People v. Tobin CA3

Opinion

Filed 9/15/26 P. v. Tobin CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C101121 Plaintiff and Respondent, (Super. Ct. No. 22FE011091) v. KEMONI TOBIN, Defendant and Appellant.

A jury found defendant Kemoni Tobin guilty of one count of forcible sexual penetration of a minor who was 14 years old or older (Pen. Code, § 289, subd. (a)(1)(C)—count two),1 forcible rape (§ 261, subd. (a)(2)—count three), and unlawful sexual intercourse with a minor (§ 261.5, subd. (c)—count four).2 The trial court sentenced defendant to an aggregate term of 21 years in prison: a 10-year upper term for count three plus a full, consecutive 11-year upper term for count two. The court also imposed and stayed pursuant to section 654 an upper term of three years on count four.

1 Undesignated statutory references are to the Penal Code.

2 The trial court granted the People’s motion to dismiss an additional count of forcible sexual penetration of a minor who was 14 years old or older (count one) for insufficient evidence.

1 On appeal, defendant argues: (1) the trial court violated his right to a jury trial on the aggravating circumstances it used to impose upper term sentences; and (2) his trial counsel was ineffective in failing to object to the prosecutor’s prejudicial misconduct during closing argument. We reject defendant’s assertion of ineffective assistance of counsel. We accept the People’s concession that defendant’s sentence must be vacated, and the matter remanded for a jury trial on the aggravating circumstances or a waiver of defendant’s right thereto prior to resentencing. We will vacate defendant’s sentence and remand the case for further litigation as may be necessary, and a full resentencing. We otherwise affirm the judgment. I. DISCUSSION A. Imposition of Upper Term Sentences In a bifurcated proceeding, the trial court found true the existence of aggravating factors under California Rules of Court, rule 4.421(b)(2) and (4).3 The court conducted a bench trial on these factors because, at the time, it was understood that they did not need to be tried to a jury. (See People v. Pantaleon (2023) 89 Cal.App.5th 932, 938, disapproved on this point by People v. Wiley (2025) 17 Cal.5th 1069, 1086 (Wiley).) The trial court found that defendant’s prior convictions as an adult or sustained petitions in juvenile delinquency proceedings were numerous within the meaning of rule 4.421(b)(2). It also found defendant was on probation when the crimes at issue in this appeal were committed. (Rule 4.421(b)(4).) Defendant argues, and the People concede, based on Wiley, supra, 17 Cal.5th 1069, that the trial court improperly determined facts beyond the mere existence of his prior conviction and its elements, and relied on its conclusions in choosing an upper term sentence. We accept the People’s concession. (See People v. Wright (2025) 113 3 Undesignated rules references are to the California Rules of Court.

2 Cal.App.5th 832, 847 [“The error here was that [the defendant] was entitled to, but did not receive (or waive), trial by jury on the aggravating factor of whether he had suffered ‘numerous’ convictions in the past”].) A defendant has a statutory and constitutional right to a jury trial on all aggravating facts, other than a prior conviction, that are relied upon to justify an upper term. (Wiley, supra, at pp. 1078.) In Wiley, our Supreme Court overruled its prior authority construing the prior conviction exception to include “ ‘other related issues’ [citation] concerning a ‘defendant’s criminal history’ or ‘ “[r]ecidivism” ’ ” such as unsatisfactory performance on probation and the “ ‘increasing seriousness’ ” of a defendant’s prior convictions.4 (Id. at pp. 1076, 1084.) The court held that “a defendant is entitled to a jury trial on all aggravating facts, other than the bare fact of a prior conviction and its elements, that expose the defendant to imposition of a sentence more serious than the statutorily provided midterm.” (Id. at p. 1086, fn. omitted.) “When a defendant is deprived of a jury trial on aggravating facts used to justify imposition of an upper term sentence, the reviewing court must apply the Chapman standard of review. ([Citation]; Chapman v. California (1967) 386 U.S. 18.) Under that standard, ‘a sentence imposed under … section 1170[, subdivision ](b) must be reversed and remanded unless the reviewing court concludes beyond a reasonable doubt that a jury, applying that same standard, would have found true all of the aggravating facts upon which the court relied to conclude the upper term was justified, or that those facts were otherwise proved true in compliance with the current statute.’ [Citations.] Lack of a jury trial is not harmless under Chapman if ‘the record contains evidence that could rationally lead to a contrary finding’ with respect to the aggravating fact at issue.” (Wiley, supra, 17 Cal.5th at p. 1087.)

4 Our Supreme Court in Wiley did not address the aggravating fact at issue in this appeal. (Wiley, supra, 17 Cal.5th at p. 1085, fn. 9.)

3 At sentencing, the court stated that it imposed the upper terms on counts two and three pursuant to rule 4.421(b)(2). It applies where “[t]he defendant’s prior convictions as an adult or sustained petitions in juvenile delinquency proceedings are numerous or of increasing seriousness.” (Rule 4.421(b)(2).) “[T]o the extent a potential aggravating circumstance at issue in a particular case rests on a somewhat vague or subjective standard, it may be difficult for a reviewing court to conclude with confidence that, had the issue been submitted to the jury, the jury would have assessed the facts in the same manner as did the trial court.” (People v. Sandoval (2007) 41 Cal.4th 825, 840.) In finding defendant’s prior convictions as an adult and sustained petitions in juvenile delinquency proceedings were “numerous,” the trial court found that defendant had three adult convictions and three sustained petitions in juvenile delinquency proceedings, all of which were misdemeanors. Two of the adult convictions were from the same time. We accept the People’s concession that the record does not demonstrate that no rational jury would have failed to find true this aggravating fact. (See People v. Wright, supra, 113 Cal.App.5th at pp. 847-848 [concluding 13 convictions from three separate episodes did not establish harmless error with respect to whether the convictions were numerous under rule 4.421(b)(2)].) We vacate the sentence and remand for further litigation as necessary and a full resentencing. B. Alleged Prosecutorial Misconduct Defendant argues his trial counsel was ineffective in failing to object to the prosecutor’s prejudicial misconduct during closing argument. To establish a claim of ineffective assistance of counsel, defendant must show: (1) trial counsel’s representation was deficient because it fell below an objective standard of reasonableness under prevailing professional norms, and (2) “resulting prejudice, i.e., a reasonable probability that, but for counsel’s deficient performance, the outcome of the proceeding would have been different.” (People v. Mai (2013) 57 Cal.4th 986, 1009.)

4 As we will explain further, we conclude counsel was not ineffective in failing to object, because there was no prosecutorial misconduct. “ ‘Counsel may not be deemed incompetent for failure to make meritless objections.’ ” (People v. Lucero (2000) 23 Cal.4th 692, 732.) “A prosecutor’s conduct violates the Fourteenth Amendment to the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process. Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury. Furthermore, and particularly pertinent here, when the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.” (People v. Morales (2001) 25 Cal.4th 34, 44.) “We consider the assertedly improper remarks in the context of the argument as a whole. [Citation.] ‘In conducting [our] inquiry, we “do not lightly infer” that the jury drew the most damaging rather than the least damaging meaning from the prosecutor’s statements.’ ” (People v. Covarrubias (2016) 1 Cal.5th 838, 894.) We will now address each of the portions of closing argument to which defendant asserts trial counsel should have raised an objection. 1. Closing Argument a. P. Endured the Stress of Testifying In closing argument, the prosecutor argued the jury should find the victim, P., credible: “She endures hours of this invasive medical examination to try to collect evidence from a sexual assault. [¶] She talks to a detective … for hours. She has to go back, repeatedly, to police stations and [the] district attorney[’]s office. And then spend days talking to strangers about this excruciating event. That’s what we know happened. Why would someone do that? Why would this high school student do that if they hadn’t 5 been the victim of a crime? [¶] Why would a high school student bear all of that, if they weren’t sexually assaulted by the defendant, if this had, indeed, been the perfectly acceptable, perfectly satisfactory sexual encounter that the defendant described? There’s no reason, no motive, absolutely no purpose in her going in front of … 20 strangers, the defendant’s family member, her attacker himself, her grandma, and talking about the most intimate and excruciating details of her life. That only happens when someone is truly the victim of a rape, truly the victim of this sexual assault.” (Italics added.) In rebuttal argument, the prosecutor argued: “Then she goes and tells her mom. Who wants to do that? Who wants to go tell their mom about a sexual encounter? [¶] Then she goes to the hospital and endures hours of medical procedures, hours of law enforcement interviews, days on the witness stand. [¶] What’s motivating that? What kind of regret[5] is motivating all of that? [¶] I submit to you, ladies and gentlemen, the defense has never, one time, presented you any kind of motive that would prompt that kind of reaction from her.” Defendant argues the prosecutor improperly shifted the burden of proof to defendant and undermined the presumption of innocence by arguing that once P. testified, the jury should presume P. was telling the truth. Defendant suggests the prosecutor also misstated the law on how to judge the testimony of witnesses by arguing P., unlike other witnesses, should essentially be believed merely because she had testified. “ ‘[I]t is improper for the prosecutor to misstate the law generally [citation], and particularly to attempt to absolve the prosecution from its … obligation to overcome reasonable doubt on all elements.’ ” (People v. Centeno (2014) 60 Cal.4th 659, 666.)

5 Defense counsel had argued, “This is an instance of regret.” And, “[T]hat’s the very definition of regret. When someone peer pressures you into doing something and then you’re, like, ‘Oh, I shouldn’t have done that.’ ”

6 Defendant further contends the prosecutor’s argument was impermissible vouching because the phrase “[t]hat only happens” conveyed to the jury the prosecutor’s argument was based on her experience in other cases and expressed a personal belief that P. was telling the truth. “ ‘ “Improper vouching occurs when the prosecutor either (1) suggests that evidence not available to the jury supports the argument, or (2) invokes his or her personal prestige or depth of experience, or the prestige or reputation of the office, in support of the argument.” ’ [Citations.] ‘The vice of such remarks is that they “may be understood by jurors to permit them to avoid independently assessing witness credibility and to rely on the government’s view of the evidence.” [Citation.] However, these limits do not preclude all comment regarding a witness’s credibility. “ ‘ “[A] prosecutor is given wide latitude during argument. The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom.” ’ ” ’ [Citation.] ‘[S]o long as a prosecutor’s assurances regarding the apparent honesty or reliability of prosecution witnesses are based on the “facts of [the] record and the inferences reasonably drawn therefrom, rather than any purported personal knowledge or belief,” [their] comments cannot be characterized as improper vouching.’ ” (People v. Lamb (2024) 16 Cal.5th 400, 440.) When viewed in context, the prosecutor did not argue, as defendant suggests, that the jury should believe any witness testifying that she had been raped or that the jury should believe P. based on the prosecutor’s experience in other cases. Rather, the prosecutor argued based on the evidence and the reasonable inferences therefrom that this particular victim was credible. b. The Reality of the System The prosecutor argued: “If we knew that every person that came into a police station was going to be perfectly honest about everything, not minimize, not exaggerate, … that everything they were going to say was going to be exactly right. [¶] That’s just 7 not the reality of the system. Right. People say different things, and they do have agendas, and they do have motives at times when they’re talking to the police or even when they’re on the witness stand. [¶] And so that’s what this jury instruction acknowledges. That … when you have a 15-year-old witness and she’s being asked questions about her sex life with [V.], she might not be perfectly up front about that, because she doesn’t want to talk about that to [the detective] or to all these jurors or in front of the defendant’s family members or [V.], himself, or the defendant. Right?” (Italics added.) Defendant argues the prosecutor’s argument about the “reality of the system” was impermissible vouching because it suggested that evidence not available to the jury supported the prosecutor’s argument. We disagree. The prosecutor’s comments were part of a larger discussion about applying the jury instruction on judging the credibility of witnesses. (CALCRIM No. 226.) The prosecutor argued while reading from the instruction: “ [‘D]id the witness make a statement in the past that is consistent or inconsistent with her testimony?[’] This is a factor in that, after the list of factors, the jury instruction goes on to tell you how to consider some of this. [¶] It says, [‘D]o not automatically reject testimony just because of inconsistencies or conflicts. Consider whether differences are important or not. Sometimes people honestly forget things or make mistakes about what they remember. If you decide that a witness deliberately lied about something significant in the case, you should consider not believing anything the witness says. Or if you think the witness lied about some things or told the truth about others, you may simply accept the part that’s true and ignore the rest.[’] “I bring up these kind of qualifiers about lying because we heard testimony that P[.] had an interview just about a month after the sexual assault and the rape, with Detective Purser, and he asked her about smoking marijuana, and she told him, no, that she hadn’t smoked marijuana. And then we get the toxicology back, her toxicology is 8 positive for THC, the active ingredient in marijuana. Detective Purser goes back and he talks to her about that, and she admits that she was more than contact high, that she did smoke marijuana with O[.] and the defendant. She says the defendant gave her marijuana. “… [T]his is an example of what this jury instruction is talking about. It is not shocking that a 15[ ]year[ ]old, when talking to a police detective in a police station[,] is going to try and minimize the fact that they did drugs on this evening. Like, that’s just not surprising. That’s pretty normal, probably pretty expected. And the jury instruction tells you that’s a factor to consider. She lied about that. Goes to her credibility. But also, the jury instruction cautions you against just rejecting her testimony because a 15[ ]year[ ] old lied about smoking marijuana. And so take that caution into consideration as you think about P[.]’s testimony.” Argument paused to address other matters. When the prosecutor resumed, she made the following statements that led into the argument defendant now challenges: “I’m sure that when [defense counsel], in a moment, gets his closing argument, he’s going to make much of some of these inconsistencies in P[.]’s testimony. Right. The fact that at first she says that she doesn’t smoke marijuana, and then later she says that she did. [¶] … [¶] So those are the inconsistencies that we’re talking about.” In context, the prosecutor’s argument about “the reality of the system” did not suggest evidence outside the record supported the verdict. Rather, the prosecutor argued, based on the jury instructions regarding credibility, that not all inconsistent statements mean that a witness is lying about everything, and urged that the evidence and the instruction supported concluding P. testified truthfully. c. P.’s Testimony Was “Reasonable” Compared to Other Evidence The prosecutor argued: “The jury instruction on witness credibility tells us to think through these things, [‘[H]ow reasonable is the testimony when you consider all the other evidence in the case[?’] [¶] And that’s what I’ve been talking about when I talk 9 about her immediately reporting and then undergoing the questioning by law enforcement, in the courtroom, in the BEAR[6] exam. Right? [¶] It shows us that her testimony, her statement of what happened is reasonable, when it’s compared with all the other evidence.” (Italics added.) Defendant argues, citing People v. Centeno, supra, 60 Cal.4th 659 and People v. Cowan (2017) 8 Cal.App.5th 1152, that it is improper for the prosector to argue that a reasonable account of the evidence satisfies the prosecutor’s burden of proof. (See Centeno, supra, at p. 675 [“the prosecutor’s argument urging the jury to convict based on a reasonable account of the evidence misstated the burden of proof”].) Here, however, the prosecutor never made such an argument. Neither did the prosecutor in Cowan. As that court illustrated in distinguishing Centeno, not all mentions of reasonableness are improper: “[T]he prosecutor here prefaced her remarks with the statement that beyond a reasonable doubt means ‘you’re firmly convince[d] that guilt is the only reasonable interpretation of the evidence.’ That is an accurate statement of the meaning of beyond a reasonable doubt. (See CALCRIM No. 224, stating in part: ‘[B]efore you may rely on circumstantial evidence to find the defendant guilty, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant is guilty.].’) The prosecutor made the statement immediately before discussing what is reasonable. The jury would understand the prosecutor’s discussion of the reasonable interpretation of the evidence to be linked to her statement that the jury must be firmly convinced that guilt is the only reasonable interpretation of the evidence.” (Cowan, supra, at p. 1162.) The Cowan court reversed because “the prosecutor told the jury reasonable doubt ends when the case begins.” (Ibid.) Here, the prosecutor did not mischaracterize the reasonable doubt standard or misstate the law. Like the prosecutor in 6 “The BEAR unit … specializes in strangulation and sexual assault.”

10 Cowan, the prosecutor’s discussion of reasonableness was correct and anchored to the jury instructions. The instruction the prosecutor was reading from asks, “How reasonable is the testimony when you consider all the other evidence in the case?” The prosecutor permissibly argued based on this instruction and the evidence that the jury should find P. credible in part because her testimony was reasonable considering all of the evidence. d. Filling a Bucket with Evidence Defendant argues the prosecutor implicitly compared proving her case beyond a reasonable doubt with filling a bucket with cups of water: “[T]here’s the testimony of the witness, and then there’s other evidence. And we try to see if the other evidence lines up with what the witness said. [¶] I think about this as filling a bucket with water. So you got a bucket. Bucket is empty. You got a cup full of water. And the little cup is way smaller than the bucket. It’s going to take a number of cups of water to fill the bucket. [¶] You start filling the bucket. You put a cup of water in, a cup of water in, a cup of water in. It’s not any one cup that fills the bucket. It’s all of those cups together. [¶] And that’s how corroboration works. We start looking at the facts and seeing whether those facts can fill the bucket. [¶] So each cup of water is a piece of corroboration. It shows us that the witness—in this case, the victim, P[.]—is telling the truth.” (Italics added.) The prosecutor also argued: “[A]t the laboratory they tested the DNA swab from the right side of P[.]’s neck. And the defendant’s DNA was also on that swab. And that’s exactly what P[.] told you. He tried to kiss me on the right side of my neck. [¶] Cup of water in the bucket. It’s a piece of corroboration.” (Italics added.) The prosecutor additionally argued: “She’s crying. They go to A[.]’s house. They try to get the Plan B pill. P[.] takes it. They go to P[.]’s apartment. Tell her mom. [¶] All of that is corroboration. All of that is a cup of water filling up the bucket.” (Italics added.)

11 Defendant suggests the prosecutor improperly attempted to quantify the concept of reasonable doubt. Again, however, the prosecutor’s argument did not discuss the concept of reasonable doubt. The prosecutor was discussing the concept of corroboration of evidence and, notably, did not attempt to quantify how much corroboration is sufficient. The prosecutor did not misstate the law regarding reasonable doubt. Because we reject defendant’s assertion that counsel should have objected to the above comments, we reject his claim that his counsel rendered ineffective assistance. (People v. Lucero, supra, 23 Cal.4th at p. 732.) II. DISPOSITION The sentence is vacated, and the matter is remanded to the trial court for further litigation as necessary and a full resentencing hearing. The judgment is otherwise affirmed.

/S/ RENNER, Acting P. J.

We concur:

/S/ KRAUSE, J.

/S/ MESIWALA, J.