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March 17, 2026 Get Citation Alerts Download PDF Add Note

People v. Serrano CA2/3

California Court of Appeal

• Citations: None known
• Docket Number: B340620

• Precedential Status: Non-Precedential

• Opinion

• Authorities (33)

• Cited By (0)

• Summaries (0)

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Combined Opinion

Filed 3/17/26 P. v. Serrano CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for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

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, B340620

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA491812)
v.

CESAR ERNESTO SERRANO, JR.,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los
Angeles County, Michael Garcia, Judge. Affirmed.
Randy S. Kravis, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Amanda V. Lopez and Nicholas J. Webster,
Deputy Attorneys General, for Plaintiff and Respondent.

---

A jury convicted Cesar Serrano of sex offenses committed at
different times against three victims. On appeal, he contends
there was insufficient evidence he forcibly raped one victim, a
mistrial should have been granted based on improper expert
opinion about his guilt, the trial court incorrectly instructed that
sexual penetration by use of force is a general intent crime, and
the trial court incorrectly instructed on the element of
asportation for simple kidnapping. We conclude that sufficient
evidence supports the judgment and that prejudicial error did not
occur.
BACKGROUND
Serrano was charged with sexual offenses committed in
2017 and 2018 against three victims: Charisma P., Evelyn M.,
and Rachel R. The crimes remained unsolved until 2020, when
DNA evidence implicated Serrano in them.
I. Charisma P.
On the evening of April 13, 2017, 15-year-old Charisma P.
was at her friend Ariana’s house on Valley Boulevard and
Williams Place. When Ariana told Charisma she could not spend
the night, Charisma called her boyfriend, who said she could stay
at his place.
At about 10:00 p.m., Charisma began the 40-minute walk
to her boyfriend’s house in Lost Hills. Charisma was on Eastern
Avenue when a man approached her from behind and pressed a
gun into her back. The man told her to keep walking, removed
the clip from the gun to show her that the gun was loaded, and
then pressed the gun to her neck. They walked about 10 minutes
to El Sereno Park. The man took her to a secluded area at the
skate park where he bent Charisma over a wall, unbuckled her

2
pants, rubbed his penis against her vagina, and penetrated her
with a finger and then with his penis. The man told Charisma to
say she loved him and to call him “daddy.” He lost his erection
and reinserted his penis, but he could not stay erect.
The man pulled Charisma’s hair to bring her to her knees
to make her orally copulate him. However, Charisma kept her
mouth closed and resisted, and the man seemed to get flustered
and upset. He gave up and left.
Charisma eventually returned home, and her grandmother
took Charisma to the hospital. At the hospital, Charisma had a
sexual assault examination. Charisma had a red area on the
back of her neck and a laceration to her external genitalia and
perineum. The lacerations were consistent with the sexual
assault that Charisma reported.
Charisma testified that she did not get a good look at the
man’s face, but she identified Serrano as her assailant at trial.
II. Evelyn M.
On July 23, 2017, Evelyn M. was 13 years old. That day,
Evelyn was with her friend Mary Jane. At about 10:00 p.m.,
Mary Jane’s sister took Evelyn and Mary Jane to a party, and
Evelyn left her cellphone and house keys in the sister’s car so
that she would not lose them. At the party, Evelyn drank a bottle
of alcohol. The party lasted only about an hour because the police
shut it down. Evelyn took an Uber home.
Back at her apartment complex, Evelyn was unable to get
into her apartment and nobody answered the door. Not feeling
safe waiting outside, Evelyn decided to walk to her friend’s house
15 minutes away on foot. Feeling unwell, Evelyn stopped at the
corner of Cesar Chavez Avenue and Evergreen Avenue to catch
her breath. A man in a car asked if she needed a ride. At trial,

3
Evelyn identified Serrano as the man. Evelyn said she did not
need a ride, but Serrano showed her a gun and told her to get
into the car. Feeling she had no choice, Evelyn got into the car.
Serrano told her that they were going to have a good time.
Serrano drove her to a motel, but Evelyn did not know
where they were and could only say they had gotten on the
freeway. Telling Evelyn not to scream and to obey him or he
would kill her, Serrano held Evelyn’s hand and took her to a
room on the second floor. Once in the room, Serrano propped
chairs against the door. He removed Evelyn’s dress and kissed
her all over her body. Serrano sniffed cocaine, and pulled Evelyn
by her hair to try and make her snort some too. He then
penetrated Evelyn anally and vaginally and then anally again
with his penis. He forced Evelyn to orally copulate him.
Evelyn begged Serrano not to rape her. When she
screamed, he put his hand over her mouth and a knife to her neck
and told her not to move. He said that he enjoyed her begging,
that she was a bad girl, and that girls who were out late at night
were asking for it. Serrano told Evelyn that he would make
money by selling her to men. He told Evelyn to call him “daddy”
and that his name was Jose Rivas. Evelyn tried to leave the
room, but Serrano grabbed her arms “very hard,” pushed her
back onto the bed, and continued to rape her.
Evelyn was in the motel room with Serrano for over five
hours. It was daylight when they left. Serrano drove them to a
shopping plaza in Baldwin Park, where he said he would buy
dresses for her because he was going to turn her into a prostitute.
When Evelyn refused to tell Serrano her shoe size, he called her a
“stupid bitch,” pulled her shoes off her, got out of the car, and

4
went into a store, leaving Evelyn in the car. Evelyn ran to a
store, where an employee called the police for her.
Evelyn was taken to a hospital, where she had a sexual
assault examination. She told the examiner that she had been
anally penetrated, but she was unsure whether Serrano had
penetrated her vaginally. Evelyn had petechia to her arms,
injury to her breasts, and abrasions to her butt. The examiner
made no vaginal or anal findings but noted that only 50 percent
of reported forcible sexual assaults have visible injuries to the
genitalia. And the injuries Evelyn did have were consistent with
the sexual assault she reported.
III. Rachel R.
On July 23, 2018, 23-year-old Rachel R. was visiting
California for a wedding with her family. At the wedding that
evening, Rachel had about 10 glasses of wine. She returned with
her family to the motel where they were staying. Rachel argued
with her family and left the motel. The next thing she
remembered was waking in a house with a man on top of her
with his penis inside her vagina. Rachel testified that at “that
moment, I felt like I wasn’t completely there, and I don’t think I
said anything in the beginning, as I felt like I was not completely
coherent at the moment.” Eventually, she became more coherent
and said she should not be there and did not belong there. The
man told her to be quiet or she would wake his grandmother in
the next room. When Rachel continued to say she did not know
him and did not belong there, he put a pillow over her face, which
muffled her voice. Rachel had a hard time moving because the
man was “large and on top of me, basically holding me down.”
The man eventually stopped when Rachel started to move more.

5
After the man got off of Rachel, he lit a pipe and blew
smoke into her mouth while holding her arms to her side so that
she could not stop him. Rachel resisted and was able to get into a
sitting position. She asked if she could call her mom, and the
man allowed her to use his cellphone, but he used a code to block
the number. Rachel called her mother, who gave the phone to
Rachel’s father, but the man then hung up the phone. The man
told Rachel to be quiet and put his mouth on her vagina. Rachel
was afraid that if she pushed him away he would hurt her.
Although he told her to be quiet, she said she would scream if he
did not let her leave. The man said okay, and walked her out of
the house. Rachel ran to a gas station where a stranger let her
use his phone to call her parents.
Rachel’s parents took her to a hospital, where she had a
sexual assault examination. The examiner observed two suction
injuries on Rachel’s neck and left breast, tenderness to her wrist,
and an abrasion on her left shoulder. Rachel had multiple
bruises to her hymen, and tenderness and an abrasion to her
fossa navicularis, which is outside the entryway to the hymen.
All of Rachel’s injuries were consistent with the sexual assault
she reported.
At trial, Rachel could not identify Serrano as her attacker.
IV. The investigation
As part of the sexual assault examinations, the examiners
swabbed parts of Charisma’s, Evelyn’s, and Rachel’s bodies for
potential DNA analysis. In November 2020, the male DNA in
Rachel’s sexual assault kit was identified as Serrano’s, and,
further, it matched the male DNA in Charisma’s and Evelyn’s
cases.

6
The male DNA profile from Charisma’s neck was consistent
with Serrano’s DNA profile with a one in 600 quadrillion
probability of encountering that profile at random. The male
DNA profile from Charisma’s left breast matched Serrano’s DNA
profile with a one in two quintillion probability of encountering
that profile at random. And the male DNA profile from
Charisma’s buttocks was consistent with Serrano’s DNA profile
with a one in a hundred trillion probability of encountering that
profile at random.
The DNA on Evelyn’s right buttock and neck matched
Serrano’s DNA profile, with the odds of a random match greater
than one in one septillion. DNA on Evelyn’s anal area matched
Serrano’s DNA with a one in 20 billion chance of a random
individual having that same DNA.
DNA on Rachel’s vulva matched Serrano’s DNA profile, and
it was “three times ten to the 28 times” more likely the profile
came from Rachel and Serrano rather than from Rachel and
another person. Serrano’s DNA was also detected on Rachel’s
mouth and genitals, with high probabilities that it was Serrano’s
DNA and not a random individual’s DNA.
V. Verdict and sentence
As to Evelyn, the jury convicted Serrano of forcible rape of
a child under 14 years (Pen. Code,1 § 261, subd. (a)(2); count 1),
forcible sodomy on a victim under the age of 14 (§ 286, subd.
(c)(2)(B); count 2), forcible oral copulation on a victim under the
age of 14 years (§ 288a, subd. (c)(2)(B); count 3), and kidnapping
to commit rape (§ 209, subd. (b)(1); count 4). As to counts 1, 2,

1
All further undesignated statutory references are to the
Penal Code.

7
and 3, the jury found true special allegations, within the meaning
of section 667.61, subdivisions (e) and (j)(1), that Serrano
kidnapped Evelyn (§ 209) and had multiple convictions in the
present case for an offense of rape by force or fear, sexual
penetration by force or fear, oral copulation by force or fear,
and/or sodomy by force or fear. The jury also found as to counts 1
and 2 that Serrano personally used a deadly weapon in the
commission of the offenses (§ 12022, subd. (b)(1)).
As to Charisma, the jury convicted Serrano of forcible rape
of a child over 14 years (§ 261, subd. (a)(2); count 5), kidnapping
to commit rape (§ 209, subd. (b)(1); count 6), and forcible sexual
penetration of a minor over 14 (§ 289, subd. (a)(1(C); count 7). As
to counts 5 and 7, the jury found true special allegations, within
the meaning of section 667.61, subdivisions (e) and (j)(1), that
Serrano kidnapped Charisma (§ 209) and had multiple
convictions in the present case for an offense of rape by force or
fear, sexual penetration by force or fear, oral copulation by force
or fear, and/or sodomy by force or fear. The jury found not true
the allegations he personally used a deadly weapon in
commission of the offenses as to counts 5 and 7 (§ 12022, subd.
(b)(1)).
As to Rachel, the jury convicted Serrano of forcible rape
(§ 261, subd. (a)(2); count 9)2 and found true the special allegation
that Serrano had multiple convictions in the present case for an
offense of rape by force or fear, sexual penetration by force or
fear, oral copulation by force or fear, and/or sodomy by force or
fear (§ 667.61, subds. (e), (b)).
On September 5, 2024, the trial court sentenced Serrano to
consecutive life without parole terms on counts 1 and 5 plus 15

2
The People dismissed count 8.

8
years to life on count 9. The trial court imposed concurrent life
without parole terms on counts 2, 3, and 7 and imposed but
stayed life without parole terms on counts 4 and 6.
DISCUSSION
I. Sufficiency of the evidence to support Serrano’s conviction
for the forcible rape of Rachel
Serrano contends that the evidence was insufficient to
prove he forcibly raped Rachel. We disagree.
The substantial evidence standard of review requires us to
“ ‘review the entire record in the light most favorable to the
judgment to determine whether it contains substantial
evidence—that is, evidence that is reasonable, credible, and of
solid value—from which a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt. [Citation.] We
presume in support of the judgment the existence of every fact
the trier of fact reasonably could infer from the evidence.
[Citation.] If the circumstances reasonably justify the trier of
fact’s findings, reversal of the judgment is not warranted simply
because the circumstances might also reasonably be reconciled
with a contrary finding. [Citation.] A reviewing court neither
reweighs evidence nor reevaluates a witness’s credibility.’ ”
(People v. Covarrubias (2016) 1 Cal.5th 838, 890; Jackson v.
Virginia (1979) 443 U.S. 307, 318–319.) Our “task is not to
resolve credibility issues or evidentiary conflicts, nor is it to
inquire whether the evidence might ‘ “ ‘be reasonably reconciled
with the defendant's innocence.’ ” ’ ” (People v. Gomez (2018) 6
Cal.5th 243, 278; accord, People v. Rodriguez (1999) 20 Cal.4th 1,
12 [reversing court of appeal that reweighed evidence].) Rather,
we must accept any logical inferences the finder of fact might

9
have drawn from the evidence, and we may set aside a judgment
only if it clearly appears that on no hypothesis is there
substantial evidence to support the verdict. (People v. Sanghera
(2006) 139 Cal.App.4th 1567, 1573.)
Turning to the substantive offense, section 261 defines rape
as an act of sexual intercourse accomplished under any of seven
circumstances.3 One circumstance of forcible rape occurs when
the victim is “unconscious of the nature of the act, and this is
known to the accused.” (§ 261, subd. (a)(4).) “ ‘[U]nconscious of
the nature of the act’ ” includes where the victim is unconscious
or asleep. (§ 261, subd. (a)(4)(A).) Serrano was not charged with
or convicted under that circumstance.
Instead, Serrano was convicted of forcible rape under
subdivision (a)(2) of section 261, which provides that another
circumstance of forcible rape is where it is accomplished “against
the person’s will, by means of force, violence, duress, menace, or
fear of immediate and unlawful bodily injury on the person or
another.” The physical force used need only be of a degree
sufficient to support a finding that the sexual intercourse was
against the victim’s will. (People v. Griffin (2004) 33 Cal.4th
1015, 1023–1024.) The degree of necessary force is not
substantially different from or greater than the physical force
normally inherent in an act of consensual sexual intercourse.
(Id. at p. 1023.) There is no requirement that the victim
physically resist the defendant. (Id. at pp. 1024–1025; People v.
Dearborne (2019) 34 Cal.App.5th 250, 258.)

3
The circumstances describe different offenses, and a
defendant may be convicted of more than one for a single act of
intercourse but punished only once under section 654. (People v.
White (2017) 2 Cal.5th 349, 352.)

10
Here, Serrano argues that there was insufficient evidence
of a forcible rape because Rachel was unconscious when he began
sexual intercourse with her, and what happened when she woke
up did not amount to force. (See, e.g., People v. Brown (2017)
11 Cal.App.5th 332, 340 [insufficient evidence of force where
defendant tried to penetrate victim, victim pushed him away,
victim passed out, and any sex act occurred after victim passed
out].) Not so. Rather, when Rachel gained consciousness, she
was not initially coherent, but she knew she should not be there
and did not belong there. Serrano concedes that Rachel
communicated these thoughts, but he asserts they merely spoke
to the “notion that she should not be present in that situation”
and did not “communicate a desire not to engage in intercourse.”
However, the jury could reasonably infer or understand Rachel’s
statements to convey that she did not want to engage in
intercourse, especially given the context in which she made those
statements: waking up in an unfamiliar house with an
unfamiliar man who was having sexual intercourse with her.
Serrano also dismisses evidence he put a pillow over
Rachel’s face as merely an effort to stop her from waking his
grandmother and not to overcome her will to resist. Again, the
jury could infer from this evidence that Rachel was vocalizing her
resistance, and Serrano quieted her resistance by putting a pillow
over her face. Moreover, Rachel testified that Serrano was on top
of her, basically holding her down. The jury could find that
Serrano used his body to restrain Rachel. (See, e.g., People v.
Dearborne, supra, 34 Cal.App.5th at p. 259 [sufficient evidence of
forcible rape where defendant used his entire body to pin victim
down]; see People v. Griffin, supra, 33 Cal.4th at p. 1029 [force
element satisfied where defendant pinned victim’s arms during

11
intercourse].) Indeed, it was only when Rachel was able to move
more—i.e., physically resist more—that Serrano got off of her.
We therefore conclude that there was sufficient evidence to
support Serrano’s conviction of forcibly raping Rachel.
II. Admission of opinion evidence
Serrano next contends that the jury heard improper expert
opinion testimony that required a mistrial. The issue arose
during cross-examination of Detective Danetta Minifee, who
swabbed Serrano to obtain a DNA sample. Defense counsel
questioned the detective about her efforts to get video
surveillance of places Evelyn testified about, asking whether
having video surveillance of the suspect’s face “would be pretty
big in this investigation, would it not?” The detective responded,
“Also DNA.” At defense counsel’s request, the trial court struck
the testimony and told the jury to “disregard that in your
deliberations.” Defense counsel did not then ask for a mistrial.
Serrano characterizes the detective’s testimony as a lay or
expert opinion on his guilt. (See generally, Evid. Code, § 800 [lay
witness may express opinion based on witness’s own perception
where helpful to clear understanding of the witness’s testimony];
Evid. Code, § 801 [expert may provide opinion on subject that is
sufficiently beyond common experience and that would assist
trier of fact].) A witness, whether lay or expert, may not express
an opinion on the defendant’s guilt or innocence because that
opinion is of no assistance to the trier of fact. (People v. Duong
(2020) 10 Cal.5th 36, 60.)
Here, the detective did not expressly opine on Serrano’s
guilt or innocence. Instead, when asked if having video of the
suspect’s face would be “pretty big” in the investigation, the
detective responded that DNA was “also” part of the

12
investigation. Thus, the detective did not answer whether having
a picture of the suspect’s face would be valuable. Therefore, the
answer was not responsive to the question, and, as such, properly
stricken. (See generally, Evid. Code, § 766 [unresponsive
answers shall be stricken on party’s motion].)
But even if the detective’s comment could be construed as a
suggestion that Serrano was guilty because of the DNA evidence,
it still would not warrant a mistrial. “ ‘ “ ‘A mistrial should be
granted if the court is apprised of prejudice that it judges
incurable by admonition or instruction. [Citation.] Whether a
particular incident is incurably prejudicial is by its nature a
speculative matter, and the trial court is vested with considerable
discretion in ruling on mistrial motions. [Citation.]’ [Citation.]
A motion for a mistrial should be granted when ‘ “ ‘a [defendant’s]
chances of receiving a fair trial have been irreparably
damaged.’ ” ’ ” ’ ” (People v. Dalton (2019) 7 Cal.5th 166, 240.)
Serrano’s counsel did not move for a mistrial, and therefore
the issue is arguably forfeited. (See, e.g., People v. Carrasco
(2014) 59 Cal.4th 924, 965.) But even if Serrano preserved the
issue, the detective’s statement did not irreparably damage his
chance of receiving a fair trial. As we have said, the detective’s
comment was very brief, and the trial court immediately struck it
and told the jury to disregard it. Such a curative admonishment
helps cure any prejudice that might result from erroneously
admitted evidence. (See, e.g., People v. Wharton (1991) 53 Cal.3d
522, 566.) Moreover, defense counsel did not dispute that
Serrano’s DNA was on the victims, although he did argue that he
did not rape or kidnap them. Therefore, Serrano’s defense was
not based on contesting identity. Stated otherwise, he did not

13
contest that DNA played a role in identifying him, which is what
the detective said.
The cases Serrano cites for the proposition that a witness’s
single improper statement can irreparably damage a defendant’s
chance of a fair trial do not support that a mistrial should have
been granted. In People v. Navarette (2010) 181 Cal.App.4th 828,
831, a detective willfully violated a court order by referring to the
defendant’s statement, which had been suppressed under
Miranda. The court held that the defendant’s mistrial motion
should have been granted because the jury was likely to
understand that the defendant had confessed. In People v.
Bentley (1955) 131 Cal.App.2d 687, 690,4 a police officer testifying
in a sexual assault case involving a minor victim said that the
defendant had been a suspect in a prior case. The appellate court
held that the defendant’s mistrial motion should have been
granted.
Navarette and Bentley thus involved egregious references,
respectively, to a defendant’s confession and to a prior uncharged
sexual assault. In contrast, the detective here referred to DNA
evidence linking Serrano to the victims, a point the defense did
not dispute. What happened here is simply not akin to the
prejudice flowing from a jury hearing that a defendant had
confessed and that a defendant had committed a similar sexual
assault.
III. Instructional error on general and specific intent crimes
The trial court incorrectly instructed the jury that count 7
for sexual penetration by use of force is a general intent crime,

4
Disapproved on other grounds in People v. White (1958) 50
Cal.2d 428, 430–431.

14
when it is a specific intent crime. As we now explain, the error
was not prejudicial.
Criminal defendants have the right to “a jury
determination that the defendant is guilty of every element of the
crime with which he is charged, beyond a reasonable doubt.”
(United States v. Gaudin (1995) 515 U.S. 506, 510.) Thus, a “trial
court has a sua sponte duty to instruct the jury on the essential
elements of the charged offense.” (People v. Merritt (2017) 2
Cal.5th 819, 824.) A court’s failure to instruct on the elements of
an offense or any misinstruction that relieves the jury of its
burden to find the defendant guilty of every element beyond a
reasonable doubt violates a defendant’s due process rights.
(People v. Hendrix (2022) 13 Cal.5th 933, 942.) We determine the
correctness of jury instructions from the entire charge of the
court. (People v. Bolin (1998) 18 Cal.4th 297, 328.) And we
review a claim of instructional error de novo. (People v. Mitchell
(2019) 7 Cal.5th 561, 579.)
The trial court instructed the jury with CALCRIM No. 252
as follows:

All the crimes and allegations charged require
proof of the union, or joint operation, of act and
wrongful intent.
The following crimes and allegations require
general criminal intent: Forcible Rape as charged in
Counts 1, 5, and 9; Sodomy by Use of Force, as
charged in Count 2; Forcible Oral Copulation, as
charged in Count 3; Sexual Penetration by Use of
Force, as charged in Count 7; … For you to find a
person guilty of these crimes …, that person must not
only commit the prohibited act, but must do so with
wrongful intent. A person acts with wrongful intent
when he or she intentionally does a prohibited act;

15
however, it is not required that he or she intend to
break the law. The act required is explained in the
instruction for that crime or allegation.
(Italics added.)

Contrary to this instruction, sexual penetration by use of
force is a specific intent crime that requires the People to prove
that the defendant penetrated the victim with the intent to gain
sexual arousal or gratification or to inflict abuse on the victim.
(People v. ZarateCastillo (2016) 244 Cal.App.4th 1161, 1166–
1167.) We therefore must consider whether the incorrect
instruction prejudiced Serrano.
Courts are in conflict as to the proper standard for
assessing prejudice for this type of error, with some suggesting
that the “ ‘reasonable likelihood’ ” standard in People v. Watson
(1956) 46 Cal.2d 818 applies (see, e.g., People v. Ngo (2014) 225
Cal.App.4th 126, 158, 162–163), and others applying the beyond-
a-reasonable-doubt standard of Chapman v. California (1967)
386 U.S. 18, 24 (see, e.g., People v. ZarateCastillo, supra, 244
Cal.App.4th at pp. 1168–1169). (See generally, People v.
Saavedra (2018) 24 Cal.App.5th 605, 615.)
We need not decide under what standard we review the
error, because it was harmless under either the Watson or
Chapman standard. In addition to convicting Serrano of forcible
sexual penetration of a minor victim over 14 (§ 289, subd.
(a)(1(C)), the jury also convicted him of kidnapping to commit
rape (§ 209, subd. (b)(1); count 6), which is also a specific intent
crime. The jury would not have found that Serrano kidnapped
Charisma to rape her for the purpose of sexually gratifying
himself but penetrated her for some other purpose.

16
Moreover, the record contains no evidence that Serrano had
some purpose other than his sexual gratification or arousal in
penetrating Charisma. Instead, he kidnapped a 15-year-old girl,
took her to a secluded area, told her to say she loved him and to
call him “daddy,” and penetrated her with his fingers and penis.
Courts considering similar circumstances and error have found
that the sexual abuse could have been committed for no other
than purpose than a sexual one. In People v. Canales (2024) 106
Cal.App.5th 1230, for example, the trial court misinstructed the
jury that continuous sexual abuse was a general intent crime,
when it is a specific intent crime. In finding the error harmless
beyond a reasonable doubt, the appellate court said, “Only one
reason explains why an adult man, in secret, touches a girl’s
vagina and, afterwards, gives her money and tells her not to tell
her mother, and does so repeatedly. … Canales’s purpose was to
cause sexual arousal. No other mental state fits the facts.” (Id.
at p. 1251; accord, People v. Saavedra, supra, 24 Cal.App.5th at
p. 616 [“The record on appeal—which we have carefully
reviewed—contains no evidence that could rationally lead to a
finding the act of penetration … was committed for a purpose
other than sexual arousal, gratification, or abuse”]; People v.
ZarateCastillo, supra, 244 Cal.App.4th at p. 1169 [“Nor is there
any basis for believing that the jury could have, under any
circumstances, rationally found that defendant penetrated the
victim’s vagina for any purpose other than sexual abuse, arousal,
or gratification”].)
Finally, the trial court otherwise properly instructed the
jury with CALCRIM No. 1045, that sexual penetration by force
required the People to prove that Serrano penetrated the victim
“for the purpose of sexual abuse, arousal, or gratification.”

17
Considering the jury instructions as a whole, therefore, the jury
would have understood that an element of the crime was
Serrano’s sexual self-gratification or arousal.
Serrano, however, dismisses CALCRIM No. 1045, citing
People v. Maurer (1995) 32 Cal.App.4th 1121 for the proposition
that reversal is required where a trial court gives conflicting
instructions. In that case, the court gave conflicting instructions
on motive. On the substantive offense of child annoyance, the
court instructed that the conduct had to be motivated by an
unnatural or abnormal sexual interest in the victim. (Id. at
p. 1125.) But a separate instruction stated that motive was not
an element of the crime charged and need not be shown. (Ibid.)
The appellate court found the conflicting instructions to be
prejudicial error because it could not conclude based on the state
of the evidence that the error was harmless beyond a reasonable
doubt. In contrast, and as we have said, the evidence here,
beyond a reasonable doubt, showed that Serrano forcibly
penetrated Charisma for a sexual purpose.5
IV. Instructional error on lesser included offense of simple
kidnapping
The trial court instructed the jury on kidnapping to commit
rape as to Charisma and on its lesser included offense of simple
kidnapping (count 6). Serrano contends, and the Attorney

5
Because we conclude that Serrano was not prejudiced by
any error in CALCRIM No. 252, we need not address his
alternative claim that his trial counsel provided ineffective
assistance of counsel by failing to object to the instruction. (See
generally, Strickland v. Washington (1984) 466 U.S. 668, 687
[ineffective assistance of counsel claim requires a showing of
error and prejudice].)

18
General concedes, that the simple kidnapping instruction
incorrectly defined the asportation element of that crime.
Kidnapping for rape and simple kidnapping both have an
asportation element. (§§ 207, 209, subd. (b)(2); see generally
People v. Waqa (2023) 92 Cal.App.5th 565, 577.) Kidnapping for
rape requires the defendant to move the victim, and the
movement must not be merely incidental to the rape. (§ 209,
subd. (b)(2).) The movement must “increase[ ] the risk of harm to
the victim over and above that necessarily present in” the rape.
(Ibid.; People v. Rayford (1994) 9 Cal.4th 1, 22.) In making this
determination, a jury should consider whether the movement
decreased the likelihood of detection, increased the danger
inherent in a victim’s foreseeable attempts to escape, or enhanced
the attacker’s opportunity to commit additional crimes. (Rayford,
at p. 13.)
In contrast, the asportation element of the lesser included
offense of simple kidnapping requires only that the defendant
move the victim a substantial distance and that the movement
was not merely incidental to the sexual offense. (§ 207, subd. (e);
People v. Waqa, supra, 92 Cal.App.5th at p. 583.) Whether the
movement was substantial depends on the totality of the
circumstances, including the actual distance the defendant
moved the victim, whether the movement increased the risk of
harm above that which existed before the asportation, decreased
the likelihood of detection, and increased the danger inherent in
the victim’s foreseeable attempts to escape and the attacker’s
enhanced opportunity to commit additional crimes. (People v.
Perkins (2016) 5 Cal.App.5th 454, 465.) While a jury may
consider the risk of increased harm, it is not a necessary finding,
as it is for aggravated kidnapping. (Ibid.)

19
In sum, the difference between kidnapping for rape and
simple kidnapping is that the former requires the defendant to
move the victim a substantial distance and increase the risk of
harm to the victim, while the latter requires only that the
defendant move the victim a substantial distance.
In accord with this law, the trial court correctly instructed
the jury on kidnapping for rape, that substantial distance “means
more than a slight or trivial distance. The movement must have
increased the risk of physical or psychological harm to the person
beyond that necessarily present in the rape, oral copulation, or
sodomy. In deciding whether the movement was sufficient,
consider all the circumstances relating to the movement.”
(CALCRIM No. 1203.) But, contrary to the law, the trial court
modified the standard instruction on simple kidnapping and
included the same definition of “substantial distance” in its
simple kidnapping instruction. (CALCRIM No. 1215.)6 In doing
so, the trial court incorrectly instructed that the lesser offense of
simple kidnapping required the movement to increase the risk of

6
CALCRIM No. 1215, unmodified, provides: “Substantial
distance means more than a slight or trivial distance. In deciding
whether the distance was substantial, you must consider all the
circumstances relating to the movement. [Thus, in addition to
considering the actual distance moved, you may also consider
other facts such as [whether the distance the other person was
moved was beyond that merely incidental to the commission of
[the associated crime], whether the movement increased the risk
of [physical or psychological] harm, increased the danger of a
foreseeable escape attempt, or gave the attacker a greater
opportunity to commit additional crimes, or decreased the
likelihood of detection.]”

20
physical or psychological harm to Charisma beyond that
necessarily present in the rape.
In addition to the substantive offense, Serrano was charged
with special allegations under the “One Strike” law, section
667.61, which, if found true, subjected him to an alternative,
harsher sentencing scheme. The jury was instructed that if it
found Serrano guilty of the crimes charged in counts 1, 2, 3, 5,
and 7, it had to decide whether, for each crime, the People proved
the additional allegation that Serrano “kidnapped Evelyn M. and
Charisma P.” To decide that, the instruction referred the jury to
the separate kidnapping instructions, including CALCRIM No.
1215, which included the incorrect statement of law.
Serrano asserts that adding the improper requirement to
CALCRIM No. 1215 made it more difficult for jurors to find him
guilty of simple kidnapping. This forced the jury into an all-or-
nothing choice between the charged offense and acquittal.
However, under either the Watson or Chapman standard,
the error here was harmless. In arguing that it is probable the
jury would have found he did not increase the risk of harm to
Charisma by moving her to the park, Serrano focuses on the
public nature of the park. He concedes that had he moved
Charisma from a public area to a private indoor one, there would
have been little doubt he increased the risk of harm to her. (See,
e.g., People v. Arias (2011) 193 Cal.App.4th 1428, 1435 [moving
victim from public area to “seclusion of his apartment” increased
risk of harm to victim].) But, he asserts, all he did was move
Charisma from one public area, a street, to another public area, a
park.
We are unpersuaded. A substantial change in the context
of the environment suggests a movement that is not incidental to

21
the rape. (People v. Rayford, supra, 9 Cal.4th at p. 23.) Thus,
moving a victim from a public area to a place out of public view
can increase the risk of harm to the victim. (People v. Shadden
(2001) 93 Cal.App.4th 164, 169.) In Rayford, at page 23, for
example, the defendant moved the victim 105 feet at night from a
closed store’s parking lot to the other side of a wall at the lot’s
edge. A wall, trees, and bushes limited any passerby’s view. The
court held that the jury could reasonably conclude that forcibly
moving the victim under these circumstances was not merely
incidental to the attempted rape and substantially increased her
risk of harm. (Ibid.)
In People v. Diaz (2000) 78 Cal.App.4th 243, 248 to 249, the
defendant moved the victim from a bus stop at a lit intersection,
into a park, and then to the back side of a recreation building to
assault her. The court said, “The scope and nature of the
movement dramatically changed the environmental context.” (Id.
at p. 248.) Accordingly, the “forcible movement of the victim into
the darkened park and behind a large building was properly
found by the jury to have been more than incidental to the sexual
assault.” (Id. at p. 249.)
Although the issues in Diaz and Rayford were whether the
evidence was sufficient to support the kidnapping charges, they
nonetheless support that any error in the CALCRIM No. 1215
was harmless. Similar to those cases, Charisma was on a public
street when Serrano forced her at gunpoint to walk about 10
minutes to El Sereno Park, where Serrano forced her to an even
more secluded area near the skating park. Although the park
was a public place, it was nonetheless out of public view.
Charisma described the park as secluded, and it was after
10:00 o’clock in the evening, a time when public parks would

22
either be closed or parkgoers likely would not be present. Thus,
Serrano moved Charisma from an open street where people
walking or driving by could see her to a secluded area where it
was unlikely anyone would pass by.7 In doing so, Serrano
increased the psychological harm to Charisma, whose chances of
help were greatly diminished by the movement.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS

EDMON, P. J.

We concur:

EGERTON, J.

ADAMS, J.

7
What happened to Evelyn demonstrates the point. Before
Serrano kidnapped Evelyn on the street, a couple in a car asked
Evelyn if she needed help, but she refused. Thus, while Evelyn
was on a public street, even late at night, there were increased
opportunities for help or of detection of a crime.

23