Filed 6/18/26 P. v. Cota CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B339067
(Super. Ct. No. 21F-08772)
Plaintiff and Respondent, (San Luis Obispo County)
v.
MARCO ANTONIO COTA, JR.,
Defendant and Appellant.
Marco Antonio Cota, Jr., appeals from the judgment after a
jury convicted him of the first degree murder of Rick Lee Fowler
(Pen. Code,1 §§ 187, subd. (a), 189, subd. (a); count 1), and sexual
penetration of human remains (Health & Saf. Code, § 7052, subd.
(a); count 2). In a bifurcated proceeding, the trial court found
Cota had suffered three prior serious felony convictions (“nickel
priors”) (§ 667, subd. (a)(1)) and three “strike” offenses pursuant
to the “Three Strikes” law (§§ 667, subds. (d) & (e), 1170.12,
subds. (b) & (c)).
1 All undesignated statutory references are to the Penal
Code.
The trial court sentenced Cota to 75 years to life for count 1
and a determinate prison term of 21 years (six years for count 2
plus three “nickel” priors). The court ordered Cota to register as
a sex offender (§ 290.006).
Cota contends: (1) substantial evidence does not support
first degree murder, (2) the trial court erred when it failed to
instruct the jury regarding specific intent for count 2, (3) the trial
court abused its discretion when it imposed the registration
requirement, and (4) the sentence for count 2 should be stayed
pursuant to section 654. We reverse count 2 and strike the
registration requirement, and in all other respects affirm.
FACTUAL AND PROCEDURAL HISTORY
Police officers found Fowler dead in the bottom of a creek
bed near some homeless camps. His body was lying face down
with his jacket pulled up, his pants pulled down, and his buttocks
exposed. He had head injuries significant enough to distort the
shape of his head. Sticks were protruding from his eyes, neck,
and anus. A large rock with blood on it was found nearby.
Police saw Cota standing nearby. His hands were red and
swollen with a fresh abrasion on his left hand.
An autopsy determined that Fowler’s skull was fractured in
several places with bleeding on his brain. He had broken ribs
and a ruptured spleen. The stick that penetrated his anus went
through his rectum and into his pelvis. The cause of death was
blunt head and neck trauma that was “the result of multiple
severe blows . . . strong enough to crush the skull, and break
ribs.” The head injuries were caused by being struck with an
object such as a rock or hitting his head on a hard surface.
A pathologist concluded that Fowler was alive when the
stick was put into his neck, based on the large amount of bleeding
in that area. But the stick in the rectum was inserted after death
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or during the final stages of the dying process.
Cota’s DNA was found on the stick extracted from Fowler’s
rectum. Fowler’s blood was found on Cota’s shirt and jeans.
Cota’s statements to police
Cota told police he had been sleeping at the campsite for
several days. A man known as Cowboy had warned him about a
“short dude” who was “a real tussle” and would “stab the fuck out
of you.”
Fowler approached Cota two days before the murder. Cota
immediately knew Fowler was the person Cowboy had warned
him about. Fowler told Cota, “Hey dude, don’t go back there[.]
Something’s happening back there. They don’t want you back
there.” But Cota just wanted a place to sleep, and believed
“[n]obody’s gonna push me out.” Cota “knew [he] was going to
run into [Fowler] again” and “knew that he was going to be a
problem.”
Cota told police, “I’m angry because of what the fuckin’
system is doing to me.” He said that “this system is going to
make me hurt somebody or kill somebody.” He said, “[P]eople are
being put in my path for me to fuck up and to do away with
myself.” He also said, “Somebody put [Fowler] in my path.”
The night before the murder, Cota saw a 16-year-old girl
named Hope in another tent. She was naked and crying. Cota
had heard that “some creep was walking around” the area. Cota
believed that “someone was trying to . . . take advantage” of
Hope.
Saturday evening, Cota returned to the camp to sleep.
Fowler said, “Hey man, I thought I told you not to stay—not to
come back here anymore.” Cota told police that Fowler then
attacked him, and “the fight was on.”
Cota said that during the fight, Fowler said, “all right,
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man,” and Cota knew Fowler was about to tell him “who had put
him in my path and who put him up to it.” But Cota was angry
and it was “too . . . late for that.” Cota “knew [Fowler] wasn’t
going to stop.” Cota decided, “There’s only one way it ends, I die
or he dies.”
Cota said he put sticks in the victim to “[s]how
motherfuckers what evil looks like. You guys wanted to see it.”
He said, “You guys are going to see it, what ugly is, what this
system is doing to me.” He said he put sticks in Fowler’s eyes
“[f]or whatever he’s seen in his life” and “because of the evil that
he’s seen.” Police noticed that Cota had a scar on his neck, and
he agreed he “struck [Fowler] in the neck because that’s what
happened to [Cota] back in the day.” Cota added he was “just
angry.” He punched Fowler “a lot of times,” so much that his own
hand hurt. Cota said, “I had his hands around his neck[,] and I
choked him out with his own hands.” He denied smashing
Fowler’s skull with a rock.
When asked about the stick in the victim’s rectum, Cota
said, “Dude, because he was telling me to. [‘]Fuck you. Fuck
you.’ Alright motherfucker, now you’ve been fucked.” He
inserted the stick by pulling Fowler’s pants down. Fowler was
“already dead.”
Cota said that after the death he was done “raging” and
was “just cool.” He thought he probably smoked some meth to
“relax.” He went to a coffee shop in the morning, waited outside
until it opened, got a cup of coffee, and then went “cruising
downtown.”
Sentencing
At sentencing, Cota expressed his displeasure with the sex
registration requirement and stated Fowler “was sexually
molesting a 16 year old girl . . . back there.”
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DISCUSSION
Substantial evidence of premeditated murder
Cota does not dispute that he killed Fowler. But he
contends the first degree finding is not supported by substantial
evidence. We disagree.
“[W]e review the entire record in the light most favorable to
the judgment to determine whether it contains evidence that is
reasonable, credible, and of solid value from which a reasonable
trier of fact could find the defendant guilty beyond a reasonable
doubt. . . . ‘[I]t is the exclusive province of the trial judge or jury
to determine the credibility of a witness and the truth or falsity of
the facts upon which a determination depends.’ ” (People v.
Elliott (2012) 53 Cal.4th 535, 585.) We must affirm the judgment
if it is supported by substantial evidence, which “ ‘includes
circumstantial evidence and any reasonable inferences drawn
from that evidence.’ ” (People v. Clark (2011) 52 Cal.4th 856,
942–943.) The substantial evidence test also applies to the intent
element of the crime. (Id. at pp. 945–946.)
A willful, deliberate, and premeditated murder committed
with intent to kill is murder of the first degree. (§ 189, subd. (a);
People v. Sanchez (2001) 26 Cal.4th 834, 849.) “ ‘Deliberation’
refers to careful weighing of considerations in forming a course of
action; ‘premeditation’ means thought over in advance.
[Citations.] ‘The process of premeditation and deliberation does
not require any extended period of time.’ ” (People v. Koontz
(2002) 27 Cal.4th 1041, 1080.)
In People v. Anderson (1968) 70 Cal.2d 15, 26–27, as
summarized in People v. Brooks (2017) 3 Cal.5th 1, 58–59, our
Supreme Court identified the type of evidence it “ ‘ “typically” ’ ”
found sufficient to sustain a finding of premeditation and
deliberation: “(1) evidence of planning activity prior to the killing,
5
(2) evidence of the defendant’s prior relationship with the victim
from which the jury could reasonably infer a motive to kill, and
(3) evidence that the manner in which the defendant carried out
the killing ‘was so particular and exacting that the defendant
must have intentionally killed according to a “preconceived
design” to take his victim’s life in a particular way for a
“reason.” ’ ”
The evidence here showed that Cota and Fowler had a
confrontation days before the murder in which Fowler told Cota
not to return to the homeless camp. Cota immediately concluded
that Fowler was the dangerous person Cowboy had described.
Cota believed he was “going to run into him again,” and he “was
going to be a problem.” The jury could conclude that during the
period between that initial confrontation and the murder, Cota
had “ample time to reflect upon” his actions, and that he
deliberated about how to eliminate the person he thought had
been put in his “path” to harm him. (People v. Solomon (2010) 49
Cal.4th 792, 814.)
The multiple steps Cota took to kill Fowler, including
hitting with his fists, choking him, smashing his skull with a
rock, and putting sticks into him, also “suggests defendant had
ample opportunity to consider the deadly consequences of his
actions.” (People v. Stitely (2005) 35 Cal.4th 514, 544.) “[T]he use
of multiple weapons . . . reflected deliberation and premeditation
rather than the result of a rash, impulsive act.” (People v. Combs
(2004) 34 Cal.4th 821, 851.)
Cota’s statements supported the conclusion that jamming
sticks into Fowler’s eyes, neck, and rectum was “ ‘for a “reason” ’ ”
(People v. Brooks, supra, 3 Cal.5th at p. 59): to send a message
about Cota’s perceived mistreatment by “the system.” “[T]he law
does not require that a first degree murderer have a ‘rational’
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motive for killing. Anger at the way the victim talked to him
[citation] or any motive, ‘shallow and distorted but, to the
perpetrator, genuine’ may be sufficient.” (People v. Lunafelix
(1985) 168 Cal.App.3d 97, 102.)
Finally, Cota’s actions after the murder—smoking
methamphetamine to “relax,” followed by waiting for a coffee
shop to open and “cruising downtown”—were evidence he “had
desired that outcome” of killing Fowler and support
premeditation and deliberation. (People v. Williams (2018) 23
Cal.App.5th 396, 411.) We conclude that substantial evidence
supported the verdict of first degree murder.
Jury instructions for penetration of human remains
Cota contends the trial court prejudicially erred by not
instructing the jury on the specific intent element for count 2,
sexual penetration of human remains. We agree.
Trial courts have a sua sponte duty to instruct on every
element of charged offenses. (People v. Mil (2012) 53 Cal.4th 400,
409.) “[I]nstructions completely removing the issue of intent from
the jury’s consideration may constitute a denial of federal due
process principles.” (People v. Lee (1987) 43 Cal.3d 666, 673,
italics omitted.) “[W]e review independently the legal adequacy
of a jury instruction.” (People v. Cole (2004) 33 Cal.4th 1158,
1211.)
Health and Safety Code section 7052, subdivision (a)
prohibits committing “an act of sexual penetration on . . . remains
known to be human.” “ ‘Sexual penetration’ ” is defined as
including “the unlawful penetration of the . . . anus, however
slight, by any part of a person’s body or other object . . . for the
purpose of sexual arousal, gratification, or abuse.” (Health & Saf.
Code, § 7052, subd. (b)(1), italics added.)
The court instructed the jury that count 2 required “general
7
criminal intent,” which is established when the defendant
“intentionally does a prohibited act.” (CALCRIM No. 252.) This
instruction was erroneous. Sexual penetration is a specific intent
crime because it “require[s] the act of penetration ‘to be done with
the intent to gain sexual arousal or gratification or to inflict
abuse on the victim.’ ” (People v. ZarateCastillo (2016) 244
Cal.App.4th 1161, 1167 [construing equivalent language of § 289,
subd. (k)(1)].)
In addition, the jury instruction defining Health and Safety
Code section 7052 was incomplete. It included the statutory
language for the physical actions required for “sexual
penetration”2 but did not include the requirement that the
penetration be “for the purpose of sexual arousal, gratification, or
abuse.” (Health & Saf. Code, § 7052, subd. (b)(1).) Nor did the
prosecutor’s closing argument acknowledge the intent
requirement for that count. Specific intent is not presumed from
the doing of the unlawful act. (Evid. Code, § 668.)
The Attorney General correctly concedes the instructions
were erroneous. But we disagree with the Attorney General’s
contention that the error was harmless.
We assess the prejudicial effect of the failure to instruct
regarding the required element of mental state pursuant to
Chapman v. California (1967) 386 U.S. 18, 24. (People v. Mil,
supra, 53 Cal.4th at p. 409.) We must reverse unless “it appears
beyond a reasonable doubt that the error did not contribute to the
jury’s verdict.” (Id. at p. 417.) “[I]nstructional error is harmless
‘where a reviewing court concludes beyond a reasonable doubt
2 The jury instructions did not give the option of the other
means of violating Health and Safety Code section 7052, i.e.,
“willfully mutilates, disinters, removes from the place of
interment, . . . or has sexual contact with” human remains.
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that the omitted element was uncontested and supported by
overwhelming evidence,’ ” but not where “ ‘the record contains
evidence that could rationally lead to a contrary finding with
respect to the omitted element.’ ” (Ibid.)
We cannot conclude beyond a reasonable doubt that the
evidence of sexual arousal, sexual gratification, or sexual abuse
was either uncontested or overwhelming. “ ‘Sexual’ is commonly
understood to mean ‘of or relating to the sphere of behavior
associated with libidinal gratification.’ ” (United States v. Mateen
(6th Cir. 2015) 806 F.3d 857, 861, quoting Webster’s 3d New
Internat. Dict. (1981).) Cota explained that Fowler called him by
an ethnic epithet and said “[f]uck you,” which a jury could
reasonably interpret as “a statement or expression of hostility,
confrontation, or rejection” rather than a sexual reference.
(Oxford English Dict. Online (3d. ed. 2026).) A jury could also
reasonably interpret Cota’s response that “now you’ve been
fucked” to mean “[t]o damage, ruin, . . . destroy, [or] put an end
to” rather than sexual intercourse or sexual arousal or
gratification. (Ibid.)
Nor is there overwhelming evidence of intent to sexually
abuse to conclude the instructional error here is harmless beyond
a reasonable doubt. “Abuse” has been defined as “the
mistreatment of the person ‘in a harmful, injurious, or offensive
way,’ ” including “causing emotional harm by the use of offensive
conduct . . . for example, conduct intended to insult or humiliate a
person.” (In re Shannon T. (2006) 144 Cal.App.4th 618, 622
[sexual battery].) In the context of sexual penetration of a living
person, “ ‘[t]o “abuse” someone is to hurt them by treating them
badly, or to cause pain or injury through mistreatment.’ ” (People
v. White (1986) 179 Cal.App.3d 193, 205 (White).)
White involved a 17-month-old victim and the defendant’s
9
conduct caused “bruising on [the victim’s] buttocks and . . . her
anus was stretched and puckered.” (White, supra, 179
Cal.App.3d at p. 196.) Our colleagues in the Fifth District
concluded that when “ ‘such mistreatment is directed to a victim’s
sexual or “private” parts, the resulting conduct would certainly be
considered sexual abuse.’ ” (Id. at p. 205.) They reasoned that
this is true “ ‘even though the perpetrator may not necessarily
achieve any sexual arousal or gratification whatsoever.’ ” (Ibid.)
“The term ‘abuse’ imports an intent to injure or hurt badly, not
lewdness. . . . [I]t is the nature of the act that renders the abuse
‘sexual’ and not the motivations of the perpetrator.” (Id. at pp.
205–206; accord, People v. McCoy (2013) 215 Cal.App.4th 1510,
1541.)
While a body moments after death may not be able to feel
pain or humiliation, the Legislature acknowledged it is possible
to sexually abuse a deceased victim by including “abuse” in the
definition of sexual penetration of human remains. (Health &
Saf. Code, § 7052, subd. (b)(1).) The legislation was enacted to
avoid “disrespect for the deceased” and the suffering of family
members. (Assem. Floor Analysis, 3d reading analysis of Assem.
Bill No. 1493 (2003–2004 Reg. Sess.) as amended April 29, 2003,
p. 2.)
We have found no case that defines sexual abuse of a
deceased victim under Health and Safety Code section 7052,
subdivision (b)(1). If properly instructed, the jury could have
found that Cota specifically intended to sexually abuse Fowler by
“injur[ing] or hurt[ing him] badly.” (White, supra, 179
Cal.App.3d at p. 205.) But alternatively, the jury could conclude
that Cota’s insertion of the stick in Fowler’s anus was not based
on an intent to sexually abuse him. Given Cota’s statements to
police about his perceived mistreatment by the “system” and
10
because sticks were also protruding from Fowler’s eyes and neck,
the jury could reasonably conclude Cota’s conduct was intended
only to send a message to others about “the system.” Or the jury
could have concluded that Cota was “mentally unable to form the
specific intent for some reason, e.g., mental illness.” (People v.
Ngo (2014) 225 Cal.App.4th 126, 163 [sexual penetration under
§ 289].)
In our view, the instructional error is not harmless because
“the record contains evidence that could rationally lead to a
contrary finding with respect to the omitted element.” (Neder v.
United States (1999) 527 U.S. 1, 19.) Accordingly, we reverse the
conviction for count 2. Because sufficient evidence was presented
that could support a guilty verdict if the jury were properly
instructed, the People may retry Cota for count 2 on remand.
(People v. Hatch (2000) 22 Cal.4th 260, 271–272.)
Sex offender registration
Cota contends substantial evidence did not support the
trial court’s order that he register as a sex offender. We agree.
Section 290.006 requires a defendant to register as a sex
offender “if the court finds at the time of conviction or sentencing
that the person committed the offense as a result of sexual
compulsion or for purposes of sexual gratification.” (§ 290.006,
subd. (a).) Unlike Health and Safety Code section 7052, section
290.006 does not include sexual “abuse.”
We review imposition of a registration requirement
pursuant to section 290.006 for abuse of discretion. (People v.
Picklesimer (2010) 48 Cal.4th 330, 335.) “ ‘The trial court’s
findings of fact are reviewed for substantial evidence, its
conclusions of law are reviewed de novo, and its application of the
law to the facts is reversible only if arbitrary and capricious.’
[Citation.] A trial court abuses its discretion when its factual
11
findings are not supported by the evidence.” (People v. Thai
(2023) 90 Cal.App.5th 427, 433.)
Because we reverse count 2, we must determine whether
there was substantial evidence that the murder was sexually
motivated. The prosecutor did not assert that theory, and there
is no evidence to support it. Cota’s belief that “someone was
trying to . . . take advantage” of Hope, and his claim at
sentencing that Fowler had sexually molested a 16-year-old girl,
are not evidence that Cota committed the murder “as a result of
sexual compulsion or for purposes of sexual gratification.”
(§ 290.006, subd. (a).)
Nor does Cota’s conduct after the murder justify
registration. The trial court found that putting a stick in the
victim’s rectum was circumstantial evidence of sexual compulsion
and raised a reasonable inference of sexual gratification. The
court commented on the fact that Cota pulled down the victim’s
pants, placed the stick in the victim’s rectum, and left him
exposed. The court stated that the victim’s genitalia and anus
were exposed, but neither the photographs nor other evidence
establish that. The trial court also relied on Cota’s Static-99R
score of 4, which indicates a 9.2 percent chance of reoffending.
But that is not evidence that Cota committed the murder because
of “sexual compulsion” or for “sexual gratification.”
“Compulsion” has been defined as “an irresistible persistent
impulse to perform an act.” (Merriam-Webster Dict. Online
(2026); see People v. Jackson (1984) 152 Cal.App.3d 961, 965.)
There is no evidence here that either the murder or Cota’s act of
penetration were the product of an irresistible or persistent
sexual impulse. (Cf. People v. Eastman (2018) 26 Cal.App.5th
638, 643 [sexual compulsion supported by defendant repeatedly
photographing under women’s skirts].) Nor is there evidence that
12
Cota was motivated by a desire for sexual gratification. (See
United States v. Mateen, supra, 806 F.3d at p. 861 [sexual crime
if committed for “ ‘libidinal gratification’ ”].) Accordingly, the
registration requirement is stricken. If following remand Cota is
convicted of count 2, the court may reconsider the registration
requirement based on the evidence before it.
Section 654 stay
Based on our reversal of count 2, it is unnecessary to
determine whether the sentence for that count in addition to the
sentence for murder violated the multiple punishment
prohibition of section 654.
DISPOSITION
Appellant’s conviction on count 2 is reversed. The
registration requirement pursuant to section 290.006 is stricken.
On remand, the People may retry count 2. The clerk shall
prepare an amended abstract of judgment and forward a copy to
the Department of Corrections and Rehabilitation. In all other
respects, the judgment is affirmed.
NOT TO BE PUBLISHED.
BALTODANO, Acting P. J.
We concur:
CODY, J. MCKAIG, J.
Judge of Ventura County Superior Court, assigned by
the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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Timothy S. Covello, Judge
Superior Court County of San Luis Obispo
______________________________
Lori Nakaoka, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Jonathan J. Kline and Melanie Dorian, Deputy
Attorneys General, for Plaintiff and Respondent.