Filed 7/10/26 P. v. Gloede CA1/3
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
A173490
v.
JONATHAN CHRISTIAN GLOEDE, (Alameda County
Super. Ct. No. 20-CR-015734)
Defendant and Appellant.
Defendant Jonathan Christian Gloede appeals from a jury verdict
convicting him, in relevant part, of forcible rape, sexual penetration by
foreign object, forcible oral copulation, and attempted sodomy, together with
special allegations of simple and aggravated kidnapping as to those counts.
Gloede and the Attorney General agree that the trial court erred in
imposing an indeterminate sentence on the attempted sodomy conviction and
failed to properly calculate Gloede’s determinate sentence. Gloede also
contends insufficient evidence supports the kidnapping findings. We remand
for resentencing, but otherwise affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Gloede and the victim were engaged after dating for approximately
seven months. The victim lived with her four children, and Gloede would
spend the night at their apartment a few times per week.
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In November 2020, the victim went to pick up her children from their
father’s home after she and Gloede had dinner with friends. The victim
requested Gloede accompany her, but he was uninterested in doing so and
stayed at the victim’s apartment. During the drive, the victim and Gloede
argued by telephone about the cleanliness of her apartment. When the
victim arrived home with her children, Gloede had left to see a friend. The
victim called off their engagement and told Gloede not to return to her
apartment.
The following morning, the victim awoke to over 20 text messages from
Gloede. He asked her to pick him up from near the Pleasanton BART station
so he could get his belongings, and she agreed. When Gloede got into her
vehicle, he asked her “what the fuck [she] was doing,” became angry when
the victim continued to state the relationship was over, and tore the rear-
view mirror from the windshield. Gloede then escalated to punching the
dashboard and radio area, and stabbing the front air bag, door, radio, and
touch screen with a knife. When the victim stopped the vehicle on a side
street, Gloede hit her in the face and left eye and held the knife to her throat.
When he noticed she was not wearing her engagement ring, he attempted to
bite off her fingers.
The victim sought to calm down Gloede by telling him it was “okay” and
the damage to the car could be fixed. However, Gloede instructed the victim
to drive back to her apartment while threatening her with the knife. Upon
arriving, Gloede stated he was “definitely going to prison” and demanded she
go upstairs to her apartment with him. The victim did not feel she had a
choice. Gloede held the knife to her back while they walked, and he
physically assaulted her again in the elevator. One of her children opened
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the door for the victim and Gloede, and the victim instructed the child to
return to bed.
Gloede forced the victim into her bedroom, and she believed she was
“probably going to die.” The victim instructed another of her children, who
was sleeping in her room, to climb into bed in another room with one of his
siblings. After the child left, Gloede closed and locked the bedroom door, and
he informed the victim he had committed multiple felonies and was going to
rape and kill her. When the victim was slow to undress, Gloede ripped off her
shirt and removed the rest of her clothing.
Gloede proceeded to sexually assault the victim by inserting his fingers
into her vagina and anus, and his penis into her vagina. When he attempted
to sodomize the victim, she repeatedly told Gloede no and tried to push him
away. He then grabbed the victim’s hair and forced her to perform oral sex
on him. The victim stated she did not scream for help because she was
concerned Gloede would hurt her children.
After being trapped in her locked bedroom with Gloede for
approximately three hours, the victim managed to retrieve her phone and
texted her children to get dressed and go sit in the car. Gloede eventually
allowed the victim to leave the bedroom, and she drove to Gloede’s mother’s
house and informed her what had occurred.
Approximately four days after the attack, the victim informed the
police about the sexual assault. The victim was treated at the hospital,
where she informed a physician’s assistant about the physical and sexual
assault.
The Alameda County District Attorney charged Gloede by information
with forcible rape (Pen. Code, § 261, subd. (a)(2); count 1; all further statutory
references are to this code), sexual penetration by foreign object (§ 289,
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subd. (a)(1)(A); count 2), forcible oral copulation (§ 287, subd. (c)(2)(A); count
3), attempted sodomy by use of force (§§ 286, subd. (c)(2)(A), 664; count 4),
kidnapping to commit a sex crime (§ 209, subd. (b)(1); count 5), corporal
injury to relationship partner (§ 273.5, subd. (a); count 6), false imprisonment
by violence (§ 236; count 7), felony vandalism (§ 594, subd. (a); count 8), and
dissuading a witness from reporting a crime (§ 136.1, subd. (b)(1); count 9).
As relevant to this appeal, the information also alleged that Gloede had
engaged in simple and aggravated kidnapping of the victim in connection
with the sex offenses pled in counts 1 through 4 (§ 667.61, subds. (d)(2),
(e)(1)). The court dismissed counts 5 and 9, and Gloede pled guilty to counts
6 and 8.
At trial, Gloede admitted hitting the victim but denied any sexual
assault. Gloede stated he and the victim had communication issues, and the
evening before the assault they had a disagreement about the cleanliness of
her apartment. Gloede stated he went to a friend’s house and then called the
victim the following morning to get his belongings because he decided to end
their relationship. Gloede became upset when the victim accused him of
cheating, then hit her and the vehicle when he saw she was not wearing her
engagement ring. Gloede denied threatening the victim with a knife,
assaulting her in the elevator, boasting about committing felonies,
threatening rape, or sexually assaulting the victim.
Gloede was found guilty by a jury on the remaining counts, along with
the simple and aggravated kidnapping special circumstances on counts 1
through 4. The court sentenced Gloede to an indeterminate term of 25 years
to life in prison on counts 1 through 4, to be served consecutive to a
determinate term of two years four months in prison on counts 6 through 8.
Gloede timely appealed.
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DISCUSSION
On appeal, Gloede asserts the kidnapping special circumstance is not
supported by substantial evidence. He further asserts the trial court imposed
an improper sentence for the attempted sodomy conviction.
I. Standard of Review
In evaluating claims of insufficient evidence, we review the entire
record in the light most favorable to the judgment to determine whether it
discloses substantial evidence such that a reasonable jury could find the
defendant guilty beyond a reasonable doubt. (People v. Elliot (2005) 37
Cal.4th 453, 466.) We presume the existence of every fact supporting the
judgment that the jury reasonably could deduce from the evidence. (People v.
Ochoa (1993) 6 Cal.4th 1199, 1206.) A judgment will be reversed only if there
is no substantial evidence to support the verdict under any hypothesis.
(People v. Bolin (1998) 18 Cal.4th 297, 331.) We may not substitute our
judgment for that of the jury, reweigh the evidence, or reevaluate the
credibility of witnesses. (Ochoa, at p. 1206.)
II. The Kidnapping Special Circumstance
Gloede does not dispute on appeal the evidence that he forced the
victim from her vehicle to her apartment, led her to her bedroom, closed and
locked the door, and sexually assaulted her. Instead, Gloede contends that
the evidence is insufficient to establish that his movement of the victim
increased or substantially increased the risk of harm to her sufficient to
support either the aggravated or simple kidnapping special circumstance
findings. He is incorrect.
A. Relevant Law
The “One Strike” law (§ 667.61) requires an increased term for
convictions of certain sexual offenses if the defendant kidnapped the victim.
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In particular, if the defendant committed a simple kidnapping of the victim
under section 207, subdivision (a), the required term for the sexual offense is
15 years to life (§ 667.61, subds. (b), (e)(1)), whereas if the movement also
substantially increased the risk of harm to the victim, the required term is 25
years to life (§ 667.61, subds. (a), (d)(2)).
Under either simple or aggravated kidnapping, the asportation element
“requires that the movement be ‘ “more than that which is merely incidental
to the commission or attempted commission of [the associated crime].” ’ ”
(People v. Waqa (2023) 92 Cal.App.5th 565, 578 (Waqa).) Simple kidnapping
“requires that the defendant moved the victim ‘a “ ‘substantial distance,’ ” ’ ”
but no minimum distance is required. (Id. at pp. 577–578.) The aggravated
kidnapping circumstance, however, also requires that the movement
substantially increased the risk of harm to the victim beyond that inherent in
the underlying offense. (Id. at p. 578.) “ ‘[T]he increased risk may be of
either physical or psychological harm.’ ” (Ibid.) Accordingly, aggravated
kidnapping requires a two-part showing: (1) the movement was substantial in
character, and not merely incidental to the commission of the sex crime; and
(2) the movement substantially increased the risk of harm to the victim over
and above that level of risk necessarily inherent in the underlying offense.
(Id. at p. 579.)
B. Analysis
In finding true the simple and aggravated kidnapping special
circumstances, the jury was required to find that the victim’s movement was
not merely incidental to the sexual assault but that “the movement . . .
increase[d] ‘the risk of harm to the victim over and above that necessarily
present in the [assault].’ ” (People v. Shadden (2001) 93 Cal.App.4th 164, 168
(Shadden); § 667.61, subd. (d)(2) [“The defendant kidnapped the victim of the
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present offense and the movement of the victim substantially increased the
risk of harm to the victim over and above that level of risk necessarily
inherent in the underlying . . . .”].) By finding the aggravated kidnapping
special circumstance allegation to be true, the jury necessarily found that
Gloede’s movement of the victim substantially increased the risk of harm to
her beyond that necessarily inherent in the sexual assault offenses.
(§ 667.61, subds. (a), (d)(2).)
Substantial evidence supports those findings. Courts have long
recognized that “ ‘[w]here a defendant moves a victim from a public area to a
place out of public view, the risk of harm is increased even if the distance is
short.’ ” (People v. Aguilar (2004) 120 Cal.App.4th 1044, 1048.) Thus,
“[w]here movement changes the victim’s environment, it does not have to be
great in distance to be substantial.” (Shadden, supra, 93 Cal.App.4th at
p. 169.)
This type of movement is precisely what occurred here. Gloede forced
the victim from her vehicle on a public street into her apartment (where there
were no other adults) and then into a locked bedroom, where he sexually
assaulted her. By moving the victim from a public location into a secluded
and confined setting, Gloede materially reduced the likelihood of detection or
interruption and increased the risk of harm beyond that inherent in the
sexual assault itself. (See Shadden, supra, 93 Cal.App.4th at p. 170
[“common critical factor was that the defendant either secluded or confined
the victim.”].)
Gloede argues the movement reduced the risk of harm because “[t]he
safest place to commit a sexual offense would have been in [the victim’s] car”
given the presence of others in the apartment. Gloede claims the movement
at issue here is “the opposite” of what constitutes kidnapping. That
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argument ignores the significance of the movement from a public setting to a
secluded one. The jury could reasonably infer that, although Gloede was
willing to threaten and physically assault the victim in public, he chose to
delay the sexual assault until he had moved her into a location where he
could commit it without detection or interruption.
The jury could also rely on factors beyond decreased likelihood of
detection. In determining whether movement increased the risk of harm,
jurors may consider other factors, such as “ ‘ “ ‘the danger inherent in a
victim’s foreseeable attempts to escape, and the attacker’s enhanced
opportunity to commit additional crimes.’ ” ’ ” (Waqa, supra, 92 Cal.App.5th
at p. 580.) By forcing the victim into her bedroom and closing and locking the
door, Gloede substantially increased his opportunity to commit additional
crimes against the victim and maintain his control over the situation.
The authorities on which Gloede relies do not compel a different result.
In People v. Perkins (2016) 5 Cal.App.5th 454, the victim was moved from the
bathroom to a bedroom within the same apartment and all doors remained
open. (Id. at pp. 460, 470.) In Waqa, the victim was moved from a small stall
to a large stall within the same bathroom. (Waqa, supra. 92 Cal.App.5th at
p. 579.) Neither of these cases involved movement from a public street into a
private residence and then into a locked bedroom. The jury could reasonably
conclude that the movement here created a substantially greater increase in
risk than the movements at issue in Perkins or Waqa.
The presence of the victim’s four minor children elsewhere in the
apartment does not negate the increased risk created by moving her into a
private residence and then behind a locked bedroom door. And we readily
dispense with the argument that the victim’s request that her eight-year-old
child leave the bedroom before Gloede locked the door alters this analysis.
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Nothing indicated Gloede was less likely to engage in criminal activity due to
the presence of the child, and it is absurd to expect a young child to mitigate
harm to their mother.
Finally, substantial evidence supports a finding that the movement
increased the risk of psychological harm. Gloede threatened the victim with
a knife, damaged her vehicle with it, and then forced her at knifepoint from
the vehicle to her apartment where he sexually assaulted her while her
children were present in the home. The victim testified she feared Gloede
would harm her children if she attempted to escape or seek help. The jury
could reasonably conclude that forcing the victim into her home and
subjecting her to the assault in an apartment that also contained her
children substantially increased the risk of psychological trauma. (See People
v. Nguyen (2000) 22 Cal.4th 872, 885–886 [the increased risk of harm
element of crime of aggravated kidnapping includes both physical and
psychological harm].)
In sum, substantial evidence supports the jury’s finding that Gloede’s
movement of the victim from her vehicle on a public street to a locked
bedroom in her apartment substantially increased the risk of harm beyond
that inherent in the sexual assault offenses.
III. Remand for Resentencing
Gloede argues he is entitled to resentencing because attempted sodomy
is not subject to the One Strike law pursuant to section 667.61, subdivision
(c). The Attorney General agrees and supports resentencing on this ground.
The Attorney General also asserts the trial court made a second sentencing
error. Specifically, the court erroneously imposed a determinate sentence
solely based on subordinate terms without calculating and imposing a
principal determinate term.
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A. Relevant Background
Gloede was sentenced to 25 years to life in prison on counts 1 to 4,
which was comprised of (1) imposition of the 25-year-to-life sentence on count
1, (2) concurrent 25-year-to-life terms on counts 2 and 3, and (3) a 25-year-to-
life sentence on count 4, which the court stayed pursuant to section 654.
The court also imposed a determinate term of two years four months on
counts 6 to 8, which would run consecutive to the indeterminate term. The
court calculated the determinate term by imposing consecutive sentences of
one-third of the middle term—one year—on count 6, one-third of the middle
term—eight months—on count 7, and one-third of the middle term—eight
months—on count 8.
B. Analysis
Both parties acknowledge the One Strike law is inapplicable to Gloede’s
conviction for attempted sodomy (count 4) and agree that the trial court erred
in calculating the determinate term on counts 6 through 8. However, the
parties disagree as to whether Gloede’s determinate term can exceed his
original sentence of two years and four months.
As an initial matter, we agree with the parties regarding the trial
court’s sentencing errors. Attempted sodomy does not fall within the scope of
section 667.6 or the One Strike law, and thus must be sentenced via a
determinate term under section 1170.1. (People v. Rodriguez (2012) 207
Cal.App.4th 204, 217.) Moreover, as explained in Rodriguez, sentencing
offenses subject to determinate terms involves a three-step process: “ ‘First,
the trial court is required to select a base term—either the statutory low,
middle or upper term—for each of the crimes. [Citations.] Second, if the
court determines that a consecutive sentence is merited, it must designate
the crime with the “greatest” selected base term as the principal term and the
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other crimes as subordinate terms. [Citation.] Third, the court sentences the
defendant to the full base term it selected for the principal term crime and
one-third of the middle term for any crimes for which the sentence is ordered
to run consecutively. [Citations.] A subordinate term is one-third of the
middle term even if the trial court had initially selected the lower or upper
term as the base term.’ ” (Id. at pp. 211–212.) The court did not follow this
procedure when sentencing Gloede on counts 6 through 8. Accordingly,
resentencing is required.
However, the parties disagree as to whether, on remand, the trial court
can impose a determinate term greater than the term originally set.
Generally, “ ‘[w]hen a defendant successfully appeals a criminal conviction,
California’s constitutional prohibition against double jeopardy precludes the
imposition of more severe punishment on resentencing.’ ” (People v. Vizcarra
(2015) 236 Cal.App.4th 422, 431, italics omitted.) This rule does not apply,
however, when a trial court imposes an unauthorized sentence. (Ibid.) In
such cases, courts may impose the proper judgment on remand “ ‘even though
it is more severe than the original unauthorized pronouncement.’ ” (Id. at
p. 432, italics omitted; see also People v. Burhop (2021) 65 Cal.App.5th 808,
814 [“[A]n unauthorized sentence renders the unlawful part of a judgment of
conviction and sentence void and correctable at any time.”]; People v. Govan
(2023) 91 Cal.App.5th 1015, 1036, fn. 21 [“We must correct an unauthorized
sentence even where the corrected sentence results in a longer term.”].)
Here, the trial court’s sentence on count 4 of an indeterminate term of
25 years to life was unauthorized and must be corrected. Likewise, the
court’s failure to designate a principal term among counts 6 through 8
amounted to an unauthorized sentence. (See People v. Neely (2009) 176
Cal.App.4th 787, 797–798 [court erroneously applied principal
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term/subordinate term methodology set forth in § 1170.1 to all the offenses
when it imposed one-third of the middle term sentences for the determinative
term offenses].) Accordingly, the trial court is not constrained by the length
of the original determinative sentence for purposes of resentencing.
DISPOSITION
This matter is remanded for resentencing in accordance with this
opinion. Following resentencing, the trial court shall forward a certified copy
of the amended abstract of judgment to the Department of Corrections and
Rehabilitation. In all other respects, the judgment is affirmed.
PETROU, J.
WE CONCUR:
TUCHER, P. J.
RODRÍGUEZ, J.
A173490 / People v. Gloede
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