Filed 7/14/26 P. v. Rogers CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Butte)
THE PEOPLE, C101118, C103192
Plaintiff and Respondent,
(Super. Ct. Nos. 21CF00772,
v. 20CF05838 )
LANCE PRESCOTT ERNEST ROGERS,
Defendant and Appellant.
In two cases consolidated for trial, defendant Lance Rogers was convicted of
continuous sexual abuse of two children and forcible oral copulation of one of the
children. The trial court sentenced him to an aggregate term of 56 years in prison. On
appeal, Rogers contends that his waiver of appointed trial counsel was invalid; that there
was insufficient evidence the oral copulation was accomplished by force, duress, menace,
or fear; that certain instructional errors infected the convictions for continuous sexual
abuse; and that his sentence should be vacated because, in imposing the upper term for
each count, the trial court erroneously relied on aggravating circumstances that had not
been alleged in an accusatory pleading before Rogers waived his right to a preliminary
hearing. Finding no merit to any of these contentions, we affirm the judgment.
BACKGROUND
The cases before us stem from disclosures by two unrelated adults, J.S. and J.M.,
that Rogers had sexually molested them years earlier when they were children.
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I.
In case No. 20CF05838, involving victim J.S., the operative information charged
Rogers with one count of continuous sexual abuse of a child under age 14 (Pen. Code,
§ 288.5, subd. (a); count one) and one count of forcible oral copulation of a victim under
age 14, which was charged as a violation of section 287, subdivision (c)(2)(B)
(count two).1 In case No. 21CF00772, involving victim J.M., the operative information
charged Rogers with a single count of continuous sexual abuse of a child under age 14
(§ 288.5, subd. (a)). In both cases, the People alleged that Rogers had suffered a prior
strike conviction (§§ 667, subd. (d), 1170.12, subd. (b)), which also qualified as a prior
serious felony (§ 667, subd. (a)). The People also ultimately alleged, in both cases,
various factors in aggravation set forth in rule 4.421 of the California Rules of Court.
The two cases were consolidated for trial, at which Rogers represented himself
after waiving his right to counsel. Rogers also waived his right to a jury trial on the
aggravating factors.
II.
The evidence regarding the two counts involving J.S. was as follows. When
Rogers was 18 years old, he moved in with J.S.’s family as a live-in babysitter for J.S.
and his three brothers. Rogers had met the family through J.S.’s grandmother, who ran a
group home where Rogers was a resident client. J.S.’s grandmother sometimes took
Rogers and other clients, who were ages 14 to 17, on outings to her property in the
mountains where they interacted with her grandchildren, including J.S. J.S.’s
grandmother would also bring Rogers and other clients to barbecues and events at J.S.’s
family’s house. Eventually, Rogers and some of the other clients became close to the
family, visiting almost every week. Rogers aged out of the group home when he
turned 18, and J.S.’s mother invited Rogers to live with them because he had nowhere to
1 Undesignated statutory references are to the Penal Code.
2
go and they considered him part of their family. The family also needed child care, and
J.S.’s mother believed this arrangement would provide Rogers with a job while giving
her family “an opportunity to have someone there that they loved and trusted.”
Several months after Rogers moved in, he began touching J.S. inappropriately.
J.S. was around eight years old at the time. The first incident occurred while J.S. was
sleeping in the bedroom he shared with his brothers. That night, J.S. awoke to Rogers
touching J.S.’s penis beneath his underwear. J.S. turned over to try to make Rogers stop,
but Rogers continued. J.S. testified that Rogers whispered “to not make a sound and that
he would hurt me if I said anything.” Later in his testimony, J.S. stated that Rogers
“shushed me and then told me to not tell anybody or he would hurt me.” J.S. believed
that Rogers could hurt him, and J.S. did not immediately report the incident to anyone.
J.S. was “in shock” after the first touching and felt “intimidated and embarrassed.”
Similar incidents of sexual touching continued every few weeks thereafter, for at least six
months.
Less than a year after Rogers moved in, J.S. and his family moved to a new house,
and Rogers went with them. Rogers continued to sexually abuse J.S. throughout the year
that they lived in the new house.
On certain occasions, both before and after the move, Rogers put his mouth on
J.S.’s penis. J.S., who was in his late twenties when he testified, had no specific
recollection of the initial oral copulation incidents. J.S. told investigators that six to 12
such incidents had occurred in the original house. The first incident of oral copulation
that J.S. could specifically recall occurred in the second house. J.S. testified: “I just
remember being in the bedroom and waking up to him touching me, and a few minutes
later after he was touching my penis, he then went underneath the blankets and performed
oral.” J.S. did not do anything to try to stop Rogers, explaining, “I didn’t know how to,
and I was scared.”
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J.S. testified that he was not afraid of Rogers all the time. When they were
socializing normally, Rogers would be friendly and nicer; but when engaged in sexual
touching, he was “more aggressive and angry.” J.S. further testified that he could only
remember Rogers having explicitly threatened him during the first touching incident.
J.S. and his brothers testified that when their mother left the house, she would be
gone all day and Rogers would be left to supervise them. During that time, “he would be
in charge of” the boys. One of J.S.’s younger brothers testified that Rogers “always took
[J.S.]” into Rogers’s bedroom and locked the door for hours, just about anytime their
parents left the house. During J.S.’s testimony about being alone with Rogers in
Rogers’s locked bedroom, the prosecutor asked: “About how often did that happen?”
J.S. responded: “Two or three times that I can remember.” The prosecutor then asked:
“And when I say, ‘How often that happened,’ are you referring to inappropriate touching
or oral sex?” J.S. answered: “Oral sex.”
A few years later, J.S. confided in a school friend that he had been molested, but
neither J.S. nor the friend disclosed Rogers’s misconduct until J.S. told his grandmother
in 2020 and reported it to law enforcement thereafter.
Rogers testified in his own defense and maintained that he had never sexually
touched anyone in his life and had not sexually assaulted J.S. or his brothers at any time.
III.
Many years after Rogers parted ways with J.S. and his family, he met J.M. J.M.
testified as follows. J.M. recalled first meeting Rogers at a parkour practice when he
(J.M.) was about 13 years old, which he estimated would have been in 2014 or 2015.
When J.M. was 13, his mother suddenly left the state without him. Afterward, J.M.
stayed with friends and primarily stayed at Rogers’s house. There, J.M. would sleep on a
couch in the living room, and Rogers would sleep on a mattress on the floor next to the
couch. J.M. noticed something was wrong when he repeatedly woke up to find the button
or zipper of his shorts undone. J.M. began staying awake at night and sometimes would
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catch Rogers reaching up towards him. If J.M. moved, Rogers would dart his hand back
under his own blankets. But other times, J.M. would wake up to Rogers already touching
J.M.’s penis with his hand. On a couple of occasions, Rogers touched J.M. beneath his
underwear, but mostly the touching consisted of Rogers making a “rubbing motion” on
top of J.M.’s underwear. After the first incident, touching started happening almost every
night.
J.M., who was also in his twenties when he testified, could not remember the exact
timing of these molestations but stated: “I just know that for sure it was when I
was 13 … .” He testified that the touching had been occurring for “maybe eight, nine
months before [he] had turned 14.” The touching continued when he turned 14 as well.
Before J.M. turned 14, “a few months” after the touching began, he told his best friend
about it. Approximately a year and a half after the first incident, J.M. confronted Rogers
about the touching and asked him to stop. Rogers said that he would stop, but the
touching continued. J.M. eventually moved out of the state, at approximately age 16. He
disclosed the molestations to authorities a few years later, in or after 2020.
As part of Rogers’s defense case, the leader of J.M.’s former parkour team
testified, primarily regarding the timing of when Rogers met J.M. Consistent with J.M.’s
testimony, the team leader said that he was the one to introduce Rogers to the rest of the
team, including J.M. The leader met Rogers while working together at a restaurant where
the leader had started working at age 16. According to the leader, he introduced Rogers
to the parkour team about six months to one year after first meeting Rogers, estimating
that Rogers met the team in 2016. The leader believed J.M. was “a couple years”
younger than he was, so the leader believed J.M. would have been “at least almost 15”
years old when they met.
Rogers testified that he met the parkour team leader in early 2016 and then met
J.M. and the rest of the team in the summer of 2016. Rogers recalled the team leader
being almost 17 years old and J.M. being more than 14 and a half years old when he met
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the team. Rogers stated that he did not know J.M. when he was 12 or 13 years old.
Rogers further testified that J.M. never resided with him, although he often came over to
Rogers’s house. Rogers stated that he never sexually violated J.M.
IV.
In May 2023, the jury found Rogers guilty of all three offenses. The trial court
then held a bifurcated bench trial on the aggravating factors and prior conviction
allegations. The court found true the prior conviction allegations and several of the
aggravating factors and set the matter for sentencing.
In December 2023, the trial court granted Rogers’s request to reappoint counsel.
At a May 2024 hearing, the court denied Rogers’s motion for a new trial (which he had
filed while still representing himself) and proceeded to sentencing.
At the sentencing hearing, the trial court dismissed the prior serious felony
conviction enhancements in both cases and, on its own motion, the prior strike in case
No. 20CF05838. Based on four aggravating factors, the court determined that an upper
term sentence was appropriate for each count. The court sentenced Rogers to an
aggregate term of 60 years in prison, consisting of consecutive terms of 16 years for the
continuous sexual abuse of J.S., 12 years for the forcible oral copulation conviction, and
32 years (the upper term doubled due to the prior strike) for the continuous sexual abuse
of J.M.
Rogers filed a timely notice of appeal in both cases, and the appeal was docketed
in this court as case No. C101118.
In July 2024, the trial court received a letter from the Department of Corrections
and Rehabilitation advising that count two (forcible oral copulation of J.S.) charged a
violation of section 287, subdivision (c)(2)(B), which was not in effect during the time
period of the charged conduct. In response, the court modified Rogers’s conviction on
count two from a conviction under section 287 to one under former section 288a,
subdivision (c)(2), to reflect the correct code section of the offense at the time of the
6
charged conduct. (See Stats. 2018, ch. 423, § 49 [renumbering § 288a to § 287, eff.
Jan. 1, 2019]; § 1172.1, subd. (a)(1) [court may, at any time upon recommendation of
secretary of Department of Corrections and Rehabilitation, recall previously ordered
sentence and commitment and resentence defendant]; People v. Cunningham (2001)
25 Cal.4th 926, 1044 [“unauthorized sentence is subject to correction despite the
circumstance that an appeal is pending”].)
Because the sentencing triad under former section 288a, subdivision (c)(2) was
lower than the one under which Rogers had been sentenced, the trial court set the matter
for resentencing. (Stats. 2002, ch. 302, § 4.) At the February 2025 resentencing, the
court maintained its original sentencing decisions in all respects, except that it imposed
the upper term of eight years for count two as modified, instead of the original 12 years,
resulting in an aggregate term of 56 years in prison.
Rogers filed a timely notice of appeal from the resentencing in both cases, and the
appeal was docketed in this court as case No. C103192. On Rogers’s motion, the two
appeals in case Nos. C101118 and C103192 were consolidated for briefing, oral
argument, and decision.
DISCUSSION
I.
Rogers first contends that all three convictions must be reversed because the trial
court violated his Sixth Amendment right to counsel by accepting his waiver of counsel
under Faretta v. California (1975) 422 U.S. 806 (Faretta) without conducting a sufficient
inquiry into his complaints against his appointed counsel.
A.
In late November 2020, upon the filing of the complaint involving J.S., Rogers
was appointed a defense attorney. About one month later, Rogers wrote a letter to the
trial court in which he requested release on his own recognizance and conveyed certain
complaints about his appointed counsel. Rogers wrote that, despite leaving messages for
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his attorney and having two court appearances, he had been “unable to talk to [the
attorney] about anything.” Rogers stated that he wanted to speak with his attorney about
filing a motion under People v. Superior Court (Romero) (1996) 13 Cal.4th 497, but “no
matter what I try I am unable to even talk with [counsel] at all.” Rogers further stated: “I
do not feel as though I have anyone defending me but [my]self and those I am blessed to
have in my life as [family].” The court sent a copy of the letter to the prosecution and to
defense counsel but took no other action in response.
In February 2021, the same defense attorney was appointed as counsel for Rogers
in the case involving J.M. That same month, Rogers wrote a letter that he addressed to
his attorney and sent to the trial court. The first three pages of the letter described
Rogers’s complaints about tactics being used by the District Attorney’s investigators.
The final page of the letter requested that his attorney take various actions. Rogers
requested the filing of a Romero motion, stating, “I will have to file it myself if I continue
to receive ineffective assistance.” He also asked counsel to provide him with all
discovery from the case involving J.S. and reminded counsel that he was still waiting to
speak with counsel’s investigator. Rogers further requested that counsel meet with him,
as counsel had not visited as promised before his previous court appearance. Rogers
stated, “[t]his type of nonfeasance [is] truly a deprivation of the absolute right to due
process.” He asked to see counsel before every court appearance, explaining: “I am
asking you to operate within the scope of [d]ue [p]rocess so as to make it possible for me
to exercise my rights[] that I know I am given by law in connection to [d]ue [p]rocess.”
A few days later, Rogers completed a form questionnaire declaring his desire to
waive his right to counsel and represent himself in both pending cases (Faretta waiver
form).
In early March 2021, the trial court held a hearing in the case involving J.M.
where it addressed Rogers’s request. The court stated: “Mr. Rogers, my understanding is
that you are asking the [c]ourt to relieve [defense counsel] as your attorney of record and
8
then to represent yourself in this case, which is the case before the [c]ourt; is that what
you want to do?” Rogers answered: “Yes, sir.” Rogers confirmed that he had completed
the Faretta waiver form himself and responded affirmatively to the court’s questions
regarding whether he understood the charges and the disadvantages of self-
representation. The court found that Rogers knowingly, voluntarily, and intelligently
waived his right to counsel, and it relieved defense counsel as Rogers’s attorney of
record. At the end of the hearing, after discussing scheduling matters, Rogers informed
the court that his (now former) defense counsel had not responded to his informal request
for discovery. The court responded that counsel and Rogers’s appointed investigator
would work to get him counsel’s file.
At a hearing about two weeks later, the trial court addressed Rogers’s request to
represent himself again, this time with respect to the case involving J.S. Rogers asked to
first make a statement and informed the court that his attorney had told him he was
considering a line of argument that would highlight Rogers’s race. Defense counsel
objected, and the court cut Rogers off. The court stated that Rogers was disclosing
attorney-client communications that “don’t have any bearing on what we’re doing here
when it comes to whether you have a right to represent yourself.” Rogers replied:
“Okay. Well, that’s the intention on Faretta as well and a clear … disrespect to my due
process rights.” The court responded that “the relationship between you and [defense
counsel] really does not have any bearing on your right to represent yourself,” and
Rogers replied, “Okay.”
The trial court then proceeded with a more limited Faretta colloquy, referencing
the same Faretta waiver form, and Rogers again confirmed that he had personally
completed the form and understood his rights. The court found that Rogers knowingly
and voluntarily waived his right to counsel and relieved defense counsel as Rogers’s
attorney in the case involving J.S.
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B.
On appeal, Rogers argues that his Faretta waivers in both cases were invalid
because the trial court failed to conduct an inquiry into counsel’s representation under
People v. Marsden (1970) 2 Cal.3d 118 (Marsden). In Rogers’s view, the court could not
be confident that his Faretta waivers were truly voluntary, where the record showed that
Rogers felt compelled to represent himself because of the perceived shortcomings of his
appointed counsel’s representation.
The Sixth Amendment guarantees a criminal defendant both “the right to be
represented by counsel at all critical stages of a criminal prosecution” and “the right to
represent himself or herself.” (People v. Koontz (2002) 27 Cal.4th 1041, 1069; see
Faretta, supra, 422 U.S. at p. 819.) To exercise the right of self-representation, “a
defendant must make a voluntary, knowing, and intelligent waiver of the right to
counsel.” (People v. Elliott (2012) 53 Cal.4th 535, 592.) “Courts must indulge every
reasonable inference against waiver of the right to counsel.” (Koontz, at p. 1069.)
“In order to make a valid waiver of the right to counsel, a defendant ‘should be
made aware of the dangers and disadvantages of self-representation, so that the record
will establish that “he [or she] knows what he [or she] is doing and his [or her] choice is
made with eyes open.” [Citation.]’ (Faretta, supra, 422 U.S. at p. 835.)” (People v.
Koontz, supra, 27 Cal.4th at p. 1070.) “The requirements for a valid waiver of the right
to counsel are (1) a determination that the accused is competent to waive the right, i.e., he
or she has the mental capacity to understand the nature and object of the proceedings
against him or her; and (2) a finding that the waiver is knowing and voluntary, i.e., the
accused understands the significance and consequences of the decision and makes it
without coercion.” (Id. at pp. 1069-1070.) “We review de novo, and after a review of the
entire record, the question of whether the defendant’s invocation of the right to self-
representation and waiver of the right to counsel was knowing and voluntary.” (People v.
Best (2020) 49 Cal.App.5th 747, 756.)
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Under the Sixth Amendment, criminal defendants also have the right to the
effective assistance of counsel. (Strickland v. Washington (1984) 466 U.S. 668, 686.) A
criminal defendant who has been appointed counsel may seek to substitute counsel on
grounds of ineffective assistance, rather than seeking to represent himself or herself. “If a
defendant who asserts inadequate representation seeks to discharge appointed counsel
and obtain a substitute attorney, the court must allow the defendant to explain the basis
for this contention and to present specific instances of counsel’s inadequate
performance.” (People v. Wilson (2023) 14 Cal.5th 839, 863-864.) This occurs through
what is known as a Marsden hearing. For the duty to hold a Marsden hearing to be
triggered, there must be “ ‘ “at least some clear indication by [the] defendant,” ’ ” either
personally or through his or her current counsel, that the defendant “ ‘ “wants a substitute
attorney.” ’ ” (Id. at p. 864, quoting People v. Sanchez (2011) 53 Cal.4th 80, 90.)
“Equivocal statements of dissatisfaction do not suffice.” (Wilson, at p. 864.)
Rogers does not challenge the sufficiency of the trial court’s advisements during
his Faretta hearings. Rather, he asserts that his letters and his statements at the second
Faretta hearing expressing concerns about his attorney’s representation should have
alerted the court to the possibility that his choice to represent himself was the product of
coercion, thereby triggering a duty of inquiry. Rogers has equivocated on the precise
nature of the desired inquiry. His opening brief asserted that the trial court “should have
held a Marsden inquiry before accepting [his] waiver of counsel,” but at oral argument,
Rogers’s counsel reiterated that, as stated in his reply brief, “this is not a Marsden issue”
but rather a more general failure to confirm that Rogers’s waiver of counsel was not
driven by his belief that he was not being effectively represented. We reject these
contentions.
Rogers’s oral and written statements to the trial court before waiving his right to
counsel triggered no formal duty of inquiry under Marsden. At no point did he
specifically request or otherwise clearly indicate that he wanted a substitute attorney in
11
place of his appointed counsel. (See People v. Wilson, supra, 14 Cal.5th at p. 864.)
What Rogers requested, and all that he requested, was permission to represent himself.
Our state supreme court has made clear that a request for self-representation does not
trigger a duty to conduct a Marsden inquiry or to suggest substitution of counsel as an
alternative. (E.g., People v. Mendoza (2000) 24 Cal.4th 130, 157 [finding no duty to hold
Marsden hearing because the defendant’s expression of desire to act as his own attorney
was not clear indication he wanted substitute counsel]; People v. Burton (1989) 48 Cal.3d
843, 855.) Faretta motions and Marsden motions “are fundamentally different, one
raising the question of defendant’s competency to waive his right to counsel, and the
other raising the question of existing counsel’s competency.” (Burton, at p. 855.)
Furthermore, even when a request for self-representation is accompanied by
complaints about current counsel, no duty to conduct a Marsden inquiry arises absent a
request for a substitute attorney. (People v. Burton, supra, 48 Cal.3d at p. 855 [“Nor is it
the rule that whenever a defendant makes a motion to represent himself on the basis of
dissatisfaction with counsel, the court automatically should inquire whether he would like
to make a motion for substitution of counsel”].) That is the scenario here. After
expressing frustrations with various aspects of appointed counsel’s representation, Rogers
informed the trial court that he wished to represent himself but did not suggest a desire
for substitute counsel. Rogers highlights that, at the second of the two hearings, he stated
that his dissatisfaction with counsel was “the intention on Faretta,” but, as we have
explained, a trial court’s duty to hold a Marsden hearing is not triggered where the
defendant asserts inadequate representation by counsel only to explain why he or she is
choosing self-representation. We decline Rogers’s invitation to import a duty of inquiry
under Faretta where none was required under Marsden.
The Court of Appeal’s decision in People v. Gonzalez (2012) 210 Cal.App.4th 724
further supports our conclusion. There, the court rejected a claim that a Faretta waiver
was ineffective for failure to conduct a Marsden hearing after the defendant had
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complained about his appointed counsel’s conduct and requested to “ ‘go pro per … .’ ”
(Id. at p. 738; see id. at pp. 739-742.) The court reasoned that the defendant’s written
submission conveyed a desire to represent himself without requesting a different
appointed attorney, and at the ensuing hearing he responded affirmatively when the trial
court asked whether he wanted to represent himself. (Id. at p. 741.) The same is true of
Rogers’s actions here. Rogers seeks to distinguish Gonzalez on the ground that, unlike
here, the defendant had already had two Marsden hearings and had made a remark at the
hearing that suggested any desire for counsel was secondary to his desire to represent
himself. (Id. at pp. 739, 741.) But we find the unequivocal nature of the self-
representation request and the absence of a request for substitution more central to the
court’s holding there. (Id. at pp. 740-741.)
Citing two older Court of Appeal cases, Rogers argues that some form of inquiry
was nonetheless required to ensure that his election of self-representation was voluntary.
We are not persuaded. In People v. Cruz (1978) 83 Cal.App.3d 308, the Court of Appeal
found that, despite having “clearly satisfied the requirements of Marsden,” the trial court
“should have inquired further into the particulars of [the] defendant’s claim” of a conflict
of interest with the entire public defender’s office, including his present appointed deputy
defender. (Id. at p. 317; see id. at p. 316.) Cruz held that the trial court’s “failure to fully
explore [the] defendant’s charges,” made in connection with his motion to represent
himself, “precluded the possibility of a substitution of counsel,” leaving the defendant
with the belief “that he could not expect effective representation from the public
defender’s office.” (Id. at p. 318.) As a result, the court concluded, the “defendant
[could not] be said to have been fully apprised of his right to counsel and therefore did
not effectively waive that right.” (Ibid.)
We are not persuaded that the trial court’s lack of inquiry here resulted in a similar
misimpression. At most, Rogers had seen the trial court take no action on his written
reports of being unable to communicate and meet with counsel early in one of his cases;
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and Rogers had heard the court say—after he had already waived counsel in one case—
that his issues with counsel had no bearing on his request to represent himself. The court
did not say that substitution of counsel was unavailable. We are unconvinced that this set
of circumstances “precluded the possibility of a substitution of counsel” or left Rogers
under the impression that he lacked any “viable alternative[]” to self-representation.
(People v. Cruz, supra, 83 Cal.App.3d at p. 318.)
Rogers’s reliance on People v. Hill (1983) 148 Cal.App.3d 744 likewise fails.
Unlike the defendant in Hill, Rogers never stated that he did not wish to represent
himself; nor did he express that he “was only representing himself because the court had
refused to appoint counsel.” (Id. at p. 751; see id. at p. 750; People v. Bankston (June 1,
2026, S044739) __ Cal.5th __ [2026 Cal. Lexis 3006] [p. 35, fn. 4] [distinguishing Hill].)
After we heard oral argument, our state supreme court issued an opinion rejecting
an argument in which the defendant, like Rogers, claimed that his Faretta waiver was
involuntary and coerced because he was misled about his right to effective assistance of
counsel. (People v. Bankston, supra, __ Cal.5th at p. __ [pp. 34-36].) The supreme
court’s analysis there applies equally here: “[b]ecause [Rogers] consistently asserted his
desire to represent himself, and never sought to replace his lawyer, there was no reason
for [the trial court] to explore the topic of counsel’s effectiveness and no basis for
viewing [the court’s] remarks as defining or limiting the nature of representation to which
[Rogers] was entitled. [¶] What is more, at no time after the hearing[s] at which
[Rogers]’s Faretta motion[s] [were] granted did [Rogers] seek to relinquish his self-
representation status and have counsel reappointed” before the verdicts were rendered.
(Id. at p. 35.)
Because the trial court had no duty to inquire into Rogers’s complaints about
counsel before accepting his Faretta waivers, we reject Rogers’s Sixth Amendment
claim.
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II.
Rogers next contends that insufficient evidence supports his conviction for
forcible oral copulation of J.S. in violation of former section 288a, subdivision (c)(2).
“ ‘In reviewing a sufficiency of evidence claim, the reviewing court’s role is a
limited one. “ ‘The proper test for determining a claim of insufficiency of evidence in a
criminal case is whether, on the entire record, a rational trier of fact could find the
defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the
evidence in the light most favorable to the People and must presume in support of the
judgment the existence of every fact the trier could reasonably deduce from the
evidence.’ ” ’ [Citation.] ‘ “ ‘Although we must ensure the evidence is reasonable,
credible, and of solid value, nonetheless it is the exclusive province of the trial judge or
jury to determine the credibility of a witness and the truth or falsity of the facts on which
that determination depends.’ ” ’ ” (People v. Alvarez (2025) 18 Cal.5th 387, 470.)
At the time of the alleged acts of oral copulation, now former section 288a
proscribed “an act of oral copulation when the act is accomplished against the victim’s
will by means of force, violence, duress, menace, or fear of immediate and unlawful
bodily injury on the victim or another person.” (Former § 288a, subd. (c)(2); Stats. 2002,
ch. 302, § 4.) Rogers argues that this conviction must be modified to reflect a
nonforcible version of the offense because the evidence was insufficient to prove that any
act of oral copulation of J.S. was accomplished by one of the enumerated means. The
People defend the conviction by arguing, as the prosecution had argued to the jury, that
there was sufficient evidence of duress, menace, and fear. Because we agree that there
was sufficient evidence of duress, we need not address whether other means were also
supported.
“ ‘Duress’ as used in this context means ‘a direct or implied threat of force,
violence, danger, hardship or retribution sufficient to coerce a reasonable person of
ordinary susceptibilities to (1) perform an act which otherwise would not have been
15
performed or, (2) acquiesce in an act to which one otherwise would not have
submitted.’ ” (People v. Cochran (2002) 103 Cal.App.4th 8, 13 (Cochran), disapproved
of on another ground by People v. Soto (2011) 51 Cal.4th 229, quoting People v. Pitmon
(1985) 170 Cal.App.3d 38, 50 (Pitmon) [defining duress under § 288, subd. (b)(1)
forcible lewd conduct], disapproved on another ground in Soto, at p. 248, fn. 12; see
People v. Leal (2004) 33 Cal.4th 999, 1004-1005 [noting § 288 definition of duress has
also been applied to former § 288a].) “[D]uress is by nature a form of psychological
coercion” (People v. Townes (2025) 108 Cal.App.5th 603, 613, fn. 4) and is “measured
by a purely objective standard” (Soto, at p. 246).
In determining the existence of duress, courts consider the totality of the
circumstances, including such factors as the victim’s age, relationship to the perpetrator,
and relative physical vulnerability, as well as the perpetrator’s use of physical control in
response to attempts to resist, the perpetrator’s threats to harm the victim, or his warnings
to the victim about revealing the molestation. (People v. Thomas (2017) 15 Cal.App.5th
1063, 1072; Cochran, supra, 103 Cal.App.4th at pp. 13-14; Pitmon, supra,
170 Cal.App.3d at p. 51.) The jury in this case was instructed accordingly that, in
deciding whether an act of oral copulation “was accomplished by duress,” it was to
“consider all the circumstances, including the age of the other person and his relationship
to the defendant.”
Here, considering the totality of the circumstances, the jury had sufficient
evidence to find that Rogers committed an act of oral copulation on J.S. by means of
duress. As Rogers acknowledges, he began his series of molestations with an explicit and
direct threat that he would “hurt” J.S. should he tell anyone or make any noise. J.S. could
not recall Rogers having done anything to threaten him beyond making that threat, but
the jury could reasonably infer that the initial threat of harm would have been sufficient
to psychologically coerce an ordinary eight to 10 year old, like J.S., into submitting to
subsequent sex acts, including oral copulation, to which he would not otherwise have
16
submitted, when considered alongside the surrounding circumstances. (Pitmon, supra,
170 Cal.App.3d at p. 50; Cochran, supra, 103 Cal.App.4th at p. 13 [“threat to a child of
adverse consequences … if [he or] she reports or fails to acquiesce in the molestation,
may constitute a threat of retribution and may be sufficient to establish duress”];
People v. Townes, supra, 108 Cal.App.5th at p. 613 [same].)
Rogers argues that his threat was insufficient because it was premised not on the
failure to engage in the sexual activity but rather on the disclosure of the activity. Rogers
relies on People v. Hecker (1990) 219 Cal.App.3d 1238, at pages 1242 and 1251,
footnote 7, disapproved on another ground in People v. Soto, supra, 51 Cal.4th 229,
where the court found insufficient the stepfather-defendant having “warned” the victim
not to tell anyone about the molestation incidents because it would ruin his marriage and
career and put him in jail. The court in Hecker concluded that “such testimony
establishes merely the threat of hardship directed at ‘later disclosure of the sex acts and
not [the failure to perform] the sex acts themselves.’ ” (Hecker, at p. 1251, fn. 7, brackets
in original.) Hecker is distinguishable on its facts. (See id. at pp. 1241, 1250 [victim age
12 or 13 was not threatened or consciously afraid of defendant harming her]; see also
People v. Veale (2008) 160 Cal.App.4th 40, 47 [distinguishing Hecker on similar
grounds].) But more fundamentally, “[w]e doubt that young victims of sexual
molestation readily perceive this subtle distinction” between threats regarding future
disclosure and threats tied to noncompliance. (People v. Senior (1992) 3 Cal.App.4th
765, 775 [defendant’s warning to victim after first molestation “that to talk about it could
result in divorce … also implied jeopardy to the family unit if she failed to submit to
future molestation”].) “A simple warning to a child not to report a molestation
reasonably implies the child should not otherwise protest or resist the sexual imposition.”
17
(Ibid.) The same is doubly true of an express threat to harm the child for reporting an act
of sexual abuse.
Turning to the surrounding circumstances, the jury could reasonably infer that
Rogers was somewhere between 18 and 21 years old at the time of the oral copulations,
in comparison to J.S.’s eight to 10 years of age. A roughly 10-year gap at those ages is
significant. J.S. testified that he felt “intimidated,” was “scared” at least during one of
the oral copulation incidents, and believed Rogers could hurt him. From all of this, the
jury could have reasonably inferred that J.S. was physically vulnerable to Rogers. (See
Pitmon, supra, 170 Cal.App.3d at p. 51 [“The disparity in physical size between an eight-
year-old and an adult also contributes to a youngster’s sense of his relative physical
vulnerability”].) And the jury could reasonably have viewed this vulnerability as
enhanced by the fact that, at least at the second house, Rogers would isolate J.S. by taking
him, alone, into Rogers’s bedroom and locking the door whenever J.S.’s parents left the
house. Although the trial transcript is not perfectly clear on this point, J.S.’s testimony
can fairly be construed to convey that acts of oral copulation occurred on at least two or
three occasions when he was locked in the bedroom with Rogers.
Further, Rogers occupied a position of trust and authority in J.S.’s life. Rogers
points out that he was neither a father nor a father figure to J.S., as the perpetrator often is
in cases involving duress. Still, there was substantial evidence to conclude that Rogers
had a familial relationship with J.S. and held a position, as the family’s live-in babysitter,
that came with substantial authority over J.S. and his brothers. J.S.’s mother described
how they considered Rogers part of the family and testified that she brought Rogers into
the household because he was someone the family “loved and trusted.” J.S. and his
brothers testified that Rogers was entrusted with their supervision while their parents
were out of the house. According to one of the brothers, Rogers was left “in charge of”
them on those occasions. In addition, eight to 10-year-old J.S. was of “an age at which
adults are commonly viewed as authority figures.” (Pitmon, supra, 170 Cal.App.3d at
18
p. 51 [eight-year-old victim].) Thus, the fact that Rogers was not a biological relative of
J.S. does not preclude a finding of duress, given the substantial evidence that he took
advantage of his position of authority over J.S. and his brothers to isolate J.S. and coerce
him into sexual activity. (See People v. Superior Court (Kneip) (1990) 219 Cal.App.3d
235, 237-238 [reversing § 995 dismissal of § 288, subd. (b) charges because duress could
be shown where the victim “frequently visited the home and played with defendant’s
sons, and [the victim’s] mother was friends with defendant and defendant’s wife,”
creating a “long-standing relationship of trust” between the defendant and victim].)
We conclude there was substantial evidence for the jury to find that Rogers
committed an act of oral copulation on J.S. by means of duress.
III.
Turning to Rogers’s claims of instructional error, he first contends that his
conviction for continuous sexual abuse of J.M. should be reversed because the jury was
instructed that the People only had to prove that the constituent acts occurred “reasonably
close” to the timeframe alleged, leaving it possible that the jury impermissibly convicted
Rogers for acts occurring after J.M. turned 14 years old.
Section 288.5 provides in relevant part: “Any person who either resides in the
same home with the minor child or has recurring access to the child, who over a period of
time, not less than three months in duration, engages in three or more acts of substantial
sexual conduct with a child … or three or more acts of lewd or lascivious conduct, as
defined in [s]ection 288, with a child under the age of 14 years at the time of the
commission of the offense is guilty of the offense of continuous sexual abuse of a
child … .” (§ 288.5, subd. (a).) A violation of section 288.5 thus requires proof that:
(1) the defendant lived with or had recurring access to a child, (2) the defendant engaged
in three or more acts of substantial sexual conduct or lewd or lascivious conduct with the
child, (3) three or more months passed between the first and last acts, and (4) the child
19
was under age 14 at the time of the acts. (People v. Valenti (2016) 243 Cal.App.4th
1140, 1158.)
“In a prosecution under the statute, the trier of fact need unanimously agree only
that the requisite number of specified sexual acts occurred, not which acts constituted the
requisite number.” (People v. Johnson (2002) 28 Cal.4th 240, 243, citing § 288.5,
subd. (b).) In addition, “the prosecution need not prove the exact dates of the predicate
sexual offenses.” (People v. Mejia (2007) 155 Cal.App.4th 86, 97; accord, People v.
Valenti, supra, 243 Cal.App.4th at p. 1158.) “Rather, it must adduce sufficient evidence
to support a reasonable inference that at least three months elapsed between the first and
last sexual acts.” (Mejia, at p. 97; see People v. Rodriguez (2002) 28 Cal.4th 543, 550
[§ 288.5 “requires at least three acts of sexual misconduct with the child victim over at
least three months”].)
Here, as Rogers acknowledges, the jury was correctly instructed on the elements
of section 288.5 through CALCRIM No. 1120. That instruction specified that the People
were required to prove, as the fourth element of the offense, that “[t]he child was under
the age of 14 years at the time of the acts.” It further explained that “a person becomes
one year older as soon as the first minute of his or her birthday has begun.”
The jury was also instructed with CALCRIM No. 207, which set forth the
timeframes alleged for each of the counts. With respect to the charge of continuous
sexual abuse of J.M., the instruction stated (consistent with the operative information)
that the crime was alleged to have “occurred from on or about February 11, 2014 to on or
about February 10, 2016.” The latter date was the day before J.M.’s 14th birthday. The
instruction then concluded: “The People are not required to prove that the crimes took
place exactly on any of those days but only that they happened reasonably close to those
days.”
During the discussion of jury instructions, Rogers stated that he had no objection
to this instruction. The People claim that Rogers thereby forfeited his current appellate
20
challenge to the instruction, but “failure to object to instructional error will not result in
forfeiture if the substantial rights of the defendant are affected.” (People v. Mitchell
(2019) 7 Cal.5th 561, 579; see § 1259.) We thus review Rogers’s claim to determine
whether the phrasing of CALCRIM No. 207 affected his substantial rights.
Trial courts have “a duty to refrain from giving … instructions on principles of
law that are irrelevant and that would have the effect of confusing the jury or relieving it
from making findings on the relevant issues.” (People v. Barber (2020) 55 Cal.App.5th
787, 799.) “ ‘When considering a claim of instructional error, we view the challenged
instruction in the context of the instructions as a whole and the trial record to determine
whether there is a reasonable likelihood the jury applied the instruction in an
impermissible manner.’ ” (People v. Mataele (2022) 13 Cal.5th 372, 419 [de novo
review of claims of instructional error].) We presume that jurors are capable of
understanding, correlating, and applying the court’s instructions. (People v. Lewis (2001)
26 Cal.4th 334, 390; People v. Sanchez (2001) 26 Cal.4th 834, 852.)
Rogers argues that, while CALCRIM No. 207 was a correct statement of law in
the abstract, it was inapplicable and unnecessary in this case because none of the three
charged offenses was alleged to have occurred on a particular date, but rather over a
range of dates. Rogers cites no authority limiting the instruction’s applicability to the
former scenario. And the model instruction appears to contemplate that CALCRIM
No. 207 could properly be given both in connection with crimes that are alleged to have
occurred on a particular date and those alleged to have occurred over a given period of
time. The model instruction includes the directive to “<insert alleged date(s) or date
ranges by count>” in the blank space provided for specifying the date(s) of alleged
occurrence. (CALCRIM No. 207, some italics omitted.)
Still, we understand Rogers’s main argument to be that the instruction, even if
applicable, impermissibly misled jurors to believe that they did not need to find the
requisite number of abusive acts occurred while J.M. was under age 14. Because the
21
operative information alleged that the acts occurred up until the day of J.M.’s 14th
birthday, Rogers argues that it was misleading to instruct them that it was sufficient if the
crimes happened “reasonably close” to the date range alleged. Rogers further claims that
the prosecutor exacerbated the danger of this misunderstanding by stating, in discussing
the date range alleged for the continuous sexual abuse of J.M.: “The People aren’t
required to prove that the crimes took place exactly on those days, but just reasonably
close. So even if you do believe it was a little before or [a] little after those date ranges,
as long as it’s reasonably close and you believe the other elements have been met, you
can find him guilty.” (Italics added.)
Even acknowledging the prosecutor’s italicized misstatement, in considering the
instructions and trial record as a whole, we discern no reasonable likelihood that the jury
impermissibly applied the “reasonably close” language of CALCRIM No. 207 to convict
Rogers based on acts occurring after J.M.’s 14th birthday. First, both the accompanying
instruction in CALCRIM No. 1120 and other portions of the prosecutor’s closing
argument made clear that J.M. had to be under 14 years old when the acts of abuse
occurred. The version of CALCRIM No. 1120 that the jury received advised that Rogers
was charged “with Continuous Sexual Abuse of a Child Under the Age of 14 Years in
violation of Penal Code section 288.5(a).” (Italics added.) And it stated plainly that the
People were required to prove that “[t]he child was under the age of 14 years at the time
of the acts,” adding that “a person becomes one year older as soon as the first minute of
his or her birthday has begun.” The prosecutor reinforced the importance of this upper
age limit when, in his rebuttal closing argument, he discussed why Rogers testified to
having moved into the house where he allegedly abused J.M. years later than the
prosecution’s evidence showed. The prosecutor urged the jury that it was because Rogers
knew that “an element of the offense … regarding [J.M.] is that he be under 14 years old
when the attacks occurred. That’s why he told you he didn’t move there until it was
2016, once [J.M.] had become too old to be a victim of [section] 288.5.” These aspects
22
of the instructions and attorney argument properly conveyed a strict age limit, in no way
suggesting that J.M. could be slightly over 14 years old.
Furthermore, in explaining why Rogers was guilty of molesting J.M., the
prosecutor focused the jury on the evidence that a sufficient number of acts had occurred
for a sufficient duration while J.M. was under age 14. After reminding the jury of J.M.’s
birth date, the prosecutor stated: “That means in 2014 he [(J.M.)] turned 12. At some
point in 2014, he moved in with the defendant. And you heard him say that he was under
the age of 14 when some of these incidents occurred, that it was more than three months,
and it was far more than three different occasions within that three months.”
Rogers argues that by stating that “some” of the incidents occurred when J.M. was
under age 14, the prosecutor added to the perception of a relaxed age requirement. But,
in light of the evidence, we find no reasonable likelihood that the jury relied on one or
more incidents that occurred “reasonably close” to, and subsequent to, J.M.’s 14th
birthday. In his testimony, J.M. provided solid evidence of Rogers touching him sexually
for more than three months before his 14th birthday. J.M. recalled being 13 years old
when his mother left him to find his own housing, a memorable life event. While he
could not remember the exact dates of the sexual touching incidents, J.M. testified that
they “for sure” occurred when he was age 13 and had been occurring for “maybe eight,
nine months before [he] had turned 14.” J.M. also stated that when he told his best friend
about the molestation “a few months” after it began, he was not yet 14 years old. And as
to frequency, J.M. said the touchings occurred almost every night. While J.M.’s
testimony also indicated that the touchings continued after he turned 14, he never
specifically described any individual incident either before or after that date. His
testimony effectively amounted to a statement that Rogers touched him sexually on a
nearly nightly basis for as many as nine months before he turned 14, as well as after that.
Given this record and the instruction that the acts must have taken place when J.M. was
under age 14, we see no likelihood that a juror would have mistakenly relied on one or
23
more acts occurring after J.M.’s 14th birthday, rather than the nearly nightly acts
preceding that date.
We are not persuaded by Rogers’s argument that the conflicting evidence
regarding the timing of when he first met J.M. increases the likelihood that the jury relied
on acts close to and postdating J.M.’s 14th birthday. The parkour team leader testified
that Rogers met J.M. and the rest of the team in 2016 when J.M., he believed, would have
been almost 15 years old. Rogers himself testified that he met the team in the summer of
2016 when, to his knowledge, J.M. was more than 14 and a half years old. While it is
theoretically possible the jury could have believed this testimony while rejecting
Rogers’s outright denials of the abuse, we do not find it reasonably likely that the jury
would have interpreted this testimony as establishing a window of abuse that was
“reasonably close” to J.M.’s 14th birthday. Though this phrase may not admit of any
precise timing parameters, a juror of reasonable intelligence would not view a gap of
more than six months beyond the end of a two-year span of dates as “reasonably close to”
that date range.
The phrasing of CALCRIM No. 207 did not violate Rogers’s substantial rights.
(§ 1259; People v. Mataele, supra, 13 Cal.5th at p. 419.)
IV.
Rogers also contends that both convictions for continuous sexual abuse must be
reversed because the jury was incorrectly instructed that continuous sexual abuse
(§ 288.5) is a general intent crime.
The jury received a version of CALCRIM No. 252 regarding the required union of
act and intent for each charged crime and lesser included offense. That instruction
categorized the crimes into those requiring “general criminal intent” and those requiring a
“specific intent or mental state.” It listed continuous sexual abuse of a child in the
general intent category.
24
At trial, Rogers stated that he had no objection to CALCRIM No. 252 as written.
As we have explained, however, we review claimed instructional errors alleged to have
affected a defendant’s substantial rights even absent an objection. (§ 1259; People v.
Mitchell, supra, 7 Cal.5th at p. 579.)
A trial court is required to instruct the jury on the elements of a charged offense.
(People v. Mil (2012) 53 Cal.4th 400, 409.) When the offense requires specific intent, the
court must instruct jurors on the requisite mental state as well as the required concurrence
of act and specific intent. (People v. Saavedra (2018) 24 Cal.App.5th 605, 614; People v.
Ngo (2014) 225 Cal.App.4th 126, 162.)
Here, the given version of CALCRIM No. 252 erroneously identified continuous
sexual abuse (§ 288.5) exclusively as a general intent crime. That crime can qualify as
either an offense requiring general intent or one requiring specific intent, depending on
how it is pleaded and proven. There are “three ways of proving continuous sexual abuse:
by proof of ‘substantial sexual conduct’; by proof of ‘lewd and lascivious conduct’; or by
both.” (People v. Canales (2024) 106 Cal.App.5th 1230, 1244.) “Substantial sexual
conduct refers to certain acts (penetration, oral copulation or masturbation) but does not
require any kind of specific intent.” (People v. Garcia (2014) 229 Cal.App.4th 302, 313,
fn. 3, citing § 1203.066, subd. (b) & People v. Avina (1993) 14 Cal.App.4th 1303, 1313.)
“However, to commit a lewd and lascivious act, the perpetrator must harbor the intent to
arouse the sexual desires of the child or him or herself.” (Garcia, at p. 313, fn. 3, citing
§ 288, subd. (a) & People v. Cuellar (2012) 208 Cal.App.4th 1067.) In this case, the
prosecution did not specify which theory of guilt it was pursuing, either in the
informations or at trial. We thus agree with Rogers that it was possible that the jury’s
guilty verdict rested on a theory requiring the People to prove his specific intent, and the
jury instructions were thus erroneous in failing to instruct the jury on that requirement.
That error, however, was harmless under any standard. Under the more stringent
standard set forth in Chapman v. California (1967) 386 U.S. 18, reversal is required
25
unless a reviewing court concludes “beyond a reasonable doubt that the jury verdict
would have been the same absent the error.” (People v. Schuller (2023) 15 Cal.5th 237,
261.) We are confident, beyond a reasonable doubt, that an instruction on section 288.5’s
different mental states would not have changed the guilty verdicts in either J.S. or J.M.’s
case. The evidence of continuous sexual abuse of each victim consisted of numerous
instances of Rogers touching the boys’ penises with his hand, either over or under their
underwear, while they were sleeping or appearing to sleep.2 In J.M.’s case, the jury
heard that Rogers’s hand would make a “rubbing motion back and forth” during these
touchings. While J.S. did not describe Rogers’s precise movements, he did relate that
Rogers told him not to make a sound and not to tell anyone what Rogers had done.
Under these circumstances, a rational juror could only infer that Rogers’s intent in
touching the boys’ penises was sexual. “Only one reason explains why an adult man, in
secret, touches a [child’s genitals] and, afterwards, … tells [him or] her not to tell
[anyone], and does so repeatedly.” (People v. Canales, supra, 106 Cal.App.5th at
p. 1251; see id. at pp. 1249-1251 [finding harmless CALCRIM No. 252’s categorization
of § 288.5 as general intent crime].) “No other mental state fits the facts.” (Id. at
p. 1251.) Moreover, Rogers offered no “morally innocent or ambiguous explanation of
his intent.” (Ibid.) His defense was that he never inappropriately touched J.S. or J.M. at
all. Thus, “[i]ssues about mental states were irrelevant.” (Ibid.; see also People v.
Saavedra, supra, 24 Cal.App.5th at p. 616 [defendant’s failure to contest his intent in
committing sexual penetration of a child (§ 288.7, subd. (b)) supported finding of
harmlessness of instructional error].)
2 Although there was also evidence of oral copulation of J.S., the prosecution informed
the jury that the charge of continuous sexual abuse of J.S. covered only conduct occurring
in the first house where Rogers lived with J.S.’s family—at which J.S. could not recall
any particular act of oral copulation.
26
In sum, even if the jury considered the constituent touchings lewd and lascivious
conduct, rather than substantial sexual conduct, it would have found that Rogers acted
with the requisite specific intent. Thus, any error in failing to instruct the jury on the
specific intent required was harmless beyond a reasonable doubt. (People v. Schuller,
supra, 15 Cal.5th at p. 261.)
V.
Last, we address Rogers’s contention that the trial court erred in allowing the
People to amend the information in each case to newly allege certain aggravating factors,
later cited in support of upper term sentences, after he had already waived his right to a
preliminary hearing in both cases.
A.
The original felony complaints filed in each case against Rogers alleged no
circumstances in aggravation listed in rule 4.421 of the California Rules of Court. The
complaints were filed and were deemed informations upon Rogers’s waiver of his right to
a preliminary hearing in each case, at a time when California’s sentencing scheme left it
to the discretion of the trial courts whether to impose the upper, middle, or lower term.
(Former § 1170, subd. (b); see Stats. 2015, ch. 378, § 2; People v. Pantaleon (2023)
89 Cal.App.5th 932, 935-936 [describing recent history of California’s determinate
sentencing law], disapproved of on other grounds by People v. Wiley (2025) 17 Cal.5th
1069.)
Effective January 1, 2022, the Legislature amended section 1170 in Senate Bill
No. 567 (2021-2022 Reg. Sess.) (Senate Bill No. 567) to provide that a “court may
impose a sentence exceeding the middle term only when there are circumstances in
aggravation of the crime that justify the imposition of a term of imprisonment exceeding
the middle term, and the facts underlying those circumstances have been stipulated to by
the defendant, or have been found true beyond a reasonable doubt at trial by the jury or
by the judge in a court trial.” (§ 1170, subd. (b)(2); see Stats. 2021, ch. 731, § 1.3.)
27
In February 2022, the People filed first amended informations in both cases.
Neither alleged any aggravating factors.
In May 2023, on the first day of Rogers’s trial, before jury selection, the
prosecution moved to amend both informations to allege six aggravating factors. In
addressing the motion, the trial court confirmed with the prosecution that the only
proposed change to the informations was the addition of alleged aggravating factors
pursuant to the amendment to section 1170. After Rogers reviewed the second amended
informations, the court asked if he had “any questions about what … the allegations
[were] for.” Rogers replied, “No. It’s pretty clear.” The court then asked whether he
had any objection to the filing of the second amended informations, and Rogers
responded: “No objection.” The court granted leave to amend, and Rogers entered pleas
of not guilty and denied all of the special allegations, including the aggravating factors.3
At the post-verdict bifurcated bench trial on the prior conviction allegations and
aggravating factors, the trial court found true four of the alleged aggravating factors as to
both cases. At both the sentencing and resentencing hearings, the court cited those four
aggravating factors as the basis for its decision to impose upper term sentences for
Rogers’s convictions. Rogers, who was represented by counsel at both sentencing
proceedings, voiced no objection to the court’s reliance on these aggravating factors at
either hearing.
B.
On appeal, Rogers claims that the trial court erred in relying on three “ ‘conduct-
based’ ” aggravating factors because they were pleaded after he waived his right to a
preliminary hearing. We do not reach the merits of his arguments because, as the People
3 On the second to last day of trial, after presenting their case-in-chief, the People filed a
third amended information in J.S.’s case (20CF05838) amending the date range for the
continuous sexual abuse count. That operative information does not repeat the
aggravating factor allegations, but Rogers does not raise this omission in his argument.
28
assert, Rogers forfeited this claim by failing to object below. (People v. Leonard (2014)
228 Cal.App.4th 465, 481 [failure to object to amendment of information forfeits
argument on appeal].) Rogers acknowledges that he did not raise this issue in the trial
court but urges that we should overlook his forfeiture under our state high court’s
decision in People v. Anderson (2020) 9 Cal.5th 946. We decline to do so because the
three reasons cited by the high court in Anderson do not apply here.
First, the alleged error in permitting the amendment of the informations is not
“clear and obvious,” as was the violation of the “express pleading requirements”
contained in the relevant statutes in Anderson. (People v. Anderson, supra, 9 Cal.5th at
p. 963.) Here, Rogers argues that, after the enactment of Senate Bill No. 567, a conduct-
based aggravating factor qualifies as an “offense” within the meaning of section 1009
that cannot be added to an accusatory pleading after the waiver of preliminary hearing.
As Rogers acknowledges, at least one court has rejected this argument. (Chavez
Zepeda v. Superior Court (2023) 97 Cal.App.5th 65, 71, 92-97 [no statutory requirement
to prove aggravating circumstances at preliminary hearing].) Rogers contends that
Chavez Zepeda was wrongly decided, but even if he were correct, that would not make
the claimed error clear and obvious.
Second, the alleged error here did not affect Rogers’s “substantial rights by
depriving [him] of timely notice of the potential sentence he faced.” (People v.
Anderson, supra, 9 Cal.5th at p. 963.) As an initial matter, in early 2021 when Rogers
waived his right to a preliminary hearing in both cases and the felony complaints were
deemed informations, Senate Bill No. 567 had not yet taken effect, meaning that the
Legislature had not made the middle term the presumptive term absent further findings of
aggravating or mitigating facts. Instead, former section 1170, subdivision (b) stated:
“When a judgment of imprisonment is to be imposed and the statute specifies three
possible terms, the choice of the appropriate term shall rest within the sound discretion of
the court.” (Former § 1170, subd. (b); Stats. 2015, ch. 378, § 2.) Thus, when Rogers
29
waived preliminary hearing, an upper term sentence was within the range of sentences
that could be imposed. Moreover, the People did in fact plead each of the disputed
aggravating factors before trial began, providing Rogers with notice and the opportunity
to contest those factors both before and during sentencing. He opted to do neither. (Cf.
Anderson, at p. 963 [prosecution’s intent to seek firearm enhancements, which “were
never pleaded,” was not clear until day of sentencing hearing].)
Nor does the alleged error here “go[] to the overall fairness of the proceeding.”
(People v. Anderson, supra, 9 Cal.5th at p. 963.) Rogers was aware at the outset that he
might face an upper term sentence, and when the sentencing law changed mid-
prosecution, he received clear notice of the alleged aggravating factors before trial and
acquiesced in the amendment of the charging documents. We see no fundamental
unfairness that would warrant excusing the forfeiture in this case.
DISPOSITION
The judgment is affirmed.
/s/
FEINBERG, J.
We concur:
/s/
HULL, Acting P. J.
/s/
BOULWARE EURIE, J.
30