Filed 10/30/26 P. v. Stubbs 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NOT TO BE PUBLISHED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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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Placer)
THE PEOPLE, C100908
Plaintiff and Respondent,
(Super. Ct. No. 62-171506A)
v.
STEPHEN MARK STUBBS et al.,
Defendants and Appellants.
Defendants Stephen Mark Stubbs and Brandon Michael Frank sexually abused
Frank’s nephew over the course of several years, beginning when he was six years old. A
jury found them guilty of dozens of sex offenses, including forcible sodomy and
aggravated sexual assault. The jury also found true multiple special circumstances,
including that Stubbs and Frank engaged in tying or binding the victim and administered
a controlled substance to him. The trial court sentenced Frank to 18 years eight months,
plus four consecutive terms of life without parole and 135 years to life in prison. The
court sentenced Stubbs to 11 years four months, plus four consecutive terms of life
without parole and 450 years to life.
In this appeal, defendants raise multiple challenges to their convictions and
sentences. First, both defendants contend that there was insufficient evidence of force or
duress to support their convictions for forcible sex offenses. We easily reject these
claims, as there was overwhelming evidence of duress presented at trial.
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Second, both defendants maintain that the prosecution failed to adduce sufficient
evidence of penetration necessary to convict them of forcible sodomy. Again, we
disagree because the record contains ample evidence that penetration occurred in each of
the challenged counts.
Third, Frank asserts various claims of error regarding the special circumstances for
tying or binding a victim and administering a controlled substance. We conclude,
contrary to Frank’s claim, that the tying or binding special circumstance applies to aiders
and abettors like Frank, who assist their co-perpetrator in tying the victim. We further
conclude that there was sufficient evidence that both the tying or binding and the
administration of a controlled substance occurred “in the commission of” the underlying
offenses, as required by the relevant statutes.
Fourth, Frank challenges numerous aspects of the jury instructions. He claims that
the instructions on the special circumstances erroneously led the jury to believe that it
need not find that the tying or the administration of a controlled substance elevated the
victim’s vulnerability. We discern no such requirement in the statute. We likewise reject
Frank’s claim that the instructions allowed the jury to find only one of each of the special
circumstances true but then apply those true findings to other counts in a course of
conduct. Frank’s further claim that the trial court erred in failing to instruct the jury on
lesser included, nonforcible offenses also fails because there was no substantial evidence
that Frank committed the lesser included, but not the greater, offenses. Frank also argues
that he was entitled to an instruction under People v. Mayberry (1975) 15 Cal.3d 143
(Mayberry), which would have required the prosecution to prove that he did not actually
and reasonably believe that the victim consented to the sexual acts. In this case, there
was no proper basis for any such instruction.
Fifth, Frank claims that his attorney rendered constitutionally ineffective
assistance of counsel in several respects. Here, too, we disagree, for Frank has either
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failed to show that his attorney’s asserted omissions reflected deficient performance or
that any such omissions had any effect on the verdicts.
Finally, both defendants challenge their sentences. Frank claims that there was no
substantial evidence supporting two aggravating circumstances supporting the upper term
on one of his convictions—the victim’s vulnerability and that the crime involved acts
disclosing a high degree of callousness. We find in the record ample evidence of both.
For his part, Stubbs maintains that the judgment in his case should be modified to strike
several sentence enhancements under Penal Code section 667.6, subdivision (a) and that
the abstract of judgment should be modified to strike several sentence enhancements
under section 667.51, subdivision (a).1 The People concede these errors. We accept the
concession and will modify the judgment to reflect the necessary corrections. In all other
respects, we affirm the judgment as to both defendants.
BACKGROUND
Because defendants assert several challenges to the sufficiency of the evidence, we
set forth the evidence at trial bearing on those claims. In doing so, we refer to the victim
as “John Doe” to protect his identity and refer to any family members, other than Frank,
only by relation to Doe.
I.
In 2020, law enforcement searched a rural residence in Loomis after receiving a
cyber tip from the National Center for Missing and Exploited Children. The search
uncovered electronic devices and storage containing images of child sexual abuse,
including pictures and videos of Frank and Stubbs engaging in sexual acts with Doe.
Law enforcement found child sex abuse materials involving other children as well.
1 Undesignated statutory references are to the Penal Code.
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Frank and Stubbs were arrested and charged with dozens of counts of child sexual
abuse. The People charged both men with: one count of forcible sodomy with a child
under 14 years old (§ 286, subd. (c)(2)(B); count four); 13 counts of forcible lewd acts on
a child under 14 years old (§ 288, subd. (b)(1); counts five through eight, ten, twelve,
fourteen, sixteen, eighteen, twenty, twenty-two, twenty-four, and twenty-six); four counts
of aggravated sexual assault by sodomy by force or duress of a child under 14 years old
(§ 269, subd. (a)(3); counts nine, nineteen, twenty-three, and twenty-five); five counts of
aggravated sexual assault by oral copulation by force or duress of a child under 14 years
old (§ 269, subd. (a)(4); counts eleven, thirteen, fifteen, seventeen, and twenty-one); and
one count of possession of child pornography (§ 311.11, subd. (a); count twenty-eight).
The People additionally charged Frank with one count of oral copulation of a child
10 years old or younger (§ 288.7, subd. (b); count one); two counts of lewd acts on a
child under 14 years old (§ 288, subd. (a); counts two and three); and one count of
forcible lewd acts on a child under 14 years old (§ 288, subd. (b)(1); count twenty-seven).
Stubbs was also charged with one count of failing to register as a sex offender (§ 290,
subd. (b); count twenty-nine).
As to counts four through eight, the People alleged as special circumstances that
both defendants engaged in tying or binding the victim (§ 667.61, subd. (e)(5)) and
administered a controlled substance to the victim (§ 667.61, subd. (e)(6)). As to count
twenty-eight, the People alleged that both defendants possessed more than 600 images
depicting a person under 18 years old engaging in sexual conduct and more than
10 images depicting a prepubescent minor (§ 311.11, subd. (c)(1)). It was further alleged
that Stubbs was a habitual sex offender and had suffered a prior conviction for violating
section 288, subdivision (a), a serious or violent felony. (§§ 667, subds. (b)-(i), 667.51,
subd. (a), 667.6, subd. (a), 667.61, subd. (d)(1), 667.71, 1170.12, subds. (a)-(d).) The
People also alleged multiple aggravating circumstances.
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II.
A multiple-day trial was held in January 2024. According to the testimony at trial,
Doe was born in 2006. Frank was his uncle. Frank and Stubbs lived with Doe and his
family off and on while Doe was growing up. Doe’s mother worked nights, so Frank
frequently babysat Doe while she was at work. She trusted Frank with Doe because
Frank was his uncle. Doe’s mother would take Doe and her other children to visit their
grandmother in Loomis, where Frank also sometimes lived. Sometimes, Doe would visit
without his mother when Frank was living there. Stubbs lived in a shed behind the
Loomis house.
Doe’s mother testified that when Doe was younger, he was “a tiny little thing,”
and the family gave him a nickname based on his small size. Doe’s mother recalled that
Doe’s behavior around Frank was different at one point in 2019, when Doe did not want
to go to Loomis and did not want to be separated from her while he was there, to the
point that she could not go to the bathroom without him.
At trial, the prosecution presented videos and photographs that defendants created
of their sexual abuse of Doe. Detective Jeff Martin explained that police categorized the
videos and images they recovered in their investigation into different series. He also
testified about what many of the videos depicted.
In the first two series, the “homework series” and the “bathroom series,” Detective
Martin testified that Doe was wearing an orange Teenage Mutant Ninja Turtles shirt,
leading the detective to believe that the two series were made around the same time in
2013, when Doe was six years old. Only Frank appeared in both series.
In the “homework series,” Doe was doing homework on a bed. Frank was
recording himself masturbating while moving around the room and trying to “coax [Doe]
into doing something with him sexually.” Frank concluded by rubbing his penis against
Doe from behind. A portion of the video in this series was played for the jury.
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In the “bathroom series,” Frank was recording a video of himself with his penis
out, urging Doe to perform oral sex on him and Doe complying. The camera was pointed
at the bathroom mirror, showing Frank and Doe. Frank had his hand on the doorknob
and was holding the door closed. The videos in this series were admitted into evidence,
and portions were shown to the jury.
The “binding series” consisted of several videos from September 2017 taken in the
Loomis shed. Both defendants appeared in the videos, and Frank appeared to be
controlling the camera with a computer. Stubbs, Frank, and Doe were nude in the videos.
In one video, Doe’s ankles were bound together with white rope. He was on his back
between Stubbs and Frank as Stubbs wrapped rope around Doe’s wrists. Stubbs then
used the rope to hogtie Doe. Both defendants were masturbating. At one point, Frank
heated up methamphetamine in a glass pipe and blew the smoke into Doe’s mouth.
Stubbs was touching Doe’s penis and his own. A portion of the video was played for the
jury.
In a video later in this series, Doe was playing on a cell phone while the two
defendants were masturbating and trying to touch him. In another video, Doe was seated
on Frank’s lap, Frank was applying lubrication to himself and to Doe, and Frank was
“reaching around and trying to open the boy’s legs.” Detective Martin opined that Frank
was trying to have anal sex with Doe because Frank kept “working with lubrication in
different ways and different positions.” Stubbs then crawled in front of Frank and Doe
and helped open Doe’s legs while Frank applied lubrication, and Doe reacted negatively
to the smell of the lotion. Doe said he wanted to “go to sleep” and “go inside the house
to sleep.” Stubbs said, “Then you go to sleep … go take a walk.” Doe also said, “Ew …
You have spit all over your hands. Ew.” Frank responded, “It’s coconut,” and Stubbs
laughed. Doe said, “I want to get it off right now. I want to go back inside. … [¶] I’m
just done. Ow.” Stubbs replied, “I haven’t even had a chance to play with you yet.
That’s sad. I guess tomorrow morning’s a different day.” Doe said that he wanted to
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take a shower, and Stubbs responded, “Take a shower.” Doe repeated that he wanted to
take a shower, and Stubbs replied he needed to take one, too. Doe said, “No, no, no.”
Stubbs asked if Doe wanted to “wear the jock strap again” or a dog collar; Stubbs then
asked if he could walk Doe like a dog. Doe responded, “No, I just wanna go back inside
and take a shower. … Please don’t. Are we gonna go inside?” Frank replied, “Yes!”
The “storage series” of videos included two sets of videos and images taken in an
empty storage unit, one in January 2018 and the other in April 2018. Detective Martin
testified that the videos depicted “oral copulation” and Stubbs “sodomizing” Doe.
In the first two videos from January 2018, Frank was filming and orally copulated
Doe. In one video, defendants asked Doe if he “like[d] it like this,” and Doe responded,
“Good. 10 out of 10.” Frank then asked Doe to “[c]ome give me a kiss” and “kiss it.” In
another video, both defendants orally copulated Doe; later, Stubbs was behind Doe with
his hands on Doe’s chest or groin. Another video showed Frank smoking from a
methamphetamine pipe and blowing the smoke on Doe’s penis and face while orally
copulating Doe. Stubbs asked Doe, “[h]ow do you like that,” and Doe replied, “[p]retty
good.” Images also showed Doe orally copulating both defendants.
In the April 2018 videos and images, the three were in the same location but were
wearing different clothes. In the first video, Stubbs was behind Doe, who was nude,
while Frank was recording. Stubbs pushed his hips towards Doe’s buttocks while
holding Doe’s shoulders. In two videos, Doe was kneeling on a green blanket. In one,
Frank rubbed his penis against Doe’s buttocks before ejaculating.
Doe, who was a senior in high school at the time of trial, testified about the abuse.
He could not remember when the touching started but said that Frank touched him “in
ways that [he] did not like.” Doe could not remember a time in his life when Frank was
there but was not trying to touch him. Doe recalled that Frank once showed him a video
in which Frank was babysitting Doe and exposed himself. Frank showed him the video
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as if he were “showing it off” or “flexing it,” and it made Doe uncomfortable. Frank told
Doe never to tell anybody and that nobody could know.
Doe further testified that when his family visited Loomis, he sometimes shared a
room with Frank. Frank touched Doe’s “butt [and] penis” “[a]ny chance he could
possibly get” while Doe was visiting. Frank would touch Doe with his hands or his penis
and would touch Doe’s “butt” with his penis where Doe went “to the restroom.” Doe felt
uncomfortable but did not think he was in a position to do anything about it. Doe said
that Frank’s penis did not go “inside of [his] butt,” but that, in one instance in the
bedroom (which, the prosecution later explained, was not charged) Frank did once “try to
get it in [his] butt.” Doe said it hurt and made him “jolt[] up.” Afterwards, he felt like he
“was in the wrong” because he “felt manipulated for not pleasing” Frank.
Doe also recalled a time when Frank took him to an area about five minutes away
from his grandmother’s house and “rubbed his penis between [Doe’s] butt” while Doe
was bent over behind some bushes. Doe did not remember Frank penetrating his anus in
this instance. Doe also remembered Frank and possibly Stubbs taking him to a house that
was under construction where he thought they would touch his body or engage in oral
copulation. Doe went with defendants to the construction site because he “just felt
obligated to come along.”
Both Stubbs and Frank would take Doe to the shed in Loomis and touch him there
when he was about 12 or 13 years old, although Doe had difficulty remembering what
happened. They would generally take him to the shed at night after everyone else had
gone to sleep. Doe remembered feeling that defendants were much “bigger and more
mature” than he was at the time.
Doe further explained that the shed had multiple monitors with pictures of young
boys around Doe’s age or younger. Doe recalled Frank taking a photo of Doe trying on
underwear; Frank also showed Doe a video of Frank touching him. Doe was reluctant to
try the underwear on, but Stubbs and Frank were very insistent that he do so. Stubbs
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would take photos of Doe wearing the underwear. Frank also showed Doe a video Frank
had previously taken in the bathroom of Doe on his knees orally copulating Frank. Once,
when Doe was in the shed, Frank showed Doe the video.
There were more than 10 instances where both defendants would orally copulate
Doe in the shed. Both defendants also rubbed their penises between the cheeks of Doe’s
buttocks. Doe did not think either ever penetrated his anus, although they did touch him
where he would “go to the [bath]room.” Doe felt uncomfortable about this. He knew
that pictures were taken of their conduct, but he had not seen any of them. The fact that
there were pictures “just out there” made Doe feel uncomfortable and regretful; he was
worried they would appear online. He also remembered Frank smoking something and
blowing it into Doe’s mouth. Doe did not remember if the smoke made him feel different
afterwards and did not know what was being smoked. After the nights in the shed, Doe
would return to Frank’s room, where Frank would continue rubbing his penis between
Doe’s buttocks.
Doe also testified about the storage unit. He thought he was in fifth or sixth grade
when defendants brought him there. There was a camera in the storage unit, but Frank
said it was not active after Doe expressed concern about it. Frank would touch Doe’s
penis. He was not sure if Stubbs touched him in the storage unit, but he believed it
happened. Doe did not remember ever being tied up, although he remembered Frank
once putting handcuffs on his thumbs at an apartment defendants lived in.
Doe recalled multiple other acts of abuse beyond those for which defendants were
charged, including acts of oral copulation and other sexual conduct by Frank and Stubbs
in the bathroom, in the storage unit, at Doe’s grandmother’s house, and at defendants’
apartment. Frank was constantly touching Doe whenever he could.
The last incident of abuse occurred in 2019. Doe testified that Frank tried to pull
down Doe’s pants in the living room of his grandmother’s house and “play[] it off in a
playful way.” Doe resisted and told him to stop, but Frank pulled Doe’s pants down to
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his knees, exposing his penis. Doe recalled that it made him feel “[v]ery, very
uncomfortable and out of place,” and he tried to distance himself from Frank thereafter.
In response, Frank offered to give Doe a PlayStation if he would visit him at the Loomis
house. At some point, Frank also gave Doe a Game Boy and some Pokémon cards.
Doe said that, at first, he never told anyone about the abuse because he did not
understand that anything was wrong; later, he did not tell anyone because he was
embarrassed. He first disclosed the abuse when he was 13 years old, after Frank was
arrested and police questioned him. Before Doe was questioned, he had hoped that “the
issue would go away” and that he could put “it all behind [him].” He did not want to talk
or think about it and wanted to stay in bed. Ultimately, he felt relieved after he talked
about it because he had been holding everything in for so long.
The prosecution also called to the stand a sexual assault response team nurse
coordinator. She did not examine Doe but testified about the anatomy of the anal area.
She explained that the anal opening is surrounded by small folds of tissue called perianal
folds. The perianal folds would be visible on an external examination of a patient.
A clinical psychologist testified about child sexual abuse accommodation
syndrome. He had not talked to any witnesses in the case, evaluated any of the parties,
and did not know any specific details about the charged offenses. The psychologist
explained that it is important to understand child sexual abuse in the context of the
existing relationship the victim has with the perpetrator. Because the perpetrator may be
a trusted adult that the victim cares about, the victim may be reluctant to disclose the
abuse to protect the perpetrator. A perpetrator may not need to explicitly threaten a child
to prevent the victim from disclosing the abuse. Younger children may not even
understand that the abuse is wrongful or abusive; they may be embarrassed to
acknowledge it. Children may also feel helpless in abusive situations because of the
“power dynamics and the differences in age and development and sophistication.”
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Because of the ongoing nature of such abuse, children often demonstrate learned
helplessness and go “along with” the abuse. In some cases, children then feel as though
they “contributed to what was going on, which could then even make it spiral even more
to where they are unwilling to talk about what they’ve done.” In many cases, children
who have been sexually abused will “appear stoic [and] show no outward displays of
distress, even when talking about being sexually abused,” as a way of distancing
themselves from the abuse. Because children do not have the same language abilities as
adults, they may have difficulty recounting things like “time, sequence, order, [or] dates.”
Moreover, human memory is fallible, and it can be difficult to remember the sequence of
specific details about things that happened multiple times over the course of many
months or years.
III.
Frank testified in his own defense. He stated that he had been molested by a
family friend when he was younger and witnessed domestic violence between his parents.
He was 19 years old when he met Stubbs, and they started living together when Frank
was 20 or 21 years old. Over the course of the relationship, Stubbs would get angry with
Frank and began experimenting in a “kinkier way” with sex that would cause Frank pain.
Stubbs twice choked Frank until Frank passed out while they were under the influence of
methamphetamine. Stubbs also forced Frank to have sex with other men while Stubbs
recorded them.
Frank admitted his conduct depicted in the “bathroom series” videos but said that
it was done at Stubbs’s suggestion. Frank was worried that Stubbs would hurt him if he
did not comply. He testified similarly about the “homework series,” saying that Stubbs
wanted to see if Frank could get Doe to do more than he had done in the bathroom video.
As to the acts depicted in the “binding series,” Frank said that Stubbs came up
with the idea of showing Doe the earlier bathroom video to “see if [Doe] would be
enticed to do anything.” Frank acknowledged that they abused Doe and videotaped the
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abuse. Frank admitted abusing Doe when they were sharing a bed at the Loomis house in
2017. He remembered abusing Doe at a construction site near the house.
Frank said that Stubbs also came up with the idea for the “storage series” and that
defendants discussed using gifts, including a Game Boy and a PlayStation, to entice Doe
to come to the storage unit. Frank told Doe’s mother that Doe wanted to go to the storage
unit. Defendants took Doe there twice, and both visits were captured in the videos shown
at trial. The storage unit was protected by a gate that required a code to open. Doe’s
parents did not know the code to the gate. Frank acknowledged that he “indirectly” gave
methamphetamine to Doe in the storage unit by blowing smoke on him.
The second time that defendants abused Doe in the storage unit, Frank had
received permission from Doe’s parents to take him there. He did not tell them what they
would be doing. Regarding the April 2018 incidents in the storage unit, Frank claimed
that he put his penis between Doe’s legs, but not in his anus.
Frank said that when he and Stubbs took Doe to the storage unit, Doe agreed to go
with them. When defendants went on a walk near the Loomis house, Frank testified that
Doe likewise agreed to go with them and then agreed to take his pants off when Frank
suggested it. In response to the prosecutor’s question whether he had tried to protect
Doe, Frank said that he “asked [Doe] if he was okay, and then I asked him if he didn’t
want to do it anymore. But – and I – I – it wouldn’t happen anymore.” The prosecutor
followed up: “You asked an 11-year-old if it was okay if you molested him?” Frank
responded that, “I asked if he was okay.” Frank later said, “I was hoping he would say
no. That way it would stop.” Frank admitted that he told Doe not to tell anyone what
they were doing to him because he did not want to get into trouble.
IV.
The jury found both defendants guilty of all counts and found true all of the
special circumstance allegations. Defendants waived a jury trial on the aggravating
circumstances, and Stubbs waived a jury trial as to the prior conviction allegations. The
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trial court found the prior conviction allegations true and made findings as to the
aggravating circumstances. The court sentenced Frank to an aggregate sentence of
18 years eight months, plus four consecutive terms of life without parole and 135 years to
life. It sentenced Stubbs to an aggregate sentence of 11 years 4 months, plus four
consecutive terms of life without parole and 450 years to life.
Defendants filed timely notices of appeal.
DISCUSSION
Defendants assert multiple claims in this appeal. We begin with their challenges
to the sufficiency of the evidence supporting their convictions for forcible sex offenses
and for sodomy. We next address Frank’s challenges to the special circumstances. We
then discuss Frank’s various challenges to the jury instructions. Then, we address
Frank’s claim of ineffective assistance of counsel. Finally, we discuss both defendants’
challenges to their sentences.
I.
Both defendants challenge their convictions for forcible sex offenses on the
ground that there was insufficient evidence of force or duress. Frank argues that there
was insufficient evidence of this element as to counts four through twenty-seven, which
alleged forcible lewd conduct (§ 288, subd. (b)(1)), forcible sodomy (§ 286,
subd. (c)(2)(B)), and aggravated sexual assault involving forcible sodomy and oral
copulation of a young child (§ 269, subd. (a)(3), (4).) These counts were based on acts
occurring in the Loomis shed and the storage unit, and Frank’s pulling down of Doe’s
pants in the living room at Doe’s grandmother’s house. Stubbs asserts a similar
challenge to counts ten, twelve, eighteen, twenty, and twenty-four for forcible lewd
conduct (§ 288, subd. (b)(1)), which were all based on acts in the storage unit. We reject
both defendants’ claims because there was voluminous evidence that they committed all
of the challenged offenses by means of duress.
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A.
Section 288, subdivision (b)(1) prohibits lewd or lascivious acts on a child under
14 years of age “by use of force, violence, duress, menace, or fear of immediate and
unlawful bodily injury on the victim or another person.” Section 286,
subdivision (c)(2)(B) proscribes “an act of sodomy with another person who is under
14 years of age 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.” Under section 269, subdivision (a)(3), the offense of aggravated
sexual assault includes sodomy proscribed by section 286, subdivision (c)(2). Under
section 269, subdivision (a)(4), aggravated sexual assault also includes oral copulation in
violation of section 287, subdivision (c)(2). Section 287, subdivision (c)(2)(B) forbids an
“act of oral copulation upon a person who is under 14 years of age, 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.” (See
generally People v. Leal (2004) 33 Cal.4th 999, 1004-1005.)
“Duress” 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 performed or, (2) acquiesce in
an act to which one otherwise would not have submitted.” ’ ” (People v. Soto (2011)
51 Cal.4th 229, 246 (Soto), italics omitted; see also People v. Thomas (2017)
15 Cal.App.5th 1063, 1072.) “ ‘[T]he very nature of duress is psychological coercion.’ ”
(People v. Torres (2024) 107 Cal.App.5th 513, 535.) To determine whether duress has
been proven, the trier of fact must consider the totality of the circumstances, including the
victim’s age, relationship to the defendant, relative size in relation to the defendant, the
defendant’s use of physical control in response to the victim’s efforts to resist, threats to
harm the victim, or warnings to the victim about disclosing the abuse. (People v.
Martinez (2024) 105 Cal.App.5th 178, 189; Thomas, at p. 1072.) “[D]uress is measured
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by a purely objective standard … . [T]he focus must be on the defendant’s wrongful act,
not the victim’s response to it.” (Soto, at p. 246.)
“Force” under section 288, subdivision (b) requires force that is “ ‘substantially
different from or substantially greater than that necessary to accomplish the lewd act
itself.’ ” (Soto, supra, 51 Cal.4th at p. 242.) Under sections 269 and 286, this element
requires “force sufficient to overcome the victim’s will.” (People v. Guido (2005)
125 Cal.App.4th 566, 576; People v. Hale (2012) 204 Cal.App.4th 961, 978.)
“ ‘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.)
B.
Evaluating the totality of the circumstances, we have little difficulty concluding
that there was sufficient evidence of duress to support the verdicts on the challenged
counts. Beginning with the victim’s age, relative size, and relationship to defendants,
(People v. Martinez, supra, 105 Cal.App.5th at p. 189), Doe was only six years old when
the abuse began, before he even understood that defendants’ conduct was wrongful. He
was only 11 or 12 years old at the time of the challenged offenses—16 years younger
than Frank and more than 40 years younger than Stubbs. The jury could also find that
Doe was considerably smaller than both defendants. Frank and Stubbs were grown men,
while Doe was a child and small for his age; Doe’s mother described him as a “tiny little
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thing,” and his family gave him a nickname based on his size. (See People v. Pitmon
(1985) 170 Cal.App.3d 38, 50, disapproved on another ground in Soto, supra, 51 Cal.4th
at p. 248, fn. 12 [“The disparity in physical size between an eight-year-old and an
adult … contributes to a youngster’s sense of his relative physical vulnerability,” and that
factor “bear[s] upon the susceptibility of a typical eight-year-old to intimidation by an
adult”].)
Moreover, Frank, and to a lesser extent Stubbs, occupied positions of trust in
Doe’s life. Frank was Doe’s uncle, and Doe’s mother entrusted him to babysit Doe.
(People v. Schulz (1992) 2 Cal.App.4th 999, 1005 [upholding finding of duress where
perpetrator was victim’s uncle and noting that “ ‘[w]here the defendant is a family
member and the victim is young, ... the position of dominance and authority of the
defendant and his continuous exploitation of the victim’ is relevant to the existence of
duress”].) Although Stubbs was not related to Doe, both defendants intermittently lived
with the family while Doe was growing up and were included in holiday celebrations.
(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].)
There was also evidence that defendants physically dominated Doe to obtain his
submission to their abuse. In one video, Stubbs hogtied Doe while masturbating, and in
another, Frank blew methamphetamine smoke in Doe’s mouth. In another video in the
same series, as Detective Martin described, Frank applied lubrication to himself, while
both defendants tried to open Doe’s legs and while Doe did not want to be involved. At
one point, Doe was sitting on Frank’s lap, and defendants physically flipped him around
so he was facing Frank. Hogtying a child and manipulating his body plainly support a
finding of duress. (People v. Hale, supra, 204 Cal.App.4th at p. 980 [finding of duress
16
supported by defendant’s “physical dominance to overcome [victim’s] resistance to
molestation”]; People v. Schulz, supra, 2 Cal.App.4th at p. 1005 [“Physical control can
create ‘duress’ without constituting ‘force’ ”].)
Defendants also took steps to isolate Doe and otherwise pressure him to submit to
their activities. Frank explicitly told Doe not to tell anyone about the abuse and said he
did this because he did not want to get in trouble. (People v. Senior (1992) 3 Cal.App.4th
765, 775) [“simple warning to a child not to report a molestation reasonably implies the
child should not otherwise protest or resist the sexual imposition”].) Defendants also
waited until nighttime when everyone else was asleep to abuse Doe or abused him in
isolated locations, such as the storage unit, where others could not help him. Before the
acts in the “storage series,” defendants also discussed using gifts to lure Doe to the
storage unit, and Frank did, in fact, offer Doe gifts on more than one occasion. (People v.
Torres, supra, 107 Cal.App.5th at p. 537 [finding duress where the defendant waited until
the victim’s “adoptive parents were away” and then offered her drugs, allowing the
defendant to “isolate her, make her dependent on him, and facilitate his advances”].) In
one video in the shed, captured in the “binding series,” Doe repeatedly objected to
defendants’ actions, saying he wanted to go back to the house and go to sleep, but
defendants continued to press their demands for sexual acts. In the final instance of
abuse in 2019, Frank overcame Doe’s efforts to physically and verbally resist and pulled
down Doe’s pants. This voluminous evidence was more than sufficient for the jury to
find that defendants committed all of the challenged offenses by means of duress.
Defendants’ arguments to the contrary lack merit. Defendants maintain that they
never made any explicit threat toward Doe or his family, but there was ample evidence
for the jury to find that they used duress in committing their crimes even without
deploying such express threats. (See People v. Thomas, supra, 15 Cal.App.5th at p. 1072
[“The fact that the victim testifies the defendant did not use force or threats does not
preclude a finding of duress”].) Defendants also claim there was insufficient evidence to
17
support the prosecution’s theory that they coerced Doe by impliedly threatening to
disseminate videos of his abuse online. There was sufficient evidence of duress without
any threat to share the videos, but, in any event, a reasonable jury could view defendants’
actions as an effort to use the videos as leverage over Doe. Frank admitted that he and
Stubbs discussed showing Doe a video to coax him into additional sexual activities, and
Frank showed Doe images at around the same time he told Doe not to tell anyone about
the abuse. Doe also testified that Frank showed Doe a video in which Frank exposed
himself around Doe, an act that Doe understood as a “flex[].” The jury could reasonably
view these actions as further evidence of defendants’ coercive conduct. (See People v.
Barton (2020) 56 Cal.App.5th 496, 519 [“power differential” relevant consideration in
assessing duress].) Stubbs maintains that Doe never testified that he felt intimidated by
Stubbs. But as he acknowledges, “the legal definition of duress is objective in nature and
not dependent on the response exhibited by a particular victim.” (Soto, supra, 51 Cal.4th
at p. 246.) “Because duress is measured by a purely objective standard, a jury could find
that the defendant used threats or intimidation to commit a lewd act without resolving
how the victim subjectively perceived or responded to this behavior.” (Ibid.)
Frank additionally argues that the People failed to marshal sufficient evidence that
the forcible sodomy and aggravated sexual assaults were accomplished “ ‘against the
victim’s will.’ ” As noted above, section 286, subdivision (c)(2)(B) prohibits “an act of
sodomy with another person who is under 14 years of age 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.” Likewise, section 287,
subdivision (c)(2)(B) forbids acts of oral copulation on a child under age 14, “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.” In Frank’s view, the
evidence showed Doe to be a willing participant and thus defendants’ acts were not
against his will. We reject this claim, because the record in this case is replete with
18
evidence that Doe’s involvement in the activities was against his will. Among other
things, the prosecution introduced a video from the “binding series,” detailed above, in
which defendants continued to abuse Doe, despite multiple requests to leave or stop. He
told his mother that he did not want to be separated from her at the Loomis house. And
as detailed above, the evidence overwhelmingly showed that the abuse was accomplished
by psychological coercion and physical domination—which likewise supported a
showing that Doe’s submission to defendants’ acts was against his will.
Contrary to Frank’s suggestion, the fact that Doe did not have a specific
recollection of each charged incident did not preclude the jury from drawing reasonable
inferences based on the video evidence and Doe’s other testimony. (People v. Alvarez,
supra, 18 Cal.5th at p. 470.) Frank’s reliance on Doe’s statements, such as that he liked it
“pretty good” or rated a sex act as a “10 out of 10,” as evidence of Doe’s purported
consent is also unpersuasive. The evidence showed that these statements were made in
the course of years-long abuse characterized by psychological manipulation and physical
restraint by Doe’s uncle and his uncle’s partner. A reasonable jury could certainly
interpret Doe’s words as further reflecting defendants’ domination of their young victim
and not an expression of the child’s willingness to engage in sex acts.
The record contains sufficient evidence that defendants’ offenses were committed
by means of duress. And because the statutes require a showing of either force or duress,
we need not address defendants’ additional arguments that there was inadequate evidence
of force for any of the challenged counts or Stubbs’s specific contention that evidence of
force with respect to count twenty-four was lacking.
II.
Defendants separately contend that there was insufficient evidence of penetration
to support their sodomy convictions. Specifically, Frank challenges his convictions on
count four for forcible sodomy and count twenty-five for aggravated sexual assault of a
19
child. Both defendants challenge their convictions on counts nine, nineteen, and twenty-
three for aggravated sexual assault of a child.
Sodomy as proscribed under sections 269 and 286 means “sexual conduct
consisting of contact between the penis of one person and the anus of another person.
Any sexual penetration, however slight, is sufficient to complete the crime of sodomy.”
(§ 286, subd. (a); see § 269, subd. (a)(3).) “[S]exual penetration requires penetration of
the tissues that surround and encompass the lower border of the anal canal—that is, it
requires penetration past the buttocks and into the perianal area but does not require
penetration beyond the perianal folds or anal margin.” (People v. Paz (2017)
10 Cal.App.5th 1023, 1038.) Penetration may be established by circumstantial evidence.
(People v. Holt (1997) 15 Cal.4th 619, 669.) As noted, in reviewing a sufficiency of the
evidence claim, we view the evidence in the light most favorable to the prosecution,
presume in support of the judgment “ ‘ “ ‘the existence of every fact the trier could
reasonably deduce from the evidence,’ ” ’ ” and ask if there is evidence that is
“ ‘ “ ‘reasonable, credible, and of solid value’ ” ’ ” to support the judgment. (People v.
Alvarez, supra, 18 Cal.5th at p. 470.)
Count four alleged that defendants committed an act of forcible sodomy of a child
in violation of section 286, subdivision (c)(2)(B) in the Loomis shed. At trial, Detective
Martin testified that the video of this incident, which was part of the “binding series”
described above, showed Doe seated on Frank’s lap while Frank applied lubrication to
himself and to Doe while trying to open Doe’s legs. The detective said that Frank “keeps
working with lubrication in different ways and different positions.” Frank eventually
“flip[ped]” Doe around so as to “straddl[e] [Frank]. And again, Frank is touching the
young boy’s penis area and his anus area.” The detective believed that Frank was trying
to have anal sex with Doe based on the lubrication and Frank’s movements, and the jury
viewed the video. In closing argument, the prosecution argued that, in a moment on the
video, “for a second, maybe two seconds,” Doe’s “little face collapses. He looks in that
20
photograph to be in distress and in pain. His little face grimaces for a second or two. …
That is the moment that [Doe] was sodomized.”
From all of this evidence, the jury could find that Frank penetrated Doe’s anus.
Frank does not dispute the prosecutor’s description of Doe’s facial expression, but he
argues that it did not support a finding of penetration. Frank claims that the evidence
showed only that he was “rubbing [his] penis between [Doe’s] butt cheeks.” Even if
Frank’s interpretation of the evidence were plausible, we do not reverse a conviction
merely because “ ‘the circumstances might also support a contrary finding.’ ” (People v.
Gonzales and Soliz (2011) 52 Cal.4th 254, 295.)2 Frank emphasizes that Doe generally
denied that defendants ever penetrated his anus, but the jury was free to draw a different
inference from the video evidence. (People v. Alvarez, supra, 18 Cal.5th at p. 470.) This
is particularly true here, where, for example, Doe denied that defendants ever tied him up,
despite clear video evidence that they did so.
Count nine alleged that Frank and Stubbs violated section 269, subdivision (a)(3)
when Stubbs sodomized Doe in the storage unit in January 2018 while Frank filmed the
acts. To prove this count, the prosecution introduced the video from the “storage series”
that showed Stubbs “moving his hips back and forth towards Doe’s naked buttocks.” As
with count four, the jury viewed this video, and Detective Martin testified that it showed
“Frank taking a video of Stephen Stubbs sodomizing [Doe.]” From this evidence, it was
reasonable for a jury to find that penetration occurred.
Frank argues that he could not have been convicted of this offense under the
prosecution’s aiding and abetting theory because, he maintains, there was insufficient
evidence that he harbored the specific intent to assist in an act of penetration. This claim
2 We note that Stubbs asserts no challenge to the sufficiency of the evidence on
count four, instead conceding that the evidence showed Doe “in distress such that one
might infer there was actual penetration.”
21
lacks merit because, as the People note, a jury could readily find that Frank’s
participation in an assault in which his co-perpetrator moved his hips back and forth with
his penis inside the victim’s buttocks showed an intent to aid and abet penetration.
Count nineteen alleged that Frank and Stubbs violated section 269,
subdivision (a)(3) when Stubbs sodomized Doe in the storage unit in April 2018 while
Frank requested oral copulation. Detective Martin testified that, in the video of this
incident, which was also played for the jury, Stubbs had his hands on Doe’s shoulders
and “push[ed] his hips towards the child’s buttocks.” Defendants also took several still
images of the act. As with the above counts, defendants argue that the video and images
do not prove actual penetration. As with the above counts, we conclude that the video
and photographic evidence was sufficient for the jury to find that penetration occurred.
Count twenty-three alleged that Frank and Stubbs violated section 269,
subdivision (a)(3) when Stubbs sodomized Doe in the storage unit in April 2018 while
Frank filmed. The prosecution introduced evidence of a different video from April 2018
that took place “more out in the hallway” of the storage unit with a green blanket on the
ground on which Doe was kneeling. The prosecutor described the video, which was
viewed at trial, as the “one in which [Doe] is on a green blanket on the floor, and Steve
Stubbs is aggressively moving his body back and forth against [Doe’s] bare bottom.”
She further described a still image taken from the video, saying, “Stephen Stubbs is
completely naked, lying flat on top of [Doe]. Eleven-year-old [Doe] is flat on the ground,
on a concrete floor of a dirty, dark storage unit. And Steve Stubbs has his full weight on
top of him.” Frank and Stubbs do not take issue with this description of the video but
argue that the evidence of Stubbs’s movements was not sufficient to prove penetration.
We disagree with defendants that a reasonable jury could not infer penetration occurred
based on the evidence. We also disagree that the evidence was insufficient to find that
Frank had the intent required to aid and abet Stubbs’s act of penetration, for the reasons
we explained in regard to count nine.
22
Finally, Frank argues that there was insufficient evidence to support his conviction
for aggravated sexual assault in count twenty-five, which alleged that both defendants
violated section 269, subdivision (a)(3) “when Frank placed his penis against [Doe’s]
anus and ejaculated.” Detective Martin narrated what happened in the video of this
incident, which the jury viewed, saying, Frank “rub[bed] his penis on the child’s
buttocks, ultimately ejaculating.”
When questioning Frank about this incident on cross-examination, the prosecutor
asked, “Where was [Stubbs] at that time,” and Frank responded, “He was in the hallway
as well.” The prosecutor then asked, “And that’s the time that you are actually sticking
your penis between [Doe’s] butt and into his anus; correct?” Frank replied, “More or
less, yes.” The prosecutor subsequently asked: “You ejaculated because you were
getting sexual pleasure from putting your penis in your nephew’s bottom, correct?”
Frank responded, “Yes.”
In closing argument, the prosecutor said: “This is the one where Brandon Frank
has set up the camera. He goes behind [Doe]. … And you hear towards the end of the
film, Brandon Frank’s telling him, just relax. Maybe you need to sit back. But prior to
that happening, this is when Brandon Frank – you’ve seen it – he sodomizes [Doe]. And
the moment he sodomizes [Doe], that’s when he comes around and grabs him and
ejaculates. And Brandon Frank himself admitted that that is when his penis went into his
anus – into [Doe’s] anus.”
Frank contends that the video does not show actual penetration and that his
affirmative response to the prosecutor’s question about him placing his penis “into
[Doe’s] anus” does not establish penetration because the question was compound and his
“[m]ore or less, yes” answer should be understood as agreeing only that Stubbs was in the
hallway at the time. As an initial matter, Frank did not object to the question as
compound when it was asked, so any challenge to the evidence is forfeited. (Evid. Code,
§ 353; People v. Partida (2005) 37 Cal.4th 428, 434 [“ ‘defendant’s failure to make a
23
timely and specific objection’ on the ground asserted on appeal makes that ground not
cognizable”].) Moreover, even if it were possible to interpret Frank’s response as
referring to Stubbs’s location, rather than to what Frank was doing (a matter we discuss
in more detail below in connection with Frank’s claim of ineffective assistance of
counsel), it was, at a minimum, reasonable to interpret it as an admission that Frank
inserted his penis into Doe’s anus. Frank notes that, earlier in his testimony, he denied
doing so, but it was for the jury to decide which version of Frank’s account to credit.
(People v. Gonzales and Soliz, supra, 52 Cal.4th at p. 295.)
There was sufficient evidence to support the penetration element of each of the
challenged counts.
III.
Frank next challenges the jury’s true findings on the tying or binding special
circumstance (§ 667.61, subd. (e)(5)) as to his convictions on counts four through eight,
which were for forcible sodomy on a child (§ 286, subd. (c)(2)(B)) and forcible lewd or
lascivious acts on a child (§ 288, subd. (b)(1)) occurring in the Loomis shed.
A.
Counts four through eight involved conduct depicted in the “binding series” of
videos from September 2017 made in the Loomis shed. Those videos showed both
defendants and Doe nude and Stubbs using a rope to hogtie Doe while Frank controlled
the camera. Stubbs touched his own penis and Doe’s penis; both defendants masturbated
while touching Doe. Frank heated up methamphetamine and blew smoke into Doe’s
mouth. In other videos in the series, Doe was seated on Frank’s lap while Frank applied
lubrication to himself and to Doe while trying to open Doe’s legs. Defendants continued
to touch Doe thereafter.
In closing argument, the prosecutor asserted that the tying or binding allegations
applied to Frank, even though Stubbs was the one who tied up Doe, because Frank was
acting as an aider or abettor. The prosecutor argued that Frank was present when Stubbs
24
was tying Doe, Frank blew methamphetamine smoke in Doe’s face, and both defendants
were “helping each other out throughout the course of this whole video that takes place
[in] the shed.” The prosecutor directed the jury to the instructions on aider and abettor
liability, which said: “To prove that a defendant is guilty of a crime based on aiding and
abetting that crime, the People must prove that: One, the perpetrator committed the
crime; two, the defendant knew that the perpetrator intended to commit the crime; three,
before or during the commission of the crime, the defendant intended to aid and abet the
perpetrator in committing the crime; and, four, the defendant’s words or conduct did, in
fact, aid and abet the perpetrator’s commission of the crime. [¶] Someone aids and abets
a crime if he or she knows of the perpetrator’s unlawful purpose, and he or she
specifically intends to and does, in fact, aid, facilitate, promote, encourage, or instigate
the perpetrator’s commission of that crime.”
The prosecutor also argued that the tying or binding allegations applied to all of
counts four through eight, even though some of those crimes were “committed after
[defendants had] loosened the ropes and the ropes are off of [Doe].” She maintained that
defendants engaged in “a continuo[u]s course of conduct” that “took place over the
course of one night in this shed.”
B.
Frank first argues that the tying or binding special circumstance in section 667.61,
subdivision (e)(5) does not apply to defendants who aid and abet tying or binding but do
not tie or bind the victim themselves.
Section 667.61 “sets forth an alternative and harsher sentencing scheme for certain
enumerated sex crimes perpetrated by force.” (People v. Mancebo (2002) 27 Cal.4th
735, 741.) Those enumerated sex crimes, as relevant here, include violations of
section 286, subdivision (c)(2)(B) and section 288, subdivision (b)(1). (§ 667.61,
subd. (c)(4), (6).) If such a crime is committed “under two or more of the circumstances
specified in [section 667.61,] subdivision (e),” the statute mandates a sentence of 25 years
25
to life. (§ 667.61, subd. (a).) The circumstance specified in section 667.61,
subdivision (e)(5) reads: “The defendant engaged in the tying or binding of the victim or
another person in the commission of the present offense.”
“ ‘ “When we interpret a statute, ‘[o]ur fundamental task ... is to determine the
Legislature’s intent so as to effectuate the law’s purpose. We first examine the statutory
language, giving it a plain and commonsense meaning. ... If the language is clear, courts
must generally follow its plain meaning unless a literal interpretation would result in
absurd consequences the Legislature did not intend. If the statutory language permits
more than one reasonable interpretation, courts may consider other aids, such as the
statute’s purpose, legislative history, and public policy.’ [Citation.] ‘Furthermore, we
consider portions of a statute in the context of the entire statute and the statutory scheme
of which it is a part, giving significance to every word, phrase, sentence, and part of an
act in pursuance of the legislative purpose.’ ” ’ ” (People v. Cofer (2026) 20 Cal.5th 1,
12.)
Applying these principles of construction, we conclude that section 667.61,
subdivision (e)(5) applies to conduct amounting to aiding and abetting the direct
perpetrator who ties or binds the victim. To begin with, the conduct identified in the
statute—“engaged in the tying or binding”—suggests a broader range of activity than
only the direct acts of tying or binding. The term “engage” has been defined to mean
“[t]o employ or involve oneself; to take part in; to embark on” (Black’s Law Dict.
(12th ed. 2024) p. 668, col. 1; Webster’s 3d New Internat. Dict. (1993) p. 751, col. 3) or
“to take part” or “participate” (Webster’s 3d New Internat. Dict., supra, at p. 751, col. 3,
some capitalization omitted). (See People v. Cofer, supra, 20 Cal.5th at p. 13 [drawing
ordinary meaning of statutory text from dictionary definition]; People v. Coppla (1950)
100 Cal.App.2d 766, 768 [citing dictionary definition and interpreting “ ‘engage in’ ” to
mean “to be occupied in, to be employed in”].) An accomplice who helps facilitate the
26
direct perpetrator’s acts of tying or binding a victim “involve[s] one[] self,” “take[s] part
in,” or “participate[s]” in those acts.
It is also relevant that section 667.61, subdivision (e)(5) does not use the word
“personally” in describing the prohibited conduct. (See People v. Cole (1982) 31 Cal.3d
568, 572 [“The choice of the word ‘personally’ necessarily excludes those who may have
aided or abetted the actor”].) That omission stands in notable contrast to the
Legislature’s use of the term “personally” in other subdivisions of section 667.61.
(§ 667.61, subd. (e)(3) [“The defendant personally used a dangerous or deadly weapon or
a firearm in the commission of the present offense …”]; § 667.61, subd. (d)(6), (7)
[defendant “personally inflicted” great bodily injury or bodily harm].) “ ‘ “It is a well
recognized principle of statutory construction that when the Legislature has carefully
employed a term in one place and has excluded it in another, it should not be implied
where excluded.” ’ ” (People v. Rodriguez (1999) 69 Cal.App.4th 341, 349-350.) If the
Legislature had wanted to limit subdivision (e)(5) to only direct perpetrators who
personally tied or bound the victim, it could have done so, as it did in these other
subdivisions. (See People v. Farr (1997) 54 Cal.App.4th 835, 845 (Farr) [construing
§ 667.6, subd. (d) to include aider and abettor liability where “the Legislature did not
explicitly require the accused personally commit any of [the] enumerated offenses”];
People v. Vital (2019) 40 Cal.App.5th 925, 932 [agreeing that absence of word
“personally” to modify “engages” in § 287, subd. (b) supports conclusion that statute
permits aider and abettor liability].)
Frank notes that in People v. Piper (1986) 42 Cal.3d 471 (Piper), our state
Supreme Court interpreted a sentence enhancement in section 1192.7 to apply only to
defendants who personally “use a firearm,” despite the absence of the word “personally”
in the statute. The statute in Piper, however, is unlike the one at issue here. In Piper, the
statute defined a “serious felony” as one “ ‘in which the defendant uses a firearm.’ ” (Id.
at p. 476.) Here, in contrast, the Legislature used a term—“engaged”—whose plain
27
meaning sweeps in a broader range of conduct. For that reason as well, we are not
persuaded by Frank’s focus on section 667.61, subdivision (e)(5)’s use of the definite
article and the active voice (“the defendant engaged”). (See Piper, at p. 476 [noting that
if Legislature had intended for aiding and abetting liability for firearm enhancement, “it is
likely that the provision would have defined serious felony to include any felony ‘in
which a firearm is used’ rather than ‘in which the defendant uses a firearm’ ”].) As we
have explained, “the defendant” who “engage[s]” in tying or binding can do so by more
than the direct acts of tying or binding. Frank’s arguments proceed as if the statute says
that “the defendant tied or bound,” but those are not the words the Legislature chose.
More broadly, Frank emphasizes People v. Walker (1976) 18 Cal.3d 232 (Walker),
superseded on other grounds as stated in People v. Polk (1982) 131 Cal.App.3d 764, 778,
on which Piper also relied. (Piper, supra, 42 Cal.3d at pp. 476-477.) In Walker, our
state Supreme Court considered former section 12022.5, which provided an enhancement
when a defendant “uses a firearm.” (Walker, at p. 236, fn. 1.) The court concluded that
the provision applied only to defendants who personally used a firearm. (Id. at pp. 235-
236.) The court stated: “Generally, if a statute is intended to impose a derivative liability
on some person other than the actor, there must be some legislative direction that it is to
be applied to persons who do not themselves commit the proscribed act. Such a direction
is found in section 31[,] which fixes responsibility on an aider and abettor for a crime
personally committed by a confederate. But the statute which defines aiders and abettors
as principals in the commission of a criminal offense does not also purport to impose
additional derivative punishment grounded on an accomplice’s personal conduct, as those
statutes which provide for such increased punishment “ ‘ do not define a crime or offense
but relate to the penalty to be imposed under certain circumstances.’ ” [Citations.]
Hence the rules which make an accused derivatively liable for a crime which he [or she]
does not personally commit, do not at the same time impose a derivatively increased
28
punishment by reason of the manner in which a confederate commits the crime.” (Id. at
pp. 241-242.)
Contrary to Frank’s arguments, the holding and logic of Walker are not controlling
here. To begin with, Walker’s holding was based on the particular history of former
section 12022.5. The Walker court explained that it had previously “construed
section 12022 and other sections enhancing criminal penalties for being armed [citations]
as limited in their application only to those persons convicted of felonies who were
personally armed [citation] … .” (Walker, supra, 18 Cal.3d at p. 241, italics omitted.)
After tracing the history of section 12022.5, the court concluded that there was
“absolutely nothing which suggests a legislative intent to enlarge the applicability of the
new provision to additional categories of persons.” (Ibid.) No such history is apparent in
section 667.61, subdivision (e)(5). Moreover, Walker interpreted an enhancement, while
section 667.61 sets out an alternative sentencing scheme based on a defendant’s specific
conduct associated with an underlying offense. (Walker, at p. 236, fn. 1; People v.
Mancebo, supra, 27 Cal.4th at p. 741.) It is well established that enhancements and
sentencing schemes are different (People v. McPherson (2001) 86 Cal.App.4th 527, 532),
and Frank offers no persuasive argument why interpretations requiring personal
commission with respect to the former apply equally to the latter. Indeed, other courts
have rejected the analogy. (Farr, supra, 54 Cal.App.4th at pp. 843-845 [describing
various sentencing schemes and stating that none has “been construed to require the
accused personally commit the offense in order to be subject to the specified sentences”];
McPherson, at p. 532 [Walker inapposite to interpretation of alternative sentencing
scheme].) Further, the texts of the statutes at issue are different. As we have said,
section 667.61, subdivision (e)(5) uses the phrase “engaged in the tying or binding,” and
“engaged in” implies a broader range of activities and therefore a broader scope of
liability. For all of these reasons, Walker’s interpretation of former section 12022.5 does
not support Frank’s reading of section 667.61, subdivision (e)(5).
29
Finally, Frank points to section 667.61, subdivision (e)(7) as an indication that the
Legislature did not intend for the tying or binding special circumstance to apply to aiders
and abettors. That provision says: “The defendant committed the present offense in
violation of Section 264.1, subdivision (d) of Section 286, or subdivision (d) of
Section 287 or former Section 288a, and, in the commission of that offense, any person
committed an act described in paragraph (1), (2), (3), (5), or (6) of this subdivision or
paragraph (6) of subdivision (d).” Frank maintains that this subdivision specifically
provides for aider and abettor liability for acts of tying or binding under
subdivision (e)(5) when the defendant violates specified statutes (not at issue here); and
thus, he contends, subdivision (e)(7) would be superfluous if subdivision (e)(5) itself
applied to aiders and abettors. This argument is not convincing, because the two
provisions apply to different conduct. Subdivision (e)(7) applies to defendants who
commit one of the specified offenses if any person has committed any of the acts
described in the enumerated paragraphs; it does not require the defendant’s help or
participation in those acts. In contrast, subdivision (e)(5) applies to conduct amounting to
“engag[ing] in the tying or binding,” which, we have explained, encompasses aiding and
abetting acts of tying or binding, as the jury was instructed here.
C.
Frank further claims that, even if the tying or binding special circumstance applies
to an aider and abettor, it cannot apply to counts four, five, seven, and eight, which
involved sex offenses in which Doe was not bound.
As we have noted, the special circumstance in section 667.61, subdivision (e)(5)
applies when the defendant engages in tying or binding “in the commission of the present
offense.” Courts interpreting the phrase “ ‘ “[i]n the commission of” ’ ” have given it
“ ‘ “an expansive, not a tailored meaning.” ’ ” (People v. Calles (2012) 209 Cal.App.4th
1200, 1222 [surveying weapons use and great bodily injury enhancement statutes].) They
have explained that “ ‘ “in the commission of” is not the same as “while committing,”
30
“while engaged in,” or “in pursuance.” ’ ” (Ibid.; see People v. Frausto (2009)
180 Cal.App.4th 890, 902 [surveying cases interpreting “in the commission of” in various
statutes].)
In People v. Jones (2001) 25 Cal.4th 98, 100-101 (Jones), superseded by statute
on another ground as stated in People v. Andrade (2015) 238 Cal.App.4th 1274, 1307,
our Supreme Court examined the phrase “ ‘in the commission of’ ” in section 12022.3,
subdivision (a) and section 667.61, subdivision (e)(4), which both forbade the use of a
deadly weapon in the commission of the underlying offense. In Jones, the defendant
raped and sodomized the victim, and while he was preparing to leave, threatened the
victim with a knife. (Jones, at pp. 101-102.) The court explained that, “[i]n the case of a
weapons-use enhancement, such use may be deemed to occur ‘in the commission of’ the
offense if it occurred before, during, or after the technical completion of the felonious
sex act. The operative question is whether the sex offense posed a greater threat of
harm—i.e., was more culpable—because the defendant used a deadly weapon to threaten
or maintain control over his victim.” (Id. at pp. 109-110.)
Similarly, in People v. Masbruch (1996) 13 Cal.4th 1001, 1003, our state high
court considered whether the defendant used a firearm “ ‘in the commission of a crime’ ”
under section 12022.3, subdivision (a). There, the defendant pointed a gun at the victim,
tied her and her mother up in their house, spent an hour torturing and robbing them, and
then raped and sodomized the victim. (Id. at pp. 1004-1005, 1011.) The defendant
argued that he did “not ‘use’ the gun ‘in the commission of’ the sex offenses because he
displayed it only at the outset of his criminal activity, approximately one hour before he
committed the sex offenses, and he left [the victim] several times during the interim to
commit crimes in other parts of the house.” (Id. at p. 1006.) The court rejected the
argument, explaining that “[a] firearm use enhancement attaches to an offense, regardless
of its nature, if the firearm use aids the defendant in completing one of its essential
elements.” (Id. at p. 1012; see also id. at p. 1014 [proper to “attach[] an enhancement to
31
each crime an initial firearm display facilitates”].) Accordingly, the jury could properly
“consider a ‘video’ of the entire encounter; it [was] not limited to a ‘snapshot’ of the
moments immediately preceding a sex offense.” (Id. at p. 1011.) And on the facts there,
a jury could “conclude that the fear [the] defendant’s initial gun display instilled
continued throughout the encounter and aided [the] defendant in completing an essential
element of the crimes of rape and sodomy.” (Ibid.)
In People v. Bland (1995) 10 Cal.4th 991, 995, our Supreme Court addressed the
meaning of the firearm enhancement under section 12022, which applies when the
defendant is “ ‘armed with a firearm in the commission’ ” of a felony, in the context of a
drug possession. The court concluded that, “[w]ith respect to felony drug possession, a
defendant is armed ‘in the commission’ of that crime so long as the defendant had the
firearm available for use in furtherance of the drug offense at some point during the
defendant’s possession of the drugs. Thus, by specifying that the added penalty applies
only if the defendant is armed with a firearm ‘in the commission’ of the felony offense,
section 12022 implicitly requires both that the ‘arming’ take place during the underlying
crime and that it have some ‘facilitative nexus’ to that offense. Evidence that a firearm is
kept in close proximity to illegal drugs satisfies this ‘facilitative nexus’ requirement: a
firearm’s presence near a drug cache gives rise to the inference that the person in
possession of the drugs kept the weapon close at hand for ‘ready access’ to aid in the
drug offense.” (Id. at p. 1002, italics & capitalization omitted.)
Citing Bland, Frank maintains that the evidence in this case showed no
“facilitative nexus” between the tying and counts four, five, seven, and eight because Doe
was not bound during the conduct underlying those counts. He argues that, under Bland,
there can be a “facilitative nexus” only if the tying or binding made the victim
“particularly” vulnerable, which Frank defines to mean vulnerable to a “ ‘special or
unusual degree.’ ” In his view, a victim’s particular vulnerability necessarily ends when
the victim is no longer bound.
32
This argument fails to persuade. To start, its factual premise is faulty. We see no
reason why a victim who has been tied or bound would necessarily cease to be vulnerable
upon removal of the restraints, given the physical injuries and ongoing fear that tying or
binding can cause. (See People v. Campbell (2000) 82 Cal.App.4th 71, 79 [tying or
binding causes “amplification of distress”].) In any event, under the case law discussed
above, the prosecution was not required to prove that defendants’ tying or binding
rendered Doe unusually vulnerable to establish that the tying or binding was performed
“in the commission of” each underlying offense. The relevant question under the statute
is whether there was sufficient evidence that hogtying Doe was in furtherance of each
challenged count. (E.g., Masbruch, supra, 13 Cal.4th at pp. 1012, 1014.) We think it
clear there was. Based on the evidence at trial, the jury could reasonably infer that the
hogtying served to enforce defendants’ control over Doe in respect to all the challenged
counts because he would know that defendants could easily hogtie him again, just as
brandishing a firearm in Masbruch continued to affect the victims, even though the
defendant there never displayed the firearm a second time. (Id. at p. 1011; see also Jones,
supra, 25 Cal.4th at pp. 109-110 [acts can be in commission of felony whether they occur
before, during, or after the felonious act].) Thus, there was sufficient evidence that the
tying or binding occurred “in the commission of” the challenged counts, even if Doe was
not bound during those offenses.
IV.
Frank asserts similar challenges to the controlled substance special circumstance
under section 667.61, subd. (e)(6) that the jury found true as to counts four through eight.
In closing argument, the prosecutor argued that while Doe was tied up, Frank gave
him drugs “by blowing smoke in his mouth.” She said, “If you find the defendants guilty
of any or all of the charges – Counts 4, 5, 6, 7, or 8 – you are asked, did the defendants
administer a controlled substance to [Doe] while committing those crimes?” Referring to
the tying or binding circumstance, she explained, “Same definition of ‘while
33
committing.’ Continuing course of conduct.” She further asserted that “administering
includes causing the other person to ingest, which is, of course, what happens when
Brandon Frank leans over, puts the meth in [Doe’s] mouth – or the smoke – and instructs
him on how to keep it in his lungs, then [Doe] exhales the smoke. So, certainly, Brandon
Frank was administering methamphetamine to [Doe]. And, of course, he did so for the
purpose of committing these crimes because it comes back to the fact that this is what
they do when they’re having sex. It enhances them. It makes it better for them. Maybe
it makes it just a little bit easier to put their hands and bodies all over [Doe]. Of course,
that is why they’re giving methamphetamine to [Doe]. Because they want to encourage
him to join in on their habits and their customs as it relates to how they do sex.”
The special circumstance in section 667.61, subdivision (e)(6) says: “The
defendant administered a controlled substance to the victim in the commission of the
present offense in violation of Section 12022.75.” Section 12022.75 provides a sentence
enhancement in specified circumstances involving the “administ[ration] by injection,
inhalation, ingestion, or any other means, [of] any controlled substance listed in
Section 11054, 11055, 11056, 11057, or 11058 of the Health and Safety Code.”
Frank first claims that the special circumstance findings were not supported by
sufficient evidence that the administration of a controlled substance was “in the
commission of” the underlying felonies. He argues that the People were required to
prove that the controlled substance elevated Doe’s vulnerability; and he maintains that
the prosecution could establish that fact only by presenting expert testimony
demonstrating the effect of the methamphetamine on Doe. We reject this argument for
the reasons discussed above—namely, that the People were not required to prove that
Doe was particularly vulnerable because of the methamphetamine to establish that the
administration of that drug was “in the commission of” the underlying sex offenses.
Frank also claims that, even if the special circumstance could apply to count six, in
which Doe was bound and Frank blew methamphetamine smoke in his mouth, the
34
circumstance could not apply to the other counts in the series (counts four, five, seven,
and eight). The basis for this argument is the same as with his substantial evidence claim
just discussed—that the People were required to, and did not, prove that Doe was
particularly vulnerable as a result of the methamphetamine in regard to each individual
count. We have rejected that argument, so this claim necessarily fails as well. Further, as
with the tying or binding circumstance, there was sufficient evidence connecting Frank’s
administration of methamphetamine to all of the challenged sex offenses. Frank testified
that drug use was a regular part of his sex life to the point that “if there wasn’t drugs,
there wasn’t sex,” and it is a reasonable inference that Frank forced Doe to inhale
methamphetamine smoke to further his sexual acts. It was thus reasonable for a jury to
conclude that the drug administration facilitated each of the sex offenses in this series.
V.
Frank next challenges the trial court’s use of CALCRIM No. 3182, which
instructed the jury on the tying or binding special circumstance.
A.
At the jury instruction conference, neither Frank nor Stubbs objected to the use of
CALCRIM No. 3182. The prosecutor proposed also instructing the jury with CALCRIM
No. 3261, to define “during the commission of,” consistent with the bench notes in
CALCRIM No. 3182, but the trial court observed that the instruction could be confusing
because it “seems to apply more like if they’re leaving the scene and they still have the
victim with them,” as in a kidnapping or robbery. The court noted that CALCRIM
No. 3261 was a discretionary instruction, and both defendants objected to its inclusion.
The trial court instructed the jury consistent with CALCRIM No. 3182, saying, “If
you find a defendant guilty of the crimes charged in Counts 4, 5, 6, 7, or 8, or the lesser
included offenses to Counts 5, 6, 7, or 8, you must then decide whether, for each crime,
the People have proved the additional allegation that the defendant tied or bound John
Doe during the commission of those crimes. You must decide whether the People have
35
proved this allegation for each crime and return a separate finding for each crime.
[¶] The People have the burden of proving each allegation beyond a reasonable doubt. If
the People … have not met this burden, you must find … that the allegation has not been
proved.” The court did not read CALCRIM No. 3261.
The court also read CALCRIM No. 3515, explaining that “[e]ach of the counts
charged in this case is a separate crime. You must consider each count separately and
return a separate verdict for each one.” The verdict forms listed the special circumstance
findings with each of their respective counts, saying, “We find the allegation that in the
commission of the above offense the defendant engaged in the tying and binding of the
victim pursuant to … section 667.61(e)(5).”
B.
Frank argues that the trial court’s instruction based on CALCRIM No. 3182 was
erroneous for two reasons. First, he contends that the phrase “during the commission” in
the first sentence told the jury that it did not need to find “whether the tying or binding
facilitated the commission of the offense[s] by elevating the vulnerability of the victim,”
and only required the jury to find that the tying or binding occurred at the same time as
the offenses. Second, he claims that the phrase “those crimes” instead of “that crime,”
also in the first sentence, implied that a true finding with respect to any one of the subject
counts would automatically apply the finding to all counts. The People argue Frank
forfeited these arguments because he did not raise them at trial. Assuming Frank’s claim
was not forfeited, we find no reversible error.
“ ‘When we review challenges to a jury instruction as being incorrect or
incomplete, we evaluate the instructions as a whole, not in isolation. [Citation.] “For
ambiguous instructions, the test is whether there is a reasonable likelihood that the jury
misunderstood and misapplied the instruction.” ’ ” (People v. Nelson (2016) 1 Cal.5th
513, 544.) We consider the entire record of trial, including verdict forms and arguments
of counsel, to assess the impact of the instruction on the jury. (People v. Hughes (2002)
36
27 Cal.4th 287, 377; People v. Powell (2021) 63 Cal.App.5th 689, 710.) “We assume
that the jurors are ‘ “ ‘intelligent persons and capable of understanding and correlating all
jury instructions … given.’ ” ’ ” (People v. Franco (2009) 180 Cal.App.4th 713, 720.)
As to Frank’s first argument, it is premised on his contention that the jury was
required to find that the tying or binding made Doe particularly vulnerable. We have
previously explained why that premise fails. Frank’s challenge to the instruction falls
short for the additional reasons that the jury verdict forms each used the phrase “in the
commission of the above offense,” which Frank acknowledges conveys the idea of a
facilitative nexus between the offense and the special circumstance. Moreover, had the
jury read the instruction to call for a temporal, rather than facilitative, nexus, that could
only have inured to Frank’s benefit with respect to counts four, five, seven, and eight,
because Doe was not, in fact, bound during those offenses. And as to count six, any error
in suggesting that only a temporal and not a facilitative nexus was required was harmless
beyond a reasonable doubt, as no rational juror who made the findings reflected in this
case could have had a reasonable doubt that the hogtying was “in” the commission of—
i.e., facilitated—that offense. (See People v. Lee (1987) 43 Cal.3d 666, 674 [applying
standard in Chapman v. California (1967) 386 U.S. 18 for error in jury instructions];
People v. Schuller (2023) 15 Cal.5th 237, 261-263 [discussing application of Chapman
standard in cases of instructional error misdescribing elements of offense].)
As to Frank’s second argument, the instruction explicitly told the jury to consider
“whether the People have proved this allegation for each crime and return a separate
finding for each crime,” and the verdict forms contained separate findings for each.
These made clear to the jury that each special circumstance for each offense had to be
considered separately. (People v. Hughes, supra, 27 Cal.4th at p. 377 [jury “instructions,
read together with the verdict form, made clear that there were three special
circumstances, each of which had to be considered separately”].) We find no error in the
trial court’s use of CALCRIM No. 3182.
37
VI.
Frank asserts a similar challenge to the trial court’s use of CALCRIM No. 3183,
the controlled substance special circumstance instruction.
As with the tying or binding instruction, neither defendant objected to the use of
CALCRIM No. 3183. The trial court instructed the jury consistent with that pattern
instruction, saying, “If you find a defendant guilty of the crimes charged in Counts 4, 5,
6, 7, or 8, or their lesser included offenses to Counts 5, 6, 7, or 8, you must then decide
whether, for each crime, the People have proved the additional allegation that the
defendants administered a controlled substance to John Doe during the commission of
those crimes. You must decide whether the People have proved this allegation for each
crime and return a separate finding for each crime. [¶] To prove this allegation, the
People must prove that: One, in the commission of the crimes charged in Counts 4, 5, 6,
7, and 8, or the lesser offenses to Counts 5, 6, 7, and 8, the defendant administered
methamphetamine to John Doe; and, two, the defendant did so for the purpose of
committing the crimes in Counts 4, 5, 6, 7, and 8, or the lesser offenses to Counts 5, 6, 7,
and 8. [¶] A person administers a substance if he or she applies it directly to the body of
another person by injection or by any other means, or cause[s] the other person to inhale,
ingest, or otherwise consume the substance. [¶] The People have the burden of proving
each allegation beyond a reasonable doubt. If the People have not met this burden, you
must find that the allegation has not been proved.”
The jury verdict forms for each of the challenged counts reads, “We find the
allegation that in the commission of the above offense the defendant administered a
controlled substance to the victim pursuant to … section 667.61(e)(6).”
Frank first argues that the phrase “during the commission of” in the first sentence
of the instruction misinstructed the jury. We find no error for the reasons we have
explained above with respect to the tying or binding instruction. Further, the instruction
on the administration of controlled substances used “during the commission of” only in
38
the prefatory paragraph, while telling the jury that, as one of the required elements, the
People had to prove that Frank administered a controlled substance “in the commission of
the crimes charged.” Frank contends that the differing word choices would be confusing
or give the erroneous impression that “during” and “in” were synonymous, but in context,
we see no reasonable likelihood that the jury failed to find that Frank blew
methamphetamine smoke in Doe’s mouth in furtherance of the offenses.
Frank also makes the same claim as with the tying or binding instruction that the
controlled substances instruction should not have used the phrase “those crimes” instead
of “that crime” in the introductory sentence. We reject that argument for the same
reasons we did above.
Finally, Frank asserts that the second element of the instruction, which requires
that the defendant administer the controlled substance “for the purpose of committing the
crimes,” incorrectly eliminated the requirement that the People prove that the
methamphetamine smoke had the actual effect of elevating Doe’s vulnerability. As we
have explained, however, section 667.61, subdivision (e)(6) requires no such showing.
Accordingly, the fact that the instruction did not include such a requirement was not
error.
VII.
Frank next argues that the trial court prejudicially erred by failing to instruct the
jury on lesser included, nonforcible sex offenses with respect to count four for forcible
sodomy with a child under 14 years old (§ 286, subd. (c)(2)(B)); counts nine, nineteen,
twenty-three, and twenty-five for aggravated sexual assault by forcible sodomy of a child
under 14 years old (§ 269, subd. (a)(3)); and counts eleven, thirteen, fifteen, seventeen,
and twenty-one for aggravated sexual assault by forcible oral copulation of a child under
14 years old (§ 269, subd. (a)(4)).
The parties discussed lesser included offense instructions at the jury instruction
conference. As to count four, the People requested instructions on the attempt version of
39
the crime, as well as assault with intent to commit sodomy by force; defendants agreed
the instructions were appropriate. The trial court instructed the jury on those offenses.
As to counts nine, eleven, thirteen, fifteen, seventeen, nineteen, twenty-one, twenty-three,
and twenty-five, the parties agreed, and the court instructed the jury, on the attempt
version of the crime.
A.
A trial court “ ‘ “has a sua sponte duty to instruct on lesser included offenses when
the evidence raises a question as to whether all of the elements of the charged offense
were present and there is evidence that would justify a conviction of such a lesser
offense.” ’ [Citation.] … [I]nstructing on lesser included offenses shown by the
evidence avoids forcing the jury into an ‘unwarranted all-or-nothing choice’ [citations]
that could lead to an unwarranted conviction. [Citations.] [¶] ‘An offense is necessarily
included in another if … the greater statutory offense cannot be committed without
committing the lesser because all of the elements of the lesser offense are included in the
elements of the greater.’ [Citation.] In other words, when the greater crime ‘cannot be
committed without also committing another offense, the latter is necessarily included
within the former.’ [Citation.]” (People v. Hughes, supra, 27 Cal.4th at pp. 365-366.)
“ ‘A trial court must instruct on all lesser included offenses supported by
substantial evidence.’ [Citation.] Although instruction on a lesser included offense ‘is
not required when the evidence supporting such an instruction is weak’ [citation] or
based on speculation [citation], it is required when the lesser included offense is
supported by ‘ “evidence that a reasonable jury could find persuasive.” ’ ” (People v.
Steskal (2021) 11 Cal.5th 332, 345.) Doubts as to whether the evidence is sufficient to
warrant an instruction are resolved in favor of the defendant. (Ibid.) But “ ‘the existence
of “any evidence, no matter how weak” will not justify instructions on a lesser included
offense … .’ [Citation.] Rather, substantial evidence must exist to allow a reasonable
jury to find that the defendant is guilty of a lesser but not the greater offense.” (People v.
40
Valdez (2004) 32 Cal.4th 73, 116.) We review the trial court’s failure to instruct on a
lesser included offense using the de novo standard of review. (People v. Cole (2004)
33 Cal.4th 1158, 1218.)
B.
For each of the challenged counts, Frank points to various lesser included offenses
that, unlike the charged offenses, do not require the elements of force or nonconsent. He
argues that instructions on those lesser included offenses were required because there was
sufficient evidence for the jury to conclude that the conduct underlying the offenses was
consensual. Assuming without deciding that each of the identified offenses is, in fact, a
lesser included offense of the charged offense, we disagree that there was substantial
evidence to support the lesser, but not the greater, offenses.
As to count four for forcible sodomy, which involved the video in the “binding
series” in which Doe was seated on Frank’s lap while Frank applied lubrication, and
counts nine, nineteen, twenty-three, and twenty-five for aggravated sexual assault by
sodomy, which involved the January and April 2018 acts depicted in the “storage series,”
Frank argues that the jury should have been instructed on sodomy with a minor under
section 286, subdivision (b)(1). That provision forbids participation “in an act of sodomy
with another person who is under 18 years of age.” (§ 286, subd. (b)(1).) As to
counts eleven, thirteen, fifteen, seventeen, and twenty-one for aggravated sexual assault
by oral copulation, which were also based on conduct shown in the “storage series,”
Frank argues that the jury should have been instructed on oral copulation with a minor
under section 287, subdivision (b)(1). Section 287, subdivision (b)(1) forbids “oral
copulation with another person” when that person is “under 18 years of age.”
As discussed above with respect to defendants’ challenge to the sufficiency of the
evidence of force or duress, there was overwhelming evidence that all of these offenses
were committed by means of duress. Frank maintains that there was at least sufficient
support to justify an instruction on nonforcible sodomy and nonforcible oral copulation
41
based on evidence that he claims shows Doe was a willing participant, including: the
video evidence showing Doe making statements like “10 out of 10”; Frank’s testimony
that he checked in with Doe, asking if he was “okay,” without Doe saying he wanted the
sex acts to stop; Doe’s agreement to go to the storage unit even while knowing what
would happen there; Doe’s willingness to take off his pants when on a walk with Frank
and Stubbs; and Frank’s affirmation that Doe could leave the shed when Doe said he
wanted to return to the house and go to sleep. We do not agree. These statements and
actions occurred in the context of years-long abuse that, the evidence showed, was
accomplished by psychological coercion and physical domination. No reasonable jury
would interpret Doe’s statements and actions as evidencing willing participation. There
is thus no substantial evidence to support a finding that the acts of sodomy and oral
copulation were nonforcible. And there was accordingly no error in the trial court’s
failure to instruct the jury on the nonforcible versions of these offenses.
VIII.
Frank additionally argues that he was entitled to an instruction under Mayberry,
supra, 15 Cal.3d 143, on counts four, nine, eleven, thirteen, fifteen, seventeen, nineteen,
twenty-one, twenty-three, and twenty-five. We find no merit in this claim.
In Mayberry, our Supreme Court “held that when the record contains sufficient
evidence of a defendant’s reasonable belief in the complainant’s consent to a sexual act,
the jury must be instructed to find the defendant not guilty unless the prosecution proves
beyond a reasonable doubt that the defendant did not actually and reasonably believe the
complainant consented.” (People v. Dillon (2009) 174 Cal.App.4th 1367, 1381.) “ ‘The
Mayberry defense has two components, one subjective, and one objective. The
subjective component asks whether the defendant honestly and in good faith, albeit
mistakenly, believed that the victim consented to sexual intercourse. In order to satisfy
this component, a defendant must adduce evidence of the victim’s equivocal conduct on
the basis of which he erroneously believed there was consent. [¶] In addition, the
42
defendant must satisfy the objective component, which asks whether the defendant’s
mistake regarding consent was reasonable under the circumstances. Thus, regardless of
how strongly a defendant may subjectively believe a person has consented to sexual
intercourse, that belief must be formed under circumstances society will tolerate as
reasonable in order for the defendant to have adduced substantial evidence giving rise to
a Mayberry instruction.’ ” (People v. Maury (2003) 30 Cal.4th 342, 424.) “[I]n
determining whether the Mayberry instruction should be given, the trial court must
examine whether there is substantial evidence that the defendant honestly and reasonably,
but mistakenly, believed that the victim consented to sexual intercourse.” (People v.
Williams (1992) 4 Cal.4th 354, 361.)
Assuming without deciding that a Mayberry instruction is ever applicable in a
child sex offense case, no Mayberry instruction was appropriate here. Any subjective
belief that Doe consented to Frank’s acts was not reasonable under any circumstances
society would tolerate. Frank was Doe’s uncle and began abusing Doe when Doe was six
years old. The abuse continued and escalated. It included video recording, hogtying, and
administration of methamphetamine to an 11-year-old boy. Frank maintains that the
evidence of defendants’ coercion of Doe presented a fact question for the jury. In his
view, “[a] Mayberry instruction should be withheld only if there is no way that the jury
could find a defendant’s belief reasonable, under any view of the evidence.” That is the
situation here.
IX.
Frank next argues that he received ineffective assistance of counsel in various
respects.
To prevail on a constitutional claim of ineffective assistance of counsel, a
defendant “ ‘must satisfy a two-pronged showing: that counsel’s performance was
deficient, and that the defendant was prejudiced, that is, there is a reasonable probability
the outcome would have been different were it not for the deficient performance.’ ”
43
(People v. Woodruff (2018) 5 Cal.5th 697, 736; see generally Strickland v. Washington
(1984) 466 U.S. 668, 687.) We “ ‘ “defer to counsel’s reasonable tactical decisions in
examining a claim of ineffective assistance of counsel [citation], and there is a ‘strong
presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance.’ ” [Citation.]’ ” (People v. Hinton (2006) 37 Cal.4th 839, 876.) “A
‘reasonable probability’ is one that is enough to undermine confidence in the outcome.”
(People v. Dennis (1998) 17 Cal.4th 468, 541.)
First, Frank claims that defense counsel should have moved for acquittal under
section 1118.1 at the close of the People’s case-in-chief. Section 1118.1 permits a trial
court to dismiss the charged offenses before a case is submitted to the jury “if the
evidence then before the court is insufficient to sustain a conviction of such offense or
offenses on appeal.” “ ‘ “The standard applied by a trial court in ruling upon a motion for
judgment of acquittal pursuant to section 1118.1 is the same as the standard applied by an
appellate court in reviewing the sufficiency of the evidence to support a conviction, that
is, ‘whether from the evidence, including all reasonable inferences to be drawn
therefrom, there is any substantial evidence of the existence of each element of the
offense charged.’ ” ’ ” (People v. Gomez (2018) 6 Cal.5th 243, 307.) “A section 1118.1
motion is used to cull the ‘ “ ‘few instances in which the prosecution fails to make even a
prima facie case.’ ” ’ ” (People v. Wilson (2021) 11 Cal.5th 259, 301.)
Frank’s argument is based on the premise that count twenty-five relied primarily
on his admission of anal penetration during cross-examination and that a successful
section 1118.1 motion would have prevented him from testifying. We see no reasonable
probability that such a motion would have been successful. As we have explained above,
there was extensive evidence of Frank’s offenses, including of the elements of duress and
penetration. With respect to count twenty-five, the conduct underlying that charge was
captured on video. Because it is not reasonably probable that the trial court would have
concluded that the People had failed to adduce substantial evidence supporting the
44
charges, defense counsel did not perform deficiently in failing to bring such a motion.
(People v. Thompson (2010) 49 Cal.4th 79, 122 [“Counsel is not ineffective for failing to
make frivolous or futile motions”].)
Second, Frank argues that defense counsel performed inadequately by failing to
object to one of the prosecutor’s questions on cross-examination. As we noted above, in
questioning Frank about the April 2018 trip to the storage unit, the prosecutor asked,
“Where was [Stubbs] at that time?” Frank responded, “He was in the hallway as well.”
The prosecutor then asked: “And that’s the time that you are actually sticking your penis
between [Doe’s] butt and into his anus; correct.” Frank replied, “More or less, yes.”
Frank contends that the question was impermissibly compound and assumed facts not in
evidence. He additionally claims that counsel should have objected during the
prosecutor’s closing argument, when she asserted that Frank’s response to this question
was an admission of anal penetration.
As to the prosecutor’s question, it is not clear counsel would have had a valid
objection. Frank argues that the question was impermissibly compound because it asked
both if “that’s the time” Stubbs was in the hallway and if “that’s the time” Frank engaged
in anal penetration. That is not the natural reading of the prosecutor’s question,
particularly given the context. It is unclear as well how the question assumed facts not in
evidence, given the video evidence of Frank’s actions.
Even assuming the prosecutor’s question was objectionable, nothing in the record
would permit us to say that counsel’s failure to object reflected deficient performance.
“ ‘[D]eciding whether to object is inherently tactical, and the failure to object will rarely
establish ineffective assistance.’ ” (People v. Lopez (2008) 42 Cal.4th 960, 972.) Here, it
is possible counsel simply did not want to draw attention to the damaging testimony.
(People v. Bradford (1997) 14 Cal.4th 1005, 1052.) Moreover, Frank’s defense strategy
was centered around admitting the charged offenses but asserting that he had only acted
45
under duress by Stubbs. Counsel may reasonably have determined an objection would be
inconsistent with that strategy. (See Lopez, at p. 972.)
As to the prosecutor’s closing argument, Frank claims that, because the
prosecutor’s question was compound, it was a misrepresentation to argue to the jury that
Frank’s response admitted anal penetration. For the reasons we just noted, the
prosecutor’s interpretation of Frank’s testimony was, at a minimum, a reasonable one.
But even if her argument was objectionable, the jury was instructed that statements by
counsel in closing argument were not evidence. Jurors were also told, “Do not assume
that something is true just because one of the attorneys asked a question that suggested it
was true.” We “ ‘presume that jurors treat the court’s instructions as a statement of the
law by a judge, and the prosecutor’s comments as words spoken by an advocate in an
attempt to persuade.’ ” (People v. Cortez (2016) 63 Cal.4th 101, 131.) It is not
reasonably probable that the outcome of the trial would have been different had defense
counsel objected to the prosecutor’s statement. (See Strickland v. Washington, supra,
466 U.S. at p. 697 [court need not determine whether counsel’s performance was
deficient before examining prejudice if “it is easier to dispose of an ineffectiveness claim
on the ground of lack of sufficient prejudice”].)
Third, Frank asserts that defense counsel should have objected when the
prosecutor stated in closing argument that aider and abettor liability could apply to the
tying or binding special circumstance allegations, and that both the tying or binding and
controlled substance special circumstances could attach to each of the counts in their
respective series. For the reasons explained above in rejecting both of these arguments
on the merits, the prosecutor did not misstate the law when she argued that the tying or
binding special circumstance could apply to Frank as an aider and abettor, or that the
tying or binding and controlled substance special circumstances could apply to each
count in their respective series of conduct. Accordingly, defense counsel was not
46
ineffective for failing to object to these arguments. (People v. Thompson, supra,
49 Cal.4th at p. 122 [counsel not ineffective for failing to bring nonmeritorious motion].)
X.
In his final argument, Frank challenges the upper term sentence imposed for
count twenty-seven for forcible lewd conduct (§ 288, subd. (b)(1)). He claims that there
was insufficient evidence to support two aggravating circumstances on which the trial
court relied to justify the upper term: the victim’s particular vulnerability and Frank’s
callousness. The People argue that this claim is forfeited and otherwise lacks merit.
Sufficiency of the evidence claims cannot be forfeited (People v. McCullough (2013)
56 Cal.4th 589, 595-596; In re K.F. (2009) 173 Cal.App.4th 655, 660), but we agree that
Frank has shown no error in the trial court’s sentencing decision.
A.
Count twenty-seven was based on Frank’s last abusive act, when he pulled down
Doe’s pants. At trial, Doe explained that he had been trying to distance himself from
Frank, and had refused to sleep in Frank’s room, so Frank approached him in the living
room of the Loomis house and tried to induce Doe to go into Frank’s room. He pulled on
Doe’s pants, trying to “play[] it off in a playful way” while Doe resisted, and ultimately
pulled down Doe’s pants, exposing him.
At the bifurcated bench trial, held after the guilty verdicts and after Frank waived
his right to a jury trial on the aggravating circumstances, the court found true beyond a
reasonable doubt several aggravating circumstances as to all counts: (1) the crimes
involved great violence, great bodily harm, threat of great bodily harm, or other acts
disclosing a high degree of cruelty, viciousness, or callousness; (2) the victim was
particularly vulnerable; (3) the manner in which the crimes were carried out indicated
planning, sophistication, or professionalism; (4) the defendant took advantage of a
position of trust or confidence to commit the offense; and (5) the defendant engaged in
violent conduct that indicated a serious danger to society.
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In imposing sentence as to count twenty-seven, the trial court explained, “The
defendant is sentenced to the upper term of 10 years. The [c]ourt selects the upper term
based on the aggravating circumstances set forth in [California] Rules of Court 4.421
subdivisions (a)(1), (a)(3), (a)(4), (a)(8) and (a)(11) and (b)(1).3 This term is ordered to
run consecutively to all other terms imposed. The [c]ourt finds that the conduct charged
in that count is separate and distinct from the charges and other counts that are ordered to
run consecutively.”
B.
Under section 1170, subdivision (b)(2), a trial court shall not impose a sentence
greater than the middle term unless “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.” California Rules of Court, rule 4.421 sets out a list of aggravating factors,
including, as relevant here, that “[t]he crime involved great violence, great bodily harm,
threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness,
or callousness,” and that “[t]he victim was particularly vulnerable.” (Cal. Rules of Court,
rule 4.421(a)(1), (3).)4 When a defendant challenges a true finding on an aggravating
factor “based on insufficiency of the evidence, ‘the court must review the whole record in
the light most favorable to the judgment below to determine whether it discloses
substantial evidence—that is, evidence which is reasonable, credible, and of solid
value—such that a reasonable trier of fact could find the [aggravating fact true] beyond a
3 The trial court appears to have misspoken when it imposed the upper term sentence
based on rule 4.421(a)(4), which it found not true as to Frank. Frank does not raise any
issue as to this misstatement.
4 Undesignated rule references are to the California Rules of Court.
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reasonable doubt.’ [Citation.] We ‘ “ ‘presume in support of the judgment the existence
of every fact the trier could reasonably deduce from the evidence.’ ” ’ ” (People v.
Mendez-Torres (2025) 113 Cal.App.5th 1007, 1015.)
“Case law has explained that for purposes of finding the aggravating factor of
particular vulnerability, ‘ “[p]articularly … means in a special or unusual degree, to an
extent greater than in other cases. Vulnerability means defenseless, unguarded,
unprotected, accessible, assailable, one who is susceptible to the defendant’s criminal
act.” [Citation.]’ ” (People v. DeHoyos (2013) 57 Cal.4th 79, 154.) A victim’s
particular vulnerability may be based on mental or physical disabilities, “intoxication,
supervision or control of a defendant over a victim, and extreme youth within the given
age range.” (People v. Garcia (1985) 166 Cal.App.3d 1056, 1069-1070.) It is based on
“the total milieu in which the commission of the crime occurred.” (People v. Price
(1984) 151 Cal.App.3d 803, 814.)
There was ample evidence to support a finding that Doe was particularly
vulnerable under rule 4.421(a)(3). Frank, Doe’s uncle, began abusing him when Doe was
six years old. Frank abused him whenever he could, such that Doe could not remember a
time when Frank was not touching him. Even if Frank was no longer babysitting Doe at
the time of count twenty-seven and thus lacked direct supervision or control over Doe, he
enjoyed special access to Doe at the Loomis house based on his familial relationship.
Moreover, defendants sexually abused Doe under severe duress for many years, making
Doe particularly vulnerable to Frank’s further abusive acts.
Frank claims that Doe was not isolated while in the Loomis living room, was able
to escape, and was old enough to resist. But these claims ignore the context in which
Frank’s acts occurred—in Doe’s grandmother’s home by a family member who had
subjected him to extraordinarily severe sexual abuse as a young child. When Frank
pulled down Doe’s pants as part of an effort to induce Doe to come to his room, where he
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had frequently abused Doe in the past, that placed Doe in a position of particular
vulnerability to Frank’s acts.
The record also contains substantial evidence that the offense involved acts
disclosing a high degree of cruelty or callousness under rule 4.421(a)(1). Frank argues
that his conduct was not “done in a threatening or frightening manner,” that it was merely
“ ‘playful,’ ” and that it must “rank at the lowest level” of behavior prohibited by
section 288, subdivision (b)(1). The trial court could properly find that this gloss on the
evidence was contradicted by the record and, again, ignored the context in which the
offense occurred. Moreover, Doe’s mother testified that, around this time, Doe did not
want to go to Loomis, where Frank was, or to be separated from her while he was there.
The fact that, under these circumstances, Frank then acted as if he were merely playing
with Doe is plainly callous behavior. (See People v. Esquibel (2008) 166 Cal.App.4th
539, 558 [“ ‘Callous’ is typically defined as ‘insensitive; indifferent; unsympathetic’
[citation], as in ‘a callous indifference to the suffering of others’[citation]”].)
Frank further claims that the crime was not “distinctively worse” than an ordinary
commission of forcible lewd conduct. (Italics omitted.) While he is correct that an
aggravating circumstance must make the offense distinctively worse than the ordinary,
“[c]ourts applying that standard have not imagined an abstract, ‘ordinary case’ to
determine whether a finding of an aggravating circumstance is warranted by the facts of
the case. Rather, they have considered whether the manner of the crime’s commission
was distinctively worse ‘when compared to other ways in which such a crime could be
committed.’ ” (Chavez Zepeda v. Superior Court (2023) 97 Cal.App.5th 65, 89.) As
relevant here, “any touching of an underage child is ‘lewd or lascivious’ within the
meaning of section 288 where it is committed for the purpose of sexual arousal.”
(People v. Martinez (1995) 11 Cal.4th 434, 444-445 [“a lewd or lascivious act can occur
through the victim’s clothing and can involve ‘any part’ of the victim’s body”].) Here,
the facts of the offense—Frank pulling down Doe’s pants and exposing his genitals as
50
part of an effort to induce Doe into Frank’s bedroom where sexual abuse had previously
occurred—is substantial evidence that the crime was distinctly worse than the ordinary.
Finally, we reject Frank’s claim, relying on People v. Searle (1989)
213 Cal.App.3d 1091, that the trial court could not consider the aggravated, years-long
abuse of Doe preceding count twenty-seven because it related to other counts and thus
could not aggravate this one. In Searle, the Court of Appeal determined that a court
could not use aggravating factors from different drug sale crimes that were not
“ ‘transactionally related’ ” to impose an upper term sentence on a separate drug offense.
(Id. at p. 1098.) That a court may not transplant an aggravating fact from one count to
impose an upper term sentence on an unrelated count to which the aggravating fact does
not apply does not mean that a court may not consider the entire context in which a
particular offense occurs. (People v. Price, supra, 151 Cal.App.3d at p. 812 [“a trial
court may use the same fact(s) to impose more than one aggravated term provided the
fact is reasonably related to the particular count and is otherwise available”
(fn. omitted)].) Here, Frank’s years-long abuse of Doe was not unrelated to
count twenty-seven. To the contrary, for the reasons explained above, that conduct
contributed to Doe’s vulnerability and Frank’s callousness with respect to that count.
In short, substantial evidence supports the trial court’s decision to impose the
upper term sentence on count twenty-seven.
XI.
After his opening brief was filed, Stubbs filed a supplemental brief raising two
additional issues. The People concede error on both points.
First, Stubbs argues that the judgment must be modified to strike the prior sex
crime enhancements under section 667.6, subdivision (a). The operative information
alleged that Stubbs was subject to a sentencing enhancement under section 667.6 based
on a prior conviction for violating section 288, subdivision (a). At sentencing, the trial
court found the allegation true as to counts four through eight, ten, twelve, fourteen,
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sixteen, eighteen, twenty, twenty-two, twenty-four, and twenty-six. The court later struck
the allegations in the interests of justice.
Section 667.6, subdivision (a) says: “A person who is convicted of an offense
specified in subdivision (e) and who has been convicted previously of any of those
offenses shall receive a five-year enhancement for each of those prior convictions.”
Subdivision (e) of section 667.6 lists section 288, subdivision (b), but not section 288,
subdivision (a). Accordingly, we accept the People’s concession that Stubbs’s prior
conviction under section 288, subdivision (a) is not a qualifying offense under
section 667.6, subdivision (a) and that the true findings on those allegations should
therefore be stricken. This change in the judgment does not affect Stubbs’s sentence
because the trial court already struck the enhancements in the interests of justice.
Further, because the enhancements are not reflected on the abstract of judgment or in the
sentencing minute order, no correction to those documents is required on this basis.
Second, Stubbs argues that the abstract of judgment should be corrected to delete
enhancements imposed under section 667.51, subdivision (a), because those
enhancements were stricken by the trial court. The trial court found true enhancement
allegations under section 667.51, subdivision (a) as to counts five through eight, ten,
twelve, fourteen, sixteen, eighteen, twenty, twenty-two, twenty-four, and twenty-six, but
later struck the allegations in the interest of justice. The minute order reads, “The [c]ourt
strikes any punishment under PC 667.51(a)” as to specified counts. The abstract of
judgment also lists the enhancements, but denotes them “PS,” which the form defines to
mean “punishment struck.” The directions on the abstract of judgment state, “Do not list
any stricken enhancement(s)” and “Do not list enhancements fully stricken by the court.”
(Some capitalization omitted.)
We accept the People’s concession that the minute order and abstract of judgment
warrant correction. To the extent the minute order and abstract of judgment reflect the
imposition of the enhancements and the striking or staying of their associated
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punishments, they diverge from the trial court’s oral pronouncement, and the oral
pronouncement prevails. (People v. Leon (2020) 8 Cal.5th 831, 855.) We will therefore
direct the trial court to correct the abstract of judgment and the corresponding minute
order.
DISPOSITION
The judgment as to Frank is affirmed.
The judgment as to Stubbs is modified to strike the true findings on the
enhancement allegations under section 667.6, subdivision (a). As modified, the judgment
is affirmed. The trial court is directed to correct the abstract of judgment and minute
order to remove the stricken enhancement allegations under section 667.51,
subdivision (a). The court is further directed to forward a certified copy of the corrected
abstract of judgment to the Department of Corrections and Rehabilitation.
/s/
FEINBERG, J.
We concur:
/s/
MAURO, Acting P. J.
/s/
RENNER, J.
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