P. v. Montue

1
Filed 5/27/20 P. v. Montue CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE,
Plaintiff and Respondent,
v.
ROGER NICHOLAS MONTUE,
Defendant and Appellant.
C087029
(Super. Ct. No. 16FE005382)
Defendant and appellant Roger Nicholas Montue was charged with two counts of
lewd or lascivious acts with a child under 14 (Pen. Code, § 288, subd. (b)(1)).1 The
prosecution also alleged that defendant had a prior conviction for forcible rape (§ 261,
subd. (a)(2)), a circumstance triggering application of the “One Strike” law (§ 667.61,
subd. (d)(1)) and a serious felony and prior strike under the “Three Strikes” law (§§ 667,
subds. (a), (b)-(i), 1170.12). Defendant was found guilty by the jury on both counts.
Defendant waived jury trial on the prior conviction allegation, which the trial court found
1 Unless otherwise designated, statutory references are to Penal Code.

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to be true. The court sentenced defendant to 25 years to life on each count under the One
Strike law (§ 667.61, subd. (a)), multiplied by two to 50 years for the prior rape
conviction under the Three Strikes law (§§ 667, subd. (e)(1), 1170.12, subd. (c)(1)). The
court imposed a five-year enhancement under section 667, subdivision (a), on each count
for defendant’s prior serious felony conviction. Defendant was sentenced to an
indeterminate term of 100 years in state prison plus a determinate term of 10 years.
Defendant has raised five issues on appeal concerning: (1) the admission of the
statements of the victim, K., to her sister and mother and a letter K. wrote as “fresh
complaint” evidence; (2) the admission of both testimony and certified documents
relating to defendant’s prior guilty plea to the rape charge; (3) sentencing defendant
under the One Strike law on both counts one and two when the One Strike circumstance
was only alleged in count one; (4) sentencing defendant under both the One Strike and
Three Strikes statutes; and (5) remand under a recent revision of section 667, subdivision
(a), and section 1385, subdivision (b), which now permits a trial judge to exercise
discretion whether or not to impose a five-year enhancement for a prior serious felony
conviction.
We determine that: (1) defendant forfeited a challenge to the admission of fresh
complaint evidence by failing to request a limiting instruction or objecting to the
evidence at trial; (2) admission of testimony and documentary evidence regarding
defendant’s prior rape conviction was not error; (3) it was not necessary for the charging
document to allege a One Strike circumstance in each count to give defendant fair notice
that the prior conviction allegation applied to both counts; (4) sentencing defendant under
both the One Strike and Three Strikes law is permissible under People v. Acosta (2002)
24 Cal.4th 105 (Acosta); and (5) remand is unwarranted under revised section 667,
subdivision (a), and section 1385, subdivision (b), because the trial judge clearly
indicated he would not exercise his discretion in defendant’s favor.
The judgment is affirmed.

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FACTUAL BACKGROUND
Defendant’s Acts with K.
K. testified at trial; she was 14 at the time.2 She identified defendant in court.
K. was born in 2003. When K. was four or five, she used to visit her grandmother
frequently in Sacramento. K. would often stay overnight.
K. first met defendant, who she referred to as “Marre,” in her grandmother’s living
room. K. remembered she was wearing a long shirt and a “pull-up.” K. wore pull-ups
just when she was at her grandmother’s house. K. remembered that defendant gave her a
“weird look”; he “kind of look[ed her] up and down.”
K. remembered that defendant lived with K.’s grandmother for a short period of
time, staying in the upstairs guest room. K. acknowledged that she remembered the
layout of the house “[j]ust a little bit.” K. would stay in her grandmother’s room.
The first time K. remembered defendant doing anything to her was when he asked
K.’s grandmother if K. would like to watch a movie in the guest room. Her grandmother
asked K. if she wanted to and she said yes.
K. went into the guest room and was lying on the floor on her stomach with her
chin on her fists watching television. Defendant came in and closed the door. K. heard a
belt unbuckle. K. heard defendant pull his pants down. K. asked where her grandmother
was and defendant said, “shh.” K. tried to turn around and defendant told her to turn
back around. Defendant got down on his knees and leaned over with his hands on either
side of K.’s body. Defendant pulled down K.’s pull-up. K. kept asking for her
grandmother. K. could feel defendant’s penis in her bottom, going back and forth.
Defendant put his hand over K.’s mouth and said if she told anybody, he would kill her,
2 Pursuant to California Rules of Court, rule 8.90(b)(4), (10), we identify K., her mother,
Latrese B., and witnesses regarding prior sexual offenses, by only one initial in the case
of K., by two initials for one witness, S.T., and by the first name and initial for all others.

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and then he put his hand back down. K. was scared that defendant would kill her.
Defendant put his penis in K.’s anus and she felt pain. Afterwards she felt like her
bottom was sore. Defendant pulled K’s pull-up back up and went to take a shower.
When defendant took a shower, K. ran back to her grandmother’s room. K. did not tell
her grandmother what had happened because she was scared. Her grandmother asked her
if she liked defendant, and K. said no. K. didn’t say why.
The next time defendant did not ask K.’s grandmother if K. wanted to watch
television. When defendant was absent from the house, K. would go into the guest room
to watch television. K. was in the guest room on the floor on her stomach watching
television, again wearing a pull-up and a shirt. Her grandmother was in her own room.
Defendant came in and closed the door. Defendant put his penis in K.’s bottom. This
time K. felt wetness. Defendant pulled K.’s pull-up back up. Defendant did not say
anything to K. and she did not say anything to him. K. changed her pull-up in her
grandmother’s bathroom. Her grandmother asked K. what she was doing and K. said
nothing in response. After that, K. did not see defendant again until trial.
After these incidents, K. started wetting the bed. She did not wet the bed before.
K. wore pull-ups at her grandmother’s house before but not because she wet the bed, but
to be comfortable and to sleep with her grandmother. K. never wet the bed sleeping with
her grandmother before the incidents with defendant. Her mother and her grandmother
asked why she was wetting the bed, but K. was afraid to tell them.
K. also picked at her eyebrows. She felt like it was a stress reliever. She did not
want to tell anyone what had happened.
When K was 12, her family moved to Wilmington, North Carolina where her
family had relatives. K.’s stepfather had been murdered in front of their house in
Sacramento.
After the move, when K. was 12, she told her younger sister what defendant had
done. K. told her sister to be careful about how she acted and dressed because there are a

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lot of strange people in the world. When her sister asked why, K. said that she had been
raped when she was younger. K. told her sister not to tell their mother, but her sister did.
K.’s mother hugged her and told it would be okay and it was not her fault. K. told her
mother that defendant, her grandmother’s friend, did this to her, and that his name was
Marre.
Before K. told her sister, K. also told a friend at school what had happened after a
speaker in health class talked about rape and its aftermath. When the speaker asked if
anyone needed to go to the restroom, K. broke down crying and her friend hugged her
and said she had been through it too. K. did not tell anyone else.
K. also went to the school counselor after she wrote down her thoughts in a letter
to “Dear friends And family [sic]” about her stepfather being murdered and K. being
raped. Somebody turned the letter into the office because they thought K. might try to
kill herself. But K. was only saying she wanted to stop thinking and worrying about
being raped. K. wanted to tell someone. K discussed the letter with the school counselor.
K. did not show her mother the letter.
After K. told her mother, she was interviewed by a lady. In the interview, K.
described defendant as having dark skin. At trial, she acknowledged that defendant’s
skin is lighter than hers.
K.’s mother, Latrese B., testified that when K. was four or five she went to her
grandmother Elsie’s house in Sacramento three or four times a week. At first Latrese’s
brother was there, but then defendant (Marre) moved into her brother’s old room. The
house was two stories and had bedrooms upstairs, a full bathroom in the hallway between
two bedrooms, a full bathroom in Elsie’s room, and a half-bath downstairs.
Latrese met defendant one night when he came out of her brother’s room and
introduced himself. Latrese thought Elsie and defendant might be dating, though Elsie
said he was just renting a room. Latrese was not concerned about defendant’s presence in

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the house because K. slept with Elsie. Defendant lived with Elsie about six or seven
months.
Latrese first learned that defendant had sexually assaulted K. in May 2015 after
they had moved to North Carolina. K.’s little sister told Latrese that defendant had
touched K. when she was living at her grandmother’s house and that K. was upstairs
crying hysterically. Latrese went upstairs and found K. sitting on the floor, hunched
over, crying and shaking. K. told her mother that defendant (Marre) had touched her
when she was at Elsie’s house.
Over the following weekend, K. related the details of what happened: that
defendant pulled down K.’s pull-up, put his penis in her bottom, put his hand over her
mouth, and told he would kill her if she said anything. When K. said defendant had put
his penis in her bottom, she pointed to her anus. K. said it had happened more than once.
Over the years, Latrese had been trying to figure out what was wrong with K. K.
was pulling her eyebrows out and wetting herself. K. did not do this before she met
defendant. K. wore pull-ups at Elsie’s house even though she was toilet trained, in case
she had an accident and so she wouldn’t have to get out of bed at night. Between five
and six, K. went from being toilet trained to wetting the bed. Latrese took K. to the
hospital and was told it was stress. K. later told Latrese that she was scared to talk about
the incidents because defendant told K. he would kill her.
After Latrese learned of the assaults, she went to the police in Wilmington. K.
was interviewed. Latrese was not in the room. K. was interviewed a second time by
officers from the Sacramento and Wilmington police departments. K. was shown a
photograph that she identified as defendant. Latrese was not present for that
identification, but she also identified the photograph as defendant. After defendant
moved out of Elsie’s house, Latrese did not see him again until the trial, where she
identified him in court.

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K.’s grandmother, Elsie Qualls, testified that her granddaughter visited her
frequently in 2007 and 2008 and would often sleep with her. Elsie had a renter living
with her in her son’s room after her son moved out. Elsie met defendant, called Marre,
when they struck up a conversation in line at the telephone company and defendant said
he was looking for a room. Elsie was having financial difficulties and had decided to rent
the room after her son moved out. Elsie and defendant became friends after he moved in
and were intimate a few times. K. wasn’t there during those times.
Elsie did not believe that defendant was a danger to K. When defendant was
living at her house, Elsie had no idea that defendant had assaulted K. K. had free run of
the house and could be in another room from Elsie. Elsie never left defendant alone with
K. She could not recall a time when defendant asked if K. could watch a movie with
him. At one point, defendant did not come back to the house, leaving his belongings
behind. After defendant was gone, he wrote letters to Elsie addressed from jail, signed
“Marre.” She never saw him again until trial. Elsie identified defendant in court.
In November 2015 Elsie spoke with a detective from the Sacramento Police
Department about defendant. She told the detective that defendant had lived with her and
gave him defendant’s letters.
The detective testified that he also interviewed defendant. Defendant stated that
he did not know Elsie, Latrese, or K., and had never stayed at Elsie’s house.
Elsie recalled that K. was a happy child before defendant moved in. After
defendant moved out, K.’s personality changed; she started pulling out her eyebrows.
When Elsie asked her why, K. said she didn’t know.
Defendant’s Prior Acts
S.T.
S.T. testified at trial. She was 45 at the time.
S.T. met defendant in 1989 when they were both attending college. He asked for
her telephone number. He called her a lot, more than she was comfortable with. She

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soon realized he was interested in more than friendship. She was not attracted to him and
made that clear to him.
About a week after they met, defendant called S.T. She was upset and crying
because she was moving out of her friend’s residence. Defendant asked if he could come
over and she let him. She said they had to leave because her roommate did not like
defendant and was on her way home. They left in his car to go to a video store and then
to a liquor store to get wine coolers. S.T., then 18, was not old enough to buy alcohol;
defendant bought it. They drank and went to a park.
They went to defendant’s apartment near the park because S.T. needed to use the
restroom. S.T. became suspicious because there was no furniture in the apartment. She
had been there one time before when he offered her a ride and they stopped at his
apartment first. There had been furniture then. Defendant tried to kiss her and she
pushed him away. S.T. told him she was not interested. Defendant unzipped her jacket
and pants and said he just wanted to “taste” her. S.T. told him to stop but she was not
able to stop defendant from taking off her pants. Defendant took off his pants. S.T. was
trying to hold her legs closed but defendant forced them open. S.T. tried to protect her
vagina with her hands. He pulled her hands away. Defendant told her, “No, don’t do that
again.”
Defendant penetrated S.T. with his penis. Defendant was a large man on top of
her. He did not wear a condom. S.T. was praying and calling for her mom. Defendant
was angry and aggressive and said that this was “meant,” which S.T. did not understand.
After defendant finished, S.T. asked, “Why did you do this?” Defendant said he had to
go, he had to get out of there.
When defendant left, S.T. hid in the bedroom for a short time in case he came
back and then went to a neighboring apartment. The neighbor called the police. S.T.
talked to the police about the incident. The next time she heard from law enforcement
was 2017. She never saw defendant again until the trial, where she identified him.

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Crystal U.
Crystal U., age 38, testified at trial.
In August 1993 when she was 14, Crystal met defendant at her best friend’s
apartment complex. Crystal was walking around the pool with her friend, and they
stopped to say hi to Suzanne, an older woman who was with defendant. Crystal was
introduced to defendant and had a brief conversation with him.
Later, Suzanne asked if Crystal wanted to go the store with defendant to get a beer
and Crystal said yes. During the car ride, defendant asked Crystal how old she was and
she told him she was 14. Crystal could tell defendant was a lot older. They went to a
convenience store and bought beer and cigarettes. They went to a school, drank the beer,
and chatted. They went back to her friend’s apartment. Crystal planned to go with her
friend to another person’s house to watch movies. Suzanne came back and asked if
Crystal would go with her and defendant. Crystal did not want to go. But Suzanne was
very persistent and Crystal agreed to go if they would drop her off at the house to watch
movies.
Defendant stopped at a convenience store, bought beer, and gave Crystal beer
while they were driving around. They stopped at a friend of Suzanne’s house. Suzanne
got out and Crystal tried to get out, but Suzanne made Crystal stay with defendant.
Crystal and defendant went back to the convenience store for more beer. Crystal
told defendant she wanted to go back to the apartment complex or the house to watch
movies, but he said no. Crystal had already had three beers. She testified she was young
and little and probably completely intoxicated. She did not want more alcohol but
defendant urged her to drink more and she did.
Defendant parked in an industrial area. Crystal was feeling nauseous and asked
defendant to take her to be with her friend, but he said he wanted to sit there for a bit
longer. She wanted to roll the window down but defendant wouldn’t let her.

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Defendant started to try to recline Crystal’s seat in the car. Crystal kept pulling it
back up. Crystal thought defendant was going to hurt her. Eventually the seat stayed
down. Defendant got on top of Crystal. Defendant pulled his pants down and Crystal’s
shorts to the side. Crystal could not stop defendant because he was bigger and heavy.
After a couple minutes of trying, defendant penetrated Crystal. She told him it hurt. He
told her to be quiet and still. He was pinning her arms and legs down. He used his legs
to spread her legs. Crystal was sobbing and begging defendant to stop. When defendant
stopped, Crystal’s underwear was wet. Defendant got off Crystal quickly and pulled his
pants back up.
Crystal asked to go to her friend’s apartment, but defendant drove to his
grandparents’ apartment for her to use the telephone to get the address of the house where
she planned to go to watch movies. At defendant’s grandparents’ house, Crystal asked to
use the bathroom. Crystal didn’t want to leave the bathroom. She didn’t want defendant
to see how upset she was for fear that he would think she was going to tell. Crystal called
her friend for the address and defendant took her there. Defendant asked for her
telephone number and Crystal gave it to him. She wanted to do anything he asked so she
could get away from him.
While defendant was driving, he asked Crystal what was going to be her story
about what they did. She said she would say nothing. Defendant said that it was really
important that he believed she was not going to say anything. Crystal was afraid. When
they got to the house, defendant said he had a gun under the seat of the car. Defendant
asked Crystal for a kiss and she kissed him.
Crystal told her friend what happened. When they got back to her friend’s
apartment, her friend’s mother called Crystal’s mother who called the police. Crystal
told the police everything she testified to at trial. Crystal underwent a medical
examination. Crystal identified defendant at trial as the person who raped her in 1993.

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On September 10, 1993, defendant spoke on the telephone with a sexual assault
investigator with the Sacramento Police Department. Defendant admitted knowing
Suzanne and Crystal’s friend who lived at the same apartment complex, but denied
knowing Crystal, driving around with her, and stopping at liquor stores.
The parties’ stipulations were read to the jury that, on August 6, 1993, defendant
raped Crystal, and, on June 1, 1994, pled guilty to forcible rape, in violation of section
261, subdivision (a)(2). The parties further stipulated that defendant was incarcerated in
state prison from April 12, 2007, until his release on August 30, 2007, and was arrested
on February 8, 2008, and in custody until December 16, 2010.
Tyra D.
Tyra D., age 26, testified at trial. Tyra was with defendant, who she knew as
Marre, when he was arrested in February 2008. Tyra was 16 when she met defendant.
He offered her a ride. They exchanged telephone numbers. The second time they saw
each other Tyra told defendant her age. Defendant lied that he was in his 20’s when they
first met but disclosed older and older ages as their relationship continued.
A couple weeks after the first encounter, Tyra and defendant began having sexual
intercourse, which Tyra was willing to do when defendant asked. Tyra had regular
sexual intercourse with defendant up until the time he was arrested. They would see each
other a few times a week. Tyra would miss school to see defendant.
Defendant tried to hide that he and Tyra were seeing each other. They would have
sexual intercourse in the car or in motel rooms. Tyra drank a lot of alcohol with
defendant, which he provided.
One time in a motel room Tyra did not want to have sex with defendant.
Defendant wanted anal sex. Defendant turned Tyra over on the bed and tried to force his
penis into her anus. Tyra was trying to squeeze her buttocks shut. Defendant told her to
relax. Defendant was able to force his penis partially into Tyra’s anus. Tyra was in pain.

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Tyra told defendant she was in pain. After a minute or two, defendant stopped and got in
the shower.
Tyra was relieved when defendant was arrested. He was controlling and wouldn’t
let her have friends. Once when defendant was angry, he slapped Tyra hard in the face.
The night defendant was arrested Tyra had sex with him in the motel room.
Defendant told Tyra to tell the police that they had just met. Tyra gave a statement to
police that she had met defendant two hours earlier and that they had never had sex.
Defendant told her to say that.
Defendant wrote letters to Tyra from jail. The next time Tyra heard from law
enforcement about defendant was 2017. Tyra identified defendant in court.
DISCUSSION
Fresh Complaint Evidence
Defendant contends that the trial court erred in admitting K.’s statements to her
mother and sister about defendant and her letter under the fresh complaint doctrine.
Under the doctrine, out-of-court statements by the victim of a sexual offense are
admissible to show the victim complained, but not for the truth of the facts contained
therein. (People v Brown (1994) 8 Cal.4th 746, 763 (Brown).) Defendant argues that the
court did not “restrict[] the testimony regarding these complaints to the limited purpose
underlying the doctrine” and did not “instruct the jury that it could not consider the
evidence for its truth, but only for the fact that the complaint was made.”
However, defendant never objected to the testimony or requested a limiting or
clarifying instruction, thereby forfeiting the issue on appeal.3 The prosecutor submitted
3 Defendant’s counsel appointed after he fired his trial counsel post-verdict filed a
motion for a new trial, arguing in part that the trial court improperly admitted fresh
complaint evidence and failed to give a limiting instruction. After reviewing the parties’
briefs and hearing argument, the trial court denied the motion, noting (1) that defense
counsel at trial failed to object to questions that elicited fresh complaint evidence and (2)

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an in limine motion to admit K.’s disclosures of sexual abuse to her sister and mother and
her letter. In argument on the motion, the prosecutor offered to narrow the motion to the
fact of K.’s disclosure to the sister and counselor, while having just her mother, Latrese,
testify about what K. told her and presenting the letter. Defense counsel responded that it
was not clear the letter referred to defendant but conceded that concern went to the
weight of the evidence. Defense counsel expressed no other opposition to the motion.
When K. and Latrese testified to K.’s disclosure of the details of defendant’s
conduct with K., defense counsel did not object. The court admitted K.’s letter, in which
she referred to “getting raped,” into evidence without objection from defense counsel.
The court advised counsel that it intended to instruct the jury with CALCRIM
No. 303, which directed the jury generally to consider certain evidence only for the
limited purpose for which it was offered.4 When the trial court asked defense counsel if
he had any objection, modification, or request for further instructions, defense counsel
said no.
In Brown, the California Supreme Court set forth the fresh complaint doctrine.
(Brown, supra, 8 Cal.4th at pp. 749-750.) “[P]roof of an extrajudicial complaint, made
by the victim of a sexual offense, disclosing the alleged assault, may be admissible for a
limited, nonhearsay purpose—namely, to establish the fact of, and the circumstances
surrounding, the victim’s disclosure of the assault to others—whenever the fact that the
disclosure was made and the circumstances under which it was made are relevant to the
trier of fact’s determination as to whether the offense occurred.” (Ibid.)
the court had no obligation to sua sponte instruct the jury on the limited purpose of the
evidence. On appeal, defendant does not challenge the trial court’s denial of his motion
for a new trial.
4 CALCRIM No. 303 states: “During the trial, certain evidence was admitted for a
limited purpose. You may consider that evidence only for that purpose and for no other.”

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Under the doctrine, “details of the incident” are not allowed, but limited relevant
evidence is admissible. (Brown, supra, 8 Cal.4th at pp. 756, 760.) The evidence is
admissible only “for the limited purpose of showing that a complaint was made by the
victim, and not for the truth of the matter stated. [Citation.] Evidence admitted pursuant
to this doctrine may be considered by the trier of fact for the purpose of corroborating the
victim’s testimony, but not to prove the occurrence of the crime. [Citation.]” (People v.
Ramirez (2006) 143 Cal.App.4th 1512, 1522 (Ramirez).)
Defendant argues that, although the trial court gave CALCRIM No. 303 to the
jury, “no instruction on the limited purpose of ‘fresh complaint’ evidence was ever
provided to the jury, and, as a result, there was no direction to, or reason for, the jury not
to consider K. and Latrese’s testimony, as well as the letter, admitted into evidence, for
their truth.”
“On request, the trial court must instruct the jury as to the limited purpose for
which fresh complaint evidence was admitted.” (People v. Manning (2008)
165 Cal.App.4th 870, 880 (Manning); Brown, supra, 8 Cal.4th at p. 757.) “However, the
trial court has no duty to give such an instruction in the absence of a request.” (Manning,
at p. 880.)
Defendant did not request a limiting instruction. (Manning, supra,
165 Cal.App.4th at p. 880.) Thus, defendant forfeited on appeal any claimed failure by
the trial court to give a limiting instruction by his failure to request it. (Ibid.)
“[D]efendant is not entitled to remain mute at trial and scream foul on appeal for the
court’s failure to expand, modify, and refine standardized jury instructions.” (People v.
Daya (1994) 29 Cal.App.4th 697, 714.)
Defendant further argues that he was prejudiced because the court allowed K. and
Latrese to testify “to the details of the incidents” and admitted “her letter [which] was not
a ‘complaint.’ ” Defendant also forfeited any claim that the trial court allowed the
prosecutor to present fresh complaint evidence for its truth, or presented hearsay evidence

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that did not qualify as fresh complaint, because defense counsel failed to make a timely
and specific objection and request an admonition. (Evid. Code, § 353, subd. (a).)
Moreover, even if the trial court erred as defendant contends, the error was
harmless. K. “testified at trial, and the jury did not have to rely on her secondhand
statements to other people, but was able to hear her directly and judge her credibility.
Her fresh complaint statements were consistent with and cumulative to her trial
testimony. [Citation.]” (Manning, supra, 165 Cal.App.4th at pp. 880-881; Ramirez,
supra, 143 Cal.App.4th at p. 1526.)
The claim is forfeited and, in any event, any error was harmless.
Prior Acts
Defendant contends the trial court erred in admitting both testimony regarding the
forcible rape of Crystal U. and documentary evidence of his conviction for this crime.
Defendant argues that “[i]n admitting the documents, the court erred, since it admitted
highly prejudicial evidence regarding a prior conviction in the prosecution’s case-in-
chief, without considering the simultaneous admission of extensive testimonial evidence
and the combined effect of the two for [Evidence Code] section 352 purposes.”
The prosecution moved in limine to admit Crystal U.’s testimony concerning her
rape by defendant under Evidence Code section 1108 “through a certified record of
conviction, testimony by Crystal, photographs of Crystal at age 14, and testimony by
Officer Pearson, who investigated the case.”5 Defense counsel briefly argued against the
motion under Evidence Code section 352 because of the age difference between the five-
year-old victim and Crystal U., a teenager at the time defendant raped her. Defendant did
not object to the presentation of both testimonial and documentary evidence. The court
5 The motion in limine was also based on Evidence Code section 1101, subdivision (b),
which allows evidence of prior acts to prove intent, common plan or scheme, or lack of
consent.

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stated that it had fully considered Evidence Code section 352 factors and granted the
motion.
However, the court subsequently questioned whether documentary evidence of
defendant’s conviction had been specifically discussed and should be admitted. At this
point, defense counsel requested that trial of the prior conviction be bifurcated. The
prosecutor offered to provide further briefing on the admissibility of documentary
evidence of defendant’s prior conviction.
The prosecution filed a motion in limine, citing People v. Wesson (2006)
138 Cal.App.4th 959, 961 (Wesson), which found no error in admitting documentary
evidence as propensity evidence under Evidence Code section 1108. After reviewing the
motion and hearing argument, the trial court decided to admit documentary evidence of
defendant’s conviction. The court noted that such evidence is more probative than
prejudicial in part because “[i]t does end the uncertainty for a jury, and tends, of course,
to end any speculation that a jury may entertain about whether [defendant] was punished
or not . . . and would foreclose the possibility that they might be inclined to find him
guilty of the current charge because of uncertainty about the old uncharged crime.”
Ultimately, the parties stipulated that defendant raped Crystal U. in 1993 in
violation of section 261, subdivision (a)(2), and pled guilty to that offense in 1994.
“Evidence Code section 1108 allows propensity evidence to be used in cases
involving sexual offenses. Specifically, the statute provides that if the defendant is
charged with committing a sexual offense, then evidence that the defendant committed
other sexual offenses in the past is admissible, unless the trial court determines it should
be excluded pursuant to the weighing provisions of Evidence Code section 352.
[Citation.] This rule directly opposes the traditional view that propensity evidence should
not be admitted when determining a defendant’s guilt. [Citations.]” (People v. Lopez
(2007) 156 Cal.App.4th 1291, 1295 (Lopez).)

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“Evidence Code section 1108, subdivision (a) makes admissible ‘evidence of the
defendant’s commission of another sexual offense.’ ‘Evidence’ is defined as ‘testimony,
writings, material objects, or other things presented to the senses that are offered to prove
the existence or nonexistence of a fact.’ (Evid. Code, § 140.) Thus, while [Wesson] . . .
held that documentary evidence of prior convictions may be used to prove the defendant
committed a prior sexual offense, Evidence Code section 1108 also permits testimony
about prior sexual offenses.” (Lopez, supra, 156 Cal.App.4th at p. 1298.)
Since both testimony and documentary evidence are admissible under Evidence
Code section 1108, defendant’s argument boils down to the claim that the trial court
abused its discretion under Evidence Code section 352 in admitting both types of
evidence.
We review “the admissibility of evidence of prior sex offenses under an abuse of
discretion standard. [Citation.] A trial court abuses its discretion when its ruling ‘falls
outside the bounds of reason.’ [Citation.]” (Wesson, supra, 138 Cal.App.4th at p. 969.)
Defendant has not offered any authority for the proposition that presentation of
both testimonial and documentary evidence regarding a criminal defendant’s prior sexual
offense violates Evidence Code section 352. To the contrary, in People v. Lewis (2009)
46 Cal.4th 1255 (Lewis), the prosecution moved in limine to admit the testimony of a
victim of a prior rape by the defendant and documentary evidence concerning his
conviction for that offense. (Id. at p. 1284.)6 The trial court ruled that the evidence was
admissible. (Lewis, at p. 1284.)
6 The prior victim in Lewis testified to a brutal rape in which the defendant threatened to
“slice her throat,” threatened to kill her if she reported the incident to law enforcement,
choked her until she lost consciousness, and told her “I’m going to get you, bitch,” when
she identified him to police officers. (Lewis, supra, 46 Cal.4th at pp. 1276-1277.)

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The Supreme Court affirmed, holding that the evidence was more probative than
prejudicial under Evidence Code section 352. (Lewis, supra, 46 Cal.App.4th at p. 1287.)
In particular, the court concluded that “[t]he risk of undue prejudice was minimal.”
(Ibid.) As here, the Supreme Court reasoned that “[b]ecause defendant was convicted of
the prior rape and sentenced to prison, ‘the jury would not be tempted to convict [him]
simply to punish him for the other offense, and . . . the jury’s attention would not be
diverted by having to make a separate determination whether defendant committed the
other offenses.’ ” (Ibid., quoting People v. Falsetta (1999) 21 Cal.4th 903, 917.) In
Wesson, the trial court similarly enumerated as a factor considered in the Evidence Code
section 352 weighing process: “ ‘The fact that the defendant pled guilty to the prior
offenses and was sentenced to prison resolves the degree of certainty issue, and the jury
will not be distracted by speculating whether the defendant is or was guilty of the now
uncharged offenses and/or should be punished for them. We can also be ensured that the
jury will not be tempted to convict the defendant simply to punish him for other offenses
and their attention will not be diverted by having to make a separate determination on
whether the defendant committed those other offenses.’ ” (Wesson, supra,
138 Cal.App.4th at p. 966.)
Defendant, however, argues that “there was no end to the uncertainty” because of
the parties’ stipulations regarding prison terms defendant served in 2007 and 2008 to
2010, rather than in 1994 after defendant pled guilty to raping Crystal U. Defendant
asserts that the stipulations “[i]nstead of convincing the jury that [defendant] had ‘paid
his debt to society’ . . . suggest that [defendant] served no time at all for that offense.”
Defendant does not persuade us that the jury, informed that defendant had pled guilty in
1994 to forcible rape of a 14-year-old girl, would come to the conclusion that he had
completely avoided prison time simply because he stipulated to serving other prison
terms more than a decade later.

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We find no abuse of discretion in the trial court’s conclusion that the probative
value of this evidence outweighed any prejudicial effect.
One Strike Sentencing
Defendant contends the trial court erred in imposing a sentence of 25 years to life
on both counts one and two under the One Strike law (§ 667.61), because a circumstance
triggering the application of that statute—i.e., defendant’s prior conviction for forcible
rape (§ 261, subd. (a)(2))—was only pled under count one and not count two.
The One Strike law (§ 667.61) sets forth “an ‘alternative and harsher sentencing
scheme for certain sex crimes.’ [Citation.]” (People v. Perez (2015) 240 Cal.App.4th
1218, 1223 (Perez).) The statute requires indeterminate life terms for certain sex
offenses committed under enumerated circumstances. Among those offenses, the statute
reaches the crime of lewd or lascivious acts with a child under the age of 14 in violation
of section 288, subdivision (a). (§ 667.61, subds. (a) & (c)(8).). Circumstances
triggering application of the One Strike law include that the defendant has previously
been convicted of forcible rape (§ 261, subd. (a)(2)). (§ 667.61, subds. (c)(1) & (d)(1).)
The alternative sentence for such offenses when committed under a One Strike
circumstance is greater than the determinate sentences for the offenses alone. (§ 288,
subd. (b) [lewd or lascivious act with a child under 14 by force or fear punished by five,
eight, or 10 years in state prison].) Under the One Strike law, the sentence for a lewd or
lascivious act with a child under 14 is 25 years to life. (§ 667.61, subd. (a).)
The One Strike law mandates that “[t]he penalties provided in this section shall
apply only if the existence of any circumstance specified in subdivision (d) or (e) is
alleged in the accusatory pleading pursuant to this section, and is either admitted by the
defendant in open court or found to be true by the trier of fact.” (§ 667.61, subd. (o).)
Further, section 667.61, subdivision (f), repeatedly refers to the circumstances in
subdivision (d) of the statute as being “pled and proved” to invoke the punishment
prescribed in subdivision (a).

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In People v. Mancebo (2002) 27 Cal.4th 735 (Mancebo), the California Supreme
Court held that the prosecution must allege “which qualifying circumstance or
circumstances are being invoked for One Strike sentencing . . . .” (Id. at p. 752.) The
court said that “this outcome is dictated not only by the language of the One Strike law,
but also by due process because ‘the fair notice afforded by that pleading requirement
may be critical to the defendant’s ability to contest the factual bases and truth of the
qualifying circumstances’; may be essential for the defendant to assess his sentencing
‘exposure’; and may be necessary for the defendant to know what he must admit to if he
elects to enter a plea.’ (Mancebo, at pp. 746-747, 750, 752.)” (Perez, supra, 240
Cal.App.4th at p. 1223.) The court in Mancebo concluded that the trial court erred in
sentencing the defendant under the One Strike law for an unpled multiple victims
circumstance, even though the prosecution convicted defendant of committing crimes
against two women. (Mancebo, supra, 27 Cal.4th at p. 753.) Sentencing error occurred
because the prosecution’s pleading gave defendant notice that gun use would be one of
the circumstances supporting One Strike prison terms, but, in sentencing, the trial judge
substituted a multiple victims circumstance that was never alleged. (Ibid.)
In this case, the amended information alleged in count one that defendant
committed a lewd and lascivious act on K. in violation of section 288, subdivision (b)(1).
Count one further alleged that defendant had previously been convicted of forcible rape
under section 261, subdivision (a)(2), within the meaning of the One Strike law
(§ 667.61, subd. (d)(1)). Count two alleged that defendant violated section 288,
subdivision (b)(1), but did not include the allegation of a prior conviction for forcible
rape under the One Strike law. Count two alleged that defendant was ineligible for
sentencing to county jail due to a prior or current serious felony conviction, or because he
is a registered sex offender, but did not specifically refer to his conviction for forcible
rape or the One Strike law. In a separate section titled “Prior Conviction,” the amended

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information alleged that defendant was convicted in 1994 for forcible rape, a serious
felony and prior strike under the Three Strikes law (§§ 667, subds. (a), (b)-(i), 1170.12).
The probation report stated that the One Strike allegation under section 667.61,
subdivision (d)(1), was found true “as to Counts 1 and 2.” The report recommended
“[r]egarding Counts 1 and 2,” that defendant be sentenced to an “indeterminate term of
twenty-five (25) years to life, as to each count, doubled to fifty (50) years to life, as to
each count” under the Three Strikes law “for a total indeterminate term of one hundred
(100) years to life.” At the sentencing hearing, the prosecution urged the trial court to
sentence defendant in conformance with the recommendation of the probation report,
including consecutive sentences for each count. Defense counsel argued only “as to the
two counts, the Court has the discretion to run that concurrent with one another.”
Defense counsel did not raise an issue regarding any omission in the allegations of count
two of the amended information as to the One Strike law. The trial court determined that
the prosecutor’s argument was correct that the sentences under counts one and two must
be consecutive, because defendant’s lewd acts with K. occurred on separate occasions.
In People v. Riva (2003) 112 Cal.App.4th 981 (Riva), the defendant contended that
he could not be sentenced to 25 years to life under an enhancement for firearm use
(§ 12022.53, subd. (d)), which had not been pled in the count charging the defendant with
shooting at an occupied vehicle, although the enhancement had been alleged in two other
counts and was found true by the jury as to all three counts. (Riva, supra,
112 Cal.App.4th at p. 1001.) The court held that the requirement in section 12022.53,
subdivision (j), that the enhancement “ ‘shall be alleged in the information or
indictment’ ” was satisfied because this provision “only requires the facts necessary to
sustain the enhancement be alleged in the information; it does not say where in the
information those facts must be alleged or that they must be alleged in connection with a
particular count in order to apply to that count.” (Riva, supra, 112 Cal.App.4th at
p. 1001.)

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The court in Riva distinguished Mancebo “because the enhancement the trial court
imposed was never pled as to any count by name, number or description of the qualifying
circumstances.” (Riva, supra, 112 Cal.App.4th at p. 1002.) In Riva, the enhancement
“was pled by number and description as to some of the counts in the information, just not
the one on which the trial court imposed it.” (Ibid.) The defendant was on notice he had
to defend against the enhancement because it was alleged in the other two counts which
went to trial. (Id. at p. 1003.)
Similarly here, the allegation that defendant was convicted of a prior sexual
offense was pled in count one of the amended information, as well as a serious felony and
a strike under the Three Strikes law. The One Strike law does not require that a
qualifying circumstance be alleged in a particular count but only that the existence of the
circumstance be “alleged in the accusatory pleading . . . .” (§ 667.61, subd. (o).)
Moreover, defendant was on notice that he had to defend against the factual basis for the
application of the One Strike law. The same conviction for forcible rape was the basis
for the increased prison terms imposed for count one and count two. Any defense that
defendant presented against this circumstance as applied to count one would also apply to
count two. Further, defendant’s prior conviction for forcible rape was alleged as the basis
for a sentence to a prison term that was a multiple under the Three Strikes law of any
sentence. We conclude, as the court did in Riva, that neither the statute nor Mancebo
support defendant’s argument that the One Strike law did not apply to count two because
the circumstance of a prior forcible rape conviction was not expressly alleged in that
count.
Defendant relies on Perez, supra, 240 Cal.App.4th 1218, where the court rejected
the proposition that an allegation of a One Strike circumstance in other counts was
sufficient notice to the defendant that the circumstance applied to the count that omitted
the allegation. The court acknowledged that the pleading and proof provisions in section
12022.53, subdivision (j), and section 667.61, subdivision (o), were “nearly identical”

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and therefore “the Legislature’s decision not to require count-specific allegations” applies
with equal force to both statutes. The court nonetheless distinguished Riva because
section 12022.53 is an enhancement but section 667.61 is an alternate penalty. (Perez,
supra, 240 Cal.App.4th at p. 1227; but see Mancebo, supra, 27 Cal.4th at p. 749
[referring to pleading One Strike circumstances as “enhancement allegations”].) “Unlike
sentencing enhancements, a defendant can only plead guilty to a One Strike law crime if
the circumstances necessary to trigger that crime are pled—that is how the defendant
knows the maximum sentence he or she faces and what he or she must admit during the
plea.” (Perez, supra, 240 Cal.App.4th at p. 1227.) The court in Perez maintained the due
process concerns of Mancebo are better served by a bright line rule that “[t]he People
must allege the specific One Strike law circumstances it wishes to invoke as to each
count it seeks to subject to the One Strike law’s heightened penalties.” (Perez, supra,
240 Cal.App.4th at p. 1227.)
As Perez indicated, the rule the court adopted in that case may serve a particular
purpose when the defendant pleads guilty. But it is not an inevitable extension of
Mancebo to this case. The California Supreme Court in Mancebo derived its pleading
requirements from section 667.61, as to which Perez conceded the Legislature decided
not to include a count-specific pleading requirement. In Mancebo, the prosecution never
alleged that the defendant could face a One Strike sentence for having multiple victims.
(Mancebo, supra, 27 Cal.4th at p. 739.) Defendant here was not similarly deprived of
notice by the amended information, which alleged forcible rape as a One Strike
circumstance and a serious felony and prior strike under the Three Strikes law. The court
in Mancebo characterized the omission of the multiple victim circumstance as a
“discretionary charging decision,” in that the prosecution alleged other One Strike
circumstances against separate victims. (Mancebo, supra, 27 Cal.4th at p. 749.) That
characterization does not apply to the One Strike circumstance alleged in the amended

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information in this instance, which alleged a single One Strike circumstance concerning
one victim. We conclude the rule adopted in Perez does not apply here.
We find that defendant received fair notice in the amended information that he
was charged with an offense subject to sentencing under the One Strike law for both
counts one and two.
Sentencing Under Both One Strike and Three Strikes Laws
Defendant argues that “the court erroneously relied on both the One Strike and
Three Strikes Law in imposing sentences on counts one and two, even though [defendant]
had suffered only a single prior conviction.” As discussed, defendant’s prior conviction
for forcible rape was alleged as a One Strike circumstance and a serious felony and prior
strike under the Three Strikes law. Defendant was sentenced to two sentences of 25 years
to life under the One Strike law and those sentences were doubled under the Three
Strikes law to two sentences of 50 years to life.
Defendant relies on Acosta, supra, 29 Cal.4th 105. But that case in fact is fatal to
his claim of error. The Supreme Court in Acosta held that the Three Strikes law applies
notwithstanding a defendant’s eligibility for a sentence under the One Strike law. The
court reasoned that “the Legislature specified that the sentencing provisions of the Three
Strikes law ‘shall be applied in every case’ where a defendant has a qualifying prior
felony conviction, ‘[n]otwithstanding any other law.’ (§ 667, subd. (f)(1).) This
language indicates the intent to preclude, absent amendment of the Three Strikes law, a
subsequent Legislature from rendering the Three Strikes law’s sentencing provisions
inapplicable to a particular felony conviction, either in every case involving that
particular felony or under specified circumstances.” (Acosta, supra, 29 Cal.4th at
p. 121.)
The court in Acosta also found that the One Strike law supports applying both
laws. Section 667.61, subdivision (f), “contemplates, and indeed requires, that in some
cases, a defendant eligible for sentencing under the One Strike law will receive the

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punishment ‘authorized under any other law.’ [Citation.] Of course, the Three Strikes
law is one such law.” (Acosta, supra, 29 Cal.4th at p. 122.) Thus, the One Strike law
establishes a minimum term as a floor, “but does not require sentencing under the statute
to the exclusion of any other sentencing provisions, or preclude imposing a total sentence
that is greater than the term of the One Strike law when other factors warrant greater
punishment.” (Acosta, supra, 29 Cal.4th at p. 124.)
Defendant suggests that Acosta holds that a single triggering circumstance under
the One Strike law is expended for that purpose and unavailable for use under the Three
Strikes law, or vice versa. Not so. The Supreme Court specifically rejected this
argument, explaining that the One Strike and Three Strikes laws have different
objectives. “[B]ecause the Three Strikes law and the One Strike law serve separate
objectives, ignoring one of these statutes where a defendant meets the criteria of both
would defeat one of the Legislature’s objectives. The ‘unambiguous purpose’ of the
Three Strikes law ‘is to provide greater punishment for recidivists. [Citation.]’
[Citation.] The purpose of the One Strike law is to provide life sentences for aggravated
sex offenders, even if they do not have prior convictions.” (Acosta, supra, 29 Cal.4th at
p. 127.)
In accordance with Acosta, the trial court properly determined the basic sentence
under the One Strike law and doubled it as a second strike under the Three Strikes law.
Senate Bill No. 1393
Defendant argues that “this case should be remanded to the trial court to give that
court the opportunity to exercise its sentencing discretion to strike the Penal Code section
667, subdivision (a) enhancement in the interests of justice pursuant to [Senate Bill No.]
1393 and amended Penal Code sections 667, subdivision (a) and 1385, subdivision (b).”
On September 30, 2018, the Governor signed Senate Bill No. 1393 which,
effective January 1, 2019, amended sections 667, subdivision (a), and 1385, subdivision
(b), to permit a court to exercise discretion to strike or dismiss a prior serious felony

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conviction for sentencing purposes. (People v. Garcia (2018) 28 Cal.App.5th 961, 971
(Garcia); Stats. 2018, ch. 1013, §§ 1-2.) The prior versions of these statutes required the
court to impose a five-year consecutive term for any person convicted of a serious felony
and the court had no discretion to strike any prior conviction. (Garcia, supra,
28 Cal.App.5th at p. 971.)
Under the “Estrada rule” (In re Estrada (1965) 63 Cal.2d 740), Senate Bill
No. 1393 applies “to all cases to which it could constitutionally be applied, that is, to all
cases not yet final when Senate Bill [No.] 1393 [became] effective on January 1, 2019.”
(Garcia, supra, 28 Cal.App.5th at p. 973.)
The Attorney General agrees that Senate Bill No. 1393 applies retroactively to
defendant’s case, but disagrees that remand is appropriate “because the trial court
adamantly expressed its reluctance to reduce [defendant’s] length of confinement if it
possessed such discretion.” We agree.
Remand is required unless “the record shows that the trial court clearly indicated
when it originally sentenced the defendant that it would not in any event have stricken
[the] enhancement” even if it had the discretion. (People v. McDaniels (2018)
22 Cal.App.5th 420, 425; see also People v. Franks (2019) 35 Cal.App.5th 883, 892-893;
People v. Gutierrez (2014) 58 Cal.4th 1354, 1391.) In reviewing whether the trial court
made such an indication, we consider the trial court’s statements and sentencing
decisions. (See People v. McVey (2018) 24 Cal.App.5th 405, 419.) The trial court need
not have stated it would not strike the enhancement if it had the discretion to do so.
(Ibid.)
Here, there is a clear indication that the court would not exercise its discretion to
strike the prior serious felony enhancements. At the sentencing hearing, the parties
disputed whether defendant’s sentences on counts one and two should be concurrent or
consecutive. The court ultimately was persuaded by the prosecutor that under the One
Strike and Three Strikes laws the sentences must be consecutive because they involved

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acts that happened at different times. (See §§ 667.6, subd. (d), 667.61, subd. (i), 1170.12,
subd. (a)(6).) Nonetheless, the trial court addressed what it would have done if it had the
discretion: “And even if I did have the discretion, the Court would order them to be
served consecutively, as they were multiple acts on a very young and vulnerable child
and they were heinous acts, sodomizing this young child -- and the impact on her life is a
life sentence in itself, whether you recognize it or not, Mr. Montue.” Likewise, the trial
court found defendant statutorily ineligible for probation, but commented that if he was,
probation would not be appropriate given “his prior history of sexual assaults, the age of
the victim in this case, his continued conduct -- which the Court finds is a danger to our
community and society in general,” in addition to his six prior prison terms.
This record establishes that the trial court was not inclined in any way to exercise
discretion in favor of leniency towards defendant. We therefore will not remand this case
for resentencing under Senate Bill No. 1393.
DISPOSITION
The judgment is affirmed.
/s/
RAYE, P. J.
We concur:
/s/
ROBIE, J.
/s/
MAURO, J.

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