IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

VALARIE PHILLIPS, H053018
(Santa Clara County
Plaintiff and Appellant, Super. Ct. No. 24CV429513)

v.

CHLOE YOUNG et al.,

Defendants and Respondents.

Plaintiff and appellant Valarie Phillips appeals from a judgment following an order
sustaining a demurrer to her first amended complaint without leave to amend. The
defendants and respondents—Chloe Young, Denise Buckner, Nuzhat Shaikh, and Yvette
Carpenter (Defendants)—were all subordinates of Phillips who reported to her at Kaiser
Santa Clara Hospital. She alleges that they defamed her and portrayed her in a false light.
She also alleges that Carpenter falsely imprisoned her.
We conclude that the trial court properly sustained the demurrer without leave to
amend as to the defamation and false light causes of action, which comprised the vast
majority of Phillips’s allegations, but that the court erred in sustaining the demurrer as to
the false imprisonment cause of action, which was adequately pled. We therefore reverse
the judgment and remand the case for further proceedings as to respondent Carpenter
only.
 I. BACKGROUND
Because this is an appeal of a demurrer, we take the facts from Phillips’s first
amended complaint (FAC), “the allegations of which are deemed true for the limited
purpose of determining whether plaintiff has stated” viable causes of action.
(Stevenson v. Superior Court (1997) 16 Cal.4th 880, 885.) Phillips is a registered nurse
and was the Coordination of Care Service Director at Kaiser Santa Clara Hospital
(Kaiser) from June 2022 to November 2023. Her department included approximately
100 employees, five of whom reported directly to her. Phillips has brought suit against
four subordinate employees, alleging that they defamed her in various ways and
participated in efforts to injure her by inflicting emotional, financial, and physical harm.1
A. Chloe Young
Young is an Assistant Nurse Manager and Case Manager at Kaiser. She was a
subordinate of Phillips from June 2022 to November 2023. In October 2023, Phillips
hired Young as the Interim Manager of Utilization Management.
Phillips’s first two causes of action for defamation and gross negligence are
asserted against Young.2 According to Phillips, Young sent an email on February 8,
2023 to staff stating that registered nurse care coordinators “[s]ave lives.” Phillips had
previously explained to staff during a meeting that in their roles as case managers, they
do not save lives and are not responsible for doing so. Young’s email presented her
contradictory statement as “factual and informational,” which thereby harmed Phillips’s

1 Phillips makes a number of arguments on appeal that are not relevant to the
allegations of the FAC, including arguments based on the California Code of Regulations
and the United States Code. For example, she cites California Code of Regulations
sections 1256-36 and 1256-39, which govern a discharge from employment for
misconduct in connection with eligibility for unemployment compensation benefits.
These sections have no bearing on the causes of action in the case.
2 The causes of action in the FAC are not numbered, and some of them combine
multiple legal theories. We will adopt the numbering used by the trial court, which
counted a total of seven causes of action.

2
professional reputation because it “created doubt” regarding Phillips’s “ability and
knowledge of the role and responsibilities of a Case Manager/Registered Nurse Care
Coordinator.”
Earlier, on January 16, 2023, Young was asked to perform certain duties as an
Assistant Manager, and to address an issue in which an email had been sent to incorrect
recipients. Young refused and stated it was not a part of her job. Young’s
“insubordination caused the front-line staff to hate, shun, and contrive [sic] that [Phillips]
‘did not care about their concerns.’ ”
B. Denise Buckner
Buckner is a Patient Care Coordinator Case Manager and worked under Phillips
from June 2022 to November 2023. Buckner reported directly to Young. Phillips’s third
cause of action alleges both defamation and false light against Buckner.
In October 2022, Phillips made Young the Interim Resource Manager but then
sent an email in January 2023 announcing that she had selected a different applicant for
the final position. A couple of days later, Buckner “sent a [d]efamatory email across the
Northern California Kaiser Region expressing her discontent with [Phillips’s] selection
for [r]esource [m]anager.” A few days after that, during a meeting attended by a number
of staff, Buckner again “made [d]efamatory remarks” expressing her discontent with the
selection. Buckner stated “her platform was due to [Phillips’s] ‘obvious lack of ability to
lead’ and incapacity and/or knowledge in hiring.” In another January 2023 meeting,
Buckner continued to make “[l]ibelous statements regarding [Phillips’s] competency to
carry out the goals and agenda of Kaiser Northern California [Hospital Model of Care]
objectives.”
In February 2023, Phillips received a cease-and-desist email from the nurse’s
union asserting that she had had a disciplinary meeting with Buckner where she had read
the “Princip[les] of Responsibility” to Buckner “like a child.” The email was sent

3
“throughout” Kaiser in Northern California, the nurse’s union, the department, “and the
public,” and “painted [Phillips] in a [f]alse [l]ight.”
C. Nuzhat Shaikh
Like Buckner, Shaikh is a Patient Care Coordinator Case Manager who worked
under Phillips from June 2022 to November 2023. Phillips’s fourth and fifth causes of
action for “defamation and false light” and “defamation/negligence” are against Shaikh.
On January 15, 2023, Shaikh sent an email to Phillips’s supervisor allegedly
stating that while other nurse leaders were competent, Phillips was incompetent, and that
this created “stress for the frontline team.” Shaikh also emailed several other members of
the staff. Shaikh falsely represented to the supervisor that she had nobody to reach out to
regarding an “assignment incident” that occurred that day. According to Phillips, this
email “signaled to the COO Plaintiff Supervisor that [Phillips] did not possess the
leadership skills or knowledge to address . . . department issues.” In another email, sent
on January 20 to the department nursing leadership and other staff, Shaikh stated that
having care coordinators document participation in multidisciplinary rounds did not seem
appropriate. In a January 23 email regarding inappropriate documentation by the
frontline staff, Phillips’s supervisor wrote that it was “ ‘great to see the team (Nuzhat)
engaged with process . . . and giving ideas for improvement.’ ” Phillips alleges that
Shaikh “skipped the organization escalation procedure in an effort to address issues and
paint a picture that [Phillips] was incompetent.”
In her cause of action for defamation/negligence against Shaikh, Phillips alleges
that on January 30, 2023, Shaikh sent an email to Phillips’s supervisors at Kaiser and
“Kaiser Regional” in which she claimed that she and other “frontline staff” were not
aware of how to participate in the organization’s “preceptor program.” Phillips’s
regional supervisor responded that the information had been given to Phillips to
disseminate to staff, and the supervisor expressed disappointment that Phillips had not

4
done so. Phillips alleges that this showed that her competence and character were called
into question.
D. Yvette Carpenter
Carpenter is employed by Kaiser as Administrative Assistant to the Coordination
of Care Service Director. She reported to Phillips from June 2022 to November 2023.
Phillips asserts her sixth and seventh causes of action for defamation and false
imprisonment against Carpenter.
In her defamation cause of action, Phillips alleges that Carpenter attempted to
“cast a light of incompetence among the staff by altering the on-call escalation phone
number” for the department. On January 21, 2023, the “weekend on-call person [had]
sent an email throughout [the] Kaiser organization … [stating] that the phone line was not
functioning properly.” Carpenter reported that at the request of “the Assistant Manager
who was on call on Friday,” she had changed the number to Phillips’s number.
According to Phillips, this caused all urgent calls over the weekend to be diverted to her
and thereby gave her the appearance of “incompetence, unreliability and a lack of
leadership.”
In her false imprisonment cause of action, Phillips alleges that on or around
February 15, 2023, she gave instructions for a staff member to turn in a cell phone to
information technology (IT), but Carpenter became aggressive and Phillips had to retreat
to her office and close the door. On February 25, 2023, Phillips was aware that an
employee who had left the department had given her cell phone to Carpenter. When
Phillips asked for the phone, Carpenter became aggressive, argumentative, and
threatening, but ultimately handed it over. Someone from IT came to collect the phone
the next day, and Phillips gave him the phone. But when he tried to leave, Carpenter
blocked his exit and questioned why she was not allowed to control the phone. Phillips
stood in the doorway and was also prevented from exiting by Carpenter.

5
 In another incident in March 2023, Carpenter “inserted herself” between the door
of Phillips’s office and the exit to the main corridor, thereby blocking an unnamed
“Resource Manager” from leaving after a meeting with Phillips. Carpenter also blocked
Phillips from moving forward to assist the resource manager. Carpenter then blocked the
exit with a chair so she could interrogate the resource manager further. Carpenter
removed the chair after “several minutes” of “forcing the Resource Manager to listen” to
her.
E. The Pleadings
Phillips filed her original complaint in January 2024. Defendants demurred, and
Phillips filed no opposition. The trial court sustained the demurrer with leave to amend.
Phillips filed her FAC in May 2024. Defendants again demurred. Following a
contested hearing on August 1, 2024, the trial court sustained the demurrer in its entirety
without leave to amend.3 The trial court entered judgment against Phillips in November
2024.
Phillips timely appealed.

3 After the trial court’s order sustaining the demurrer, Phillips filed a motion for
reconsideration. We do not have any ruling on this motion in the appellate record. It is
also unclear from Phillips’s opening brief whether she is actually appealing any ruling
on the motion. It appears that she faults the trial court for “failing to accept evidence”
and “proof,” but evidence and proof are not relevant to a demurrer, which concerns only
the allegations of the operative pleading. (SKF Farms v. Superior Court (1984) 153
Cal.App.3d 902, 905 [“A demurrer tests the pleadings alone and not the evidence or other
extrinsic matters.”].)
Phillips also filed a motion to quash a subpoena after the order sustaining the
demurrer. She argued that the subpoena was improperly served, it was a “fishing
expedition,” it violated her privacy rights, and the court somehow lacked jurisdiction.
The trial court denied the motion without prejudice because no copy of the subpoena had
been included with the motion. The subpoena is also absent from the appellate record,
and it provides no basis for reversal of the judgment, despite some arguments by Phillips
in her opening brief.

6
 II. DISCUSSION
A. Governing Law and Standard of Review
“In reviewing an order sustaining a demurrer, we examine the operative complaint
de novo to determine whether it alleges facts sufficient to state a cause of action under
any legal theory. [Citation.]” (T.H. v. Novartis Pharmaceuticals Corp. (2017) 4 Cal.5th
145, 162 (Novartis).) “ ‘We treat the demurrer as admitting all material facts properly
pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.]’ ”
(Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “Although we review the complaint de
novo, ‘ “[t]he plaintiff has the burden of showing that the facts pleaded are sufficient to
establish every element of the cause of action and overcoming all of the legal grounds on
which the trial court sustained the demurrer, and if the defendant negates any essential
element, we will affirm the order sustaining the demurrer as to the cause of action.
[Citation.] We will affirm if there is any ground on which the demurrer can properly be
sustained, whether or not the trial court relied on proper grounds or the defendant
asserted a proper ground in the trial court proceedings.” ’ [Citation.] It is the trial court’s
ruling we review, not its reasoning or rationale. [Citations.]” (Kahan v. City of
Richmond (2019) 35 Cal.App.5th 721, 730.) “Where the demurrer was sustained without
leave to amend, we consider whether the plaintiff could cure the defect by an amendment.
The plaintiff bears the burden of proving an amendment could cure the defect.
[Citation.]” (Novartis, supra, at p. 162.)
“Defamation is an invasion of the interest in reputation.” (Smith v. Maldonado
(1999) 72 Cal.App.4th 637, 645 (Smith).) “The elements of a defamation claim are (1) a
publication that is (2) false, (3) defamatory, (4) unprivileged, and (5) has a natural
tendency to injure or causes special damage. [Citation.]” (Wong v. Jing (2010) 189
Cal.App.4th 1354, 1369 (Wong).) “Publication need not be to the ‘public’ at large;
communication to a single individual is sufficient.” (Smith, supra, at p. 645.) “It is an
essential element of defamation that the publication be of a false statement of fact rather

7
than opinion.” (Ringler Associates Inc. v. Maryland Casualty Co. (2000) 80 Cal.App.4th
1165, 1181.) “In all cases of alleged defamation . . . the truth of the offensive statements
or communication is a complete defense against civil liability, regardless of bad faith or
malicious purpose.” (Smith, supra, at p. 646.)
“[D]efamation can be of two types, libel or slander.” (Barker v. Fox & Associates
(2015) 240 Cal.App.4th 333, 348.) “Libel is a false and unprivileged publication by
writing,” while “[s]lander is a false and unprivileged publication, orally uttered.” (Civ.
Code, §§ 45, 46.) In California, “ ‘the words constituting an alleged libel must be
specifically identified, if not pleaded verbatim, in the complaint.’ [Citations.]”
(Glassdoor, Inc. v. Superior Court (2017) 9 Cal.App.5th 623, 635 (Glassdoor).)
“ ‘False light is a species of invasion of privacy, based on publicity that places a
plaintiff before the public in a false light that would be highly offensive to a reasonable
person, and where the defendant knew or acted in reckless disregard as to the falsity of
the publicized matter and the false light in which the plaintiff would be placed.’
[Citation.]” (Jackson v. Mayweather (2017) 10 Cal.App.5th 1240, 1264 (Jackson).)
“ ‘A “false light” cause of action is in substance equivalent to a libel claim, and should
meet the same requirements of the libel claim, including proof of malice [where malice is
required for the libel claim].’ [Citation.]” (Medical Marijuana, Inc. v. ProjectCBD.com
(2016) 6 Cal.App.5th 602, 616 (Medical Marijuana).) “Indeed, ‘[w]hen a false light
claim is coupled with a defamation claim, the false light claim is essentially superfluous,
and stands or falls on whether it meets the same requirements as the defamation cause of
action.’ [Citation.]” (Jackson, supra, at p. 1264.)
B. The Requirement to Meet and Confer
As a preliminary matter, Phillips argues that the parties did not meet and confer
prior to the second demurrer, and that this led to her being “unfairly disadvantaged.”
Phillips is correct that Code of Civil Procedure section 430.41 requires a demurring party

8
to meet and confer with the other side before filing a demurrer, and to do so “in person,
by telephone, or by video conference . . . for the purpose of determining whether an
agreement can be reached that would resolve the objections to be raised in the demurrer.”
(Id., § 430.41, subd. (a).)
On the other hand, the statute expressly states that “[a] determination by the court
that the meet and confer process was insufficient shall not be grounds to overrule or
sustain a demurrer.” (Code Civ. Proc., § 430.41, subd. (a)(4); see also Dumas v. Los
Angeles County Bd. of Supervisors (2020) 45 Cal.App.5th 348, 355.) Therefore, any
alleged failure to meet and confer is not a basis for reversal here. Moreover, Defendants’
counsel filed a declaration below stating that he had met and conferred with Phillips by
telephone prior to filing the demurrer. This is sufficient to comply with the statutory
requirement.
C. The Causes of Action Against Young
1. Defamation
As noted above, Phillips alleges that Young sent an email on February 8, 2023 to
the effect that registered nurse care coordinators “save lives.” Defendants argue that this
is insufficient to state a claim for defamation because the statement is protected by the
common interest privilege, it is a statement of opinion, and it is not pleaded with the
requisite specificity.
The trial court found a lack of specificity in the allegation because Phillips did not
adequately quote Young’s email or include the email as an attached exhibit. We agree
with this determination. Phillips does not sufficiently describe the contents of the
February 8 email and quotes only two words: “save lives.” This is insufficient to allege
defamatory language. (Glassdoor, supra, 9 Cal.App.5th at p. 635 [“ ‘the words
constituting an alleged libel must be specifically identified, if not pleaded verbatim, in the
complaint’ ”].) Although Phillips claims that the “email framed the statement as factual

9
and informational,” and that the email “harmed [her] professional reputation,” these are
unsupported conclusions. We accept the factual allegations of an amended complaint as
true, but we do not accept a plaintiff’s factual and legal conclusions. (Aubry v. Tri-City
Hospital Dist. (1992) 2 Cal.4th 962, 967 [on review of a demurrer, a court does not
“assume the truth of contentions, deductions or conclusions of law”].) Without the actual
language of the email, as well as potentially relevant context, we do not have enough
information to determine whether the email can support a defamation cause of action.4
Because of the lack of information, Phillips has not shown that Young’s email is
even about her and that it could therefore be defamatory in nature. One of the basic
elements of a defamation claim is that “the statement on which the claim is based must
specifically refer to, or be ‘of and concerning,’ the plaintiff in some way.” (Blatty v.
New York Times Co. (1986) 42 Cal.3d 1033, 1042.) Here, there is nothing on the face of
the statement that nurse care coordinators “save lives” that refers to, or can be deemed to
be, “of or concerning” Phillips.
Moreover, the statement about saving lives is not provably true or false on its face,
and so it is more accurately categorized as one of opinion rather than of fact. “Because
[a defamatory] statement must contain a provable falsehood, courts distinguish between
statements of fact and statements of opinion for purposes of defamation liability.
Although statements of fact may be actionable as libel, statements of opinion are
constitutionally protected. [Citation.]” (McGarry v. University of San Diego (2007)
154 Cal.App.4th 97, 112.) “To determine whether a statement is actionable fact or
nonactionable opinion, courts use a totality of the circumstances test of whether the
statement in question communicates or implies a provably false statement of fact.

4 The FAC also quotes an earlier, January 15, 2023 email that stated, in part:
“However, we are in the people business. [We do save lives.]” But Phillips does not
allege who wrote this January 15 email and does not assert this particular email as part
of her defamation cause of action against Young.

10
[Citation.]” (Id. at p. 113.) “ ‘Under the totality of the circumstances test, “[f]irst, the
language of the statement is examined. For words to be defamatory, they must be
understood in a defamatory sense . . . . [¶] Next, the context in which the statement was
made must be considered.” ’ [Citation.] Whether challenged statements convey the
requisite factual imputation is ordinarily a question of law for the court. [Citations.]”
(Issa v. Applegate (2019) 31 Cal.App.5th 689, 703 (Issa).) “The ‘pertinent question’ is
whether a ‘reasonable fact finder’ could conclude that the statements ‘as a whole, or any
of its parts, directly made or sufficiently implied a false assertion of defamatory fact that
tended to injure’ plaintiff’s reputation. [Citation.]” (Ibid.)
In this case, while Phillips takes issue with Young’s statement that nurse care
coordinators “save lives,” the fact that she had previously expressed a contrary opinion
during a meeting merely indicates two differences of opinion. The phrase “save lives” is
not so specific and measurable that it can be proved one way or the other, especially in
the context of a healthcare organization such as Kaiser, where certain employees—nurse
care coordinators—may be providing indirect services to patients, and other employees—
doctors and clinical nurses—may be engaged in delivering hands-on care to those
patients. Nothing in Phillips’s arguments comes close to explaining how a reasonable
fact finder could conclude that the “save lives” statement is a “ ‘false assertion of
defamatory fact,’ ” rather than a broad, subjective opinion. (Issa, supra, 31 Cal.App.5th
at p. 703.)
Because we conclude that Phillips has alleged insufficient facts to support a cause
of action for defamation, including alleging a difference of opinion rather than one of
provably false facts, we do not need to address Defendants’ additional argument
regarding the application of the common interest privilege (Civ. Code, § 47, subd. (c))
or Phillips’s counterargument that the privilege is qualified by allegations of malice in
the FAC. Because of the lack of specificity and context regarding the bare “save lives”
statement, we will refrain from evaluating it under the common interest privilege. The

11
privilege is discussed further below with respect to some of the other defamation
allegations.
In addition, as noted above, Phillips alleges that Young engaged in
“insubordination” as part of the first cause of action, but Phillips’s briefs do not address
this allegation, much less explain how it constitutes defamation when it does not involve
any statement allegedly made by Young. We conclude that it does not provide any basis
for maintaining a defamation cause of action.
2. Gross Negligence
Phillips alleges in her second cause of action that “Young negligently and
recklessly advised the Registered Nurse Care Coordinators in her email that they save
lives as part of their role and responsibilities.” This is fundamentally the same as the
allegation in the first cause of action. Courts have rejected attempts to frame libel claims
as causes of action for negligence. (Felton v. Schaeffer (1991) 229 Cal.App.3d 229, 239.)
We do the same. Phillips’s second cause of action does not add anything to her
defamation allegations to show that she can maintain a separate cause of action for
negligence.
D. The Cause of Action Against Buckner
1. Defamation and False Light
After Phillips selected someone other than Young for the position of Resource
Manager, Buckner allegedly made defamatory statements regarding Phillips. The
allegations in the FAC appear to refer to written statements that would be subject to the
specificity requirement for libel: for example, the FAC alleges that Buckner “sent a
Defamatory email . . . expressing her discontent with Plaintiff[’]s selection.” Phillips has
not alleged the contents of this email with the requisite specificity. Nevertheless, the
FAC also alleges that Buckner made statements during two “TEAMS huddle[s]” with
other staff, which Phillips refers to ambiguously as “Defamatory remarks” and

12
“Defamatory Libelous statements.” These included that Phillips had an “ ‘obvious lack
of ability to lead,’ ” a lack of knowledge in hiring, a lack of skill to perform her job, and a
lack of good judgment. Even if we were to interpret these latter statements as having
been expressed orally—and therefore as potentially slanderous rather than libelous—we
would conclude that Phillips has not stated a cause of action against Buckner.
“Slander is ‘a false and unprivileged publication, orally uttered, . . . which [inter
alia] tends directly to injure [a person] in respect to his office, profession, trade or
business, either by imputing to him general disqualification in those respects which the
office or other occupation peculiarly requires, or by imputing something with reference
to his office, profession, trade or business that has a natural tendency to lessen its profits
[or] which, by natural consequence, causes actual damage.’ [Citation.] ‘The question
whether a statement is defamatory can be reached on demurrer as a matter of law.’
[Citation.]” (Gould v. Maryland Sound Industries, Inc. (1995) 31 Cal.App.4th 1137,
1153.) “[S]lander can be charged by alleging the substance of the defamatory statement.
[Citations.]” (Okun v. Superior Court (1981) 29 Cal.3d 442, 458.)
As with Young, Defendants argue that Buckner’s statements constituted non-
actionable opinion rather than provably false fact. But even if we were to conclude that
the foregoing statements were potentially actionable, we would hold that they are
protected under the common interest privilege. “Civil Code section 47, subdivision (c)
codifies the common law privilege of common interest, ‘which protect[s]
communications made in good faith on a subject in which the speaker and hearer shared
an interest or duty.’ ” (Kashian v. Harriman (2002) 98 Cal.App.4th 892, 914.) The
privilege applies to “a communication, without malice, to a person interested therein,
(1) by one who is also interested, or (2) by one who stands in such a relation to the person
interested as to afford a reasonable ground for supposing the motive for the
communication to be innocent, or (3) who is requested by the person interested to give
the information.” (Civ. Code, § 47, subd. (c).) Common interests can include family,

13
business, or organizational interests. (Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d
711, 727; see also King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 440
[“Parties in a business or contractual relationship have the requisite ‘common interest’ for
the privilege to apply.”].) “[The] common interest privilege is not well defined, but it has
been determined to apply to statements by management and coworkers to other
coworkers explaining why an employer disciplined an employee.” (McGrory v. Applied
Signal Technology, Inc. (2013) 212 Cal.App.4th 1510, 1538.)
The “defendant generally bears the initial burden of establishing that the statement
in question was made on a privileged occasion, and thereafter the burden shifts to
plaintiff to establish that the statement was made with malice. [Citation.]” (Taus v.
Loftus (2007) 40 Cal.4th 683, 721.) “ ‘ “The malice necessary to defeat a qualified
privilege is ‘actual malice’ which is established by a showing that the publication was
motivated by hatred or ill will towards the plaintiff or by a showing that the defendant
lacked reasonable ground for belief in the truth of the publication and therefore acted in
reckless disregard of the plaintiff’s rights (citations).” ’ ” (Ibid.)
Here, Phillips alleges that Buckner made her statements to other Kaiser
employees, all of whom would have had an interest in employment issues at their shared
workplace. Complaints about a supervisor, made among coworkers, reflect a shared
interest. We see no material distinction between the application of the common interest
privilege to statements by an employer regarding the discipline of an employee and
statements made by one employee to others at the same business or organization
regarding decisions made by a supervisor.
Phillips argues that the trial court erred in applying the common interest privilege
because it necessarily made a factual finding as to what was in the “best interest of the
business.” This mischaracterizes the trial court’s order, as the trial court made no such
finding. It also misconstrues the law, as there is no requirement that an application of the
privilege requires a determination of what is in the best interest of a business (or family

14
or other common organization or endeavor). Civil Code section 47, subdivision (c)
merely requires a “shared” interest or duty, not a claim to serving the “best” interest.
Phillips also argues that because the FAC includes the allegation that Buckner
acted with “reckless disregard” for whether her statements were false, it establishes
malice, which can operate as an exception to the common interest privilege. This is not
persuasive. The allegations that Buckner acted with reckless disregard or malice are
factual and legal conclusions that we do not accept as true on demurrer. (B & P
Development Corp. v. City of Saratoga (1986) 185 Cal.App.3d 949, 953 [“In evaluating
a demurrer, . . . no . . . credit is given to pleaded contentions or legal conclusions.”].)
Simply using the words “reckless disregard” and “malice” repeatedly in a pleading is not
enough. The pleading must contain factual allegations to support these conclusions, and
the FAC here does not do so.
Finally, Phillips’s false light claim based on a February 2023 cease-and-desist
email from the nurse’s union suffers from the same infirmities as the defamation claim:
we do not have the cease-and-desist email, and no actual language is quoted from the
email. Even the characterization that Phillips read the “Princip[les] of Responsibility” to
Buckner “like a child” is a paraphrase rather than a quotation. Because a false light cause
of action “ ‘should meet the same requirements of [a] libel claim’ ” (Medical Marijuana,
supra, 6 Cal.App.5th at p. 616), the claim has not been pled with the requisite specificity.
Moreover, the characterization that someone read a document to someone else “like a
child” is a quintessential statement of opinion, not provably false in any way.
For these reasons, Phillips cannot maintain her defamation/false light cause of
action against Buckner.

15
E. The Causes of Action Against Shaikh
1. Defamation
Phillips’s defamation claims against Shaikh are based on several emails involving
Phillips’s supervisors in January 2023: (1) a January 15 email from Shaikh to Phillips’s
supervisor regarding an “assignment incident” in which Shaikh “point[ed] out that other
Registered Nurse leaders are competent, and [Phillips] is incompetent”;5 (2) a January 15
email from Shaikh to the “department leader” stating she would be late for work and that
she had no person with which to address her concerns, which Phillips interpreted as
“signal[ing] to the COO Plaintiff Supervisor that [Phillips] did not possess the leadership
skills or knowledge to address the department issues”; and (3) a January 20 email from
Shaikh to the department nursing leadership and other staff, stating that requiring care
coordinators to document participation in multidisciplinary rounds did not seem
appropriate.6
As previously discussed, to allege libel adequately, a plaintiff must specifically
identify the words constituting the libel. (Glassdoor, supra, 9 Cal.App.5th at p. 635.)
Phillips did not include the text from any of the foregoing emails, let alone the specific
language constituting the alleged libel. We are left only with Phillips’s summary and
interpretation of the emails and her conclusion that they were defamatory in nature. This
is insufficient. As noted above, we cannot accept a plaintiff’s legal conclusion on a
demurrer, but that is all we have.
Further, to the extent that Shaikh apparently made comments regarding Phillips’s
skills or competency in the course of her employment, such comments would be
protected by the common interest privilege. The emails summarized above were sent to

5 Neither the FAC nor Phillips’s opening brief explains what an “assignment
incident” entails.
6 Phillips also cites a January 23 email in the FAC, but that email was written by
her supervisor, not Shaikh.

16
other Kaiser employees, including Phillips’s supervisor, and they addressed concerns
regarding workplace issues. These are communications in which the participants shared
a common interest, and so it was Phillips’s burden to allege that Shaikh acted with
malice.
In attempting to show malice, Phillips alleges that Shaikh had an “ulterior motive”
in connection with her January 20 email protesting the documentation of
multidisciplinary rounds, and that motive was to “cast doubt on Plaintiff[’s] capabilities.”
Phillips further alleges that by emailing Phillips’s supervisor without first talking to
Young (Shaikh’s supervisor), Shaikh demonstrated an intent to destroy Phillips’s
reputation. These allegations are insufficient to show malice. When evaluating the
common interest privilege, “malice is not inferred from the communication.” (Civ. Code,
§ 48.) Phillips alleges nothing more than the existence of the January 2023 emails and
the factual conclusion that Shaikh had an “ulterior motive.” This does not state a claim
for defamation.
2. Defamation/Negligence
In her second defamation cause of action against Shaikh (the fifth cause of action),
Phillips alleges that another January 2023 email—sent by Shaikh on January 30 to
Phillips’s supervisors—was defamatory against Phillips because Shaikh claimed that she
and other staff were not aware of how to participate in the organization’s “preceptor
program.” As noted above, the regional supervisor allegedly expressed disappointment
with Phillips for not distributing that information to her subordinates.
Again, Phillips has not alleged the actual words of Shaikh’s email (or the
supervisor’s response). She therefore has not sufficiently alleged a cause of action for
defamation based on the January 30 email. (See Glassdoor, supra, 9 Cal.App.5th at
p. 635.) Similarly, Phillips’s description of the email brings it squarely within the scope
of the common interest privilege, and the FAC again does not adequately allege malice.

17
F. The Causes of Action Against Carpenter
1. Defamation
As noted above, Phillips alleges that on Friday, January 21, 2023 Carpenter
changed the department’s “on-call escalation phone number” for the person “on call”
for the weekend. Carpenter later reported she had changed the number to that of Phillips,
which Phillips now claims was defamation because it “cast[] the appearance of
incompetence, unreliability and a lack of leadership by [Phillips] to [the] organization
and the public it serves.”
Carpenter correctly points out that one of the fundamental elements of a
defamation cause of action is a false publication. (Wong, supra, 189 Cal.App.4th at
p. 1369.) In her FAC, Phillips alleges no false statement, much less any publication of
that statement, by Carpenter. She alleges only that Carpenter changed a phone number
and then told others she had done so. This conduct does not constitute a basis for a
defamation cause of action.
2. False Imprisonment
The tort of false imprisonment “consists of the ‘ “nonconsensual, intentional
confinement of a person, without lawful privilege, for an appreciable length of time,
however short.” ’ [Citation.] That length of time can be as brief as 15 minutes.
[Citation.] Restraint may be effectuated by means of physical force [citation], threat of
force or of arrest [citation], confinement by physical barriers [citation], or by means of
any other form of unreasonable duress. [Citation.]” (Fermino v. Fedco, Inc. (1994)
7 Cal.4th 701, 715 (Fermino).) “The only mental state required to be shown to prove
false imprisonment is the intent to confine, or to create a similar intrusion. [Citations.]
Thus, the intent element of false imprisonment does not entail an intent or motive to
cause harm; indeed false imprisonments often appear to arise from initially legitimate
motives. [Citation.]” (Id. at p. 716.)

18
 As summarized above, Phillips argues that she was falsely imprisoned three times
by Carpenter—twice in February 2023 and once in March 2023. The trial court
determined that the FAC was “devoid of sufficient allegations” to allege false
imprisonment, including “no allegations that anyone intended to confine Plaintiff.”
While the trial court’s characterization of the first February 2023 incident may
have been accurate, it does not properly describe the allegations of the second and third
incidents. Although the FAC makes it clear that the focus is on Carpenter’s alleged
efforts to block the movements of an IT staff member (in late February 2023) and a
resource manager (in March 2023), the FAC also alleges that Carpenter blocked Phillips
by standing in a doorway in late February and using both her self and a chair to block
movements in March 2023. The FAC alleges that the March 2023 incident lasted
“several minutes.”
Defendants argue that Phillips’s false imprisonment cause of action cannot stand
because Phillips did not allege facts showing how long Carpenter confined her. In
addition, they contend that Phillips did not adequately allege that Carpenter intended to
confine Phillips. Neither point has merit.
First, Defendants cite no authority for the proposition that a specific length of
time must be alleged to state a cause of action for false imprisonment. To withstand a
demurrer, Phillips need only allege the ultimate facts, not any evidentiary facts.
(Logan v. Southern Cal. Rapid Transit Dist. (1982) 136 Cal.App.3d 116, 126.) In
addition, the case law establishes that there is no minimum length of time for the cause
of action. Although the California Supreme Court in Fermino cited 15 minutes as an
example, it did not hold that such a duration was a minimum. Rather, the Court
expressly affirmed that the duration could be any ‘ “ “appreciable length of time,
however short.” ’ ” (Fermino, supra, 7 Cal.4th at p. 715.) The Merriam-Webster
Dictionary defines “appreciable” as “capable of being perceived or measured.”
(Merriam-Webster Dict. Online (2026)

19
webster.com/dictionary/appreciable> [as of September 10, 2026], archived at:
https://perma.cc/3VPK-LLX4.) Therefore, an “appreciable” length of time would be one
that Phillips, Carpenter, the unnamed IT staff member, or the unnamed resource manager
could have perceived. (See also Rest.3d Torts: Intentional Torts to Persons, § 8, com. c
[“The temporal scope of confinement can be very brief. If D grabs P by the arm against
P’s will, refusing to let P go, that is sufficient for false imprisonment, even if P breaks
free in less than a minute.”].) Here, the FAC alleges that Carpenter blocked the path for
“several minutes.” Construing the allegation in Phillips’s favor as we must on demurrer,
that is more than sufficient.
With regard to whether Carpenter intended to confine Phillips as opposed to
someone else, that question is not relevant. The elements of the tort require only an
intent to confine “ ‘a person.’ ” (Fermino, supra, 7 Cal.4th at p. 716.) Whether
Carpenter intended to confine the IT staff member, the resource manager, Phillips, or all
three of them is not determinative. “The doctrine of transferred intent has long been
recognized to apply to the tort of false imprisonment. [Citations.] Under this doctrine
the intention to confine any person is a sufficient intent to render one liable to the person
actually confined. It is immaterial that the actor did not know the identity of the person
he intended to confine; nor does it matter that the actor intended to affect some person
other than the one actually confined. [Citation.]” (Du Lac v. Perma Trans Products, Inc.
(1980) 103 Cal.App.3d 937, 944; see also Rest.2d Torts, § 43 [“If an act done with the
intention of affecting a third person imposes a confinement upon another, the actor is
subject to liability to such other as fully as though it were intended so to affect him.”];
Rest.3d Torts: Intentional Torts to Persons, § 12, subd. (a) [“[T]he intent requirement for
the tort is satisfied if the actor intends to cause the relevant tortious consequence to a
third party, rather than to the plaintiff, but the actor’s conduct causes that consequence to
the plaintiff.”].)

20
 Defendants also argue that the alleged conduct occurred during workplace
communications and is therefore protected under Civil Code section 47. In support of
this argument, Defendants cite Hunsucker v. Sunnyvale Hilton Inn (1994) 23 Cal.App.4th
1498 (Hunsucker), which involved false imprisonment allegations against a hotel
manager, even though that hotel manager did not himself block anyone’s movements.
Rather, the manager called the police after housekeeping had reported seeing someone in
a room “brandishing” a gun, and the police detained the family staying in the room. (Id.
at p. 1500.) It turned out there was only a plastic toy gun. (Ibid.) On appeal from a
summary judgment granted in favor of the hotel, the Court of Appeal affirmed, holding
that the manager’s call to the police was privileged, and so no liability could result either
for the communication or the subsequent conduct of the police in detaining the owner of
the purported gun. (Id. at pp. 1504–1505.)
Hunsucker has no application to the facts here. Carpenter’s conduct involved
more than workplace “communications”: she allegedly used either her body or a chair to
block the movements of IT personnel, a resource manager, and Phillips. We take no
position as to whether any communications by Carpenter would have been privileged in
these circumstances. We conclude only that her conduct in confining Phillips was not
protected under Civil Code section 47.
For these reasons, we conclude that the trial court erred in sustaining the demurrer
to the false imprisonment cause of action.
G. Leave to Amend the First Amended Complaint
“We review for abuse of discretion the trial court’s denial of leave to amend.
[Citation.] We determine whether there is a reasonable probability that the defect could
be cured by amendment. [Citation.]” (Roe v. Hesperia Unified School Dist. (2022)
85 Cal.App.5th 13, 24.)

21
 Phillips contends that the trial court violated her civil rights and procedural due
process rights by making an “on-the-spot demand” of how Phillips would amend her
complaint, and determining that she was “unable to provide sufficient argument at an
impromptu request to present how she would amend her complaint.” She argues that
“[t]he trial court required [her] to lay out her theories, legal grounds, statement of issues
or some other something/argument for her petition in front of the court and Defendants
on the spot without any notice that she would be required to do so.”7
Phillips does not establish any due process violation by the trial court. So long as
the parties are afforded proper notice and a hearing, there is no due process violation in
the sustaining of a demurrer without leave to amend. (See Vaughn v. Board of Police
Com’rs (1943) 59 Cal.App.2d 771, 780–781.) Phillips does not claim that she was
denied notice of the demurrer and a hearing. Indeed, she was afforded an opportunity to
file a written opposition to the demurrer, and even though her 35-page opposition was
20 pages over the limit (Cal. Rules of Court, rule 3.1113(d)), the trial court exercised its
discretion to “consider the entire opposition.” Moreover, it is well established that on a
demurrer, it is the appellant’s “burden to identify specific facts showing the complaint
can be amended to state a viable cause of action. [Citation.]” (Minnick v. Automotive
Creations, Inc. (2017) 13 Cal.App.5th 1000, 1004.) Phillips does not assert that she
provided any such facts in the trial court, and based on our own review, it does not appear
that she addressed the possibility of amending the FAC anywhere in her 35-page
opposition brief. Although we have determined that the defamation allegations are
lacking in essential details, we also do not discern how the allegations could be
supplemented to overcome the application of the common interest privilege or the

7 We recognize that Phillips is self-represented. Nevertheless, “self-represented
litigants are held to the same standard of knowledge of law and procedure as an
attorney.” (Simms v. Bear Valley Community Healthcare Dist. (2022) 80 Cal.App.5th
391, 406, fn. 5.)

22
requirement that the causes of action allege the publication of provably false facts rather
than non-actionable opinions.
The trial court did not err in denying leave to amend the defamation causes of
action.

III. DISPOSITION
The judgment is reversed. The matter is remanded to the trial court with directions
to vacate its order sustaining the demurrer and to enter a new order overruling the
demurrer as to the false imprisonment cause of action, and sustaining the demurrer
without leave to amend as to all other causes of action. Each party shall bear its costs on
appeal in the interests of justice. (Cal. Rules of Court, rule 8.278(a)(5).)

23
 CHUNG, J.

WE CONCUR:

WILSON, ACTING P. J.

BROMBERG, J.

Phillips v. Young et al.
H053018


Judge of the Santa Clara County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.


California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, B347475

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No.
XCNBA156760)
v.

RUBEN ALLEN FLOWERS,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los
Angeles County, Ronald S. Coen, Judge. Reversed and
remanded.
William L. Heyman, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Stephanie C. Brenan and Nancy Lii Ladner,
Deputy Attorneys General, for Plaintiff and Respondent.
 Ruben Allen Flowers appeals the trial court’s denial of his
motion pursuant to People v. Franklin (2016) 63 Cal.4th 261
(Franklin), for a hearing to preserve youth-related evidence for
use in a future parole hearing. Flowers contends that the trial
court abused its discretion and asks that this court remand the
matter and instruct the trial court to grant a Franklin hearing.
The People agree that Flowers’s motion was sufficient to initiate
Franklin proceedings and that Flowers was entitled to describe to
the court the evidence he sought to introduce at a Franklin
hearing. Contrary to Flowers, however, the People assert that a
limited remand for the court to reconsider Flowers’s motion is the
appropriate course, rather than an instruction to the trial court
to grant the motion. We agree with the People. We therefore
reverse the trial court’s order denying Flowers’s motion and
remand the matter for further proceedings consistent with this
opinion.

PROCEDURAL HISTORY

In 1999, a jury found Flowers guilty of attempted murder
(Pen. Code,1 §§ 187, subd. (a) & 664, count 1) and assault with a
firearm (§ 245, subd. (a)(2), count 2). The jury found that the
attempted murder was willful, deliberate, and premeditated.
(§ 1192.7, subd. (c).) The jury further found that, as to both
counts, Flowers personally used a firearm (§ 12022.5, subd. (a)),
and inflicted great bodily injury (§ 12022.7, subd. (a)). Flowers
was 23 years old when he committed the crimes.

1 All further statutory references are to the Penal Code
unless otherwise indicated.

2
 The trial court sentenced Flowers to life in prison with the
possibility of parole on the murder count, plus three years for the
personal firearm use enhancement and three years for the great
bodily injury enhancement. The court imposed and stayed the
sentence in the assault with a firearm count.
The Court of Appeal affirmed the judgment and remittitur
issued in 2000.2
On June 17, 2025, Flowers in pro se filed a motion for a
Franklin hearing to preserve youth-related evidence for
consideration at future parole hearings. Flowers specifically
requested a Franklin hearing pursuant to sections 1203.1 and
4801, subdivision (c). Flowers stated in the motion that he was
25 years of age or younger at the time he committed the offenses.
Flowers cited In re Cook (2019) 7 Cal.5th 439, 452 (Cook) and
section 1203.1 as extending the opportunity to preserve youth-
related evidence to defendants after final judgment, and Flowers
noted that the proper procedure was to file the motion under the
original caption and case number and cite to Cook and section
1203.1 as he had done.
The court denied Flowers’s motion in a minute order on the
same day. The court recounted that Flowers committed the
offenses on September 20, 1997, and the remittitur issued on
September 1, 2000. Flowers became parole eligible in June 2019
and had had at least four parole hearings at which parole was

2 The People request in a footnote in their respondent’s
brief that this court take judicial notice of the opinion on direct
appeal. The request is denied: the footnote request does not
comply with California Rules of Court, rule 8.252. In particular,
the People do not provide this court with a copy of the prior
opinion, and this court does not have ready access to a copy in
court records, given that the opinion issued 26 years ago.

3
denied since that time. Flowers’s next scheduled parole hearing
was August 28, 2025.
The court ruled that Flowers failed to include in the motion
the date of his future parole hearing and also failed to state that
he had already had parole hearings, as Cook requires. The court
noted that the purpose of a Franklin hearing was to allow the
defendant to assemble evidence at or near the time of the
juvenile’s offense rather than decades later when memories have
faded, records may have been lost or destroyed, or family or
community members may have relocated or passed away.
Pursuant to Cook, a court could consider whether a Franklin
proceeding was likely to produce fruitful evidence or whether the
defendant has had parole hearings, or whether there has been a
significant passage of time.3 The court cited In re Brownlee
(2020) 50 Cal.App.5th 720 (Brownlee), which held that a
defendant was not entitled to a youthful offender parole hearing
or a Franklin hearing where the defendant already had two
parole hearings and had a third parole hearing scheduled in the
near future. The court likened Flowers’s situation to that of the
defendant in Brownlee because, like Brownlee, Flowers was
already parole eligible. The court ruled that Flowers had not
shown he was entitled to a Franklin hearing and denied the
motion.
Flowers timely appealed.

3 Although the court made this statement it did not
explicitly find that a Franklin hearing was unlikely to produce
fruitful evidence.

4
 DISCUSSION

A. Franklin Proceedings

Section 3051, subdivision (a)(1), provides for a “youth
offender parole hearing” by the Board of Parole Hearings “for the
purpose of reviewing the parole suitability of any prisoner who
was 25 years of age or younger . . . at the time of [his or her]
controlling offense.” Where, as here, the defendant is convicted of
a controlling offense “when the person was 25 years of age or
younger and for which the sentence is a life term of less than 25
years to life[, the defendant] shall be eligible for release on parole
at a youth offender parole hearing during the person’s 20th year
of incarceration. The youth parole eligible date for a person
eligible for a youth offender parole hearing under this paragraph
shall be the first day of the person’s 20th year of incarceration.”
(Id., subd. (b)(2).) “In assessing growth and maturity,
psychological evaluations and risk assessment instruments, if
used by the board, shall be administered by licensed
psychologists employed by the board and shall take into
consideration the diminished culpability of youth as compared to
that of adults, the hallmark features of youth, and any
subsequent growth and increased maturity of the individual.”
(Id., subd. (f)(1).) In addition, “[f]amily members, friends, school
personnel, faith leaders, and representatives from community-
based organizations with knowledge about the individual before
the crime or the individual’s growth and maturity since the time
of the crime may submit statements for review by the board.”
(Id., subd. (f)(2).)

5
 Section 4801, subdivision (c), provides, “When a prisoner
committed his or her controlling offense, as defined in subdivision
(a) of Section 3051, when he or she was 25 years of age or
younger, the board, in reviewing a prisoner’s suitability for parole
pursuant to Section 3041.5, shall give great weight to the
diminished culpability of youth as compared to adults, the
hallmark features of youth, and any subsequent growth and
increased maturity of the prisoner in accordance with relevant
case law.”
In Franklin, supra, 63 Cal.4th at pages 283 to 284, the
Supreme Court held a defendant who did not have an
opportunity to make a record of mitigating “youth-related factors”
relevant to a later youth offender parole hearing should have an
opportunity to make a record on remand. The court explained
that sections 3051 and 4801 “contemplate that information
regarding the juvenile offender’s characteristics and
circumstances at the time of the offense will be available at a
youth offender parole hearing to facilitate the Board’s
consideration. . . . Assembling such statements ‘about the
individual before the crime’ is typically a task more easily done at
or near the time of the juvenile’s offense rather than decades
later when memories have faded, records may have been lost or
destroyed, or family or community members may have relocated
or passed away.” (Id., at pp. 283–284.)
In Franklin, the Supreme Court remanded the matter to
determine whether the defendant “was afforded sufficient
opportunity to make a record of information relevant to his
eventual youth offender parole hearing[,]” and if not, to allow the
defendant to “place on the record any documents, evaluations, or
testimony (subject to cross-examination) that may be relevant at

6
his eventual youth offender parole hearing, and the prosecution
likewise may put on the record any evidence that demonstrates
the juvenile offender’s culpability or cognitive maturity, or
otherwise bears on the influence of youth-related factors.”
(Franklin, supra, 63 Cal.4th at p. 284.)
Three years after Franklin, the Supreme Court in Cook,
supra, 7 Cal.5th at page 458, held that a juvenile offender with a
final judgment could move for a postjudgment proceeding under
section 1203.01,4 to present evidence of youth-related factors.
The Cook court reasoned that “recognizing the court’s authority
under section 1203.01 to gather youth offender evidence
effectuates sections 3051 and 4801.” (Cook, at p. 453.) The court
continued, “For inmates like Cook who seek to preserve evidence
following a final judgment, the proper avenue is to file a motion
in superior court under the original caption and case number,
citing the authority of section 1203.01 and today’s decision,” that
“establish[es] the inmate’s entitlement to a youth offender parole
hearing” and “indicate[s] when such hearing is anticipated to
take place, or if one or more hearings have already occurred.”

4 Section 1203.01, subdivision (a), provides in part,
“Immediately after judgment has been pronounced, the judge and
the district attorney, respectively, may cause to be filed with the
clerk of the court a brief statement of their views respecting the
person convicted or sentenced and the crime committed, together
with any reports the probation officer may have filed relative to
the prisoner. The judge and district attorney shall cause those
statements to be filed if no probation officer’s report has been
filed. The attorney for the defendant and the law enforcement
agency that investigated the case may likewise file with the clerk
of the court statements of their views respecting the defendant
and the crime of which they were convicted.”

7
(Id. at p. 458.) Further, “consistent with Franklin and the court’s
inherent authority, the offender shall have the opportunity to
‘place on the record any documents, evaluations, or testimony
(subject to cross-examination) that may be relevant at his
eventual youth offender parole hearing, and the prosecution
likewise may put on the record any evidence that demonstrates
the juvenile offender’s culpability or cognitive maturity, or
otherwise bears on the influence of youth-related
factors.’ [Citation.]” (Id. at pp. 458–459.)
The Cook court observed: “Some offenders who file these
postjudgment motions in the trial court may have spent a decade
or more in prison. Some may have even come before the Board
for a youth offender parole hearing. The court may consider
whether a Franklin proceeding is likely to produce fruitful
evidence considering such factors as the passage of time and
whether the offender has already benefitted from the factfinding
procedures set forth in section 3051, subdivision (f)(1) and (2)
with the assistance of appointed counsel (§ 3041.7; Cal. Code
Regs., tit. 15, § 2256, subd. (c)). Additionally, some offenders may
choose not to present certain forms of evidence, such as live
testimony, or to forgo a Franklin proceeding altogether.” (Cook,
supra, 7 Cal.5th at p. 459.)
We review the trial court’s denial of a Franklin proceeding
for abuse of discretion. (See People v. Benzler (2021) 72
Cal.App.5th 743, 749 (Benzler).) “[I]n deciding whether the trial
court has abused its discretion we are required to ‘ask whether
the trial court’s findings of fact are supported by substantial
evidence, whether its rulings of law are correct, and whether its
application of the law to the facts was neither arbitrary nor
capricious. [Citation.] Critical to the resolution of this case, we

8
note that when a trial court’s decision rests on an error of law,
that decision is an abuse of discretion.’ [Citation.]” (Ibid.)

B. Analysis

We agree with the parties that Flowers’s motion contained
sufficient information. In People v. Howard (2021) 74
Cal.App.5th 141, 150, the Court of Appeal, Fourth District,
Division Three observed that “[n]othing in Cook indicates the
motion must describe with precision the evidence the offender
seeks to introduce. Moreover, as this court recently explained,
‘[t]he court’s commentary [in Cook] about what a motion should
include is not the same as creating mandatory pleading
requirements.’ ([People v.] Lipptrapp [(2021)] 59 Cal.App.5th
[886,] 896 (Lipptrapp).) [Courts have] found there are no
mandatory pleading requirements for a Franklin motion, and the
required showing to initiate the process for a Franklin proceeding
is minimal: ‘[d]ue to the limited resources generally available to
inmates, the Cook court reasonably envisioned a simple pleading
mechanism to get the process started.’ (Ibid., italics added.)”
In Lipptrapp, supra, 59 Cal.App.5th at page 889, the
defendant filed a motion for Franklin proceedings nearly 25 years
after committing the offenses at issue. The Court of Appeal held
that the defendant’s motion was sufficient to initiate a Franklin
proceeding because it (1) “include[d] the relevant criminal case
information and pertinent legal authority. . . [and therefore]
clearly notified about the basis for the motion as well as the cases
giving the trial court authority to conduct evidence preservation
proceedings[;]” (2) established the defendant’s eligibility for a
section 3051 youth offender parole hearing by including his age

9
at the time of the offense and the sentence imposed; and (3)
“discussed legal principles concerning youthful offenders, the
nature and purpose of youth offender parole hearings, the goal of
section 3051, and what evidence was relevant for a Franklin
proceeding.” (Id. at pp. 893–894.)
Flowers’s motion contained these same elements. Flowers
filed the motion in superior court under the original caption and
case number. He cited to the relevant authority, including
Franklin, Cook, and sections 3051, 4801, and 1203.01. Flowers
established that he was under the age of 25 at the time he
committed the offenses and would have been eligible for a youth
offender parole hearing at the time of his conviction if youth
offender parole hearings had been available. Flowers discussed
the relevance of youthful factors to culpability, and in particular,
the impact of the combination of racial and youthful factors on
criminal penalties.
The trial court faulted Flowers for failing to note that he
previously had parole hearings and also had an upcoming parole
hearing. The court denied Flowers’s request based on Brownlee,
supra, 50 Cal.App.5th 720, wherein the appellate court held that
the defendant was ineligible for a youth parole hearing because
he had already had several parole hearings and had another
parole hearing scheduled in the near future.
Brownlee is distinguishable. There, the court denied the
defendant a youth parole hearing. The Brownlee court did not
hold that the defendant had no right to place youth-related
evidence on the record for other future parole hearings. To the
contrary, Brownlee stated: “Put simply, within this statutory
framework, if a prisoner’s first parole hearing is not a youth
offender parole hearing, then the prisoner does not receive a

10
youth offender parole hearing. Those prisoners are, however, still
entitled to have ‘the board, in reviewing [the] prisoner’s
suitability for parole pursuant to [s]ection 3041.5, . . . give great
weight to the diminished culpability of juveniles as compared to
adults, the hallmark features of youth, and any subsequent
growth and increased maturity of the prisoner in accordance with
relevant case law.’ (§ 4801, subd. (c).) This is true because
section 4801, subdivision (c) is not limited to youth offender
parole hearings—it applies to all parole hearings.” (Id. at p. 725.)
Cook made clear that neither the passage of significant
time, nor the fact that the defendant has had prior parole
hearings is a bar to the court granting a Franklin hearing.
(Cook, supra, 7 Cal.5th at p. 459 [stating that some defendants
who seek a Franklin hearing “may have spent a decade or more
in prison. Some may have even come before the Board for a
youth offender parole hearing”]; see also Benzler, supra, 72
Cal.App.5th at p. 751 [“The Legislature intended that the
benefits of youth offender parole hearings be available even to
those prisoners with decades-old convictions”].) That a defendant
has been in prison for a significant period of time and has had
prior parole hearings may weigh against granting the defendant
a Franklin hearing even if they do not bar granting a hearing
altogether. (Cook, supra, 7 Cal.5th at p. 459.) However, here
there is no evidence that Flowers has had the opportunity to put
youth-related evidence on the record for past or future parole
hearings or that the specific evidence he seeks to present is
evidence that he has presented at a past parole hearing. (See
Benzler, supra, 72 Cal.App.5th at pp. 750–751 [whether a
defendant has had the opportunity to present youth-related
evidence is relevant to determining whether a Franklin hearing

11
is warranted].) Under the circumstances, we conclude that the
trial court erred by denying Flowers’s motion absent evidence
that Flowers had past opportunities to present youth-related
evidence and absent information regarding the substance of the
evidence that Flowers intended to present.
Finally, although the superior court erred in denying
Flowers’s motion for the reasons given, the court has discretion to
set the parameters of the proceeding going forward. “[T]he trial
court may ‘exercise its discretion to conduct this process
efficiently, ensuring that the information introduced is relevant,
noncumulative, and otherwise in accord with the governing rules,
statutes, and regulations.’ [Citation.] The court may, for
example, require an offer of proof regarding the evidence
[Flowers] seeks to present, so that it can determine whether such
evidence is relevant to youth-related factors and meaningfully
adds to the already available record. It may also determine
whether testimony is ‘appropriate’ (Franklin, supra, 63 Cal.4th at
p. 284), or if other types of evidentiary submissions will suffice.”
(Cook, supra, 7 Cal.5th at p. 459.) We therefore decline to direct
the trial court to grant Flowers’s motion. We instead remand the
matter to permit the court to conduct further proceedings
consistent with this opinion.

12
 DISPOSITION

We reverse the trial court’s order and remand the matter
for further proceedings consistent with this opinion. If, upon
remand, the trial court opts to require an offer of proof, the court
shall first appoint counsel to assist Flowers.
NOT TO BE PUBLISHED.

MOOR, J.

WE CONCUR:

HOFFSTADT, P. J.

BAKER, J.

13


California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, B351807

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. VA097961)
v.

RAMON ROBLES,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los
Angeles County, Debra Cole-Hall, Judge. Affirmed.
James R. Bostwick, Jr., under appointment by the Court of
Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗
 Ramon Robles was 16 when he shot two people. A jury
convicted him of two counts of premeditated attempted murder.
In 2009, the court sentenced him to life with the possibility of
parole plus 25 years to life. In 2024, Robles petitioned to recall
that sentence under Penal Code section 1170, subdivision (d)(1)
(section 1170(d)(1)), and People v. Heard (2022) 83 Cal.App.5th
608 (Heard), arguing his sentence is the functional equivalent of
life without the possibility of parole.1 The superior court found it
is not and denied the petition. Appointed counsel filed a brief
raising no issues under People v. Delgadillo (2022) 14 Cal.5th 216
(Delgadillo). Robles filed a supplemental letter. We find no error
and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Robles was born in October 1988. The charged offenses
occurred on March 13 and May 15, 2005. Robles was 16 years old
on both dates.
The information alleged as to both counts of attempted
murder that the offenses were willful, deliberate, and
premeditated. A jury convicted Robles of both counts (§§ 664,
187, subd. (a)) and found true as to each that he personally and
intentionally discharged a firearm causing great bodily injury
(§ 12022.53, subd. (d)). Two counts of assault with a firearm were
dismissed. In January 2009, the court imposed life with the
possibility of parole on each attempted murder count, to run
concurrently, and 25 years to life on each firearm enhancement,
consecutive to the life terms and concurrent with one another.
An inmate serving a life sentence must serve at least seven
calendar years before parole eligibility. (§ 3046, subd. (a)(1).)

1 All further statutory references are to the Penal Code.

2
Under the sentence as imposed, the minimum term before parole
eligibility was therefore 32 years.
In December 2024, Robles petitioned in propria persona for
recall and resentencing. He alleged he was 16 at the time of his
crimes, that he had been incarcerated for at least 15 years, that
he had no disqualifying juvenile adjudication, and that he had
shown rehabilitation. The court appointed counsel. Counsel filed
a supplemental brief arguing that a 32-year minimum term is the
functional equivalent of life without parole because Robles would
be 48 years old before any potential release.
At the hearing on January 12, 2026, counsel acknowledged
a split of authority and asked the court to find the sentence
functionally equivalent. The People responded that Department
of Corrections and Rehabilitation records show a parole eligibility
date of November 2028. The court found the sentence is not the
equivalent of life without the possibility of parole and denied the
petition. Robles filed a timely notice of appeal.
Appointed appellate counsel filed a brief on June 23, 2026,
stating he found no arguable issues. On June 24, 2026, the clerk
notified Robles of his right to file a supplemental brief or letter.
Robles filed a letter on July 17, 2026.
DISCUSSION
I. The Order Denying the Petition Is Appealable
Counsel asks us to decide whether the order is appealable
under section 1237, subdivision (b). It is. Section 1170(d)(1)
authorizes a defendant to petition the sentencing court, and an
order denying that petition forecloses a reduced sentence. That is
an order made after judgment affecting substantial rights, and
its appealability turns on the nature of the claim and the court’s

3
ruling on it rather than on whether the claim has merit. (Teal v.
Superior Court (2014) 60 Cal.4th 595, 600–601.)
II. We Decline to Conduct an Independent Review of
the Record
Because this appeal is from an order denying
postconviction relief, Robles has no constitutional right to
appointed counsel, and we are not required to review the record
independently. (Delgadillo, supra, 14 Cal.5th at pp. 226–227,
231–232.) Robles filed a supplemental letter. We therefore
evaluate the arguments it presents and issue this opinion. (Id. at
p. 232.) We do not undertake an independent review of the
record.
III. Robles is Not Entitled to Relief Under
Section 1170(d)(1)
Section 1170(d)(1) permits a petition for recall and
resentencing by a defendant “who was under 18 years of age at
the time of the commission of the offense for which the defendant
was sentenced to imprisonment for life without the possibility of
parole” and who “has been incarcerated for at least 15 years.”
Robles was not sentenced to life without parole. Nevertheless,
Robles contends he is eligible for relief pursuant to
section 1170(d)(1) because his sentence of 32 years to life is the
functional equivalent of life without parole. Robles relies on
Heard and People v. Sorto (2024) 104 Cal.App.5th 435 (Sorto), to
support his argument.
In Heard, the court concluded that an aggregate sentence of
103 years to life imposed on a juvenile offender was the
functional equivalent of life without parole. (Heard, supra, 83
Cal.App.5th at p. 614.) The Heard court held the defendant was
therefore similarly situated to juvenile offenders sentenced to life

4
without parole who are eligible for relief under section 1170(d)(1).
(Heard, at pp. 628–631.) The court concluded that denying the
defendant the opportunity to petition for relief under
section 1170(d)(1) violated his equal protection rights. (Heard, at
pp. 633–634; see also Sorto, supra, 104 Cal.App.5th at p. 440
[sentence of 10 years plus 130 years to life].)
There is now a split of authority in the Courts of Appeal as
to whether denying eligibility for section 1170(d)(1) relief to a
juvenile offender sentenced to a term that is lengthy but does not
exceed the offender’s natural life expectancy violates equal
protection guarantees, and whether a juvenile offender serving a
lengthy sentence who is eligible for youth offender parole is
serving a sentence that is the functional equivalent of life without
parole within the meaning of section 1170(d)(1). The California
Supreme Court will have the final say on these issues. (See, e.g.,
People v. Garner (2026) 121 Cal.App.5th 779, petn. for review
pending, petn. filed Aug. 10, 2026; People v. Isayev (2025) 113
Cal.App.5th 1117, review granted Nov. 12, 2025, S292860; People
v. Thompson (2025) 112 Cal.App.5th 1058, review granted
Sept. 24, 2025, S292540; People v. Ortega (2025) 111 Cal.App.5th
1252, review granted Sept. 17, 2025, S292070; People v. Munoz
(2025) 110 Cal.App.5th 499, review granted June 25, 2025,
S290828; People v. Cabrera (2025) 111 Cal.App.5th 650.)
Yet, no court has concluded that a juvenile offender serving
a sentence of 32 years to life, or any sentence of similar length, is
eligible for section 1170(d)(1) relief, under any theory. (See
People v. Olmos (2025) 109 Cal.App.5th 580, 583 [33 years to life
is not the functional equivalent of life without parole for
§ 1170(d)(1) purposes].) While in People v. Contreras (2018) 4
Cal.5th 349 (Contreras), the California Supreme Court concluded

5
that a sentence of 50 years to life is the functional equivalent of
life without parole when imposed on a juvenile nonhomicide
offender for Eighth Amendment purposes, no California court has
reached that conclusion as to a sentence similar to Robles’s,
which is far shorter. (Olmos, at p. 583 [33-years-to-life sentence
not the functional equivalent of life without parole]; People v.
Perez (2013) 214 Cal.App.4th 49, 51, 58 [30-years-to-life sentence
and eligibility for parole at age 47 not the functional equivalent of
life without parole].)
The reasoning of Contreras, and the United States
Supreme Court authority on which it relies, does not apply to a
defendant whose sentence affords him the opportunity for release
at 48 years old, at the latest. The Contreras court reasoned that,
to be consistent with Graham v. Florida (2010) 560 U.S. 48, a
sentence imposed on a juvenile nonhomicide offender must
provide a “sufficient period to achieve reintegration as a
productive and respected member of the citizenry”; give an
incentive for the juvenile offender to become a responsible
individual; and provide a realistic hope of release. (Contreras,
supra, 4 Cal.5th at pp. 368; see id. at pp. 369, 373.) Parole
eligibility after 32 years provides these things.
The trial court did not err in rejecting Robles’s petition for
recall and resentencing under section 1170(d)(1).
IV. Robles’s Remaining Contentions Do Not Establish
Error
Robles argues that because he has been incarcerated since
he was 16, denying him the benefit of section 1170(d)(1), together
with Proposition 57 and section 3051, denies him the
opportunities available to similarly charged individuals. He
relies on Sorto. But Heard and Sorto extended section 1170(d)(1)

6
to juvenile offenders serving the functional equivalent of life
without parole. Robles is not serving such a sentence, so those
decisions do not entitle him to relief. He argues in the same vein
that the Legislature cannot have meant to extend relief only to
juvenile offenders who would otherwise certainly die in prison,
while withholding it from those who will have no realistic
opportunity to reintegrate after serving most of their lives in
custody. That is the argument Heard accepted, and it fails here
for the same reason. His request that his case be certified to
juvenile court under Proposition 57 depends on recall of his
sentence, which has not occurred.
Robles next argues the court failed to consider People v.
Franklin (2016) 63 Cal.4th 261, before ruling. Franklin held that
section 3051 gave the juvenile offender there a parole hearing
during his 25th year of incarceration, and that his sentence was
accordingly “neither LWOP nor its functional equivalent.”
(Franklin, at p. 280.) Franklin does not create eligibility under
section 1170(d)(1). To the extent Robles seeks a proceeding to
preserve evidence of youth-related factors for a future parole
hearing, the proper procedure is to file a motion in the superior
court under section 1203.01, not this appeal. (In re Cook (2019) 7
Cal.5th 439, 451.)
Robles also invokes Graham and Miller v. Alabama (2012)
567 U.S. 460, and says no court weighed mitigating
circumstances before imposing the harshest available penalty on
him. Graham forbids life without parole for juveniles convicted of
nonhomicide offenses; Miller forbids mandatory life without
parole for juveniles convicted of homicide offenses. Robles
received neither sentence. He was sentenced to a parole-eligible

7
term, and the record reflects a parole eligibility date within his
lifetime.
Robles states the sentencing court “threw out counts 2 & 4
due to plea bargain which I didn’t even know is a thing.” The
minute order does recite that those counts were dismissed due to
plea negotiation. The record otherwise does not support that
recital: the same minute order states that Robles was found
guilty by a jury, and the sentencing transcript reflects no plea
agreement. In any event, the dismissal of two counts did not
increase his sentence, and a challenge to the 2009 judgment is
outside the scope of an appeal from the order denying his 2024
petition.
Finally, Robles argues that recall and resentencing would
entitle him to the benefit of later ameliorative changes in the law,
citing People v. Padilla (2022) 13 Cal.5th 152, and he asks for
relief in the interest of justice given childhood trauma, trauma he
says he has experienced in custody, and his mental health.
Padilla held that a judgment becomes nonfinal when the
sentence is vacated, and that ameliorative changes then apply at
resentencing. Robles’s sentence has not been vacated, so Padilla
does not assist him. His remaining allegations concern matters
outside the record and do not establish error in the order before
us.

8
 DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS

ADAMS, P. J.

We concur:

HANASONO, J.

ASHWORTH, J.*

* Retired Judge of the El Dorado Superior Court, assigned by
the Chief Justice pursuant to article VI, section 6 of the
California Constitution.

9


NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D086522

Plaintiff and Respondent, (Super. Ct. No. SCN465370)

v.

VANCE LAMONT SMITH,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County,
Saba Sheibani, Judge. Affirmed.

Bruce L. Kotler, under appointment by the Court of Appeal, for
Defendant and Appellant.
No appearance by Plaintiff and Respondent.
Vance Lamont Smith was charged with several counts of possession,
sales and transportation of controlled substances. Before trial, Smith filed a
motion to replace appointed counsel. The court held a hearing on the motion
and denied the request.
 After a jury trial, Smith was found not guilty of the felony offense
charged in count 1, the People dismissed the felony offense alleged in count 2,
the jury returned a guilty verdict on the lesser included misdemeanor offense
for count 3 and convicted on the misdemeanors charged in counts 4 and 5.
The court sentenced Smith to credit for time served with no probation.
Smith filed a timely notice of appeal.
Appellate counsel has filed a brief under the authority of People v.
Wende (1979) 25 Cal.3d 436 (Wende), indicating counsel has not been able to
identify any arguable issues for reversal on appeal. Counsel asks the court to
independently review the record for error as mandated by Wende. We offered
Smith the opportunity to file his own brief on appeal, but he has not
responded to our notice and has not filed a supplemental brief.
DISCUSSION
As we have noted, appellate counsel has filed a Wende brief and asks
the court to independently review the record for error. To assist the court in
its review and in compliance with Anders v. California (1967) 386 U.S. 738
(Anders), counsel has identified a possible issue that was considered in
evaluating the potential merits of this appeal: whether there is sufficient
evidence in the record to support the convictions as lesser included offenses of
the felony offenses.
We have independently reviewed the record for error as required by
Wende and Anders. We have not discovered any arguable issues for reversal
on appeal. Competent counsel has represented Smith in this appeal.

2
 DISPOSITION
The judgment is affirmed.

HUFFMAN, J.*

WE CONCUR:

O’ROURKE, Acting P. J.

RUBIN, J.

* Retired Associate Justice of the Court of Appeal, Fourth Appellate
District, assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.

3


COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D087607

Plaintiff and Respondent,

v.
(Super. Ct. No. SWF1907329)
MARK RICHARD NEELEY II,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Riverside County,
Francisco Navarro, Judge. Affirmed.
James M. Crawford, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant
Attorney General, Arlene A. Sevidal, Assistant Attorney General, Steve
Oetting and Joshua Trinh, Deputy Attorneys General, for Plaintiff and
Respondent.
A jury convicted Mark Richard Neeley II on 16 counts relating to
various sexual offenses committed against numerous victims. Neeley appeals
and asserts that one of the convictions for false imprisonment is not
supported by sufficient evidence; that the trial court abused its discretion
when it admitted evidence related to uncharged acts against additional
victims under Evidence Code sections 1108 and 352; and that the trial court
erred by refusing to instruct the jury with a pinpoint instruction explaining
that Neeley was not guilty on counts 7 through 16 if he actually and
reasonably believed the victim in each was over the age of 18. We reject
these assertions and affirm the judgment.
I. FACTUAL AND PROCEDURAL BACKGROUND
The People charged Neeley with rape (counts 1 and 4; Pen. Code § 261,

subd. (a)(2));1 sodomy (count 2; § 286, subd. (c)(2)(A)); false imprisonment
(counts 3 and 5; § 236); assault with intent to commit rape (count 6; § 220,
subd. (a)(1)); contacting a minor with intent to commit sex offense (counts 7,
9, 11, 13, 14 and 16; § 288.3, subd. (a)); distributing harmful material to a
minor (counts 8, 10 and 15; § 288.2, subd. (a)(2)); and arranging a meeting
with a minor motivated by an abnormal sexual interest (count 12; § 288.4,
subd. (b)). As discussed in more detail post, the various alleged counts
related to seven separate victims. The People alleged further that Neeley
committed sex offenses against more than one victim (§ 667.61, subd. (e)(4))
and that he engaged in the tying and binding of a person (§ 667.61, subd.
(e)(5)).
A. Prosecution’s Evidence
1. LS – Count 1 (rape), Count 2 (sodomy), and Count 3 (false
imprisonment)
LS met Neeley in April 2019. She was 21 years old at the time. Neeley
gave LS a ride as an Uber driver and then contacted her afterwards by falsely
saying that she left something in his vehicle. LS said that Neeley told her
that “he just didn’t want to let me go or stop talking to me.” They continued
to talk over social media. Around the same time, LS also started receiving

1 Further unspecified statutory references are to the Penal Code.

2
messages from an anonymous account. The anonymous user sent a picture of
a rope. LS later learned that the anonymous user was also Neeley. Neeley
told LS, “let me spoil you” and offered her “1,000 [dollars] for some time in
ropes” and 100 dollars to video chat.
On May 17, 2019, LS got into a fight with her boyfriend and asked
Neeley for a ride. LS was very drunk. Neeley picked LS up in his Jeep and
she asked him to take her home. She was sobbing and blacked out for the
entire car ride. The next thing she recalled was being in front of a gate and
not knowing where she was. She learned that she was at Neeley’s residence.
LS continued to black out for periods of time, and her memory was blurry as
a result. She recalled being tied up on Neeley’s couch, with her hands behind
her back. Neeley raped her, stopped, and then forcibly sodomized her. LS
tried to fight back but was not successful. She told Neeley to stop numerous
times, but he did not acknowledge her.
LS was terrified of saying the wrong thing, as she knew that Neeley
had guns upstairs, but she was eventually able to convince him to untie her
and give her a ride. She asked him to drop her off at a gas station and, once
he left, she immediately called 911. An officer arrived and LS was
transported to the hospital via ambulance. A nurse performed an
examination with a rape kit and took pictures of LS’s injuries.
LS messaged Neeley on Snapchat with an officer in the room. She
asked, “Why did you rape me when I told you no?” Neeley responded by
saying that LS had initiated the sexual contact. LS replied, “That is not what
happened, and you know that.”
The nurse who performed the rape kit examination on LS testified that
LS had a couple of bruised areas on the right side of her neck, and an
abrasion on her vagina that was consistent with sexual assault. The nurse

3
took and labeled several swabs of various areas on LS’s body. A criminologist
identified foreign DNA on the perianal swab, the vaginal swab, the external
genital swab, and the swabs from both breasts. For the sperm fraction on the
vaginal swab, Neeley was identified as a possible contributor, and “the
chances of finding another person who would also be included as a
contributor to that sample are one in 2.7 [nonillion], that’s one . . . with 30
zeros behind it.” He obtained similar results for the remaining swabs.
2. RH – Count 4 (rape) and Count 5 (false imprisonment)
RH began communicating with Neeley through social media in
September 2017. Her husband had passed away a few months earlier, and
she had two young children.
On or around September 9, 2017, RH took her children to Neeley’s
house to have dinner and hang out. After dinner, the children fell asleep and
Neeley and RH went upstairs. While in Neeley’s bedroom, they started
kissing. Neeley attempted “some type of sexual interaction” but RH pushed
him away. RH said no at least once and continued to push Neeley’s hips,
trying to hold him up, but she could not. RH was 4 feet 10 inches tall and
weighed approximately 90 pounds at the time. Neeley was stronger than she
was. Neeley proceeded to have sexual intercourse with RH. Immediately
after, RH got dressed, gathered her children, and left. She went to the
pharmacy and purchased medication to avoid pregnancy.
RH sent a text message to a friend stating that Neeley had raped her.
RH said, “He’s a marine. So I don’t want to report it because that would be
more drama than it’s worth. I’d rather just try to forget about it than make
more shit for myself to deal with. But I’m really mad because I kept saying
no, and he just climbed on top of me like he owned the place, even when I
kept saying no. He didn’t listen.” She never spoke to Neeley again.

4
 RH did not report the rape immediately, for the reasons she had
explained to her friend. RH reported the incident in May 2019, when she saw
a news article indicating that Neeley had been accused of rape. She told a
police investigator that she said no numerous times, but Neeley would not
stop.
3. JB – Count 6 (assault with intent to commit rape)
JB met Neeley at her sister’s house in the summer of 2017. She was 18
years old. JB had been doing some modeling and Neeley asked her if she
would do a photo shoot with him. JB and Neeley met at a Panera restaurant
and he showed her examples of pictures he would like to take of her in a
bikini by a pool. He agreed to pay a certain amount for the photos and then
purchased a ticket to a music festival for JB.
Later that same day, JB messaged Neeley and said that she had left
her wallet in his car. Neeley gave JB the address to his apartment and she
drove there to get her wallet. When she got to the apartment, she asked to
use Neeley’s bathroom. He pointed upstairs but when JB got to the top of the
stairs, she realized there was no bathroom, it was just a bedroom. Neeley
followed her into the bedroom and opened a nightstand drawer. There was
rope and tape inside and he told her about some sexual photo shoots that he
had done. JB was uncomfortable.
Neeley got close to JB; he started touching her shoulder and tried to
kiss her. JB said that she was uncomfortable and asked him to stop. She
said that she wanted to leave and that her mom was waiting for her to get
home. JB was wearing a dress and Neeley tried to touch her under her dress.
She tried to hold his arm back and told him not to do that. Neeley did not
respond, he just stared at JB with a blank expression. Neeley pushed JB
onto the bed. He unzipped his pants and tried to pull JB’s underwear to the

5
side. JB said that “she was begging him, I told him if he did this, I was going
to kill myself.” Neeley let JB stand up and she sprinted down the stairs and
out the door to her car. Neeley yelled, “I wasn’t going to fucking rape you,” as
JB left. JB went to a friend’s house and then went to the police station to
make a report.
Shortly after the incident, JB and Neeley exchanged the following text
messages:
JB: “You just tried to rape me.”
Neeley: “Simply having fun.”
JB: “Okay. I’m just letting you know I’m reporting
you.”
Neeley: “For what? You came over and threw yourself at
me. Now you’re saying I tried to rape you. What
you’re trying to get more money for the photo
shoot. You already ripped me off. This bullshit
won’t work.”
JB: “How the fuck did I throw myself at you? I
literally did not touch you at all. You pushed me
down in your bed, the whole time I was yelling
stop. And you wouldn’t. If I didn’t hold your
arms from touching me, you would have raped
me. You were unbuckling your pants and holding
me down.”
JB was 5 feet, 5 inches tall and weighed about 125 pounds. JB
estimated that Neeley was approximately 5 feet, 10 inches tall and weighed
210 to 220 pounds.
4. LG – Count 7 (contacting a minor with intent to commit sex
offense) and Count 8 (distributing harmful material to a
minor)
LG was 16 years old when she had contact with Neeley and did not
testify. The parties stipulated: “The People attempted to subpoena Jane

6
Doe, initials LG; however, we are unable to locate her for service. She is
aware of the ongoing court proceedings.”
On May 17, 2019, the police executed a search warrant at Neeley’s
residence. They obtained three cellular phones, a laptop computer, and a
computer tower. There were messages between Neeley and several of the
victims on the phone, including JB and LG.
On April 27, 2019, LG and Neeley exchanged the following messages:
Neeley: “Interest in being spoiled?”
[Venmo information exchanged]
Neeley: “If you are down to meet, this can be arranged.”
LG: “No. WTF. How old are you?”
Neeley: “Exactly old enough to spoil and have women
love it.”
LG: “But how old?”
Neeley: “It doesn’t matter unless you are coming over to
ride my cock.”
LG: “I’m 16, so no again.”
Neeley: “You’re a virgin? Do you still want to be
spoiled?”
LG: “For doing nothing, yes. Like if you just want to
give me money, go ahead, but I’m not doing
anything.”
Neeley: “What about for video chatting and watching me
cum?”
LG: “Nope.”
Neeley: “100 bucks? You don’t have to do anything.”
LG: “Nope.”
Neeley: “Okay, I tried. Can I send you a video of it?”
LG: “For money?”

7
 Neeley: “I send money if you video chat and watch.”
LG: “No.”
Neeley: “100 just to watch?”
LG: “A video?”
Neeley: “No, I want to see your face when I cum. It will
be fast. I’m about to cum now.”
LG: “Nope. You are disgusting.”
Neeley: “Watch now?”
LG: “No.”
Another exchange of messages occurred on April 30, 2019 and May 1, 2019:
Neeley: “Is that you in the black shorts?”
LG: “Ya.”
Neeley: “Very gorgeous.”
LG: “Thanks.”
Neeley: “Still no wanting to be spoiled?”
LG: “Nope.”
Neeley: “No worries. Just wanted to ask.”
5. TL – Count 9 (contacting a minor with intent to commit sex
offense) and Count 10 (distributing harmful material to a
minor)
TL received an Instagram message from Neeley in April 2019, around
the time of her 16th birthday. Neeley asked if she wanted to be spoiled and
TL said no. Neeley continued to message TL. He asked her if she would
watch him ejaculate for money. TL told Neeley she thought he was fake, so
he sent her $50 on Venmo to prove that he was real. TL wanted to see how
much money she could get from him so she said she would watch him if he
sent $100 more. Neeley said that he wanted to see TL topless and that he
would give her $150. TL told Neeley that she was 16. Neeley sent TL a

8
photo of his erect penis. TL ended up blocking Neeley’s account because “it
was becoming too much.”
6. KH – Count 11 (contacting a minor with intent to commit
sex offense)
KH met Neeley over social media in April 2019, when she was 15 years
old. Her Instagram profile indicated that she was a student at a local high
school. Neeley messaged KH and offered to “spoil” her in return for sexual
acts or videos. Neeley asked KH to send him pictures in her underwear, and
videos of herself doing explicit things. He was very detailed in his requests.
KH told Neeley that she was only 16 years old.
The People introduced images of KH and Neeley’s messages on
Snapchat. Neeley sent KH $50 on Venmo for a video that he requested, but
KH never sent him the video.
7. TB – Count 12 (arranging a meeting with a minor
motivated by an abnormal sexual interest) and Count 13
(contacting a minor with intent to commit sex offense)
TB began messaging with Neeley on Snapchat in April 2019, when she
was 14 years old. Neeley had already been messaging with TB’s friend,
Ashley. Ashley said that Neeley was paying her money to send photos of
herself. TB believed that Ashley was 15 years old at the time. Neeley offered
TB money to send pictures of her body and videos of her and Ashley “doing
sexual things together.” Neeley sent TB money on Venmo. TB sent Neeley
one image of her buttocks. She also took videos of other videos from the
internet in which other girls were engaging in sexual activity and sent those
to Neeley.
Neeley offered TB $1000 to meet him in person to have sex. TB gave
Neeley a fake address about two hours away from her actual home. He
messaged her when he got to that address. He told her to come outside, or he

9
would find her real address and mail everything they had exchanged to that
address.
TB blocked Neeley on Snapchat after that incident. He found her on
Instagram and started messaging her there. Neeley was messaging TB’s
friends and she told him to stop. He asked if she was jealous that they were
receiving things that she was not.
8. MG – Count 14 (contacting a minor with intent to commit
sex offense), Count 15 (distributing harmful material to a
minor) and Count 16 (contacting a minor with intent to
commit sex offense)
MG met Neeley through Tinder, a social media dating app, when she
was 17 years old. Neeley saw MG’s profile on Tinder but they started talking
on Snapchat. Neeley knew that MG was 17 but he wanted to meet in person
and kept asking her to sneak out. He also told MG that it would be best for
them both if she would delete any messages where she mentioned her age.
MG avoided meeting Neeley in person and he became more insistent,
constantly texting and getting upset that she would not meet him. Neeley
asked MG to send nude photographs and videos of sexual acts. Neeley sent
her photos of his erect penis, of other women “in compromising positions,”
and of ropes and toys that he said he wanted to use on her.
MG blocked Neeley after a few weeks because he started threatening to
deliver photos that MG had sent him to MG’s father. He then contacted her
on a different account and again threatened to give the photos to her father if
she did not meet with him. MG told Neeley to leave her alone and she did
not have any communication with him after that.
The People presented screenshots of some of the messages between
Neeley and MG, which MG authenticated. She had deleted the messages
about her age but there were messages about her not being able to go out at

10
night because her father would not let her. There was also an image of
Neeley’s erect penis.
9. Uncharged Acts
The People also presented evidence of certain uncharged acts, over
defense counsel’s objections.
a. AL
AL met Neeley in Virginia in 2017. AL was 19 years old. She was
approximately 5 feet 2 inches tall and weighed “barely a hundred pounds.
Neeley was 5 feet 7 or 8 inches and stronger than AL.
AL and Neeley dated for less than a month and remained friends for
some time after, in part because AL felt bad for breaking up with Neeley.
One day, after they had broken up, AL went over to Neeley’s townhome to
play video games. Neeley was grabbing at AL while she played a virtual
reality game. She kept telling him to stop and she eventually decided to
leave. When she got up to leave, Neeley grabbed her and put her over his
shoulder. She asked him to put her down and said that she wanted to go but
he carried her upstairs into his bedroom and forced her down on his bed.
Neeley touched AL’s vagina and inserted his fingers. AL started screaming
“No” and “Please stop,” hoping that a neighbor would hear. Eventually,
Neeley let her go. AL left as fast as she could.
AL never saw Neeley in person after that incident. He did continue to
send her text messages. She said “you basically assaulted me. I mean, you
did assault me. I don’t want anything to do with you,” but he continued to
send her messages on various platforms, asking her to move out to California
with him.

11
 AL did not initially report the incident to the police. She was young
and did not think the police would believe her over someone in the military.
She came forward in 2019 when she saw reports of his arrest on social media.
b. AA
AA met Neeley on a dating app and they dated for a while in 2017.
They broke up before Thanksgiving, but Neeley would continue to check in on
AA about once a month.
AA met up with Neeley for drinks on January 31, 2018. They went to a
bar that was a block from where AA was living at the time, and her plan was
to just walk home after. Towards the end of the evening, AA was hungry and
wanted to go get food. Neeley drove. AA thought they were going to stop at a
fast-food restaurant nearby, but Neeley kept going and they ended up at his
apartment, about 20 minutes away. When they got there, they had another
drink and maybe some food. Neeley said that he could not drive any more
that night, because he was too drunk, and that AA could take his car to class
in the morning.
AA stayed at Neeley’s apartment and they slept in the same bed
together but nothing physical happened that night. The next morning,
shortly after AA woke up, Neeley started trying to initiate sex. AA told him
“no” and “stop.” Neeley did not stop. He moved on top of AA. AA continued
to try to keep distance between them and to tell Neeley to stop. Neeley kept
pushing and tried to take his pants off. AA put herself into a ball because she
knew she was not strong enough to get him off from her. Neeley eventually
let AA go. AA was 5 foot 3 inches tall and weighed maybe 120 pounds at the
time.
After, Neely apologized and said he “didn’t mean for that to happen.”
AA sent a text message to Neeley shortly after the incident. She stated, in

12
part, “Whatever the hell happened yesterday was not okay. If I say stop, you
need to respond. You need to respect me and fucking stop.”
AA dated Neeley again later that year. AA noticed that if he made an
advance and she said she was not in the mood or not right now, that it
seemed to excite Neeley.
B. Defense Evidence

Neeley testified in his own defense. He said that he began driving Uber
while stationed as a Marine at Camp Pendleton in December 2018. He stated
that he did not need extra income but that he was newly single, after being
married for 11 years, and felt like driving for Uber was a good opportunity to
meet new people.
Neeley acknowledged that he met LS when he gave her an Uber ride,
and that he pursued messaging with her after the ride. He said that LS
called him on his personal phone on May 17 asking for a ride, that she did not
appear to be intoxicated when he picked her up, and that she asked to go to
his house. They did have intercourse twice, and Neeley also tied LS up with
rope, but LS initiated and never indicated any opposition. When Neeley was
driving LS home, she turned her phone back on and suddenly asked him,
“Why didn’t you stop when I said no?” LS then asked to be dropped off
immediately, and Neeley agreed to drop her at a gas station off the freeway.
Neeley said that he met RH on a dating app and invited her and her
children over to his house for dinner. He said that nothing physical
happened that night but that RH and her kids came back a second time for
popcorn and a movie. On the second night, he and RH had consensual sex.
RH got upset because Neeley ejaculated without protection and she was not
on birth control. She decided to leave at that time.

13
 Neeley said that he met JB at her sister’s house, after meeting her
sister on Tinder. Neeley began following JB on Snapchat and a few months
later, she messaged him asking for a ride. The next time they met was at the
Panera to talk about Neeley taking photos of JB with ropes. Neeley agreed to
buy JB some concert tickets, and she agreed to allow him to take the photos.
They went to Neeley’s house. JB then asked Neeley to buy two more of her
friends tickets. He got upset and decided not to take the photos. Nothing
sexual happened.
Neeley testified that he believed that any of the girls that he sent
Venmo payments to, including LG, TB and KH, were at least 18 years old
because they had a Venmo account. When LG said she was 16, he “assumed,
apparently incorrectly, that it was meant to be, like, a titillating-type
comment.” He thought MG was 18 because she was on Tinder.
With respect to the uncharged offenses, Neeley said that he and AA
cuddled but that nothing sexual happened on that particular morning, and
that AL consented to the contact that did occur.
C. Verdict and Sentencing
The jury found Neeley guilty on all counts and found each allegation
true. The trial court sentenced Neeley to an indeterminate term of 40 years
to life followed by a determinate term of 11 years 4 months.
II. DISCUSSION
A. There Was Substantial Evidence to Support a Conviction for
Count 5 – False Imprisonment of RH
Neeley asserts that there was insufficient evidence to support the
conviction in count 5, felony false imprisonment of RH.
“ ‘In reviewing a challenge to the sufficiency of the evidence, . . . we
“examine the whole record in the light most favorable to the judgment to
determine whether it discloses substantial evidence—evidence that is

14
reasonable, credible and of solid value—such that a reasonable trier of fact
could find the defendant guilty beyond a reasonable doubt.” ’ ” (People
v. Houston (2012) 54 Cal.4th 1186, 1215.) “ ‘We do not reweigh evidence or
reevaluate a witness’s credibility.’ ” (Ibid.) “ ‘We presume in support of the
judgment the existence of every fact the trier could reasonably deduce from
the evidence.’ ” (Ibid.) “ ‘ “[I]f the circumstances reasonably justify the jury’s
findings, the judgment may not be reversed simply because the
circumstances might also reasonably be reconciled with a contrary
finding.” ’ ” (Ibid.)
The substantial evidence standard of review is a deferential standard.
“ ‘When a trial court’s factual determination is attacked on the ground that
there is no substantial evidence to sustain it, the power of an appellate court
begins and ends with the determination as to whether, on the entire record,
there is substantial evidence, contradicted or uncontradicted, which will
support the determination.’ ” (People v. Superior Court (Jones) (1998) 18
Cal.4th 667, 681.) An appellant challenging the sufficiency of the evidence
under the foregoing standards “bears an enormous burden.” (People v.
Sanchez (2003) 113 Cal.App.4th 325, 330.)
Section 236 defines false imprisonment as “the unlawful violation of the
personal liberty of another.” “In this context, ‘ “[p]ersonal liberty” ’ is violated
when ‘the victim is “compelled to remain where [s]he does not wish to remain,
or to go where [s]he does not wish to go.” ’ ” (People v. Reed (2000) 78
Cal.App.4th 274, 280 (Reed).)
If the false imprisonment is “effected by violence, menace, fraud, or
deceit,” it is punishable as a felony. (§ 237, subd. (a); accord People
v. Whitmore (2022) 80 Cal.App.5th 116, 130 (Whitmore) [“false imprisonment
is a felony if committed using either violence or menace”].) “In this context,

15
‘violence’ means using physical force greater than the force reasonably
necessary to restrain someone.” (Whitmore, at p. 130.) “ ‘The additional force
required for felony false imprisonment, as opposed to misdemeanor false
imprisonment, may come in the form . . . of simply pulling a victim toward a
location when the victim’s liberty has already been violated.’ ” (Ibid.)
“ ‘[S]uch additional and unnecessary force may also arise from sexual
assaults suffered by the victim during the course of the defendant’s contact
with the victim.’ ” (Ibid.)
Here, there was substantial evidence that Neeley violated RH’s
personal liberty when he pinned her to the bed and engaged in sexual
intercourse despite her attempts to push him off. RH testified that she said
no at least once and continued to push Neeley’s hips away from her, but that
he overpowered her and proceeded to have sexual intercourse with her
without her consent. She stated further that she was 4 feet 10 inches tall
and weighed approximately 90 pounds at the time and that Neeley was
stronger than she was.
“ ‘The testimony of one witness, if believed, may be sufficient to prove
any fact.’ ” (People v. Johnson (2019) 32 Cal.App.5th 26, 57.) If the jury
credited RH’s testimony, as it was entitled to do, it was sufficient to establish
that Neeley prevented her from moving freely (i.e., getting up off of the bed).
(See Reed, supra, 78 Cal.App.4th at p. 280 [“It is the restraint of a person’s
freedom of movement that is at the heart of the offense of false imprisonment
embodied in section 237.”].) Moreover, RH’s testimony that Neeley proceeded
to have sexual intercourse with her despite her objections is sufficient to
establish that Neeley used physical force greater than the force reasonably
necessary to restrain RH. (Whitmore, supra, 80 Cal.App.5th at p. 130; see
also People v. Ghipriel (2016) 1 Cal.App.5th 828, 834 (Ghipriel) [“such

16
additional and unnecessary force may also arise from sexual assaults
suffered by the victim during the course of the defendant’s contact with the
victim]”.)
Neeley contends that he “never indicated, physically, or verbally to RH
that she was not free to leave,” and that she left after the assault. But in the
portion of the transcript that Neeley cites, RH was asked by defense counsel,
“Did he ever indicate to you physically or verbally in any way, shape or form
that you were not free to leave?” and she responded, “Not except when I was
pushing him and he wouldn’t get up.” From this response, it was reasonable
for the jury to conclude that Neeley’s refusal to get off of RH when she was
pushing him away was a physical indication that she was not free to leave.
Neeley relies on People v. Matian (1995) 35 Cal.App.4th 480, but
Matian is not instructive here and, in any event, other courts have since
disagreed with it. (See, e.g., People v. Castro (2006) 138 Cal.App.4th 137, 143
[“we do not agree with the result in Matian, or with appellant’s argument
that comparison with the facts in Matian requires reversal of his conviction
for felony false imprisonment”].) In Matian, the defendant squeezed the
victim’s breast “sufficiently hard to cause her pain, and possibly even
bruising.” (Matian, at p. 485.) When she went to leave, he “grabbed her arm
and yelled at her not to go.” (Ibid.) She “retreated to a chair and . . . [the
defendant] glared at her and got up to approach her” each time she tried to
stand up, causing her to be afraid and sit back down. (Ibid.) The court
explained that the People asserted the evidence supported a finding of
menace, and therefore “tacitly agree[d]” that the defendant grabbing the
victim’s arm was not sufficient “violence” to support the conviction. (Ibid.)
The court then explained that courts finding menace typically relied on either

17
the use of a deadly weapon or verbal threats, and that there was no evidence
that Matian used either. (Id. at pp. 485–487.)
Here, the People have not restricted themselves to menace and instead
assert that the additional force supporting the felony conviction arises from
the sexual assault. Notably, the trial court stayed the punishment for count
5 under section 654 because it was based on the same act as count 4, the rape
of RH. In his reply brief, Neeley asserts that the restraint must be
independent and not merely incidental to another offense, but he cites no
authority to support that assertion. To the contrary, in Ghipriel, the court
found evidence that the defendant pulled the victim into his office and then
proceeded to sexually assault her supported a conviction for felony false
imprisonment. (Ghipriel, supra, 1 Cal.App.5th at p. 831.) Here, Neeley held
RH down on the bed under the weight of his own, much larger body, and then
proceeded to rape her. We see no material distinction insofar as far as the
elements of felony false imprisonment are concerned.
In sum, we conclude that substantial evidence, including evidence
related to the rape, supports the conviction in count 5 for felony false
imprisonment.
B. The Trial Court Did Not Err by Admitting Evidence of
Uncharged Acts
Neeley asserts the trial court erred by admitting evidence of uncharged
acts related to AL and AA.
Evidence Code section 1108, subdivision (a) provides: “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.”

18
 “As the legislative history indicates, the Legislature’s principal
justification for adopting section 1108 was a practical one: By their very
nature, sex crimes are usually committed in seclusion without third party
witnesses or substantial corroborating evidence. The ensuing trial often
presents conflicting versions of the event and requires the trier of fact to
make difficult credibility determinations. Section 1108 provides the trier of
fact in a sex offense case the opportunity to learn of the defendant’s possible
disposition to commit sex crimes.” (People v. Falsetta (1999) 21 Cal.4th 903,
915.) At the same time, the admissibility is tempered by Evidence Code
section 352 to protect against the risk that a jury will convict a defendant
based solely on his or her disposition to commit sex offenses. (Falsetta, at
p. 919.)
Neeley does not dispute that the evidence falls under Evidence Code
section 1108; he asserts only that it was inadmissible under Evidence Code
section 352 because it had limited probative value and was necessarily
prejudicial.
“Rather than admit or exclude every sex offense a defendant commits,
trial judges must consider such factors as its nature, relevance, and possible
remoteness, the degree of certainty of its commission and the likelihood of
confusing, misleading, or distracting the jurors from their main inquiry, its
similarity to the charged offense, its likely prejudicial impact on the jurors,
the burden on the defendant in defending against the uncharged offense, and
the availability of less prejudicial alternatives to its outright admission, such
as admitting some but not all of the defendant’s other sex offenses, or
excluding irrelevant though inflammatory details surrounding the offense.”
(Falsetta, supra, 21 Cal.4th at p. 917.) “We review a challenge to a trial

19
court’s choice to admit or exclude evidence under [Evidence Code] section 352
for abuse of discretion.” (People v. Branch (2001) 91 Cal.App.4th 274, 282.)
Neeley’s primary assertion here is that the uncharged acts were not
substantially probative because they were not similar to the charged acts.
We disagree.
As the trial court explained, the conduct involved in the incident with
AL was “very similar to the conduct we have heard from [RH].” Neeley
argues that AL only accused him of digital penetration while RH asserted
vaginal rape. But Neeley offers no authority suggesting that the defendant
must commit the exact same offenses against each victim. Rather, the
similarities here included Neeley holding down the victims—who were much
smaller than him and who had each willingly come to his residence for other
reasons—on his bed with the weight of his body and performing sexual acts
against their will. We find no abuse of discretion in the trial court’s ruling
with respect to AL’s testimony.
Notably, the court then discussed evidence regarding two other
uncharged acts and declined to allow the evidence because the acts were not
sufficiently similar, thereby demonstrating that it was aware of the relevant
standards impacting its discretion.
As to AA, the trial court explained:
“I do find again that this is very similar based on the
information I’ve heard so far. It is close in time. This is
alleged to have happened in 2017, which is around the
same time the conduct in this case happened. I understand
that there was an objection to the fact that there was a
reference to BDSM. We’ve heard that in this case already
via our last witness, and the one witness that currently is
in the witness chair. So I do believe that there—that
actually supports a reason for including that evidence
because of the similarities of the underlying conduct, the
similarity regarding certain discussions including, I believe

20
 this was the one that mentions rope. [¶] Even the
defendant’s comments after the incident are similar in that
incident involving AA, there’s a reference the defendant
said I did not intend for that to happen. And from what
we’ve heard so far in evidence in this case, there’s a similar
statement along the lines ‘I did not intend to rape you.’ So
when I look at the underlying facts of that incident, the
facts in this case, I do find similarities. These happened
close in time. They qualify under 1108. The Court would
allow evidence regarding the incident involving Jane Doe,
initials AA.”
Neeley asserts that the evidence concerning AA was materially
different than the other alleged victims, because two had an “on and off
relationship,” and because, even by AA’s account, Neeley stopped before
committing a sexual offense against AA. Again, Neeley offers no authority
indicating that the same sexual offenses must be committed for evidence to
be admissible under Evidence Code sections 1108 and 352. Regardless, the
jury was entitled to hear all of this additional evidence which, if anything,
minimized the impact of AA’s testimony.
As the trial court pointed out, there nevertheless remained similarities
in terms of Neeley’s behavior: Inviting AA into his home under other
pretenses; lying on top of AA and using his body weight to trap her, a much
smaller individual; at least initially not stopping when AA said no and tried
to push him off; and then later stating that he did not mean for that to
happen. The fact that Neeley did stop in that situation, with someone that
he did have a more developed prior relationship with, does not negate these
similarities. Again, we have no trouble concluding that the trial court did not
abuse its discretion by admitting evidence related to AA under Evidence Code
sections 1108 and 352.
Further, even if we were to conclude that the trial court abused its
discretion in either instance, which we do not, we would conclude that any

21
error was harmless, as it was not reasonably probable that Neeley would
have received a more favorable result if the court had excluded the testimony
from AL or AA. (See People v. Malone (1988) 47 Cal.3d 1, 22 [Watson
harmless error analysis applies to erroneous admission of character
evidence]; People v. Watson (1956) 46 Cal.2d 818, 836.) There was ample
evidence related to the charged conduct involving seven different victims and
that evidence established a clear pattern of Neeley contacting women (and
underage girls) online and engaging in forceful and/or inappropriate sexual
acts with them. There was forensic evidence related to LS’s case and cell
phone evidence related to several of the other charged offenses. Neeley
testified in his own defense and did not deny interacting with any of the
alleged victims. He asserted that he believed LS and RH consented, that
nothing sexual happened with JB, and that he believed each of the underage
girls that he contacted on social media were 18 because they had accounts on
either Venmo or Tinder. The jury was entitled to, and apparently did, reject
his explanations.
Moreover, as we have discussed, neither AL nor AA alleged that Neeley
raped them. Rather, AL testified that he digitally penetrated her and then
let her go after she continued to resist, and AA testified that Neeley also let
her go before committing any sexual act. For the reasons we discussed, this
established a pattern of Neeley taking women to his residence and then
forcing himself on them, but it also suggested that he could, and did, stop in
some situations. This was likely less impactful to the jury as compared to the
testimony from LS and RH, describing how Neeley forcibly raped them.
Finally, in closing argument the prosecutor briefly referred to the testimony
from AL and AA, but then quickly went on to discuss the testimony from “all
of these women,” including, primarily, those involved in the charged offenses.

22
Based on the totality of evidence in the record, we conclude that it is not
reasonably probable that Neeley would have received a more favorable result
without the testimony from AL or AA.
C. The Trial Court Did Not Err by Instructing the Jury with a
Proposed Pinpoint Instruction Regarding His Reasonable
Belief of the Age of the Victims in Counts 7 Through 18
Neeley’s final contention is that the trial court erred by failing to give
the following pinpoint instruction as requested by his counsel:
“This instruction applies to each count where the
complainant’s age is an element of the crime, specifically,
Counts 7 through 18 inclusive.
“As to each of these counts, Defendant is not guilty if he
reasonably and actually believed that the complainant was
18 years old or older. Remember, you must consider each
count separately.
“In order for reasonable and actual belief to excuse the
defendant’s behavior, there must be evidence tending to
show that defendant reasonably and actually believed that
the other person was age 18 or older.
“The People have the burden of proving, beyond a
reasonable doubt, that the defendant did not actually and
reasonably believe the other person was under 18 years of
age.
“If you believe the defendant actually and reasonably
believed the other person was 18 years of age or older, or if
you have a reasonable doubt about this issue, you must find
him not guilty.”
The trial court noted Neeley’s request and stated that it did include
such language under CALCRIM 1124. The court explained more specifically
that it had included the following language:
“[T]he defendant is not guilty of this crime if he actually
and reasonably believed that the other person was 18 or
older. In order for reasonable and actual beliefs to excuse
the defendant’s behavior, there must be evidence tending to

23
 show that he reasonably and actually believed that the
other person was 18 or over. If you have a reasonable
doubt that whether the defendant actually and reasonably
believed that the other person was 18 or older, you must
find the defendant not guilty.”
The court concluded by stating, “Essentially, I’m granting this request
by the defense.” The court then asked defense counsel, “does that paragraph
included in 1124 take care of the issue you requested?” and defense counsel
responded, “It does, your honor.” Accordingly, the trial court instructed the
jury with CALCRIM No. 1124, including the foregoing language.
In other words, the trial court never declined to give Neeley’s proposed
instruction. Instead, it modified CALCRIM No. 1124 to include extremely
similar language, albeit in a more abbreviated form. Neeley’s counsel agreed
to this language and never asserted that it was insufficient. Rather, as
Neeley concedes, the trial court may modify the language of a proposed
instruction. (People v. Kegler (1987) 197 Cal.App.3d 72, 80.) Neeley asserts,
summarily, that the modified language did not adequately instruct the jury
regarding the impact of his reasonable belief regarding the age of the victims,
but he fails to explain why, or to develop the argument. Again, although the
trial court’s version was less verbose, it covers all of the same concepts as
Neeley’s proposed instruction, including the prosecution’s burden of proof
beyond a reasonable doubt. We have no reason to presume that the jury did
not adequately understand and apply the instruction that was given.
Although Neeley does not raise the issue, we acknowledge that
CALCRIM No. 1124 addressed contacting a minor with intent to commit
certain felonies, and was therefore relevant to counts 7, 9, 11, 13, 14, and 16,
and not to counts 8, 10, and 15. CALCRIM No. 1140 covered those remaining
counts and required, as an element, that “When the defendant acted, he
knew, should have known, or believed that the other person was a minor.”

24
Thus, in reading the instructions together, we have no problem concluding
the jury would have understood that for each of counts 7 through 16, Neeley
was not guilty if he reasonably and actually believed the victims were 18 or
older.
III. DISPOSITION
Affirmed.

KELETY, J.

WE CONCUR:

DATO, Acting P. J.

BUCHANAN, J.

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