant followed, argued with
Catherine outside the shop and knocked a container of food from her hand. Defendant
then blocked her car from leaving the parking lot, saying “you are not going anywhere
without me.”
      Approximately three or four months prior to the incident in October 2011, when
Catherine asked defendant about her money, he picked her up “and kind of threw me in
the air and my head hit the ceiling.” Around the same time, she got a second cell phone
she could use for her friends and family without defendant’s knowledge. She testified
that she did so because she was hoping that he would repay her money, and thus did not
want to cut off all communication with him, and also thought they could remain friends.
      In March of 2011, Catherine and one of her sons ran to Bradley’s house, located
about a quarter mile from Catherine’s home. Catherine said that defendant was “after
her” and was chasing her. Defendant showed up a few minutes later. Catherine was

                                            9
surprised and told Bradley, “He’s going to kill me. He’s in the CIA.” As Bradley
described it, defendant was in a “belligerent drunken state,” and wanted to talk to
Catherine. He grabbed her by the arm and pulled her. Defendant and Catherine argued
and Bradley could see Catherine was frightened.
C. Defense
       Defendant testified in his own defense. He admitted that he was not a sworn
police officer, agent with the DEA, FBI, or CIA, and had never worked for Blackwater.
He also admitted falsely telling people he had worked for those organizations. He said
that he told those lies to Catherine “just to make my resume sound better.” Defendant
also acknowledged that he had several prior felony convictions, including three for grand
theft. He also had “one or more” DUI arrests.
       Catherine and defendant began an exclusive dating relationship around 2007. He
described his relationship with Catherine and her children as “excellent.” He denied
telling Catherine that he could snap her neck or that he was above the law. Instead, he
claimed that he said, “I can snap necks. I can teach you to snap necks.” Similarly, he
claimed he stated he could teach Catherine to kill someone “with a paperclip, with a
pencil,” rather than threatening her as such. He denied ever picking Catherine up so that
she hit her head on the ceiling. He admitted that he had said “unkind words” to Catherine
and that he was a heavy drinker.
       Defendant also admitted that within four to five months of beginning their
relationship, he looked at Catherine as “somebody who had [$400,000] or $500,000 in
liquid assets that . . . I could use” to maintain their lifestyle, as well as to “maintain my
other household.” During his relationship with, and unbeknownst to, Catherine,
defendant lived with and supported another woman named Claudia. Catherine gave him
about $250,000 to invest, but he never gave her a return on that investment or any of her
investment back. Catherine was not aware that the money she gave him was not
invested. He lied and pocketed the money, then spent it on “Catherine, myself, and my
own household.”


                                              10
       Regarding the Jump ‘n Jammin incident, defendant stated that he went to the
restaurant that day because Catherine had said she would be there. He saw Catherine and
the children at a table and said, “Where the fuck have you been? I’ve been calling you.”
He acknowledged that he followed Catherine partway into the ladies’ room, and later that
he purposefully knocked a container of food from her hand outside the yogurt shop. He
also admitted showing up at Bradley’s house looking for Catherine on another occasion,
but denied that they argued and stated that they had agreed to go to a basketball game
together and then did so.
       In the summer of 2011, there was a “lull” in their relationship. They resumed
dating in September 2011. The weekend before the incident, they went on vacation to
Santa Barbara. He paid $1,400 a night for two nights in a suite at the Four Seasons
Hotel. They had consensual sex. He then spent that Sunday night at Catherine’s house
and had dinner there with her and her children on Monday, October 3.
       Defendant testified that he took one of Catherine’s sons to school on October 4,
2011, the day of the incident. That night, they went to dinner. They arrived at the
restaurant around 9:30 pm and had a “low key argument,” accusing each other of
infidelity. Defendant drank three shots of whisky and Catherine had three glasses of
wine. On the car ride home, they continued to argue. Catherine said that he was “getting
too big for [his] britches.” Defendant said he wanted to marry her. They began to
discuss his recent weight loss and he said that Catherine was trying to keep up with him
and was starving herself. Catherine asked “aren’t you going to spend the night?”
       When they arrived at Catherine’s house, they went into the kitchen. Catherine
went to check the mail and said “this fucking loan modification better be out there.” At
the time, defendant claimed he was in the process of working on the loan modification for
Catherine’s house and had been working on it for about eight months and the mortgage
payments were 14 months in arrears. Catherine knew about the process. When Catherine
returned to the kitchen, they began to argue about the loan modification.
       Catherine then went to the bedroom and closed the door. According to defendant,
he “bashed in the door with my shoulder like I have done before” and “helped myself in

                                            11
the room.” He claimed he did not know the top lock was locked. Catherine was still
dressed and was “pissed” about the broken door. She grabbed a camera and said
“Asshole. You think you’re hot. I’m going to show you you’re not hot.” She went into
the bathroom and he followed. She began ranting and raving and then started kicking
him. Harrington grabbed her wrists to hold her back. They struggled for about 30
seconds, she kicked him a few times and he turned her around. Defendant denied
throwing her to the ground. He walked her into the bedroom and sat her on the bed.
Catherine began to calm down. He told her she was acting crazy because she was not
eating and had been up for 24 hours. They then fed Catherine’s dogs and defendant said
he would take care of the door the next morning.
       Defendant got into bed. Catherine washed her face, undressed, and got under the
covers. They were not intimate. Defendant stayed dressed on top of the covers and was
planning to get up for an early morning appointment.
       Defendant denied taking Catherine’s cell phone. The next morning, they got up
for the day around 6:45 a.m. Catherine took care of the dogs and made some phone calls.
Around 7:45, they were sexually intimate. Defendant claimed they had sex twice and
oral sex. None of the acts were forced upon Catherine. They both left the house at the
same time.
       Catherine went to the chiropractor and defendant went home. Catherine left him a
voicemail around 10:00 a.m. They agreed to meet later in the supermarket parking lot.
Defendant claimed they planned to get coffee inside the store. After that meeting,
Catherine texted defendant about a credit card issue. He told Catherine he had paid the
bill, but he had not. Catherine was upset when she learned the truth about that bill that
day. Earlier in the day, Catherine learned about an article on the internet reporting other
instances of loan modification fraud by defendant. Defendant acknowledged at trial that
he falsely represented himself to a credit card company as Catherine’s husband, using her
last name. He admitted he was a “con artist.”
       Defendant testified that, while in jail, he asked a fellow inmate, Larry Montez, to
threaten Catherine and make her recant her story before the preliminary hearing. He

                                             12
described Montez as “right out of central casting” and planned to have Montez approach
Catherine at her home, acting as the “muscle,” to scare her into recanting. He wrote a
series of messages, or “kites,” to Montez describing this plan and providing Catherine’s
name and address and the names of her children and parents. He denied any intent to kill
Catherine.
                                       DISCUSSION
A. Defendant’s Request for New Counsel
       Defendant contends the trial court deprived him of the right to counsel of his
choice by refusing to consider his “motion” to discharge his retained counsel. The
Attorney General counters that defendant never made any such motion and, even if he
had, the trial judge was well within his discretion to deny it midway through the trial.
We agree with the Attorney General and therefore affirm.
       1. Factual Background
       During several pretrial conferences, defendant expressed concerns to the court
about the preparedness of his privately-retained counsel, Anthony Brooklier. For
example, at a hearing on March 27, 2013, defendant stated that he had not seen his
defense counsel since his last court appearance (one month prior), and his counsel had
not visited him in the county jail since September 2012.5 Defendant also told the court
that the defense was “not anywhere near prepared for trial,” as they had not spoken with
any experts and had a “laundry list of discovery” they had not yet received.
       On April 15, 2013, Brooklier indicated to the court that defendant “doesn’t think
we’re ready.” Defendant then told the court, “We have not done any investigation on this
case,” and that he had not seen Brooklier since September 2012. Brooklier responded
“that’s absolutely not true. I don’t know what he’s talking about,” and indicated that he
had notes of his meetings with defendant. The court noted defendant’s concern regarding
readiness for trial and set a further conference.

       5
        Brooklier was not present at this hearing or several others, as he was engaged in
another trial. Defendant was represented by Gevork Chilingaryan, standing in for
Brooklier.
                                              13
       At the next hearing on May 6, 2013, defendant (represented by Chilingaryan)
again stated that he had not had any discussions with Brooklier since the hearing in
February 2013, which lasted only four minutes. Defendant repeated that “no preparation”
had been done on his defense. He also informed the court that he had hired his own
investigator. At a follow-up hearing on May 10, 2013, the court noted defendant’s
concerns to Brooklier and inquired whether the defense was ready for trial. Defendant
stated that he had “about 18 items” he needed to speak to Brooklier about “before [he]
fe[lt] the matter should go anywhere,” including a possible Pitchess motion and issuing
subpoenas to witnesses. (Pitchess v. Superior Court (1974) 11 Cal.3d 531.) Defendant
also told the court that he had not seen Brooklier “for more than three hours in 19
months.” He then stated that if he could have five hours to meet with Brooklier, he
would be “ready to go to trial.”
       On December 11, 2013, defendant told the court he had met with Brooklier “and
he is 100 percent prepared and we’re ready to go”
       Trial commenced on January 17, 2014. On the second day of trial, after Catherine
finished testifying, defendant moved “to make a Marsden hearing.” (People v. Marsden
(1970) 2 Cal.3d 118 (Marsden).) The court cleared the courtroom, except for defendant
and both counsel, and then told defendant that a “Marsden motion is for appointed
counsel.” After confirming that Brooklier was privately retained, the court stated: [¶]
“Then I’m not going to interfere with the attorney-client relationship. That is a private
matter that you two have to work out. It will be up to you, what you want to do with your
attorney. You hired him. You can do what you want with him.” Defendant then asked
the court what his “remedies” were. The court responded: “I’m not here to advise you.
You have to talk to your attorney about it.” The court then reiterated that it was not
going to “get into the middle of it.” The court explained: [¶] “When you hire your own
attorney, what happens between you and your attorney is between you and your attorney.
It’s not something that the court can interfere with. I did not hire him. I cannot fire him.
And I can’t tell him what to do. I can’t get in between what happens between you two.
That is all privileged.”

                                             14
When defendant asked again what his “remedies in trial” were, the court told defendant
to “go in the back” and “have a conversation” with Brooklier, and defendant replied,
“That’s all I want.”
       After a twenty minute recess, trial resumed without further comment on this issue.
       2. Legal Principles
       A criminal defendant “has the due process right to appear and defend with retained
counsel of his or her choice. [Citations.]” (People v. Lara (2001) 86 Cal.App.4th 139,
152 (Lara).) This “right to counsel of choice reflects not only a defendant’s choice of a
particular attorney, but also his decision to discharge an attorney whom he hired but no
longer wishes to retain.” (People v. Ortiz (1990) 51 Cal.3d 975, 983 (Ortiz).)
       But a defendant’s right to discharge his retained counsel “is not absolute. The trial
court, in its discretion, may deny such a motion if discharge will result in ‘significant
prejudice’ to the defendant [citation], or if it is not timely, i.e., if it will result in
‘disruption of the orderly processes of justice’ [citations].” (Ortiz, supra, 51 Cal.3d at p.
983.) The trial court “must exercise its discretion reasonably: ‘a myopic insistence upon
expeditiousness in the face of a justifiable request for delay can render the right to defend
with counsel an empty formality.’ [Citation.]” (Id. at p. 984.)
       Thus, “a defendant may discharge his retained counsel of choice at any time with
or without cause,” subject to the above considerations. (Lara, supra, 86 Cal.App.4th at
p.152.) By contrast, a defendant who wishes to substitute his or her court-appointed
counsel must show good cause for that request, made in the form of a Marsden motion.
(Ortiz, supra, 51 Cal.3d at p. 980, fn. 1, citing Marsden, supra, 2 Cal.3d at p. 123.)6
       3. No Error in Trial Court’s Response to Defendant’s “Marsden” Request
       Defendant argues that his statement to the trial court that he wanted “to make a
Marsden hearing” was a clear indication that he wished to replace his current counsel,

       6
         Specifically, under Marsden, “a defendant must make a sufficient showing that
denial of substitution would substantially impair his constitutional right to the assistance
of counsel,” and a trial court deprives a defendant of his constitutional right to counsel
when it “denies his motion to substitute one appointed counsel for another without giving
him an opportunity to state the reasons for his request.” (Ibid.)
                                                 15
and that the trial court erred in denying that motion and refusing to even hold a hearing
on the issue pursuant to Ortiz. But the trial court here did not deny any request by
defendant to dismiss his counsel. Instead, the court first clarified for defendant that a
Marsden motion would not apply to his retained counsel, and then explained defendant’s
right to “do what you want” with Brooklier, including firing him. The court further
emphasized several times that it was defendant’s choice whether to fire Brooklier.
Defendant then accepted the court’s suggestion that he talk with his counsel, stating that
was “all [he] want[ed].” Consistent with that statement, defendant did not raise any
further issues with his counsel during the trial. Thus, while this exchange certainly gave
the court a clear indication that defendant had complaints regarding his counsel, the
circumstances never developed into a motion for substitution or led to denial of such a
motion. Accordingly, the trial court’s actions did not violate defendant’s right to counsel
of his choice.
       Analogizing to Lara, supra, defendant contends that his colloquy with the trial
court regarding Marsden was sufficient “to place the trial court on notice that Harrington
wished to have Brooklier relieved as counsel.” In Lara, the defendant’s retained counsel
informed the court on the first day of trial that the defendant wanted to raise some
conflicts the two had been having; counsel further stated that he had a “feeling” it was
probably a Marsden motion. (Lara, supra, 86 Cal.App.4th at p. 146.) The trial court
then conducted a hearing and ultimately denied defendant’s request, finding he had not
shown the good cause required under Marsden. (Lara, supra, 86 Cal.App.4th at pp. 146-
148.) After confirming that a request by defendant to discharge retained counsel should
not have been subject to a Marsden inquiry, the court considered the threshold question
of whether the defendant had actually requested to discharge his counsel. (Id. at pp. 155-
156.) Calling it a “close question,” the court concluded that he had, relying on the trial
court’s “factual interpretation of the situation” as involving a request to discharge defense
counsel, as evidenced by the fact that the trial court actually conducted a Marsden
hearing. (Id. at pp. 157-158.) In People v. Lucky (1988) 45 Cal.3d 259 (Lucky), by
contrast, after defendant’s attorney informed the court that the defendant was attempting

                                             16
to hire a new attorney, due to a difference in opinion, the court granted a continuance to
allow defendant to explore that possibility. (Id. at p. 280-281.) The defendant did not
hire a new attorney, never raised any further objections, and confirmed to the court that
he did not have any complaints about starting trial in a week. (Ibid.) The Supreme Court
rejected the defendant’s claim that the trial court improperly refused to hold a Marsden
hearing, and held that the defendant never requested to discharge his court-appointed
counsel. (Id. at pp. 281-283.)
       We conclude the exchange between defendant and the trial court here falls closer
to the circumstances in Lucky than those in Lara. As in Lucky, here, the trial court gave
defendant time to discuss his complaints with his counsel, after which time the issue
appeared to be resolved.7 Without further indication from defendant, the trial court was
not obligated to proceed on a motion to substitute counsel that had not been made. And
unlike the court in Lara, the trial court here did not conduct a hearing (under either
Marsden or Ortiz) or otherwise indicate that he was considering (or rejecting) a claim by
defendant to dismiss his counsel. Accordingly, we find no error in the trial court’s
conduct here.
B. Instructional Error
       Defendant contends the trial court erred in failing to instruct the jury regarding a
good faith belief in consent defense to the charged sex offenses and by including an
instruction allowing the jury to make adverse inferences from his failure to explain or
deny certain matters. We disagree.
       1. No Error in Omission of “Mayberry Defense” Instruction
       Defendant argues that the jury should have been instructed that if he harbored a
reasonable and good faith belief that Catherine consented to their sexual encounter (the
so-called “Mayberry defense”),8 that belief is a defense to the charged sex offenses. He
further contends that because the trial court has a sua sponte duty to instruct on such a

       7
         We disagree with defendant’s claim that he did not raise the issue again because
doing so would have been futile. The record does not support that contention.
       8
         People v. Mayberry (1975) 15 Cal.3d 143 (Mayberry).
                                             17
defense, where applicable, the failure to do so here was prejudicial error. We conclude
that because there was no evidence of equivocal conduct by Catherine that would raise
the viability of this defense, the trial court’s failure to instruct on it was not in error.
       The trial judge instructed the jury with the standard instructions on forcible rape
(CALCRIM No. 1000) and attempted forcible oral copulation (CALCRIM No. 1015).
Defendant argues that the court should have included the following optional language
from CALCRIM No. 1000:
               “The defendant is not guilty of [forcible rape or attempted forcible
       oral copulation] if he actually and reasonably believed that the
       woman consented to the act. The People have the burden of proving
       beyond a reasonable doubt that the defendant did not actually and
       reasonably believe that the [woman] [other person] consented. If the People
       have not met this burden, you must find the defendant not guilty.”
       Defendant did not request this instruction (or otherwise object) at trial.
       The California Supreme Court recognized the defense of mistaken belief as to
consent in Mayberry, holding that a defendant’s reasonable and good faith mistake of fact
regarding a person’s consent to sexual intercourse is a defense to rape. “The Mayberry
defense has two components, one subjective, and one objective. The subjective
component asks whether the defendant honestly and in good faith, albeit mistakenly,
believed that the victim consented to sexual intercourse. In order to satisfy this
component, a defendant must adduce evidence of the victim’s equivocal conduct on the
basis of which he erroneously believed there was consent. In addition, the defendant
must satisfy the objective component, which asks whether the defendant’s mistake
regarding consent was reasonable under the circumstances. Thus, regardless of how
strongly a defendant may subjectively believe a person has consented to sexual
intercourse, that belief must be formed under circumstances society will tolerate as
reasonable in order for the defendant to have adduced substantial evidence giving rise to
a Mayberry instruction.” (People v. Williams (1992) 4 Cal.4th 354, 360-361(Williams)
(footnotes omitted).)

                                                18
       Importantly, the defense of actual consent and the Mayberry defense (good faith
belief in consent) are “two distinct defenses. Where the defendant claims that the victim
consented, the jury must weigh the evidence and decide which of the two witnesses is
telling the truth. The Mayberry defense, on the other hand, permits the jury to conclude
that both the victim and the accused are telling the truth.” (People v. Romero (1985) 171
Cal.App.3d 1149, 1155.) In other words, under the Mayberry defense, the jury could
believe the victim’s version of events but also find that defendant had a reasonable and
good faith belief, based on evidence of equivocal conduct by the victim, that the victim
had consented.
       The trial court has a sua sponte duty to instruct on a defense, “even in the absence
of a request, ‘if it appears 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.’ [Citation.]” (People v. Boyer (2006) 38 Cal.4th 412,
469.) A Mayberry 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.” (Williams, supra, 4 Cal.4th at p. 362.)
       In Williams, supra, 4 Cal.4th at p. 362, the court found that there was no
substantial evidence supporting a Mayberry instruction. The defendant’s testimony, if
believed, established actual consent by the victim. On the other hand, the victim
“testified that the sexual encounter occurred only after Williams blocked her attempt to
leave, punched her in the eye, pushed her onto the bed, and ordered her to take her
clothes off, warning her that he did not like to hurt people. This testimony, if believed,
would preclude any reasonable belief of consent. These wholly divergent accounts create
no middle ground from which Williams could argue he reasonably misinterpreted
Deborah’s conduct.” (Ibid.; see also People v. Burnett (1992) 9 Cal.App.4th 685, 690 [if
“defense evidence is unequivocal consent and the prosecution’s evidence is of non-
consensual forcible sex, the [Mayberry] instruction should not be given”]; People v.
Rhoades (1987) 193 Cal.App.3d 1362, 1369 [neither account of sexual encounter was


                                              19
evidence that defendant mistakenly believed victim consented even though she did not-
“sexual act was [either] entirely consensual or the obvious product of force”].)
       Similarly, here, there was no substantial evidence of equivocal conduct warranting
an instruction as to reasonable and good faith, but mistaken, belief of consent to
intercourse or oral copulation. Catherine testified that she told defendant “no” and to
leave her alone repeatedly throughout the encounter, that defendant assaulted her on and
off for hours causing extensive bruising, and that she made several attempts to flee and/or
lock him out. Defendant testified, on the other hand, that they had consensual sex and
denied the assault. Based on the evidence, it would not be possible for the jury to believe
Catherine and also believe that defendant harbored a reasonable and good faith belief that
she was consenting to his sexual advances. Accordingly, we conclude the trial court did
not have a sua sponte duty to give a Mayberry instruction.
       2. Instruction Regarding Adverse Inferences Was Proper
       Defendant also argues that the court improperly instructed the jury using
CALCRIM No. 361 as follows: “If the defendant failed in his testimony to explain or
deny any evidence against him, and if he could reasonably be expected to have done so
based on what he knew, you may consider his failure to explain or deny in evaluating that
evidence. Any such failure is not enough by itself to prove guilt. The People must still
prove the defendant guilty beyond a reasonable doubt. If the defendant failed to explain
or deny, it is up to you to decide the meaning and importance of that failure.”
       As an initial matter, this claim is forfeited, as defendant failed to object to the
proposed instruction at trial. (See People v. Jennings (2010) 50 Cal.4th 616, 671.)
Moreover, even if we were to reach this claim, we would conclude that any error was
harmless.
       Defendant claims the instruction should not have been given, as he “admitted,
denied or explained virtually all of the prosecution’s evidence.” “It is error to give this
instruction in the absence of evidence in the People’s case which is within the
defendant’s particular knowledge to explain and to which no explanation is offered.”
(People v. Marsh (1985) 175 Cal.App.3d 987, 994.) “If he fully accounts for his

                                              20
whereabouts and denies the crime, the mere fact that defendant’s story is contradicted by
other prosecution evidence does not pave the way for giving the instruction, because
contradiction is not by itself a failure to explain or deny. [Citations.] However, if the
defendant tenders an explanation which, while superficially accounting for his activities,
nevertheless seems bizarre or implausible, the inquiry whether he reasonably should have
known about circumstances claimed to be outside his knowledge is a credibility question
for resolution by the jury. [Citations.]” (People v. Mask (1986) 188 Cal.App.3d 450,
455]; see also People v. Belmontes (1988) 45 Cal.3d 744, 784, overruled on other
grounds by People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; but see People v. Kondor
(1988) 200 Cal.App.3d 52, 57 [instruction “is unwarranted when a defendant explains or
denies matters within his or her knowledge, no matter how improbable that explanation
may appear”].)
       The Attorney General argues that defendant’s explanations regarding the extent of
bruising Catherine suffered and the extensive damage to the bedroom door from his
purported attempt to nudge it open with his shoulder are so implausible they should be
considered as no explanation at all. Defendant counters that he was extensively cross-
examined on these topics and either gave explanations or stated that he did not know,
which is all that is required to negate this defense.9 Even assuming that the instruction
was given in error here, we conclude that any such error would be harmless.
       Any error in giving CALCRIM No. 361 is only prejudicial if it is reasonably
probable a more favorable verdict would have resulted if the instruction had not been
given. (People v. Saddler (1979) 24 Cal.3d 671, 683-684; People v. Watson (1956) 46
Cal.2d 818, 836.) Here, the evidence implicating defendant was overwhelming.
Catherine testified at length and in great detail regarding the incident and the prior history

       9
         We note that this instruction has been met with some recent “hostility,” leading
one court to caution that “it will always be unwise of a trial court to include it among its
general instructions without prior inquiry of the parties concerning it. In fact, today it
should not even be requested by either side unless there is some specific and significant
defense omission that the prosecution wishes to stress or the defense wishes to mitigate.”
(People v. Haynes (1983) 148 Cal.App.3d 1117, 1119-1120.)
                                             21
of domestic violence by defendant, and her allegations of assault, imprisonment, and rape
were largely corroborated by physical evidence and supporting witnesses. Defendant’s
description of events was often inconsistent with the other evidence and he admitted
lying to Catherine and attempting to hire someone in prison to frighten her to change her
story. Moreover, the jury was instructed as to the limitations of the inference—that any
such inference would be insufficient to establish guilt and that inference was only to be
used if applicable. We presume the jury understood and followed these instructions.
(People v. Danielson (1992) 3 Cal.4th 691, 722, overruled on another ground in Price v.
Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.) No reversal is warranted.
C. Alleged Errors in Admission and Exclusion of Evidence
       Defendant contends the trial court committed the following evidentiary errors: (1)
excluding texts from Bradley, Catherine’s friend, to defendant regarding Catherine’s
credit card bill; (2) restricting defense counsel’s cross-examination of Bradley on the
same topic; and (3) admitting evidence regarding defendant’s fraudulent conduct against
third parties. He further contends these errors violated his due process rights and
deprived him of a fair trial. We find no error.
       1. Legal Principles
       We review a trial court’s rulings on the admissibility of evidence under the abuse
of discretion standard. (People v. Rowland (1992) 4 Cal.4th 238, 264.) Under this
standard, a trial court’s ruling will not be disturbed, and reversal of the judgment is not
required, unless the trial court exercised its discretion in an arbitrary, capricious, or
patently absurd manner that resulted in a manifest miscarriage of justice. (People v.
Rodriguez (1999) 20 Cal.4th 1, 9–10.) “[T]he admission of evidence, even if erroneous
under state law, results in a due process violation only if it makes the trial fundamentally
unfair. [Citations.]” (People v. Partida (2005) 37 Cal.4th 428, 439.)




                                              22
       2. No Error in Exclusion of Evidence Regarding Bradley’s Texts
              a. Factual Background
       During defendant’s cross-examination of Bradley, defense counsel began to
question her regarding text messages she had sent to defendant on October 7, 2011,
several days after the incident. In the texts (which were not ultimately introduced at
trial), Bradley stated she was contacting defendant about Catherine’s tax returns that were
never filed or provided to the bank and “she needs them ASAP to stop the foreclosure of
her home. She also knows you put a stop on the North Star transfer and closed the
account. If you care anything about those boys, you will not render them homeless.” In
its initial questioning on this issue, defense counsel elicited from Bradley that she sent
defendant a text regarding Catherine’s tax returns because she was “trying to help
Catherine sort out the myriad of fallout from the defendant,” and Catherine had asked her
to send the text. The court then took its morning recess, and outside the presence of the
jury, asked defense counsel about the relevance of post-event communications from
Bradley. Defense counsel explained that the texts were relevant to show Catherine was
“only concerned about the monetary situation” and that the stopped payment on her credit
was the “final straw” that led Catherine to fabricate the sexual assault report.
       The court held that the texts were not relevant, as they were sent after Catherine
reported the rape to the police, and noted that Catherine had already testified she was
concerned about the money. The court also indicated there was no evidence that
Catherine or Bradley knew that defendant had stopped a credit card payment (the
purported “final straw”) at the time she reported the rape. The court asked defense
counsel for an offer of proof regarding any such evidence, which counsel could not give.
The court then granted defense counsel’s request for on Evidence Code section 402
hearing on the issue.
       During the 402 hearing, Bradley testified that she believed she got the information
from Catherine regarding the credit card on October 7, 2011, the same day she sent the
texts to defendant. She stated that she could not recall learning anything about that issue


                                             23
any earlier, but did not believe they discussed anything about the credit card on October
5, the day of the incident.
       Defense counsel then pointed out to the court that the phone records showed
Catherine receiving a call from the credit card collection agency at 11:50 a.m. on October
5, 2011, and that Catherine called Bradley five minutes later. The court noted that
defense counsel could argue their theory that Catherine was angry about the credit card
issue, including the inference arising from the phone records that she told Bradley about
the issue on October 5, but that it was “excluding any further questions regarding text
messages sent to the defendant on this subject after the reporting to the police.” Under
Evidence Code section 352, the court found the probative value of the texts was “next to
zero and that the time consumption and the confusion that it may cause the jury
outweighs any possible probative value.” In response to defense counsel’s suggestion
that it would take “less than a minute” to cross-examine Bradley on this point, the court
noted that his concern was not the time it would take defense counsel, but rather the
confusion to the jury and then the additional time it would take for the prosecution to
respond.
              b. Trial Court Did Not Abuse Its Discretion
       Defendant argues, as he did below, that the text messages and associated cross-
examination of Bradley were key pieces of evidence highly probative of Catherine’s
credibility and her motivation for filing charges against defendant. On the other hand, the
undue consumption of time was, in defendant’s view, not a serious concern, given the
narrow parameters of the issue and defense counsel’s time estimate.
       We conclude that the trial court, after careful and extensive review of the issue,
was well within its discretion to exclude the evidence as minimally probative under
Evidence Code section 352. As articulated by defendant, the evidence was relevant on
two points: when Catherine learned about the credit card issue and her anger about it.
With respect to the first point, the text messages themselves did nothing to shed light on
whether either Catherine or Bradley learned about the stopped payment prior to
Catherine’s report to the police on October 5. Similarly, Bradley’s testimony at trial and

                                             24
during the 402 hearing confirmed that she either did not know when she found out about
the credit card, or believed that she did so on October 7. Thus, we agree with the trial
court’s assessment that the probative value of the texts on this point was “next to zero.”
In fact, the admitted cell phone records likely provided a stronger inference that
Catherine knew of the credit card issue prior to her police report than any testimony by
Bradley denying the same.
       On the issue of Catherine’s anger, the text messages by Bradley added little. As
the trial court noted, Catherine had admitted during her testimony that she was upset
about the stopped payment on the credit card, and defendant testified about a text
Catherine sent him herself on October 5 about that issue. Thus, additional evidence
regarding texts sent through Bradley several days later had minimal probative value
beyond the evidence already introduced.
       Further, while defendant focuses on the short amount of time he claims it would
have taken for his counsel to cross-examine Bradley on the issue, he discounts the trial
court’s consideration of the total time it was likely to take for both sides to explore an
issue that it determined had minimal probative value. The trial court “has broad
discretion under Evidence Code section 352 to ‘exclude evidence if its probative value is
substantially outweighed by the probability that its admission will (a) necessitate undue
consumption of time or (b) create substantial danger of undue prejudice, of confusing the
issues, or of misleading the jury.’ [Citation.]” (People v. Mills (2010) 48 Cal.4th 158,
195.) The trial court properly exercised its discretion in performing that balancing here.
We also note that defense counsel was able to elicit some initial testimony regarding the
nature of the text messages and the fact that Catherine directed Bradley to send them,
which the court refused to strike over the prosecution’s objection. Thus, the trial court
did not abuse its discretion in finding that the minimal value of allowing defense counsel
to continue his inquiry on this subject was outweighed by concerns such as confusion of
the jury and the undue consumption of time.
       For all of these reasons, we also find that any error in excluding this evidence
would have been harmless, given the other evidence defendant could have relied upon to

                                             25
argue the inference that Catherine was motivated by anger over the credit card problems
in accusing defendant of sexual assault, the limited value of the text messages in
establishing that point, and the strength of the evidence supporting Catherine’s version of
events. Thus, it was not reasonably probable that the jury would have reached a more
favorable result with the admission of the text messages and the related cross-
examination of Bradley. (People v. Watson, supra, 46 Cal.2d at p. 836.)
        3. No Error in Admission of Financial Misconduct
        Defendant contends that the trial court erroneously allowed the prosecutor to
cross-examine him regarding his theft of money from unrelated parties. He claims this
evidence was irrelevant and highly prejudicial. We find no error, and further, that any
possible error was harmless.
        During her cross-examination of defendant, the prosecutor asked defendant
whether he “stole money from other people.” Defense counsel objected, but the trial
court overruled the objection. Defendant then responded that he had. The prosecutor
followed up with several more questions, over defense counsel’s continued objections,
confirming that multiple other people were texting defendant at the time of his arrest
demanding the return of money he had taken from them. Defendant admitted that was
true.
        Defendant now argues that the trial court erred in overruling his objections to this
evidence, as his financial misconduct with other parties was unrelated to the charges in
this case and was highly damaging to his credibility and therefore highly prejudicial.
Crucially, defendant recognizes that the evidence was properly admissible as probative of
his credibility under Evidence Code section 1101, subdivision (c), which allows
admission of evidence “offered to support or attack the credibility of a witness.” Despite
its admissibility, he contends that the trial court should have found that its minimal
relevance—in light of other evidence of his prior convictions— was outweighed by its
highly inflammatory nature, and therefore should have excluded it under Evidence Code
section 352. We disagree. The evidence was clearly relevant to defendant’s credibility,
an issue defendant himself calls one of the crucial elements of the case. The trial court

                                             26
was within its discretion to determine that the value of this evidence outweighed any
prejudice to defendant.10 We will not disturb the trial court’s determination in weighing
the admissibility of evidence absent a clear abuse of the court’s broad discretion. We find
none here.
       Even if we found the evidence was erroneously admitted, any such error was
harmless under Watson, supra, 46 Cal.2d at p. 836. Apart from the evidence challenged
here, there was significant evidence of defendant’s financial misdeeds. Defendant
himself had already testified regarding an article on the internet accusing him of loan
modification fraud, and admitted elsewhere in his testimony that he was a con artist, had
several convictions for grand theft, essentially viewed Catherine as a bank account with
liquid assets that he could spend on himself and another woman, falsely represented
himself as Catherine’s husband to the credit card company, took hundreds of thousands
of dollars from Catherine, lied to her, and never repaid her, among other acts. We fail to
see how the handful of questions challenged here added damage to defendant’s credibility
in any meaningful way. As such, we cannot find that it was reasonably probable that a
result more favorable to defendant would have resulted had the additional evidence of
fraud on other parties not been admitted. (People v. Welch (1999) 20 Cal.4th 701, 750.)
D. Challenge to Evidence Code section 1109
       While defendant does not challenge the admissibility of “evidence of the
defendant’s commission of other domestic violence” under Evidence Code section 1109,
he does challenge the statute itself, claiming it violates his due process and equal
protection rights. Defendant recognizes that the California Supreme Court rejected such
a challenge to the similar provision in Evidence Code section 1108 (People v. Falsetta
(1999) 21 Cal.4th 903, 912-913 (Falsetta)) and that subsequent court decisions have
consistently applied Falsetta to “uphold section 1109 against similar due process and
equal protection challenges.” (See, e.g., People v. Brown (2011) 192 Cal.App.4th 1222,
1236, fn. 16; People v. Hoover (2000) 77 Cal.App.4th 1020, 1026-1029; People v.

       10
         We note that the trial court did sustain defense counsel’s objections and cut off
the prosecutor’s questioning when it became duplicative.
                                             27
Jennings (2000) 81 Cal.App.4th 1301, 1314; People v. Johnson (2000) 77 Cal.App.4th
410, 419–420.) Instead, he urges that we “reconsider” Falsetta in light of Garceau v.
Woodford (9th Cir. 2001) 275 F.3d 769 (Garceau), a case involving a jury instruction
regarding evidence of other crimes in a homicide trial. We are not bound by decisions of
lower federal courts (People v. Crittenden (1994) 9 Cal.4th 83, 120, fn. 3), and to the
extent Garceau conflicts with Falsetta, we are bound by the latter (see, e.g., Auto Equity
Sales, Inc. v. Superior Court of Santa Clara County (1962) 57 Cal.2d 450, 455).
Moreover, we are not persuaded by defendant to depart from our prior jurisprudence on
this issue.11
E. Challenge to Second Count of False Imprisonment
       Defendant next contends that the alleged false imprisonment involved a
continuous course of conduct that should have been subject to one, rather than two,
charged violations. We agree and reverse the second count (count nine) on that basis.
       Defendant was convicted of two counts of false imprisonment, one for alleged
conduct on October 4, 2011 (count eight) and one for alleged conduct on October 5, 2011
(count nine). But his restriction of Catherine’s movement was a single, continuing course
of conduct beginning on the evening of October 4 and ending when he allowed Catherine
to leave her home the following morning. As a result, there is but one act of false
imprisonment and accordingly, there can be but one conviction.
       This principle was aptly demonstrated in People v. Thomas (1994) 26 Cal.App.4th
1328. In Thomas, the victim was kidnapped in a mall parking structure. The defendant
forced her into her car and demanded money and her ATM card. He then began to drive
to the victim’s apartment so that she could retrieve her ATM card, but stopped, parked,
and repeatedly raped the victim. The defendant then drove to the apartment, where the
victim called the police. (Id. at pp. 1331–1332.) The defendant was convicted of, among
other crimes, two counts of kidnapping with intent to commit robbery. The prosecution’s
theory was that the first kidnapping ended when the defendant stopped the car and raped

       11
        Indeed, defendant acknowledges in his reply that he has asserted this argument
on appeal “principally to preserve the issue for possible federal review.”
                                            28
the victim, and a second kidnapping occurred when the defendant drove the victim from
the site of the sexual offenses to her apartment, “intending to rob her of her ATM card.”
(Id. at p. 1334.) The court of appeal reversed, holding that there was “a single abduction,
followed by a continuous period of detention.” (Id. at p. 1335.) “That [the defendant]
may have changed his approach or focus as to the robbery, uttered a variety of threats to
the victim, and engaged in other crimes after the initial abduction did not transform the
offense into two kidnappings.” (Ibid.; see also People v. Masten (1982) 137 Cal.App.3d
579, 588, disapproved on other grounds by People v. Jones (1988) 46 Cal.3d 585, 600,
fn. 8 [“as long as the detention continues, the crime [of kidnapping] continues”].)
       Similar to kidnapping, the crime of false imprisonment has been recognized as
having a “continuous character.” (People v. Ratcliffe (1981) 124 Cal.App.3d 808, 820;
see also Parnell v. Superior Court (1981) 119 Cal.App.3d 392, 410.) The evidence here
demonstrates a single, continuous overnight detention and therefore cannot support
charges for two separate acts of false imprisonment. We are unpersuaded by the
Attorney General’s argument that the two counts represent false imprisonment based on
two different motives or objectives—the first count reflecting defendant’s restriction of
Catherine’s movement on the evening of October 4 “so that she would not be able to
leave his presence,” and the second count reflecting his restriction the next morning, for
the purpose of sexual assault. This argument is unsupported by any authority suggesting
that such an undivided course of conduct may properly result in two convictions for the
same offense due to an alleged change in motive. Accordingly, defendant’s conviction of
a second act of false imprisonment (count nine) must be reversed.
F. Sentencing Issues
       Finally, defendant challenges two aspects of his sentence. First, he argues that the
false imprisonment and rape counts alleged conduct with a single objective, which should
have been subject to only one sentence under section 654. We disagree and affirm.
Second, defendant raises an error in his sentence on the conviction for attempted oral
copulation, a point the Attorney General concedes. We therefore remand for
resentencing on this issue.

                                            29
       1. Sentencing Under Section 654
       Defendant contends that his act of false imprisonment was merely a means to
facilitate a sexual assault, and therefore argues that the false imprisonment sentences
must be stayed pursuant to section 654. The Attorney General did not address this issue
in its brief on appeal.12 However, we conclude that substantial evidence supports the trial
court’s implied determination that these offenses were based on multiple criminal
objectives, and therefore that section 654 does not apply.
       Section 654, subdivision (a), provides: “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.” The test of “[w]hether a course of
criminal conduct is divisible and therefore gives rise to more than one act within the
meaning of section 654 depends on the intent and objective of the actor. If all of the
offenses were incident to one objective, the defendant may be punished for any one of
such offenses but not for more than one.” (Neal v. State of California (1960) 55 Cal.2d
11, 19, overruled in part on another ground as stated in People v. Correa (2012) 54
Cal.4th 331.) Thus, if all of the offenses were merely incidental to, or were the means of
accomplishing or facilitating one objective, defendant may be found to have harbored a
single intent and therefore may be punished only once. (Ibid.) If, on the other hand,
defendant harbored “multiple criminal objectives,” which were independent of and not
merely incidental to each other, he may be punished for each statutory violation
committed in pursuit of each objective, “even though the violations shared common acts
or were parts of an otherwise indivisible course of conduct.” (People v. Beamon (1973) 8
Cal.3d 625, 639.)
       The determination of whether defendant acted pursuant to a single intent and
objective is a factual one, and we uphold the trial court’s determination where supported

       12
         Instead, it appears that the Attorney General mistakenly believed defendant was
arguing that he should be subject to only one sentence on his two false imprisonment
counts.
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by substantial evidence. (People v. Saffle (1992) 4 Cal.App.4th 434, 438.) If there is no
express finding on the issue in the record, a finding that the crimes were divisible is
inherent in the judgment and must be upheld if supported by the evidence. (People v.
Jones (2002) 103 Cal.App.4th 1139, 1147.)
       Defendant contends that he cannot be sentenced for both false imprisonment and
rape and/or attempted oral copulation, because the sole purpose for the false
imprisonment was to facilitate the sexual assault. In support of that contention, he cites
cases where courts have stayed false imprisonment sentences based on a finding that the
defendant harbored a singular intent and objective of perpetrating sexual assault, and the
imprisonment was simply a means to accomplish that objective. (See, e.g., People v.
Latimer (1993) 5 Cal.4th 1203 [evidence did not suggest any intent or objective behind
the kidnapping other than to facilitate the rapes]; People v. Wall (1979) 95 Cal.App.3d
978, 990 [single intent where defendant drove victim a few blocks, parked, and then
raped her].)
       Here, by contrast, there was evidence that defendant may have had more than one
intent when he imprisoned Catherine in her home. From defendant’s conduct and
statements, it could reasonably be inferred that his initial objective was to physically
assault Catherine. Notably, he neither attempted nor even referenced any intent to
commit a sexual assault until the morning of October 5, many hours after his initial act of
false imprisonment. Thus, the circumstances here are distinguishable from those in the
cases defendant cites, and are in line with those allowing consecutive sentences. (See,
e.g., Ratcliffe, supra, 124 Cal.App.3d at p. 818 [affirming imposition of consecutive
terms for kidnapping, rape and oral copulation based on multiple objectives].)
       Thus, the record supports the trial court’s implied findings. There was sufficient
evidence that defendant harbored different objectives in committing first the false
imprisonment and then the sexual assault. We therefore affirm.
       2. Conceded Error on Count Four
       In supplemental briefing, defendant contends that the trial court erroneously
sentenced him to a full, consecutive upper term on his conviction for attempted forcible

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oral copulation pursuant to section 667.6, subdivisions (c) and (d). But as defendant
points out, and the Attorney General concedes, the sentencing provisions in section 667.6
do not apply to attempted sex offenses. (See § 667.6, subd. (e) [listing applicable
offenses]; People v. Rodriguez (2012) 207 Cal.App.4th 204, 217.) Accordingly, this
sentence was in error and the matter is remanded for resentencing.
                                     DISPOSITION
       The judgment is reversed with respect to count nine for false imprisonment and
insofar as it imposes a sentence on count four pursuant to section 667.6. The case is
remanded to the trial court for resentencing and modification of the abstract of judgment
consistent with this opinion. The judgment is otherwise affirmed. The clerk of the
superior court is instructed to deliver a copy of the amended abstract of judgment to the
Department of Corrections and Rehabilitation.


             NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                       COLLINS, J.

We concur:


EPSTEIN, P. J.


WILLHITE, J.




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