Filed 8/20/26 P. v. Weston CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D085770
Plaintiff and Respondent,
v. (Super. Ct. No. SCN446503)
NICHOLAS WESTON,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Laura E. Duffy, Judge. Affirmed.
Heather E. Shallenberger, under appointment by the Court of Appeal,
for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
I. INTRODUCTION
Defendant Nicholas Weston appeals the judgment on his convictions for
rape of an unconscious person (Pen. Code,1 § 261, subd. (a)(4)) and forcible
1 Undesignated statutory references are to the Penal Code.
rape (§ 261, subd. (a)(2)). His appointed appellate counsel filed an opening
brief raising no arguable issues. (See People v. Wende (1979) 25 Cal.3d 436
(Wende); Anders v. California (1967) 386 U.S. 738.) Weston filed a
supplemental brief on his own behalf. Our independent review of the record
confirms there are no arguable issues on appeal. We therefore affirm the
judgment.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. Charges
The People charged Weston with one count each of rape of an
unconscious person (§ 261, subd. (a)(4)) and forcible rape (§ 261, subd. (a)(2)).
B. Trial
1. Prosecution Case
In March 2023, then-19-year-old Jenavieve H. was seeking a serious
romantic partner through an online dating app. She expressed interest in
Weston because his profile indicated they had similar morals and
upbringings, evidenced in part by Weston’s current service in the United
States Marine Corps. Jenavieve and Weston initially communicated through
the app, and then directly by text message and phone.
After communicating for a few days, Jenavieve and Weston made plans
to go to the beach together on March 12, 2023. Jenavieve lived in Pomona;
Weston lived at Camp Pendleton. They arranged for Weston to get a ride
from his base to a shopping mall parking lot in San Clemente, where
Jenavieve would pick him up and then drive to the San Clemente Pier.
As planned, Jenavieve picked up Weston around 9:30 a.m. in her Ford
F-150 truck and drove to the pier, arriving about 10 minutes later. The pair
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sat in Jenavieve’s truck and talked. Weston “gave off a good energy” and
“seemed like his morals were good.” Jenavieve and Weston kissed; she
removed her shirt and allowed him to touch and kiss her breasts; and she
allowed him to touch her buttocks over her clothing. But when Weston
reached toward Jenavieve’s vaginal area, she told him “no” and swatted his
hand away. Weston scooted away and “his whole demeanor . . . change[d]
entirely from talking and happy to just quiet and brushed off to the side.”
Jenavieve reengaged Weston and they resumed kissing and touching.
Weston tried again to touch Jenavieve’s vaginal area, and she again told him
no and pushed his hand away. This happened two or three times. Each time,
Weston withdrew, and Jenavieve reengaged him.
Weston suggested that the couple have sex in Jenavieve’s truck or at a
hotel. Jenavieve did not want to because it did not align with her morals to
have sex on a first date. But rather than tell this directly to Weston,
Jenavieve made excuses about not wanting passersby to see them in the
truck or not knowing where a hotel was or being able to afford one.
After a while in the truck, Jenavieve and Weston arranged for her to
take him to Trestles Beach in San Onofre, where he could get a ride back to
Camp Pendleton. Jenavieve drove them to the Trestles Beach parking lot
and parked her truck in a partially secluded area around 11:00 a.m. or noon.
Jenavieve told Weston she needed to head home soon to beat traffic but was
tired from babysitting past midnight the night before. Weston suggested she
nap in her truck before driving home. Jenavieve agreed and laid across the
truck’s front bench seat — her head rested on Weston’s leg in the passenger
seat and her feet were by the driver’s door. Jenavieve fell sound asleep.
When Jenavieve awoke, she was reclined in the passenger seat with
Weston kneeling in front of her, thrusting his penis in and out of her vagina.
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Jenavieve asked, “What the f[***] are you doing?” Weston responded,
“Nothing,” and kept penetrating her. Jenavieve tried unsuccessfully to push
Weston off and to dissuade him by telling him she was not on birth control.
Weston continued penetrating Jenavieve for “a couple of minutes” before
stopping. Jenavieve “just curled up in a ball” to get away from Weston.
Jenavieve testified she never consented to having intercourse with Weston.
Weston asked Jenavieve repeatedly if she was okay. She initially did
not respond, but eventually “responded to his questions as blankly and as
fast as [she] could” so that he would leave. When Weston’s ride arrived,
Jenavieve agreed to see Weston again “so that he’d leave” and not get mad.
After Weston left, he sent Jenavieve text messages asking, “Are you sure
you’re okay,” and saying, “I’m sorry.” Jenavieve did not respond.
Jenavieve drove around and called friends and family for advice. That
afternoon, she reported the incident to the police and submitted to a sexual
assault nurse examination. During this exam, a nurse swabbed Jenavieve’s
breasts, vagina, and external vaginal area for DNA. A criminalist found male
DNA in each of these samples. For economic reasons, the analyst performed
a detailed analysis of only the external vaginal swab, which showed “very
strong support” — 2.3 octillion to one — for inclusion of Weston as the
contributor.
Jenavieve further assisted the police investigation by participating in a
“controlled call” with Weston. Police choreographed and recorded the call,
which was played at trial. During the call, Jenavieve confronted Weston
about waking up to find him on top of her. Weston apologized. When
Jenavieve asked “why [Weston] thought that was okay,” he responded, “I
know it wasn’t.”
4
As evidence that Weston was predisposed to commit sexual offenses,
the prosecution presented evidence that he engaged in similar sexual
misconduct with a different victim in Idaho. Averi S. testified that in May
2022, when she was 18 years old, she met Weston through a social media
app. On May 16, 2022, Weston asked Averi through the app if she wanted to
hang out. Averi agreed to meet because she “had been upset and felt like
[she] needed someone to talk to, and . . . didn’t have any friends.” Weston
picked up Averi in his pickup truck around midnight.
Weston drove Averi to an “empty and dark” parking lot, where they
watched a movie on his laptop as Averi “talk[ed] about why [she] was upset.”
Weston leaned over and tried to kiss Averi, but she “backed away.” Averi did
not say anything because she “just thought it was weird and didn’t want to
confront the situation.” Weston apologized. A few minutes later, Weston
scooted closer to Averi and started kissing her neck. Averi told him to stop
but he did not. Weston touched Averi’s vaginal area and persisted even when
she told him to stop. Weston then used one hand to hold Averi’s hands over
her head and used his other hand to pull down her pants and underwear.
Weston continued touching Averi’s vaginal area and then inserted his penis
into her vagina. Averi told Weston to stop and unsuccessfully tried to “wiggle
out” from under him. Averi eventually kicked Weston in his chest, stopping
him.
Weston took Averi home. After he left, Weston messaged Averi
through the social media app to ask that she not tell anyone what happened
so he would not get in trouble. Averi reported the incident to the police.
Criminal charges were pending against Weston in Idaho during his San
Diego trial in this case, although the jury was not informed of this fact.
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2. Defense Case
The defense rested without presenting any evidence. Weston’s trial
counsel argued in closing that either Jenavieve consented to having sex with
Weston or that Weston reasonably believed she consented.
C. Verdicts
After deliberating for about two hours, the jury found Weston guilty of
the charges. The jury submitted no questions during deliberation.
D. Sentencing
At the sentencing hearing, the trial court found Weston ineligible for
probation due to his rape convictions. (See § 1203.065, subd. (a) [“probation
shall not be granted to . . . a person who is convicted of violating” § 261,
subd. (a)(2) & (4), among other offenses].)
The trial court found two mitigating circumstances: Weston’s (1) age at
the time of the offense (Cal. Rules of Court,2 rule 4.423(b)(6)); and (2) lack of
criminal history (rule 4.423(b)(1)). The court noted that although a
psychological evaluation assessed Weston as being a low risk for nonsexual
recidivism, it assessed him as “above average” risk for sexual recidivism. The
court also noted that the evaluation made “no mention of mental health
issues, any substance abuse issues, or other such issues that played a role in
this offense.”
The court found five aggravating circumstances: (1) the crime
involved great violence, bodily harm, threat of great bodily harm, or
other acts disclosing a high degree of cruelty, viciousness, or callousness
2 Undesignated rule references are to the California Rules of Court.
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(rule 4.421(a)(1)); (2) the victim was particularly vulnerable in that Weston
“lulled Jenavieve into having a sense of security” and “lured her into what
amounted to be a defenseless position in that she was asleep” (rule
4.421(a)(3)); (3) Weston took advantage of a position of trust and confidence
based on his status as a Marine and his expression of interest in a serious
romantic relationship (rule 4.421(a)(11)); (4) Weston engaged in violent
conduct that indicates a serious danger to society (rule 4.421(b)(1)); and
(5) Weston did not use a condom during the commission of the offense, which
“expos[ed] Jenavieve to both pregnancy and sexually transmitted diseases”
(rule 4.408(a) [the sentencing court may specify additional discretionary
sentencing factors].)
The court selected punishment on the forcible rape conviction as the
principal term and, based on the aggravating circumstances vastly
outweighing the mitigating circumstances, selected the middle term of six
years. The court expressly found that “choosing the middle term . . . [was]
appropriate, despite the mitigating facts in [section] 1170[, subdivision] (b)(6)
regarding [Weston’s] age.”3 Based on the same considerations, the court
selected a consecutive middle term of six years on the conviction for rape of
an unconscious person. However, the court stayed execution of this sentence
under section 654.
3 Section 1170, subdivision (b)(6) provides that where the defendant’s
youth (among other considerations) “was a contributing factor in the
commission of the offense,” the court must impose the low term “unless the
court finds that the aggravating circumstances outweigh the mitigating
circumstances that imposition of the lower term would be contrary to the
interests of justice.”
7
The court initially imposed routine assessments and a $7,200
restitution fine (§§ 1202.4, 1202.45) but granted Weston’s motion to strike the
restitution fine under People v. Dueñas (2019) 30 Cal.App.5th 1157.
The court informed Weston that he is required to register as a sex
offender under section 290 and is subject to Jessica’s Law. (Prop. 83, as
approved by voters, Gen. Elec. (Nov. 7, 2006) [modifying aspects of the Penal
Code and Welfare and Institutions Code regarding sentencing and handling
of defendants convicted of certain sex crimes]; see In re Taylor (2015)
60 Cal.4th 1019, 1022.)
III. DISCUSSION
Weston’s appointed appellate counsel filed a brief pursuant to Wende,
supra, 25 Cal.3d 436, which summarized the facts and proceedings of the
case, asserted no claims of error, and invited us to conduct an independent
review of the record for prejudicial error. Counsel advised Weston of his right
to file a supplemental brief, which he did. (See People v. Kelly (2006)
40 Cal.4th 106, 120 (Kelly) [if counsel raises no claims of error, defendant has
the right to file supplemental contentions].) We have reviewed the entire
record as required by Wende and Anders, and considered the issues identified
by Weston and his counsel. We find no arguable issue that would result in a
reversal or modification of the judgment. Having already provided the “brief
description of the facts and procedural history of the case, the crimes of which
the defendant was convicted, and the punishment imposed” that a Wende
appeal requires (Kelly, at pp. 123–124), we now proceed to “describe[] the
contentions personally raised by the defendant and the reasons those
contentions fail” (id. at p. 124).
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Weston raises two challenges regarding the sufficiency of the evidence
supporting his convictions. First, he questions Jenavieve’s testimony that
she was asleep when he began raping her, noting there “was no evidence to
back up and support” her testimony on this point. But “ ‘[i]n California
conviction of a sex crime may be sustained upon the uncorroborated
testimony of the [victim].’ ” (People v. Gammage (1992) 2 Cal.4th 693, 700;
see People v. Ramirez (2022) 13 Cal.5th 997, 1118 [“ ‘unless the testimony is
physically impossible or inherently improbable, testimony of a single witness
is sufficient to support a conviction’ ”].) The trial court properly instructed
the jury regarding this law. (See CALCRIM No. 1190 [“Conviction of a sexual
assault crime may be based on the testimony of a complaining witness
alone.”].) “We neither reweigh the evidence nor reevaluate the credibility of
witnesses.” (People v. Jennings (2010) 50 Cal.4th 616, 638.)
Second, Weston argues there was no “DNA . . . inside the victim[,] only
on the outside[,] showing sexual assault not rape.” The appellate record
contradicts this claim. The criminalist testified that although she performed
a detailed analysis only of the DNA collected from Jenavieve’s external
vaginal area, all of the DNA swabs — including the internal swab of
Jenavieve’s vagina — contained male DNA.
Weston challenges one evidentiary ruling by the trial court: the
admission under Evidence Code section 1108 of Averi’s testimony about
Weston’s other sexual misconduct.4 Weston asserts that this evidence “did
4 Evidence Code section 1108, subdivision (a) states: “In a criminal
action in which the defendant is accused of a sexual offense, evidence of the
defendant’s commission of another sexual offense or offenses is not made
inadmissible by [Evidence Code] Section 1101, if the evidence is not
inadmissible pursuant to [Evidence Code] Section 352.”
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not allow [him] to testify when the jury stated it would help their decision in
hearing [him] testify along with the [Evidence Code section] 1108 evidence is
still in an active case that can be proven false.” Neither aspect of this
challenge persuades us. To begin, the record does not support Weston’s
assertion that the jury stated it would help to hear him testify. On the
contrary, the record shows that the jury made no such requests either during
trial testimony, or during its brief deliberation. Additionally, the trial court
instructed the jury not to consider Weston’s decision not to testify. (See
CALCRIM No. 355 [“Do not consider, for any reason at all, the fact that the
defendant did not testify. Do not discuss that fact during your deliberations
or let it influence your decision in any way.”].) “[W]e presume the jury was
able to understand and follow th[is] instruction[].” (People v. Lamb (2024)
16 Cal.5th 400, 441.)
As for the fact that charges regarding Averi were “still an active case
that can be proven false,” Weston fails to convince us. Evidence of his
conduct with Averi would still have been admissible in this case even if he
were acquitted in Idaho. (See People v. Avila (2014) 59 Cal.4th 496, 515–516
[“That defendant had been acquitted of charges regarding two of the girls did
not prevent admitting the evidence in this case. ‘Both this court and the
United States Supreme Court have held that principles of double jeopardy,
including its collateral estoppel component, permit the admission of
otherwise proper evidence of a prior crime even if the person had been
entirely acquitted of that prior crime. [Citations.] This is so because the
defendant must be found guilty beyond a reasonable doubt of a crime to be
convicted of it, but other crimes evidence need be proven only by a
preponderance of the evidence.’ ”].) Therefore, the fact that the Idaho case
was still pending against Weston did not preclude Averi from testifying.
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Weston raises several challenges regarding his sentence. First, he
implies the trial court erred by imposing “the middle term instead of the low
term” because this “is [his] first offense and [his] crime did not involve
violence or force.” But the trial court expressly stated that it considered that
this was Weston’s first offense yet found this circumstance (and the
additional mitigating circumstance of Weston’s youth) outweighed by the five
aggravating circumstances. This was within the trial court’s sound
sentencing discretion. (See People v. Knowles (2024) 105 Cal.App.5th
757, 766 [“Section 1170, subdivision (b)(6) plainly states that the court may
sentence above the low term if the aggravating circumstances ‘outweigh the
mitigating’ ones such that ‘imposition of the lower term would be contrary to
the interests of justice.’ This language is unambiguous.”].) Moreover, as to
Weston’s claim that the offense “did not involve violence or force,” the trial
court found as an aggravating factor that Weston “engaged in violent
conduct,” and the jury convicted him of forcible rape under section 261,
subdivision (a)(2), which the Legislature has declared a violent felony. (See
§ 667.5, subd (c)(3).)
Second, Weston notes that the trial court’s designation of his forcible
rape conviction as the principal term deprives him the opportunity “to
partake in more programs and time credits.” This merely states the
consequences of the court’s designation of the principal term; it sheds no light
on why that designation might have been in error. (See In re S.C. (2006)
138 Cal.App.4th 396, 408 [“To demonstrate error, appellant must present
meaningful legal analysis supported by citations to authority and citations to
facts in the record that support the claim of error.”].) Additionally, as noted,
the trial court weighed the mitigating and aggravating circumstances, and
had the discretion to designate the more severe punishment as the principal
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term. (See, e.g., § 1170.1 [“The principal term shall consist of the greatest
term of imprisonment imposed by the court for any of the crimes, including
any term imposed for applicable specific enhancements.”].)
Third, Weston argues that the requirement of lifetime registration as a
sex offender under section 290 “prohibits [him] from being accepted back into
civilization and having a family [and] kids with a normal life.” This is a
subjective observation but not a specific claim of legal error. (See In re S.C.,
supra, 138 Cal.App.4th at p. 408.) Absent a specific legal challenge, we note
that the trial court was required to impose the registration requirement
(§ 290, subd. (c)(1)), and “reviewing courts have upheld sex offender
registration laws against various constitutional challenges and have noted
the state’s legitimate interest in enacting sex offender registration measures”
(People v. Woodward (2025) 116 Cal.App.5th 379, 396; see ibid. [“Registration
requirements generally do not violate the right to substantive due process”];
In re Alva (2004) 33 Cal.4th 254, 262 [§ 290 registration is not “punishment”
for purposes of cruel and/or unusual punishment]; Johnson v. Department of
Justice (2015) 60 Cal.4th 871, 887 [§ 290 does not deny equal protection of the
law]; People v. Sorden (2005) 36 Cal.4th 65, 72 [requiring actual knowledge of
the registration requirement avoids a due process violation]; People v.
Hamilton (2025) 108 Cal.App.5th 423, 441 [rejecting vagueness, equal
protection, and procedural due process challenges]).
Finally, Weston observes that even though his “crime does not involve
minors,” he is subject to Jessica’s Law, which he asserts will limit his ability
to attend school events, parks, and other activities. Again, Weston cites only
the collateral consequences of the trial court’s sentencing decisions without
articulating a specific claim of legal error. (See In re S.C., supra, 138
Cal.App.4th at p. 408.) In any event, we note that Weston appears to
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overstate the nature of the restrictions he will be subject to when released
from prison. (See, e.g., § 626.81 [prohibiting registered sex offenders from
entering school grounds “without lawful business thereon and written
permission” from the school (italics added)]; § 3053.8, subd. (a) [prohibiting a
registered sex offender from “enter[ing] a park where children regularly
gather without the express permission of the person’s parole agent” if “one or
more of the victims was under 14 years of age” (italics added)].)
In sum, our independent review of the appellate record, and our
consideration of the issues identified by Weston and his appellate counsel,
reveal no arguable issue that would result in a reversal or modification of the
judgment.
IV. DISPOSITION
The judgment is affirmed.
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RUBIN, J.
WE CONCUR:
DATO, Acting P. J.
KELETY, J.
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