Filed 10/15/26 P. v. Neal CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B342058
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No.
v. XCNBA499178)
MARTEL RASHON NEAL,
Defendant and Appellant.
Appeal from a judgment of the Superior Court of
Los Angeles County, Mark Hanasono, Judge. Affirmed.
Marilee Marshall, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Wyatt E. Bloomfield, Supervising
Attorney General, and Zachary John Crvarich, Deputy Attorney
General, for Plaintiff and Respondent.
_______________________
INTRODUCTION
Martel Rashon Neal appeals from the judgment after a jury
convicted him of multiple sex crimes against several women.
Neal argues: (1) the trial court abused its discretion in admitting
evidence of his prior sexual misconduct; (2) CALCRIM No. 1243,
which the court gave on the elements of human trafficking (Pen.
Code, § 236.1, subd. (b)),1 failed to instruct the jury that the
People had to prove the victim did not consent; (3) substantial
evidence did not support his conviction for kidnapping for ransom
(§ 209, subd. (a)); (4) substantial evidence did not support his
conviction for simple kidnapping (§ 207, subd. (a)) or the jury’s
true finding on the allegation under the one strike law (§ 667.61,
subd. (d)(2)); and (5) the court erred in failing to instruct the
jurors that they had to agree unanimously on a specific act of
sodomy he committed. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Neal Commits Sex Crimes Against Multiple
Women and Kidnaps a Child for Ransom
1. D.J. and M.J.
In March 2021 D.J., who was 24 years old and homeless,
met Neal while waiting in line to pick up a “stimulus” check at a
county public assistance office. D.J. planned to use the check to
rent an apartment for herself and her autistic five-year-old son
M.J. Neal started a conversation with D.J. and brought up the
subject of “sex work.” D.J. said she did not do that type of work,
1 Undesignated statutory references are to the Penal Code.
2
but Neal continued to discuss sex work and said, “I would have
you sucking dick.” D.J. reiterated, “No, I don’t do that,” but Neal
persisted. After D.J. picked up her check, Neal accompanied her
to pay the security deposit for the apartment.
After a stop at a marijuana store, Neal suggested to D.J.
that they get a room in a motel. D.J. drove to the homeless
shelter, retrieved her belongings, and paid for a motel room. D.J.
thought Neal was a “potential boyfriend” and had sex with him.
When D.J. told Neal of her feelings for him, Neal said, “I don’t do
relationships.”
Two days later, Neal moved into D.J.’s apartment. Two
weeks after that, Neal became violent toward D.J. Neal told D.J.
to “stand outside and sell sex.” When she refused, Neal grabbed
her neck and choked her. D.J. eventually began working as a
prostitute because she feared Neal would harm her if she refused.
Neal slapped D.J. “kind of hard,” choked her to the point where
she saw “black” and “stars,” and hit her legs.
Neal introduced D.J. to the “commercial sex trade.” Neal
instructed D.J. on the “rules” of prostitution, including how to
treat customers and what to say to them. Neal told D.J. to put
the money she earned in her bra or wig and to give him the
money when they reconvened. D.J. complied, though she once
tried to take some of the money for herself. Neal drove D.J. to
the areas in Los Angeles he wanted her to work, told her how
much to charge, and supplied her with condoms, which he told
her to always use.
While D.J. worked on the streets, typically between
midnight and 6:00 a.m., Neal had “physical possession” of M.J.
D.J. wanted to leave M.J. with friends who could take care of him
while she did commercial sex work, but Neal told D.J. that he
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would watch him because Neal “didn’t want nobody in their
business.” D.J. agreed to leave M.J. with Neal because she did
not want to get hurt. Neal threatened to harm M.J. if D.J.
disobeyed him. Once, when D.J. did not do what Neal wanted,
Neal told her that he was going to take M.J. and leave him “on a
train.” D.J. worried about M.J. whenever she left him with Neal
because M.J. was nonverbal.
Neal taught D.J. how to post advertisements on the
internet to solicit customers and gave her a “trap” phone to use
for communicating with the “dates” she arranged with her
customers. D.J. followed Neal’s directions to advertise sex
services by posting photos of herself on the websites Neal
specified, performed those services, and gave Neal all the money
she received from each commercial sex call.
Because M.J. had special needs, D.J. received money from
the county to provide care for him. D.J. gave Neal the passcode
to the account where she received the government benefits and
the keys to her apartment because she feared Neal would harm
her if she refused.
D.J eventually no longer wanted to have sex with Neal, but
she believed she had to because Neal forced his penis into her
anus as “punishment” when she declined to have vaginal sex with
him. Neal also inserted his penis into D.J.’s mouth and vagina
“against her will.” D.J. was afraid of Neal and could not fight
him because he was much larger than she was and, when she
once fought back, he choked her even harder.
In June 2021 D.J. turned off her location tracking, locked
herself and M.J. inside her bedroom, and called 911 from her
“trap” phone (Neal had taken D.J.’s phone, apartment key, and
money). Neal broke open the door to the bedroom, took off his
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belt, and whipped D.J. After this incident, Neal’s violent
behavior toward D.J. increased.
On September 22, 2021, while D.J. was on the street
working, she turned off her location tracking and went back to
her apartment; when Neal returned, he beat D.J. for turning off
her location tracking. Neal told D.J. to get dressed and go back
out to work. D.J. pretended to leave for work, but when she saw
Neal was on the phone, she grabbed M.J. and ran out of her
apartment. D.J. ran down a long hallway and made it outside of
the apartment building, but Neal caught her, covered her mouth,
and told her to “shut up.” Neal dragged D.J. back into the
building, down the hallway, and into the apartment. Neal
checked under D.J.’s bra, saw a $20 bill, choked D.J., and
whipped her with his belt. Neal then forced his penis into her
mouth and anus. After Neal finished assaulting D.J., he told her
to get ready to go to work. D.J. put on a dress Neal had
purchased for her to make Neal think she intended to go out on
the street to work. D.J. did not want to leave M.J. with Neal, but
she did so because she “had to basically do whatever he said.”
D.J. walked out to the street and called her mother. D.J.
told her mother that Neal had M.J., that he made D.J. sell her
body, and that she “was hiding under a car.” Neal called D.J. and
told her that he was out looking for her. D.J. initially told Neal
that she was on a “date,” but eventually said she did not want to
work on the streets anymore. Neal said, “If you don’t have no
money when I see you, I guarantee you won’t see your son.”
D.J.’s mother called the 911 emergency operator. The
police went to D.J.’s apartment and arrested Neal. An officer
took the apartment keys from Neal and gave them to D.J. D.J.
went inside her apartment and found M.J. asleep on the couch.
5
M.J.’s lip “was bleeding,” an injury that D.J. believed Neal
inflicted.
2. E.L.
On April 28, 2023 E.L. went to a pharmacy near the
campus of the university she attended. After she finished
shopping, E.L. ordered a ride from a rideshare company and
stood outside the pharmacy waiting for her designated driver.
Neal approached E.L. and started “to make lewd comments”
toward her. Neal complimented E.L., touched her hair, and
stated, “I would do anything to get with you.” Neal proceeded to
grope E.L. Neal hugged E.L. tightly, rubbed his body against
her, and touched her neck, shoulders, and buttocks. E.L. felt
“very scared,” “intimidated,” and “overpowered.” Neal asked E.L.
for her number, and E.L. gave Neal a fake number. When Neal
figured out E.L. had given him a fake number (Neal called the
number, and E.L.’s phone did not ring), Neal told E.L. to give him
her phone. Neal took E.L.’s phone and called his phone. When
E.L.’s driver arrived, Neal showed E.L. a video on his phone of “a
woman sucking his penis” and told E.L., “I think you can do
better than this.” E.L. reported the encounter to the university’s
department of public safety.
3. Sheila O.
On April 29, 2023 (the day after the incident with E.L.)
Sheila O., a student at the same university E.L. attended, was
contacted by Neal, whom she had met “some time ago” in a store.
Neal “insisted on coming over.” When Neal arrived at Sheila’s
apartment, he “started forcing himself” on her, while she kept
telling him “to stop.” Neal became even more aggressive, grabbed
6
Sheila by the neck, choked her so it was hard to breathe, and
said, “You can’t tell me what do to.” Sheila began to cry, and
Neal said he was “sorry” and tried to comfort her. Sheila felt
scared because Neal “was really aggressive,” and she realized she
had to allow him to do what he wanted, which was “to have sex,”
because “that was the only way he was gonna leave.”
Sheila “let him have his way.” Neal took off Sheila’s
clothes, made her stand by the bed, bent her over the bed, and
from behind put his penis inside her and moved back and forth
for five minutes. When Neal stopped, he fell asleep. When he
woke up, Sheila said she needed to go to school and called for a
ride to pick her up. Neal left her apartment. Sheila cancelled
her ride and slept for several hours.
When she woke up she saw a crime alert bulletin the
university issued about a man with a description that matched
Neal. Sheila called the university’s department of public safety
and said she might know the person described in the bulletin.
Sheila also told the dispatcher Neal “did the same” thing to her
when she was with him in her apartment. Campus security
officers interviewed Sheila, who said that when she first met
Neal he “forcefully got her phone” or “asked her for her phone,”
input his phone number, and called himself from her phone to
obtain her phone number.
B. The People Charge Neal, and Neal’s Victims
Testify at Trial
The People charged Neal with crimes he committed against
D.J. and M.J. in 2021 and crimes he committed against E.L. and
7
Sheila in 2023. At trial, the People called D.J., E.L., Sheila,2
D.J.’s mother, and the officers who investigated the crimes.
The People also presented evidence of prior acts of sexual
misconduct by Neal. V.C. testified that, one evening in 2015,
when she was 26 years old, she and a coworker, who had too
much to drink, were standing on a street in San Francisco,
waiting for their ride to arrive when Neal, who was parked on the
side of the road, beckoned to V.C. and asked if she needed a ride.
Neal’s car had labels on it that indicated he worked for two
rideshare companies. V.C. and her coworker got into Neal’s car,
Neal began driving, and V.C. began talking to her coworker,
sharing that she needed to take her child to preschool in a few
hours. The coworker started to feel sick, and Neal yelled, “I don’t
want her throwing up in my car” and slowed down to let the
coworker out to throw up. After her coworker got out, V.C.
gathered her belongings to get out of the car too, but Neal
accelerated, knocking V.C. into the backseat. Neal pointed a gun
at V.C. and said, “You’re going to do exactly what I say or else
you’ll never see your son again.”
2 Sheila attempted to recant some of the statements she
made when she reported Neal sexually assaulted her on April 29,
2023. For example, Sheila admitted she told one of the officers
that Neal became “aggressive,” a term she testified meant
“violent,” but stated that, on the date of the incident she used the
term to mean “abnormal behavior.” Sheila also stated that, when
she spoke to the police officers, she “might have said that [she]
was made to do things when [she] wasn’t specifically made to.”
The People introduced a recording of a call Neal made from his
jail cell telling his brother that he was in jail for an incident
involving Sheila and asking him to contact Sheila to tell her “to
fix this immediately.”
8
Neal told V.C. to “suck his dick.” Neal parked in a dimly lit
area, directed V.C. to get out of the car, and pressed the gun into
her back. Neal pulled V.C.’s pants down and put his penis inside
her vagina. Neal drove V.C. to another location and, with the
gun pressed on her neck, forced her to perform oral sex on him.
Neal drove V.C. to a remote location, parked, and motioned for
V.C. to sit on the hood of his car; Neal talked about his life and
apologized to V.C. Neal asked V.C. to tell him her address so he
could drive her home, and V.C. typed into Neal’s navigation
system an address near her home. On the way to that location,
Neal stopped by a park, told V.C. to get out, and forced her to
have vaginal and anal intercourse with him. Neal finally drove
V.C. to the location she had given him, but before letting her out,
Neal said, “I’m really not a bad guy. I think that if we had met
under different circumstances, you would really like me, and I’m
sorry that things might have gotten off in a weird way today.”
Neal asked V.C. for her phone number, V.C. complied (intending
to change her number as soon as she got home), and Neal
“immediately” called the number to confirm it was V.C.’s phone.
Asha A. testified that, one day in 2017, when she was
19 years old, Neal sat next to her on a bus and asked her for her
number; Asha refused, but Neal started to pull on her braids, kiss
her neck, and lick her ear. Neal sat back and showed Asha his
erect penis through his pants and said there was “nothing small”
about him. Neal asked for her number again, and Asha felt
scared and gave him her number, thinking that doing so would
make him leave her alone. When Asha got off the bus, she
received a text message from Neal stating that he knew she was
“turned on” by him and that she “was wet.” Later that day, Neal
called Asha, telling her he planned to buy some condoms and
9
asking her to meet him. Asha told her mother about the
encounter with Neal, Asha’s stepfather went with Asha to meet
Neal, and the two men engaged in a “verbal altercation.”
A “passerby” called the police, and the police arrived, interviewed
Asha, and arrested Neal.
Ada W., a student at the same university E.L. and Sheila
attended, testified that on April 28, 2023 (the same day Neal
assaulted E.L.), she was on her way to a shop near campus when
Neal and another individual began “catcalling” her,
complimenting her, and asking for her name. Ada gave Neal a
“fake name” and kept walking, but Neal followed her and asked
for her phone number. Ada told Neal that she had a boyfriend,
and Neal said, “I can be your man . . . but I can’t be your
boyfriend because my dick’s too big.” Neal made the lewd
comments to Ada while leaning close to her, and she could smell
his “foul” breath. A customer walked out of the shop, and Neal
walked away.
C. The Jury Convicts Neal, and the Trial Court
Sentences Him
The jury convicted Neal of human trafficking D.J. (count 1,
§ 236.1, subd. (b)); pimping D.J. (count 2, § 266h, subd. (a));
kidnapping M.J. for ransom (count 3, § 209, subd. (a));
kidnapping D.J. (count 4, § 207, subd. (a)); orally copulating D.J.
by means of force, fear, or threats (count 5, § 287, subd. (c)(2)(A));
sodomizing D.J. by means of force, fear, or threats (count 6, § 286,
subd. (c)(2)(A)); sexually battering E.L. (count 7, § 243.4, subd (e),
a misdemeanor); orally copulating Sheila by means of force, fear,
10
or threats (count 8, § 287, subd. (c)(2)(A); and raping Sheila by
means of force, fear, or threats (count 9, § 261, subd. (a)(2)).
With the exception of the misdemeanor sexual battery
conviction (count 7), the jury found true aggravating
circumstances under California Rules of Court, rules 4.421(a)(1)
(the offense involved great violence, threat of great bodily harm,
or an act revealing a high degree of cruelty, viciousness, and
callousness); 4.421(a)(3) (the victim was particularly vulnerable),
4.421(a)(8) (Neal carried out the offense with planning,
sophistication, or professionalism); and 4.421(b)(1) (Neal engaged
in violent conduct that indicates he is a serious danger to
society).3 On counts 5 and 6, the jury found true circumstances
under section 667.61, subdivisions (d)(2) (Neal kidnapped D.J.,
and the movement of D.J. substantially increased the risk of
harm to her), (e)(1) (Neal kidnapped D.J.), and (e)(4) (Neal
committed the offense and another offense in the case against
more than one victim). On counts 8 and 9, the jury found true
the circumstances under section 667.61, subdivision (e)(4).
3 On the human trafficking conviction, the jury also found
true the aggravating circumstance under California Rules of
Court, rule 4.421(a)(9) (the offense involved an actual taking of
great monetary value) and, on the counts related to the crimes
against Sheila (counts 8 and 9), the aggravating circumstances
under rule 4.421(a)(6) (Neal threatened witnesses, or unlawfully
prevented or dissuaded witnesses from testifying) and
section 12022.1 (Neal was released on bail or on his own
recognizance in the case related to his crimes against D.J. and
M.J. at the time he committed the crimes against Sheila). The
court found true additional aggravating circumstances under
California Rules of Court, rule 4.421.
11
The trial court sentenced Neal to a prison term of 20 years
six months plus 87 years to life. Neal timely appealed.
DISCUSSION
A. The Trial Court Did Not Abuse Its Discretion in
Admitting Evidence of Neal’s Prior Sexual
Misconduct Against V.C.
Neal argues the trial court abused its discretion in
admitting evidence he sexually assaulted V.C. in 2015 because,
Neal says, that incident involved “the violent kidnapping and
rape of a stranger, which was not at all similar to [his] pimp type
behavior” with D.J. or “his overly aggressive sexual conduct with
his friend Sheila.”4 To the extent Neal is arguing the court erred
in allowing the People to use the evidence of his prior sexual
misconduct against V.C. to show his disposition to commit
pimping or human trafficking, the court’s instructions did not
allow the jury to consider this evidence for those counts.
Regarding forcible oral copulation, forcible sodomy, and forcible
rape, there is no merit to Neal’s contention that his prior sexual
misconduct against V.C. was too dissimilar or that the prejudicial
effect substantially outweighed the probative value of the
evidence.
1. Relevant Proceedings
The People advised the trial court they intended to
introduce evidence of Neal’s prior acts of sexual misconduct
under Evidence Code sections 1108 and 1101, subdivision (b). At
4 Neal does not argue that the sexual assault of V.C. was
dissimilar to the sexual battery of E.L.
12
a hearing the court stated its tentative decision to admit evidence
of the 2015 incident involving V.C. and gave counsel for Neal an
opportunity to respond. Counsel for Neal stated that the reason
the People did not file charges against Neal for assaulting V.C.
was “an identity issue” and that, “if they have the victim there to
come to court, I submit.”
The court found similarities between the sexual assault of
V.C. in 2015 and the charged offenses: the “recurring” detail of
Neal obtaining the victims’ phone numbers and the facts Neal
“isolated both of the victims,” “engaged in forcible sexual acts,”
and threatened to harm V.C.’s son and D.J.’s son. The court
ruled that the 2015 incident was not remote in time and that,
though “there was no conviction,” the jury would not be confused
or distracted. The court also found the evidence of the 2015
incident involving V.C. admissible under Evidence Code section
1101, subdivision (b), because the incident would show “at the
very least absence of mistake” and “there was no consent on the
part of the victim.” The court concluded the probative value of
the evidence was “not substantially outweighed by any sort of
prejudice.”
As discussed, V.C. testified that Neal raped, sodomized,
and forced her to orally copulate him at gunpoint. The trial court
instructed the jury that the People presented evidence of prior
uncharged sexual offenses, including rape by force, fear or
threats; oral copulation by force, fear or threats; and sodomy by
force, fear, or threats. The court told the jurors that, if they
found Neal committed one or more of the uncharged offenses,
they could, but did not have to, “conclude from that evidence that
the defendant was disposed or inclined to commit sexual offenses,
and based on that decision also conclude . . . that the defendant
13
was likely to commit rape by force, fear, or threats; oral
copulation by force, fear, or threats; sodomy by force, fear, or
threats, and/or sexual battery as alleged in this case.” The court
also admonished the jury that it could not consider any evidence
beyond the limited purpose for which the court admitted it.
2. We Presume the Jury Did Not Consider
Evidence of Neal’s Sexual Assault of V.C. in
Convicting Neal of Human Trafficking or
Pimping
As stated, the court instructed the jury it could consider
evidence of Neal’s prior uncharged sexual offenses for only four
charges: forcible rape, forcible oral copulation, forcible sodomy,
and sexual battery. The court prohibited the jury from
considering the evidence of prior uncharged sexual offenses for
any other purpose. We presume the jury followed the court’s
instructions and did not consider evidence of the 2015 incident
involving V.C. in deciding whether to convict Neal on the human
trafficking or pimping count. (See People v. Chhoun (2021)
11 Cal.5th 1, 30 [we presume the jury followed “the extensive
limiting instructions” that “directed the jury not to use the other
crimes evidence for an improper purpose, including bad
character”]; People v. Anderson (2018) 5 Cal.5th 372, 419 [“‘it
must be assumed that a jury does its duty, abides by cautionary
instructions, and finds facts only because those facts are
proved’”]; People v. Hernandez (2011) 200 Cal.App.4th 953, 969
[“We presume jurors understand and follow instructions” that
they may “consider the evidence of the uncharged crimes only for
the purpose of showing that [the defendant] ‘was disposed or
inclined to commit sexual offenses’”].)
14
3. V.C.’s Testimony Was Admissible Under
Evidence Code Section 1108
a. Applicable Law and Standard of Review
“As a general rule, ‘propensity evidence is not admissible to
prove a defendant’s conduct on a specific occasion.’” (People v.
Dworak (2021) 11 Cal.5th 881, 899 (Dworak); see Evid. Code,
§ 1101, subd. (a).)5 Evidence Code section 1108, subdivision (a),
however, “provides an exception to this rule: ‘In a criminal action
in which the defendant is accused of a sexual offense, evidence of
the defendant’s commission of another sexual offense or offenses
is not made inadmissible by Section 1101, if the evidence is not
inadmissible pursuant to Section 352.’ Evidence Code
section 352, in turn, 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.’”6 (Dworak, at p. 899; see People v.
5 Evidence Code section 1101, subdivision (b), provides:
“Nothing in this section prohibits the admission of evidence that
a person committed a crime . . . when relevant to prove some fact
(such as motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake or accident, or whether a
defendant in a prosecution for an unlawful sexual act or
attempted unlawful sexual act did not reasonably and in good
faith believe that the victim consented) other than his or her
disposition to commit such an act.”
6 “‘Sexual offense’ means a crime . . . that involved any of the
following: [¶] (A) Any conduct proscribed by subdivision (b) or (c)
15
Falsetta (1999) 21 Cal.4th 903, 916-917 (Falsetta) [“By reason of
[Evidence Code] section 1108, trial courts may no longer deem
‘propensity’ evidence unduly prejudicial per se, but must engage
in a careful weighing process under [Evidence Code]
section 352.”].)
“Rather than admit or exclude every sex offense a
defendant commits, trial judges must consider such factors as its
nature, relevance, and possible remoteness, 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.”
(Falsetta, supra, 21 Cal.4th at p. 917; accord, Dworak, supra,
11 Cal.5th at p. 900; People v. Melgoza (2025) 115 Cal.App.5th
632, 649.) “Evidence is not prejudicial, as that term is used in a
section 352 context, merely because it undermines the opponent’s
position or shores up that of the proponent. The ability to do so is
what makes evidence relevant. The [Evidence Code] speaks in
terms of undue prejudice. Unless the dangers of undue prejudice,
confusion, or time consumption substantially outweigh the
probative value of relevant evidence, a section 352 objection
should fail. [Citation.] The prejudice referred to in Evidence
Code section 352 applies to evidence which uniquely tends to
evoke an emotional bias against the defendant as an individual
of Section 236.1, Section 243.4, 261, . . . 286, [and] 287” of the
Penal Code. (Evid. Code, § 1108, subd. (d)(1).)
16
and which has very little effect on the issues.” (People v.
Daveggio and Michaud (2018) 4 Cal.5th 790, 824, internal
quotation marks omitted.) “As a reviewing court, we accord
deference to a trial court’s determination that the probative value
of a particular piece of evidence outweighs any danger of
prejudice” and review the court’s ruling under Evidence Code
section 1108 for “abuse of discretion.” (Dworak, at pp. 899, 900;
see Daveggio and Michaud, at p. 824.)
b. Any Prejudice from V.C.’s Testimony
Did Not Substantially Outweigh the
Testimony’s Probative Value
Contrary to Neal’s assertion, evidence he raped, sodomized,
and forced V.C. to orally copulate him was highly probative of his
guilt on the counts related to the forcible oral copulation and
sodomy of D.J. Neal isolated V.C. by leaving her coworker on the
side of the road and forcibly raped and sodomized V.C.; he
isolated D.J. by taking her phone and the keys to her apartment
and her car and sodomized her and forced her to orally copulate
him as a means of coercing her to comply with his demands.
(Neal forced D.J. to have anal and oral sex as a form of
punishment when she tried to run away on September 22, 2021.)
Neal held V.C. at gunpoint to compel her to have sex with him; he
choked, whipped, and beat D.J. to compel her to submit to his
sexual demands, which included forcible anal and oral sex when
D.J. tried to escape. V.C.’s testimony showed Neal had the
propensity to engage in the coercive sexual conduct D.J.
described and bolstered D.J.’s credibility. (See Falsetta, supra,
21 Cal.4th at p. 922 [jury may consider evidence of other crimes
17
for “any proper purpose,” including “bolstering the . . . victim’s
credibility”].)
Neal’s sexual assault of V.C. and his crimes against Sheila
also shared common features. Neal obtained V.C.’s number by
calling it immediately after she gave it to him; he employed a
similar method to obtain Sheila’s phone number by calling
himself from her phone after he pressured her to give him her
phone. Neal apologized to V.C. after raping her, and raped her
again; he choked Sheila, apologized, and raped her. That Neal
used a gun in assaulting V.C. or that V.C. was a “stranger” did
not lessen the probative value of the evidence of his prior sexual
misconduct. (See Dworak, supra, 11 Cal.5th at pp. 901-902
[“differences in the manner in which the acts were committed or
in the characteristics of the victims, while potentially relevant,
are not dispositive”]; id. at p. 901 [court did not abuse its
discretion in admitting evidence of the defendant’s prior sexual
misconduct, which “involved the use of a knife,” even though in
the current case there was “no specific evidence . . . whether a
knife or other weapon was used”]; see also People v. Cordova
(2015) 62 Cal.4th 104, 133 [“‘“[T]he charged and uncharged
crimes need not be sufficiently similar that evidence of the latter
would be admissible under Evidence Code section 1101,
otherwise Evidence Code section 1108 would serve no purpose. It
is enough the charged and uncharged offenses are sex offenses as
defined in section 1108.”’”]; People v. Robertson (2012)
208 Cal.App.4th 965, 991 [similarity between the prior uncharged
sexual misconduct and the current charges “is but one of many
factors for the trial court to consider”].)7
7 “Before section 1108 was enacted, Evidence Code
section 1101 governed the admission of prior criminal conduct,
18
With respect to the other factors under Falsetta, supra,
21 Cal.4th at page 917, the trial court did not err in finding the
2015 incident involving V.C. was not too remote in time: It
occurred only six years before Neal committed the offenses
against D.J. and eight years before he committed the offenses
against Sheila. (See People v. McCurdy (2014) 59 Cal.4th 1063,
1099 [uncharged sexual misconduct that occurred between
30 and 17 years before the charged offense was not too remote];
People v. Ewoldt (1994) 7 Cal.4th 380, 405 [uncharged sexual
misconduct that occurred 12 years before the trial did not
“significantly lessen the probative value of this evidence”]; see
also McCurdy, at p. 1099 [“No specific time limit exists as to
when an uncharged crime is so remote as to be excludable.”].)
The trial court also did not err in ruling that the jury would not
confuse the 2015 incident (which occurred in San Francisco) with
the incidents in the current case (which occurred in Los Angeles)
or that V.C.’s testimony would not consume an undue amount of
time (she testified during one morning of the three-week trial).
Finally, the record showed substantial certainty the crimes
against V.C. occurred. V.C. identified Neal as her assailant, and
and a body of law developed concerning how similar the prior
conduct had to be to the charged crime; the required degree of
similarity varied depending on the use for which the evidence
was offered. [Citation.] ‘All of that radically changed with
respect to sex crime prosecutions with the advent of
section 1108. . . . [S]ection 1108 now “permit[s] the jury in sex
offense . . . cases to consider evidence of prior offenses for any
relevant purpose” [citation] subject only to the prejudicial effect
versus probative value weighing process required by [Evidence
Code] section 352.’” (People v. Loy (2011) 52 Cal.4th 46, 63; see
People v. Robertson, supra, 208 Cal.App.4th at p. 990.)
19
DNA analysis found a match between the DNA of V.C.’s assailant
and that of Neal.
Other than characterizing the 2015 incident involving V.C.
as a “horrendous offense,” Neal has not shown how V.C.’s
testimony evoked “‘an emotional bias’” against him or “caused a
great risk of misleading or confusing the jury.” The facts of V.C.’s
rape were no more inflammatory than facts of the sex crimes D.J.
recounted. Neal took advantage of D.J., a single mother who
relied on public assistance to provide for her special needs child;
forced her to work as a prostitute by, among other forms of
coercion, threatening to harm her child; choked, whipped, and
beat her when she disobeyed him; and when she tried to escape
he dragged her back into her apartment, choked and whipped
her, and forced her to orally copulate him and sodomized her. As
for the evidence of the incident with Sheila, though the sexual
abuse took place over the course of hours instead of months, Neal
took advantage of the fact she knew him from a prior encounter,
forced her to have sex with him by choking her, and later
attempted to dissuade her from cooperating with law
enforcement.
By the time V.C. testified, the jury had already heard
evidence of Neal sexually abusing D.J. by means of force, fear, or
threats. (See People v. Loy (2011) 52 Cal.4th 46, 62 [“The facts of
the previous offenses, although unpleasant, were not particularly
inflammatory compared to the horrendous crime of this case.”];
People v. Ennis (2010) 190 Cal.App.4th 721, 725 [“[w]hatever
emotional bias might have been invoked against [the defendant]
at trial, would have been fully invoked by the multitude of
horrific crimes actually charged in this case”]; see also People v.
Case (2018) 5 Cal.5th 1, 41 [“The danger of undue prejudice is . . .
20
lessened if evidence of the uncharged acts was ‘no more
inflammatory than the testimony concerning the charged
offenses.’”].) V.C.’s testimony showed Neal had a propensity to
commit the sex crimes against D.J. and Sheila. This evidence
hurt the defense, but not in the manner proscribed by Evidence
Code section 352. (See Loy, at p. 62 [“Evidence of previous
criminal history inevitably has some prejudicial effect. But under
section 1108, this circumstance alone is no reason to exclude
it.”].) The trial court did not abuse its discretion in ruling that
any prejudice from admitting evidence Neal sexually assaulted
V.C. in 2015 did not substantially outweigh the probative value of
that evidence.8
B. The Trial Court Did Not Err in Instructing the Jury
on the Elements of Human Trafficking
Neal argues the trial court erred in instructing the jury on
human trafficking because the court did not instruct the jury that
the People had to prove D.J. did not consent to working as a
8 Because the court did not err in admitting V.C.’s testimony
under Evidence Code section 1108, the court did not, as Neal
asserts, violate his due process rights. (See People v. Daveggio
and Michaud, supra, 4 Cal.5th at p. 827 [the admission of
evidence under Evidence Code section 1108 does not violate due
process]; Falsetta, supra, 21 Cal.4th at p. 922 [Evidence Code
section 1108 “survives defendant’s due process challenge”].) We
need not decide whether V.C.’s testimony was admissible under
Evidence Code section 1101, subdivision (b). (See People v.
Erskine (2019) 7 Cal.5th 279, 296 [“so long as the evidence was
not inadmissible under section 352,” it “is not necessary to assess
the trial court’s separate finding” the evidence was “also
admissible under section 1101, subdivision (b)”]; People v.
Melgoza, supra, 115 Cal.App.5th at p. 651 [same].)
21
prostitute for him. According to Neal, because D.J. testified she
“consented to the relationship” with Neal, Neal did not commit
human trafficking within the meaning of section 236.1,
subdivision (b). The court did not err.
1. Relevant Proceedings
During the discussion of the jury instructions the court
informed the parties that it planned to use CALCRIM No. 1243 to
instruct the jury on the elements of human trafficking. Counsel
for Neal did not object. The court instructed the jury with
CALCRIM No. 1243 that, to prove Neal committed human
trafficking in violation of section 236.1, subdivision (b), the
People had to prove: (1) “The defendant either deprived another
person of personal liberty or violated that other person’s personal
liberty”; and (2) “When the defendant acted he intended to
commit pimping in violation of . . . section 266h(a),” which the
court later defined by giving CALCRIM No. 1150.
2. CALCRIM No. 1243 Correctly States the Law
“‘The trial court has a sua sponte duty to instruct the jury
on the essential elements of the charged offense.’”9 (People v.
Oyler (2025) 17 Cal.5th 756, 838.) “‘We review de novo whether
instructions correctly state the law.’” (People v. Parker (2022)
9 The People argue that, by failing to object to the court’s
proposed instruction, Neal forfeited his argument CALCRIM
No. 1243 is erroneous because it omits the element of consent.
However, “it is well settled that no objection is required to
preserve a claim for appellate review that the jury instructions
omitted an essential element of the charge.” (People v. Mil (2012)
53 Cal.4th 400, 409; accord, People v. Moses (2021)
65 Cal.App.5th 14, 22.)
22
13 Cal.5th 1, 68; accord, People v. Richee (2025) 111 Cal.App.5th
281, 292; People v. Mani (2022) 74 Cal.App.5th 343, 376-377.)
Section 236.1, subdivision (b), provides: “A person who
deprives or violates the personal liberty of another with the
intent to effect or maintain a violation of Section . . . 266h . . . is
guilty of human trafficking . . . .” (See People v. Wilson (2025)
111 Cal.App.5th 1020, 1037.) The statute “does not expressly
contain the element that the act was accomplished against the
victim’s will or that the victim did not consent to his or her
exploitation” and does not require the People to prove the victim
did not consent. (People v. Oliver (2020) 54 Cal.App.5th 1084,
1095 (Oliver).)
Neal, however, makes three arguments that “lack of
consent is an element of trafficking an adult.” First, Neal argues
section 236.1, subdivision (e), which states that “‘[c]onsent by a
victim of human trafficking who is a minor at the time of the
commission of the offense is not a defense to a criminal
prosecution under this section,’” indicates “consent is a defense if
the victim was not a minor.” Second, Neal argues section 236.1,
subdivision (h)(3), which defines “deprivation or violation of the
liberty of an adult victim” as including “‘substantial and
sustained restriction of another’s liberty accomplished through
force, fear, fraud, deceit, coercion, violence, duress, menace, or
threat of unlawful injury to the victim or to another person,’” is
“necessarily inconsistent with consent, which must be freely
given.” Third, Neal argues that section 236.1, subdivision (b), is
in the same chapter of the Penal Code section 236, which defines
false imprisonment as “‘the unlawful violation of the personal
liberty of another,’” and that, to “unlawfully violate the personal
23
liberty of another, the defendant must make the other person
‘stay or go somewhere against that person’s will.’”
In Oliver, supra, 54 Cal.App.5th 1084 the court rejected the
same arguments Neal makes here, and held lack of consent “is
not an element of the offense of human trafficking in violation of”
section 236.1, subdivision (b). (Oliver, at p. 1097.) The court in
Oliver observed the offenses of “human trafficking a minor and
human trafficking an adult . . . are very different”; human
trafficking a minor “omits the element of deprivation or violation
of personal liberty.” (Id. at p. 1098; see § 236.1, subd. (c); People
v. Moses (2020) 10 Cal.5th 893, 902; People v. Wilson, supra,
111 Cal.App.5th at p. 1098 [rejecting the defendant’s argument
substantial evidence did not support the jury’s finding he used
“‘force, fear, violence, coercion, duress, or menace’” because under
section 236.1, subdivision (c), “a mere attempt to cause, induce, or
persuade a minor to engage in a commercial sex act is a crime if
accompanied by the requisite intent”].) Thus, the court in Oliver
explained, “removal of consent as a defense to human trafficking
a minor does not necessarily imply application of the defense to
the offense of human trafficking an adult.” (Oliver, at p. 1098.)
Moreover, the court in Oliver pointed out, the Legislature defined
the term “deprivation or violation of personal liberty” in
section 236.1, subdivision (h)(3), with the phrase “‘includes
substantial and sustained restriction of another’s liberty,’” which
“leaves open the possibility that a victim may agree to have his or
her freedom of movement limited by a pimp, for example, to help
facilitate and share in the profits of a prostitution ring.” (Oliver,
at pp. 1096-1097.) And finally, the court in Oliver concluded that,
unlike the crime of false imprisonment, the crime of human
trafficking “does not require that the deprivation of personal
24
liberty (i.e., the confinement or restraint) is itself unlawful,” and
instead proscribes the confinement or restraint of a person “if it is
done with ‘the intent to effect or maintain’ a separate
enumerated offense such as pimping and prostitution.” (Id. at
p. 1096.)
Neal argues that Oliver, supra, 54 Cal.App.5th 1084 “was
wrongly decided” and that, in any event, the decision “should be
limited to its factual situation.” Neal does not provide any
persuasive authority to support his argument, and we agree with
Oliver. Section 236.1, subdivision (b), does not mention the
element of consent for adult victims such as D.J. (See Oliver, at
p. 1094 [“‘“If the statutory language is unambiguous, then its
plain meaning controls.”’”].) The trial court did not err in
instructing the jury on human trafficking with CALCRIM
No. 1243.
C. Substantial Evidence Supported Neal’s Conviction for
Kidnapping M.J. for Ransom
Neal argues substantial evidence did not support his
conviction for kidnapping M.J. for ransom. He contends that he
merely “babysat” M.J., “much as a company would provide
daycare for its employees’ children,” while D.J. “worked as a
prostitute” and that D.J. “consented and approved of the
arrangement.” Neal ignores the record and misunderstands the
substantial evidence standard of review.
1. Applicable Law and Standard of Review
Section 209, subdivision (a), provides: “A person who
seizes, confines, inveigles, entices, decoys, abducts, conceals,
kidnaps, or carries away another person by any means
25
whatsoever with intent to hold or detain, or who holds or detains,
that person for ransom, reward, or to commit extortion or to exact
from another person any money or valuable thing . . . is guilty of
a felony.” (See People v. Stringer (2019) 41 Cal.App.5th 974, 981-
982.) The trial court instructed the jury on the elements of
kidnapping for ransom with CALCRIM No. 1202: (1) the
defendant “kidnapped, abducted, seized, confined, or carried
away a person”; (2) the defendant “held or detained that person”;
(3) the defendant “did so for ransom, to commit extortion, or to
get from a different person money or something valuable”; (4) the
person “did not consent to being kidnapped, abducted, seized,
confined, or carried away”; and (5) “the defendant did not actually
and reasonably believe that the person consented to being
kidnapped, abducted, seized, confined, or carried away.” The
court also instructed the jury that a person consents if he or she
“freely and voluntarily agreed to go with or be moved by the
defendant,” “was aware of the movement,” and “had sufficient
mental capacity to choose to go with the defendant” and that
someone intends to commit “extortion” if he or she intends to
“obtain a person’s property with the person’s consent” and “obtain
the person’s consent through the use of force or fear.”
“‘“‘In reviewing a challenge to the sufficiency of the
evidence, we do not determine the facts ourselves. Rather, we
“examine the whole record in the light most favorable to the
judgment to determine whether it discloses substantial
evidence—evidence that is reasonable, credible and of solid
value—such that a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.” [Citations.] We
presume in support of the judgment the existence of every fact
the trier could reasonably deduce from the evidence.’”’” (People v.
26
Oyler, supra, 17 Cal.5th at pp. 819-820; see People v. Frandsen
(2019) 33 Cal.App.5th 1126, 1147.)
2. Neal Forced D.J. To Leave M.J. with Him and
Threatened To Harm M.J. if D.J. Disobeyed
Neal does not specify which element of section 209,
subdivision (a), he contends the People failed to prove. It appears
from Neal’s characterization of his role as M.J.’s babysitter,
however, he is arguing substantial evidence did not support the
jury’s findings (1) D.J. did not consent to M.J. “being . . . seized,
confined, or carried away” (CALCRIM No. 1202) and (2) he
kidnapped M.J. “to exact from another person any money or
valuable thing” (CALCRIM No. 1202).
As M.J.’s mother, D.J. had the authority to make decisions
on his behalf (see People v. Hartland (2020) 54 Cal.App.5th 71,
80), and substantial evidence supported the jury’s finding D.J.
did not consent to Neal taking M.J. D.J. testified she left M.J.
with Neal only because she knew Neal would hurt her if she did
not. D.J. described the many times Neal physically abused her
for disagreeing with him or not following his orders. (See People
v. Alvarez (2016) 246 Cal.App.4th 989, 1006 [“For purposes of
kidnapping, one has not consented unless acting
‘freely and voluntarily and not under the influence of threats,
force or duress.’”].)
Substantial evidence also supported the jury’s finding Neal
held or detained M.J. to obtain something of value from D.J.: the
proceeds from her sex work. As D.J. testified, when she refused
to follow Neal’s order to work on the street, he threatened to take
M.J. and leave him on a train. In a recording of a phone call
between D.J. and Neal on the day D.J. escaped, Neal confirmed
27
M.J. was with him and, when D.J. told him she did not want to
work as a prostitute, he told that if she did not have money for
him, she would not see her son again.
Neal’s attempt to recast his role as M.J.’s caregiver
essentially asks us to find D.J. was not credible and to reweigh
the evidence in his favor, which we cannot do. (See People v.
Mumin (2023) 15 Cal.5th 176, 202 [“‘founded upon the evidence,
the jury not only is authorized to make any logical and
reasonable deduction, but also . . . is the exclusive judge of the
weight and value of the inference that may be drawn by it’”].) As
the appellant, Neal had the burden to demonstrate substantial
evidence did not support the jury’s findings, not to present his
interpretation of the facts. (See People v. Jimenez (2025)
117 Cal.App.5th 602, 608 [“The appellant carries the burden of
establishing that the evidence was insufficient to sustain a
conviction.”]; People v. Williams (2020) 57 Cal.App.5th 652, 664
[defendant’s “portrayal of the evidence in the light most favorable
to himself” is “‘largely irrelevant to the issue on appeal,’” which is
“‘whether the evidence in [the People’s] favor provides a sufficient
basis for’” the jury’s findings].)
D. Substantial Evidence Supported Neal’s Convictions
on the Counts Relating to His Crimes Against D.J.
from September 22, 2021 to September 23, 2021
1. Count 4 (kidnapping D.J.)
Neal argues that, though the People alleged in count 4 he
kidnapped D.J. “on the night of September 22nd to September 23,
2021” to “commit a sex offense,” there was “no evidence of any sex
act, consensual or forced, following the alleged kidnapping on
28
that night.” The People, however, charged Neal in count 4 with
simple kidnapping, in violation of section 207, subdivision (a),
which does not require the People to prove he intended to commit
a sexual offense when he kidnapped D.J. (cf. § 209, subd. (b)(1)
[defining the crime of kidnapping to commit rape]), and the jury
convicted Neal of that offense.
Neal asserts that “forcing [D.J.] back a few feet into her
own home was not a simple kidnapping.” Neal cites general case
law on the requirements of simple kidnapping, but he does not
provide any argument to support his contention the distance he
moved D.J. on September 22, 2021—from outside her apartment
building, down the hallway of the building, and back into the
apartment—was not a substantial distance, much less cite any
relevant authority. Therefore, he has forfeited the argument.
(See People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335,
363-364.)
Even if not forfeited, Neal’s argument lacks merit.
Section 207, subdivision (a), provides: “Every person who
forcibly, or by any other means of instilling fear, steals or takes,
or holds, detains, or arrests any person in this state, and carries
the person into another country, state, or county, or into another
part of the same county, is guilty of kidnapping.” “To prove the
crime of simple kidnapping, ‘the prosecution must generally
“prove three elements: (1) a person was unlawfully moved by the
use of physical force or fear; (2) the movement was without the
person’s consent; and (3) the movement of the person was for a
substantial distance.”’” (People v. Hin (2025) 17 Cal.5th 401, 469;
see People v. Dominguez (2006) 39 Cal.4th 1141, 1152 [“no
minimum distance is required to satisfy the asportation
requirement [citation], so long as the movement is substantial”];
29
People v. Robertson, supra, 208 Cal.App.4th at p. 983 [“‘For
simple kidnapping (§ 207), the kidnapper’s physical movement of
the victim must be “substantial in character”—the so-called
asportation element.’”].)
“[I]n determining whether the movement in question was
‘“‘substantial in character,’”’ ‘the jury should consider the totality
of the circumstances.’ [Citation.] ‘Thus, . . . the jury might
properly consider not only the actual distance the victim is
moved, but also such factors as whether that 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.’” (People v. Hin, supra, 17 Cal.5th at p. 469;
see People v. Ellis (2025) 108 Cal.App.5th 590, 598 [“‘[t]he
environment the defendant creates within that distance is the
critical factor’”]; People v. Hughey (2024) 105 Cal.App.5th 216,
222 [“movement may be substantial where it changed the victim’s
‘environment’”], review granted Dec. 11, 2024, S287455.)
Neal dragged D.J from outside her apartment building (an
area open to public view), down a long hallway, and back into the
apartment (a private enclosure), movement that “‘considerably’”
(People v. Waqa (2023) 92 Cal.App.5th 565, 580) changed her
environment. The movement decreased the likelihood of
detection because, inside the apartment, Neal could (and did)
sexually abuse D.J. with minimal risk of detection. Indeed, while
D.J. was outside, Neal covered her mouth and told her to “shut
up” to prevent anyone in the area hearing her before he forced
her through the building’s hallway and back into the apartment.
The movement also increased the risk of danger to D.J. because
30
D.J. would have to fight her way out of the apartment again to
escape and because, so long as D.J. remained inside, Neal could
(as he had in the past) hit and sexually assault her with
impunity. (See People v. Hin, supra, 17 Cal.5th at pp. 469-470
[moving the defendant’s victims “to the bottom of the hill
increased the risk of harm to the victims by isolating them from
other park patrons in a more secluded area where they were less
visible to others,” and “the darkness decreased the likelihood of
detection and enhanced defendants’ opportunity to commit
additional crimes”]; cf. People v. Ellis, supra, 108 Cal.App.5th at
p. 599 [moving the victim “from the sidewalk to the street did not
decrease the likelihood of detection” because “both the sidewalk
and the street were in full public view”].)
2. Counts 5 and 6 (orally copulating and
sodomizing D.J.)
Neal argues substantial evidence did not support the jury’s
true findings on the allegation under section 667.61,
subdivision (d)(2), in connection with count 5 (forcible oral
copulation of D.J.) and count 6 (forcible sodomy of D.J.). He
argues, as he did in his challenge to the jury’s findings on
count 4, that the movement “was not substantial so as to support
a simple kidnapping conviction” and that, “even if it [the
movement] had been for purposes of a sex offense, it was merely
incidental thereto.” Neal’s argument lacks merit.
Section 667.61, subdivision (a), known as the one strike
law,10 provides, with exceptions not relevant here, “a person who
10 The one strike law, codified in section 667.61, “is an
alternative sentencing scheme that applies when the prosecution
pleads and proves specific aggravating circumstances in
31
is convicted of an offense specified in subdivision (c) under one or
more of the circumstances specified in subdivision (d) or under
two or more of the circumstances specified in subdivision (e) shall
be punished by imprisonment in the state prison for 25 years to
life.” Section 667.61, subdivision (c), states the alternative
sentencing scheme applies to a list of offenses that includes
sodomy and oral copulation. Section 667.61, subdivision (d),
provides: “The following circumstances shall apply to the
offenses specified in subdivision (c): [¶] . . . [¶] (2) The
defendant kidnapped the victim of the 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 offense in subdivision (c).” Thus,
under the one strike law, “if the defendant committed a simple
kidnapping of the victim under section 207, subdivision (a),
. . . and if the movement also substantially increased the risk of
harm to the victim, the required term is 25 years to life.” (People
v. Waqa, supra, 92 Cal.App.5th at p. 576.) Because substantial
evidence supported the jury’s findings on count 4, that Neal
committed simple kidnapping when he moved D.J. from outside
the apartment building to inside her apartment unit, the only
issue is whether that movement substantially increased the risk
of harm to D.J. beyond the level of risk inherent in the
underlying offenses of forcible oral copulation and forcible
sodomy.
“To establish the asportation element for the aggravated
kidnapping enhancement, the prosecution must show (1) the
movement was substantial in character, and not merely
connection with certain sex offenses.” (In re Vaquera (2024)
15 Cal.5th 706, 712.)
32
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.” (People v. Perkins (2016)
5 Cal.App.5th 454, 466; accord, People v. Waqa, supra,
92 Cal.App.5th at p. 577.)11 To determine whether “‘a forced
movement of a rape victim . . . was merely incidental to the rape,
and whether the movement substantially increased the risk of
harm to the victim,’” “‘the jury must “consider[ ] the ‘scope and
nature’ of the movement,” as well as “the context of the
environment in which the movement occurred.” [Citations.] This
standard suggests a multifaceted, qualitative evaluation rather
than a simple quantitative assessment. Moreover, whether the
victim’s forced movement was merely incidental to the rape is
necessarily connected to whether it substantially increased the
risk to the victim. “These two aspects are not mutually exclusive,
but interrelated.”’” (Perkins, at pp. 467-468; accord, Waqa, at
pp. 577-578.)
“‘[I]ncidental movements are brief and insubstantial, and
frequently consist of movement around the premises where the
incident began. [Citations.] By contrast, relatively short
distances have been found not to be incidental where the
movement results in a substantial change in “the context of the
11 “The statute does not expressly require more than
incidental movement,” but “the Legislature is presumed to
understand and intend to incorporate judicial interpretations of
statutory language that predate new legislation. It has long been
the law in California that even a simple kidnapping requires
movement more than incidental to the commission of an
‘associated crime.’” (People v. Diaz (2000) 78 Cal.App.4th 243,
246.)
33
environment.”’” (People v. Waqa, supra, 92 Cal.App.5th at p. 578;
see People v. Diaz (2000) 78 Cal.App.4th 243, 246.) “In
determining whether a movement increased the risk of harm to
the victim, the jury considers 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. [Citations.] The fact
that these dangers do not in fact materialize does not . . . mean
that the risk of harm was not increased.” (Waqa, at p. 580,
internal quotation marks omitted; see People v. Perkins, supra,
5 Cal.App.5th at p. 468.)
Viewing the record in the light most favorable to the
judgment (People v. Waqa, supra, 92 Cal.App.5th at p. 576), we
conclude substantial evidence supported the jury’s finding Neal’s
conduct in forcibly bringing D.J. back into her apartment was not
“merely incidental” (People v. Perkins, supra, 5 Cal.App.5th at
p. 466) to the sexual crimes he committed inside the apartment.
Neal did not simply move D.J. around the premises. As
discussed, Neal moved D.J. from an area in public view to a
private, enclosed space, “‘a substantial change’” (Waqa, at p. 578)
in the environment. The movement was neither part of nor
necessary to Neal committing forcible oral copulation or forcible
sodomy. (See People v. Shadden (2001) 93 Cal.App.4th 164, 169
[“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” because
“‘a rape . . . does not necessarily require movement to complete
the crime.’”]; People v. Diaz, supra, 78 Cal.App.4th at p. 248 [“The
defendant could have sexually assaulted the victim in the
sidewalk area where he first accosted her,” and the “scope and
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nature of the movement dramatically changed the environmental
context.”].)
Substantial evidence also supported the jury’s finding the
movement substantially increased the risk of harm to D.J.
beyond the risk inherent in forcible oral copulation and forcible
sodomy. Dragging D.J. inside the apartment enabled Neal to
commit additional (uncharged) crimes, including choking and
whipping D.J., with no one else around (except M.J., who could
not speak) to hear a cry for help. The movement also increased
the danger to D.J.’s foreseeable attempt to escape; she could no
longer call others around her for help. (See People v. Dominguez,
supra, 39 Cal.4th at p. 1153 [“The movement . . . changed the
victim’s environment from a relatively open area alongside the
road to a place significantly more secluded, substantially
decreasing the possibility of detection, escape or rescue.”]; People
v. Kelly (2016) 245 Cal.App.4th 1119, 1130 [defendant’s
“movement of the victim—from the grassy area near a relatively
public setting into the isolation of his vehicle—decreased the
likelihood of his detection”].)
E. The Court Did Not Err in Failing To Give a
Unanimity Instruction
Finally, Neal argues the court erred in failing to give a
unanimity instruction on count 6 (forcible sodomy of D.J.), which
according to Neal would have required the jury to agree on which
act of sodomy Neal committed over the course of the couple’s
relationship. The court did not err.
When “the evidence suggests more than one discrete crime,
either the prosecution must elect among the crimes or the court
must require the jury to agree on the same criminal act.
35
[Citations.] [¶] This requirement of unanimity as to the criminal
act ‘is intended to eliminate the danger that the defendant will be
convicted even though there is no single offense which all the
jurors agree the defendant committed.’” (People v. Russo (2001)
25 Cal.4th 1124, 1132; accord, People v. McDaniel (2021)
12 Cal.5th 97, 145; People v. Wilson (2020) 56 Cal.App.5th 128,
161-162.) “‘The prosecution can make an election by “tying each
specific count to specific criminal acts elicited from the victims’
testimony”—typically in opening statement and/or closing
argument. [Citations.] Such an election removes the need for
a unanimity instruction. [Citation.] [¶] Under these principles,
there is an implicit presumption that the jury will rely on the
prosecution’s election and, indeed, is bound by it.’” (Wilson, at
p. 162; accord, People v. Brugman (2021) 62 Cal.App.5th 608,
627.)
The People alleged that, on or between September 22, 2021
and September 23, 2021, Neal committed forcible sodomy of D.J.
D.J. testified Neal committed one act of sodomy in that time
period, and the prosecutor argued to the jury that Neal
committed “an act of sodomy” inside the apartment after D.J.
“tried to escape on that last day.” Thus, because the prosecutor
tied count 6 to a specific act of sodomy, the court did not need to
instruct the jurors that they had to agree on which act of sodomy
Neal committed to find him guilty of the offense. (See People v.
Brown (2017) 11 Cal.App.5th 332, 342 [“the prosecutor elected to
rely solely on a rape in the vacant apartment; thus, the failure to
give a unanimity instruction was not error”]; People v. Hawkins
(2002) 98 Cal.App.4th 1428, 1455 [“Because the prosecutor’s
opening argument elected what conduct by defendant amounted
36
to the crime charged, we conclude that no unanimity instruction
was required.”].)
DISPOSITION
The judgment is affirmed.
SEGAL, Acting P. J.
We concur:
FEUER, J.
STONE, J.
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