Filed 9/13/13 P. v. Kelly CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G046870

         v.                                                            (Super. Ct. No. 04NF0689)

JEROME EUGENE KELLY,                                                   OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, William
L. Evans, Judge. (Retired judge of Orange Super. Ct. assigned by the Chief Justice
pursuant to art. VI, § 6 of the Cal. Const.) Affirmed as modified.
                   Martha L. McGill, 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, A. Natasha Cortina and
Sean M. Rodriguez, Deputy Attorneys General, for Plaintiff and Respondent.
              Jerome Eugene Kelly appeals from a judgment after a jury convicted him of
kidnapping to commit a sex offense, sodomy by force, forcible oral copulation,
kidnapping, and sodomy by force, and found true movement of the victim and multiple
victim enhancements. Kelly argues the trial court erred in admitting evidence, instructing
the jury, and sentencing him. We agree Kelly’s sentencing claim has merit. None of his
other contentions have merit, and we affirm the judgment as modified.
                                          FACTS
Michelle H.
              One June evening in 2003 about dusk, Michelle, who was living in a
homeless shelter because she was a victim of domestic violence, arrived at a bus stop
after ingesting methamphetamine at a friend’s house. She was “lightheaded,
paranoid, . . . [and] nervous[,]” and wanted to go to the hospital but was afraid she would
be arrested. Michelle sat at the bus stop sans shoes for about two hours when Kelly sat
down and started talking to her. She told Kelly that she was not feeling well, and he
offered to take her to the hospital and get her shoes. She felt so bad she accepted his
offer and got into his car.
              When Kelly drove past the hospital, Michelle asked him where he was
going. Kelly replied he wanted to get her some shoes before he took her to the hospital.
Kelly drove to a motel, said he was going to get some shoes, and got out of the car. She
tried to get out of the car, but the doors were locked. After talking to a man, Kelly
returned to the car without any shoes.
              Kelly drove towards the hospital but did not stop and drove in circles.
During the drive, Kelly asked Michelle what her drug of choice was. She denied using
drugs. Kelly said he would take Michelle to his house to get her shoes and take her to the
hospital. Kelly got onto the 91 freeway. Michelle asked him to take her to her sister’s
house and to be let out of the car.



                                             2
              Kelly grabbed Michelle’s hand and tried to put it on his penis, but she
pulled her hand away. He asked her if she was going to work for him as a prostitute.
Kelly got off the freeway and drove to a park where he stopped the car. Kelly said
Michelle could get out of the car, and he opened the passenger side door for her. When
she got out of the car, he hit her on the head, and she fell to the ground. He picked her up
and apologetically helped her back into the car, drove around, and returned to the park.
Kelly told her that he was going to get her shoes and to follow him.
              Kelly held Michelle’s elbow as he led her through the park to his house.
Michelle saw a man practicing martial arts with a stick. Kelly told Michelle to be quiet
or he would kill her and the man. They walked for about 10 minutes to a dark and
secluded ravine in the park. Kelly, who was wearing gloves, grabbed Michelle by the
neck and told her to take off her pants. She started to comply with his demand but then
refused. Kelly threatened to kill her, but she still refused. He threw her to the ground,
pulled her pants down, and told her to spread her legs. Michelle refused and rolled into
the fetal position. Kelly had anal intercourse with Michelle and ejaculated inside and
outside her body. Kelly said he was going to kill her and started choking her. A dog
started barking and someone turned on lights at a nearby home, which scared Kelly and
he fled.
              Michelle went to a few houses and knocked on the doors but no one
answered. She went to the parking lot and saw a man in a white Jeep. Michelle told him
a man had raped her, but the man said he did not want to get involved and drove away.
She saw Kelly drive away. She eventually stopped two police officers and told them
what had happened. She was hysterical and disheveled. They drove around and looked
for Kelly but could not find him. The officers took Michelle to a rape center where she
had a sexual assault examination and was interviewed.




                                             3
              Michelle said her assailant was an African-American male, about 20 to 25
years old, 170 pounds, and clean shaven. She said he wore a black shirt, tan shoes, and
gloves. She emotionally and candidly described what had transpired. There were no
injuries or evidence of anal intercourse.
Elaina W.
              One evening seven weeks later, Elaina left her boyfriend’s house. As she
walked past a 7-Eleven, Kelly shouted at her from his car. Elaina kept walking, and
Kelly drove beside her. He asked her name, age, and nationality. She told him her age
and nationality but gave him a false name. Kelly told her to get into his car, but she
refused. She saw three Hispanic men who appeared to be intoxicated but did not ask
them for help because she thought they would assault her. Elaina walked faster, and
Kelly told her to get into the car or he would shoot her. Kelly got out of the car and told
Elaina to get in the car. She saw an item in his waistband and thought it was a gun.
Kelly tapped his finger against the object, and it sounded hard.
              Kelly pushed her into the car. Elaina cried and told Kelly to let her out.
Kelly told her to “shut the fuck up.” She told him that she was a diabetic, and he said he
would take care of her. Kelly drove onto the 91 freeway. Elaina begged him to let her go
and said she needed insulin and food. Kelly remained on the freeway for 10 minutes,
exited the freeway, and stopped at a dark and secluded park.
              Kelly and Elaina sat in the car for about 10 minutes listening to music.
Elaina noticed a tattoo on Kelly’s right arm that says, “respect.”1 Elaina did not try to
flee because she thought Kelly had a gun. Kelly told her that she was pretty and he had
never had sexual intercourse with a woman of her nationality before.




1             A law enforcement officer confirmed Kelly has such a tattoo.


                                             4
               Kelly told Elaina to get out of the car and he led her to the top of a hill in
the park. She repeatedly asked him to let her go, but he refused. Kelly put his arm
around her and tried to kiss her, but she pushed him away. Kelly hit her on the mouth
with his fist, and she fell to the ground face down. Kelly removed her pants and
underwear and tried to have intercourse with her. He also touched her vagina with his
finger. As Elaina was on her hands and knees, Kelly had anal intercourse with her for
two to three minutes without a condom and without ejaculating. Kelly stopped, and told
her to pull up her pants and immediately perform oral sex on him. Elaina complied
because she did not want to die. She performed oral sex on him until he ejaculated in her
mouth. Kelly told her to swallow his ejaculate, but she spit it out and vomited. Elaina
offered to give Kelly $200 that she had at her parents’ house if he let her go. Kelly
walked to a nearby fence and smoked a cigarette. Elaina asked him to let her go. Kelly
told her to stay where she was, and he left. After he left, Elaina awkwardly and painfully
walked away.
               Elaina had the same misfortune as Michelle when she asked a man in a
truck to help her. A woman eventually stopped and drove Elaina to a gas station. Elaina
went into a 7-Eleven and told the cashier what had happened, but the cashier did not
believe her and would not let her use the telephone. A married couple finally helped
Elaina contact the police, who took her to the hospital for a sexual assault examination.
               Elaina told a forensic nurse what had happened to her. Elaina had injuries
to her mouth and lips that were consistent with being punched and engaging in oral
copulation. She had extensive lacerations in her vagina and anus.
Identifications
               In December 2003, Elaina tearfully identified Kelly from a photographic
lineup. In January 2004, Michelle also identified Kelly from a photographic lineup.




                                               5
Trial Court Proceedings
              In 2007, after an eight-count information involving three victims was
whittled down to six counts, the trial judge, at a bench trial, found Kelly guilty on five of
the six remaining counts. Kelly moved to relieve retained trial counsel, and the trial court
appointed the public defender to represent Kelly. Kelly filed a motion for new trial on
the grounds the prosecutor failed to disclose material evidence pursuant to Brady v.
Maryland (1963) 373 U.S. 83, and he received ineffective assistance of counsel. In
April 2008, after hearing witnesses’ testimony and counsels’ argument, the trial court
granted the new trial motion based on the discovery violation. The public defender,
alternate defender, and conflict counsel all declared conflicts.
              In December 2008, an amended information charged Kelly with the
following: Jane Doe No. 1-kidnapping to commit a sex offense (Pen. Code, § 209,
subd. (b)(1))2 (count 1), sodomy by force (§ 286, subd. (c)(2)) (count 2), forcible oral
copulation (§ 288a, subd. (c)(2)) (count 3); and Jane Doe No. 2-kidnapping to commit a
sex offense (§ 209, subd. (b)(1)) (count 4), and sodomy by force (§ 286, subd. (c)(2))
(count 5). As to counts 2, 3, and 5, the amended information alleged Kelly kidnapped the
victim and the movement substantially increased the risk of harm to the victim (§ 667.61,
subds. (a), (c) & (d)(2)), and he committed the offenses against more than one victim
(§ 667.61, subds. (b), (c)(6) & (e)(5)). The amended information also alleged Kelly had
one prior serious felony (§ 667, subd. (a)(1)), and one prior strike conviction (§§ 667,
subds. (d), (e)(1), 1170.12, subds. (b), (c)(1)).
              The trial court eventually granted Kelly’s motion to represent himself. Ten
months later, the trial court granted Kelly’s request to revoke his in propria persona status
and appointed counsel. A jury trial finally commenced in July 2011.



2             All further statutory references are to the Penal Code, unless otherwise
indicated.

                                               6
              The prosecutor moved to admit the following uncharged sexual offense
evidence pursuant to Evidence Code section 1108: (1) an April 1997 conviction for
unlawful sexual intercourse with a minor (§ 261.5, subd. (c)); and (2) an October 2003
conviction for unlawful sexual intercourse with a minor (§ 261.5, subd. (c)). The
prosecutor argued there is no requirement the uncharged sexual offenses be sufficiently
similar to the charged offenses and the uncharged offenses were not too remote.
Additionally, the prosecutor argued the factors articulated in People v. Harris (1998) 60
Cal.App.4th 727 (Harris), did not require the evidence’s exclusion.
              At an Evidence Code section 402 hearing, Kelly objected to admission of
the uncharged sexual offense evidence. Defense counsel argued the uncharged sexual
offense must be similar to the charged sexual offense, and in this case, the offenses were
not similar. Counsel also argued admission of the uncharged sexual offense would be
unduly prejudicial because the jury would be left to speculate the significance of the
dissimilar conduct.
              The trial court stated the uncharged sexual offense (statutory rape), and the
charged sexual offenses (forcible rape), were “quite distinct” and inquired of the
prosecutor the relevance of the uncharged sexual offense. Relying on Evidence Code
section 1108’s plain language, the prosecutor argued the statute contemplates the
admissibility of evidence that demonstrates a propensity to commit unlawful sexual
conduct and the Legislature included statutory rape, section 261.5, in that statutory
scheme. The prosecutor asserted Evidence Code section 1108 does not include a
similarity requirement. The prosecutor added the uncharged sexual offense was not
unduly prejudicial because it did not involve force. The court and the prosecutor
continued their discussion of the issue of whether similarity is required. The court took
the matter under submission.




                                             7
              The next day, the trial court explained that it had conducted the appropriate
weighing analysis and considered the differences between the uncharged sexual offenses
and the charged sexual offenses. The court ruled the 2003 conviction was admissible
pursuant to Evidence Code section 1108 because it demonstrates Kelly has a propensity
“to commit illegal sexual acts.” The court reasoned there is a difference in elements
between the uncharged sexual offense, section 261.5, and the charged sexual offenses,
particularly section 286, but “there is a demonstration on [Kelly’s] part because of the
similarity of those crimes for a propensity to commit illegal sexual acts.” Relying on
Evidence Code section 352, the court stated however the prosecutor would only be
permitted to introduce the 2003 conviction and not the 1997 conviction. After a brief
discussion concerning how the evidence would be presented to the jury, defense counsel
suggested a stipulation, which the prosecutor agreed to.
              At trial, Michelle testified that in November 2005 she pled guilty to lying
under oath to receive financial and welfare aid in the amount of $15,121.
              The parties stipulated Kelly’s DNA was found on sperm and non-sperm
fractions of Michelle’s anal area. The parties stipulated Kelly’s DNA was found on a
sperm fraction of Elaina’s internal rectal area. The parties also stipulated that in October
2003, Kelly was convicted of unlawful sexual intercourse with a minor that occurred in
July 2003. The trial court stated: “Ladies and gentlemen, I once again want to give you a
limiting instruction. This additional information you received with regard to an
uncharged sex offense that has just been read by stipulation that . . . Kelly has a prior
offense for unlawful sex with a minor, that’s to be limited in your use. [¶] The law
allows you to use it if you find it to be true to assist you in making decisions. You cannot
find him guilty simply because he has a prior conviction of some other charge. It may
provide you some evidence you can choose to ignore; you don’t have to use it
whatsoever. [¶] I’ll give a specific limit[ing] instruction on it. You need to understand
it’s just a limited piece of information that you consider with all other information in the

                                              8
case if you feel it provides any weight to you for any reason whatsoever. [¶] So please
know it’s not intended to demonstrate that . . . Kelly has a bad character or anything of
that nature. Please accept it. It’s just another piece you can use if you feel it’s worth
anything to you. So keep it in its limited place.”
              There was also evidence Kelly admitted he was convicted of a theft related
offense involving dishonesty in 2000.
              Kelly testified on his own behalf. Kelly admitted he sought the services of
prostitutes on many occasions. With respect to Michelle, he thought she was a prostitute
because she was sitting at a bus stop late at night and the buses were not running. He said
Michelle initiated the contact by tapping on his window and getting into his car. Kelly
asked her if she wanted to go on a date, and she said yes for $30, although specific acts
were not discussed. Kelly noticed she did not have shoes and appeared to be high. Kelly
drove to a motel where he knew someone to get her shoes but was unsuccessful; he did
not lock her in the car. Kelly testified he drove to a park, which is where he commonly
took prostitutes. When they got to the park, Michelle willingly walked to a secluded area
of the park with him. He removed Michelle’s pants and put on a condom. Kelly said she
did not object when he put his penis in her anus, but the condom ripped and there was
“pre cum” on his penis and in the condom; he did not ejaculate. Kelly claimed he
stopped because he did not have another condom. Michelle demanded the money, Kelly
refused, and Michelle got angry and left.
              As to Elaina, Kelly said he was with his brother when he saw Elaina talking
to three Hispanic men. Kelly said she was about to get into their car when he called to
her. Kelly asked her what she was doing that evening, and after Elaina said she had
gotten in a fight with her boyfriend, he asked her if she wanted to “kick it” with him. She
agreed if he would take her home later. Kelly’s brother moved to the back seat, and
Elaina got into the front seat. Kelly went to 7-Eleven for cigarettes, took his brother
home, and drove to the same park he took Michelle. On the way to the park, Kelly asked

                                              9
and Elaina agreed to have sexual intercourse with him. Kelly claimed Elaina never
objected or asked to leave. After they listened to music, Kelly unzipped his pants and
Elaina performed oral sex on him and swallowed his ejaculate. They walked to a bench
in the park and Kelly removed her clothes. Kelly had anal intercourse with Elaina
because he did not want to get her pregnant. He claimed she did not object. Kelly
removed his penis from her anus and asked her if she preferred anal intercourse or
vaginal intercourse, and Elaina said “it doesn’t matter.” Kelly had anal intercourse with
Elaina and ejaculated in her anus. Kelly testified that as they walked back to the car,
Elaina talked about being together and having kids. Kelly thought she was “a little
defective.” Elaina asked Kelly to take her home but he offered to take her to a 7-Eleven
and give her money for a taxi. When they arrived, Elaina, who was upset, got out,
slammed the door, and walked into the store. Kelly testified he never forced Michelle or
Elaina to engage in any sexual acts with him.
              After closing argument, the trial court instructed the jury with
CALCRIM No. 1191, “Evidence of Uncharged Sex Offense,” and CALCRIM No. 1190,
“Other Evidence not Required to Support Testimony in Sex Offense Case.”
              CALCRIM No. 1191 provided as follows: “The People presented evidence
that [Kelly] committed the crime of . . . [section] 261.5 that was not charged in this case.
This crime is defined for you in these instructions. [¶] You may consider this evidence
only if the People have proved by a preponderance of the evidence that [Kelly] in fact
committed the uncharged offense. Proof by a preponderance of the evidence is a
different burden of proof from proof beyond a reasonable doubt. A fact is proved by a
preponderance of the evidence if you conclude that it is more likely than not that the fact
is true. [¶] If the People have not met this burden of proof, you must disregard this
evidence entirely. [¶] If you decide that [Kelly] committed the uncharged offense, you
may, but are not required to, conclude from that evidence that [Kelly] was disposed or
inclined to commit sexual offenses, and based on that decision, also conclude that [Kelly]

                                             10
was likely to commit [f]orcible [s]odomy [section] 286[, subdivision] (c)(2) and/or
[f]orcible [o]ral [c]opulation [section] 288a[, subdivision] (c)(2) as charged here. If you
conclude that [Kelly] committed the uncharged offense, that conclusion is only one fact
to consider along with all the other evidence. It is not sufficient by itself to prove that
[Kelly] is guilty of [f]orcible [s]odomy [section] 286[, subdivision] (c)(2) and/or
[f]orcible [o]ral [c]opulation [section] 288a[, subdivision] (c)(2). The People must still
prove each charge beyond a reasonable doubt.”
              CALCRIM No. 1190 stated as follows: “Conviction of a sexual assault
crime may be based on the testimony of a complaining witness alone.” The court also
instructed the jury with CALCRIM No. 301 as follows: “The testimony of only one
witness can prove any fact. Before you conclude that the testimony of one witness
proves a fact, you should carefully review all the evidence.”
              A jury convicted Kelly of counts 1, 2, 3, and 5, and found true the
allegations with respect to counts 2, 3, and 5. The jury acquitted Kelly of count 4 but
convicted him of the lesser included offense of kidnapping (§ 207, subd. (a)).
              The trial court sentenced Kelly to 100 years to life plus a determinate term
of 20 years as follows: count 2-50 years to life and five years for the movement of victim
enhancement; count 5-50 years to life and five years for the movement of victim
enhancement; count 4-the middle term of five years; and the prior serious felony
conviction-five years. The court imposed and stayed the sentence on count 1, and ran the
sentence on count 3 concurrent to count 2.
                                       DISCUSSION
I. Evidence Code section 1108
              Kelly argues the trial court erred when it admitted evidence of his 2003
uncharged sexual offense conviction because it lacked probative value and was unduly
prejudicial. Not so.



                                              11
              Evidence of an uncharged offense is generally inadmissible to prove
criminal disposition. (Evid. Code, § 1101, subd. (a); People v. Kipp (1998) 18 Cal.4th
349, 369.) Evidence Code section 1101, subdivision (b), however, allows the trial court
to admit “evidence that a person committed a crime . . . or other act when relevant to
prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge,
identity, absence of mistake or accident, or 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) other than his or her disposition to commit such an
act.”
              As relevant here, Evidence Code section 1108, subdivision (a), states, “In a
criminal action in which the defendant is accused of a sexual offense, evidence of the
defendant’s commission of another sexual offense or offenses is not made inadmissible
by [Evidence Code] [s]ection 1101, if the evidence is not inadmissible pursuant to
[Evidence Code] [s]ection 352.” (Italics added.) Evidence Code section 1108,
subdivision (d)(1), defines “‘sexual offense’” as “a crime under the law of a state or of
the United States that involved any of the following . . . .” (Italics added.) One of those
crimes is unlawful sexual intercourse with a minor (§ 261.5, subd. (a)). (Evid. Code,
§ 1108, subd. (d)(1)(A).)
              Evidence Code section 352, however, authorizes a trial court to exclude
prior sexual offenses evidence offered pursuant to Evidence Code section 1108.
Evidence Code section 352 provides: “The court in its discretion may 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.”
              “The two crucial components of [Evidence Code] section 352 are
‘discretion,’ because the trial court’s resolution of such matters is entitled to deference,
and ‘undue prejudice,’ because the ultimate object of the [Evidence Code] section 352

                                              12
weighing process is a fair trial.” (Harris, supra, 60 Cal.App.4th at p. 736.) We are
mindful that “‘“[t]he prejudice which [Evidence Code section 352] is designed to avoid is
not the prejudice or damage to a defense that naturally flows from relevant, highly
probative evidence.” [Citations.] “Rather, the statute uses the word in its etymological
sense of ‘prejudicing’ a person or cause on the basis of extraneous factors.”’ [Citation.]
Painting a person faithfully is not, of itself, unfair.” (Harris, supra, 60 Cal.App.4th at
p. 737.) We review the trial court’s admission of evidence pursuant to Evidence Code
sections 1108 and 352 for an abuse of discretion. (People v. Wesson (2006)
138 Cal.App.4th 959, 969.)
              In Harris, supra, 60 Cal.App.4th at pages 737 to 741, the court articulated
the following factors to determine whether evidence of prior sexual acts was properly
admitted pursuant to Evidence Code section 1108: (1) the probative value of the
evidence; (2) the inflammatory nature of the evidence; (3) the possibility of confusion of
the issues; (4) the amount of time involved in introducing and refuting the evidence of
uncharged offenses; and (5) remoteness in time of the uncharged offenses.
Probative Value
              Kelly argues evidence of his 2003 conviction for unlawful sexual
intercourse with a minor had little if any probative value to the charged offenses because
the 2003 conviction is not sufficiently similar to the charged offenses. We disagree.
              Harris, supra, 60 Cal.App.4th at page 740, concerned Evidence Code
section 1108 and whether evidence of an uncharged violent sexual attack was admissible
in a case where defendant was charged with non-violent sexual offenses involving a
breach of trust. The court stated, “Although this is not a[n] [Evidence Code]
section 1101 case, the trial court properly took into consideration the degree of similarity
of the prior and current offenses, as similarity would tend to bolster the probative force of
the evidence.” (Harris, supra, 60 Cal.App.4th at p. 740.) Disagreeing with the trial



                                             13
court, the court of appeal concluded there was no meaningful similarity between the
uncharged sexual offense and the charged offenses. (Id. at pp. 740-741.)
             Here, the trial court did not abuse its discretion in admitting evidence of
Kelly’s 2003 conviction for unlawful sexual intercourse with a minor. The court properly
weighed the probative value of the evidence against its prejudice and concluded its
admission was not unduly prejudicial. Although the uncharged sexual offense was
statutory rape and did not involve force, evidence Kelly engaged in unlawful sexual
intercourse with a minor does have some relevance in assessing whether he committed a
slightly different but equally unlawful sexual offense, forcible rape. Evidence Kelly
preyed on a young woman and took advantage of her had probative value in determining
whether Kelly preyed on adult women and took advantage of them. The uncharged 2003
conviction was no more inflammatory than the charged offenses because it did not
include any force or violence. Contrary to Kelly’s assertion otherwise, this does not
mean the 2003 conviction bore no similarity to the charged offenses. The 2003
conviction was sufficiently similar but not more inflammatory. There is no likelihood the
jury would confuse the issue because Kelly suffered a conviction from his 2003 conduct
and the jury was not required to determine whether the conduct occurred. (People v.
Branch (2001) 91 Cal.App.4th 274, 284.) Admission of the 2003 conviction did not
consume an undue amount of time as it was admitted by stipulation. Finally, the 2003
conviction was not too remote because the conduct occurred the month between the time
he assaulted Michelle and Elaina. Therefore, the trial court properly admitted evidence
Kelly suffered a 2003 conviction for unlawful sexual intercourse with a minor pursuant to
Evidence Code section 1108.
Prejudice
             Because we have concluded the trial court properly admitted Kelly’s 2003
conviction for unlawful sexual intercourse with a minor, we need not address his claim he
was prejudiced by its admission. Nonetheless, he was not prejudiced because it was not

                                            14
reasonably probable there would have been a different result had the court not admitted
the 2003 conviction—the evidence of Kelly’s guilt was overwhelming. (People v.
Boyette (2002) 29 Cal.4th 381, 427-428.) Similarly, our conclusion also renders
meritless his assertion admission of the evidence violated his federal constitutional rights.
(People v. Samuels (2005) 36 Cal.4th 96, 114 [violations state evidentiary rules do not
constitute federal constitutional error].)
II. Jury Instructions
A. CALCRIM No. 1191
              Acknowledging he failed to object to the instruction and the case authority
weighs against his claim but raising the issue to preserve it for federal review, Kelly
contends the trial court erred in instructing the jury with CALCRIM No. 1191 because it
violated his federal constitutional rights. We disagree.
              In People v. Reliford (2003) 29 Cal.4th 1007, 1012-1016 (Reliford), our
Supreme Court upheld the constitutionality of a substantially identical instruction, the
1999 version of CALJIC No. 2.50.01, rejecting arguments similar to those raised by
Kelly here. (People v. Loy (2011) 52 Cal.4th 46, 71-74) Additionally, other courts,
citing Reliford, have rejected identical challenges to CALCRIM No. 1191. (People v.
Miramontes (2010) 189 Cal.App.4th 1085, 1103; People v. Wilson (2008)
166 Cal.App.4th 1034, 1049; People v. Cromp (2007) 153 Cal.App.4th 476, 480; People
v. Schanbel (2007) 150 Cal.App.4th 83.) Likewise, we reject it here. Kelly’s assertion
those cases do not address the issue of whether the instruction is internally inconsistent is
forfeited for failing to object on the specific grounds now asserted on appeal. (People v.
Geier (2007) 41 Cal.4th 555, 590, overruled on another ground in Melendez-Diaz v.
Massachusetts (2009) 557 U.S. 305, .)
B. CALCRIM No. 1190
              Again acknowledging he failed to object and the weight of case authority is
against him but raising the issue to preserve it for future review, Kelly claims the trial

                                             15
court erred when it instructed the jury with CALCRIM Nos. 1190 and 301 because they
violated his federal constitutional rights. Again, we disagree.
              The substantively similar predecessor CALJIC instructions to
CALCRIM Nos. 1190 and 301 have been found to be legally correct. As stated in People
v. Gammage (1992) 2 Cal.4th 693, 700 (Gammage): “It is not disputed that both
CALJIC No. 2.27 [the predecessor of CALCRIM No. 301] and [CALJIC] No. 10.60 [the
predecessor of CALCRIM No. 1190], considered separately, correctly state the law. ‘In
California conviction of a sex crime may be sustained upon the uncorroborated testimony
of the prosecutrix.’ [Citation.] We specifically upheld an instruction equivalent to
CALJIC No. 10.60 as long ago as 1912. [Citation.]” After explaining the two
instructions “overlap to some extent,” the court opined each instruction “has a different
focus.” (Gammage, supra, 2 Cal.4th at p. 700.) The court stated: “CALJIC No. 2.27
focuses on how the jury should evaluate a fact (or at least a fact required to be established
by the prosecution) proved solely by the testimony of a single witness. It is given with
other instructions advising the jury how to engage in the fact-finding process.
CALJIC No. 10.60, on the other hand, declares a substantive rule of law, that the
testimony of the complaining witness need not be corroborated. It is given with other
instructions on the legal elements of the charged crimes.” (Gammage, supra, 2 Cal.4th
693 at pp. 700-701.) The court concluded a trial court may give both instructions in
sexual offense cases. (Id. at p. 702.) Despite Kelly’s claim “Gammage is flawed, for
several reasons[,]” we are bound to follow it. (Auto Equity Sales, Inc. v. Superior Court
(1962) 57 Cal.2d 450, 455.)
III. Sentencing
              Kelly raises two sentencing contentions. Our resolution to the first renders
the second moot.




                                             16
A. Section 654
              Kelly argues the trial court erred in failing to stay the sentence on count 4
because he committed count 4, kidnapping, in furtherance of and a means of committing
count 5, sodomy by force. We agree.
              Section 654 provides “[a]n 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.”
              Section 654 proscribes multiple punishments for a course of conduct that
violates more than one statute but constitutes an indivisible transaction. (People v.
Beamon (1973) 8 Cal.3d 625, 637.) Whether a course of conduct is indivisible under
section 654 depends on the intent and objective of the actor. (Neal v. State of California
(1960) 55 Cal.2d 11, 19 (Neal), overruled in part in People v. Correa (2012) 54 Cal.4th
331.) “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, supra, 55
Cal.2d at p. 19.) Therefore, to permit multiple punishments, the evidence must support a
finding the defendant formed a separate intent and objective for each offense for which
he was sentenced. (Ibid.) A “defendant’s intent and objective are factual questions for
the trial court” (People v. Adams (1982) 137 Cal.App.3d 346, 355), which may properly
infer a defendant’s intent from the circumstances surrounding his act.
              The standard of review for defendant’s appeal is substantial evidence.
(People v. Blake (1998) 68 Cal.App.4th 509, 512.) Under this standard, we review the
entire record in the light most favorable to the prosecution to determine whether it
contains evidence that is reasonable, credible, and of solid value, from which a rational
trier of fact could find the facts required to support its decision beyond a reasonable
doubt. (People v. Kipp (2001) 26 Cal.4th 1100, 1128.) In this analysis, we must presume
the existence of every fact the court could reasonably deduce from the evidence. (People

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v. Jones (2002) 103 Cal.App.4th 1139, 1143.) The trial court’s determination cannot be
reversed on appeal unless it is unsupported by evidence presented at trial. (People v.
Ferguson (1969) 1 Cal.App.3d 68, 75.)
              In People v. Latimer (1993) 5 Cal.4th 1203 (Latimer), the California
Supreme Court held multiple punishment for kidnapping and rape is barred by
section 654, where the sole purpose of the kidnapping was to facilitate the rape.
(Latimer, supra, 5 Cal.4th at p. 1216.) The court explained where the kidnapping is part
of a continuous course of conduct motivated by one objective, rape, the
kidnapping—even if completed before the rape was committed—will be treated as
incidental to and a means of committing the rape precluding punishment for both
offenses. (Ibid.) Therefore, the court concluded where a defendant perpetrates both
kidnapping for the purpose of committing rape and rape, imposition of separate sentences
for both offenses is prohibited under section 654. (Latimer, supra, 5 Cal.4th at p. 1216.).
              Here, the evidence demonstrated that from the outset Kelly intended to
have a sexual encounter with Michelle and thought she was a prostitute. After they left
the motel and Michelle begged Kelly to let her go and she spurned his advances, Kelly
refused and kept driving. To the extent this encounter could be characterized as one
between a prostitute and her client ended at this point. Kelly forcibly detained Michelle
and drove her to the park knowing she wanted to be let go. Like Latimer, based on the
evidence Kelly intended to have a sexual encounter with Michelle and he kidnapped
Michelle, the evidence established the kidnapping had no objective apart from facilitating
the rape. The fact the jury convicted Kelly of kidnapping, the lesser included offense of
kidnapping to commit a sex offense, does not alter our conclusion. Because we conclude
the trial court should have stayed the sentence on count 4, we need not address Kelly’s
alternative claim the proper term on the consecutive sentence on count 4 is one-third of
the middle term.



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                                     DISPOSITION
             We affirm the convictions but modify the judgment as follows:
The five-year term imposed on count 4, kidnapping, is ordered stayed pursuant to
section 654. The clerk of the superior court is directed to prepare an amended abstract of
judgment consistent with this opinion and forward it to the Department of Corrections
and Rehabilitation, Division of Adult Operations.




                                                 O’LEARY, P. J.

WE CONCUR:



ARONSON, J.



IKOLA, J.




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