People v. Weston CA4/1

Opinion

Filed 8/20/26 P. v. Weston CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, D085770

Plaintiff and Respondent, v. (Super. Ct. No. SCN446503)

NICHOLAS WESTON,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Laura E. Duffy, Judge. Affirmed. Heather E. Shallenberger, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.

I. INTRODUCTION

Defendant Nicholas Weston appeals the judgment on his convictions for rape of an unconscious person (Pen. Code,1 § 261, subd. (a)(4)) and forcible 1 Undesignated statutory references are to the Penal Code. rape (§ 261, subd. (a)(2)). His appointed appellate counsel filed an opening brief raising no arguable issues. (See People v. Wende (1979) 25 Cal.3d 436 (Wende); Anders v. California (1967) 386 U.S. 738.) Weston filed a supplemental brief on his own behalf. Our independent review of the record confirms there are no arguable issues on appeal. We therefore affirm the judgment.

II. FACTUAL AND PROCEDURAL BACKGROUND

A. Charges The People charged Weston with one count each of rape of an unconscious person (§ 261, subd. (a)(4)) and forcible rape (§ 261, subd. (a)(2)).

B. Trial 1. Prosecution Case In March 2023, then-19-year-old Jenavieve H. was seeking a serious romantic partner through an online dating app. She expressed interest in Weston because his profile indicated they had similar morals and upbringings, evidenced in part by Weston’s current service in the United States Marine Corps. Jenavieve and Weston initially communicated through the app, and then directly by text message and phone. After communicating for a few days, Jenavieve and Weston made plans to go to the beach together on March 12, 2023. Jenavieve lived in Pomona; Weston lived at Camp Pendleton. They arranged for Weston to get a ride from his base to a shopping mall parking lot in San Clemente, where Jenavieve would pick him up and then drive to the San Clemente Pier. As planned, Jenavieve picked up Weston around 9:30 a.m. in her Ford F-150 truck and drove to the pier, arriving about 10 minutes later. The pair 2 sat in Jenavieve’s truck and talked. Weston “gave off a good energy” and “seemed like his morals were good.” Jenavieve and Weston kissed; she removed her shirt and allowed him to touch and kiss her breasts; and she allowed him to touch her buttocks over her clothing. But when Weston reached toward Jenavieve’s vaginal area, she told him “no” and swatted his hand away. Weston scooted away and “his whole demeanor . . . change[d] entirely from talking and happy to just quiet and brushed off to the side.” Jenavieve reengaged Weston and they resumed kissing and touching. Weston tried again to touch Jenavieve’s vaginal area, and she again told him no and pushed his hand away. This happened two or three times. Each time, Weston withdrew, and Jenavieve reengaged him. Weston suggested that the couple have sex in Jenavieve’s truck or at a hotel. Jenavieve did not want to because it did not align with her morals to have sex on a first date. But rather than tell this directly to Weston, Jenavieve made excuses about not wanting passersby to see them in the truck or not knowing where a hotel was or being able to afford one. After a while in the truck, Jenavieve and Weston arranged for her to take him to Trestles Beach in San Onofre, where he could get a ride back to Camp Pendleton. Jenavieve drove them to the Trestles Beach parking lot and parked her truck in a partially secluded area around 11:00 a.m. or noon. Jenavieve told Weston she needed to head home soon to beat traffic but was tired from babysitting past midnight the night before. Weston suggested she nap in her truck before driving home. Jenavieve agreed and laid across the truck’s front bench seat — her head rested on Weston’s leg in the passenger seat and her feet were by the driver’s door. Jenavieve fell sound asleep. When Jenavieve awoke, she was reclined in the passenger seat with Weston kneeling in front of her, thrusting his penis in and out of her vagina.

3 Jenavieve asked, “What the f[***] are you doing?” Weston responded, “Nothing,” and kept penetrating her. Jenavieve tried unsuccessfully to push Weston off and to dissuade him by telling him she was not on birth control. Weston continued penetrating Jenavieve for “a couple of minutes” before stopping. Jenavieve “just curled up in a ball” to get away from Weston. Jenavieve testified she never consented to having intercourse with Weston. Weston asked Jenavieve repeatedly if she was okay. She initially did not respond, but eventually “responded to his questions as blankly and as fast as [she] could” so that he would leave. When Weston’s ride arrived, Jenavieve agreed to see Weston again “so that he’d leave” and not get mad. After Weston left, he sent Jenavieve text messages asking, “Are you sure you’re okay,” and saying, “I’m sorry.” Jenavieve did not respond. Jenavieve drove around and called friends and family for advice. That afternoon, she reported the incident to the police and submitted to a sexual assault nurse examination. During this exam, a nurse swabbed Jenavieve’s breasts, vagina, and external vaginal area for DNA. A criminalist found male DNA in each of these samples. For economic reasons, the analyst performed a detailed analysis of only the external vaginal swab, which showed “very strong support” — 2.3 octillion to one — for inclusion of Weston as the contributor. Jenavieve further assisted the police investigation by participating in a “controlled call” with Weston. Police choreographed and recorded the call, which was played at trial. During the call, Jenavieve confronted Weston about waking up to find him on top of her. Weston apologized. When Jenavieve asked “why [Weston] thought that was okay,” he responded, “I know it wasn’t.”

4 As evidence that Weston was predisposed to commit sexual offenses, the prosecution presented evidence that he engaged in similar sexual misconduct with a different victim in Idaho. Averi S. testified that in May 2022, when she was 18 years old, she met Weston through a social media app. On May 16, 2022, Weston asked Averi through the app if she wanted to hang out. Averi agreed to meet because she “had been upset and felt like [she] needed someone to talk to, and . . . didn’t have any friends.” Weston picked up Averi in his pickup truck around midnight. Weston drove Averi to an “empty and dark” parking lot, where they watched a movie on his laptop as Averi “talk[ed] about why [she] was upset.” Weston leaned over and tried to kiss Averi, but she “backed away.” Averi did not say anything because she “just thought it was weird and didn’t want to confront the situation.” Weston apologized. A few minutes later, Weston scooted closer to Averi and started kissing her neck. Averi told him to stop but he did not. Weston touched Averi’s vaginal area and persisted even when she told him to stop. Weston then used one hand to hold Averi’s hands over her head and used his other hand to pull down her pants and underwear. Weston continued touching Averi’s vaginal area and then inserted his penis into her vagina. Averi told Weston to stop and unsuccessfully tried to “wiggle out” from under him. Averi eventually kicked Weston in his chest, stopping him. Weston took Averi home. After he left, Weston messaged Averi through the social media app to ask that she not tell anyone what happened so he would not get in trouble. Averi reported the incident to the police. Criminal charges were pending against Weston in Idaho during his San Diego trial in this case, although the jury was not informed of this fact.

5 2. Defense Case The defense rested without presenting any evidence. Weston’s trial counsel argued in closing that either Jenavieve consented to having sex with Weston or that Weston reasonably believed she consented.

C. Verdicts After deliberating for about two hours, the jury found Weston guilty of the charges. The jury submitted no questions during deliberation.

D. Sentencing At the sentencing hearing, the trial court found Weston ineligible for probation due to his rape convictions. (See § 1203.065, subd. (a) [“probation shall not be granted to . . . a person who is convicted of violating” § 261, subd. (a)(2) & (4), among other offenses].) The trial court found two mitigating circumstances: Weston’s (1) age at the time of the offense (Cal. Rules of Court,2 rule 4.423(b)(6)); and (2) lack of criminal history (rule 4.423(b)(1)). The court noted that although a psychological evaluation assessed Weston as being a low risk for nonsexual recidivism, it assessed him as “above average” risk for sexual recidivism. The court also noted that the evaluation made “no mention of mental health issues, any substance abuse issues, or other such issues that played a role in this offense.” The court found five aggravating circumstances: (1) the crime involved great violence, bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness 2 Undesignated rule references are to the California Rules of Court.

6 (rule 4.421(a)(1)); (2) the victim was particularly vulnerable in that Weston “lulled Jenavieve into having a sense of security” and “lured her into what amounted to be a defenseless position in that she was asleep” (rule 4.421(a)(3)); (3) Weston took advantage of a position of trust and confidence based on his status as a Marine and his expression of interest in a serious romantic relationship (rule 4.421(a)(11)); (4) Weston engaged in violent conduct that indicates a serious danger to society (rule 4.421(b)(1)); and (5) Weston did not use a condom during the commission of the offense, which “expos[ed] Jenavieve to both pregnancy and sexually transmitted diseases” (rule 4.408(a) [the sentencing court may specify additional discretionary sentencing factors].) The court selected punishment on the forcible rape conviction as the principal term and, based on the aggravating circumstances vastly outweighing the mitigating circumstances, selected the middle term of six years. The court expressly found that “choosing the middle term . . . [was] appropriate, despite the mitigating facts in [section] 1170[, subdivision] (b)(6)

regarding [Weston’s] age.”3 Based on the same considerations, the court selected a consecutive middle term of six years on the conviction for rape of an unconscious person. However, the court stayed execution of this sentence under section 654.

3 Section 1170, subdivision (b)(6) provides that where the defendant’s youth (among other considerations) “was a contributing factor in the commission of the offense,” the court must impose the low term “unless the court finds that the aggravating circumstances outweigh the mitigating circumstances that imposition of the lower term would be contrary to the interests of justice.”

7 The court initially imposed routine assessments and a $7,200 restitution fine (§§ 1202.4, 1202.45) but granted Weston’s motion to strike the restitution fine under People v. Dueñas (2019) 30 Cal.App.5th 1157. The court informed Weston that he is required to register as a sex offender under section 290 and is subject to Jessica’s Law. (Prop. 83, as approved by voters, Gen. Elec. (Nov. 7, 2006) [modifying aspects of the Penal Code and Welfare and Institutions Code regarding sentencing and handling of defendants convicted of certain sex crimes]; see In re Taylor (2015) 60 Cal.4th 1019, 1022.)

III. DISCUSSION

Weston’s appointed appellate counsel filed a brief pursuant to Wende, supra, 25 Cal.3d 436, which summarized the facts and proceedings of the case, asserted no claims of error, and invited us to conduct an independent review of the record for prejudicial error. Counsel advised Weston of his right to file a supplemental brief, which he did. (See People v. Kelly (2006) 40 Cal.4th 106, 120 (Kelly) [if counsel raises no claims of error, defendant has the right to file supplemental contentions].) We have reviewed the entire record as required by Wende and Anders, and considered the issues identified by Weston and his counsel. We find no arguable issue that would result in a reversal or modification of the judgment. Having already provided the “brief description of the facts and procedural history of the case, the crimes of which the defendant was convicted, and the punishment imposed” that a Wende appeal requires (Kelly, at pp. 123–124), we now proceed to “describe[] the contentions personally raised by the defendant and the reasons those contentions fail” (id. at p. 124).

8 Weston raises two challenges regarding the sufficiency of the evidence supporting his convictions. First, he questions Jenavieve’s testimony that she was asleep when he began raping her, noting there “was no evidence to back up and support” her testimony on this point. But “ ‘[i]n California conviction of a sex crime may be sustained upon the uncorroborated testimony of the [victim].’ ” (People v. Gammage (1992) 2 Cal.4th 693, 700; see People v. Ramirez (2022) 13 Cal.5th 997, 1118 [“ ‘unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction’ ”].) The trial court properly instructed the jury regarding this law. (See CALCRIM No. 1190 [“Conviction of a sexual assault crime may be based on the testimony of a complaining witness alone.”].) “We neither reweigh the evidence nor reevaluate the credibility of witnesses.” (People v. Jennings (2010) 50 Cal.4th 616, 638.) Second, Weston argues there was no “DNA . . . inside the victim[,] only on the outside[,] showing sexual assault not rape.” The appellate record contradicts this claim. The criminalist testified that although she performed a detailed analysis only of the DNA collected from Jenavieve’s external vaginal area, all of the DNA swabs — including the internal swab of Jenavieve’s vagina — contained male DNA. Weston challenges one evidentiary ruling by the trial court: the admission under Evidence Code section 1108 of Averi’s testimony about Weston’s other sexual misconduct.4 Weston asserts that this evidence “did 4 Evidence Code section 1108, subdivision (a) states: “In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant’s commission of another sexual offense or offenses is not made inadmissible by [Evidence Code] Section 1101, if the evidence is not inadmissible pursuant to [Evidence Code] Section 352.”

9 not allow [him] to testify when the jury stated it would help their decision in hearing [him] testify along with the [Evidence Code section] 1108 evidence is still in an active case that can be proven false.” Neither aspect of this challenge persuades us. To begin, the record does not support Weston’s assertion that the jury stated it would help to hear him testify. On the contrary, the record shows that the jury made no such requests either during trial testimony, or during its brief deliberation. Additionally, the trial court instructed the jury not to consider Weston’s decision not to testify. (See CALCRIM No. 355 [“Do not consider, for any reason at all, the fact that the defendant did not testify. Do not discuss that fact during your deliberations or let it influence your decision in any way.”].) “[W]e presume the jury was able to understand and follow th[is] instruction[].” (People v. Lamb (2024) 16 Cal.5th 400, 441.) As for the fact that charges regarding Averi were “still an active case that can be proven false,” Weston fails to convince us. Evidence of his conduct with Averi would still have been admissible in this case even if he were acquitted in Idaho. (See People v. Avila (2014) 59 Cal.4th 496, 515–516 [“That defendant had been acquitted of charges regarding two of the girls did not prevent admitting the evidence in this case. ‘Both this court and the United States Supreme Court have held that principles of double jeopardy, including its collateral estoppel component, permit the admission of otherwise proper evidence of a prior crime even if the person had been entirely acquitted of that prior crime. [Citations.] This is so because the defendant must be found guilty beyond a reasonable doubt of a crime to be convicted of it, but other crimes evidence need be proven only by a preponderance of the evidence.’ ”].) Therefore, the fact that the Idaho case was still pending against Weston did not preclude Averi from testifying.

10 Weston raises several challenges regarding his sentence. First, he implies the trial court erred by imposing “the middle term instead of the low term” because this “is [his] first offense and [his] crime did not involve violence or force.” But the trial court expressly stated that it considered that this was Weston’s first offense yet found this circumstance (and the additional mitigating circumstance of Weston’s youth) outweighed by the five aggravating circumstances. This was within the trial court’s sound sentencing discretion. (See People v. Knowles (2024) 105 Cal.App.5th 757, 766 [“Section 1170, subdivision (b)(6) plainly states that the court may sentence above the low term if the aggravating circumstances ‘outweigh the mitigating’ ones such that ‘imposition of the lower term would be contrary to the interests of justice.’ This language is unambiguous.”].) Moreover, as to Weston’s claim that the offense “did not involve violence or force,” the trial court found as an aggravating factor that Weston “engaged in violent conduct,” and the jury convicted him of forcible rape under section 261, subdivision (a)(2), which the Legislature has declared a violent felony. (See § 667.5, subd (c)(3).) Second, Weston notes that the trial court’s designation of his forcible rape conviction as the principal term deprives him the opportunity “to partake in more programs and time credits.” This merely states the consequences of the court’s designation of the principal term; it sheds no light on why that designation might have been in error. (See In re S.C. (2006) 138 Cal.App.4th 396, 408 [“To demonstrate error, appellant must present meaningful legal analysis supported by citations to authority and citations to facts in the record that support the claim of error.”].) Additionally, as noted, the trial court weighed the mitigating and aggravating circumstances, and had the discretion to designate the more severe punishment as the principal 11 term. (See, e.g., § 1170.1 [“The principal term shall consist of the greatest term of imprisonment imposed by the court for any of the crimes, including any term imposed for applicable specific enhancements.”].) Third, Weston argues that the requirement of lifetime registration as a sex offender under section 290 “prohibits [him] from being accepted back into civilization and having a family [and] kids with a normal life.” This is a subjective observation but not a specific claim of legal error. (See In re S.C., supra, 138 Cal.App.4th at p. 408.) Absent a specific legal challenge, we note that the trial court was required to impose the registration requirement (§ 290, subd. (c)(1)), and “reviewing courts have upheld sex offender registration laws against various constitutional challenges and have noted the state’s legitimate interest in enacting sex offender registration measures” (People v. Woodward (2025) 116 Cal.App.5th 379, 396; see ibid. [“Registration requirements generally do not violate the right to substantive due process”]; In re Alva (2004) 33 Cal.4th 254, 262 [§ 290 registration is not “punishment” for purposes of cruel and/or unusual punishment]; Johnson v. Department of Justice (2015) 60 Cal.4th 871, 887 [§ 290 does not deny equal protection of the law]; People v. Sorden (2005) 36 Cal.4th 65, 72 [requiring actual knowledge of the registration requirement avoids a due process violation]; People v. Hamilton (2025) 108 Cal.App.5th 423, 441 [rejecting vagueness, equal protection, and procedural due process challenges]). Finally, Weston observes that even though his “crime does not involve minors,” he is subject to Jessica’s Law, which he asserts will limit his ability to attend school events, parks, and other activities. Again, Weston cites only the collateral consequences of the trial court’s sentencing decisions without articulating a specific claim of legal error. (See In re S.C., supra, 138 Cal.App.4th at p. 408.) In any event, we note that Weston appears to 12 overstate the nature of the restrictions he will be subject to when released from prison. (See, e.g., § 626.81 [prohibiting registered sex offenders from entering school grounds “without lawful business thereon and written permission” from the school (italics added)]; § 3053.8, subd. (a) [prohibiting a registered sex offender from “enter[ing] a park where children regularly gather without the express permission of the person’s parole agent” if “one or more of the victims was under 14 years of age” (italics added)].) In sum, our independent review of the appellate record, and our consideration of the issues identified by Weston and his appellate counsel, reveal no arguable issue that would result in a reversal or modification of the judgment.

IV. DISPOSITION

The judgment is affirmed.

13 RUBIN, J.

WE CONCUR:

DATO, Acting P. J.

KELETY, J.