People v. Deo

Full title: THE PEOPLE, Plaintiff and Respondent, v. RAVIND ROSHAN DEO et al.…

Court: California Court of Appeals, Third District, Sacramento

Date published: Jun 13, 2008

C047126, C046880 (Cal. Ct. App. Jun. 13, 2008)

Opinion

THE PEOPLE, Plaintiff and Respondent, v. RAVIND ROSHAN DEO et al., Defendants and Appellants. THE PEOPLE, Plaintiff and Respondent, v. RAJNESH NAVIN NARAYAN, Defendant and Appellant. C047126, C046880 California Court of Appeal, Third District, Sacramento June 13, 2008

NOT TO BE PUBLISHED

Sup. Ct. No. 01F01700

MORRISON, J.

From August 2000 to February 2001, a group of young men picked up prostitutes on Stockton Boulevard in Sacramento, kidnapped and sexually assaulted them. Their crime spree ended after they picked up a teenager who was not a prostitute. She escaped after the sexual assault and called the police. One of her attackers was arrested at the scene and the others shortly thereafter.

In a 68-count information, the People charged six defendants with various crimes arising from serial gang rapes against eight victims. The court severed the trial of one defendant,¹ and the case proceeded to trial against the remaining five defendants with two juries. Seven counts involving one victim were dismissed after she failed to appear at trial. The two juries convicted defendants of most, but not all, of the charged offenses. Each defendant was sentenced to a lengthy prison term, including a life sentence.

1 Reginal Prasad was convicted in a separate trial; his conviction was affirmed in a nonpublished opinion. (People v. Prasad (Oct. 10, 2007 C052995).)

Here, four of the defendants, Ravind Deo, Jasmeel Kumar, Rajnesh Narayan and Ashminder Singh, appeal.² They raise a multitude of issues. All of the defendants, who are East Indian, challenge the DNA evidence, both the process used to determine a match and the databases used for the match’s statistical significance. They further challenge the sufficiency and admission of certain evidence, instructional error and sentencing. Independently, Singh contends his motion for severance was improperly denied, he received ineffective assistance of counsel and there was prosecutorial misconduct.

2 The fifth defendant, Nalesh Prasad, appealed separately. His conviction was affirmed in a nonpublished opinion. (People v. Prasad (Oct. 12, 2005 C047361).)

We find merit only in Deo’s contention that there is insufficient evidence to support some of the use enhancements under Penal Code section 12022.3. We strike several enhancements and remand for resentencing. Otherwise, we find no prejudicial error and affirm. The DNA evidence was obtained through methodology that has been established to be generally accepted by the scientific community. In light of the Supreme Court’s recent decision in People v. Wilson (2006) 38 Cal.4th 1237, and the defense’s rejection of the offer to use a Caucasian database, there was no error in the population databases used. Given the strong case against Singh and the weakness of his consent defense, the failure to sever his case or the prosecutor’s error in referring to evidence of the other crimes to bolster the case against Singh did not deprive him of a fair trial. The remaining contentions are either meritless or the errors are indisputably harmless.

FACTS

As with most sexual assault cases, this case turned on the credibility of the victims, both as to what crimes occurred and who the perpetrators were. All of the victims’ credibility was bolstered by the number of victims; seven women told very similar stories. Corroboration was also provided by DNA and other forensic evidence. In the case of Narayan, who had a separate jury, the prosecution also presented his three statements to the police in which he admitted some of the conduct at issue. The strength of the evidence varied as to each victim. The prosecution did not present the case in chronological order; rather, the strongest case, in which the victim was not a prostitute and reported the assault immediately, was presented first. We set forth the summary of the evidence against defendants by the counts involving the same victim, in the order in which the victims testified at trial.

Lori S.

Counts 34 to 47

On the night of February 21, 2001, 17-year-old Lori S. went to a pool hall in Modesto with her sister and her cousin. They met her sister’s friends there and went to the home of one of the friends and drank wine coolers. Around midnight, Lori had a fight with her sister and left the house. She found herself alone in an unfamiliar neighborhood, in a bad area of Modesto. She was chased by a German Shepherd dog, that took one of her sandals. Lori ran to a schoolyard; the dog was barking and she was crying.

A gold Honda drove by and stopped. Inside were five men: Amit Narayan, who lived in Modesto, and four of the defendants. Deo was the driver, Narayan was in the front passenger seat, Kumar was behind the driver, and Nalesh Prasad was in the middle. Prasad was Amit Narayan’s brother-in-law and Narayan and Amit Narayan were related. Deo had borrowed the car earlier that day from Narayan’s employer at an Arby’s Restaurant.

When the car stopped, Kumar got out and retrieved Lori’s sandal for her. He seemed nice and offered her a ride, so she got in the car. The men spoke to each other in a language other than English and Lori thought they were Indian. They dropped off Amit Narayan.

The car went to a Chevron gas station where they bought gas. Kumar got out and bought some water or gum. The car then made a wrong turn to take Lori home. When she pointed this out, she was told one of the men was late for work, so they had to take him to work first. They got on Highway 99 and drove north. While on the highway the men smoked out of a glass pipe. They got off the highway somewhere past Harney Lane and drove around for five minutes.

The car stopped by the side of the road. Kumar grabbed Lori’s breasts and she nudged him off. Deo said, “Shut the fuck up, bitch. Do what we say. We have a gun.” Kumar stretched out her shirt and ripped her bra so she took them off. Prasad grabbed her arms and Kumar pulled off her pants and underwear. Lori would not open her legs so Kumar grabbed her neck until she opened them.

Kumar put his mouth on Lori’s vagina and then put his fingers inside her. Lori begged him to stop, telling him she was only 15 and a virgin. Kumar raped her and grabbed her breasts. Lori testified, “It hurt so bad.”

Deo got in the car and told Lori he would take her home after he was done. He raped her and grabbed her breasts.

Nalesh Prasad was next; he stuck his penis in her. When he was finished raping her, he got out of the car.

Narayan got in, pulled down his pants, and played with his penis. He took Lori’s head and forced her mouth on his penis, saying: “suck my dick.” Lori started to gag and lifted up. Narayan put her legs over his shoulders and raped her. He grabbed her breasts.

Narayan took Lori out of the car and ordered her to suck Prasad’s penis. He forced her mouth on Prasad’s penis and she gagged. Narayan tried to put his penis in her anus. Then he put it in her vagina and raped her.

When another car came by the men forced Lori back into the car and told her to put her clothes on. Someone gave her a sweater. They drove off, getting lost before they found the highway. They told Lori to put her head down. While her head was on Narayan’s lap, he grabbed her hand and put it on his penis for a second.

When the car stopped, Kumar, Deo and Prasad got out. Narayan still held Lori’s head down. Kumar got in the car and drove around the corner. Lori got in the front seat and Narayan drove to a Shell gas station. The car stopped next to a black truck. Narayan and Lori got out of the car and Kumar got out of the truck. Kumar handed Narayan a tin box and said, “here’s the stuff.” Inside the tin box were baggies containing a white substance. Kumar said he had to drop the car off and would return. He drove the gold car away. Kumar returned the car to Narayan’s boss.

After the others left, Lori was crying in the truck. Narayan said he felt bad; he was sorry and would like to take her to breakfast. Lori said she needed to go to the bathroom. She got out of the truck and walked slowly to the gas station. When she saw a woman she began crying. She went to the clerk, whispered she had just been raped, and asked him to call 911. The woman took the license plate number of the truck. A tape of the 911 call was played to the jury.

The police responded and arrested Narayan. Kumar was arrested that evening. Deo was arrested March 1.

Narayan was interviewed that day. His videotaped statement was played only to Narayan’s jury. In it, Narayan recounted picking up a crying Lori. He described the assault: “Jaz fucked, Ravin fucked, my cousin fucked . . . and then I did.” According to Narayan, Jaz took her clothes off; he told her he had a gun.

A sexual assault examination revealed Lori’s labia was reddened from the 10- to 3-o’clock positions. There was a tear at the 6 o’clock position. Her cervix was reddened and her vaginal walls were tender and painful. The injuries were acute. The findings were consistent with her history of a forced sexual assault. Bruises on Lori’s legs were consistent with her assailant prying her legs apart. A hair was found in her cervix.

A fiber analysis found fibers similar to those of the Honda’s seat on Lori’s clothing. Fibers similar to her red fleece top were found on Kumar and Narayan’s clothing. A fiber similar to Narayan’s shirt was found on Lori’s clothing.

DNA analysis of a swab from Lori’s neck matched Deo’s profile. The probability of finding another individual with the same DNA profile was 1 in 10,000 East Indians, 1 in 460,000 African Americans, and 1 in 35,000 Hispanics.³ DNA analysis of the hair matched Narayan’s profile, with a probability of 1 in 30 trillion.⁴ The confidence rate for all statistical analysis of DNA matches was 10-fold, meaning the actual probability was within the range of 10 times less or 10 times greater.

3 The probability statistics for mixed samples containing DNA of both the victim and the assailant were recalculated, deleting from the product rule alleles that were shared by the victim and the assailant, resulting in significantly lower numbers than first reported.

4 In determining which databases to use for statistical purposes, the district attorney offered to use only the lowest frequency without mention of the ethnicity of the database. Only Narayan accepted this proposal. For the other defendants, three databases were used: East Indian, African American, and Hispanic. The defense was invited to present the Caucasian database or any other database they choose.

Deo, Kumar and Narayan were convicted of four counts of sexual battery. (Pen. Code, § 243.4, subd. (a).) Narayan was convicted of another count of sexual battery, of which Deo and Kumar were acquitted. Deo, Kumar and Narayan were convicted of five counts of rape in concert (Pen. Code, § 264.1), three counts of oral copulation in concert (Pen. Code, § 288a, subd. (d)), and one count of penetration with a foreign object in concert (Pen. Code, §§ 264.1/289). As to all of these counts, enhancements for kidnapping (Pen. Code, § 667.61, subds. (d)(2) & (e)(1)) and multiple victims (Pen. Code, § 667.61, subd. (e)(5)) were found true.

C.W.

Counts 19 to 26

About two weeks earlier, 21-year-old C.W. was walking home through the K-Mart parking lot at Stockton Boulevard and Fruitridge Road around midnight. C.W. was a prostitute with a crack cocaine habit, but she denied she was working at the time. A tan car with three men in it drove up and the backseat passenger asked if she knew where they could get some marijuana. Hoping to get a ride home, C.W. got in the car. The three men were Indian; Narayan was in the backseat, Kumar the front passenger and Deo was driving.

When they passed her street without turning, C.W. asked what was going on. Narayan reached over and touched her breast. She told him he could not do that unless he paid and he just laughed. C.W. continued to argue and Narayan said they were going to his house to get some money.

Narayan pulled out a gun and told C.W. she was going to do what they told her. She began crying and told them they could just pay her. When the car stopped in a park, Deo told C.W. to take her clothes off. He opened her door, telling her to get out because they were going to walk. She refused. Deo got back in the car and again ordered her to take off her clothes. She complied.

Deo pulled out some condoms and passed them around. Narayan passed the gun to the front seat. He took out his penis and told C.W. to orally copulate him. Then he raped her. During the rape he told her to be quiet; if she let him take the condom off he would not let them kill her. Narayan took the condom off. When he tried to put his penis in her anus, she screamed. He raped her again. Narayan ejaculated and got out of the car.

Kumar passed the gun to Deo and got in the back seat. He pulled down his pants, put on a condom, and told C.W. to orally copulate him. Afterwards he made her get on top on him. He tried to sodomize her and then raped her, ejaculating. He opened the car door and threw the condom on the ground.

Deo then got in back and quickly raped C.W.. He wore a condom.

After the assault C.W. asked for her clothes; she wanted her crack cocaine and her pipe. Once she mentioned the drugs, the men wanted them. They searched her clothes and the floor of the car looking for them. After C.W. was dressed, Deo ordered her out of the car. When she got out, she screamed and Deo hit her. The car took off. As it left, C.W. turned and got a partial license plate number.

She ran to a nearby house and asked the woman inside to call the police because she had been raped. When the police arrived, they took her to the UC Davis Medical Center. She told the police the assailants took a necklace, her money and a pipe. She gave the license plate number as 4ETX__7.

C.W.’s sexual assault examination showed several little fissures or tears at the vaginal opening. The injuries were acute, occurring in the previous 24 hours. The nurse practitioner concluded the exam was consistent with C.W.’s description of the assault. C.W. described her assailants as American Indians.

C.W. identified Narayan and Kumar at trial. She testified the driver, Deo, wore a baseball cap. She saw his face when he was on top of her, but conceded she did not get a good look. When she was first shown a photographic lineup that included a three-year-old DMV photo of Deo, she did not recognize him. Detective McBeth-Childs showed her a second lineup, using a recent booking photo of Deo, and C.W. then identified him. She said Deo was the driver. She was certain; “I’ll never forget that face.” The detective testified Deo looked different at trial; his hairstyle was different and his face was fuller.

Deo owned a Toyota Corolla with the license plate number 4ETX165. Fibers on C.W.’s pants and shirt were similar to fibers from the seat of the Toyota Corolla. Narayan and Deo’s fingerprints were found in the car. Two condoms were collected from the scene.

DNA analysis was performed on a vaginal swab, two condoms, and C.W.’s pants. DNA on the vaginal swab matched Narayan, as did that on the interior of one condom, with a probability of 1 in 30 trillion. The second condom had DNA that matched Kumar’s profile. The probability of another individual with the same profile was 1 in 20,000 in the East Indian database, 1 in 3 million in the African American database, and 1 in 320,000 in the Hispanic database.

In his taped statement, Narayan said one time they picked up a girl and took her to a park. Deo, Kumar and he had sex with her and then drove her back.

Deo, Kumar and Narayan were convicted of robbery (Pen. Code, § 211); a personal use of a firearm allegation (Pen. Code, § 12022.5, subd. (a)(1)) was found true as to Deo and Kumar, but not as to Narayan. The three men were convicted of two counts of attempted sodomy in concert (Pen. Code, §§ 664/286, subd. (d)) with an enhancement for use of a firearm or deadly weapon. (Pen. Code, § 12022.3, subd. (a).) They were also convicted of three counts of rape in concert and two counts of oral copulation in concert, all with personal use, kidnapping and multiple victim enhancements.

Trisha C.

Counts 1 to 5

Very early in the morning on August 13, 2000, 19-year-old Trisha C. was walking down Stockton Boulevard heading to her mother’s. She had worked as a prostitute a couple of times, but was not working then. A car with two guys inside stopped and she asked them for a ride. She got in the car; when it passed her street without stopping she tried to get out, but the automatic locks prevented her from opening the door.

The car stopped at a house and someone else got in; he had no hair and what looked like a gun. They traveled a distance, followed by a truck. When the car and the truck both stopped near the river, Trisha tried to get out. She was hit in the head and briefly blacked out.

When she came to, the men told her to get out of the car and remove her clothes and jewelry. They searched her pockets and took four or five dollars and her gold diamond ring and gold bracelet. They told her to sit on the back of the truck bed, where the tailgate was down. The first man put on a condom and raped her. One by one each of the four men raped her; they all used condoms. After they finished, they handed Trisha her clothes and told her to get dressed.

Trisha and her assailants got back into the car and drove towards a bridge. One man asked to pull over so he could use the restroom. When they stopped, he pushed Trisha out and the car took off. Trisha ran to a trailer where a man and his wife called the police.

The police later took Trisha to a place known as Merritt’s Landing. There she found her keys and hair bands. The police also found footprints, tire tracks, condom packaging and condoms.

A sexual assault examination showed Trisha had redness of the mucosal membrane at the 6 o’clock position. She had abrasions and bruises on her legs. Her injuries were recent and consistent with blunt trauma to her vaginal opening.

DNA analysis of a vaginal swab and a sample from Trisha’s T-shirt Narayan’s profile. The frequency of such a match was 1 in 1 million.

Only Narayan was convicted in these counts. He was convicted of robbery, and four counts of rape in concert, with kidnapping and multiple victim enhancements. The court granted motions for acquittal by Deo and Kumar as to counts 1 to 5.

Jennifer S.

Counts 27 to 33

Shortly after midnight, on the morning of February 21, 2001, -- about 24 hours before Lori’s assault -- 33-year-old Jennifer S. was working as a prostitute on Stockton Boulevard between 47th and 65th Streets. A car pulled up and she asked the man if he wanted a date. He said yes and she got in. The man said he had $60 and a place around the corner. He turned on 65th Street and drove to the end of Savings Place. He said it was safe; he had been there before. The car door opened and three men with jackets over their heads appeared; two had knives. Jennifer looked to the driver, who just smiled. They put her in the back seat. When she screamed, they put a knife to her face and told her to shut up and do what they said.

Then they drove out into the country. She told them she had a son and begged them not to kill her. They said they were taking her to a friend’s party. One man told her they would not kill her; she would not get hurt.

The bald man next to Jennifer, Narayan, had her fondle him and orally copulate him. The men in the front seats passed a crank pipe. The car turned onto a gravel road, at the end of which was a car and a bright light. They turned around and returned to Savings Place.

There two men walked her to an abandoned car. One man held her arm tight and told her not to run or try anything stupid because they had guns and would kill her. She got in the car and Narayan followed. He told her to remove her pants and asked if she had a condom. She did not because one of the other men had taken it from her earlier. Narayan got on top and raped her. He made her promise not to tell the others that he had not used a condom. He ejaculated. During the rape, Narayan’s penis slipped out at least twice and he reinserted it.

The next guy (Singh) got in. He put on a condom and had her orally copulate him until he ejaculated. She removed his condom and threw it out the window of the car.

The driver (Deo) got in front and told her to come up front. Since she did not have a condom, he said she could orally copulate him. He fondled her breasts. When he ejaculated, she spit it on the floor board of the car. He told her the fourth guy would be coming; he was the mean one. He told her not to try to get away because they had guns and would kill her. Once she heard a car drive off, she took off running. The men had taken her two silver rings. She had given them her money, fifty cents.

When she got home she did not call the police because she had outstanding warrants and could not bear the thought of going to jail after she had been raped. When she calmed down somewhat, she called the police, but the officer could not guarantee no arrest, so she did not report the assault. Jennifer reported it the next morning to Detective Sophia McBeth-Childs. She met McBeth-Childs and took her to the abandoned car. Jennifer refused to go to the hospital; saying she had been poked and prodded enough. She did give the detective the clothing she wore during the assault.

Jennifer selected Kumar’s photograph from a lineup and said it looked like one of the assailants. At trial, she identified Narayan as the first assailant and Singh and Deo as two of her attackers.

DNA analysis was conducted on the condom, a napkin, the floor mat and Jennifer’s jeans. DNA on the inside of the condom matched Singh’s profile. The probability of another match was at least 1 in a quadrillion. DNA on the napkin and the floor mat matched Deo; the probability of another match on the napkin was over 1 in several billion, and the probability of another match for the mixed sample on the floor mat was 1 in 500,000 for East Indians, 1 in 45 million for African Americans and 1 in 15 million for Hispanics. DNA on the jeans matched Narayan’s profile with a probability of 1 in 30 trillion.

In a videotaped interview played to Narayan’s jury, he described one assault where they used two knives to scare the victim.

Deo and Narayan were convicted of robbery, but Singh was acquitted on this count. All three men were convicted of sexual battery. They were convicted of three counts of rape in concert and two counts of oral copulation in concert. Kidnapping enhancements were found true as to all three; multiple victim enhancements were found true as to Deo and Narayan. The jury found true an enhancement for personal use of a weapon only as to Narayan. The jury was unable to reach a unanimous verdict as to Kumar on any of these counts and the court declared a mistrial.

N.S.

Counts 13 to 18

N.S., a 33-year-old prostitute, was working near the Shell gas station on 47th Avenue and Stockton Boulevard the night of October 3, 2000. A man in a goldish-brown car beckoned her over. After she got in the car, he told her he had only $20 for a date. They agreed to sexual intercourse and she directed him to her place. Instead, he went to his place. When she protested, he told her it was safe. He offered her an extra $10 if she was good.

They ended up behind a house. Another car pulled up. N.S. asked who it was and the driver said nobody. The man from the second car opened the car door. He was in a uniform. The driver announced they were from the Sacramento Sheriff’s Department and ordered her out of the car. N.S. thought she was being arrested. The man in uniform had a holster with a black gun. He handcuffed her.

N.S. gave the men her X-reference number from her previous arrests. When the men told her it did not come up, she knew they were not police and got frightened. The driver searched her. After he found nothing he told her she could do him and his friends a favor; they wanted to have sex with her. N.S. agreed, but asked them to take off the handcuffs.

The man in the uniform took off her handcuffs. The driver got condoms out of her purse. He demanded oral copulation and then raped her. N.S. complied with his requests because she thought they would kill her. When he finished, the driver dropped his condom on the ground.

The man in the uniform then forced her to orally copulate him and then raped her. He felt her breast during the attack.

A third man got out of the second car and moved N.S. to a boat. There he wanted oral copulation. About then, a neighbor came out on his patio. The man in the uniform told him they had the situation handled. The third man moved N.S. to the front of the boat and raped her. His used condom fell to the ground.

The driver told her they were going to leave. They would take her with them, but then they would have to arrest her. N.S. walked home. She did not report the assault because she was a prostitute and felt no one would believe her. Several months later, Detective Sophie McBeth-Childs visited her in jail. N.S. took the detective to the place where she was raped.

N.S. had identified Deo as one of her assailants at the preliminary hearing. At trial she recognized him. Under cross-examination by Deo’s counsel, she became angry and accused counsel of trying to trick her.⁵ She told counsel that Deo “was the dude that raped me.”

5 Deo moved for a mistrial, contending that Nanette’s hostility prevented cross-examination. The motion was denied.

Only Deo was charged and convicted of these counts. He was convicted of three counts of rape in concert and two counts of oral copulation in concert, all with kidnapping and multiple victim enhancements. He was also convicted of sexual battery.

Rebecca J.

Counts 58 to 68

On the night of February 5, 2001, 20-year-old Rebecca J. was walking down Stockton Boulevard from Motel 6.⁶ She saw a man at a pay phone who looked suspicious. Just then a car pulled up. As the car pulled into the lot, she began to walk in the other direction. She was grabbed from behind by a bald man. He put a gun to her head and told her to get in the car. Someone put a jacket over her head.

6 Rebecca testified she was jogging or power walking. She denied she was soliciting prostitution, although she had several arrests for prostitution.

The men were all East Indian. They told her to shut up and keep her head down. She was scared to death.

After a 45-minute ride, the car stopped at a construction site where there were three trailers and a billboard. The bald man told her to stay in the car. The other two men got out and broke into one of the trailers by breaking the window. Meanwhile, the bald man held a gun to Rebecca’s head and raped her.

The bald man then took her to the bed in the trailer and raped her again. He put his finger in her vagina several times. He tried to put his penis in her anus, but she screamed and he stopped. He still had the gun.

While Rebecca was being raped, the other two men smoked drugs. When the bald man finished, the driver came over and raped her while the bald man used drugs. Then the passenger, the man at the pay phone, took his turn and raped her.

One by one, in the same order of bald guy, driver and man at pay phone, the three men forced her to orally copulate them by putting a gun to her head. After each ejaculated, she spit it on the floor.

After the assault, the men took things from the trailer in a milk crate. The bald man walked her back to the car. She got in back and they put her head down and a jacket over her head. After a 45-minute drive, the bald man let her out. He told her not to turn around until they left.

Rebecca ran three or four blocks to a police station. She encountered a police officer and told him she had been raped by three male East Indians. She described the weapon as a black semi-automatic handgun, possibly a .380. She was taken to UC Davis Medical Center.

There a physician’s assistant collected her clothing and took vaginal and rectal swabs. During the visual exam he found a black hair in Rebecca’s upper labial area; the area was tender. There was a five millimeter tear on the posterior fourchette and a tear extending to the fossa navicularis. These injuries were consistent with forcible intercourse.

Rebecca identified her three assailants in photographic lineups. She picked Narayan as the man who raped her the first two times. She identified Kumar as the man at the pay phone. In selecting Deo’s picture, she said he whispered “they made me do this” all the way back. At trial she recognized Narayan; “I would bet my life on it.”

The trailer where the assault occurred was owned by a man who worked for CC Meyers on a construction project near Rocklin. The trailer had been broken into and several items taken. The owner found a condom wrapper in the trailer. Kumar had worked at the construction site.

In the third interview he gave to the police, which was played only to Narayan’s jury, Narayan described an incident in which he, Deo and Kumar picked up a girl and took her to a trailer near Rocklin, where Kumar worked. Narayan stated all three had both intercourse and oral copulation with her. The others also tried sodomy. Afterwards they stole items from the trailer. Narayan told the detective he did not remember if he ejaculated. When the detective asked how he could not remember that, Narayan responded, “Because, you know, we did so many girls like that.”

DNA that matched Narayan’s profile was found on a vaginal swab and a rectal swab taken from Rebecca. The probability that another individual matched that profile was 1 in 1 million.

Deo, Kumar and Narayan were convicted of three counts of rape in concert, two counts of penetration with a foreign object in concert, one count of sodomy in concert, and three counts of oral copulation in concert, all with personal use of a firearm, kidnapping and multiple victim enhancements.

A.T.

Counts 48 to 57

In early October 2000, A.T. was working as a prostitute on Stockton Boulevard. A goldish-tan car approached and the driver said he wanted a date; he had $80. Excited about the money, A.T. got in the car and said she had a motel room. The driver said he did not go to motels; he had a spot down the street. He drove to a court where an employment training center was and told A.T. to get in the back seat.

When she opened the door, she heard a shuffle in the bushes and two men came out. The driver grabbed her by the throat and told her not to scream or he would kill her. He lifted his shirt and revealed a gun. He put her in the back seat; the other two men got in on either side of her. The driver got in and drove. The two men in back fondled and groped her. One was bald and chunky and the other skinny. The driver told her to shut up and stop crying. He said he hated prostitutes, “ho’s and bitches” because they made him do drugs.

The men spoke to each other in a foreign language. A.T. thought they were Indian. Earlier the driver said he was Hawaiian.

They drove about 20 minutes to a new home construction site. A.T. remembered the flags. The driver told her not to scream because his dad lived there. If she screamed, he would kill her.

The men led her to an unfinished house. The driver told her to take her clothes off. He raped her, biting her nipples.

When he was finished he called the “bald, fat guy” over. That man told her not to cry, he would not hurt her. He tried to rape her, but did not have an erection so he forced her to orally copulate him. He tried several times either to rape or to sodomize A.T., forcing her to orally copulate him between each attempt. Finally, he was able to sodomize her until ejaculation and then rape her until ejaculation.

Then it was the skinny man’s turn. He raped A.T. for just a few minutes until the others yelled. He told her to put her clothes on.

When the men left, the fat one socked A.T.. The car took off, leaving her behind. A.T. flagged down a truck and used the truck driver’s cell phone to call her boyfriend. She started walking home, got lost and stopped at a house and called again.

A.T. did not report the assault. She was concerned she would be arrested because she had an outstanding warrant for prostitution. She also believed in “street justice;” what happened on the streets would be taken care of on the streets. She eventually reported the crime to Detective Bray, who put her in touch with Detective McBeth-Childs. A.T. took the detective to the scene of the rapes.

At trial, A.T. identified Narayan and Nalesh Prasad as two of her attackers. She identified Narayan as the driver. In a photographic lineup she had identified Kumar as the skinny or malnourished one, Narayan as the fat one, and Deo as the driver. A.T. was not able to identify Deo from his 1998 DMV picture, but could identify him from his booking photo. She said he had the same look on his face in that picture as when he told her he hated “bitches” like her. A.T. had earlier selected fillers as looking like the driver. She had identified Prasad as either an assailant or a customer.

In an interview with the police, Narayan described an incident in which they took a girl to a house under construction near Laguna.

Deo, Kumar and Narayan were convicted of sexual battery, four counts of rape in concert, three counts of oral copulation in concert, one count of sodomy in concert and one count of attempted sodomy in concert. Personal use of a firearm allegations were found true as to Deo and Narayan, and kidnapping and multiple victim enhancements were found true for each forcible sex offense as to all three defendants.

Dismissed Counts 6 to 12

K.M., an alleged victim, did not appear and the trial court ruled her statement and 911 call inadmissible. The trial court granted the motions for acquittal as to counts 6 to 12 involving Deo, Kumar and Narayan.

The Defense

The defense focused on the problems with the identification and the DNA.⁷ Many of the victims had difficulty in identifying their attackers, sometimes selecting photographs of persons not charged for the crime. Bruce Behrman, a professor of psychology at California State University Sacramento, testified as to the problems with eyewitness identification and the factors that affected accuracy. Research indicated there was a false alarm rate of 20 to 30 percent in live lineups. He criticized the photographic lineups used by the police in this case because the suspect was often placed in the same position in the various lineups.

7 Nalesh Prasad presented a different defense, claiming he did not participate in the assault on Lori. “Innocent men leave no DNA.”

The defense attacked the forensic evidence, pointing out the limitations of the DNA evidence and criticizing the crime scene investigation work as “incompetent” or “sloppy.” Laurence Mueller, an expert in population genetics and statistics, criticized the use of the product rule and the failure to calculate error rates. Several courts, however, have rejected his view on the use of the product rule and error rates. Mueller found problems with the East Indian database used.

Singh and Narayan had somewhat different defenses than Deo and Kumar. Singh’s counsel attacked the DNA, but also claimed the sex acts with Jennifer were consensual; she was a prostitute doing her job. Narayan’s counsel, who had to confront Narayan’s admissions, the strongest identifications and multiple DNA evidence, stressed the jury should consider each count and enhancement separately and argued not all had been proved.

Sentencing

At sentencing, the trial court found two aggravating factors, that defendants were convicted of other crimes for which they could have received consecutive sentences but received concurrent sentences and the crimes involved planning. The only mitigating factors were defendants’ youth and lack of a prior adult criminal record. For Narayan, the court found the additional aggravating factor that he was on juvenile probation when he committed the crimes.

Many of the offenses qualified for a life term under the one strike law. (Pen. Code, § 667.61.) The court found those violent sex offenses for which defendants did not receive a life sentence should be subject to full term consecutive sentences under Penal Code section 667.6, subdivisions (c) or (d). Where the trial court imposed sentence under subdivision (d), the court made a factual finding that the crimes involved separate victims, were committed in concert by different perpetrators, or involved the same victim on separate occasions where the defendant or codefendant had an opportunity to reflect on his actions but resumed sexually assaultive behavior. For counts that could be sentenced under 667.6, subdivision (c) or Penal Code section 1170.1, the trial court chose to sentence under section 1170.1.

All defendants received substantial prison sentences. Narayan was sentenced to a term of 193 years plus 150 years to life. Deo was sentenced to an aggregate term of 174 years plus an indeterminate term of 140 years to life. Kumar was sentenced to an aggregate term of 145 years plus an indeterminate term of 100 years to life. Singh was sentenced to 14 years plus 25 years to life.

DISCUSSION

Each defendant filed a separate brief.⁸ In addition, each defendant joined in the arguments of the other defendants as they apply to him. (See Cal. Rules of Court, rule 8.220(a)(5).) Accordingly, where appropriate we consider each contention as it relates to all defendants.

8 Alan Yockelson, counsel for Deo filed a separate brief; however, as both the Attorney General and counsel for Kumar note, its discussion is lifted “almost verbatim” from Kumar’s brief, which mostly addresses DNA issues. After briefing was complete, the Central California Appellate Program (CCAP) moved to discharge Yockelson as Deo’s counsel. The motion was granted; Yockelson’s appointment was vacated and CCAP was appointed to represent Deo on appeal. CCAP filed a supplemental brief on behalf of Deo.

I. DNA Issues

DNA evidence was an important part of the case. DNA evidence tied Deo to the assaults on Lori and Jennifer, Narayan to the assaults on Lori, C.W., Jennifer and Rebecca, Kumar to the assault on C.W., and Singh to the assault on Jennifer.

Before trial defendants challenged the introduction of the DNA evidence, both the process used to determine a match and the databases used to provide the statistical significance of the match. An extensive hearing was held on the issue and the trial court ruled the DNA evidence was admissible. On appeal, defendants challenge the rulings made by the trial court. Although the methodology used in this case to analyze the DNA samples has been approved in published case law, defendants challenge two components of that methodology: the measurement threshold for peaks on the electrograph used to determine the presences of alleles in a DNA sample and the analysis of mixed-source DNA samples. They also challenge the racial and ethnic group databases used for probability statistics. We first generally describe the process of DNA analysis and summarize the evidence adduced at the hearing before trial. We then reject defendants’ challenges.

DNA

Mary Hansen from the Sacramento County District Attorney Crime Lab explained DNA for the jury. DNA is deoxyribonucleic acid, the biological blueprint of life. It is useful for forensics because everyone, except identical twins, has unique DNA and DNA is the same in every cell. Half of a person’s DNA comes from his mother and half from his father.

DNA is found in every nucleated cell in the body, including blood, semen, hair, saliva, urine, bone, tissue, and teeth. Each nucleated cell has 23 pairs of chromosomes that contain all the genetic information. Chromosomes are the physical structures that transmit hereditary information from generation to generation. The fundamental unit of hereditary information is a gene, which is a linear sequence of base pairs. Genes, like chromosomes, come in pairs. The position of the gene on the chromosome is called the locus. Because genes come in pairs, there may be alternatives; the alternative forms are called alleles. If the gene pair is made up of similar genes or identical alleles, it is homozygous. If it is made up of different genes, it is heterozygous.

The first step in DNA typing is body fluid identification because the type of fluid dictates how the DNA is removed from the cell. Next, the amount of DNA from the sample must be determined. Copies of the DNA are made by polymerase chain reaction (PCR). Once the DNA is copied or amplified, it is analyzed to determine types. Then the analysis is interpreted.

Different extraction methods are used for different body fluids. For evidence from a sexual assault, such as semen on a vaginal swab, the DNA from the female is separated from that contributed by the sperm. The female portion is called the nonsperm fraction; the male portion is the sperm fraction. The sperm fraction is a haploid cell and contains only one copy of chromosomes because it will combine with an egg.

Over 99 percent of each person’s DNA is identical. Only a small percentage of the different DNA is analyzed. The current technology uses short tandem repeats (STR) which vary by length; the variation is the number of times the base pair repeats. These markers are very polymorphic, varying greatly among people.

DNA Typing: PCR-STR Method

The DNA typing in this case was performed by the PCR-STR method. This methodology has been found to be generally accepted in the scientific community. (People v. Hill (2001) 89 Cal.App.4th 48, 57; People v. Allen (1999) 72 Cal.App.4th 1093, 1100.) In addition, capillary electrophoresis, the procedure used to analyze the amplified DNA fragments, has been found to have gained general acceptance in the scientific community. (People v. Henderson (2003) 107 Cal.App.4th 769, 789.)

“PCR forensic analysis involves three steps. First, DNA is extracted from cells in the sample. Second, select regions of the DNA are amplified. Scientists have identified these regions, also referred to as genes or genetic markers, as areas that exhibit great genetic variation among the population. . . . Polymarker analysis, which amplifies several loci simultaneously, has also been validated for use in PCR testing. [Citation.] After amplification, in the third and final step of PCR analysis the amplified gene is ‘typed,’ through the use of DNA probes, to identify the specific alleles it contains. [Citation.]” (People v. Reeves (2001) 91 Cal.App.4th 14, 28-29.)

The Sacramento laboratory uses an ABI 310 Genetic Analyzer to analyze amplified DNA. Two kits from the manufacturer are used: Profiler Plus and COFiler. Profiler Plus tests nine markers or loci and COFiler tests six, two of which are the same markers or loci as Profiler Plus. Each kit also tests for amelogenin, which determines gender. Because PCR-STR methodology has been generally accepted, it is unnecessary to establish the general scientific acceptance of each PCR-STR test kit. (People v. Hill, supra, 89 Cal.App.4th 48, 58.)

Typing of DNA is accomplished by capillary electrophoresis. The process was described in People v. Henderson, supra, 107 Cal.App.4th 769, 778-779: In capillary electrophoresis “the DNA sample is mixed with different colored dyes and injected into a thin capillary in a machine designed to perform the process. When the DNA fragments reach the end of the capillary, a laser is used to trigger a response in the form of light based on the dyes applied to the DNA sample, which is converted automatically by the computer software into different size peaks that appear on a graph.” Two software programs are used to analyze the data. The first, the GeneScan program, determines the base pair size of the peaks. Then the Genotyper program converts the peaks into actual genotype calls by comparing the peaks to an allelic ladder. The peaks on the graph are measured in relative fluorescent units (RFU). Each peak represents an allele; if the gene pair is homozygous, there is only one peak, which is twice as high.

“Once a match at multiple loci has been declared, the next step is to determine its statistical significance. [Citation.]” (People v. Soto (1999) 21 Cal.4th 512, 522.) Forensic laboratories use one or more population databases containing measurements of the DNA fragments of several hundred people at each loci tested. (Id. at p. 523.) One technique to put a number on it is the product rule. “The essence of the product rule is the multiplication of individual band probabilities to arrive at an overall probability statistic expressed as a simple fraction, such as 1 in 100,000. The rule is applied in two stages: first, for determining the allelic frequency at each locus, and then, for determining the alleles’ combined frequency at all loci.” (Id. at p. 525, fn. omitted.) “[U]nder the product rule, the frequencies found at each loci are multiplied together to generate a probability statistic reflecting the overall frequency of the complete multi-locus profile. The resulting statistic will oftentimes be very small.” (Ibid., fn. omitted.) The unmodified product rule is generally accepted in the scientific community. (Id. at p. 541.)

The Kelly Hearing

“In determining the admissibility of evidence derived from a new scientific technique, California courts apply the three-pronged approach approved in People v. Kelly [(1976) 17 Cal.3d 24]. Under this approach, the courts must consider the following: first, that the method is reliable-i.e., has gained general acceptance in the relevant scientific community; second, that the witness is an expert qualified to give an opinion on the subject; and third, that the correct scientific procedures were followed in the particular case. (People v. Henderson, supra, 107 Cal.App.4th 769, 776, fns. omitted; see People v. Leahy (1999) 1994) 8 Cal.4th 587, 604 [retaining Kelly formulation after Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993) 509 U.S. 579 [125 L.Ed.2d 469].) “[O]nce a trial court has admitted evidence based upon a new scientific technique, and that decision is affirmed on appeal by a published appellate decision, the precedent so established may control subsequent trials, at least until new evidence is presented reflecting a change in the attitude of the scientific community.” (People v. Kelly, supra, 17 Cal.3d 24, 32.)

Before trial, defendants moved for hearing on admission of the DNA evidence, raising four issues under the first and third prongs of the Kelly analysis. They challenged the test results because (1) there was no generally accepted RFU threshold; (2) there were no generally accepted rules for interpreting mixed DNA samples; (3) the proper scientific procedures for analysis were not followed; and (4) there was no generally accepted database for defendants for a proper statistical analysis.

The trial court held a lengthy Kelly hearing over several days. Dr. Ranajit Chakraborty, a professor of Environmental Genetics at the University of Cincinnati, testified for the prosecution. He discussed reports issued by the National Research Council addressing controversies in DNA testing. The second report, NRC-II, looked at statistical issues. The DNA Advisory Board (DAB) developed guidelines for DNA typing. The DAB recommended that labs follow the recommendations of NRC-II. These recommendations had three levels of conservativeness built-in by requiring certain adjustments. In this case, the lab followed the guidelines of NRC-II. For statistical analysis it used the three major population databases, as well as an East Indian database developed in Canada and four Indian databases developed by Dr. Kashyap. Dr. Chakraborty testified the NRC-II guidelines were generally accepted in the scientific community and the East Indian databases followed these guidelines. In his opinion, the three major population group databases should be used for statistical purposes. He believed if there was a match at eight or more loci, the law should not worry about statistics.

Jill Spriggs, the assistant director and technical leader for two California Department of Justice forensic laboratories, had validated Sacramento County’s ABI 310 Genetic Analyzer in 1999. Validation is an extensive process of testing equipment with DNA samples to assure reliability. She testified the procedures of the Sacramento County laboratory were consistent with DAB guidelines. The machine was validated at 150 relative fluorescent units (RFU) to identify peak or allele. The RFU measures how high the peaks are based on the intensity of the light that passes through. An analyst could go as low as 100 RFU. The RFU threshold was based on ABI’s recommendation and was very conservative. If she was validating the machine today, she would set the RFU threshold at 75.

The RFU threshold for calling an allele varies by laboratory. The FBI uses 200, which is very conservative. The lab in San Bernardino uses 50 RFU, while others range from 75 to 100. New York has four machines; three are set at 100 RFU and one at 150 RFU.

Smoothing is the process of rounding a pointed peak. The Sacramento lab uses heavy smoothing, which is very conservative as it may push the peak below the 150 RFU threshold. Spriggs testified any level of smoothing is generally accepted.

The most difficult part of DNA typing was interpreting mixtures; that was where “you earn your money.” Spriggs said there was no checklist for the process; it was necessarily lab and analyst dependent. Spriggs testified it was improper to look to reference samples to determine what was in a mixture. One should first determine what was there and then compare it to reference samples. The one exception was where it was assumed a victim was a contributor to a mixture.

Mixtures posed various problems of interpretation. One problem was determining which peak heights belonged to the same person. That decision was based on peak height ratios; the peak heights should be within 70 percent of each other. Other problems included stochastic effect, that some alleles amplified better than others, and stutter, in which one repeat segment was dropped.

William Shields, a Ph.D. in Zoology, testified for the defense. In his opinion, the validation study Spriggs conducted was not valid. The sample size was too small, the samples did not mimic real world samples, and she did not understand how to design a validation study in the statistical sense.

Shields testified the RFU threshold should be set based on the machine’s signal to noise ratio, not based on the manufacturer’s recommendation. He believed 150 RFU was too high, not all the peaks would be detected.

He criticized the use of the product rule in statistical analysis. Shields also criticized the use of heavy smoothing; light smoothing was more accurate.

His harshest criticism was directed at interpreting mixtures. He claimed it was not scientifically valid to deconstruct a mixture by subtracting out the victim’s DNA. Instead, all possible genotypes should be written out; otherwise, the procedure was not scientific. Mixtures presented difficult problems; at low levels, no one could be excluded. In his opinion, mixtures of DNA had no capacity to be used.

Dr. Shields had not reviewed any data in this case; he only read the briefs and listened to Spriggs’s testimony. He did not answer questions about what was generally accepted in the scientific community.

Carll Ladd, from the Department of Public Safety and the Connecticut Forensic Laboratory, also testified for the defense. He described the PCR-STR process for testing DNA. The two most common DNA tests were Profiler Plus and COFiler.

He testified interpreting mixtures posed problems. If the sample was less than half a nanogram, there would be big problems in interpretation. Due to the stochastic effect, it would be difficult to determine who was the major contributor and who was the minor contributor. The sperm and nonsperm fractions could be separated.

The DAB had adopted three strategies for reporting statistics on mixtures. A simple qualitative statement that the suspect was included was no longer in favor. Random match probability after genotypes were assigned was a common method. The debate over this method was whether the peak heights were sufficient to assign a genotype. It was very common to tease out the victim’s genotype in a mixture. His lab did not do this because there were problems associated with it. A second approved approach was inclusion/exclusion probability. This was the most conservative approach and the one his lab used. He testified it was more conservative than you needed to be. The third accepted approach was a likelihood ratio calculation, which was rarely used.

Dr. Ladd testified that where there was an intimate sample, such as a vaginal swab, he had no problem, from a scientific standpoint, to assign a genotype to the victim in a mixed sample. The difficulties arose when there was overlap between the victim and the suspect. It was “taboo” to use the reference sample from the suspect to determine the genotypes in a mixed sample, but it was common to use the victim’s known genotype. He had no problem with using random match probability analysis in a mixed sample where the sample was an intimate sample. There were problems in pulling out genotypes in a three-person mixture, “but it is certainly commonly done.” He found no problem with using random match probability analysis in a mixed sample where the major and minor contributor could be identified.

Ladd testified the RFU threshold should be set based on the machine’s noise. A RFU threshold of 150 was very common for the ABI 310.

Mary Hansen testified the Sacramento County’s lab guidelines for interpretation were consistent with federal protocols. Random match probability analysis was used for both single and mixed DNA samples.

The RFU threshold was set at 150 RFU, but an analyst could go down to 100 RFU. These thresholds were generally accepted in the scientific community. The machine was validated at both levels. Only a few samples were analyzed by going down to 100 RFU. All reports were based on full DNA profiles; no partial profiles were used.

Defense witness Laurence Mueller opined that the probability of inclusion/exclusion analysis should be used. The trial court determined the DNA evidence was relevant and admissible. It found a range of RFU levels was acceptable and more than one statistical approach was accepted. The machine was properly validated and all procedures complied with Kelly prong three. The databases were properly prepared and which databases were relevant in this case would be determined after the victims testified.

RFU Threshold

In the first challenge to the DNA evidence, defendants contend the trial court erred in finding that a range of RFU levels for a peak height to be declared an allele is generally accepted by the scientific community. Although published case law has found the DNA analysis methodology used in this case to be generally accepted by the scientific community, defendants contend permitting a range of RFU levels has not. It was the absence of any case law on the subject of RFU thresholds that convinced the trial court a Kelly hearing was required.

The trial court found a range of RFU levels is acceptable in the scientific community and the evidence at the hearing supported this finding. The experts testified the RFU level should be set according to the machine’s noise level. Ladd testified a level of 150 RFU for the 310 machine was very common. Spriggs provided data on varying RFU levels different labs have adopted.

Despite the unanimity of opinion that RFU levels must vary by machine, defendants contend there are practical legal problems with having no established level. Without an established level, they argue, each lab can set its own level and nothing will be deemed too low or too high. Defendants argue there must be some parameters for declaring a peak to be an allele; there must be an acceptable range and some means to determine what is the acceptable range for the particular machine involved. Further, the lack of any parameters means there is no standard and such vagueness violates due process. Tellingly, no expert, including the defense experts, took the position that a standard RFU level or range was required or even desirable.

At best, defendants could pose a Kelly prong three challenge, that “correct scientific procedures” were not used (People v. Kelly, supra, 17 Cal.3d 24, 30), by showing the RFU level used for a particular machine was unreasonable. They cannot make that showing in this case. The evidence was that the level set here, 150 RFU, was common and conservative, and was what the manufacturer recommended. In fact, the evidence from the defense experts established the level was reasonable. Shields testified the RFU level should be determined by the signal to noise ratio. For 95 percent certainty, it should be 3 times the noise level and for 99 percent certainty it should be 6 times the noise level. Ladd testified the usual noise level of the 310 machine was 25 to 30 RFU. Therefore, the RFU level should be 75 to 90 RFU for 95 percent certainty and 150 to 180 RFU for 99 certainty. Since the 150 RFU level is within this range, defendants’ attack on the RFU level must be rejected.

In a Kelly prong three challenge, Kumar contends he is protesting the admission of any DNA evidence of a match where the allele levels were below 150 RFU. Hansen testified there were a few samples in which alleles were determined by going down to 100 RFU. Based on the calculations above for a reasonable RFU level, 100 RFU is within the range for 95 percent certainty. Kumar has failed to show the lower threshold was unreasonable. Further, he does not specify what evidence was based on a RFU level below 150 and has failed to provide an adequate record to permit this court to make that determination. “It is axiomatic that it is the burden of the appellant to provide an adequate record to permit review of a claimed error, and failure to do so may be deemed a waiver of the issue on appeal. [Citations.]” (People v. Akins (2005) 128 Cal.App.4th 1376, 1385.) In his reply brief, Kumar suggests any reading below the FBI level of 200 RFU is suspect. There was no evidence that the FBI level of 200 RFU is the generally accepted level; to the contrary, there was ample evidence that many forensic labs used lower RFU levels.

Analysis of Mixed DNA Samples

As in most sexual assault cases, many of the DNA samples here were mixed, containing DNA from both the victim and one or more other persons. The testimony at the Kelly hearing made clear that interpreting mixtures is difficult; the process is complicated by the fact that two persons may have the same allele and that stutter and the stochastic effect make it difficult to determine which peaks are properly called as alleles. Defendants contend the trial court erred in finding that the scientific community generally accepts STR-typing of mixed samples and permits a known victim’s genotype to be subtracted out before applying random match probability analysis.

Kumar points to three problems with this process: (1) there is no generally accepted standard for mixtures; (2) “teasing out” the victim’s known genotype from the mixture to evaluate the genotype or genotypes left behind; and (3) applying random match probability analysis to the genotype left behind.

We reject this contention for three reasons. First, analysis of mixed DNA samples has been found to be generally accepted in the scientific community. Second, the evidence at the hearing concerning teasing out the victim’s genotype and applying random match probability analysis supports the trial court’s decision to admit the evidence. Third, any error in admitting some mixed DNA sample evidence was harmless.

In People v. Smith (2003) 107 Cal.App.4th 646, the appellate court reviewed a 19-day Kelly hearing in four consolidated cases involving the admission of DNA analysis of mixed source samples. First, the court noted several published rape cases involved mixed source samples that were analyzed by PCR or STR. “We agree with the Attorney General that the use of polymerase chain reaction and short tandem repeats technology to analyze mixed-source forensic sample is neither a new or novel technique or methodology.” (Id. at p. 665.) In any event, the evidence presented at the hearing supported the trial court’s decision to admit the DNA evidence. (Id. at p. 666.) The court upheld the lower court ruling “that the mixed sample analysis of deoxyribonucleic acid by means of short tandem repeats utilizing Profiler Plus and COFiler in conjunction with the Applied Biosystems Prism 310 Genetic Analyzer is accepted by the scientific community.” (Id. at pp. 671-672.) “Moreover, any challenges regarding errors in multiple sample deoxyribonucleic acid analysis should be directed to the weight of the evidence and not its admissibility.” (Id. at p. 672.)

Despite this clear language, Kumar contends the Smith case is limited to situations where there is a clear separation in peak sizes because the trial court found that was the case there. (People v. Smith, supra, 107 Cal.App.4th at p. 667.) Kumar contends the case did not address peak heights in mixed samples. We do not read Smith so narrowly. Additional Kelly prong oneattacks on established scientific procedures cannot be based on quibbling over component parts of the process. (See People v. Cooper (1991) 53 Cal.3d 771, 812-813 [once electrophoresis testing is admitted by a court, criticism of specific methodology goes to weight of the evidence].)

Second, Kumar’s argument is based on a misstatement of the evidence presented at the Kelly hearing. It is true that Dr. Shields opined there was no capacity to use mixtures. The trial court, however, was free to discount Shields’s testimony, particularly in light of published case law upholding the use of mixtures. Dr. Ladd testified he analyzed mixtures. There were three accepted reporting strategies for mixtures, including random match probability, the analysis used in this case.

Ladd found no problem with using random match probability analysis where major and minor contributors could be identified. The trial court found calculations in this case were provided only for single source samples or where the major contributor was treated as a single source.

Kumar contends both Shields and Ladd condemned “teasing out” the victim’s known genotype in a mixture before evaluating the remainder for genotypes. That assertion misstates Ladd’s testimony. He testified his lab was very conservative and did not subtract out a known genotype in working with mixtures, but he found no problem with assigning a genotype to the known victim where the sample was an intimate sample, such as a vaginal swab. Where the sample comes from the victim, her DNA is expected to be present. While Ladd did not use that procedure, he testified it was commonly done. At a hearing on the admission of particular DNA evidence, all defense DNA counsel expressly stated on the record that they agreed the victim’s DNA could be teased out of an intimate sample.

The only practice Ladd condemned was using the suspect’s reference sample to determine the genotype in a mixture. Spriggs also testified this practice was unacceptable. There was no evidence this practice was used in this case.⁹

9 Narayan argues there is an implicit assumption in the testimony of laboratory experts that technicians began with the defendants’ genetic profiles and then attempted to match the profiles to the evidence. Narayan fails to cite to the record to support this argument. “If a party fails to support an argument with the necessary citations to the record, that portion of the brief may be stricken and the argument deemed to have been waived. [Citation.]” (Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856.)

The interpretation of mixed DNA samples in this case was generally accepted by the scientific community, as established by Smith and the evidence adduced at the hearing. The trial court did not err in denying the Kelly prong one challenge to DNA evidence from mixtures.

In his prong three challenge, Kumar protests the admission of any statistic explaining the frequency of any match derived from a mixed-source sample in which all the alleles were not accounted for or in which a defendant’s DNA profile was derived after the victim’s genotype was subtracted out of the mixture. Kumar does not indicate what specific evidence falls into these two categories. Our review of the record reveals any error in admitting evidence in these categories was harmless.

The only DNA evidence for which all alleles were not accounted for came from the neck swab from Lori. It contained DNA consistent with Lori’s profile, Deo’s profile, and a third, unidentified person. There was another neck swab, which was not challenged, which also contained DNA consistent with Deo’s profile. Lori positively identified Deo as the driver. Amit Narayan’s testimony placed him in the car that night. Given this additional evidence against Deo, any error in admitting the DNA evidence from the one neck swab was harmless.

As to evidence in the second category, where the victim’s genotype was subtracted out, the expert testimony and the concession of the defense DNA counsel indicate this was proper for evidence from intimate samples. There was some question as to what qualified as an intimate sample. The parties agreed as to swabs taken from the victim’s body; the dispute was over samples taken from other items, such as clothing. On appeal defendants do not contend the trial court improperly determined something was an intimate sample, so there is no issue to resolve. While the napkin and floor mat found where Jennifer was assaulted would not qualify as intimate samples, there was evidence she spat ejaculate on the floor mat and some of the DNA found on those items was single source sperm fraction consistent with Deo’s profile.

Defendants have failed to demonstrate prejudicial error in the admission of DNA evidence from mixed source samples.

Statistical Analysis - Use of Population Databases

Once a defendant’s DNA profile matches the evidence DNA at multiple loci, the defendant is included within the group of possible suspects. The explanation of the probability match statistics permits the jury to assess the significance of the match and the probability that defendant indeed was the source of the DNA sample. (See People v. Soto, supra, 21 Cal.4th 512, 522-523.) “The profile frequency estimates how many people in the relevant population match the perpetrator’s profile.” (People v. Pizarro (2003) 110 Cal.App.4th 530, 628, fn. 76, original italics, disapproved in People v. Wilson, supra, 38 Cal.4th 1237.)

A major issue at trial was determining the relevant population. Defendants argued no statistics could be given in this case. They contended the three major population databases -- Caucasian, African-American and Hispanic -- were irrelevant because defendants were from Fiji, and the East Indian databases were not generally accepted.

At the time of trial, the leading case on the issue was People v. Pizarro, supra, 110 Cal.App.4th 530. That case suggested three options for presenting profile frequencies: “(1) establish that the perpetrator more likely than not belongs to a particular ethnic population, then present only the frequency in that particular ethnic population; (2) present only the most conservative frequency, without mention of ethnicity; or (3) present the frequency in the general, nonethnic population.” (Id. at p. 633, fn. 85.)

Different options were presented to defendants for the statistical analysis. Narayan chose option number two and the most conservative frequency without mention of ethnicity was presented for him. For the other defendants, statistics were provided for various population databases: African-American, Hispanic and East Indian, based on the victims’ varying descriptions of the assailants’ ethnicity.

Defendants contend the trial court erred in using ethnic databases, such as the East Indian databases, because such ethnic databases are not generally accepted by the scientific community. Kumar noted the California Supreme Court had granted review in a case raising questions about the use of racial databases.

After the opening briefs in this case were filed, the Supreme Court issued its opinion in People v. Wilson, supra, 38 Cal.4th 1237. The question in Wilson was what was the relevant population when the racial or ethnic identity of the perpetrator was unknown. The high court agreed with Pizarro that evidence of the odds solely regarding defendant’s population group should not be given because “‘the relevant population is the entire class of plausible perpetrators.’ [Citation.]” (People v. Wilson, supra, 38 Cal.4th 1237, 1243.)

The Wilson court, however, disagreed with Pizarro that statistics should be provided only for a limited number of population groups, only those for which there was evidence sufficient for a jury to find, by a preponderance of evidence, that the perpetrator belonged to that population group. (People v. Wilson, supra, 38 Cal.4th 1237, 1246.) Instead, because a perpetrator’s ancestry could never be known to a certainty, a range of population groups should be given. (Ibid.) Giving results for all possible population groups was permissible, although the court did not require it and indicated it was probably not realistically feasible. (Id. at p. 1250.) The court found admission of evidence of the odds of a match in the three most common population groups in the country was not error. (Id. at p. 1240.) Of the three alternatives suggested in Pizarro, the Supreme Court rejected the first as too limiting and found the second and third acceptable if such evidence existed, “but we see no reason to require one of those alternatives instead of giving the jury a range of possible frequencies.” (Id. at p. 1249.)

In light of Wilson, supra, 38 Cal.4th 1237, this contention has been reframed in the reply brief. Kumar now concedes there was no error in using the African-American, Hispanic and East Indian databases, even without sufficient evidence the perpetrator belonged to those groups. Instead, Kumar now asserts the trial court erred in allowing “the random match probability statistic only for African-American, Hispanic and East Indian populations, not for the Caucasian population.” Kumar contends omitting the statistic for the Caucasian population was reversible error. This contention is premised (again) on a misstatement of the record. The trial court did not limit the databases that could be used. Based on Pizzaro, and the understanding there had to be evidence the perpetrator belonged to a particular population group for it to be relevant, the trial court ruled that databases for Hispanic, African-American, and East Indian populations could be admitted. The court stated it would permit other databases as well. “If the defense wants to present a Caucasian database or any other database, the defense may do that.” “And if the defense wants you to put in a Caucasian as a third database, that’s acceptable to the court, but I do not see any basis for excluding the East Indian database. That is my ruling.”

Under Wilson, supra, 38 Cal.4th 1237, as defendants concede, there was no error in admitting statistical evidence based on the East Indian, African-American and Hispanic databases. Further, since the trial court stated it would allow a Caucasian database to be admitted and defendants did not request it, there was no error in omitting that evidence. (Evid. Code, § 354.) Finally, defendants have not shown how they were prejudiced by the omission of the Caucasian database.

II. Fourth Amendment Violation - Blood Draw

Mary Hansen received the defendants’ blood samples, from which their genetic material was extracted. Kumar contends obtaining these blood samples violated defendants’ Fourth Amendment right to be free from unreasonable search and seizures. He recognizes that this court is likely to reject his contention, but raises it to preserve the issue for further review.

The Attorney General contends the issue has been forfeited by the failure to file a suppression motion below. We agree. (People v. Miranda (1987) 44 Cal.3d 57, 80 [“a motion to test the validity of a search or seizure must be raised in the superior court to preserve the point for review on appeal”].) Neither Kumar nor any of the other defendants challenged the constitutionality of the blood draws below. This failure dooms the contention on appeal because no factual record of the circumstances of the draw was preserved. There is no court order authorizing the blood draw nor any indication whether the draw was voluntary or involuntary. Requiring a suppression motion at the trial level is “particularly compelling” because suppression hearings are specifically designed to allow for the determination of all factual issues relating to the alleged improper conduct of the police. (People v. Smith (1986) 180 Cal.App.3d 72, 80.)

Kumar assumes the blood draw was involuntary, and that it was pursuant to Penal Code section 295, which permits the collection of blood samples from specified individuals for purposes of California’s DNA and Forensic Identification Database. He contends a suppression motion would have been futile because case law existing at the time rejected Fourth Amendment challenges to Penal Code section 295.¹⁰

10 Fourth Amendment challenges to Penal Code section 295 or the predecessor statute were rejected in People v. King (2000) 82 Cal.App.4th 1363, 1369-1378, and People v. Adams (2004) 115 Cal.App.4th 243, 255-259. This court rejected a constitutional challenge to Penal Code section 295, as it applied to death row inmates, in Alfaro v. Terhune (2002) 98 Cal.App.4th 492, 505-512. In United States v. Kincade (9th Cir. 2004) 379 F.3d 813, a plurality en banc opinion held the Fourth Amendment permits compulsory DNA profiling of certain conditionally-released federal offenders in the absence of individualized suspicion that they have committed additional crimes. After this trial, compulsory, nonconsensual extraction of DNA from convicts was upheld in People v. Johnson (2006) 139 Cal.App.4th 1135 and People v. Travis (2006) 139 Cal.App.4th 1271.

While he recognizes the hurdle he faces in establishing unreasonableness, Kumar faces a more fundamental problem. A Fourth Amendment challenge cannot be based upon an assumption. It is appellant’s burden to provide an adequate record to assess error. (People v. Akins, supra, 128 Cal.App.4th 1376, 1385 [record inadequate to verify factual premise of issue raised on appeal].) Before Kumar can argue the seizure of his blood was unreasonable, there must be a seizure. The Attorney General does not concede the blood draw was involuntary. Indeed, he argues the absence of a court order in the record, while there are court orders for blood draws for AIDS testing, logically suggests defendants consented to provide blood samples. Further, he contends that if defendants had objected, the prosecutor could have obtained a warrant authorizing the blood draw.

By failing to challenge the blood draws for DNA purposes in the trial court, and thus developing the record of the facts and circumstances, defendants have forfeited any challenge to the constitutionality of the blood draws on appeal.

III. Singh’s Motion to Sever

Before trial and at many times during trial, Singh, who was charged only in the counts involving Jennifer (counts 27-33), moved to sever his trial from the other defendants. However, when the court offered to sever his trial because he was not joined with all other defendants in a single count, as required by Penal Code section 1098 and People v. Ortiz (1978) 22 Cal.3d 38 (Ortiz),¹¹ he declined the offer and withdrew his earlier motions to sever. Singh now contends the joint trial was grossly unfair and deprived him of due process, particularly because he was the only defendant to offer a defense of consent.

11 Penal Code section 1098 provides in part: “When two or more defendants are jointly charged with any public offense, whether felony or misdemeanor, they must be tried jointly, unless the court order separate trials.” The California Supreme Court has construed this language to mean “that a defendant may not be tried with others who are charged with different crimes than those of which he is accused unless he is included in at least one count of the accusatory pleading with all other defendants with whom he is tried.” (People v. Ortiz, supra, 22 Cal.3d at p. 43, fn. omitted.) Singh was not included in any count with either of the Prasads.

Singh attacks the issue from several sides. We begin by detailing the background of the severance motions, and then conclude the joint trial was not grossly unfair, the trial court did not err in denying the discretionary motion for severance, and Singh was not prejudiced by counsel’s failure to move for or accept the court’s offer for severance under Ortiz, supra, (1978) 22 Cal.3d 38.

Background

Months before trial, Singh filed a perfunctory motion to sever his trial or alternatively for a separate jury. The motion contained little discussion or analysis, simply citing Gray v. Maryland (1998) 523 U.S. 185 [140 L.Ed.2d 294]; Richardson v. Marsh (1987) 481 U.S. 200 [95 L.Ed.2d 176]; Bruton v. United States (1968) 391123 [20 L.Ed.2d 476]; People v. Aranda (1965) 63 Cal.2d 518.)¹² The court denied the motion based on the preference for joint trials and the lack of showing of prejudice. Singh renewed the motion during jury selection. The motion was again denied.

12 The court granted separate juries for the two defendants, Narayan and Reginal Prasad, who made statements to the police.

After the jury was sworn, but before the first witness testified, the trial court noticed a joinder problem. Under Penal Code section 1098 and Ortiz, supra, 22 Cal.3d 38, joinder would be granted to any defendant not joined with all other defendants in a single count. The court invited severance motions from Singh and Reginal Prasad and gave counsel time to research the issue. Prasad requested severance and waived any double jeopardy issue.¹³ Singh declined to move for severance and withdrew his previous motions; counsel declined to state anything further on the record. The court then described Singh’s previous severance motions.

13 Nalesh Prasad declined severance for tactical reasons.

Just before Jennifer was scheduled to testify, Singh renewed his motion to sever on Aranda/Bruton grounds, with a fuller discussion. He contended he would be prejudiced by his codefendants’ incriminating extrajudicial statements. These statements would come in through Jennifer’s testimony as to what her assailants said. She could not identify the speaker, but simply referred to what “they” said. The trial court denied the motion, noting it was not made under Penal Code section 1098 or Ortiz, supra, 22 Cal.3d 38.

Near the end of the People’s case in chief, after the DNA experts testified, Singh filed a motion to sever under Penal Code section 1098 and Ortiz, supra, 22 Cal.3d 38. Singh contended the trial court’s previous offer to sever his trial had been conditioned upon waiver of speedy trial and double jeopardy rights and he elected not to waive those rights. Counsel repeatedly told the court it was not a tactical decision, but due to the forced waiver of constitutional rights. Counsel would put that view on the record if the court intended to memorialize the decision as a tactical one. Singh argued he was not required to waive constitutional rights to obtain severance and moved for severance and dismissal based on double jeopardy.

The trial court put a lengthy ruling on the record. The court recited the history of the various severance motions. Once the court noticed the severance problem under Ortiz, supra, 22 Cal.3d 38, counsel for the Prasad brothers responded in a “straightforward” manner, but counsel for Singh refused to state his decision to decline severance was either tactical or informed. The court found counsel’s comments “disingenuous,” particularly since counsel had missed an important legal argument for severance. The court stated it did not force counsel to do anything; it simply gave him the law. The court recalled the discussion of the benefit to Singh of having three additional experienced DNA counsel to cross-examine expert witnesses and the benefit of other skilled, competent defense attorneys in the same trial. The court considered Singh’s decision not to sever to be “tactical, reasoned and considered.” The court concluded the issue of improper joinder was waived.

Joint Trial Not Grossly Unfair

“After trial, of course, the reviewing court may nevertheless reverse a conviction where, because of the consolidation, a gross unfairness has occurred such as to deprive the defendant of a fair trial or due process of law.” (People v. Turner (1984) 37 Cal.3d 302, 313, overruled on another point in People v. Anderson (1989) 43 Cal.3d 1104, 1149-1150; accord People v. Ervin (2000) 22 Cal.4th 48, 69; People v. Pinholster (1992) 1 Cal.4th 865, 932.) Singh contends that regardless of the timing or sufficiency of his objections, his convictions must be reversed because the joint trial was grossly unfair. The assertion that the joint trial was grossly unfair is the heart of his contention regarding severance.

In asserting the trial was grossly unfair, Singh relies on People v. Chambers (1964) 231 Cal.App.2d 23, a remarkable case in which this court reversed a conviction due to improper joinder despite defendant’s failure to properly preserve the issue for appeal. Chambers was the owner of a rest home for aged and mentally ill patients. He had purchased the home from Mrs. Spitler, who remained as the supervising nurse. Chambers was charged with one count of assault by means likely to produce great bodily injury on a patient. Mrs. Spitler was charged with three separate assaults on the same patient. Both defendants were represented by the same counsel and, by stipulation, the cases were consolidated. They were convicted on all charges. On appeal, Chambers claimed insufficient evidence. The evidence against him was slight, occupying only three pages of transcript in a three-day trial. A nursing assistant testified she saw Chambers strike the patient. This evidence was sufficient to support the verdict. (Id. at p. 27.)

This court, however, was convinced “that defendant was tried and convicted under conditions which deprived him of a fair trial and denied him due process of law.” (People v. Chambers, supra, 231 Cal.App.2d at p. 27.) This result was largely due to the joint trial. While the evidence against Chambers was slight, there was considerable, damning evidence of Mrs. Spitler’s many acts of brutality towards patients. (Id. at p. 26.) Further, there was irrelevant evidence that suggested Chambers and Mrs. Spitler shared a bed. (Id. at p. 28.) As a result, this court concluded Chambers was probably convicted by association with Mrs. Spitler, both as her employer and her lover, rather than by evidence of his personal guilt. (Id. at p. 28.) There was no evidence of concerted or conspiratorial action by Chambers and Mrs. Spitler. The sole witness against him did not hold up under cross-examination. Chambers’s alibi, that he was not present the day of the assault, was corroborated by receipts for out-of-town purchases. (Id. at p. 29.) The court also found the limiting instruction to confine evidence to the defendant against whom it was offered inadequate as the trial court failed to admonish the jury that evidence of beatings by Mrs. Spitler was to be considered against her alone. The judgment was reversed for a new trial. (Id. at p. 34.)

We find Chambers, supra, 231 Cal.App.2d 23, distinguishable on many grounds. This case did involve concerted or conspiratorial actions; Singh was charged with sex offenses committed in concert and conspiracy was one theory of liability offered. The evidence offered only against the other defendants was no more inflammatory than that offered against Singh; all the evidence was of forcible gang rape. Unlike in Chambers where the prosecution suggested Chambers was Mrs. Spitler’s lover, there was no irrelevant, inflammatory evidence tying Singh to the other defendants that increased the likelihood of guilt by association.

Here, the trial court took great care to fashion and repeat appropriate limiting instructions and this careful instruction prevented the prejudice urged by Singh. (See People v. Goodall (131 Cal.App.3d 129, 141.) At the outset of the trial, the court repeated the limiting instruction to consider evidence offered on particular counts only against the defendant charged in those counts. Throughout the trial, the court called the jury’s attention as to which counts the evidence related.

Unlike in Chambers, supra, 231 Cal.App.2d 23,the case against Singh was strong. DNA evidence tied him to the crime and showed sex acts with several men had occurred, consistent with Jennifer’s version of events. The forensic evidence suggested assault rather than an act of prostitution. Jennifer proved an effective witness and she stood up under cross-examination. While the defense offered reasons for her to lie, such as that she had to explain to her pimp why she had no money after trading sex for drugs, the prosecution argued her reporting the crime despite her profession and outstanding warrants showed her credibility. There was no evidence, from cross-examination of Jennifer or otherwise, to support the defense of consent.

Finally, Singh’s contention that the jury found guilt by association is not supported by the verdicts. On the counts relating to Jennifer, Singh was acquitted of robbery, although Deo and Narayan were convicted. The jury found the weapon use enhancement true only as to Narayan, who admitted he had a knife, and could not reach a unanimous verdict as to Kumar, although Kumar was convicted in many other counts. These results indicate the jury considered the charges against each defendant separately. The joint trial was not grossly unfair to Singh.

Discretionary Severance

Singh contends the trial court erred in denying his pretrial motion for discretionary severance. Singh faults the trial court for failing to make an adequate inquiry into the possible prejudice of a joint trial. Because Singh made no showing of prejudice, the trial court did not err.

“Severance remains largely within the discretion of the trial court. [Citation.]” (People v. Keenan (1988) 46 Cal.3d 478, 500.) A court should sever the trials of codefendants “in the face of an incriminating confession, prejudicial association with codefendants, likely confusion resulting from evidence on multiple counts, conflicting defenses, or the possibility that at a separate trial a codefendant would give exonerating testimony.” (People v. Massie (1967) 66 Cal.2d 899, 917.) Singh contends all of these factors supported severance in this case. We disagree.

The trial court took several steps to eliminate the problems severance is intended to address. Incriminating confessions were handled by separate juries. Expressly linking the evidence to particular counts eliminated or reduced juror confusion. The counts against Singh were not significantly weaker than other counts and there was no possibility of exonerating testimony at a separate trial. The only factors favoring severance are prejudicial association with codefendants and conflicting defenses. Neither of these factors was raised by the defense as a reason for severance; his pretrial motions were focused on Aranda/Bruton. “Whether denial of a motion to sever the trial of a defendant from that of a codefendant constitutes an abuse of discretion must be decided on the facts as they appear at the time of the hearing on the motion rather than on what subsequently develops.” (People v. Isenor (1971) 17 Cal.App.3d 324, 334.) While Singh offered the defense of consent at trial, he points to nothing in the record to show the trial court was aware of this different defense when it ruled on the pretrial severance motion. Indeed, Singh’s opening statement did not make clear the defense was consent; it joined the general defense attack on DNA and the Jennifer’s credibility. Singh offered no argument on the guilt by association factor he stresses on appeal. Given the precautions the court took, the lack of argument as to prejudice by Singh, and our conclusion above that the joint trial was not unduly prejudicial to Singh, the trial court acted within its discretion in concluding no possible prejudice to Singh required severance.

Ineffective Assistance of Counsel

Finally, Singh contends he was denied effective assistance of counsel. He contends his trial counsel was ineffective in failing to move for severance under Ortiz, supra, 22 Cal.3d 38, before trial, as that motion would have been granted. He further contends counsel was ineffective in failing to accept the trial court’s offer for severance because counsel’s concern about waiving double jeopardy and speedy trial rights was unfounded. (See People v. Terry (1970) 2 Cal.3d 362, 386 [defendant deemed to consent to mistrial and waive double jeopardy where mistrial granted to achieve defendant’s original objective of severance].) Singh’s claim of ineffective assistance of counsel is premised on the view that his trial counsel wanted severance and that was the only reasonable tactical choice in his case. We disagree that Singh’s counsel wanted severance and we find the failure to sever Singh’s trial was not prejudicial.

A defendant claiming ineffective assistance of counsel must first establish that “counsel’s representation fell below an objective standard of reasonableness.” (Strickland v. Washington (1984) 466 U.S. 668, 688 [80 L.Ed.2d 674, 693].) He must then establish prejudice. “The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Id. at pp. 693-694.) “In analyzing the contentions, we must keep in mind the strong presumption that counsel’s actions fell within the wide range of reasonable professional assistance. We also evaluate the conduct from counsel’s perspective at the time of the acts or omissions complained of.” (People v. Freeman (1994) 8 Cal.4th 450, 513.)

On the surface trial counsel’s actions in this case appear perplexing. He moved for severance, without any argument in support other than simply citing to Aranda/Bruton. He failed to discover the statutory basis (Pen. Code, § 1098) that would have made his motion meritorious. Then, when the trial court offered severance, he declined it and withdrew his earlier motions, claiming he was unfairly being forced to choose between constitutional rights. He chose to retain his double jeopardy claim, although he had no such claim to make, foregoing severance, which would have offered some benefit. Indeed, he now argues it was his only hope for acquittal. On appeal, Singh contends this perplexing action shows trial counsel’s ineffectiveness. We find another explanation.

The record suggests Singh’s counsel did not really want severance; if Singh was to be tried, counsel wanted him tried with the other defendants. Pretrial counsel’s efforts for severance were perfunctory. When offered severance, he refused unless he could get dismissal as well. Both his motions for severance after the trial began also requested dismissal. The trial court indicated counsel wanted the benefit of other defense counsel, including experienced DNA counsel. Further, counsel refused to put his reasons on the record. Significantly, the first time Singh raised Ortiz as grounds for severance was after presentation of the DNA evidence. Perhaps he concluded then that attacking the DNA was no longer a winning strategy.

Whatever the reason for trial counsel’s actions, the key question is whether Singh was prejudiced by the counsel’s failure to obtain severance. Since a proper motion for severance would have been granted, Singh need only show that with severance a more favorable outcome was reasonably probable. (People v. Grant (1988) 45 Cal.3d 829, 864-865.) “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Strickland v. Washington, supra, 466 U.S. at pp. 693-694 [80 L.Ed.2d at pp. 697-698].) For the reasons set forth above in concluding the joint trial was not grossly unfair, we conclude Singh has failed to establish the reasonable probability of a more favorable outcome. The case against Singh was strong and the trial court took adequate steps to protect Singh from unfair prejudice caused by a joint trial. The consent defense was not as persuasive as Singh suggests, relying solely on argument and unsupported by evidence because Singh did not testify. Nor did the cross-examination of Jennifer provide any reason for the jury to find consent. There was no testimony about her boyfriend or pimp; she denied any of the sex acts were consensual and declared she never accepted drugs as payment. Singh was not denied effective assistance of counsel.

IV. Sufficiency of the Evidence

Deo Only

Counts 18 to 26 and 45 to 57

Deo contends there is insufficient evidence to support his convictions for the various crimes committed against C.W. (counts 18-26) and A.T. (counts 45-57). While both witnesses identified him in a photographic lineup, he contends their failure to identify him in court, as well as the circumstances surrounding the out-of-court identifications, makes the evidence of identify insufficient. C.W. testified the driver (Deo) wore a cap, so she did not get a good look at him. A.T. identified persons other than Deo as the driver.

Where a criminal conviction is challenged as lacking evidentiary support, “the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence -- that is, evidence which is reasonable, credible, and of solid value -- such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578.) “‘[T]his inquiry does not require a court to “ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.” [Citation omitted.] Instead the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’” (Id. at p. 577, quoting Jackson v. Virginia (1979) 443 U.S. 307, 318-319 [61 L.Ed.2d 560, 573].)

The identity of the perpetrator is a question of fact for the jury. (People v. Rich (1960) 177 Cal.App.2d 617, 625.) Identity may be established by out-of-court identification without further corroboration if such identification meets the substantial evidence test. (People v. Cuevas (1995) 12 Cal.4th 252, 271-272.)

Deo relies on two federal cases where out-of-court identification was held to be insufficient. We find these cases distinguishable. In United States v. Keller (3rd. Cir. 1975) 512 F.2d 182, the witness testified he was shown several pictures and asked which was the most similar to the person who passed counterfeit bills; he selected defendant’s picture. The court found this identification too tentative to sustain a conviction. (Id. at p. 184.) Further, the photographic lineup was blatantly suggestive and there was no sufficient corroboration. (Id. at pp. 184-185.) Identifying defendant by name only was insufficient in United States v. Loper (3rd Cir. 1970) 429 F.2d 1394. One witness identified defendant by name, but could not identify him in a photograph or in court and was incorrect in describing his skin tone. (Id. at pp. 1395-1396.) The other witness first named three persons other than defendant as the perpetrator. She then named defendant, but was unable to identify him from photographs or in the courtroom and misidentified the picture of another as him. (Id. at p. 1396.)

Here the out-of-court identifications were more definitive and were corroborated by other evidence. C.W. was clear and certain in her identification of Deo from his booking photograph. The jury reasonably could have placed more weight on that identification than the three-year old DMV photograph or years later in at trial when Deo’s appearance had changed. C.W. also matched several digits of Deo’s license plate, providing corroboration for her identification. A.T. was also able to identify Deo from a picture taken near the time of the crime and her identification was certain; she recognized the look on his face. While she provided no corroborating evidence, the jury could consider evidence of Deo’s other crimes with Narayan and Kumar on the issue of identity. (Evid. Code, § 1101, subd. (b).) Sufficient evidence supports the convictions.

Counts 28 to 30

Rape in Concert

Singh contends his convictions for rape in concert in counts 28 to 30 must be reversed due to insufficient evidence of force or violence. Singh, Deo and Narayan were convicted of three counts of rape in concert against Jennifer, based on Narayan raping her. During the rape, Narayan penetrated her at least three times. Singh contends the convictions for rape in concert cannot stand because there was no force or violence; at most, Narayan committed the rapes by antecedent threats or fear. Deo joins in this contention.

Penal Code section 264.1 provides harsher punishment when the defendant “voluntarily acting in concert with another person, by force or violence and against the will of the victim” commits rape or certain other sex offenses. The force necessary to commit rape in concert “is no greater than the force necessary to commit forcible rape within the meaning of Penal Code section 261, subdivision (a)(2).” (People v. Mom (2000) 80 Cal.App.4th 1217, 1219, disapproved on another point in People v. Griffin (2004) 33 Cal.4th 1015, 1028.)

“The gravamen of the crime of forcible rape is a sexual penetration accomplished against the victim’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury. As reflected in the surveyed case law, in a forcible rape prosecution the jury determines whether the use of force served to overcome the will of the victim to thwart or resist the attack, not whether the use of such force physically facilitated sexual penetration or prevented the victim from physically resisting her attacker.” (People v. Griffin, supra, 33 Cal.4th 1015, 1027.) The applicable question is whether defendant used force sufficient to accomplish intercourse with the victim against her will, not whether the force was sufficient to overcome her physical strength and ability to resist. (Id. at p. 1028.)

The evidence here was sufficient to establish force sufficient to overcome Jennifer’s will. Jennifer testified that after her supposed customer drove to Savings Place, three men approached the car, two with knives. When she screamed, they put a knife to her face and told her to do what they said. Jennifer was frightened and begged them not to kill her. When the car stopped, two men walked her to another car where the rapes occurred. One man held her arm tightly and told her not to try to run or try anything stupid because they had guns and would kill her. She replied she would not try anything; she just wanted to get out alive and he did not need to hold her so hard. The abduction at knifepoint, followed by threats delivered with physical force on her arm, were sufficient to show Jennifer’s will to thwart or resist the attack was overcome. (People v. Griffin, supra, 33 Cal.4th at p. 1027.)

Use of a Deadly Weapon

Insufficient Evidence of Deadly Weapon

Narayan contends there was insufficient evidence to support the enhancements for use of a firearm or deadly weapon under Penal Code section 12022.3. He contends the evidence was insufficient because the gun seen by the victims was only a BB gun, which is neither a firearm nor a deadly weapon.

Three of the victims indicated guns were used in the attacks. C.W. testified Narayan pulled out a gun. The gun was passed around as each of the assailants raped her. Rebecca said the bald guy (Narayan) grabbed her and put a gun to her head. She described the gun as a .380. A.T. claimed the driver grabbed her by the throat, threatened to kill her if she screamed, and lifted his shirt to display a gun.

No gun was ever found. On cross-examination, Detective McBeth-Childs testified she recovered a Powerline 5700 60-shot BB gun when she stopped a car associated with three other suspects. That gun was similar to a gun depicted in photographs of defendants¹⁴ and she had heard BB guns were often made to look like real guns.

14 As discussed below in Part V, the trial court admitted the photographs of defendants in part because the gun depicted was similar to the one described by the victims.

In his statement to police, Narayan admitted they sometimes used a gun. But he claimed it was “only a little BB gun.”

In instructing the Narayan’s jury on the enhancement, the court defined a deadly weapon.¹⁵ The court also told the jury a BB gun was not a firearm or a handgun.¹⁶

15 The court instructed the jury: “A deadly weapon is any object, instrument or weapon which is used in such a manner as to be capable of producing, and likely to produce, death or great bodily harm, and it can be inferred from the evidence, including attendant circumstances, the time or place, destination of the possessor and any other relevant facts, that the possessor intended on that or those occasions to use it as a weapon should the circumstances so require.”

16 Earlier during instructions a juror asked if an airgun was considered a firearm under California law. The court did not answer the question, but continued with the instructions.

In closing argument to Narayan’s jury, the prosecutor admitted a BB gun was not a firearm, but argued it was a deadly weapon capable of producing great harm. The prosecutor argued “even if you believe in this case that the firearm used -- or the handgun used was not a real gun, it still qualifies under this provision of law because it’s still a deadly weapon. A BB gun can cause you great bodily harm.”

In contrast, Narayan’s counsel argued a BB gun was not a deadly weapon. He reasoned that it required “some real leaps of faith to say, well, there might be a way under some very, very weird and peculiar circumstances” that a BB gun would be a deadly weapon. He argued that since Narayan said the gun was a BB gun, the People would have to present additional evidence to prove the gun used was not a BB gun.

The question here is whether Narayan’s jury could have concluded a BB gun was a deadly weapon. “In assessing a claim of insufficiency of evidence, the reviewing court’s task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence--that is, evidence that is reasonable, credible, and of solid value--such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578.) On this record, we conclude the answer is yes.

A BB gun is a dangerous weapon. (People v. Bartholomew D. (2005) 131 Cal.App.4th 317, 322.) A dangerous weapon, however, is not necessarily a deadly weapon. (People v. Brookins (1989) 215 Cal.App.3d 1297, 1306.) A BB gun may be a deadly weapon. In People v. Lochtefeld (2000) 77 Cal.App.4th 533, at page 541, the court found a compressed air pellet gun was a deadly weapon as a matter of law for purposes of assault with a deadly weapon where the evidence established the gun would expel pellets at sufficient force to penetrate muscle tissue or an eye. In People v. Sherman (1967) 251 Cal.App.2d 849, at page 857, the court found a CO2 Plainsman .175 pellet gun was a deadly weapon for purposes of robbery where the evidence showed it could put out an eye or kill a baby.

Here there was no evidence as to the gun’s capabilities, but the jury could consider the well-known fact that BB guns can put out an eye. (See, e.g., Olsen v. McGillicuddy (1971) 15 Cal.App.3d 897 [minor suffered eye injury from a BB]; Martin v. Barrett (1953) 120 Cal.App.2d 625 [child lost sight when struck in eye with a BB]; Stockwell v. Board of Trustees of Leland Stanford Junior University (1944) 64 Cal.App.2d 197 [student lost an eye after being hit with BB].) The jury was instructed a deadly weapon is a weapon used so that it is capable and likely to produce great bodily harm. Loss of an eye is such substantial harm. (People v. Roberts (1981) 114 Cal.App.3d 960, 965 [blindness in eye is “surely a great bodily injury”].)

The jury could find defendants’ use of the gun met the qualifications for a deadly weapon. They used the gun in conjunction with other force and threats to kill the victims if they did not comply with the assailants’ demands. Given the defendants’ vicious, dangerous and threatening behavior, the jury could find the gun -- whether real or a BB -- was a deadly weapon.

Narayan further contends the evidence is insufficient to support the weapon use enhancement with respect to the crimes involving Jennifer. Jennifer testified her assailants had two knives and one was held to her face. Narayan contends the evidence is insufficient to show he personally used a knife. He is mistaken; in his statement to the police, Narayan admitted he had a knife and described it.

Use of Deadly Weapon

Insufficient Evidence of Personal Use -- Deo Only

In several counts for sex offenses, Deo was charged with an enhancement under Penal Code section 12022.3, subdivision (a) for use of a firearm and the jury found the enhancement true. Deo contends there is insufficient evidence he personally used a firearm in four counts as to C.W. and six counts as to Rebecca because he did not handle the gun in each case until after several of the sex crimes were complete.¹⁷ The Attorney General concedes the basic contention, but disagrees as to the number of enhancements affected, placing the number at 14. Our review of the record concludes 12 enhancements must be stricken as to Deo and those counts remanded for resentencing.

17 No other defendant joins in this contention.

Penal Code section 12022.3, subdivision (a) (12022.3(a)) provides: “For each violation or attempted violation of Section 261, 262, 286, 288, 288a, or 289, and in addition to the sentence provided, any person shall receive the following: [¶] (a) A 3-, 4-, or 10-year enhancement if the person uses a firearm or a deadly weapon in the commission of the violation.”

In People v. Reed (1982) 135 Cal.App.3d 149, this court held that section 12022.3(a) requires personal use of a firearm or deadly weapon; liability cannot be derivative. The Supreme Court seemingly agreed with our analysis in People v. Piper (1986) 42 Cal.3d 471, 477, footnote 5. The Fifth District agreed section 12022.3(a) imposes only direct liability in People v. Rener (1994) 24 Cal.App.4th 258, 267.)

In People v. Masbruch (1996) 13 Cal.4th 1001, the Supreme Court considered the applicability of the enhancements to sex offense committed after the initial display of the firearm. The court found use required more than being armed. “‘Although the use of a firearm connotes something more than a bare potential for use, there need not be conduct which actually produces harm but only conduct which produces a fear of harm or force by means or display of a firearm in aiding the commission of one of the specified felonies.’” (Id. at p. 1007, original italics.) The court found the enhancement applied to all sex offenses committed after the initial display of the weapon provided the firearm use aided the commission of the offenses. (Id. at pp. 1012-1013.)

We apply these rules to the crimes to determine what use enhancements for the sex offenses involving C.W. and Rebecca may stand. The jury found true use enhancements under Penal Code section 12022.3, subdivision (a) on seven sex offenses against C.W.. C.W. testified Narayan pulled out a gun and threatened her while they were in the car. Narayan passed the gun to Kumar in the front seat and committed four sex offenses, oral copulation, two counts of rape, and attempted sodomy. Then Kumar passed the gun to Deo and assaulted C.W.. Under Masbruch, supra, 13 Cal.4th 1001, Deo is liable for personal use from the time he took the gun until the assault was completely over because the jury could have found his use of the gun facilitated the further crimes. He did not, however, personally use the gun during the first four sex offenses committed by Narayan. Accordingly, the use enhancements on counts 20, 22, 23 and 25 must be stricken.

All but two of the use enhancements on the sex offenses against Rebecca must be stricken as well. Narayan raped her at gunpoint and took her to a trailer where he raped her again, penetrated her with his finger twice, and attempted sodomy. Since Narayan had the gun all this time, Deo did not personally use the gun during any of these offenses. The use enhancements on these counts, 58, 59, 63, 64 and 65 must be stricken. After Narayan assaulted Rebecca, Deo and then Kumar raped her. The record does not indicate who had the gun during these assaults, so the personal use enhancement on counts 61 and 62 must be stricken as to Deo. Finally, the three men took turns forcing Rebecca to orally copulate them at gunpoint. Deo was the second assailant and had the gun then. Under Masbruch, supra, 13 Cal.4th 1001, he is also liable for the use enhancement on Kumar’s subsequent assault. The use enhancement on the first count of oral copulation, count 66, must be stricken.

V. Admission of Photographs

All defendants contend the trial court erred in admitting, over objection, photographs of them found in Kumar’s truck. The photographs show defendants in Deo’s apartment. Several of the photographs show a gun; in one Kumar is pointing the gun at his head and in another he is holding the gun and a bottle of beer while smoking a cigarette. One picture shows Narayan near a gun and another shows an unidentified man pointing the gun at Narayan’s head, with Deo nearby.¹⁸ The trial court admitted the photographs, finding their probative value outweighed any prejudice because they showed the defendants’ association with each other and a gun similar to that described by some victims.¹⁹

18 The only photograph of Singh shows him alone without a weapon.

19 The court excluded photographs showing defendants making gang hand signs.

Evidence Code section 352 permits a trial court to exclude evidence if its probative value is substantially outweighed by the probability it will create undue prejudice. “Rulings under Evidence Code section 352 come within the trial court’s discretion and will not be overturned absent an abuse of that discretion. [Citations.]” (People v. Minifie (1996) 13 Cal.4th 1055, 1070.) Because the photographs had some probative value and were not unduly prejudicial in this case, we find no abuse of discretion in admitting them.

Defendants contend the pictures were cumulative to show the defendants’ association because the testimony of Amit Narayan and Narayan’s boss proved defendants knew each other. Photographs need not be excluded as cumulative because they show facts established by testimony. (People v. Box (2000) 23 Cal.4th 1153, 1199.) Further, the negatives from which the pictures were developed were in Kumar’s truck when he was arrested the evening after the assault on Lori. Although there was no indication when the pictures were taken, they showed the defendants’ association predated the attack on Lori. Since Amit Narayan’s testimony was only that defendants were together that night, the photographs provided additional information.

Defendants next argue the photographs had no probative value because there was no evidence the gun in the pictures was used in any of the charged offenses. The gun depicted, however, was a partially black revolver and thus similar to the gun described by some victims, so the pictures were relevant. Besides, evidence of weapons or ammunition other than that used in the crime can be probative. (See People v. Neely (1993) 6 Cal.4th 877, 896 [not error to admit evidence of rifle and ammunition found in defendant’s car at scene of the crime although not murder weapon]; People v. Price (1991) 1 Cal.4th 324, 434 [defendant’s possession of shotgun ammunition at his mother’s residence had some probative value to establish his possession of seized shotguns].)

Finally, defendants contend admission of the photographs was error because they were extremely prejudicial. The only ones that could be prejudicial are those showing defendants with guns; the others simply show young men, some drinking beer. As the trial court noted, the pictures with the gun would likely be construed as showing defendants “clowning around.” In the context of the allegations against defendants, showing them playing with guns was not unduly prejudicial.

VI. Prosecutorial Misconduct

Singh contends the prosecutor committed incurably prejudicial misconduct in his rebuttal argument by referring to the other cases to bolster Jennifer’s credibility after Singh attacked it. Recognizing there was no objection to this argument, he contends an objection was not required because the misconduct was incurably prejudicial. If an objection was required, Singh argues counsel was ineffective in failing to make one.

In closing argument Singh’s counsel focused on Jennifer’s occupation as a prostitute and her drug habit. He argued Jennifer had consensual sex with four men in a car that night for drugs. When she realized she had been gone too long and had no money, only drugs, to show for her work and would be in trouble with her boyfriend, she made up the story of rape.²⁰ Counsel urged the jury to use its common sense.

20 The effectiveness of this argument was weakened by the failure to explore these issues on cross-examination of Jennifer. She was asked if she had raised the issue of payment after the sex acts and she said no. On redirect, she denied any of the sex acts were consensual.

The prosecutor’s rebuttal followed immediately after this argument. In responding to it, the prosecutor admitted Jennifer was acting as a prostitute that night, but gave two arguments in support of her credibility. First, he argued that because of her status and outstanding warrants she would not want any contact with the police and would not call them unless she had actually been raped. The prosecutor also urged the jury to use its common sense. “Common sense. Listen to what happened in this case as far as what Jennifer [] testified to. She testified to being picked up on Stockton Boulevard by one person, brought out to Savings Place where three additional males then came out from the bushes, and then she gets kidnapped, ultimately is raped. Doesn’t that sound an awful lot like the other rapes that have been happening in this case? [¶] So here’s a woman who made up a rape, right, makes it up for no apparent reason, and it just happens to be the same thing that’s been happening out there since October of 2000. The same old thing.”

The prosecutor’s second argument, while persuasive, violated the court order to use evidence only against the defendants charged in the applicable count. “It is misconduct for a prosecutor to violate a court ruling by eliciting or attempting to elicit inadmissible evidence in violation of a court order. [Citation.] It is also misconduct for a prosecutor to make remarks in opening statements or closing arguments that refer to evidence determined to be inadmissible in a previous ruling of the trial court. Because we consider the effect of the prosecutor’s action on the defendant, a determination of bad faith or wrongful intent by the prosecutor is not required for a finding of prosecutorial misconduct. [Citation.] A defendant’s conviction will not be reversed for prosecutorial misconduct, however, unless it is reasonably probable that a result more favorable to the defendant would have been reached without the misconduct. [Citation.] Also, a claim of prosecutorial misconduct is not preserved for appeal if defendant fails to object and seek an admonition if an objection and jury admonition would have cured the injury. [Citation.]” (People v. Crew (2003) 31 Cal.4th 822, 839.)

In asserting that an objection and admonition would have been futile, Singh contends this improper argument was “the straw that broke the camel’s back.” We disagree. While we recognize that the number of victims with similar stories bolstered the credibility of each, we conclude it was not reasonably probable that a result more favorable to Singh would have been reached without this argument. The prosecutor gave a strong, valid reason to accept Jennifer’s story of rape and her version of events was corroborated by forensic evidence. Absent any evidence to support it, Singh’s defense of consent was not compelling. For the reasons set forth above in the discussion of Singh’s motion to sever, we conclude Singh was not prejudiced by the prosecutor’s misconduct.

VII. Instructional Errors

Narayan, Singh and Deo raise several claims of instructional error. The Attorney General contends many of these contentions are waived because defendants failed to object to the instruction given below. These instructional errors, however, are reviewable on appeal without an objection to the extent they affect defendants’ substantial rights. (Pen. Code, § 1259.) Accordingly, we address the merits of each claim of instructional error.

Conspiracy Liability

CALJIC No. 6.11

The prosecution presented three possible theories of liability: direct, aiding and abetting, and conspiracy. Narayan contends the trial court erred in instructing the jury that criminal liability could be based on a theory of conspiracy. Specifically, he contends the trial court erred in giving CALJIC No. 6.11.²¹ Narayan contends that conspiracy is a crime, not a theory of criminal liability. Narayan is wrong.

21 The court instructed Narayan’s jury as follows: “Each member of a criminal conspiracy is liable for each act and bound by each declaration of every other member of the conspiracy if that act or declaration is in furtherance of the object of the conspiracy. [¶] The act of one conspirator pursuant to or in furtherance of the common design of the conspiracy is the act of all conspirators. [¶] A member of a conspiracy is guilty of the particular crime that to his knowledge his confederates agreed to and did commit. [¶] You must determine whether the Defendant is guilty as a member of a conspiracy to commit the originally agreed upon crime or crimes, and, if so, whether the crime alleged in the Information was perpetrated by a co-conspirator in furtherance of that conspiracy and it was an agreed-upon criminal objective of that conspiracy, if using the conspiracy theory of liability.

As this court explained in People v. Salcedo (1994) 30 Cal.App.4th 209, 215: “The doctrine of conspiracy plays a dual role in our criminal law. First, conspiracy is a substantive offense in itself-’an agreement between two or more persons that they will commit an unlawful object (or achieve a lawful object by unlawful means), and in furtherance of the agreement, have committed one overt act toward the achievement of their objective.’ (People v. Fujita (1974) 43 Cal.App.3d 454, 471 []; Pen. Code, § 182.) Second, proof of a conspiracy serves to impose criminal liability on all conspirators for crimes committed in furtherance of the conspiracy. Thus, ‘where several parties conspire or combine together to commit any unlawful act, each is criminally responsible for the acts of his associates or confederates committed in furtherance of any prosecution of the common design for which they combine. In contemplation of law the act of one is the act of all.’ (People v. Kauffman (1907) 152 Cal. 331, 334 [].)”

“It is long and firmly established that an uncharged conspiracy may properly be used to prove criminal liability for acts of a coconspirator. [Citation.]” (People v. Belmontes (1988) 45 Cal.3d 744, 788.) Recently, the California Supreme Court approved instructing on conspiracy as a theory of criminal liability in a capital case. In People v. Prieto (2003) 30 Cal.4th 226, the prosecution alleged conspiracy as one theory of liability for some counts, although it did not charge defendant with conspiracy. On appeal, defendant challenged the conspiracy instructions, including CALJIC No. 6.11. The court held CALJIC No. 6.11 properly informed the jury a conspirator could be vicariously liable for a crime committed in furtherance of the conspiracy only if that crime was a natural and probable consequence of the conspiracy. (Id. at pp. 249-250; see also People v. Hardy (1992) 2 Cal.4th 86, 188 [approving CALJIC No. 6.11 as correctly stating “the long-settled law of conspiracy”].)

The trial court did not err in instructing the jury on conspiracy as a theory of criminal liability.

Unanimity

Narayan contends that because voluntary intoxication, his ingestion of methamphetamine, was at issue in this case, unanimity on the theory of liability was required in order to have unanimity on the issue of intent. Voluntary intoxication, although not a defense to a crime, is admissible on the issue of specific intent. (Pen. Code, § 22; People v. Boyer (2006) 38 Cal.4th 412, 469.) Whether certain sex crimes required specific or general intent depended on the theory of liability. Narayan contends that all jurors may not have considered his defense of voluntary intoxication unless they agreed on the theory of liability. Since it is possible the jurors did not agree on his mental state, Narayan contends his Sixth Amendment right to a jury trial was violated.

The jury was fully instructed on the applicable law. The court instructed the jury that there were three possible theories of liability and it need not agree on the theory of liability. The jury was instructed that under a theory of direct and active liability, only general intent was required for rape, rape in concert, oral copulation, oral copulation in concert, sodomy and sodomy in concert. Specific intent was required for these crimes under a theory of liability based on conspiracy or aiding and abetting. Aiding and abetting required the intent of committing, encouraging or facilitating the commission of the crime. A conspiracy required the specific intent to agree to commit the crime and the specific intent to commit that crime. The jury was also instructed it could consider defendant’s voluntary intoxication in deciding whether he possessed the required specific intent.

“A unanimity instruction is required only if the jurors could otherwise disagree which act a defendant committed and yet convict him of the crime charged.” (People v. Gonzales (1983) 141 Cal.App.3d 786, 791; accord People v. Burns (1987) 196 Cal.App.3d 1440, 1458.) It is not required that the jury agree on the theory of criminal liability. (People v. Majors (1998) 18 Cal.4th 385, 408.) The requirement of jury unanimity applies to acts that could have been charged as separate offenses; the jury need not agree whether the accused was the actual perpetrator or an aider or abettor. (People v. Beardslee (1991) 53 Cal.3d 68, 92.)

These well-established rules apply in this case. The jury agreed Narayan committed the charged offenses; it was not required to agree on the theory of his liability. That only those jurors who found him liable on theories of conspiracy or aiding and abetting considered his defense of voluntary intoxication on the in concert sexual offenses did not deprive him of the jury unanimity guaranteed by the Sixth Amendment.

CALJIC No. 10.01

Singh, Narayan and Deo contend the trial court erred in instructing in the language of CALJIC No. 10.01 because that instruction told the jury that an aider and abettor was also necessarily acting in concert.²² Singh argues that acting in concert “must require some coercive participation proximate to the offense, not merely antecedent or incidental aiding or abetting.” Singh further argues the instruction improperly created an irrebuttable presumption or partially directed a verdict and violated due process. We reject these contentions.

22 The jury was instructed: “The phrase ‘acting in concert’ means two or more persons acting together in a group crime and includes not only those who personally engage in the act constituting the crime but also those who aid and abet a person in accomplishing it. To establish that a defendant voluntarily acted in concert with another person, it is not necessary to prove there was any prearrangement, planning or scheme.”

Penal Code section 264.1 provides increased punishment for one who “voluntarily acting in concert with another person, by force or violence and against the will of the victim” commits any of certain sex offenses “either personally or by aiding and abetting the other person.”

“The purpose behind the increased punishment provided for by the ‘in concert’ statute is to discourage ‘gang type’ sexual assaults. [Citation.] It also exhibits a legislative recognition that rape is even more reprehensible when committed by two or more persons. [Citation.] As its language indicates, the statute punishes persons acting in concert (together) who either personally commit the act or assist others in its commission. If both defendants ‘acting together’ each rape the victim, the ‘in concert’ clause has been satisfied, and there is no need to inquire whether one aided or abetted the other. Acting ‘in concert’ is not necessarily synonymous with ‘aiding and abetting.’” (People v. Jones (1989) 212 Cal.App.3d 966, 969.)

Contrary to Singh’s argument, acting in concert does not require participation or personal presence at the crime; aiding and abetting is sufficient. (People v. Lopez (1981) 116 Cal.App.3d 882, 888.) The Lopez court found it “difficult to conceive of a factual situation in which mere aiding and abetting would not constitute acting in concert.” (Id. at p. 887.) In People v. Calimee (1975) 49 Cal.App.3d 337, 340, the court told the jury the term acting in concert was synonymous with aiding and abetting. On appeal defendant contended this instruction was error. The appellate court found the instruction not entirely accurate because acting in concert included the principal actor as well as those who aid and abet. The instruction was accurate as applied to the facts because there was no evidence defendant actually committed the sodomy. (Id. at p. 341.)

Due to the possibility of some peculiar factual situation, the Lopez court declined to make a blanket rule that all aiding and abetting necessarily constitutes acting in concert. (People v. Lopez, supra, 116 Cal.App.3d 882, 887-888.) Defendants have not shown this case presents such a peculiar situation where aiding and abetting does not constitute acting in concert. Rather, this case presents the “gang type” sexual assaults the Legislature intended to discourage. (People v. Jones, supra, 212 Cal.App.3d 966, 969.) There was no error in instructing in the language of CALJIC No. 10.01.

Failure to Give CALJIC No. 2.71.7 Sua Sponte

Singh contends the trial court erred in failing to instruct sua sponte that evidence of his preoffense statement should be viewed with caution. Specifically, he contends the court should have given CALJIC No. 2.71.7.²³ Singh does not specify what pre-offense statement required the instruction. Presumably, he refers Jennifer’s statement that one of the two men who walked her to the car gripped her arm hard and told her not to try to run because they had guns and would kill her. Later, Singh demanded she give him oral sex.

23 CALJIC No. 2.71.7 states: “Evidence has been received from which you may find that an oral statement of [intent] [plan] [motive] [design] was made by the defendant before the offense with which [he] [she] is charged was committed. [¶] It is your duty to decide whether such a statement was made by [a] [the] defendant. [¶] Evidence of an oral statement ought to be viewed with caution.”

This instruction, when applicable, must be given sua sponte. (People v. Williams (1988) 45 Cal.3d 1268, 1315; People v. Beagle (1972) 6 Cal.3d 441, 455.) “The purpose of the cautionary instruction is to assist the jury in determining if the statement was in fact made.” (People v. Beagle, supra, 6 Cal.3d at p. 456.) “The omission, however, does not constitute reversible error if upon a reweighing of the evidence it does not appear reasonably probable that a result more favorable to defendant would have been reached in the absence of the error.” (Id. at p. 455.)

We find no prejudicial error. Omitting the instruction is not prejudicial where the issue is the credibility of the witness in general and there is no issue of conflicting evidence concerning the precise words used, their meaning or context, or whether the statements were remembered or repeated accurately. (People v. Bunyard (1988) 45 Cal.3d 1189, 1224.) In addition, here the trial court gave CALJIC No. 2.71, which advised the jury to view with caution evidence of any out-of-court statement by defendant offered to establish his guilt of the charged offenses.²⁴ “This broad cautionary instruction encompassed evidence of preoffense statements and was adequate in this case.” (People v. Lang (1989) 49 Cal.3d 991, 1021.) Singh was not prejudiced by the omission of CALJIC No. 2.71.7.

24 The jury was instructed: “An admission is a statement made by a particular defendant which does not by itself acknowledge his guilt of the crimes for which the defendant is on trial, but which statement tends to prove his guilt when considered with the rest of the evidence. You are the exclusive judges as to whether any defendant made an admission and, if so, whether such statement is true in whole or in part. Evidence of an oral admission of the defendant not made in court should be viewed with caution.”

CALJIC No. 2.21.2

The trial court instructed the jury with CALJIC No. 2.21.2. In pertinent part the instruction stated: “You may reject the whole testimony of a witness who willfully has testified falsely as to a material point, unless from all the evidence you believe the probability of truth favors his or her testimony in other particulars.” Singh contends this instruction permitted the jury to resolve credibility questions as to prosecution witnesses, particularly Jennifer, by a preponderance standard rather than the reasonable doubt standard. He contends this lessening of the prosecution’s burden of proof was federal constitutional error.

The California Supreme Court has repeatedly rejected this contention. (People v. Cleveland (2004) 32 Cal.4th 704, 751; People v. Nakahara (2003) 30 Cal.4th 705, 751; People v. Hillhouse (2002) 27 Cal.4th 469, 493; People v. Riel (2000) 22 Cal.4th 1153, 1200.) Therefore, so do we. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

Failure to Modify CALJIC No. 2.92

Deo contends the trial court erred in failing to give his requested modification of CALJIC No. 2.92 that instructed eyewitness identification should be viewed with caution. The modification was based on an instruction found sufficient in People v. Johnson (1992) 3 Cal.4th 1183.²⁵ Deo contends the trial court misapplied the law in refusing his instruction.

25 The proposed modification is not in the record. The instruction in Johnson began: “Eyewitness testimony has been received in this trial for the purpose of identifying the defendant as the perpetrator of the crime charged. You must view eyewitness identification testimony with caution and evaluate it carefully.” (People v. Johnson, supra, 3 Cal.4th at p. 1230, fn. 12.

Both Deo and Kumar proposed modifications to the standard CALJIC No. 2.92 instruction. The trial court accepted some of the suggestions.²⁶ As to Deo’s proposal, the court agreed to instruct the jury to consider eyewitness testimony “carefully,” but refused to instruct the jury to view such testimony “with caution.” The court believed such a cautionary instruction was appropriate only for accomplice testimony.

26 The court instructed the jury on eyewitness testimony as follows: “Eyewitness testimony has been received in this trial for the purpose of identifying the defendant as the perpetrator of the crimes charged. In determining the weight to be given to an eyewitness identification testimony, you should carefully consider the believability of the eyewitness, as well as other factors which bear upon the accuracy of the witness’ identification of the defendant, including but not limited to any of the following: [¶] The opportunity of the witness to observe the alleged criminal act and the perpetrator of the act, including such factors as the length of time the witness saw the perpetrator, the lighting, the distance between the perpetrator and the witness and the various physical positions of the perpetrator and the witness; [¶] The circumstances of the event and the stress, if any, to which the witness was subjected at the time of the observation; [¶] The witness’ ability following the observation to provide a description of the perpetrator of the act; [¶] The extent to which the defendant either does or does not fit the description of the perpetrator previously given by the witness; [¶] The cross-racial or ethnic nature of the identification; [¶] The witness’ capacity to make an identification; [¶] Evidence relating to the witness’ ability to identify other alleged perpetrators of the criminal act; [¶] Whether the witness was able to identify the alleged perpetrator in a photographic lineup and the composition and the circumstances of the lineup; [¶] Whether the witness identified someone else as the perpetrator; [¶] Whether the witness was able or unable to identify the alleged perpetrator in the field or at a prior proceeding; [¶] The period of time between the alleged criminal act and the witness’ identification; [¶] Whether the witness had prior contacts with the alleged perpetrator and whether the perpetrator was familiar or unfamiliar; [¶] The extent to which the witness was or remained either certain or uncertain of the identification; [¶] Whether the witness’ identification is, in fact, the product of his or her own recollection; [¶] And any other evidence relating to the witness’ ability to make an identification.”

We find no error in the court’s refusal to modify the instruction to add the proposed “with caution” language. In Johnson, the court “noted that CALJIC No. 2.92 normally provides sufficient guidance on the subject of eyewitness identification. [Citation.]” (People v. Johnson, supra, 3 Cal.4th at pp. 1230-1231.) The court’s decision did not address the added “with caution” language; rather, the opinion discussed defendant’s challenges to the wording of certain factors. (Id. at pp. 1230-1234.) “[A] case is authority only for a proposition actually considered and decided therein. [Citations.]” (In re Chavez (2003) 30 Cal.4th 643, 656.) We do not read Johnson to require the “with caution” language.

In People v. Hernandez (1988) 204 Cal.App.3d 639, 651-652, the court approved failing to modify CALJIC No. 2.92 to state eyewitness identification should be viewed with caution. The court found the opening language of the instruction contained cautionary language directing the jury to cautiously determine the weight afforded eyewitness testimony. (Id. at p. 652.) Here that cautionary language was enhanced by the addition of “carefully.”

The Supreme Court found a cautionary addition to CALJIC No. 2.92 was unnecessary in People v. Wright (1988) 45 Cal.3d 1126. Defendant requested modifying the instruction to advise the jury that eyewitness identification may be mistaken and “should be received with caution.” (Id. at p. 1152.) The court found the first modification -- that eyewitness testimony may be mistaken -- improperly usurped the fact finding function of the jury. (Id. at p. 1153.) “A special cautionary instruction is unnecessary because the ‘factors’ instruction already required properly highlights the factors relevant to defendant’s concerns about the reliability of eyewitness identification testimony in a particular set of circumstances.” (Ibid.) The trial court did not err in refusing Deo’s modification to CALJIC No. 2.92.

VIII. Cumulative Error

Singh contends the cumulative effect of errors deprived him of a fair trial. “‘[A] series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error.’ [Citation.]” (People v. Cunningham (2001) 25 Cal.4th 926, 1009.)

The only events that possibly infringed upon Singh’s right to a fair trial were counsel’s failure to sever the trial and the one instance of prosecutorial misconduct in referring to evidence of the counts in which Singh was not charged. We have analyzed these events separately and found they were not prejudicial. Taking them together, we reach the same conclusion, based on the strength of the case against Singh. We do not find Singh would have received a result more favorable in the absence of the errors (People v. Bunyard, supra, 45 Cal.3d 1189, 1237), or that Singh suffered a miscarriage of justice (People v. Hill (1998) 17 Cal.4th 800, 844). Cumulative error does not require reversal.

IX. Sentencing Errors

Full-term Consecutive Sentence on Count 32

Singh contends the trial court erred in sentencing him to a full term consecutive sentence on count 32, the second act of oral copulation in concert against Jennifer. He contends there was insufficient evidence he had an opportunity to reflect on his actions and then resume sexually assaultive behavior, as required for consecutive sentences under Penal Code section 667.6, subdivision (d). This contention has no merit.

Both counts 31 and 32 were oral copulation in concert. After Narayan raped Jennifer, Singh forced her to orally copulate him in the car. Then Deo got in the front seat and had Jennifer join him. He forced Jennifer to orally copulate him and she spat the ejaculate on the floor of the car.

Under Penal Code section 667.6, subdivision (d), full, separate and consecutive terms are to be imposed for each violent sex offense if the crimes involve the same victim on separate occasions. In People v. McPherson (2001) 86 Cal.App.4th 527, at page 530, the court reached “the virtually self-evident conclusion that discrete sexual assaults on the same victim occur on ‘separate occasions’ as that term is used in section 667.6, subdivision (d) when the assaults are personally committed by different persons even if one follows the other in rapid succession.” In sentencing Singh, the trial court followed McPherson and stated that in concert convictions where different perpetrators commit sexual offenses against the same victim are deemed section 667.6, subdivision (d) crimes. There was no error in imposing full term consecutive sentences.

Consecutive Sentences

Relying on Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435], Blakely v. California (2004) 542 U.S. 296 [159 L.Ed.2d 403], and Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856], defendants claim the court erred in imposing consecutive life or full term sentences because it relied upon facts not submitted to the jury and proved beyond a reasonable doubt. Defendants contend they were deprived of the constitutional right to a jury trial on facts legally essential to the sentence.

In People v. Black (2007) 41 Cal.4th 799, 822-823 (Black II), the court concluded the constitutional right to a jury trial is not violated by the imposition of consecutive sentences based on facts not found by a jury. Deo asserts that Black II is incorrect, but recognizes that we are bound by it. (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d 450.

Separately, Deo challenges the consecutive life sentences imposed under Penal Code section 667.6, based on the court’s finding of separate victims or independent objectives and separate acts of violence. Deo contends that Penal Code section 667.6 permits an upward departure (full term consecutive sentences) from normal sentencing under Penal Code section 1170.1 (consecutive sentences of one-third the midterm) and since the resulting sentence exceeds the statutory maximum, the bright line rule of Apprendi and Blakely applies.

Penal Code section 667.6 provides in part: “(c) In lieu of the term provided in Section 1170.1, a full, separate, and consecutive term may be imposed for each violation of an offense specified in subdivision (e) if the crimes involve the same victim on the same occasion. . . . [¶] (d) A full, separate, and consecutive term shall be imposed for each violation of an offense specified in subdivision (e) if the crimes involve separate victims or involve the same victim on separate occasions.” The crimes listed in subdivision (e) include rape and sexual penetration in concert, sodomy, and oral copulation. (Pen. Code, § 6676, subd. (e)(3), (4), & (7).)

Deo challenges the sentences imposed on counts 17, 26, 31, 32, 40, 42, 44, 45, 52, 53, 60, 61, 66, 67 and 68. He contends these counts were sentenced to consecutive terms under Penal Code section 667.6, subdivision (c) in lieu of sentencing under Penal Code section 1170.1. Deo is mistaken; he was sentenced to a consecutive term of seven years on each of these counts pursuant to Penal Code section 667.6, subdivision (d). As to these counts the court found the crimes involved separate victims, were committed in concert or involve the same victim on separate occasions where the perpetrator had a reasonable opportunity to reflect but resumed sexually assaultive behavior.

As Black II makes clear, judicial factfinding in sentencing “‘is only unconstitutional when that finding raises the sentence beyond the sentence that could have been lawfully imposed by reference to facts found by the jury or admitted by the defendant.’ [Citation.] The issue to be determined in each case is whether the trial court’s fact finding increased the sentence that otherwise could have been imposed, not whether it raised the sentence above that which otherwise would have been imposed.” (Black II, supra, 41 Cal.4th at p. 815, original italics.)

Deo could have received a full, separate and consecutive term on these counts under subdivision (c) without these factual findings. The court would have been required to state reasons for the sentencing choice (Cal. Rules of Court, rule 4.406(b)(6)), but the court would not have had to make any factual findings. The court could impose full, consecutive sentences even “if the crimes involve the same victim on the same occasion.” (Pen. Code, § 667.6, subd. (c).) Since sentencing under subdivision (d) of Penal Code section 667.6, for which factual findings were necessary, did not increase his sentence beyond the statutory maximum without factual findings under subdivision (c), the rule of Apprendi/Blakely/Cunningham does not apply.

Kidnapping Circumstance

Singh contends his due process and equal protection rights were violated by imposing a 25-year to life sentence on count 28, rape in concert, based on an aggravated kidnapping circumstance. (Pen. Code, § 667.61, subd. (d)(2).) He contends that because the aggravated kidnapping circumstance requires nothing more than that required for kidnapping to commit rape, which triggers a 15-year to life sentence, he should receive the lesser sentence. Because the statute expressly provides the harsher sentence should apply, we reject his contention.

Singh challenges portions of the one strike law, which “sets forth an alternative and harsher sentencing scheme for certain enumerated sex crimes perpetrated by force.” (People v. Manchebo (2003) 27 Cal.4th 735, 741.) It provides a sentence of 25 years to life for one convicted of certain forcible sex offenses “under one or more of the circumstances specific in subdivision (d) or under two or more of the circumstances specified in subdivision (e).” (Pen. Code, § 667.61, subd. (a).) Singh’s contention focuses on two kidnapping circumstances, one under subdivision (d) and one under subdivision (e).

Penal Code section 667.61, subdivision (d)(2) provides: “The defendant kidnapped the victim of the present offense and the movement of the victim substantially increased the risk of harm to the victim over and above that level of risk necessarily inherent in the underlying offense in subdivision (c).” This is the “aggravated kidnapping circumstance.” (People v. Jones (1997) 58 Cal.App.4th 693, 704, fn. 5.) It subjects a defendant to a sentence of 25 years to life. (Pen. Code, § 667.61, subd. (a).)

In contrast, the “simple kidnapping circumstance” (People v. Jones, supra, 58 Cal.App.4th at p. 705, fn. 6), subjects a defendant to a sentence of 15 years to life (Pen. Code, § 667.61, subd. (b)), unless there are two or more circumstances under subdivision (e). (Pen. Code, § 667.61, subd. (a).) The simple kidnapping circumstance provides: “Except as provided in paragraph (2) of subdivision (d), the defendant kidnapped the victim of the present offense in violation of Section 207, 209, or 209.5.” (Pen. Code, § 667.61, subd. (e)(1).)

Penal Code section 209 is kidnapping for ransom or for robbery or a sex crime. The portion punishing kidnapping for robbery or a sex crime with a life sentence applies only “if the movement of the victim is beyond that merely incidental to the commission of, and increases the risk of harm to the victim over and above that necessarily present in, the intended underlying offense.” (Pen. Code, § 209, subd. (b)(2).) This “risk of harm” language is very similar to the aggravated kidnapping circumstance.

Singh contends that in this case there is no distinction between the simple kidnapping and aggravated kidnapping circumstances, both require an increased risk of harm, yet one imposes a more severe punishment than the other.²⁷ He argues such arbitrary application, dependent on the prosecutor’s charging discretion, violates both due process and equal protection.

27 The Attorney General points out that the one strike law covers more crimes than the aggravated kidnapping statute. This difference has been eliminated with the passage of the Sex Offender Punishment, Control and Containment Act of 2006. (Stats. 2006, ch. 337, §§ 1, 4.)

Singh’s argument fails because he overlooks the introductory language to the simple kidnapping circumstance. It begins, “Except as provided in paragraph (2) of subdivision (d) . . . .” By this language, the Legislature recognized that in some cases the two kidnapping circumstances would be the same and chose the greater to apply. In this case, only the more severe punishment for the aggravated kidnapping circumstance applies and there is no violation of due process or equal protection.

Kumar and Deo join in this argument as to counts 24, 39, 52 and 61, on which they were sentenced to 25 years to life sentences. We reject their claims for the reason set forth above. In addition, because the jury also found true the allegation of multiple victims (Pen. Code, § 667.61, subd. (e)(5)), they had two subdivision (e) circumstances and would have received the 25-year to life sentence even without the aggravated kidnapping circumstance.

Disparate Treatment of Oral Copulation and Rape

Singh, Narayan and Deo contend their equal protection rights were violated because the means of committing rape in concert and oral copulation in concert are not identical. Rape in concert is committed “by force or violence and against the will of the victim.” (Pen. Code, § 264.1.) Oral copulation in concert may be “accomplished against the victim’s will by means of force or fear of immediate and unlawful bodily injury on the victim or another person.” (Pen. Code, § 288a, subd. (d)(1).) Singh, Narayan and Deo contend only oral copulation in concert may be accomplished by fear and there is no rational basis for elevating oral copulation in concert by fear over rape in concert by fear.

We recognize that treating sex crimes based on the act of oral copulation more severely than sex crimes based on the act of sexual intercourse may raise equal protection issues. (See People v. Hofsheier (2006) 37 Cal.4th 1185 [mandatory sex registration for one convicted of oral copulation with a minor violated equal protection where no mandatory registration requirement for unlawful sexual intercourse with a minor].) That situation is not present here. As explained above in part IV, the force or violence required for rape in concert is simply the force necessary to overcome the victim’s will; it may be accomplished by fear. (People v. Griffin, supra, 33 Cal.4th 1015, 1027-1028; People v. Mom, supra, 80 Cal.App.4th 1217, 1219.) Here, there was sufficient evidence of that degree of force as to all the in concert crimes; in each case the victim’s will was overcome by the display of weapons, threats of force and harm, and acts of physical force. Indeed, the prosecution made no distinction between the force necessary for oral copulation in concert and the force necessary for rape in concert. Narayan and Singh were not punished more severely for acts of oral copulation in concert that were less egregious than their acts of rape in concert. Their equal protection argument fails.

Multiple Victim Circumstance

At Narayan’s sentencing the trial court stated the jury found true the one strike kidnapping and multiple victim circumstances regarding counts 2 through 5, 22 through 32, and 39 through 67. Pursuant to Penal Code section 667.61, subdivision (g), as then in existence (Stats. 1998, ch. 936, § 9), the court imposed a life term with minimum parole eligibility of 25 years only once per victim in counts 2, 22, 28, 39, 49 and 58 and sentenced defendant on the remaining counts pursuant to Penal Code section 667.6.

Narayan contends the multiple victim circumstances must be stricken as to counts for which he did not receive a life sentence because “they are duplicative.” In support of this argument he quotes from People v. Stewart (2004) 119 Cal.App.4th 163, at pages 174 to 175, which held a defendant could be sentenced to only one life term under the one strike law for offenses against a single victim.

It is difficult to understand Narayan’s contention. He was sentenced in accordance with Stewart, only one life term per victim. As the Stewart court directed, the other counts were sentenced under other provisions of the Penal Code. (People v. Stewart, supra, 119 Cal.App.4th at p. 175.) Stewart does not mention striking multiple victim circumstance findings and Narayan provides no authority for striking the remaining multiple victim circumstance findings. To the contrary, at the time of sentencing Penal Code section 667.61, subdivision (f) provided: “Notwithstanding any other law, the court shall not strike any allegation, admission, or finding of any of the circumstances specified in subdivision (d) or (e).” (Stats. 1998, ch. 936, § 9; see also People v. Lopez (2004) 119 Cal.App.4th 355, 361-366 [refusing to strike multiple victim circumstance where defendant sentenced under habitual sexual offender law rather than under one strike law].) Narayan has failed to show error in his sentencing based on the multiple victim circumstances.

Penal Code section 654

Narayan contends that, if this court rejects his argument that conspiracy is not a valid theory of criminal liability, then the counts as to which he was not the perpetrator must be stayed pursuant to Penal Code section 654 because there was no separate criminal intent for those acts. As we understand the argument, Narayan contends that since conspiracy liability does not require an intent to commit each crime committed by a coconspirator, he may not have had criminal intent as to any particular crime committed by a coconspirator. We disagree.

Conspiracy liability requires a specific intent to agree or conspire and a specific intent to commit the act that is the object of the conspiracy. (People v. Belmontes, supra, 45 Cal.3d 744, 789.) Narayan’s jury was instructed on the dual criminal intent necessary to find him guilty on a conspiracy theory. Because the jury had to find the necessary criminal intent to convict Narayan under a conspiracy theory of liability, there is no basis to stay any of his sentences.

Cruel and Unusual Punishment

Singh contends his sentence of 39 years to life imposed, pursuant to the dictates of Penal Code sections 667.6 and 667.61, on a young man with no criminal record constitutes cruel and unusual punishment.²⁸ He contends his sentence violates both the federal and state constitutions, but limits his analysis to the three-part test set forth in In re Lynch (1972) 8 Cal.3d 410.

28 Without discussion or analysis, Singh raised this contention below and the trial court rejected it.

“[I]n California a punishment may violate article I, section 6, of the Constitution if, although not cruel or unusual in its method, it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.” (In re Lynch, supra, 8 Cal.3d 410, 424, fn. omitted.) To administer this rule, three techniques are used. First, we examine “the nature of the offense and/or the offender, with a particular regard to the degree of danger both present to society.” (Id. at p. 425.) Second, we “compare the challenged penalty with punishments prescribed in the same jurisdiction for different offenses which, by the same test, must be deemed more serious.” (Id. at p. 426, original italics.) Third, we compare “the challenged penalty with the punishment prescribed for the same offense in other jurisdictions having identical or similar constitutional provisions.” (Id. at p. 427, original italics.)

The trial court sentenced Singh to 25 years to life on count 28, rape in concert, pursuant to Penal Code section 667.61, subdivision (a). On counts 29 and 30, the other two rape in concert counts, he was sentenced to concurrent seven-year midterms, pursuant to Penal Code section 667.6, subdivision (c) and Penal Code section 1170.1. On counts 31 and 32, oral copulation in concert, he was sentenced to a consecutive midterm sentence of seven years on each. He received a three-year concurrent term for sexual battery in count 33. The aggregate sentence was 14 years plus 25 years to life.

Singh’s lengthy sentence was due largely to the mandates of Penal Code sections 667.61 and 667.6. These provisions reflect the legislative determination to punish violent sex offenders harshly. (People v. Manchebo, supra, 27 Cal.4th 735, 741; People v. Bestelmeyer (1985) 166 Cal.App.3d 520, 531.) Imposing severe sentences under these provisions on defendants who have no criminal record has been upheld against claims the sentences are cruel and unusual. (People v. Bestelmeyer, supra, 166 Cal.App.3d at p. 532 [129-year sentence under Penal Code section 667.6]; People v. Alvarado (2001) 87 Cal.App.4th 178, 201 [25 years to life under Penal Code section 667.6 for young defendant with no record].)

In arguing his sentence is cruel and unusual, Singh focuses on the nature of the offender. He was 21 years old when he committed the offenses and had no prior adult or juvenile criminal record. He had letters in support from his pastor, a friend, and a former coworker. He stresses he was involved in crimes against only one victim and personally committed only one crime. He did not injure anyone.

Singh understates the seriousness and danger to society of his crimes. He was convicted of five forcible sex offenses in concert, all with an aggravated kidnapping circumstance. Both the violent sex offenses and the kidnapping are per se serious crimes (Pen. Code, § 1192.7, subd. (c)), deserving of harsh punishment even absent injury to the victim. “The essential guilt of rape consists in the outrage to the person and feelings of the victim of the rape.” (Pen. Code, § 263.) “Throughout history, kidnapping has been considered among the most heinous of crimes.” (People v. Ordonez (1991) 226 Cal.App.3d 1207, 1225, fn. omitted.) In People v. Chacon (1995) 37 Cal.App.4th 52, 63, the court held that life without parole was not a cruel or unusual penalty for violating section 209, subdivision (a), aggravated kidnapping, whether the victim suffered any bodily harm or was exposed to circumstances carrying a substantial likelihood of death.

The nature of these particular offenses also supports a severe sentence. The in concert nature of the offenses showed they required planning. The evidence indicated Singh was an active participant, threatening Jennifer with harm if she resisted or tried to escape and forcing her to orally copulate him.

Singh fares no better under the second prong of the Lynch test. He argues that he will not be eligible for parole for a longer period than one who commits voluntary manslaughter, kidnapping or even murder and his sentence is longer than that imposed in more heinous sex offenses. He ignores that his one strike sentence is the result of committing more than one type of crime (rape and kidnapping) and the commission of one offense for the purpose of another and therefore cannot be compared to a single offense. (People v. Crooks (1997) 55 Cal.App.4th 797, 807 [finding 25 year to life sentence for rape in commission of burglary not cruel and unusual].) Further, his 14-year determinate sentence is due to the multiplicity of offenses by different perpetrators. “[R]ape is even more reprehensible when committed by two or more persons.” (People v. Jones, supra, 212 Cal.App.3d 966, 969.)

Singh protests that California has the harshest sentences, although he acknowledges other jurisdictions have similar sentences. That other jurisdictions allow for the same or even harsher punishment indicates Singh’s sentence is “not irrational or obviously excessive.” (People v. Alvarado, supra, 87 Cal.App.4th at p. 200; see also People v. Crooks, supra, 55 Cal.App.4th at pp. 808-809 [since at least four other jurisdictions provide life sentences for rape, one strike sentence is not disproportionately harsh].)

Singh has failed to establish that his sentence is so disproportionate to his crimes that it shocks the conscience or offends fundamental notions of human dignity. (In re Lynch, supra, 8 Cal.3d 410, 424.)

DISPOSITION

The Penal Code section 12022.3, subdivision (a) use enhancements are stricken as to Deo on counts 20, 22, 23, 25, 58, 59, 61, 62, 63, 64, 65 and 66. The matter is remanded for resentencing Deo on those counts. Otherwise the judgments are affirmed.

I concur:

NICHOLSON, J.

Concurring opinion of Sims, J.

I agree with everything in the majority opinion except for the discussion, on pages 92 - 95, that concludes that defendant Deo is not entitled to a jury trial on factors used to impose full term consecutive sentences on various counts under Penal Code section 667.6, subdivision (d) ((section 667.6); undesignated section references are to the Penal Code).

The majority opinion argues that Deo has no claim to a jury trial because full term consecutive sentences could have been imposed under section 667.6(c). The majority opinion argues, “Since sentencing under [section 667.6(d)], for which factual findings were necessary, did not increase his sentence beyond the statutory maximum without factual findings under [section 667.6(c)], the rule of Apprendi/Blakely/Cunningham does not apply.”

In my view, and with respect, I do not think this is a sound argument. I think the norm for consecutive sentencing under California law is found in section 1170.1, which provides for one-third of the middle term on a consecutive sentence. As I shall explain in a moment, section 667.6(d) provides for mandatory full term consecutive sentencing where certain factual findings are made. In my view, under Cunningham, these factual findings, which increase defendant’s sentence by 200 percent, should be made by a jury. However, as I shall explain, on this record the failure to have the jury make these findings is harmless error.

The basic theme underlying Cunningham is as follows: “This court has repeatedly held that, under the Sixth Amendment, any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence.” (Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856, 868].)

The normal sentence for consecutive sentencing under section 1170.1 is one-third of the middle term for a consecutive sentence. Section 667.6(d) changes that norm. Section 667.6(d) provides in pertinent part that “[a] full, separate, and consecutive term shall be imposed for each violation of an offense specified in subdivision (e) if the crimes involve separate victims or involve the same victim on separate occasions.” “[Section 667.6(d)] provides that the court is without discretion in the matter, but must impose full, separate, and consecutive terms ‘if such crimes involve separate victims or involve the same victim on separate occasions.’” (People v. Craft (1986) 41 Cal.3d 554, 559, fn. omitted, abrogated by statute on another point, see People v. Deloza (1998) 18 Cal.4th 585, 597.)

In People v. Black (2007) 41 Cal.4th 799 (Black), our Supreme Court held that ordinary consecutive sentencing under section 669 was not subject to Cunningham’s requirement of a jury trial. (Id. at pp. 820-823.) In reaching this conclusion, our Supreme Court said, “In deciding whether to impose consecutive terms, the trial court may consider aggravating and mitigating factors, but there is no requirement that, in order to justify the imposition of consecutive terms, the court find that an aggravating circumstance exists. [Citations.] Factual findings are not required. In imposing an upper term, the court must set forth on the record ‘facts and reasons’ [citation], including the ‘ultimate facts that the court deemed to be circumstances in aggravation’ [citation]. But it need only cite ‘reasons’ for other sentencing choices [citation] and the reasons given for imposing the consecutive sentence need only refer to the ‘primary factor or factors’ that support the decision to impose such a sentence [citations].” (Black, supra, 41 Cal.4th 799 at p. 822; italics added.)

Here, mandatory consecutive sentencing under section 667.6(d) does require factual findings, to wit, that the crimes involved separate victims or involved the same victim on separate occasions. These findings mandate a substantial increase in defendant’s sentence and, therefore, in my view are subject to Cunningham’s analysis.

The fact that the court might have imposed consecutive sentencing under section 667.6(c), without making factual findings, in my view is irrelevant. The factual findings that I have described, if they are made, mandate full term consecutive terms under section 667.6(d). This is the ultimate consequence. And, as I shall explain in a moment, where the trial judge here had an opportunity to sentence under section 667.6(c), the trial court ran the terms concurrent rather than consecutive.

Having said this, I conclude that the failure to submit the section 667.6(d) findings to a jury was harmless error on this record. Thus, “[t]he denial of the right to a jury trial on aggravating circumstances is reviewed under the harmless error standard set forth in Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705, 87 S.Ct. 824] (Chapman), as applied in Neder v. United States (1999) 527 U.S. 1 [144 L.Ed.2d 35, 119 S.Ct. 1827].” (People v. Sandoval (2007) 41 Cal.4th 825, 838; see Washington v. Recuenco (2006) 548 U.S. 212 [165 L.Ed.2d 466].)

Whether the trial court’s failure to submit aggravating factors to the jury is harmless error depends on whether we can say with reasonable certainty that the jury would have found that “the crimes involve[d] separate victims or involve[d] the same victim on separate occasions.” (§ 667.6(d).)

This court summarily said in People v. Retanan (2007) 154 Cal.App.4th 1219, that even if Blakely required a jury to make section 667.61 findings (one strike sentence shall be imposed once for offenses committed against single victim during single occasion), any error was harmless because the evidence overwhelmingly proved the defendant committed the offenses on separate occasions. (Id. at p. 1230.)

Here, any error was harmless beyond a reasonable doubt.

Thus, Deo challenges only 15 specific counts. Those 15 counts are for offenses against six separate victims. Therefore, at least six full consecutive sentences are proper.

Additionally, all of them are proper.

Among the 15 counts, there is only one relating to victim N.S. -- Count 17, oral copulation in concert. There were two other oral copulation²⁹ counts involving N.S. (Counts 15 and 16), but the trial court gave concurrent sentencing under section 667.6(c). Thus, the trial court imposed a full consecutive sentence on only one count of oral copulation as to N.S.. Since she was clearly a separate victim, defendant has nothing to complain about.

29 All oral copulation counts at issue here were for oral copulation in concert, and all rape counts were for rape in concert.

The same applies to victim C.W.. The court imposed full consecutive sentence on only one count challenged by defendant regarding C.W., Count 26.

The trial court imposed full consecutive sentences on two counts of oral copulation regarding victim Jennifer (Counts 31 and 32). However, the evidence (as set forth in the majority opinion) clearly showed multiple perpetrators (justifying full consecutive sentencing under People v. McPherson (2001) 86 Cal.App.4th 527, 530)³⁰ and multiple locations. Thus, the men drove Jennifer out into the country. Narayan had her orally copulate him in the car. They turned around and drove back. They walked her to an abandoned car and made her get in. Singh had her orally copulate him in the backseat of the abandoned car. Deo had her move to the front seat and orally copulate him there. Thus, the evidence clearly shows at least two occasions and at least two actual perpetrators, justifying full consecutive sentencing on two counts of oral copulation regarding Jennifer.

30 People v. McPherson, supra, 86 Cal.App.4th 527, held that when different attackers, acting in concert, personally commit sexual assaults on the same victim, the discrete sexual assaults on the same victim by different perpetrators constitute “separate occasions” within the meaning of section 667.6(d), even if one follows the other in rapid succession.

With respect to victim Lori, Deo complains the trial court imposed full consecutive sentences on two counts of rape in concert (Counts 40 and 42) and two counts of oral copulation (Counts 44 and 45) with respect to victim Lori.³¹ As to rape, the evidence showed Lori was raped by four different defendants in two different places. Thus, inside the car she was raped by Kumar, and then Deo got in the car and raped her, and then Prasad raped her, and then Narayan got in the car and raped her. Narayan then had her get out of the car and raped her. As to oral copulation, the evidence showed Kumar orally copulated Lori inside the car, and then -- after two others got in the car and raped her inside the car -- Narayan got in the car and forced her to orally copulate him. Narayan then took Lori out of the car and forced her mouth onto Prasad’s penis. Thus, no way could a jury find there were fewer than two separate occasions of rape and two separate occasions of oral copulation.

31 Note: As to victim Lori, Deo was also convicted of additional counts of rape and oral copulation (Counts 41 and 43), but the trial court ran those sentences concurrent under section 667.6(c) -- again indicating the trial judge’s thoughtful consideration.

With respect to victim A.T., Deo complains of full consecutive sentencing on two counts of rape in concert (Counts 52 and 53). (Again, note the court imposed concurrent sentence on a third rape count in Count 50, pursuant to section 667.6(c).) The evidence clearly showed at least two separate occasions based on separate perpetrators (under People v. McPherson, supra, 86 Cal.App.4th 527). They brought her into a house under construction. The driver raped her. Then, he called one of the other men over. This other man finally raped her after several unsuccessful attempts.

With respect to victim Rebecca, Deo complains he got full consecutive sentences on two counts of rape (Counts 60 and 61) and three counts of oral copulation (Counts 66, 67, and 68). (Again, note the trial court imposed concurrent sentencing on another count (Count 59) of rape as to victim Rebecca and two more oral copulation counts (Counts 54 and 55) pursuant to section 667.6(c), reflecting thoughtful consideration.) The evidence showed the men took Rebecca for a ride in a car and stopped at a construction site where there were trailers. One man raped her in the car while the other two men got out of the car and broke into one of the trailers. The first man then took her to a bed in the trailer and raped her again, while the other two men smoked drugs. When the first man finished, the driver came over and raped her while the first man used drugs. Then the third man took his turn and raped her. Then, one by one, in the same order, each man forced her to orally copulate him. Thus, under McPherson, the three actual perpetrators of oral copulation constituted separate occasions. And even without McPherson there was time for reflection between the first rape in the car and the subsequent rapes in the trailer.

Thus, any error in failing to submit section 667.6(d) findings to the jury was harmless beyond a reasonable doubt.