P. v. Lewis CA5

Filed 10/19/26 P. v. Lewis CA5

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,
F089179
Plaintiff and Respondent,
(Super. Ct. No. BF183922A)
v.

JAVONNA LEESHAY LEWIS,
OPINION
Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Kern County. Judith K.
Dulcich, Judge.
Stephen M. Lathrop, under appointment by the Court of Appeal, for Defendant
and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney
General, Kimberley A. Donohue, Assistant Attorney General, Ivan P. Marrs and Angelo
S. Edralin, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
A jury convicted defendant Javonna Leeshay Lewis of human trafficking, human
trafficking of a minor for purposes of performing a commercial sex act, rape by
penetration, torture, and pimping a minor. The jury also found true various allegations
under Penal Code section 667.61,1 the “One Strike” law. The trial court imposed a
sentence of life without the possibility of parole (LWOP). Lewis contends on appeal
that: (1) the court erred by admitting testimony of an uncharged sex offense and verbal
threats against a third party; (2) there is insufficient evidence to support the jury’s true
finding regarding aggravated kidnapping under section 667.61, subdivision (d)(2)
(section 667.61(d)(2)); (3) there is insufficient evidence to support the jury’s true finding
regarding simple kidnapping under section 667.61, subdivision (e)(1)
(section 667.61(e)(1)); and (4) the record should be amended to delete the term firearm
with respect to the jury’s true finding under section 667.61, subdivision (e)(3)
(section 667.61(e)(3)). We affirm Lewis’s conviction but will direct the court to delete
the term firearm from the verdict.
PROCEDURAL BACKGROUND
On October 29, 2024, the Kern County District Attorney filed a second amended
information that charged Lewis with: human trafficking (§ 236.1, subd. (b); count 1),
human trafficking of a minor for purposes of performing a commercial sex act (§ 236.1,
subd. (c); count 2), rape by sexual penetration (§ 289, subd. (a)(1)(A); count 3), torture
(§ 206; count 4), and pimping a minor (§ 266h, subd. (b)(1); count 5). As relevant to this
appeal, with respect to count 3, the district attorney also alleged circumstances under the
One Strike law for aggravated kidnapping (§ 667.61(d)(2)), simple kidnapping
(§ 667.61(e)(1)), aggravated mayhem or torture (§ 667.61, subd. (d)(3)), personal
infliction of great bodily injury (§ 667.61, subd. (d)(6)), personal use of a dangerous or

1 Unless otherwise noted, all further statutory references are to the Penal Code.

2.
deadly weapon (§ 667.61(e)(3)), and commission of an offense against a minor age 14 or
older (§ 667.61, subd. (l) (section 667.61(l).)
Trial began on October 16, 2024, and concluded with a verdict on October 29,
2024. The jury found Lewis guilty on all counts and found true all alleged circumstances
under the One Strike law. In a bifurcated proceeding, the trial court found true other
alleged aggravating circumstances.
On January 7, 2025, the trial court imposed a sentence. With respect to count 3,
the court imposed an LWOP term pursuant to section 667.61(l). Sentences on the
remaining counts were stayed pursuant to section 654.
Lewis filed her notice of appeal six days later.
FACTUAL BACKGROUND2
Kayla R. was born in January 2003, and Lewis was born in September 1998. In
August 2020, Kayla and Lewis began a romantic relationship together in Fresno. In
December 2020, Lewis and Kayla traveled to Bakersfield for Kayla to engage in
prostitution. Kayla testified that prior to going to Bakersfield, she had prostituted herself
in Fresno and shared the money she earned with Lewis.
Lewis’s brother drove Lewis and Kayla to Bakersfield. Kayla and Lewis stayed in
different hotels while they were in Bakersfield, and Kayla attempted to engage in
prostitution at each hotel. While Kayla worked as a prostitute, Lewis spent time with
friends.
On December 22, 2020, Lewis and Kayla checked into a new motel and stayed in
room 20. The motel was on Union Avenue, and room 20 was part of a single story
building. The building where room 20 was located had a covered walkway that allowed
patrons to walk to their rooms. Each of the rooms in the single story building had a door

2 Because Lewis does not directly challenge each of the jury’s findings, we limit our
factual recitation to those facts that are relevant to the resolution of this appeal.

3.
and a large picture window. The distance between the room doors appears to be around
12 feet. On the other side of the covered walkway is an open parking lot. When a person
is walking on the covered walkway on their way to or from a motel room, they remain
open to view.
On the evening of December 22, 2020, Kayla was supposed to work as a prostitute
while Lewis was away for a few hours. However, Kayla did not work that night, and
Lewis did not return until the next morning.
Events of December 23, 2020
On the morning of December 23, 2020, Kayla exited a motel room that was a few
doors down from room 20. An acquaintance of Lewis was staying in that room. When
Kayla exited the room, she saw Lewis. Lewis was mad. Kayla first told the police that
Lewis was mad because Kayla had not worked as a prostitute the night before and had no
money, but Kayla testified at trial that Lewis was mad because she believed Kayla was
cheating on her with the acquaintance in the nearby room. Lewis and Kayla began to
fight.
A motel patron took three short cell phone videos from his car of the fight between
Kayla and Lewis.3 In the first video, Kayla is sitting on the ground in the walkway in
front of room 20. Lewis appears to punch Kayla in the head and then throws something
at Kayla’s head. Kayla then falls on her side and raises her right arm and leg up in a
defensive posture toward Lewis. The video ends with Lewis moving closer to and
standing over Kayla.
In the second video, Lewis and Kayla are standing by a room next to room 20.
Lewis grabs and turns Kayla by the hair and punches Kayla in the face multiple times.

3 The cell phone videos have audio, but the audio is mostly of loud music. The
videos do not capture any statements or sounds by Lewis or Kayla.

4.
Kayla attempts to cover her face and then starts walking away from Lewis down the
walkway. The video does not show Kayla fighting back.
A surveillance video also captured the attack depicted in the first and
second cell phone videos, including events before and after the attack. The surveillance
video shows Lewis arriving at room 20 around 10:10 a.m. and then looking to her left.
Lewis drops a backpack and/or jacket and then quickly walks to the left out of view.
Lewis walks back to room 20 and then Kayla appears behind her. Lewis goes to Kayla
and punches Kayla in the upper arm or shoulder area, which causes Kayla to turn and
walk away out of view. Lewis follows, and then Kayla and Lewis reappear at the door of
room 20. Lewis is saying something to Kayla while Kayla is trying to open the door.
Lewis punches Kayla, who leans down and covers her head. Lewis stops and walks
around the parking lot, and Kayla looks through Lewis’s dropped items to find the room
key. As Kayla looks for the key, Lewis grabs Kayla by the head and drags her to the
ground. Lewis repeatedly punches and kicks Kayla on the head and upper back while
Kayla lays on her stomach. Lewis briefly walks away but then comes back and punches
Kayla while Kayla is sitting upright on the ground. Lewis steps back and Kayla stands
up. Kayla says something to Lewis and begins to pick up the items that Lewis had
dropped at the door and thrown at Kayla. Lewis then throws something at Kayla, and
they start walking down the walkway away from room 20. Lewis appears to hit Kayla
one more time and points back to room 20. Eventually, Kayla and Lewis come back to
room 20, and a blue SUV pulls in front of the room. Lewis and Kayla get into the SUV,
and the SUV drives away.
In the third video, Lewis and Kayla are seen walking toward Union Street and
appear to be talking. Lewis pulls back her arm and punches Kayla in the head/face.
Kayla stops walking, covers her head with her arms, and temporarily leans hunched over
in a defensive posture. Lewis says something to Kayla and points to Union Street. Kayla
and Lewis keep walking while Lewis gestures toward Kayla and Union Street.

5.
Assault Inside Room 20
Kayla testified that, before going into room 20, she and Lewis exited the blue SUV
and went back outside of room 20 because they were still fighting. Lewis found a thin
eight-inch metal pole on the ground and used it to hit Kayla on the leg. Lewis told Kayla
to go inside room 20 or the beating would get worse. Lewis then grabbed Kayla by the
hair and pulled Kayla inside of room 20.
Once inside, the fight continued, and Lewis’s attacks became worse. Lewis took a
heater vent from the wall and began to hit Kayla everywhere on Kayla’s body, including
her head, while Kayla tried to fight back. Kayla told law enforcement that Lewis made
her lie on the bed and attempted to insert the heater vent inside of Kayla’s vagina. Lewis
then grabbed a wooden chair and beat Kayla all over her back. Lewis also used the leg of
the wooden chair to forcefully penetrate inside of Kayla’s vagina. This caused a
significant amount of bleeding. Kayla was laying in front of the doorway when Lewis
raped her with the chair leg. Sometime before this rape, Lewis forced Kayla to lay on the
ground. Lewis made Kayla drink cleaning products and/or shampoo and poured those
liquids in Kayla’s mouth and all over her body. Kayla was trying to fight back, but she
had no clothes on and the liquids that Lewis was pouring on her caused her to slip on the
floor. Lewis also inserted a spray bottle into Kayla’s vagina and sprayed cleaning
solution inside of Kayla. Kayla screamed for help, but no one came. At some point,
Lewis pushed Kayla into the bathroom and pushed Kayla’s head inside the toilet and
slammed Kayla’s head on the tile floor.
Kayla managed to shut and lock the bathroom door. Kayla screamed for help out
the bathroom window, but no one came. Lewis told Kayla to come out of the bathroom,
and she would take Kayla to the hospital to get treatment. Kayla believed Lewis and
opened the door. Instead of getting help, Lewis attacked Kayla more. Lewis began to hit
Kayla on the head with a flashlight. Lewis continued to attack Kayla for about 35 more
minutes before Kayla was able to get back to the bathroom a second time.

6.
Kayla came out of the bathroom after she heard Lewis leave the room. Kayla
estimated that Lewis attacked her in room 20 over a two-hour period. Kayla testified that
she fought harder when she was inside the room because she believed it was necessary
for her to live. During the two-hour period, Lewis kicked and hit Kayla with fists and
objects, raped Kayla with objects, stuck her fingers in Kayla’s ears and mouth, spit on
Kayla, tried to bite Kayla’s hair out, and bit Kayla on the head, arm, and back. Kayla’s
head, back, arms, genitals, and “ ‘just everywhere’ ” were hurt and/or injured as a result
of Lewis’s attack.
Sometime after the attack had ended, a third party walked inside room 20 and took
a short cell phone video. The video depicts a bloody towel or garment and light blood
marks on the ground near the door, a significant blood stain on the bed, blood marks of
various sizes on the floor, a large amount of blood inside the bathroom near the sink,
blood on the toilet, blood in the bathroom sink, and blood in the shower. All of the blood
appears to be fresh. The bed was not made, and pillows and miscellaneous objects were
strewn on the ground throughout the room, as well as in the shower.
Kayla eventually wrapped herself in a towel and went to the front desk to ask for
help. The owner of the motel saw Kayla with a towel wrapped around her and blood
coming down her leg. The owner assisted Kayla back to the office, gave her more
towels, and called 911. Because it would be faster than waiting for an ambulance,
two other motel patrons took Kayla to the hospital to get treatment.
As Kayla was walking toward the hospital entrance, she looked down and saw that
blood clots were falling from her vagina. Kayla received some initial treatment and
spoke to two law enforcement officers and a forensic nurse who had sexual assault
training. When Kayla spoke to law enforcement and the nurse, she stated she was
truthful about how she received her injuries and what Lewis had physically done to her.
Kayla was transferred to a second hospital, where she received treatment and was
discharged two days later.

7.
Kayla’s Statements to Law Enforcement
At the hospital, Kayla spoke to two Bakersfield police officers, Michael Rafferty
and James Montgomery. Montgomery, who had heard Kayla’s trial testimony, testified
that Kayla’s testimony about Lewis’s attack and her physical injuries were consistent
with what Kayla had told him at the hospital. Montgomery also testified Kayla had
confirmed to him the beating significantly increased once she and Lewis were inside
room 20. Similarly, Rafferty’s description of Kayla’s statements to him about her
injuries was consistent with Kayla’s testimony. Rafferty testified Kayla said Lewis had
attacked her over a two-hour period; Lewis struck her with fists and a chair; Lewis
forcefully shoved the chair leg into her vagina; and Lewis poured cleaning liquids in her
hair, mouth, and vagina.
Rafferty and Montgomery also collectively testified Kayla gave extensive
statements about prostitution. Kayla told the officers Lewis had forced her to go to
Bakersfield, forced her to engage in prostitution against her will, set prices and protocols
for her to follow while engaging in prostitution, and forced her to give Lewis all the
money earned from prostitution. Kayla also told the officers the fight had started in part
because Kayla had not worked the night before and had no money to give Lewis.
However, Kayla testified at trial she lied to the officers about anything implicating Lewis
with pimping or prostitution, including Lewis forcing her to go to Bakersfield and forcing
her to engage in prostitution. In essence, Kayla testified she had engaged in prostitution
voluntarily and had previously done so when she first met Lewis, and her prior
statements regarding Lewis acting as a pimp were false and said out of anger. Kayla also
testified the reason the fight occurred was because Lewis saw her leave another motel
room and thought she was being unfaithful.
Testimony of Forensic Nurse
Nurse Sarah Cooper testified she performed a forensic sexual assault exam on
Kayla from 5:00 p.m. to 9:00 p.m. Cooper stated the exam took longer than usual

8.
because of the time needed to examine and document all of Kayla’s injuries. Cooper had
performed over 1,000 forensic exams and opined this case was quite rare due to the
extensive injuries she observed on Kayla, particularly blood dripping from the vaginal
area.
Cooper testified about her observations of Kayla, which included: blood and
bruising inside of Kayla’s legs; bruising, swelling, scratches, and abrasions on Kayla’s
back, arms, legs, and face; a deep cut on Kayla’s shin; and bite marks on Kayla’s
neck/upper back and head. Cooper noted that Kayla was pale, tearful, and cooperative
and smelled of chemicals. Cooper was unable to fully examine Kayla’s anus and vagina
due to pain, but she was able to see several vaginal injuries that looked very painful.
Kayla told Cooper about Lewis kicking, punching, and biting her, as well as being
assaulted with a flashlight, a metal pole, a heating vent, cleaning supplies, and a chair.
Kayla said that Lewis had kicked and hit her, stuck her fingers in her mouth and ears, and
just kept “ ‘beating [her] up.’ ” Cooper asked Kayla about vaginal penetration, and Kayla
responded that Lewis had penetrated her vagina with fingers, the leg of a chair, a spray
bottle with cleaning solution, and a “ ‘vent rod’ ”/heater vent.4 Cooper also inquired
about anal penetration, and Kayla responded that she was unsure whether Lewis had
penetrated her anus with fingers, but Lewis did penetrate Kayla’s anus with an unknown
object.
Lewis’s Post-assault Communications with Kayla
After the attack, Lewis and Kayla communicated, and the jury heard various audio
recordings of Lewis apologizing to Kayla. The jury was also shown written electronic
messages between Lewis and Kayla. In one message, dated January 5, 2021, Kayla was
upset with Lewis and expressly said Lewis had “shoved a chair in my vagina.” Kayla

4 Kayla testified at trial that Lewis did not use her fingers or the heater vent to
penetrate Kayla’s vagina.

9.
said she had to have follow up appointments and the injury does not heal overnight.
Lewis first responded that Kayla sounded like the police, but then responded, “But yup.”
Lewis also acknowledged being next to Kayla when Kayla made an appointment,
apparently for treatment. Lewis did not deny that she had raped Kayla with a chair leg.
DISCUSSION
I. ADMISSION OF UNCHARGED SEXUAL OFFENSE
A. Parties’ Arguments
Lewis contends the trial court erred by admitting evidence of an uncharged sexual
offense under Evidence Code section 1108 (section 1108) against adult victim Emisa R.
Lewis avers that Emisa’s testimony regarding the sexual offense should have been
excluded under Evidence Code section 352 (section 352) in light of the factors identified
in People v. Falsetta (1999) 21 Cal.4th 903 (Falsetta). Lewis claims Emisa’s testimony
was so graphic, violent, and inflammatory that it created a substantial danger the jurors
would convict her based on a visceral reaction, rather than on the evidence related to the
charged offenses. Lewis asserts there was minimal relevance because the uncharged
offense occurred nearly four years after the charged offenses, the dissimilarities between
the charged and uncharged offenses predominated over any superficial similarities, and
the uncharged offense was not established to a high degree of certainty because Emisa
was the only witness and she only testified because she was compelled to do so. Lewis
also argues that Emisa’s testimony took an undue amount of court time, and there was a
serious risk the jury would convict based on “cumulative character assassination” instead
of the proof related to the charged offenses. Finally, Lewis also argues that there was a
substantial burden in defending against the uncharged offense because it occurred only
three months before trial and placed her in an impossible situation by forcing her to

10.
choose between defending the allegations or standing on her Fifth Amendment right not
to testify.5
The People contend the trial court acted within its discretion by admitting the
uncharged sexual offense against Emisa. The People allege the offense against Emisa
was similar to the offense against Kayla because both involved intimidation and physical
force and assaults against women with whom Lewis was living, had sexual interest in,
and wanted to pimp. The People also argue the uncharged offense against Emisa was not
remote and the evidence would not distract the jury or create an undue burden on Lewis
because the evidence of the uncharged offense consisted only of Emisa’s testimony.
Finally, the People maintain that because the offense against Emisa was less
inflammatory than the offenses against Kayla, Emisa’s testimony was not unduly
prejudicial.
B. Additional Background
Pretrial Ruling
Prior to Emisa testifying, the trial court heard arguments regarding the
admissibility of the prior uncharged sexual offense. Defense counsel argued the evidence
should be excluded because, while the evidence was relevant, it was sufficiently
dissimilar to the charges against Lewis that it should be excluded as unduly prejudicial
under section 352. The prosecutor argued in part that the offenses against Kayla and
Emisa were similar and were very probative of Lewis’s mental state and propensity to

5 Lewis also appears to argue the trial court erred by admitting Emisa’s testimony
about sexual statements made to her by Lewis prior to the sexual offense and about
Emisa’s efforts to obtain a jail protective order against Lewis based on the offense.
However, Lewis did not object to these aspects of Emisa’s testimony. Because Lewis
made no objection to the trial court, the error has not been preserved for appeal. (Evid.
Code, § 353; People v. Merriman (2014) 60 Cal.4th 1, 102 (Merriman); People v. Kipp
(2001) 26 Cal.4th 1100, 1124.)

11.
commit “these types of [sexual] acts.” The court found the uncharged offense against
Emisa was admissible. The court explained:

“I do think … [s]ection 1108 is for that very purpose, that the
commission of prior sexual misconduct is admissible for the jury to
consider in this case to show that a defendant was predisposed to commit
the act in this case, … I don’t think the fact that in the 2024 case the victim
was not a minor precludes that evidence. So I think it is clearly admissible
under [section] 1108. I think … it is a balancing act under … [s]ection 352.
I think in this case, … I don’t want to call it a minor incident, but it is not
outrageous such as is being alleged in the current case. [¶] … [¶]

“It is prejudicial information for the jury to hear that there has been
other sexual misconduct, but I do think it is highly probative under the
provisions of … [s]ection 1108, and I think that probative value far
outweighs any danger of undue prejudice. It won’t take much time to
present to the jury. It won’t confuse the issues because they will be fully
instructed on how they may consider this particular issue.”
Emisa’s Testimony
Emisa testified in relevant part that she was housed in the same jail cell as Lewis
in July 2024. Emisa then described the following incident:

“It was after lockdown. We had just locked down. We were already
in our cells for the night; so it was probably a little bit after 11[:00 p.m.]. I
had gotten down off my bunk. I was on the top bunk. [Lewis] was on the
bottom. I got off my bunk to go to the bathroom, and … after I finished
using the bathroom, I walked back to where I would climb up on the
stool/table. There is a stool, and I used that to climb up on the bed. When I
was behind the stool … [Lewis] shoved me up against the wall and tried to
pull down my pants.”
Emisa explained she was wearing underwear, but when Lewis pulled down her
(Emisa’s) pants, Emisa’s underwear came down too and her pants and underwear went
down to her knees. Lewis’s arm or hand was under Emisa’s rib cage, and Lewis was
using her weight to lean on Emisa and keep her against the wall. Emisa was crying and
asking Lewis to stop when the hallway doors popped open, signaling jail guards were
walking down the hallway to check cells. Lewis then stopped and let Emisa go, but as

12.
Emisa was climbing back up to the top bunk, Lewis told Emisa not to disclose what had
just happened and warned if Emisa “said anything,” Lewis was “not afraid to catch a
case.”
Sometime prior to the assault, Lewis had asked Emisa if she “could eat [Emisa]
out,” meaning orally copulate Emisa. Lewis had also previously joked that she and
Emisa could make a lot of money together if Emisa worked as a prostitute for her. After
the assault, Emisa obtained a jail “keep away” protective order against Lewis, meaning
the two could not be near each other, based on Lewis’s assault.
Jury Instructions and Closing Arguments
The jury was instructed with CALCRIM No. 1191A, which concerns other sexual
offenses for purposes of section 1108. In part, the jury was informed evidence was
presented that Lewis committed the uncharged crime of assault with intent to commit oral
copulation in violation of section 220/287. The instruction required the jury to consider
this evidence if it found by a preponderance of the evidence Lewis had committed that
uncharged sexual offense. If the jury decided the prosecutor met this burden, then the
jury could, but was not required to, conclude Lewis was inclined to commit sexual
offenses and likely committed the charged offenses against Kayla. However, this was
only one factor to consider along with the other evidence, and the People still had to
prove the charged offenses beyond a reasonable doubt. The instruction admonished the
jury not to consider the evidence of this other sexual offense for any other purpose.
During closing arguments, the prosecutor clarified that the CALCRIM No. 1191A
instruction referred to Emisa’s testimony. The prosecutor explained in part that “the law
basically tells you if somebody is out there committing other uncharged sex crimes, you
are allowed to use that to think this person is predisposed to commit sex crimes against
other individuals. That is what you use [Emisa’s] testimony for.” Defense counsel did
not address Emisa’s testimony during his closing argument.

13.
C. Legal Standard
Section 1108 “carves out an exception to Evidence Code section 1101,
subdivision (a)’s ban on character evidence offered to prove a person’s conduct on a
particular occasion.” (People v. Molano (2019) 7 Cal.5th 620, 663.) “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 [admissible] if the evidence is not
inadmissible pursuant to [s]ection 352.” (Evid. Code, § 1108, subd. (a) (section 1108(a));
People v. Dworak (2021) 11 Cal.5th 881, 899 (Dworak).) Thus, “if evidence satisfies
section 1108, and is not otherwise excluded under section 352, admission of that
evidence to prove propensity is permitted.” (Molano, at p. 664.) The term “sex offense”
is defined both through citations to specific sections of the Penal Code and through
identification of four specific types of acts (including attempt to perform the described
acts) that are not expressly linked to the Penal Code. (Evid. Code, § 1108, subd. (d)(1);
see also People v. Miramontes (2010) 189 Cal.App.4th 1085, 1098–1099.) The other sex
offenses may be charged or uncharged. (Dworak, at p. 902; People v. Loy (2011) 52
Cal.4th 46, 63 (Loy).) Sexual offense evidence is presumed admissible under
section 1108(a). (People v. Williams (2016) 1 Cal.5th 1166, 1196; Loy, at p. 63.) This
presumption in favor of admissibility is “strong.” (Merriman, supra, 60 Cal.4th at p. 62.)
Before admitting sexual offense evidence under section 1108(a), the trial court
must engage in a careful section 352 weighing process. (Dworak, supra, 11 Cal.5th at
p. 899; Falsetta, supra, 21 Cal.4th at p. 916.) Section 352 provides that “[t]he 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.”
(§ 352; Dworak, at p. 899.) Undue prejudice does not refer to evidence that undermines
the defendant’s position or shores up the prosecution’s theory; rather, undue prejudice
arises when the evidence has very little effect on the issues in the case, yet it uniquely

14.
tends to evoke an emotional bias against the defendant as an individual. (People v.
Daveggio and Michaud (2018) 4 Cal.5th 790, 824 (Daveggio and Michaud).)
“ ‘Evidence is substantially more prejudicial than probative [citation] [only] if, broadly
stated, it poses an intolerable “risk to the fairness of the proceedings or the reliability of
the outcome.” ’ ” (People v. Tran (2011) 51 Cal.4th 1040, 1047 (Tran).)
In making a section 352 determination for purposes of section 1108(a), our
Supreme Court has explained:

“[T]he trial court’s determination should be guided by such factors
as the ‘nature, relevance, and possible remoteness’ of the evidence, ‘the
degree of certainty of its commission and the likelihood of confusing,
misleading, or distracting the jurors from their main inquiry, its similarity
to the charged offense, its likely prejudicial impact on the jurors, the burden
on the defendant in defending against the uncharged offense, and the
availability of less prejudicial alternatives to its outright admission, such as
admitting some but not all of the defendant’s other sex offenses, or
excluding irrelevant though inflammatory details surrounding the
offense.’ ” (Dworak, supra, 11 Cal.5th at p. 900, quoting Falsetta, supra,
21 Cal.4th at p. 917.)
Trial courts enjoy broad discretion with respect to their sections 1108 and 352
decisions. (Dworak, supra, 11 Cal.5th at pp. 899–900; Merriman, supra, 60 Cal.4th at
p. 58; Loy, supra, 52 Cal.4th at p. 64.) As such, a trial court’s ruling to admit evidence of
other sexual offenses under sections 1108(a) and 352 is reviewed for abuse of discretion.
(Dworak, at p. 899; Daveggio and Michaud, supra, 4 Cal.5th at p. 824; Merriman, at
p. 58; Loy, at p. 61.) An abuse of discretion may occur when the trial court’s ruling was
so arbitrary, capricious, or made in such a patently absurd manner that it resulted in a
manifest miscarriage of justice, or when the ruling was so erroneous it falls outside the
bounds of reason. (People v. Johnson (2022) 12 Cal.5th 544, 605–606 (Johnson).) A
merely debatable ruling cannot constitute an abuse of discretion. (Ibid.)

15.
D. Analysis
There is no dispute that Lewis’s actions against Emisa constitute the offense of
assault with intent to commit oral copulation and such an offense is considered “another
sexual offense” for purposes of section 1108. (Evid. Code, § 1108, subd. (d)(1)(A),
(B)).6 Therefore, there is a strong presumption that Emisa’s testimony about this
uncharged sexual offense is admissible under section 1108. (Merriman, supra, 60
Cal.4th at p. 62; Loy, supra, 52 Cal.4th at p. 62.) The issue is whether the trial court
abused its discretion by refusing to exclude Emisa’s testimony under section 352
(Daveggio and Michaud, supra, 4 Cal.5th at p. 824). After examining the considerations
identified by Falsetta, we detect no abuse of discretion. (See Johnson, supra, 12 Cal.5th
at pp. 605–606; Falsetta, supra, 21 Cal.4th at p. 917.)
1. Nature, relevance, and possible remoteness of section 1108 offense
Lewis’s offense against Emisa involved the use of force. Lewis pinned Emisa
against the wall, pulled down Emisa’s underwear and pants, and did not let her move.
Lewis only stopped because jail guards were about to walk by the cell. Emisa’s
testimony demonstrated that Lewis was willing to engage in acts of violence and force
herself on other women who are unable to physically resist her, with whom she is
cohabitating, and to whom she is attracted. That is, the evidence was relevant to showing
that Lewis has a propensity to engage in physically forceful and violent sexual acts
against other women. The jury could use this evidence to conclude that Lewis’s
propensity for such conduct made it likely that Lewis raped Kayla in the manner
described by Kayla. Further, the assault on Emisa occurred in July 2024, and the trial
occurred in October 2024. Because the incident was less than one year old at the time of

6 The count 3 section 289 offense against Kayla is also a “sex offense” for purposes
of section 1108. (Evid. Code, § 1108, subd. (d)(1)(A).)

16.
Emisa’s testimony, and less than four years old from the time of the offenses against
Kayla in December 2020, the evidence was not stale or remote.7
2. Degree of certainty that Lewis committed the uncharged offense
The degree of certainty that Lewis committed the uncharged act against Emisa is
relatively high. Section 1108 permits the admission of other sexual offenses even if those
offenses did not result in their own convictions. (§ 1108; Merriman, supra, 60 Cal.4th at
pp. 59, 62.) Emisa testified she filed an internal jail complaint based on Lewis’s sexual
assault against her, which resulted in the jail issuing a stay-away protective order against
Lewis that prohibited contact and cell assignments with Emisa. Her testimony was clear
and succinct, and the incident was less than one year old. Cross-examination did not tend
to show Emisa’s testimony was false, the assault did not actually occur, or Emisa had not
actually taken administrative steps within the jail to protect herself from Lewis. Given
the nature of Emisa’s testimony, there was little question that Lewis had committed
assault with the intent to commit oral copulation against Emisa.

3. Likelihood of uncharged offense confusing, misleading, or distracting
jurors
There is little danger the jury would be misled, confused, or distracted by Emisa’s
testimony. The uncharged sexual offense against Emisa was distinct and separate from
the offenses against Kayla in terms of timing, location, and victims. Further, Emisa’s
testimony was the only evidence of the uncharged sexual offense. Emisa’s entire
testimony, which included direct, cross, and redirect examinations, was relatively brief

7 Contrary to Lewis’s argument, the fact that the offense against Emisa postdates the
rape of Kayla does not make the offense irrelevant or inadmissible. (People v. Cordova
(2015) 62 Cal.4th 104, 133 [noting that, in the context of later crimes that occurred
between 13 and 18 years after the charged offense, “evidence of subsequent crimes may
bear on a defendant’s character at the time of the charged offense.”].) This is particularly
so since there was no evidence in the record that Lewis’s character had changed between
the time she raped Kayla and the time she assaulted Emisa. (See id.)

17.
and comprised about 21 pages of the reporter’s transcript. That is, the “evidence was
presented quickly, with only the victim … testifying.” (Loy, supra, 52 Cal.4th at p. 61.)
Similarly, the prosecutor’s references to Emisa’s testimony, which were consistent with
the jury instructions, consisted of about one page in the reporter’s transcript. The brevity
of Emisa’s testimony and the distinctions between the offense against Emisa and the
offenses against Kayla would have made it easier for the jury to differentiate the
incidents. (Cf. Daveggio and Michaud, supra, 4 Cal.5th at pp. 823–824.) Moreover, the
jury was instructed by the trial court about the purpose of Emisa’s testimony. To
paraphrase, the jury was informed that they could only use Emisa’s testimony as
propensity evidence in assessing the charged offenses and for no other purpose. This
instruction further clarified the nature and limited purpose of Emisa’s testimony and thus,
further reduced any danger of confusion, distraction, or being misled. (Cf. People v.
Thomas (2023) 14 Cal.5th 327, 382 (Thomas) [jurors are presumed to be able to
understand, follow, and correlate instructions].) Therefore, there was little danger the
jury would be confused, misled, or distracted to any material degree by Emisa’s
testimony.
4. Similarity of uncharged conduct to charged offense
The uncharged sexual assault of Emisa shared similarities with the charged assault
on Kayla. As discussed above, both offenses involved Lewis using physical force to
engage in nonconsensual sexual activity against physically weaker women to whom she
was attracted and with whom she was cohabitating. However, there were also
differences. The offense against Emisa was comparatively short in duration, did not
involve foreign objects, and did not involve a beating (prolonged or otherwise).
Consideration of this factor does not require excluding the evidence, however.
Irrespective of the differences or the reasons for the differences between the two sexual
offenses, it is well recognized that the level of similarity for a section 1108 prior sexual
offense need not rise to the level of similarity required for admission of evidence under

18.
Evidence Code section 1101 (section 1101). (Loy, supra, 52 Cal.4th at p. 63.) Indeed,
our Supreme Court has explained that “evidence of even extremely dissimilar offenses
may be admitted under section 1108.” (Daveggio v. Michaud, supra, 4 Cal.5th at p. 825.)
Given the domineering nature of both the rape of Kayla and the assault with intent to
commit oral copulation against Emisa, we cannot say that the two offenses were so
entirely dissimilar that Emisa’s testimony should have been excluded as too prejudicial.
(Daveggio and Michaud, at p. 825; Loy, at p. 63; Tran, supra, 51 Cal.4th at p. 1047.)
5. Likely prejudicial impact on the jury
It is unlikely that Lewis suffered any unfair prejudicial effects from Emisa’s
testimony. As discussed above, Emisa’s testimony took up relatively little court time,
and the veracity of her testimony regarding the uncharged sexual offense was virtually
uncontested. Moreover, the trial court could properly conclude that Lewis’s actions
against Emisa were not nearly as inflammatory as her actions against Kayla. A
comparison of Kayla’s testimony and Emisa’s testimony shows the actions against Kayla
were markedly more violent and ruthless. The fact that Lewis’s offense against Emisa
was not as violent and harsh as the offenses against Kayla naturally limits any prejudicial
effect that Emisa’s testimony may have had. (Daveggio and Michaud, supra, 4 Cal.5th at
pp. 825–826; Merriman, supra, 60 Cal.4th at p. 62.) Therefore, we cannot say that any
prejudicial effect that Emisa’s testimony may have had was undue or unfair for purposes
of section 352. (See Daveggio and Michaud, at p. 824 [explaining that the prejudice of
section 352 is not the prejudice that naturally flows from admissible and highly relevant
evidence but instead refers to prejudice that causes the jury to prejudge a person based on
emotional or extraneous factors]; Tran, supra, 51 Cal.4th at p. 1047.)
6. Burden placed on Lewis defending against the uncharged offense
We agree that Emisa’s testimony created an additional burden in terms of Lewis’s
defense. Instead of the charged offenses, Lewis also needed to address the uncharged
offense against Emisa. However, because the burden involved dealing with only a single

19.
incident and a single witness who was present and subject to cross-examination, the
burden created by Emisa’s testimony was not particularly heavy or insurmountable.8
Without more, Lewis has not demonstrated that the burden created by Emisa’s testimony
was so unique, onerous, or unfair that the testimony should have been excluded.9 (See
§ 1108; Merriman, supra, 60 Cal.4th at pp. 59, 62.)

7. Availability of less prejudicial alternatives to admission of the
uncharged offense
Lewis has not identified any less prejudicial alternatives to Emisa’s testimony or
identified any details testified to that were irrelevant though inflammatory. This is likely
because Emisa’s testimony was concise and focused only on the relevant details. The
conduct offered under section 1108 through Emisa’s testimony against Lewis was a
single, indivisible act of sexual misconduct. On the current record, we cannot conclude
that there was a less prejudicial alternative to the limited testimony Emisa gave.

8 Lewis argues that admission of Emisa’s testimony put her in an impossible tactical
position because it deprived her of the ability to contest the uncharged offense without
sacrificing her Fifth Amendment right not to testify. However, defendants are often in a
position to address damaging evidence by offering their own exculpatory testimony. In
each case, the defendant must weigh the benefits and dangers of testifying against the
benefits of their Fifth Amendment right to remain silent. Lewis cites no cases in which
relevant evidence has been held to be inadmissible because it made the decision of
whether to exercise Fifth Amendment rights more difficult. We cannot say that Emisa’s
testimony was so singular that its admission unfairly impacted Lewis’s Fifth Amendment
rights. (Cf. Merriman, supra, 60 Cal.4th at pp. 27–28, 59, 61–62 [defendant did not
testify during guilt phase despite section 1108 evidence of prior offenses that did not
result in convictions].)
9 Lewis also argues that her counsel labored under a burden related to timing
because the offense against Emisa occurred in July 2024 and trial was set for
October 2024. However, defense counsel did not raise any timing concerns when he
objected at the pretrial hearing, which forfeits the issue. (People v. Kipp, supra, 26
Cal.4th at p. 1124.)

20.
8. Resolution of the Falsetta factors
The Falsetta factors demonstrate that Emisa’s testimony was probative of Lewis’s
propensity to engage in sexual offenses against cohabitating women who were unable to
physically resist her and to whom she was attracted. Emisa’s testimony was succinct,
took up relatively little court time, was not nearly as emotionally inflammatory as
Kayla’s allegations against Lewis, and posed little danger of confusing, distracting, or
misleading the jury. Although the incident concerning Emisa was clearly not the same as
the incidents concerning Kayla, the differences are not so extreme that the alleged sexual
assault against Emisa was no longer probative of Lewis’s propensities. Further, while the
burden on Lewis’s defense was increased to some degree, Lewis has not shown that the
burden was materially onerous or unfair. Under the Falsetta factors, admission of
Emisa’s testimony would not create a material danger of undue prejudice, nor would any
prejudice that may have existed substantially outweigh the probative value of Emisa’s
testimony.10 (Loy, supra, 52 Cal.4th at p. 62; see also Daveggio and Michaud, supra, 4
Cal.5th at pp. 825–826; Tran, supra, 51 Cal.4th at p. 1047; Falsetta, supra, 21 Cal.4th at
p. 917.)
Considering the broad discretion enjoyed by the trial court in making its
sections 1108 and 352 determinations (Dworak, supra, 11 Cal.5th at pp. 899–900; Loy,
supra, 52 Cal.4th at p. 61), as well as the strong presumption in favor admissibility
(Merriman, supra, 60 Cal.4th at p. 62), we cannot conclude that the court’s decision to
admit Emisa’s testimony concerning assault with intent to commit oral copulation was
outside the bounds of reason or was so arbitrary and capricious that a miscarriage of

10 Lewis argues that admitting Emisa’s testimony improperly transformed the trial
into a referendum on her character. If Lewis’s argument were to be accepted, then no
evidence could ever be admitted under section 1108. Because section 1108 was enacted
in 1995 (Loy, supra, 52 Cal.4th at p. 60), and its constitutionality is well established
(Dworak, supra, 11 Cal.5th at p. 900; Falsetta, supra, 21 Cal.4th at pp. 917–918), we
reject this argument.

21.
justice resulted. (Johnson, supra, 12 Cal.5th at pp. 605–606.) Therefore, the court did
not abuse its discretion by admitting Emisa’s testimony.11 (See Daveggio and Michaud,
supra, 4 Cal.5th at pp. 824–826; Merriman, at pp. 58–62; Loy, at p. 63.)
II. ADMISSION OF THREATS AGAINST EMISA
A. Parties’ Arguments
Lewis argues the trial court committed prejudicial error by permitting Emisa to
testify about two threats allegedly made against her. Lewis argues the threat evidence
should have been excluded under section 1101 or section 352 because the threats had no
relevance to the charged offenses and the inflammatory nature of the threats, which
involved threats against Emisa’s children and dissuading her from testifying, cannot be
overstated. Lewis avers that any minimal probative value that such evidence may have
had was substantially outweighed by the danger of unfair prejudice and by undue
consumption of court time.
The People contend the trial court did not abuse its discretion by admitting
Emisa’s testimony about Lewis’s threats against her. The People argue in part the
evidence was probative of Emisa’s credibility and Lewis’s consciousness of guilt and the
threats’ probative value outweighed any prejudice.
B. Additional Background
Pre-Testimony Ruling
The parties informed the trial court of two recent threats that Lewis had allegedly
made against Emisa. The first threat occurred about 10 days prior to Emisa’s trial

11 Lewis also argues that admission of the uncharged sexual offense violated her
constitutional right to due process. However, the “ ‘ “ ‘routine application of state
evidentiary law does not implicate [a] defendant’s constitutional rights.’ ” ’ ” (People v.
Thompson (2016) 1 Cal.5th 1043, 1116.) Moreover, because we have concluded that
admission of the uncharged sexual offense was not sufficiently prejudicial under
section 352, admission of that evidence did not violate Lewis’s constitutional due process
rights. (See People v. Rhoades (2019) 8 Cal.5th 393, 415.)

22.
testimony on October 24, 2024, and the second threat occurred earlier in the morning of
Emisa’s trial testimony. Both alleged threats occurred at the courthouse in connection
with Lewis’s trial. The prosecutor described Lewis’s alleged threats against Emisa and
explained that Emisa had a “great amount of reservation” about testifying because of the
threats. The prosecutor argued the threats were admissible because they “relate directly
to the fact that [Emisa] is here to testify in this particular case.” Defense counsel was
able to question Emisa outside the presence of the jury as part of an Evidence Code
section 402 hearing. After questioning Emisa, defense counsel argued that her testimony
should be excluded under section 352 because the testimony was “incredibly prejudicial.”
The prosecutor argued the evidence was important because it went to the credibility of
Emisa’s testimony and demonstrated Lewis knew Emisa was being truthful. The court
overruled defense counsel’s section 352 objection.
Emisa’s Testimony
Prior to describing the threats against her, the prosecutor asked Emisa if she
wanted to be a witness or had reservations about testifying. Emisa testified she did not
request to be a witness, did not want to testify, and had expressed “reservations” about
testifying. With respect to the first threat, Emisa testified that about two weeks prior to
her testimony, she was transported to the courthouse. When Lewis saw Emisa, Lewis
said to her: “ ‘What’s up with that funny s[***]?’ ” Lewis’s demeanor and tone were
“very hostile and aggressive, and … it was filled with rudeness ….” Lewis’s words made
Emisa feel scared.
As to the second threat, Emisa testified it happened earlier that morning in the
courthouse. Emisa was in a holding cell, and Lewis was walking past her. Emisa
testified that, when Lewis saw her, Lewis:

“[S]tarted cussing at me, being very aggressive, telling me that I’m
lying, saying that—she said something about my kids, saying that they are
going to get the karma they deserve, and was telling me that in the
courtroom, she is going to be unshackled with no handcuffs; so I’m

23.
assuming that meant—well, she made it seem like she would be able to get
me here, and then she said that I’m scared because I have a keep-away on
her so she can’t be near me in the jail.”
Emisa explained that Lewis was angry and very hostile as she said these things, which
were scary and intimidating to Emisa. Emisa believed Lewis said these things to try and
scare her.
C. Legal Standard
Subject to certain exceptions, “evidence of a person’s character or a trait of his or
her character … is inadmissible when offered to prove his or her conduct on a specified
occasion.” (Evid. Code, § 1101, subd. (a) (section 1101(a)); People v. Pineda (2022) 13
Cal.5th 186, 221.) This character evidence is “sometimes described as evidence of a
propensity or disposition to engage in a type of conduct .…” (People v. Villatoro (2012)
54 Cal.4th 1152, 1159.) However, section 1101 also clarifies that the prohibition against
propensity evidence “ ‘does not prohibit admission of evidence of uncharged misconduct
[or other crimes or acts] when such evidence is relevant to establish some fact other than
the person’s character or disposition’ [citation] with permissible purposes including but
not limited to proving ‘motive, opportunity, intent, preparation, plan, knowledge,
identity, [or] absence of mistake or accident.’ ” (Pineda, at p. 221; see Evid. Code,
§ 1101, subd. (b) (section 1101(b)); People v. Harrison (2005) 35 Cal.4th 208, 229–230
(Harrison).) Further, section 1101(a)’s “restriction on the use of character evidence has
no application when the evidence is offered on the issue of a witness’s credibility,” and
Evidence Code section 1101, subdivision (c) “expressly allows the admission of evidence
for that purpose.” (People v. Abel (2012) 53 Cal.4th 891, 928 (Abel); see Evid. Code,
§ 1101, subd. (c) (section 1101(c)); Villatoro, at p. 1159.)
Even if evidence is otherwise admissible under section 1101, that evidence
nevertheless may be excluded under section 352 if its probative value is substantially
outweighed by the probability that its admission would create a substantial danger of
undue prejudice, issue confusion, or misleading the jury. (People v. Chhuon and Pan

24.
(2026) 19 Cal.5th 1018, 1057 (Chhuon and Pan); Harrison, supra, 35 Cal.4th at p. 229.)
The decision to admit evidence under sections 1101 and 352 is reviewed for an abuse of
discretion, and the evidence is viewed in the light most favorable to the trial court’s
ruling. (People v. Edwards (2013) 57 Cal.4th 658, 711; see Chhuon and Pan, at p. 1057.)
D. Analysis
For at least two reasons, evidence of Lewis’s threats against Emisa was not
inadmissible under section 1101(a). First, evidence that a witness is afraid to testify or
fears retaliation for testifying, as well as an explanation of the basis for the witness’s
fears, are relevant to the credibility of that witness and thus, admissible. (Merriman,
supra, 60 Cal.4th at p. 86; People v. Burgener (2003) 29 Cal.4th 833, 869 (Burgener).)
A witness who testifies despite fears of recrimination or retaliation is more credible
because of the personal stake involved, and juries are entitled to assess that witness’s
credibility with knowledge of such circumstances. (Merriman, at p. 86.) Here, Emisa
admitted she did not want to testify, and she explained that she was fearful of Lewis
based on Lewis’s threats against her. The alleged threats clearly explained why Emisa
was afraid to testify against Lewis, are relevant to Emisa’s credibility and, under
section 1101(c), are expressly excluded from the reach of section 1101(a). (§ 1101(c);
Abel, supra, 53 Cal.4th at p. 928; see also Burgener, at p. 869.)
Second, “a threat made by a defendant against a prospective prosecution witness,
with the apparent intention of intimidating the witness, is properly admitted because an
accused’s efforts to suppress evidence against himself indicate a consciousness of guilt.”
(People v. Vines (2011) 51 Cal.4th 830, 867 (Vines); see also Harrison, supra, 35 Cal.4th
at p. 230 [recognizing that consciousness of guilty is a permissible section 1101(b)
purpose].) Here, the threats against Emisa were made in a hostile and aggressive tone
and were made in reference to either Emisa’s children or Emisa herself. The threats were
related to testimony because Lewis made the threats at the courthouse, called Emisa a
liar, and informed Emisa that she (Lewis) would not be shackled in the courtroom. The

25.
obvious implication is that Lewis was warning Emisa she would be able to attack Emisa
while Emisa was in the process of testifying. The threats scared Emisa and appear to
have been intended to discourage Emisa’s testimony. Therefore, evidence of Lewis’s
threats was admissible for the valid section 1101(b) purpose of showing that Lewis knew
she was guilty of criminal activity against Emisa. (Vines, at p. 867; Harrison, at p. 230.)
As to section 352, the threats were recent, with the first being made about 10 days
before Emisa’s testimony and the second being made the morning of Emisa’s testimony.
The contents of the threats were personal and directed at either Emisa or her children and
related to Emisa testifying. It is apparent that Lewis did not want Emisa to offer any
testimony concerning Lewis’s actions or statements against her. Therefore, under Vines
and Burgener, evidence of Lewis’s threats was highly probative of Emisa’s credibility
and Lewis’s knowledge of her own guilt toward Emisa.
Additionally, Emisa’s testimony did not take a significant amount of court time,12
and it is unclear how or why there would be any meaningful risk that the jury would be
confused or misled by the testimony of Lewis’s threats. Emisa’s testimony was distinct
from the events surrounding Kayla; the prosecutor explained that Emisa’s testimony was
propensity evidence under section 1108; and the jury was instructed regarding the reasons
and burden behind Emisa’s testimony under section 1108. The jury would have
understood that Emisa’s testimony in general was admitted to demonstrate Lewis had a
propensity to commit sexual offenses, and Emisa’s particular testimony about the threats
was admitted for the purpose of helping the jury evaluate Emisa’s testimony and whether
the prosecution had met its section 1108 burden.13 (Cf. Thomas, supra, 14 Cal.5th at

12 As noted above, the entire direct examination, cross-examination, and redirect
examination of Emisa comprised about 21 pages in the reporter’s transcript.
13 Before the jury may consider other sexual offenses as propensity evidence against
a defendant, the prosecution must establish by a preponderance of the evidence that the
defendant committed the other sexual offense. (People v. Holliday (2024) 104
Cal.App.5th 536, 549–550; CALCRIM No. 1191A.)

26.
p. 382 [reviewing courts presume that juries understand, correlate, and correctly apply
instructions].)
Finally, the threats were not graphic or detailed, nor were they numerous or
extensive. Without downplaying the significance of the threats, for purposes of
section 352, the threats were nonspecific and implied general harm against Emisa and her
children. The contents of the threats pale in comparison to the evidence of Lewis’s brutal
and violent actions against Kayla. (Cf. Daveggio and Michaud, supra, 4 Cal.5th at
pp. 825–826 [noting that evidence of an uncharged sexual offense was less prejudicial
because it was not as inflammatory as the charged offense].) Accordingly, we cannot
conclude the contents of the threats were so inflammatory or unduly prejudicial that they
could have caused the jury to decide Lewis’s case based on an emotional response or
improper personal bias against her. (See id. at p. 824 [explaining the meaning of “undue
prejudice” for purposes of section 352]; Tran, supra, 51 Cal.4th at p. 1047.)
Given these considerations, as well as the broad discretion enjoyed by trial courts
in making sections 1101 and 352 determinations (see People v. Aguirre (2025) 18 Cal.5th
629, 687; see also People v. Streeter (2012) 54 Cal.4th 205, 238), the trial court’s
decision to admit evidence of Lewis’s threats against Emisa was not beyond all reason or
so arbitrary, capricious, or absurd that a miscarriage of justice resulted (Johnson, supra,
12 Cal.5th at pp. 605–606). Therefore, the trial court did not abuse its discretion by
allowing Emisa to testify about Lewis’s threats against her.14 (See Johnson, at pp. 605–
606; People v. Edwards, supra, 57 Cal.4th at p. 711; Merriman, supra, 60 Cal.4th at

14 Lewis also argues that admission of the threats violated her constitutional right to
due process. However, the “ ‘ “ ‘routine application of state evidentiary law does not
implicate [a] defendant’s constitutional rights.’ ” ’ ” (People v. Thompson, supra, 1
Cal.5th at p. 1116.) Moreover, because we have concluded that admission of the threat
evidence was not sufficiently prejudicial under section 352, admission of the threat
evidence did not violate Lewis’s constitutional due process rights. (See People v.
Rhoades, supra, 8 Cal.5th at p. 415.)

27.
p. 86; Abel, supra, 53 Cal.4th at p. 928; Tran, supra, 51 Cal.4th at p. 1047; Vines, supra,
51 Cal.4th at p. 867; Burgener, supra, 29 Cal.4th at p. 869.)

III. SUFFICIENT EVIDENCE UNDER SECTIONS 667.61(d)(2) and
667.61(e)(1)
A. Parties’ Arguments
Lewis contends insufficient evidence supported the jury’s true findings for
aggravated kidnapping under section 667.61(d)(2) and simple kidnapping under
section 667.61(e)(1). Lewis argues the movement from outside of room 20 to inside of
room 20 was a minimal distance that was incidental to the rape by penetration.
Specifically, Lewis argues that because Kayla was laying on the ground in front of the
door when the rape occurred, the movement was merely crossing the threshold of
room 20 and was the continuation of the assault that had begun outside the room. Lewis
also avers there was no evidence the movement substantially increased any risk to Kayla.
Because she was already hitting and kicking Kayla outside of room 20, Kayla was able to
temporarily escape by twice locking herself in the bathroom, and Kayla was able to
scream for help inside and outside of room 20, there is insufficient evidence the
movement made detection less likely, escape more dangerous, or increased her ability to
commit more crimes against Kayla, Lewis contends.
The People contend substantial evidence supports the jury’s true findings. The
People argue the jury was able to view video evidence of the motel in assessing the actual
distance moved. The People also maintain that dragging Kayla into the motel changed
the environment, concealed Kayla from public view, decreased Kayla’s ability to escape,
and increased the risks and danger to Kayla. Once Kayla was inside, the People assert,
Lewis escalated her attacks and used various objects to beat and rape Kayla. These
considerations demonstrate that dragging Kayla was not incidental to the rape but instead
constituted a substantial distance that substantially increased Kayla’s risk beyond the risk
inherent in rape by penetration, according to the People.

28.
B. Legal Standards
1. Sufficiency of the Evidence
In assessing the sufficiency of the evidence, appellate courts review the entire
record in the light most favorable to the judgment to determine whether it contains
substantial evidence (evidence that is reasonable, credible, and of solid value) from which
a reasonable trier of fact could find guilt beyond a reasonable doubt. (Chhuon and Pan,
supra, 19 Cal.5th at p. 1070; People v. Renteria (2022) 13 Cal.5th 951, 970 (Renteria).)
Reviewing courts must presume in support of the judgment the existence of every fact
that the trier of fact could have reasonably deduced from the evidence. (Chhuon and
Pan, at p. 1070; Renteria, at p. 970.) Conflicts in the evidence are resolved in favor of
the judgment. (People v. Helzer (2024) 15 Cal.5th 622, 646.)
Substantial evidence may be contradicted or uncontradicted (People v. Bassett
(1968) 69 Cal.2d 122, 138), include erroneously admitted evidence (notwithstanding the
error of the evidence’s admission) (People v. Cardenas (2025) 18 Cal.5th 797, 821), and
may include both circumstantial evidence and all the reasonable inferences that may be
drawn from the circumstantial evidence (People v. Bertsch and Hronis (2026) 19 Cal.5th
183, 317). Further, determining a witness’s credibility, and resolving conflicts and
inconsistencies in testimony, are the exclusive province of the trier of fact. (See People
v. Alvarez (2025) 18 Cal.5th 387, 470; People v. Oyler (2025) 17 Cal.5th 756, 827
(Oyler).) A jury may believe all, part, or none of a witness’s testimony. (Thomas, supra,
14 Cal.5th at p. 394.) Reviewing courts do not reweigh evidence or reevaluate a
witness’s credibility. (Renteria, supra, 13 Cal.5th at p. 970.)
The power of reviewing courts to assess the sufficiency of the evidence begins and
ends with a determination as to whether any substantial evidence supports the judgment.
(People v. Bassett, supra, 69 Cal.2d at p. 138; People v. Ghipriel (2016) 1 Cal.App.5th
828, 832.) As long as the circumstances reasonably justify the jury’s findings, the
judgment may not be reversed simply because the circumstances may also be reasonably

29.
reconciled with a contrary finding. (Oyler, supra, 17 Cal.5th at p. 820; Renteria, supra,
13 Cal.5th at p. 970.) That is, the judgment will be upheld even if there is also substantial
evidence that is contrary to the judgment. (People v. Helzer, supra, 15 Cal.5th at p. 646.)
2. Section 667.61(d)(2)
The One Strike law sets forth an alternative and harsher sentencing scheme for
certain sex crimes (In re Vaquera (2024) 15 Cal.5th 706, 713); it is not an enhancement
that adds an additional term of imprisonment to a base term (People v. Waqa (2023) 92
Cal.App.5th 565, 577 (Waqa)). The One Strike law applies when the prosecution pleads
and proves specific factual circumstances in addition to the elements of the underlying
sex offense. (Vaquera, at p. 713.) One such circumstance involves aggravated
kidnapping and applies when the “defendant kidnapped the victim of the present [sex]
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 [sex
offense].” (§ 667.61(d)(2); Waqa, at pp. 577, 585.) To prove the aggravated kidnapping
circumstance relevant here, the prosecutor must in part meet a victim movement or
asportation element. (Waqa, at p. 576; People v. Perkins (2016) 5 Cal.App.5th 454, 465–
466.) Specifically, the prosecutor must show that: “ ‘(1) the movement was substantial
in character, and not merely incidental to the commission of the sex crime [citation], and
(2) “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” sex offense.’ ”
(Waqa, at p. 579; Perkins, at p. 466.) These two prongs are distinct yet interrelated
because the significance of a victim’s change in environment cannot be considered
without also considering whether the change increased the risk of harm to the victim.
(Waqa, at p. 579.)
Whether a victim has been moved a “substantial distance” is determined by
examining the totality of the circumstances. (People v. Gomez (2018) 6 Cal.5th 243, 304;
Waqa, supra, 92 Cal.App.5th at p. 578.) Relevant considerations include “ ‘whether that

30.
movement increased the risk of harm above that which existed prior to the asportation,
decreased the likelihood of detection, and increased both the danger inherent in a victim’s
foreseeable attempts to escape and the attacker’s enhanced opportunity to commit
additional crimes.’ ” (Gomez, at p. 304; Waqa, at p. 578.) The movement must be more
than trivial and must be “ ‘more than that which is merely incidental to the commission or
attempted commission of the [sex crime].’ ” (People v. Dominguez (2006) 39 Cal.4th
1141, 1150 (Dominquez); Waqa, at p. 578.) Generally, movements of relatively short
distances will be considered substantial, and not incidental or trivial, where the
movement results in a substantial change in the context of the environment. (People v.
Ellis (2025) 108 Cal.App.5th 590, 598–599 (Ellis); Waqa, at p. 578.) Further, while the
jury may consider the actual distance traveled, the precise distance need not be proven
and there is no minimum distance that is required. (Ellis, at p. 598; Waqa, at p. 578.)
Whether movement substantially increases the risk of harm over and above the
risk inherent in the underlying sex offense is determined by examining the totality of the
circumstances and may include “ ‘ “ ‘such factors as the decreased likelihood of
detection, 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 pp. 579–580; People v. Salazar (1995) 33 Cal.App.4th 341, 348
(Salazar).) The term “substantial” is a relative term that describes a considerable or
significant degree or increase. (Waqa, at pp. 579–580.)
3. Section 667.61(e)(1)
The One Strike law includes a penalty for simple kidnapping, which applies when
“the defendant kidnapped the victim of the present [sex] offense in violation of
[s]ection 207 ….” (§ 667.61(e)(1); Waqa, supra, 92 Cal.App.5th at pp. 577, 586.) As
relevant here, like aggravated kidnapping under section 667.61(d)(2), simple kidnapping
under section 667.61(e)(1) contains an asportation element. (Waqa, at p. 576.) “To
establish asportation for simple kidnapping, the prosecution must prove the victim’s

31.
movement was ‘ “substantial in character” ’ ” under the totality of the circumstances.
(People v. Perkins, supra, 5 Cal.App.5th at p. 465; see Ellis, supra, 108 Cal.App.5th at
p. 597; Waqa, at p. 578.) There is no minimum distance that must be met, and the actual
distance traveled need not be proven, to satisfy the asportation requirement. (Ellis, at
p. 598; Waqa, at p. 578.) Because both sections 667.61(d)(2) and 667.61(e)(1) require
the kidnapping of the victim of the sex offense, “it is impossible to meet the elements of
the aggravated kidnapping circumstance without also meeting the elements of the
[simple] kidnapping circumstance.” (Waqa, at p. 586.)
C. Analysis15
1. Section 667.61(d)(2) – aggravated kidnapping
Lewis challenges both requirements of the section 667.61(d)(2) asportation
element and contends her movement of Kayla was not substantial and did not
substantially increase the danger posed to Kayla. Viewing the evidence in the light most
favorable to the judgment, and presuming every fact in support of the judgment the jury
could have reasonably deduced (Chhuon and Pan, supra, 19 Cal.5th at p. 1070), we are
satisfied sufficient evidence supports both asportation elements.
The prosecutor explained to the jury the asportation element was met when Lewis
dragged Kayla by the hair from outside room 20 to inside room 20. Kayla never testified
as to the distance she was dragged by the hair, and the prosecution did not present
evidence that attempted to quantify the distance. Kayla did testify they had begun to
fight after she stepped out of the other motel room and continued to fight “in front of [my

15 We note that, irrespective of whether sufficient evidence supports the jury’s
findings under sections 667.61(d)(2) and 667.61(e)(1), the jury’s true findings on
section 667.61, subdivisions (d)(3) and (d)(6) will remain. Because Kayla was 17 years
old at the time, rape under section 289, subdivision (a) is a qualifying offense, and other
section 667.61 subdivision (d) findings remain, under the plain language of
section 667.61(l), the trial court would still be required to impose an LWOP sentence on
count 3. (§ 667.61(l).)

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motel] room.” The video recordings show each motel room, including Kayla’s, has a
front door and a large window. Because Kayla testified they were fighting in front of the
motel room, as opposed to in front of the motel room’s door, the jury could reasonably
conclude Kayla and Lewis were not in front of room 20’s door and Lewis dragged Kayla
several feet along the walkway and into the motel room. (Chhuon and Pan, supra, 19
Cal.5th at p. 1070.) We agree, however, the video and testimonial evidence suggest this
distance was not great—perhaps less than 12 feet. Nevertheless, there is no minimum
distance for asportation. (Waqa, supra, 92 Cal.App.5th at p. 578; see also People v.
Shadden (2001) 93 Cal.App.4th 164, 169 (Shadden) [movement of nine feet found to be
substantial under the circumstances].) Under the totality of the circumstances, substantial
evidence demonstrates Lewis moved Kayla a substantial distance and the movement
substantially increased the risk to Kayla.
First, Lewis moved Kayla from a place that was open to view by others to an
enclosed private room. Lewis thereby materially changed the environment before she
committed rape by penetration against Kayla. Such a material change in environment is
generally considered a substantial movement, irrespective of the actual distance involved.
(Ellis, supra, 108 Cal.App.5th at pp. 598–599; Waqa, supra, 92 Cal.App.5th at p. 578;
Shadden, supra, 93 Cal.App.4th at p. 169 [finding substantial movement where the
defendant changed the victim’s environment by hitting and dragging the victim nine feet
from an open area to a closed room and then attempted to rape the victim]; see also
Dominguez, supra, 39 Cal.4th at p. 1153; Salazar, supra, 33 Cal.App.4th at p. 347
[finding substantial movement where the defendant moved the victim from an outside
walkway to a motel room].) Under this well-established authority, the jury was permitted
to conclude that the distance moved was substantial.
Second, “ ‘where 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; Shadden, supra, 93 Cal.App.4th at p. 169.)

33.
More particularly, “ ‘a rape victim is certainly more at risk when concealed from public
view and therefore more vulnerable to attack.’ ” (Waqa, supra, 92 Cal.App.5th at p. 581;
People v. Robertson (2012) 208 Cal.App.4th 965, 985 (Robertson); see also Salazar,
supra, 33 Cal.App.4th at p. 348.) Since the jury found that Kayla was a rape victim, and
Kayla’s testimony demonstrates Lewis moved her from a part of the motel that was open
to view into a private enclosed room, the jury was entitled to conclude that moving Kayla
into room 20 increased Kayla’s risk of harm beyond that which is inherent in the rape.
(Robertson, at p. 985; Aguilar, at p. 1048; Shadden, at p. 169; Salazar, at p. 348.)
Moreover, as Kayla’s testimony demonstrated, moving her into the closed room
gave Lewis the opportunity and ability to harm and assault Kayla in ways that she either
could not or would not be able to do if Kayla had remained outside and in view of others.
For example, based on Kayla’s testimony, by moving Kayla into room 20, Lewis was
able to remove the heating vent and beat Kayla with it. The movement also permitted
Lewis to assault Kayla over a prolonged period, approximately two hours, albeit with
two interruptions in which Kayla was able to lock herself in the bathroom. During that
two-hour period, Kayla endured multiple ruthless assaults, including being bitten on her
head, having her hair pulled or bitten out, being forced to drink chemicals, being beaten
all over her body with fists, feet, and objects, and having her vagina and anus forcefully
penetrated. Lewis was able to do such violence to Kayla without anyone seeing or
intervening because she dragged Kayla indoors. Given the objects available to Lewis, the
privacy afforded to Lewis by the closed door, and the length and severity of the beatings
and assaults, moving Kayla into the motel room greatly increased Lewis’s ability and
opportunity to commit numerous crimes against Kayla in addition to rape by penetration.
(See Ellis, supra, 108 Cal.App.5th at p. 597; Waqa, supra, 92 Cal.App.5th at p. 578;
Robertson, supra, 208 Cal.App.4th at p. 985; Aguilar, supra, 120 Cal.App.4th at p. 1048;
Shadden, supra, 93 Cal.App.4th at p. 169; Salazar, supra, 33 Cal.App.4th at p. 348.)

34.
Third, dragging Kayla into the motel room made it less likely that Lewis’s actions
against Kayla would be detected. (Salazar, supra, 33 Cal.App.4th at p. 348.) It is
self-evident that actions that take place behind a closed door are significantly more
difficult to detect than those that take place in the open. (See ibid.) Further, because the
motel room was an enclosed space, Lewis’s actions made it more difficult and dangerous
for Kayla to escape while Lewis was present. (See Dominguez, supra, 39 Cal.4th at
p. 1153; Ellis, supra, 108 Cal.App.5th at pp. 597, 599; Robertson, supra, 208
Cal.App.4th at p. 985; Salazar, at p. 348.) In order to escape, Kayla would either have to
wait until Lewis left the room, hope that Lewis would eventually stop and let her go, or
attempt to fight her way through Lewis. Kayla’s testimony confirmed that Lewis
attacked her over a two-hour period, and three of the cell phone videos and one security
video demonstrated that Kayla was unable to effectively defend herself, thereby
highlighting the risk posed to Kayla in an enclosed space.
Further, the attack included an incident in which Lewis lied to get Kayla to come
out of the locked bathroom. Lewis falsely promised to get Kayla medical help if Kayla
would just open the bathroom door. When Kayla complied, Kayla did not receive help or
treatment. Instead, Lewis assaulted Kayla more. In contrast, if Lewis had not dragged
Kayla into room 20, Kayla would have remained visible to others in a relatively open
area and would have been able to be heard when she screamed for help without
impediment, run to the front desk, and/or run to nearby Union Street and attempt to get
help. (Salazar, supra, 33 Cal.App.4th at p. 348.) Dragging Kayla into the motel room
made detection significantly less likely and made injuries from attempts to escape more
likely. (Ibid.)
Lewis argues that, because Kayla had begun to scream for help before she was
dragged into the room, and screamed for help inside of room 20, dragging Kayla into the
room did not make detection less likely. We disagree. First, simply because Kayla
screamed for help without success does mean the odds of detection were the same inside

35.
and outside of the room; it simply means Kayla’s attempts to obtain help by screaming at
those times failed. Second, it is unknown why the attempts failed. It could be that the
attempts failed because people could not determine, or did not see, from where the
screams were coming because Kayla had been moved inside and was out of view.
Finally, Lewis’s argument is contrary to established case law that recognizes the
commonsense proposition that moving a person from an open visible space to a closed or
nonvisible space inherently decreases the likelihood of detection. (See Salazar, supra, 33
Cal.App.4th at p. 348; People v. Ellis (1971) 15 Cal.App.3d 66, 73.)
Finally, the movement was more than incidental to Lewis committing a rape by
penetration. “Where a defendant drags a victim to another place, and then attempts a
rape, the jury may reasonably infer that the movement was neither part of nor necessary
to the rape.” (Shadden, supra, 93 Cal.App.4th at p. 169; see Waqa, supra, 92
Cal.App.5th at p. 584; Robertson, supra, 208 Cal.App.4th at p. 984.) That is precisely
what happened in this case. Lewis dragged Kayla by the hair into the motel room where
she proceeded to attack, assault, and rape Kayla over the course of two hours. Lewis
could attempt or commit the crime of rape without moving Kayla into the motel room.
(See Salazar, supra, 33 Cal.App.4th at p. 347.) “[W]hile the movement was perhaps
incidental to [Lewis’s] particular plan for rape [by avoiding detection and making the
rape easier to commit], [the movement] was not incidental to the actual commission of
the crime itself.” (Ibid.)
Lewis argues the movement was incidental to the rape because Kayla testified she
was raped with the chair leg near the room’s door and Lewis had begun beating her
before they entered room 20. We cannot agree.
The rape by penetration of Kayla inside of room 20 was a legally distinct act that
was different in kind from the physical attack that had begun outside the room. Also,
Kayla’s and Montgomery’s testimony showed that once Kayla was inside the motel
room, the character and intensity of the attack substantially increased in part because

36.
Lewis used various items to attack and harm Kayla, including a chair, shampoo or
cleaning supplies, a vent, and the toilet. The nature and degree of escalation of Lewis’s
attack was not merely the natural continuation of the physical attack that had begun
outside.
It is true that Kayla testified she was raped with the chair leg while sitting near the
door. However, Kayla also testified that other aspects of the attack had occurred before
the rape in front of the door, including being beaten, forced onto the bed, and then forced
onto the floor. The jury could infer from Kayla’s testimony that there was additional
significant movement inside the room prior to the rape. (Chhuon and Pan, supra, 19
Cal.5th at p. 1070.) The jury was also entitled to view Kayla’s testimony and the video
depictions of the exterior of the motel rooms as meaning that Kayla was not standing
immediately in front of the door when Lewis dragged her into the motel room. (Ibid.; see
also Oyler, supra, 17 Cal.5th at p. 827; Thomas, supra, 14 Cal.5th at p. 394.) Simply
because Kayla ultimately ended up on the floor close to the door when she was raped
with the chair leg does not mean she was moved only across the door’s threshold or she
was raped quickly after she was dragged into the room. Accordingly, viewing the
evidence in the light most favorable to the verdict, and accepting all reasonable
deductions from the evidence (Chhuon and Pan, supra, 19 Cal.5th at p. 1070), there is
substantial evidence that Lewis dragging Kayla into the motel room was not merely
incidental to the rape by penetration. (See Waqa, supra, 92 Cal.App.5th at p. 584;
Robertson, supra, 208 Cal.App.4th at p. 984; Shadden, supra, 93 Cal.App.4th at p. 169;
Salazar, supra, 33 Cal.App.4th at p. 347.)
The above considerations show that Lewis dragging Kayla by the hair into
room 20 was not trivial or merely incidental to any kind of rape, but was instead
substantial movement that dramatically changed the environment, greatly increased
Lewis’s ability to commit numerous criminal acts against Kayla, limited Lewis’s acts
from being detected, and significantly hindered Kayla’s ability to escape or get help.

37.
Simply put, by dragging Kayla into the shielded and enclosed motel room, Lewis was
able to control Kayla’s movements and to inflict brutal, multifaceted, and prolonged
beatings and rapes without being detected. As such, there was more than sufficient
evidence to support the jury’s implied findings under section 667.61(d)(2) that Lewis
moved Kayla a substantial distance and that the movement substantially increased the
risk of harm to Kayla beyond the harm inherent in rape by penetration. (See
§ 667.61(d)(2); Dominguez, supra, 39 Cal.4th at p. 1153; Ellis, supra, 108 Cal.App.5th at
p. 597; Waqa, supra, 92 Cal.App.5th at pp. 578, 584; Robertson, supra, 208 Cal.App.4th
at pp. 984–985; Aguilar, supra, 120 Cal.App.4th at p. 1048; Shadden, supra, 93
Cal.App.4th at p. 169; Salazar, supra, 33 Cal.App.4th at pp. 347–348.)
2. Section 667.61(e)(1) – simple kidnapping
Lewis’s arguments against the jury’s section 667.61(e)(1) true finding are limited
to the asportation element. Specifically, Lewis contends that dragging Kayla into the
motel room by her hair was an insubstantial movement or a movement that was merely
incidental to the rape by penetration.
“[I]t is impossible to meet the elements of the aggravated kidnapping circumstance
without also meeting the elements of the [simple] kidnapping circumstance.” (Waqa,
supra, 92 Cal.App.5th at p. 586.) Here, we have already determined with respect to
section 667.61(d)(2) that Lewis dragging Kayla from somewhere outside the motel room
to inside the motel room was a substantial movement that was neither trivial nor
incidental to the rape of Kayla. (See Waqa, at pp. 578, 584; Robertson, supra, 208
Cal.App.4th at pp. 984–985; Aguilar, supra, 120 Cal.App.4th at p. 1048; Shadden, supra,
93 Cal.App.4th at p. 169; Salazar, supra, 33 Cal.App.4th at p. 347.) For the same
reasons that substantial evidence supports the asportation elements of
section 667.61(d)(2), substantial evidence also supports the asportation element of
section 667.61(e)(2). (Waqa, at p. 586.)

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IV. MODIFICATION OF VERDICT FORM
A. Parties’ Arguments
Lewis contends the jury answered “true” to the question of whether she
“personally use[d] a dangerous or deadly weapon or firearm within the meaning of …
[s]ection 667.61(e)(3)?” Lewis argues that because there was no evidence that a firearm
was ever used, the insertion of the term firearm was a clerical error. Lewis argues that to
conform the verdict form to the evidence presented, and to ensure that there is no
confusion about what weapons were actually used for purposes of possible future
proceedings, it is appropriate to strike the term firearm from the verdict form.
The People contend no correction or modification of the verdict form is necessary.
First, the People argue the verdict form correctly reflects the jury’s intention of finding
that a dangerous weapon was used. The verdict form did not state Lewis used a firearm
but instead stated Lewis used a dangerous or deadly weapon or a firearm. The People
argue use of the term or means the true finding does not mean a firearm was actually
used. Second, the People argue any error was harmless because striking the term firearm
will not change or would not change the jury’s findings.
B. Additional Background
The signed portion of the verdict form reads: “We, the Jury, empaneled to try the
above-entitled case, find it to be true that the defendant, [Lewis], did personally use a
dangerous or deadly weapon or firearm within the meaning of [section 667.61(e)(3)], as
alleged in the Third count of the Information.” In turn, the operative information under
count 3 (for rape by penetration under § 289, subd. (a)(1)(A)) alleged that Lewis “did
personally use a dangerous or deadly weapon or firearm … within the meaning of
[section 667.61(e)(3)].”
Prior to closing arguments, the trial court’s written jury instructions included
CALCRIM No. 3145, which explains personal use of a dangerous or deadly weapon
under section 667.61(e)(3). CALCRIM No. 3145 is limited to only the use of a

39.
dangerous or deadly weapon; it does not refer to firearms. Consistent with the written
instructions, the court’s oral instructions with respect to section 667.61(e)(3) referred
only to the use of a “deadly or dangerous weapon” and did not include “firearms.” Also
consistent with the written instructions, the prosecutor’s closing argument did not
mention firearms, and the prosecutor expressly told the jury she was relying on the chair
leg and the heater vent to be the dangerous or deadly weapon for purposes of section
667.61(e)(3).
C. Analysis
The parties’ arguments show there is no dispute that, despite the allegation in the
information under count 3, Lewis did not use a firearm during the commission of her rape
by penetration of Kayla.16 This agreement is consistent with the record before us.
The record shows there was no evidence that Lewis used a firearm during the
commission of the rape by penetration of Kayla, and the trial court’s written and oral jury
instructions did not expressly mention firearms. The prosecutor also expressly stated the
weapons at issue for purposes of section 667.61(e)(3) were the heater vent and the chair
leg, and the attorneys during their respective closing arguments never mentioned
firearms.
These considerations lead to two conclusions. First, the jury’s verdict could not be
based on Lewis using a firearm. Second, the verdict form’s use of the term firearm for
purposes of count 3 conformed only to the general language of section 667.61(e)(3) and
did not conform to either the evidence presented or the arguments and theories of the

16 We note the People appear to read Lewis’s argument as an attempt to obtain relief
from her conviction or sentence. That is not Lewis’s argument. Lewis’s briefing makes
clear that she is attempting to correct a clerical error only; she is not attempting to
undermine the section 667.61(e)(3) finding or argue there was insufficient evidence to
support the jury’s true finding.

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prosecution. Under these circumstances, we are satisfied that inclusion of the term
firearm for purposes of count 3 and section 667.61(e)(3) was a clerical error.
Courts have the inherent power and discretion to correct clerical errors so that
court records accurately reflect the true facts. (People v. Alanis (2008) 158 Cal.App.4th
1467,1473–1474.) This includes clerical errors that appear in a jury’s verdict form.
(People v. Trotter (1992) 7 Cal.App.4th 363, 370.) Given that it is undisputed that the
term firearm was actually a stranger to the facts and theories of this case, for accuracy’s
sake and for the record to clearly reflect the true state of the facts, we will exercise our
discretion and direct the trial court to strike the phrase “or firearm” from page 11 of the
verdict form. (Alanis, at pp. 1473–1474; Trotter, at p. 370.)
DISPOSITION
The trial court is directed to strike the phrase “or firearm” from page 11 of the
verdict form. The judgment is otherwise affirmed.

HARRELL, J.
WE CONCUR:

HILL, P. J.

MEEHAN, J.

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