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Feb. 26, 2026 Get Citation Alerts Download PDF Add Note

People v. Acosta CA4/1

California Court of Appeal

• Citations: None known
• Docket Number: D086916

• Precedential Status: Non-Precedential

• Opinion

• Authorities (21)

• Cited By (0)

• Summaries (0)

• Similar Cases (44K)

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Combined Opinion

Filed 2/26/26 P. v. Acosta CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D086916

Plaintiff and Respondent,

v. (Super. Ct. No. RIF2203105)

MARLON ACOSTA,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Riverside County,
Jason Armand, Judge. Affirmed.
Joanna McKim, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Assistant Attorney General, Robin
Urbanski and Juliet W. Park, Deputy Attorneys General, for Plaintiff and
Respondent.
Marlon Acosta appeals from a judgment after a jury found him guilty of

sexual penetration by force against J.L. (Pen. Code,1 § 289), attempted
sodomy of J.L. (§§ 664, 286), kidnapping of J.L. to commit robbery, rape, oral
copulation, sodomy (§ 209), sexual intercourse by force against L.C. (§ 261),
and assault of L.C. to commit rape, sodomy, oral copulation during a first-
degree burglary (§ 220). The court also found true multiple aggravating
factors. Acosta contends that: (1) there was insufficient evidence to support
his convictions related to J.L.; (2) the trial court erred in limiting his
impeachment of a witness; (3) the trial court erred in admitting evidence of
an uncharged act; and (4) the prosecutors committed misconduct. We
disagree with Acosta’s contentions and affirm the judgment.
I. FACTUAL AND PROCEDURAL BACKGROUND
At trial, the People presented evidence from two named victims, J.L.
and L.C., and a third woman, A.C., who testified to uncharged conduct. They
also called expert witnesses to testify regarding relevant DNA evidence.
1. J.L.: Counts 1, 2, and 3
J.L. went for a run in the early morning hours of June 16, 2010. While
on her run, she passed two men. One of them wore a black hooded sweatshirt
with the hood over his head. J.L. described the other as “a short person, dark
skin, and he was wearing a white and black striped shirt, and dark pants.”
Shortly after passing the men, J.L. felt someone grab her from behind
and begin choking her, telling her he had a knife and a gun. She observed
that his sleeve was a thick black sweatshirt. J.L. lost consciousness and
came to near a trash bin. Her assailant kept one hand around her neck and
tried to touch under her clothing with the other. He began to pull at her
pants, continuing to apply pressure to her neck. J.L. bargained with her

1 Further undesignated statutory references are to the Penal Code.
2
assailant for her safety, offering to lower her pants if he would let her
breathe. The assailant took J.L.’s hand and placed it on his penis, moving it
up and down, before attempting to penetrate J.L.’s anus digitally and with
his penis. J.L.’s assailant also touched her vaginal area, and she could not
recall if he digitally penetrated her.
J.L. never saw her assailant’s face, but he told her not to scream or yell
out―that if she “were to do something, he was going to kill [her].” She
believed, from “the manner in which the person spoke,” her assailant was
African-American, but recalled him speaking Spanish. When she heard “the
jingling of keys,” she screamed out for help. In response, the assailant
applied more pressure to her neck. As the person with the keys appeared to
get closer, the assailant fled.
J.L. sought immediate assistance, which included law enforcement
taking her for a forensic sexual assault exam. She reported to her nurse that
she believed her assailant was “either Hispanic or African-American.” As
part of the exam, swabs of J.L.’s vulva, perianal area, hands, cheek and neck
were collected and retained for DNA testing. California Department of
Justice criminalists developed partial DNA profiles from the samples. A
portion of those partial profiles returned matches with Acosta’s DNA profile
and ruled out another assailant, except for a match to that other person’s
DNA profile on J.L.’s neck swab.
2. A.C.: Uncharged Acts
Although Acosta was not charged for offenses involving A.C., she
testified to acts he allegedly committed in 2012. Before her testimony, the
court admonished the jury that they could only consider the evidence if the
People “proved by a preponderance of the evidence that [Acosta], in fact,
committed the uncharged offense.” If the jury decided Acosta committed the

3
uncharged offense, the court told them that they could, but were not required
to, conclude that Acosta was disposed or inclined to commit the charged
sexual offenses. Finally, the court explained that if the jury decided Acosta
did commit the uncharged offense it was not sufficient to prove he committed
the charged offenses.
In June 2012, A.C. attended a party at Acosta’s home. While at the
party, A.C., then a minor, consumed alcohol and blacked out. She awoke to
Acosta carrying her to a tool shed and again blacked out. When she next
came to, Acosta was sodomizing her. Although A.C. reported the assault,
charges were not filed.-
3. L.C.: Counts 4 and 5
L.C. testified that in June 2014, she slept on a sofa in her family’s
garage. On the night of July 16, 2014, Acosta―a neighbor and former
romantic partner―messaged L.C., asking if he could come over. L.C. declined
and went to bed. L.C. later awoke to Acosta vaginally penetrating her, and
she looked over her shoulder, identifying him as her assailant. L.C. told
Acosta to stop and to leave. Although he initially ignored L.C.’s plea, she
testified that he eventually stopped and inquired whether L.C. was mad at
him. In the days that followed, L.C. told Acosta they could not be friends
anymore. Acosta indicated that he understood and apologized.
II. DISCUSSION
1. Substantial Evidence Supported the Conviction for Counts 1, 2, and 3
Related to J.L.

Where a defendant challenges the sufficiency of the evidence
supporting a conviction, we examine the whole record in the light most
favorable to the judgment to determine whether it discloses substantial
evidence from which a reasonable trier of fact could find the defendant guilty
beyond a reasonable doubt. (People v. Kraft (2000) 23 Cal.4th 978, 1053.) We
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presume in support of the judgment the existence of every fact the trier of
fact could reasonably deduce from the evidence. (Ibid.) Reversal for
insufficient evidence is warranted only when it appears that under no
hypothesis whatsoever is there sufficient evidence to support a jury’s verdict.
(People v. Bolin (1998) 18 Cal.4th 297, 331.) The testimony of a single
witness, if believed by the trier of fact, is sufficient to support a conviction,
unless that testimony is physically impossibly or inherently improbable.
(People v. Young (2005) 34 Cal.4th 1149, 1181.)
Acosta seeks to classify the series of partial DNA matches as
insufficient evidence, describing each of them as failing to rise to the same
level of DNA certainty as the match in People v. Xiong (2013) 215
Cal.App.4th 1259. Indeed, Acosta equates his partial DNA match across four
samples to a single partial DNA match with a different man. This argument
fails to account for the fact that three of the samples excluded the alternate
perpetrator. Further, J.L. testified extensively as to where her assailant
touched her, describing him squeezing her neck, touching her body, and
pulling on her pants. The partial DNA profiles developed from those
swabbed locations included Acosta’s DNA profile in their results as the
largest contributor of male DNA, corroborating J.L.’s testimony as to what
happened to her. The jury heard extensive expert testimony on how the DNA
was collected, processed, and the results of their tests―each of which included
Acosta. In making their findings of guilt, it is evident that the jury rejected
the argument that it was not Acosta’s DNA on J.L.
Acosta, who is Hispanic, attempts to make much of J.L.’s initial
assertion that based on the way he spoke, her assailant could have been
African American. This argument ignores the fact that J.L. told officers and
medical professionals that her assailant may also have been Hispanic.

5
Although J.L. did not see her attacker’s face, her description was not
inconsistent with Acosta and did not exclude him in the way he now
maintains. J.L.’s testimony as to what happened to her on the night of her
assault are consistent with the DNA results including Acosta as the
perpetrator.
On this record, we conclude ample evidence supports the jury’s findings
of guilt as to Charges 1, 2, and 3.
2. The Trial Court Did Not Abuse Its Discretion When It Excluded
Evidence of A.C.’s Juvenile Arrest as Unduly Prejudicial

a. Additional Factual Background
Acosta sought to introduce evidence regarding a single incident A.C.
committed at 15 years old. Specifically, A.C. is alleged to have kicked a loss

prevention officer during the commission of an Estes robbery,2 during which
A.C. and an associate attempted to take alcohol but were unsuccessful.
Acosta argued that the Estes robbery demonstrated A.C.’s moral turpitude,
although it was a single incident that occurred more than a decade before
trial. During argument, defense counsel referenced another alleged incident
in which A.C. was intoxicated at school and required medical treatment.
Counsel asserted that these ties to alcohol were relevant for impeachment
purposes as to A.C.’s intoxication on the night Acosta is alleged to have
sexually assaulted her. He advanced a theory that A.C. was blackout drunk
and therefore lying about Acosta’s assault.
The court determined the Estes robbery did not survive an Evidence
Code section 352 analysis balancing the probative value against prejudice.

2 People v. Estes (1983) 147 Cal.App.3d 23. “The typical case starts with
a shoplifting and turns into a robbery when the thief is confronted by a [loss
prevention officer], and the thief assaults the [loss prevention officer] in an
attempt to get away.” (People v. Robins (2020) 44 Cal.App.5th 413, 419.)
6
Assaulting a loss prevention officer while attempting to take alcohol is not
similar to making allegations of rape, prompting the court to find that the
incident was not probative. However, the court permitted Acosta to ask
questions that might implicate the school alcohol incident for impeachment
purposes. A.C. testified the night of her assault was the only time she
blacked out while drinking and affirmed it was not possible that she drank so
much that the assault did not happen.
b. Guiding Principles and Analysis
We review the trial court’s exclusion of A.C.’s prior arrest for an abuse
of discretion. “Because the court’s discretion to admit or exclude
impeachment evidence ‘is as broad as necessary to deal with the great variety
of factual situations in which the issue arises’ [citation], a reviewing court
ordinarily will uphold the trial court’s exercise of discretion [citations].”
(People v. Clark (2011) 52 Cal.4th 856, 932 (Clark).) It is the defendant’s
burden to show “ ‘ “the trial court exercised its discretion in an arbitrary,
capricious, or patently absurd manner that resulted in a manifest
miscarriage of justice.” ’ ” (People v. Bryant, Smith and Wheeler (2014)
60 Cal.4th 335, 390.) Acosta provides no persuasive reason for us to reverse
the trial court’s ruling in this case.
Acosta correctly observes that robbery is a crime of moral turpitude
(People v. Brown (1985) 169 Cal.App.3d 800, 806), and that a witness may be
impeached with evidence of prior conduct involving moral turpitude. (Clark,
supra, 52 Cal.4th at p. 931.) However, the court must balance the probative
value of the evidence against the danger of undue prejudice, confusing the
issues, or misleading the jury. (Evid. Code, § 352.)
Although A.C.’s Estes robbery occurred close in time to Acosta’s
uncharged conduct, assaulting a loss prevention officer while attempting to

7
steal alcohol is markedly different than potentially lying about rape. Defense
counsel’s argument made clear that his primary focus in introducing the
evidence was not that someone arrested for robbery is a less credible witness,
but rather that A.C. had a problem with alcohol. The thrust of counsel’s
argument was that A.C. had a problem with alcohol that culminated in
blacking out at the party and lying about her assault. Notably, the incident
with which Acosta sought to impeach A.C.’s credibility did not involve any
false report of assault, sexual or otherwise. In fact, A.C. accepted
responsibility for her actions following her arrest. Further, the trial was
more than a decade after A.C.’s arrest for the Estes robbery and she did not
have additional arrests in the intervening years. A trial court might
reasonably conclude that the incident was too remote to be relevant to her
credibility at trial. (See People v. Beagle (1972) 6 Cal.3d 441, 453.)
On this record, we cannot say that the trial court acted arbitrarily or
exceeded the bounds of reason in finding that the prejudicial potential
outweighed any possible probative value of A.C.’s arrest.
3. The Trial Court Did Not Abuse Its Discretion in Admitting A.C.’s
Testimony
Character evidence is generally inadmissible to prove a defendant’s
conduct on a specified occasion. (Evid. Code, § 1101, subds. (a), (b).)
However, Evidence Code section 1108 “is an exception to the general
prohibition against admitting character evidence to prove criminal
disposition or propensity.” (People v. Jandres (2014) 226 Cal.App.4th 340,
352.) When a defendant is accused of a sexual offense, the exception allows
the People to introduce evidence of the defendant’s commission of uncharged
sexual offenses, subject to Evidence Code section 352. (Evid. Code, § 1108,
subd. (a).) The Legislature enacted this statute because “evidence of
uncharged sexual offenses is so uniquely probative in sex crimes prosecutions

8
it is presumed admissible without regard to the limitations of Evidence Code
section 1101.” (People v. Yovanov (1999) 69 Cal.App.4th 392, 405.)
In determining whether to admit such propensity evidence under
Evidence Code section 1108, a trial court weighs: “(1) whether the propensity
evidence has probative value, e.g., whether the uncharged conduct is similar
enough to the charged behavior to tend to show the defendant did in fact
commit the charged offense; (2) whether the propensity evidence is stronger
and more inflammatory than evidence of the defendant’s charged acts; (3)
whether the uncharged conduct is remote or stale; (4) whether the propensity
evidence is likely to confuse or distract the jurors from their main inquiry,
e.g. whether the jury might be tempted to punish the defendant for his
uncharged, unpunished conduct; and (5) whether admission of the propensity
evidence will require an undue consumption of time.” (People v. Nguyen
(2010) 184 Cal.App.4th 1096, 1117.) When the “ ‘probative value is
substantially outweighed by the probability that its admission will
(a) necessitate undue consumption of time or (b) create substantial danger of
undue prejudice, of confusing the issues, or of misleading the jury,’ ” then the
court may exclude the propensity evidence under Evidence Code section 352.
(People v. Erksine (2019) 7 Cal.5th 279, 296.) “ ‘This determination is
entrusted to the sound discretion of the trial judge who is in the best position
to evaluate the evidence.’ ” (People v. Falsetta (1999) 21 Cal.4th 903, 917–918
(Falsetta).) We will not disturb that ruling on appeal absent a showing that
the court exercised its discretion in an “arbitrary, capricious, or patently
absurd manner.” (People v. Rodriguez (1999) 20 Cal.4th 1, 9–10.)
Acosta alleges that A.C.’s testimony was neither probative nor reliable,
and should have been excluded under Evidence Code section 352.

9
It is undeniable that the uncharged conduct by Acosta against A.C. was
similar to the charged conduct against J.L., namely secreting them away for
nonconsensual sexual contact. A.C. testified that while she was in and out of
consciousness, Acosta carried her to a shed and sodomized her without her
consent. Her testimony was similar to J.L., who testified that Acosta moved
her to a private location behind a dumpster, and attempted to sodomize her
without her consent. Further, it was not dissimilar to L.C.’s testimony that
Acosta―a former romantic partner―entered her living space without her
consent and began having sex with her while she was sleeping and unable to
consent. Moreover, the uncharged conduct occurred during the same general
time frame as the charged conduct.
A.C. was a minor at the time of Acosta’s uncharged conduct, while both
J.L. and L.C. were adults at the time the charged conduct occurred. When
the court attempted to sanitize that detail, defense counsel made a strategic
decision to decline that protection. Although A.C. was younger, it was not
emphasized during the trial. Nor did A.C.’s testimony consume significant
trial time.
We reject any argument from Acosta that the evidence of uncharged
conduct confused, distracted, or misled the jury, or that they might seek to
punish him for the uncharged conduct. The jury was specifically instructed
under CALCRIM No. 1191A that, even if it found that Acosta committed the
uncharged sexual conduct, “that conclusion is only one factor to consider
along with all the other evidence”; that such conduct “is not sufficient by
itself to prove that the defendant is guilty” of the charged conduct, and that
the “People must still prove each charge beyond a reasonable doubt.”
With respect to the prior sexual offense evidence instruction, our
Supreme Court has stated, “This instruction will help assure that the

10
defendant will not be convicted of the charged offense merely because the
evidence of his other offenses indicates he is a ‘bad person’ with a criminal
disposition.” (Falsetta, supra, 21 Cal.4th at p. 920.) The jury is presumed to
have followed the instruction absent “any indication it was unwilling or
unable to do so.” (People v. Letner and Tabin (2010) 50 Cal.4th 99, 196.)
To the extent Acosta invites us to reweigh the evidence or otherwise
evaluate A.C.’s credibility in the name reliability, we reject the notion that
our court is in a position to do so. “ ‘A reviewing court neither reweighs
evidence nor reevaluates a witness’s credibility.’ ” (People v. Albillar (2010)
51 Cal.4th 47, 60.)
We therefore conclude there is no evidence the trial court abused its
discretion in permitting A.C.’s testimony as to Acosta’s uncharged conduct.
4. The Prosecutor’s Statements Do Not Rise to the Level of Misconduct.
Acosta asserts that the People misstated the DNA evidence and
misstated and shifted the burden of proof. These, he asserts, rise to the level
of prosecutorial misconduct and merit reversal due to an asserted violation of
his due process rights. Acosta uses the term “misconduct” which “ ‘is
somewhat of a misnomer to the extent that it suggests a prosecutor must act
with a culpable state of mind. A more apt description of the transgression is
prosecutorial error.’ ” (People v. Centeno (2014) 60 Cal.4th 659, 666–667
(Centeno).)
To succeed on appeal, Acosta “must show that, ‘[i]n the context of the
whole argument and the instructions’ [citation], there was ‘a reasonable
likelihood the jury understood or applied the complained-of comments in an
improper or erroneous manner. [Citations.] In conducting this inquiry, we
“do not lightly infer” that the jury drew the most damaging rather than the
least damaging meaning from the prosecutor’s statements.’ ” (Centeno,

11
supra, 60 Cal.4th at p. 667.) If, when viewed in this context, the challenged
comments “ ‘would have been taken by a juror to state or imply nothing
harmful, [then] they obviously cannot be deemed objectionable.’ ” (People v.
Cortez (2016) 63 Cal.4th 101, 130.) Applying these principles, we do not find
the prosecutor’s statements to be error.
a. DNA Evidence
Acosta asserts the prosecutor misstated the DNA testing standards
during closing. Defense counsel argued in closing that the DNA evidence
against Acosta was “not that strong” and implied that a 17 loci profile
investigators utilized was incomplete. To address that assertion during
rebuttal closing argument, the prosecutor described a specific test run by
investigators using 17 loci markers as “completely match[ing]” Acosta’s
profile. Consistent with that description, the criminalists testified that the
Department of Justice test in question only evaluated 17 loci on the
Y chromosome. All 17 loci utilized in the test matched Acosta’s DNA profile.
Thus, the prosecutor’s argument, which summarized these DNA tests and
results, was not inaccurate to the testimony that came in at trial.
b. Burden of Proof
Finally, Acosta contends the People impermissibly shifted the burden of
proof to the defense and intimated that the defense had to prove his
innocence. He asserts that the comments the prosecutor made during closing
created an impression that he was required to prove that A.C. and L.C. lied.
Contrary to his arguments, the prosecutor did not improperly diminish or
shift the People’s burden of proof.
In support of his argument, Acosta points to a sustained objection to
the statement the prosecutor made during closing. For his part, during
closing, defense counsel argued that A.C. and L.C. fabricated their testimony.

12
In response, the prosecutor stated that finding Acosta not guilty required the
jury to believe A.C. and L.C. lied when they identified him as their assailant
or that there was some conspiracy against him. The court reminded the jury
“that the comments of the attorneys, both Defense and Prosecution, are not
evidence,” clarifying that such comments are “argument.”
Acosta contends that this interaction rises to the same level as People v.
Woods (2006) 146 Cal.App.4th 106. There, a prosecutor stated outright that a
defendant was “obligated” to put on evidence. (Id. at p. 112.) The reviewing
court rejected any notion that a defendant had an obligation to present
evidence. (Id. at p. 113.) However, the case before us is readily
distinguishable. Here, the prosecutor did not intimate, or state outright, that
Acosta had any obligation to present evidence―whether to prove A.C. and
L.C. lied or otherwise. Instead, she highlighted that two women came
forward and identified Acosta as their assailant and that the jury must
choose whether to believe them.
The jury received extensive instruction on the burden of proof in this
matter. At the start of the trial, the jury received CALCRIM No. 103
regarding the presumption of innocence, the People’s burden of proof, and
reasonable doubt. They also received CALCRIM No. 220, which covers
substantially the same information. Because Acosta introduced character
evidence for non-aggression, the jury also received CALCRIM No. 350, which
reminded the jurors that they can take that testimony “into consideration
along with all the other evidence in deciding whether the People have proved
that the defendant is guilty beyond a reasonable doubt.” The People’s burden

arose in at least 12 other instructions the jury received.3 Given this volume

3 These include CALCRIM Nos. 355, 359, 1045, 3175, 1030, 1203, 1000,
1701, 3181, 1215, 1191A and B, and 3517.
13
and clarity of instruction, it is not reasonable to presume the prosecutor’s
remarks somehow lessened or shifted the burden of proof. (People v.
Marshall (1996) 13 Cal.4th 799, 831–832.)
Considering the nature of the comments, the clarification that
arguments are not evidence, and the instructions the jury received, there is
no reasonable likelihood the jury would have understood the prosecutor’s
remarks to reduce the burden of proof or to contradict the unchallenged
instructions they received. (Centeno, supra, 60 Cal.4th at p. 667.)
III. DISPOSITION
The judgment is affirmed.

RUBIN, J.

WE CONCUR:

IRION, Acting P. J.

DO, J.

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