Filed 7/22/14 P. v. Mays CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D065616

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. INF066689)

MARK ANTHONY MAYS,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of Riverside, Richard A. Erwood,

Judge. Reversed in part, affirmed in part, and remanded for resentencing.



         Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant

and Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Lynne G. McGinnis, Eric A.

Swenson and Jennifer Truong, Deputy Attorneys General, for Plaintiff and Respondent.
        A jury found Mays guilty of kidnapping (Pen. Code, § 207);1 forcible rape (§ 261,

subd. (a)(2)); forcible penetration with a foreign object (§ 289, subd. (a)(1)); false

imprisonment (§ 236); making criminal threats (§ 422); and forcible oral copulation

(§ 288a, subd. (c)(2)). The jury also made true findings on kidnapping and tying and

binding for the sex crime counts (§ 667.61, subd. (e)(1) & former (e)(6), now (e)(5).)

Mays admitted prior convictions, including a prior serious or violent felony. (§§ 667.5,

subd. (b), 667, subds. (c), (e).) The trial court sentenced Mays to a determinate term of

55 years four months and an indeterminate term of 50 years to life.

        Mays contends (1) the trial court should have granted a mistrial based on

prosecutorial misconduct because a witness referred to Mays having been in prison;

(2) the trial court prejudicially erred in admitting evidence of Mays's prior domestic

violence against his victim; (3) the trial court prejudicially erred in not sua sponte

instructing the jury pursuant to CALCRIM No. 358 to view Mays's out-of-court oral

statements tending to show his guilt with caution; (4) the sentence for the kidnapping

count should have been stayed; (5) the trial court erred in deferring to the Department of

Corrections and Rehabilitation the issue of Mays's presentence custody credits; and

(6) the imposition of a victim restitution fine violated Mays's right to due process and a

jury trial.

        We conclude that two of Mays's sentencing arguments have merit: (1) as the

Attorney General concedes, the sentence for the kidnapping count should have been


1       Unless otherwise indicated all statutory references are to the Penal Code.

                                              2
stayed; and (2) the trial court erred in not calculating Mays's presentence credits. The

remainder of Mays's arguments lack merit. Accordingly, we reverse and remand for

resentencing and in all other respects affirm the judgment.

                                             I

                  FACTUAL AND PROCEDURAL BACKGROUND

       Mays and the victim of his crimes, Natalie,2 were both recovering drug addicts

who met at an Alcoholics Anonymous meeting in 2008. Mays and Natalie developed a

romantic relationship, started living together in Desert Hot Springs and relapsed into

methamphetamine and alcohol use.

       After having lived with Mays for several months, Natalie broke up with Mays in

approximately June 2009 and moved away to live on her parents' boat in Orange County.

Natalie testified that although there were other reasons she broke up with Mays, during

their relationship she had become scared of Mays because when he got mad he would put

his hands around her throat and choke her until she passed out. Mays tried to stay in

contact with Natalie through texts and phone calls after they broke up, trying to reconcile

with her, but according to Natalie, she would usually ignore him.

       Natalie was visiting her parents' house in Palm Desert for a few days in late July

and early August 2009. According to Natalie, her parents discovered on Sunday,

August 2, that she had relapsed into drug use because she had picked at her face, creating

noticeable blemishes, after she used methamphetamine the previous two days. According


2      Only Natalie's first name is used to protect her privacy.

                                             3
to Natalie, after her parents discovered her recent drug use, they told her she had to move

off of their boat and find her own housing.

       As Natalie testified, Mays left a telephone message for her on Sunday, August 2,

stating that he had some money. Because Natalie was in need of money for housing and

felt that Mays owed her money from during their relationship, she called him and asked

him to bring her some money.

       At around 10:00 p.m., on August 2, Mays arrived at the security gate in the

community where Natalie's parents lived. The security guard had instructions that Mays

was not allowed to enter the neighborhood, so Natalie went to meet Mays at the gate.

According to Natalie, as she spoke to Mays outside the security gate, Mays pleaded with

her to get back together with him, but she refused. As Natalie described it, Mays became

agitated, told her that her money was in a car parked a block way, and stated "I'll snap

your neck right here on the sidewalk if you leave and walk away." Mays then calmed

down and again asked Natalie to walk to the car, to which she agreed. Mays told Natalie

he would give her a ride back to the security gate if she got into the car.

       Natalie got into the back seat of the car with Mays. The driver was Jason Poisall,

whom Natalie did not know. In the front passenger seat was Donald "Rocky" Morris,

whom Natalie knew and liked. According to Natalie's testimony, instead of giving

Natalie money and dropping her off at the security gate, Mays instructed Poisall to drive

past the security gate and to lock the car doors. As they drove, Natalie told Mays that she

wanted to go back to her parents' house, but Mays stated, "This is a kidnap/robbery."



                                              4
Accordingly to Natalie, Mays stated they were going to drive to someone's house to pick

up money.

       During the drive, Mays noticed that Natalie was wearing jewelry that Mays

recognized as coming from a mutual friend named Dave. Mays assumed that Natalie had

been intimate with Dave, and he became extremely angry to the point that Natalie

became scared of him. According to Natalie, Mays told her that he had been up for a

couple of weeks without sleeping because he had been using methamphetamine. Natalie

had been with Mays when he had not slept for a while, and she knew that lack of sleep

made him irrational and prone to extreme mood swings.

       As Natalie testified, while in the car Mays hit her in the face and choked her, and

he told her to convince him that she still loved him. Natalie tried to tell Mays what he

wanted to hear because she was scared of him. In the car, Mays unzipped his pants,

grabbed Natalie by the hair and neck, and forced Natalie's mouth onto his erect penis.

Also during the car ride, according to Natalie, Mays told Natalie that if she did not

convince him that she still loved him by the time the car reached an upcoming bridge on

the highway, he would throw her from the moving car. Mays then opened the door while

Natalie grabbed onto the seat. During the car drive, Mays told Natalie he was going to

take her to Sage Mountain, which she understood as a threat to kill her and leave her

body there.

       Mays and Poisall dropped off Morris at his house and then drove to Poisall's

mobilehome. Mays had calmed down by the time they arrived at Poisall's home and

stated he wanted to take a shower. Mays told Natalie to go into the bathroom with him

                                             5
and take off her clothes. According to Natalie, Mays told her that she was going to do as

he said, and he ordered her to stand with her leg elevated on the toilet and masturbate

herself. Natalie testified that she complied because she was scared of Mays. According

to Natalie, Mays pointed to some razorblades in the bathroom and told Natalie he would

slice up her body with them if she did not comply. Mays then made Natalie get in the

shower with him. While in the shower, Mays apologized for making her afraid.

       After leaving the bathroom, Mays and Natalie went into the bedroom. Poisall

stayed in the living room on the couch. According to Natalie, Mays continued to go

through mood swings in the bedroom and continued to threaten her. Mays told Natalie

that if she tried to leave he would shoot her down, and that he was sorry but he was going

to have to kill her and Dave. At some point, Mays also told Natalie that to save her own

life, he wanted her to kill Dave and her parents. In the bedroom, Mays hit Natalie in the

face with the back of his hand, and he also pinned her down and choked her.

       According to Natalie, Mays told her that they were going to have sex, and he

wanted her to make him believe that they were still together and that she still loved him.

Natalie told Mays she did not want to do it but would not resist because she was scared of

him. Mays then performed oral sex on Natalie and had intercourse with her, ejaculating

inside her. A medical exam later found Mays's sperm inside of Natalie's vagina. The

same exam also found swelling to the left side of Natalie's face and an abrasion on her

left ear consistent with blunt force injury.

       After having sex with Mays, Natalie fell asleep. Natalie remembered waking up at

some point and hearing Mays deciding how to restrain her because he had to go

                                               6
somewhere. When Natalie woke up again, her ankle was attached to Mays's ankle with

zip ties.

        In the morning, Mays no longer wanted to kill Natalie, but he still wanted her to

kill Dave. According to Natalie, after the zip ties were removed, Mays, Poisall and

Natalie got into the car to carry out the plan to kill Dave. To placate Mays, Natalie acted

like she wanted to get back together with Mays. After stopping at a gas station where

Natalie used the restroom, they drove to Mays's mother's house and dropped off Natalie.

According to Natalie, Mays left her there so he could go get guns to use in killing Dave.

        Natalie was afraid of getting the police involved, but she called a friend from

Mays's mother's house to pick her up. The friend contacted Natalie's parents, who called

the police. The police arrived and transported Natalie to a hospital. Mays was arrested

along with Poisall during a traffic stop on August 5, 2009.

        Mays was charged with kidnapping to commit rape (§ 209, subd. (b)(1)); forcible

rape (§ 261, subd. (a)(2)); forcible penetration with a foreign object (§ 289, subd. (a)(1));

false imprisonment (§ 236); making criminal threats (§ 422); and forcible oral copulation

(§ 288a, subd. (c)(2)). The information further included special allegations that (1) for

the kidnapping to commit rape count, Mays engaged in tying and binding (§ 667.61,

former subd. (e)(6), now subd. (e)(5)) and kidnapping within the meaning of section

667.61 subdivisions (d)(2) and (e)(1); and (2) for the sex crime counts that Mays

kidnapped the victim for the purpose of committing the sex crimes (§ 667.8, subd. (a)).

The information alleged one prior serious and violent felony (§ 667, subds. (c), (e)(1),

1170.12, subd. (c)(1)) and six prior felony convictions (§ 667.5, subd. (b)). Poisall was

                                              7
charged with all of the same counts as Mays except for making a criminal threat and

forcible oral copulation, and was additionally charged with simple kidnapping (§ 207,

subd. (a)). Prior to trial, Poisall pled guilty to simple kidnapping and agreed to testify at

Mays's trial.

       Mays testified in his own defense at trial. According to Mays, Natalie called him

to pick her up because she was being thrown out of her parents' house. Mays testified

that although he did get mad in the car because of Natalie's contact with Dave, he did not

threaten Natalie and did not assault her, and all of their sexual contact was consensual.

According to Mays, Natalie was angry at him because he would not give her any

methamphetamine, which is the reason that she falsely accused him of threatening and

assaulting her. Mays admitted that he used zip ties to bind together his and Natalie's

ankles, but he claimed the zip ties were Natalie's suggestion for an adventurous sexual

experiment. During Mays's testimony, the jury also heard evidence that Mays had six

prior convictions between 1986 and 2001.3

       The jury convicted Mays of the lesser included offense of simple kidnapping

(§ 207, subd. (a)); forcible rape (§ 261, subd. (a)(2)); forcible penetration with a foreign

object (§ 289, subd. (a)(1)); false imprisonment (§ 236); making criminal threats (§ 422);

and forcible oral copulation (§ 288a, subd. (c)(2)). On the sex crime counts, the jury also

made true findings on simple kidnapping and tying and binding. (§ 667.61, subd. (e)(1)


3       The jury heard evidence that Mays's convictions consisted of burglary, possession
of stolen property, misdemeanor embezzlement, evading a police officer and possessing a
firearm, and two convictions for possession for sale of methamphetamine.

                                              8
& former (e)(6), now (e)(5).) After Mays admitted his prior convictions, including a

prior serious or violent felony (§§ 667.5, subd. (b), 667, subds. (c), (e)), the trial court

sentenced Mays to a determinate term of 55 years four months and an indeterminate term

of 50 years to life.

                                               II

                                        DISCUSSION

A.     The Trial Court Did Not Err in Denying a Mistrial Based on Natalie's Mention of
       Mays Having Been in Prison

       During Natalie's testimony, she more than once alluded to the fact that Mays had

been in prison. Defense counsel made a motion for mistrial based on that testimony,

which the trial court denied. On appeal, Mays contends that the prosecutor committed

prejudicial misconduct by permitting Natalie to mention Mays's prison record and that

the trial court should have granted a mistrial.

       We begin by reviewing the relevant trial proceedings. Early in Natalie's

testimony, the prosecutor asked her whether Mays was working when she met him. In

her answer, Natalie twice alluded to the fact that Mays was living in a halfway house

because he had just gotten out of prison:

       "Q.     When you first met Mr. Mays, was he working?

       "A.     No, he lived in a halfway house.

       "Q.     Okay. And do you know how he supported himself?

       "A.     I'm pretty sure that in the halfway house it's kind of a deal when you
               get out of prison that they - - I think he was taken care of there. I'm
               under the assumption that that's how it goes, that they pay for it.


                                               9
       "Q.    Is that something he told you, about the halfway house?

       "A.    I'm not sure if that's what he told me, but I'm pretty sure that's how
              they work when you get out of prison. It's a transitional phase."

       While speaking with counsel during a break in the testimony, the trial court noted

Natalie's reference to Mays's prison history. "Your witness has referred twice to the fact

that Mr. Mays got out of prison, and I don't think that was proper." The prosecutor stated

that the testimony was "unanticipated," and the trial court reminded counsel that "the duty

of a prosecutor is to make sure the witnesses aren't going to talk about things that are

inadmissible, such as getting out of prison." During the discussion with the trial court,

defense counsel did not make any objection to the testimony or to the prosecutor's line of

questioning or make any request for an admonition to the jury concerning Natalie's

testimony.

       Following the break, the prosecutor asked Natalie about Mays's plan to go pick up

money from someone. Natalie explained that the person from whom they were going to

pick up money was "a friend — or not friend — that owed him." Natalie testified, "I

knew this guy that he was talking about." She testified, "A guy named Dave, this Indian

guy. I don't know whether or not they'd spent time together, but they'd known each other

for 20-plus years. And we're friends; however, there was still some. . . ."

       During the next break in testimony, defense counsel made a motion for mistrial.

Defense counsel claimed that "three times now" Natalie had brought up the fact that

Mays had been in prison. The first two instances identified by defense counsel were

Natalie's mention of the halfway house, and the third instance was purportedly when


                                             10
Natalie stated that she did not know whether Mays and Dave had "spent time together."

Defense counsel argued that a mistrial was warranted because the testimony was highly

prejudicial, not relevant, and that it could not be cured through admonition. With respect

to Natalie's statement that she didn't know whether Dave and Mays had "spent time

together," the trial court observed, "Well that didn't really refer to prison, but the

implication is some type of custody, I guess, could be inferred from that."4

        The trial court offered to admonish the jury to disregard the reference to Mays

being in prison, but defense counsel declined. The trial court then denied the mistrial

motion, stating that Natalie's "brief references" did not irreparably prejudice Mays's right

to a fair trial.

        On appeal, Mays argues that the prosecutor committed misconduct by eliciting

testimony in which Natalie mentioned Mays's prison history, and that based on the

prosecutorial misconduct, the trial court should have granted a mistrial.




4       In our view, the trial court was being very generous to state that "some type of
custody, I guess, could be inferred from" Natalie's reference to Dave and Mays possibly
having "spent time" together. A reasonable person hearing the phrase "spent time" would
not normally think of spending time in a penal institution. The colloquial phrases that
normally refer to incarceration are "doing time" or "serving time," not "spending time."
Further, as Natalie stated, she knew that Dave and Mays were long-term acquaintances in
that "they'd known each for 20-plus years," but she appears to have been expressing her
uncertainty about whether Dave and Mays were actually friendly with each other by
saying that Dave was a "a friend — or not a friend — that owed" Mays some money, and
that she did not know "whether they'd spent time together."

                                              11
       1.     The Prosecutorial Misconduct Argument Is Without Merit

       Mays's primary contention is that the trial court erred by not granting a mistrial.

However, he also makes a separate argument that, regardless of the mistrial motion,

reversal is required because of prejudicial prosecutorial misconduct. We accordingly turn

to that issue first. As we will explain, Mays's prosecutorial misconduct argument,

standing alone, is without merit.

       Prosecutorial misconduct exists " 'under state law only if it involves " 'the use of

deceptive or reprehensible methods to attempt to persuade either the court or the

jury.' " ' " (People v. Earp (1999) 20 Cal.4th 826, 858.) Further, a defendant's federal

due process rights are violated when prosecutor's misconduct " ' " 'infect[s] the trial with

unfairness,' " ' " making it fundamentally unfair. (Ibid.) A showing of bad faith on the

part of the prosecutor is not required to establish misconduct. (People v. Hill (1998) 17

Cal.4th 800, 822.) However, " '[t]o preserve for appeal a claim of prosecutorial

misconduct, the defense must make a timely objection at trial and request an

admonition . . . .' " (Earp, at p. 858.) As an exception to this rule, "[a] defendant will be

excused from the necessity of either a timely objection and/or a request for admonition if

either would be futile. [Citations.] In addition, failure to request the jury be admonished

does not forfeit the issue for appeal if ' "an admonition would not have cured the harm

caused by the misconduct." ' " (Hill, at p. 820.)

       For the purpose of preserving the issue of prosecutorial misconduct for appeal, a

motion for mistrial is not the same thing as a timely objection and request for admonition.

Although a motion for mistrial will preserve the issue of whether the trial court erred in

                                             12
denying the mistrial motion, it will not serve to preserve for appeal the separate issue of

prosecutorial misconduct when defense counsel failed to make an objection or request an

admonition. (People v. Silva (2001) 25 Cal.4th 345, 373 [following denial of a mistrial

motion, the defendant's prosecutorial misconduct argument was forfeited on appeal

because he failed to request an admonition, but the ruling on the mistrial motion was

reviewable]; People v. Collins (2010) 49 Cal.4th 175, 198-199 (Collins) [defendant's

prosecutorial misconduct argument, based on a witness's mention of defendant's prison

history, was forfeited on appeal for failure to request a jury admonition, but the appellate

court could review the denial of defendant's mistrial motion insofar as the defendant

claimed prejudice from the witness's testimony].)

       Here, defense counsel made no objection based on prosecutorial misconduct

during Natalie's testimony and did not request that the jury be admonished. As we have

explained, it was the trial court, not defense counsel, who — after the fact — noted

Natalie's first two references to Mays having been in prison. When Natalie made the

purported third reference to Mays's prison history (i.e., the reference to possibly having

"spent time" with Dave), defense counsel did not make an objection during the testimony.

Instead, defense counsel waited and addressed Natalie's references to Mays's prison

history by making a motion for a mistrial based on the prejudice caused by Natalie's

statements, not by identifying any specific objectionable misconduct by the prosecutor.

The trial court offered to admonish the jury, but defense counsel declined the offer.

       We see no indication that a timely objection would have been futile or that an

admonition to the jury would have been ineffective. The fact that the trial court brought

                                             13
up the issue on its own and then offered to admonish the jury shows that the trial court

would have been receptive to an objection. Further, case law establishes that when a

witness makes a fleeting reference to a defendant's criminal history, as was done here, an

admonition to the jury is presumed to be effective to address any prejudice, and a

defendant is accordingly not excused from requesting an admonition. (People v. Valdez

(2004) 32 Cal.4th 73, 125 (Valdez) [failure to preserve prosecutorial misconduct by not

requesting an admonition was not excused when a witness's "isolated reference" to the

defendant's having been incarcerated "was not so grave that a curative instruction would

not have mitigated any possible prejudice to defendant"]; Collins, supra, 49 Cal.4th at

pp. 198, 199 [appellate argument of prosecutorial misconduct based on witnesses' "brief

and ambiguous" mention of defendant being in prison was not preserved because defense

counsel rejected the trial court's offer to admonish the jury].)

       Even were the claim of prosecutorial misconduct preserved for appeal, it fails on

the merits. Prosecutorial misconduct exists under state law only if the prosecutor uses

" ' " 'deceptive or reprehensible methods to attempt to persuade either the court or the

jury.' " ' " (Earp, supra, 20 Cal.4th at p. 858.) Here, there is no evidence of any

deceptive or reprehensible conduct by the prosecutor to support a misconduct claim under

state law. The prosecutor's questions did not logically call for Natalie to testify that Mays

had been in prison, and thus there is no basis for us to conclude that any deceptive or

reprehensible misconduct by the prosecutor was behind Natalie's statements. Instead, as

the prosecutor explained to the trial court, when he asked Natalie how Mays supported

himself when she met him, he expected, based on previous conversations with Natalie,

                                              14
that Natalie would state that Mays had a nighttime job. We perceive no reason to doubt

the prosecutor's statement that Natalie's testimony about Mays living in a halfway house

was unanticipated.

       A prosecutor commits misconduct under federal law when "his . . . conduct . . .

infects the trial with such unfairness as to render the subsequent conviction a denial of

due process." (People v. Avila (2009) 46 Cal.4th 680, 711.) As we have explained, all

indications are that Natalie's statements about Mays being in prison were unanticipated

and not solicited by the questions asked by the prosecutor. Thus, the record reflects no

misconduct by the prosecutor that infected the trial with unfairness. (Valdez, supra, 32

Cal.4th at p. 125 [discerning "no misconduct on the part of the prosecutor" when a

witness mentioned defendant having been incarcerated because the record reflected that

the prosecutor did not intentionally solicit, and could not have anticipated, the witnesses

testimony based on the question].) Further, as we will explain more fully in connection

with our discussion of the denial of the motion for mistrial, Natalie's statements were

"brief and isolated" (People v. Dement (2011) 53 Cal.4th 1, 40) and thus did not rise to

the level of denying Mays his right to due process.

       2.     The Trial Court Did Not Abuse Its Discretion in Denying the Motion for
              Mistrial

       Having rejected Mays's contention that the prosecutor engaged in misconduct, the

next issue is whether, even apart from any prosecutorial misconduct, the trial court

should have granted Mays's motion for mistrial because of any prejudice caused by

Natalie's volunteered statements about Mays having been in prison.


                                             15
       "A trial court should grant a motion for mistrial 'only when " 'a party's chances of

receiving a fair trial have been irreparably damaged' " ' [citation], that is, if it is 'apprised

of prejudice that it judges incurable by admonition or instruction.' " (People v. Avila

(2006) 38 Cal.4th 491, 573.) " 'Although most cases involve prosecutorial or juror

misconduct as the basis for [a mistrial] motion, a witness's volunteered statement can also

provide the basis for a finding of incurable prejudice.' " (People v. Williams (1997) 16

Cal.4th 153, 211, italics added.)

       " 'Whether a particular incident is incurably prejudicial is by its nature a

speculative matter, and the trial court is vested with considerable discretion in ruling on

mistrial motions.' [Citation.] Accordingly, we review a trial court's ruling on a motion

for mistrial for abuse of discretion." (People v. Avila, supra, 38 Cal.4th at p. 573.)

       "Whether a particular incident is incurably prejudicial requires a nuanced, fact-

based analysis." (People v. Chatman (2006) 38 Cal.4th 344, 369-370.) "There is little

doubt exposing a jury to a defendant's prior criminality presents the possibility of

prejudicing a defendant's case and rendering suspect the outcome of the trial. [Citations.]

[¶] Whether in a given case the erroneous admission of such evidence warrants granting

a mistrial or whether the error can be cured by striking the testimony and admonishing

the jury rests in the sound discretion of the trial court." (People v. Harris (1994) 22

Cal.App.4th 1575, 1580-1581.)

       In this case, the trial court was well within its discretion to conclude that any harm

caused by Natalie mentioning that Mays had been in prison was not incurably prejudicial.

The two references to Mays having been in a halfway house were brief and isolated, and

                                               16
the statement that Mays might have "spent time" with Dave was not likely to have been

understood by the jury as a reference to serving time in prison. Case law holds that when

a witness makes brief, isolated or vague statements referring to a defendant's prior

incarceration or criminal history, any prejudice to the defendant can be cured by an

admonition to the jury. (Collins, supra, 49 Cal.4th at p. 199 [trial court did not abuse its

discretion in denying mistrial motion based on witness's remarks identifying the name of

a prison from which the defendant made phone calls because the "remarks . . . were brief

and ambiguous" and "any prejudicial effect could by cured by an admonition"]; People v.

Avila, supra, 38 Cal.4th at p. 574 [the trial court did not abuse its discretion in denying a

mistrial motion after a witness mentioned the defendant recently getting out of prison

because the court admonished the jury not to consider it for any purpose]; People v.

Leavel (2012) 203 Cal.App.4th 823, 831 [the trial court acted within its discretion by

denying a mistrial motion when a witness referred to the defendant having been in a

detention center because any prejudice from the testimony was "easily cured by striking

the evidence and admonishing the jury to disregard it"].)

       Further, we note that the proper analysis is whether the prejudice caused by

Natalie's remarks could have been cured by the trial court's offer to give an admonition,

not whether an admonition was actually given. (Collins, supra, 49 Cal.4th at pp. 198-199

[although the defendant refused the trial court's offer to admonish the jury, the trial court

was within its discretion to deny the mistrial when the witness's remarks were brief and

ambiguous and any prejudice could have been cured by an admonition].) Here, because

Natalie's statements were brief, vague and isolated, the trial court reasonably could

                                             17
conclude that any prejudice could have been cured by an admonition. The fact that Mays

declined the trial court's offer to give the admonition is not relevant to our analysis.

       When assessing the prejudicial nature of Natalie's testimony in the context of the

entire trial, we may also consider that the jury later learned the details of Mays's

convictions from Mays's own testimony and was instructed to consider Mays's criminal

history only for the limited purpose of judging his credibility. Mays argues that it would

be unfair to consider his own eventual testimony about his criminal history because he

would not have decided to take the stand had Natalie not improperly mentioned that he

was in prison. In the specific context of this case, Mays's position lacks merit. When

confronted with a similar argument in Collins, supra, 49 Cal.4th 175, our Supreme Court

reviewed the record and concluded that it was "part of defendant's trial strategy" to take

the stand and that "given the limited nature" of the witness's remarks about the defendant

having been in prison, it was not "persuasive" for the defendant to argue that he would

not have taken the stand absent the witness's remarks. (Id. at p. 199.) Collins

accordingly considered the content of defendant's testimony about his prior convictions in

assessing whether a witness's statement about defendant having been incarcerated was

prejudicial. (Ibid.) We do the same here. Because most of the relevant events took place

when Mays and Natalie were alone together, it was clearly part of Mays's trial strategy to

take the stand and set forth his own version of events in which he claimed that he did not

threaten Natalie, she consented to all of the sexual conduct, and she retaliated against him

for refusing to get drugs for her.



                                              18
       Plainly, Natalie's limited statements about Mays having been in prison did not

prejudice Mays any more than the information that the jury heard through Mays's own

admissions about his numerous criminal convictions. Further, because Mays testified

about his own criminal history, the trial court instructed the jury that they were to use

evidence of Mays's criminal history only for judging his credibility. That instruction

further reduced the possibility of prejudice to Mays from Natalie's reference to Mays's

time in prison.

       We accordingly conclude that the trial court properly denied the mistrial motion

because Natalie's references to Mays having been in prison were not irreparably

prejudicial within the context of the entire trial.

B.     The Trial Court Properly Admitted Evidence of Mays's Prior Domestic Violence
       Against Natalie

       We next consider whether the trial court erred in admitting evidence about Mays's

prior domestic violence against Natalie.

       During Natalie's testimony, defense counsel objected to a question about whether

Natalie had seen Mays become violent during their relationship. The trial court ruled that

it would allow testimony about Mays previously inflicting violence upon Natalie. Natalie

then testified that when Mays was mad he "put his hands around my throat until I passed

out." She said it happened "a few" times, and she accordingly became scared of Mays

over the course of their relationship.

       Under Evidence Code section 1101, subdivision (a), evidence of a defendant's

character, including instances of uncharged misconduct, is not admissible to show the


                                               19
defendant had the criminal propensity to commit the charged crime. However, prior acts

evidence may be admitted when it is relevant to prove a fact other than the defendant's

character or disposition, including, as relevant here, "whether a defendant in a

prosecution for an unlawful sexual act or attempted unlawful sexual act did not

reasonably and in good faith believe that the victim consented." (Evid. Code, § 1101,

subd. (b).) If the evidence is admissible on a proper basis, the trial court may still

exclude the evidence pursuant to Evidence Code section 352 if it is unduly prejudicial.

(People v. Lindberg (2008) 45 Cal.4th 1, 22-23.) We review the trial court's rulings on

the admission of evidence under Evidence Code sections 1101 and 352 for abuse of

discretion. (People v. Fuiava (2012) 53 Cal.4th 622, 667-668.)

       Mays contends that his prior acts of domestic violence against Natalie were not

relevant to any issues in the case and should not have been admitted. We disagree. The

main contested issue at trial was whether Natalie consented to the sexual conduct with

Mays or whether she complied only because she felt scared and threatened. Natalie

specifically testified that she was aware that Mays was capable of violence against her

based on her past experience with him, and she accordingly did what he told her to do in

order to prevent him from carrying out his threats to hurt and kill her. Evidence that

Mays had previously committed domestic violence against Natalie was directly relevant




                                              20
to the issue of whether Natalie consented to the sexual contact with Mays during the

incident or whether she complied out of fear.5

       Mays also contends that even if the prior domestic violence was admissible to

show whether Natalie consented, the evidence should not have been admitted under

Evidence Code section 352 because it was unduly prejudicial. Pursuant to section 352,

"[a] trial court may exclude otherwise relevant evidence when its probative value is

substantially outweighed by concerns of undue prejudice, confusion, or consumption of

time." (People v. Scott (2011) 52 Cal.4th 452, 490.) " ' "The 'prejudice' referred to in

Evidence Code section 352 applies to evidence which uniquely tends to evoke an

emotional bias against the defendant as an individual and which has very little effect on

the issues. In applying section 352, 'prejudicial' is not synonymous with 'damaging.' " ' "

(Id. at p. 491.)

       Mays argues that the evidence of his prior domestic violence had a tendency to

evoke an emotional bias against him because it portrayed him as "an extremely angry and

violent man." Mays contends that balanced against the prejudicial effect, the evidence

had little probative value because "at best [it] had little effect on the disputed issue of

consent because it did not relate to Natalie's mental state in responding to Mays's actions

and sexual overtures." We disagree. The emotional reaction of a juror to hearing



5       Mays also claims the evidence should not have been admitted because it was
cumulative. This argument is without merit because Mays identifies no other evidence at
trial of his prior conduct toward Natalie that would tend to show that Natalie reasonably
believed that Mays would carry out his threats to hurt and kill her.

                                              21
evidence of Mays's prior domestic violence against Natalie would be no stronger than the

reaction to hearing of Mays's similar violent conduct during the instant offense. (People

v. Ewoldt (1994) 7 Cal.4th 380, 405 [prejudice of uncharged acts lessened because they

were "no more inflammatory" than the charged offenses].) Further, contrary to Mays's

contention, the evidence of prior domestic violence was highly relevant to show Natalie's

state of mind when Mays threatened to hurt and kill her during the crimes at issue here.

As Natalie explained several times during trial, she was scared of Mays because she

knew what he was capable of doing to her.

       Accordingly, the trial court was well within its discretion to admit evidence of

Mays's prior domestic violence against Natalie.

C.     The Failure to Instruct with CALCRIM No. 358 Was Harmless

       Although the jury heard evidence of numerous out-of-court statements made by

Mays during the commission of the crimes which tended to show his guilt, the trial court

did not instruct the jury with CALCRIM No. 358, which provides: "You have heard

evidence that the defendant made [an] oral or written statement[s] (before the trial/while

the court was not in session). You must decide whether the defendant made any (such/of

these) statement[s], in whole or in part. If you decide that the defendant made such [a]

statement[s], consider the statement[s], along with all the other evidence, in reaching

your verdict. It is up to you to decide how much importance to give to the statement[s].

[¶] Consider with caution any statement made by (the/a) defendant tending to show

(his/her) guilt unless the statement was written or otherwise recorded."



                                            22
       The parties appear to agree that CALCRIM No. 358 was applicable here and

therefore the trial court should have sua sponte instructed the jury with it. (People v.

McKinnon (2011) 52 Cal.4th 610, 679 (McKinnon).) As there is no dispute that the court

should have instructed with CALCRIM No. 358, we consider only whether the omission

was harmless.

       "In determining whether the failure to instruct requires reversal, '[w]e apply the

normal standard of review for state law error: whether it is reasonably probable the jury

would have reached a result more favorable to defendant had the instruction been given.'

[Citations.] ' "Since the cautionary instruction is intended to help the jury to determine

whether the statement attributed to the defendant was in fact made, courts examining the

prejudice in failing to give the instruction examine the record to see if there was any

conflict in the evidence about the exact words used, their meaning, or whether the

admissions were repeated accurately. [Citations.]" ' [Citations.] [Our Supreme Court]

has held to be harmless the erroneous omission of the cautionary language when, in the

absence of such conflict, a defendant simply denies that he made the statements.

[Citation.] Further, when the trial court otherwise has thoroughly instructed the jury on

assessing the credibility of witnesses, we have concluded the jury was adequately warned

to view their testimony with caution." (McKinnon, supra, 52 Cal.4th at pp. 679-680.)

       Here, the omission of CALCRIM No. 358 was harmless because Mays took the

stand and "simply denied making the statements." (McKinnon, supra, 52 Cal.4th at

p. 680.) Mays testified at length and stated that he did not make any of the threats to

Natalie described by any of the other witnesses.

                                             23
       The other instructions given to the jury concerning witness credibility also

alleviated any prejudice in failing to give CALCRIM No. 358. (See People v. Sanders

(1995) 11 Cal.4th 475, 536-537 [considering other jury instructions when assessing

prejudice].) The trial court gave detailed instructions on how to assess witness

credibility. (See CALCRIM Nos. 105, 226.) The trial court also instructed the jury that

in the case of a conflict in the evidence, it "must decide what evidence, if any, to believe"

(CALCRIM No. 302), and to view accomplice testimony with caution (CALCRIM

No. 335). Since these instructions adequately advised the jury on how to assess witness

credibility and provided guidance on whether to credit a witness's testimony, we conclude

that any error in failing to give an explicit cautionary instruction was harmless. (See

People v. Carpenter (1997) 15 Cal.4th 312, 393 [failure to give cautionary instruction

harmless error when trial court "fully instructed the jury on judging the credibility of a

witness, thus providing guidance on how to determine whether to credit the testimony"];

People v. Quach (2004) 116 Cal.App.4th 294, 299-300 [failure to give cautionary

instruction harmless error when trial court instructed jury "to exercise caution in

considering all the evidence which bore on the proof of any fact"].)

D.     The Trial Court Should Have Stayed the Sentence on the Kidnapping Count

       Mays contends that the trial court erred in imposing, rather than staying, the

16-year consecutive term it imposed for the kidnapping count.

       In his opening brief, Mays premised his argument on section 654, arguing that the

kidnapping count was based on an indivisible course of conduct that included the sex



                                             24
crimes.6 The Attorney General concedes that the sentence on the kidnapping count

should have been stayed, but she sets forth a different legal basis. Specifically, the

Attorney General points out that because Mays's kidnapping of Natalie was used as an

aggravating factor to impose a 25-year-to-life term under the "One Strike" law (§ 667.61,

subds. (a), (c), (e)), the trial court was required to stay the separate sentence imposed on

the kidnapping count pursuant to section 667.61, subdivision (f). In Mays's reply brief,

he agrees with the Attorney General's analysis.

       The One Strike law requires that a 25-year-to-life sentence be imposed for

qualifying sex crimes, including forcible rape (§ 261, subd (a)(2)), when at least two of

the aggravating circumstances listed in section 667.61, subdivision (e) are established.

(§ 667.61, subds. (a), (c), (e).) Here, the jury made findings on two aggravating

circumstances: tying and binding (§ 667.61, former subd. (e)(6), now subd. (e)(5)), and

simple kidnapping (§ 667.61, subd. (e)(1)). The trial court accordingly used those two

aggravating factors to sentence Mays to a term of 25 years to life for forcible rape under

the One Strike law (§ 667.61, subd. (a)), which was then doubled to 50 years to life under

the "Three Strikes" law. (§ 667, subds. (c), (e)(1); People v. Acosta (2002) 29 Cal.4th

105, 118-128.)




6      Section 654 provides in relevant part: "(a) 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. An acquittal or conviction and
sentence under any one bars a prosecution for the same act or omission under any other."

                                             25
       The One Strike law provides, in general, that conduct necessarily used as an

aggravating factor in sentencing a defendant may not also be punished under another

provision of law. Specifically, section 667.61, subdivision (f) provides: "If only the

minimum number of circumstances specified in subdivisions (d) or (e) that are required

for the punishment provided in subdivisions (a), (b), (j), (l), or (m) to apply have been

pled and proved, that circumstance or those circumstances shall be used as the basis for

imposing the term provided in subdivisions (a), (b), (j), (l), or (m) whichever is greater,

rather than being used to impose the punishment authorized under any other provision of

law, unless another provision of law provides for a greater penalty or the punishment

under another provision of law can be imposed in addition to the punishment provided by

this section. However, if any additional circumstance or circumstances specified in

subdivision (d) or (e) have been pled and proved, the minimum number of circumstances

shall be used as the basis for imposing the term provided in subdivisions (a), (j), or (l)

and any other additional circumstance or circumstances shall be used to impose any

punishment or enhancement authorized under any other provision of law."

       Here, the two aggravating circumstances of tying and binding and simple

kidnapping were both needed for the imposition of a 25-year-to-life sentence under

section 667.61, subdivision (b) of the One Strike law. Therefore, pursuant to section

667.61, subdivision (f), the trial court was prohibited from also imposing punishment

under the simple kidnapping count. (People v. Rodriguez (2012) 207 Cal.App.4th 204,

216 [trial court could not impose sentence for simple kidnapping which was also used as

an aggravating factor under the One Strike law].) We accordingly agree with the

                                             26
Attorney General that the trial court should have stayed the sentence on the simple

kidnapping count pursuant to the One Strike law. (Cf. People v. Gonzalez (2008) 43

Cal.4th 1118, 1127 [proper approach is to impose and then stay sentence on

enhancements under § 12022.53 when statute provided that additional enhancements

found to be true should not be "imposed"].) We therefore remand for the trial court to

correct its sentencing error on the simple kidnapping count.

E.      The Trial Court Erred in Not Calculating Mays's Presentence Custody Credits

        The abstract of judgment reflects that the trial court did not calculate the

presentence custody credits to which Mays was entitled. (§ 2933.1, subd. (a).) Instead,

the abstract of judgment states that the "Department of Corrections [is] to calculate credit

for time served." Mays contends that it was error for the trial court to defer the

calculation of his presentence custody credits to the Department of Corrections and

Rehabilitation. The Attorney General agrees. (See People v. Acosta (1996) 48

Cal.App.4th 411, 428, fn. 9 ["it is the duty of the trial court to award the correct amount

of credits"].)

        Although we have the authority on appeal to amend the judgment to award the

correct amount of presentence custody credits (People v. Acosta, supra, 48 Cal.App.4th

at pp. 427-428), because we are remanding this matter for resentencing in connection

with the sentencing error on the simple kidnapping count, we direct that during

resentencing the trial court should calculate and award presentence custody credits to

Mays.



                                              27
F.     The Trial Court Did Not Err in Imposing a Victim Restitution Fine

       The trial court ordered Mays to pay a victim restitution fine of $10,000 pursuant to

section 1202.4, subdivision (b). Mays contends that a restitution fine imposed under

section 1202.4, subdivision (b) violates a defendant's rights to due process and jury trial

because it is not based on facts determined by a jury. Mays's contention lacks merit and

has been previously considered and rejected by persuasive case law. (People v. Kramis

(2012) 209 Cal.App.4th 346, 351 (Kramis).)

       Section 1202.4, subdivision (b) provides that "[i]n every case where a person is

convicted of a crime, the court shall impose a separate and additional restitution fine,

unless it finds compelling and extraordinary reasons for not doing so and states those

reasons on the record." The statute states that "[t]he restitution fine shall be set at the

discretion of the court and commensurate with the seriousness of the offense" and gives a

statutory range, which as of January 1, 2013, was a range of $240 to $10,000 for a person

convicted of a felony. (§ 1202.4, subd. (b)(1).)7 The statute also sets forth one possible

method for the court to chose in exercising its discretion to set the amount of the fine,

which is to "determine the amount of the fine as the product of the minimum fine . . .

multiplied by the number of years of imprisonment the defendant is ordered to serve,

multiplied by the number of felony counts of which the defendant is convicted."

(§ 1202.4, subd. (b)(2).) In setting the amount of the fine, "the court shall consider any



7       A prior version of the statute had a slightly lower statutory minimum. (See
Kramis, supra, 209 Cal.App.4th at p. 349 [$200 statutory minimum in applicable version
of statute].)
                                              28
relevant factors, including, but not limited to, the defendant's inability to pay, the

seriousness and gravity of the offense and the circumstances of its commission, any

economic gain derived by the defendant as a result of the crime, the extent to which any

other person suffered losses as a result of the crime, and the number of victims involved

in the crime. Those losses may include pecuniary losses to the victim or his or her

dependents as well as intangible losses, such as psychological harm caused by the crime.

Consideration of a defendant's inability to pay may include his or her future earning

capacity. A defendant shall bear the burden of demonstrating his or her inability to pay.

Express findings by the court as to the factors bearing on the amount of the fine shall not

be required. A separate hearing for the fine shall not be required." (§ 1202.4, subd. (d).)

       Mays contends that because the trial court's exercise of discretion in the imposition

of a restitution fine under section 1202.4, subdivision (b) involves some factual issues,

such as the defendant's ability to pay, the nature of the offense and the defendant's

economic gain, pursuant to Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi) and

Southern Union Co. v. United States (2012) 567 U.S. __ [132 S.Ct. 2344] (Southern

Union Co.), the trial court may not impose a restitution fine unless the amount of the fine

is based on facts found by a jury. This argument was thoroughly examined and rejected

in Kramis, supra, 209 Cal.App.4th 346. As we will explain, we agree with Kramis and

adopt its reasoning here.

       Apprendi held that "[o]ther than the fact of a prior conviction, any fact that

increases the penalty for a crime beyond the prescribed statutory maximum must be

submitted to a jury, and proved beyond a reasonable doubt." (Apprendi, supra, 530 U.S.

                                              29
at p. 490, italics added.) Later Blakely v. Washington (2004) 542 U.S. 296 stated that

"the 'statutory maximum' for Apprendi purposes is the maximum sentence a judge may

impose solely on the basis of the facts reflected in the jury verdict or admitted by the

defendant." (Id. at p. 303, italics omitted.)

       Most recently, in Southern Union Co., the United States Supreme Court applied

Apprendi to the imposition of a criminal fine for violation of federal environmental laws.

(Southern Union Co., supra, 567 U.S. at pp. __ [132 S.Ct. at pp. 2349-2356].) As

Kramis explained, however, Southern Union Co. does not mean that the imposition of

every type of criminal fine is suspect under Apprendi. "The statutory fine imposed in

Southern Union Co. was $50,000 for each day of violation. In other words, the amount

of the fine was tied to the number of days the statute was violated. In Southern Union

Co., the trial court, not the jury, made a specific finding as to the number of days of

violation. The United States Supreme Court held the district court's factual finding as to

the number of days the defendant committed the crime violated Apprendi. (Southern

Union Co., supra, 567 U.S. at p. __ [132 S.Ct. at p. 2352].)" (Kramis, supra, 209

Cal.App.4th at p. 351.)

       We agree with Kramis that "Southern Union Co. does not impact the restitution

fine imposed in the present case" because "Apprendi and Southern Union Co. do not

apply when, as here, the trial court exercises its discretion within a statutory range."

(Kramis, supra, 209 Cal.App.4th at p. 351.) Kramis pointed out that, "[a]s the United

States Supreme Court held in Apprendi, '[N]othing in [the common law and constitutional

history] suggests that it is impermissible for judges to exercise discretion — taking into

                                                30
consideration various factors relating both to the offense and offender — in imposing a

judgment within the range prescribed by statute.' " (Ibid.) " 'Apprendi distinguishes a

"sentencing factor" — a "circumstance, which may be either aggravating or mitigating in

character, that supports a specific sentence within the range authorized by the jury's

finding that the defendant is guilty of a particular offense" — from a "sentence

enhancement" — "the functional equivalent of an element of a greater offense than the

one covered by the jury's guilty verdict" constituting "an increase beyond the maximum

authorized statutory sentence." [Citation.]' [Citation.] Nothing in Southern Union Co.

alters that holding." (Ibid.)

       Here, as in Kramis, because "[t]he $10,000 section 1202.4, subdivision (b)

restitution fine . . . was within that statutory range," "[t]he trial court did not make any

factual findings that increased the potential fine beyond what the jury's verdict — the fact

of the conviction — allowed. Therefore, Apprendi and its progeny do not preclude [the]

imposition" of the fine. (Kramis, supra, 209 Cal.App.4th at pp. 351-352.)

                                       DISPOSITION

       We reverse in part and remand for resentencing consistent with this opinion. In all

other respects judgment is affirmed.


                                                                                     IRION, J.
WE CONCUR:


HUFFMAN, Acting P. J.


MCDONALD, J.

                                              31
