Filed 8/21/26 P. v. Gamero CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, Plaintiff and Respondent, A169713
v. (San Francisco County Super. Ct. ROBERTO A. GAMERO, Nos. CRI22001288, SCN234977)
Defendant and Appellant.
A jury found defendant Roberto A. Gamero guilty of domestic violence, torture, false imprisonment, battery causing serious bodily injury, assault with force likely to cause great bodily injury, and vandalism. On appeal, Gamero contends that: (1) the trial court abused its discretion in denying his motion to dismiss for a speedy trial violation under Penal Code section 1382;1 (2) amending the information to allege torture after he declined to enter into a plea agreement amounted to vindictive prosecution in violation of his federal and state due process rights; (3) insufficient evidence supported the
1 Penal Code section 1382, subdivision (a), provides: “The court, unless
good cause to the contrary is shown, shall order the action to be dismissed in the following cases: . . . [¶] (2) In a felony case, when a defendant is not brought to trial within 60 days of the defendant’s arraignment on an indictment or information . . . .”
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conviction for torture; and (4) the trial court’s denial of his request to instruct the jury that consent is a defense to domestic violence violated his federal and state constitutional right to present a defense.2 We affirm.
BACKGROUND
In March 2022, Gamero was charged by information with domestic violence (§ 273.5, subd. (a); counts 1, 6, 7, 9, and 11), assault with a deadly weapon (§ 245, subd. (a)(1); counts 2 and 10), false imprisonment (§ 236; count 3), battery (§ 243, subd. (e)(1); count 4), assault with force likely to cause great bodily injury (§ 245, subd. (a)(4); count 5), and vandalism (§ 594, subd. (b)(1); count 8).3 The charges arose out of separate incidents of violence against J.C. on multiple dates including April 29, 2021, and February 5, 2022.
In January 2023, Gamero’s case was assigned to a different prosecutor.
In May 2023, the prosecutor filed a motion to amend the information to, most pertinent here, add two counts alleging torture. The trial court granted the motion, and the first amended information was subsequently amended twice. The third amended information charged Gamero with domestic violence (§ 273.5, subd. (a); counts 1, 8, 11, 13, and 14), battery causing serious bodily injury (§ 243, subd. (d); count 2), false imprisonment (§ 236; counts 3 and 4), torture (§ 206; counts 5 and 10), battery (§ 243, subd. (e)(1); count 6), assault
2 All undesignated statutory references are to the Penal Code.
3 Some of the counts in the information alleged great bodily injury.
We
need not discuss these allegations further, as they are not at issue on appeal.
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with force likely to cause great bodily injury (§ 245, subd. (a)(4); counts 7 and 9), and vandalism (§ 594, subd. (b)(1); count 12).4 Gamero was tried before a jury. J.C. testified, as did Gamero and other witnesses.
The jury found Gamero guilty of domestic violence (counts 1, 8, 11, and 13), battery causing serious bodily injury (count 2), false imprisonment (count 4), torture (count 5), assault with force likely to cause great bodily injury (count 9), and vandalism (count 12). The jury found Gamero not guilty on count 7 (assault with force likely to cause great bodily injury) and was unable to reach a verdict on the lesser included offense. The jury was unable to reach a verdict on counts 3 (false imprisonment), 6 (battery), 10 (torture), and 14 (domestic violence), and the trial court declared a mistrial as to these counts.5 Gamero was sentenced to an aggregate term of nine years to life in prison, based on seven years to life on count 5 (torture) plus a consecutive two years on count 8 (domestic violence).
Gamero appealed.
DISCUSSION
A. Speedy Trial 1. Additional Background On March 10, 2022, Gamero was arraigned on the information, and the trial court noted that the last day for trial was May 9, 2022.
4 Some of the counts in the third amended information alleged great
bodily injury and circumstances in aggravation. We need not discuss these allegations further, as they are not at issue on appeal.
5 At the prosecution’s request, the trial court later dismissed counts 3,
6, 10, and 14.
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On May 9, the trial court found “good cause pursuant to the COVID order” to continue the trial date to July 22. Gamero did not object. The trial court also issued a 15-page written order finding “good cause to continue the jury trial until a courtroom becomes available.”
On July 22, the trial court found that the “exceptional and extraordinary circumstances caused by the global pandemic . . . continue to exist” and continued the trial date to September 22, over Gamero’s counsel’s objection.
On September 22, the trial court made the same finding and continued the trial date to November 29, again over Gamero’s counsel’s objection.
On November 29, the prosecutor moved to continue the trial pursuant to section 1050, subdivision (g)(2), because she was commencing trial in another case. The trial court found good cause and continued the trial date to January 6, 2023. The trial court denied defendant’s oral motion to dismiss under section 1382.
On January 6, 2023, the trial court again found that “the exceptional extraordinary circumstances caused by the global pandemic . . . continue to exist.” This time, Gamero’s counsel stated that she was “current[ly] engaged in another jury trial that’s currently wrapping up.” The trial court stated: “If you want this case to go out to trial, I will assign it out. If you don’t then he needs to waive time or I’m going to assign it out to a trial department.” After Gamero’s counsel replied no, the trial court assigned the matter for jury trial on February 6. Gamero’s counsel made an oral section 1382 motion.
On February 6, Gamero’s counsel was unavailable because she was in another trial, and the trial court continued the trial date to March 6. At a pretrial conference on February 22, the trial court confirmed March 13 for trial.
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On March 13, Gamero’s counsel was unavailable for trial because she was in another trial. The trial court continued the trial date to May 12.
On May 3, 2023, the prosecutor filed a motion to continue the trial because J.C., the victim, was unavailable. Over Gamero’s objection, the trial court found good cause and continued the trial to June 9. The trial court denied Gamero’s section 1382 motion.
On June 9, the trial court assigned the matter to a courtroom for trial on June 12.
2. Analysis Gamero argues on appeal that the trial court abused its discretion in denying his motion to dismiss under section 1382. As Gamero acknowledges in his supplemental opening brief, to prevail on this issue on appeal, Gamero must show not only error but that the pretrial delay caused prejudice. “Although a defendant seeking pretrial relief for a speedy trial violation is not required to make an affirmative showing of prejudice [citation], the situation is different after judgment. [Citations.] ‘Upon appellate review following conviction, . . . a defendant who seeks to predicate reversal of a conviction upon denial of his right to speedy trial must show that the delay caused prejudice: this court, in reviewing the judgment of conviction, must “weigh the effect of the delay in bringing defendant to trial or the fairness of the subsequent trial itself.” ’ [Citation.]” (People v. Lomax (2010) 49 Cal.4th 530, 557 (Lomax).) Here, we need not address whether the trial court erred in denying his motion because Gamero has failed to show that the delay caused prejudice.
Gamero argues that, had his invocation of his speedy trial rights been respected, he would have gone to trial before the information was amended and would not have been convicted of charges that had been added, including
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torture (count 5). This is unconvincing. First, it is completely speculative. Moreover, as the Attorney General points out and Gamero does not dispute, had the trial court granted Gamero’s motion to dismiss based on a violation of his speedy trial right, the prosecutor could have simply refiled charges against Gamero. This would have restarted the speedy trial time clock under section 1382, subdivision (a)(2), and given the prosecutor time to amend the information to add the new charges. To the extent that Gamero is arguing that the prosecutor would not have had enough time after refiling the charges to amend the information to add the new charges, we do not find such an argument persuasive to show that the delay caused prejudice.
Gamero also contends that the delay significantly impaired his ability to defend against the charges “as memories of the events and contexts necessarily faded,” that the torture charges required “the kind of evidence that deteriorates most rapidly with time,” and that his “ability to assist in his defense, such as by recalling specific conversations, . . . necessarily deteriorated.” This is insufficient. The “showing of actual prejudice which the law requires must be supported by particular facts and not . . . by bare conclusionary statements.” (Crockett v. Superior Court (1975) 14 Cal.3d 433, 442.) Gamero has failed to do that here. Moreover, Gamero did not support these arguments with any citations to the record, which alone would be a basis to conclude he had forfeited these arguments. California Rules of Court, rule 8.204(a)(1)(C), states that each appellate brief must “[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears.” “The Courts of Appeal ‘have the discretion to disregard contentions unsupported by proper page cites to the record’ [citation] and will conclude that parties forfeit arguments by failing to support statements in the argument section of a brief with
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record citations.” (Wentworth v. Regents of University of California (2024) 105 Cal.App.5th 580, 596.)
In his reply brief, Gamero makes a new and different argument that the delay caused prejudice in the form of “evolution of witness testimony, and particularly J.C.’s narrative, in a manner to bolster the prosecution case.” Gamero forfeited the argument by raising it for the first time in reply. (See Malmquist v. City of Folsom (2024) 101 Cal.App.5th 1186, 1205, fn. 6 (Malmquist) [arguments raised for the first time in a reply brief are forfeited].) Even on the merits, it is not persuasive. Gamero’s vague and generalized assertion that “the passage of time allowed the narrative to shift in the prosecution’s favor” fails because it does not show that the delay actually caused prejudice. (See Lomax, supra, 49 Cal.4th at p. 557.) Gamero cites four pages of J.C.’s testimony, but no testimony that the passage of time caused the change in her recollection of the events on February 5, 2022. Gamero asserts in reply that “J.C.’s story just so happened to evolve in a particular way to rebut potential defenses . . . and to portray the incident as even worse . . . .” Even if that characterization is accurate (a conclusion we do not make), it is just speculation that this was caused by the later trial date. So too is Gamero’s position that, had the trial not been delayed, J.C.’s testimony “would most likely have corresponded more closely to her more defense-favorable prior statements.” In sum, Gamero has not met his burden to show that the delay caused prejudice. (See ibid.) B. Vindictive Prosecution 1. Additional Background In 2022, the prosecutor made a plea offer to Gamero of six years in prison. As we have described, in January 2023, the case was assigned to a different prosecutor, and in May, that prosecutor filed a motion to amend the
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information to add two counts alleging torture. Gamero was convicted of one of those counts of torture, and that is the linchpin of his vindictive prosecution argument.6 In her declaration in connection with the motion to amend the information, the prosecutor stated that based on her review of the preliminary hearing transcript and exhibits, the operative information was “insufficient” because it lacked several felony charges for which there was “ample evidentiary support.” After Gamero opposed the motion, asserting vindictive prosecution, the prosecutor filed another declaration stating that, when she first appeared for plea negotiations, she did not feel comfortable straying from the six-year plea offer made by the previous prosecutor because she had not yet sufficiently reviewed the case. And when she later “combed through the preliminary hearing transcript, it became clear that there were several unalleged crimes supported by the evidence.”
At a hearing on June 13, the trial court stated: “[U]ntil jeopardy attaches . . . the prosecutor is given broad latitude to make amendments, to assess her case, . . . to realize that something is actually worth more than perhaps an offer in a plea-bargaining situation would suggest, particularly since in this case that offer [was] originally . . . by a completely different prosecutor. [The newly assigned prosecutor] comes in, inherits this offer, offer gets rejected. She looks at her case seriously; she makes a new assessment.” The trial court concluded: “[T]his is not vindictive prosecution.” The trial court further stated: “Am I entirely comfortable with the fact that this case, . . . one month before you get sent out, suddenly has life exposure,
6 As detailed above, other charges were also added, but Gamero’s
vindictive prosecution argument focuses on and seeks the dismissal of the conviction for torture (count 5).
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which was not something that anybody knew during the course of all of these discussions? No. Do I wish that the timing were otherwise? Yes. But I do not believe that it rises to the level of vindictive prosecution, nor do I in any way in making those comments suggest that there is anything vindictive or bad faith happening on the part of the People.”
On June 27, Gamero filed a motion to reconsider with a declaration of counsel stating that, at a pretrial conference in February 2023, the prosecutor called Gamero “ ‘disgusting.’ ” Counsel also stated that, in the trial court’s chambers on June 22, the prosecutor called Gamero “ ‘sophisticated’ ” and “ ‘manipulative’ ” and said that he “ ‘doesn’t need help, he needs punishment.’ ”
At a hearing on June 27, the trial court stated: “Well, I was there when the conversation was had . . . about . . . punishment being needed . . . I heard the tone; I heard the context. I don’t agree that it was any more personal than cases become personal to people who are advocating for a particular side.” The trial court concluded: “I don’t see objective evidence of vindictive prosecution.”
2. Analysis Gamero contends that the prosecutor’s decision to amend the information after he declined to enter into a plea agreement amounted to vindictive prosecution in violation of his federal and state due process rights. He also contends that a presumption of vindictiveness should apply because the prosecutor’s decision to amend the information was not based on newly discovered evidence and followed Gamero’s decision to reject a plea offer. We disagree.
The doctrine of vindictive prosecution prohibits prosecutors from punishing defendants for exercising their constitutional rights. As the
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United States Supreme Court has long recognized, “while an individual certainly may be penalized for violating the law, he just as certainly may not be punished for exercising a protected statutory or constitutional right.” (U. S. v. Goodwin (1982) 457 U.S. 368, 372 (Goodwin).) That is because “punish[ing] a person because he has done what the law plainly allows him to do is a due process violation ‘of the most basic sort.’ [Citation.]” (Ibid.) In addition to the United States Constitution, “[t]he due process clause of the California Constitution also prohibits increased charges motivated by prosecutorial vindictiveness.” (See In re Bower (1985) 38 Cal.3d 865, 876.)
Because proving that a prosecutor had an “improper vindictive motive”
is difficult, courts presume such a motive in certain cases in which action detrimental to the defendant has been taken after the exercise of a legal right. (See Goodwin, supra, 457 U.S. at p. 373.) But the United States Supreme Court has concluded that “[t]he possibility that a prosecutor would respond to a defendant’s pretrial demand for a jury trial by bringing charges not in the public interest that could be explained only as a penalty imposed on the defendant is so unlikely that a presumption of vindictiveness certainly is not warranted.” (Id. at p. 384.) There is good reason not to presume prosecutorial vindictiveness in a pretrial setting. “In the course of preparing a case for trial, the prosecutor may uncover additional information that suggests a basis for further prosecution or he simply may come to realize that information possessed by the State has a broader significance. At this stage of the proceedings, the prosecutor’s assessment of the proper extent of prosecution may not have crystallized.” (Id. at p. 381.) “A prosecutor should remain free before trial to exercise the broad discretion entrusted to him to determine the extent of the societal interest in prosecution. An initial decision should not freeze future conduct.” (Id. at p. 382.)
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The California Supreme Court has reached a similar conclusion. It has held that “ ‘[i]n the pretrial setting, there is no presumption of vindictiveness when the prosecution increases the charges or . . . the potential penalty. [Citations.]’ ” (People v. Grimes (2016) 1 Cal.5th 698, 736 (Grimes).) Where, as here, there is no presumption of vindictiveness, “the defendant must ‘prove objectively that the prosecutor’s charging decision was motivated by a desire to punish him for doing something the law plainly allowed him to do.” ’ [Citation.]” (See ibid.)
Our Supreme Court has not articulated the standard of review for a vindictive prosecution claim. (See People v. Ayala (2000) 23 Cal.4th 225, 299 [concluding that the trial court’s ruling that there was no evidence of vindictive prosecution was sound “under any standard of review”].) Courts of Appeal have reviewed factual findings for substantial evidence and legal determinations de novo. (See People v. Sanchez (2020) 49 Cal.App.5th 961, 983; Short v. Superior Court (2019) 42 Cal.App.5th 905, 915.) Here, we also need not determine this issue, because Gamero’s claim fails under any standard.
Gamero contends that: (1) the application of the presumption of vindictiveness is appropriate; (2) the prosecutor’s statement that Gamero needs punishment revealed a “strong animosity” towards Gamero that led the prosecutor to punish him for continuing to refuse the plea offer and exercising his right to trial by adding torture charges; and (3) the only reasonable conclusion is that Gamero’s exercise of his trial right was the prosecutor’s motivation to add the torture charges. We are not persuaded.
First, although Gamero concedes that “California has not established . . . a presumption [of vindictiveness] in a pretrial context,” he nonetheless argues that the presumption should be applied here. As we have discussed,
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this is contrary to our Supreme Court’s holding that, in the pretrial setting, there is no presumption of vindictiveness when the prosecution increases the charges or the potential penalty. (Grimes, supra, 1 Cal.5th at p. 736.) We are bound by this decision. (Auto Equity Sales, Inc. v. Superior Court of Santa Clara County (1962) 57 Cal.2d 450, 455 [“The decisions of [the California Supreme Court] are binding upon and must be followed by all the state courts of California”].)7 Second, Gamero contends that the prosecutor’s statement that Gamero needs punishment, not help, revealed a “strong animosity” towards Gamero that led the prosecutor to punish him for continuing to refuse the plea offer and exercising his right to trial by adding torture charges. The trial court disagreed, and we find no error. Because the presumption of vindictiveness does not apply in the pretrial setting, Gamero “ ‘must “prove objectively that the prosecutor’s charging decision was motivated by a desire to punish him” ’ ” for proceeding to trial. (Grimes, supra, 1 Cal.5th at p. 736.) Here, while the prosecutor’s statements may prove that she believed that Gamero should be punished for violating the law, her statements are not sufficient to objectively prove an improper vindictive motive.
Third, Gamero contends that, in the absence of any change in the underlying facts, the only reasonable conclusion as to the prosecutor’s
7 Gamero’s reliance on U.S. v. Jenkins (9th Cir. 2007) 504 F.3d 694, is
misplaced because “[d]ecisions of lower federal courts interpreting federal law are not binding on state courts.” (People v. Williams (1997) 16 Cal.4th 153, 190.) Furthermore, Jenkins is distinguishable. There, the Ninth Circuit applied a presumption of vindictive prosecution but not in a pretrial setting as Gamero contends. (See Jenkins at p. 701.) Rather, the government charged Jenkins with importation of marijuana, she testified in her own defense, and the government filed separate alien smuggling charges while the jury was deliberating. (Id. at p. 697.)
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motivation to add the torture charges is Gamero’s exercise of his trial right. Here, however, the prosecutor explained that after the case had been reassigned to her and she read the preliminary hearing transcript, it became clear that there were unalleged crimes supported by the evidence. This explanation is fully consistent with Goodwin and the discretion entrusted to prosecutors to determine the proper extent of prosecution. (See Goodwin, supra, 457 U.S. at pp. 381-382.) We conclude that, under any standard, Gamero failed to objectively prove that the prosecutor’s charging decision was motivated by a desire to punish him for exercising his right to a trial. C. Sufficiency of the Evidence of Torture 1. Additional Background As we have noted, Gamero was convicted of torture, in violation of section 206 (count 5).
J.C. testified that she started dating Gamero in 2020 and they moved in together months later. On February 5, 2022, J.C.’s parents and grandmother came over for dinner. J.C. told her mother and grandmother that Gamero was the man she was going to marry. When J.C.’s parents and grandmother left, Gamero’s level of intoxication was “probably . . . pretty average.” J.C. had seen Gamero drink to the point where he couldn’t make coherent sentences and had trouble walking and standing, but Gamero wasn’t that way that night and was in fact “engaging in conversation with [her] without issue.”
After J.C.’s family left, Gamero told J.C. that her father said that she had been sent to Mexico when she was a freshman in high school because she had messaged an older man on the Internet. Gamero asked if it was true, and J.C. said that there were multiple reasons. Gamero then hit J.C. a couple of times in the face with a closed fist. Gamero was upset and said he
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“knew it was only a matter of time before another lie came up.” He told her that they were “done” and said, “[I]f your stuff isn’t out of here by 12:00 o’clock tomorrow, I’m going to beat the shit out of you.” Gamero started throwing J.C.’s clothing into the trash bags and threw the trash bags out the window.
J.C. testified that she ran downstairs to retrieve her belongings, shoved them back in the trash bags, and set the bags next to the stairs. J.C. couldn’t bring herself to call her parents to tell them that Gamero was hitting her and to tell them to come get her. J.C. wanted to leave but didn’t know where she could go, so she sat on the stairs. Eventually Gamero came downstairs and asked J.C. if she was going home, which she understood to refer to her parents’ home. She said no. Gamero told her, “Get your ass upstairs.” He said that he got her a hotel to stay in, but he wanted her gone the next day. J.C. went upstairs to the apartment.
J.C. testified that, back inside the apartment, Gamero started to punch her in the face. J.C. tried to leave, but Gamero slammed the door on her. Gamero locked the door and repeatedly punched J.C. in the face. Gamero started kneeing her in the face, dragged her to their bedroom, repeatedly slammed her face in the doorway, pulled her mouth apart with his fingers as hard as he could, and screamed: “I’m going to rip your fucking mouth open.” Gamero dragged her by the hair to the living room and strangled her on the couch.
J.C. begged for Gamero to “please just let [her] leave.” Gamero said, “Oh, so now you want to leave.” J.C. opened the window, and Gamero slammed it shut. Something struck J.C. in the face, and she fell on the ground. Gamero continued to punch her in the face. When he stopped, he said, “Why can’t you just be honest with me? I’ve never lied to you. I have
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only ever been good to you. I cooked for your family today. Like, you know how much that means to me.” At another point, Gamero “almost looked . . . smug” and told her that she “deserve[d] this” and that she knew it.
J.C. testified that when they heard police sirens Gamero ran to the window.8 He told her to get the bags of clothing and walked her to the back door where he told her to sit on the steps outside. He then closed the door.
One of the police officers who responded to the scene that night testified that he saw Gamero in the stairwell of the building and asked him questions. Gamero stated that he lived on the second floor, but when the officer asked him again Gamero pointed to the third floor. The officer asked Gamero how he got scratch marks on his face, and Gamero stated that he had a cat. Gamero’s speech was slurred.
Another officer testified that he saw J.C. outside of the apartment. He saw the laceration on her forehead, and because she was “all bloody from her face,” officers summoned medics, who transported her to a hospital. The emergency room doctor who treated J.C. testified that she had a deep laceration that went to the skull; it was so deep that it required a layer of sutures underneath the skin. Several bones in J.C.’s nose were broken, and her orbit (eye socket) was fractured.
The oral-maxillofacial surgeon who later operated on J.C. testified that her orbital floor fracture caused J.C.’s eye to look sunken in and uneven. Repairing J.C.’s fractured eye socket required about two hours of surgery
8 Police officers responded to the apartment where Gamero and J.C.
lived because a witness who had been across the street called 911 after she heard screams and saw a man moving aggressively at a woman in one of the windows.
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under general anesthesia, making an incision through her eyelid, placing a custom-made plate, and securing it with screws.
Gamero testified at trial in his own defense. He testified that, after J.C.’s father told him about having sent J.C. to Mexico when she was younger because she was talking to an older man, he was angry because J.C. had told him a different story and felt deceived.
Gamero testified that, after J.C.’s family left, he told J.C. about his conversation with her father and asked J.C. “Why do you keep lying?” Gamero was breaking up with J.C. because she lied to him and told her that “this is it now.”
Gamero testified that he kept telling J.C. to leave but she just wouldn’t leave. “So [he] had to think of a way to get her out.” He grabbed J.C.’s things, put them in garbage bags, and threw them out the window. Gamero testified that he wanted her to leave and thought this was “the best option.”
Gamero testified that J.C. went downstairs to collect her belongings, and he booked J.C. a hotel for the next day because she had refused to go to her mother’s home as he had instructed. He went downstairs to see if she had left.
Gamero testified that when he saw J.C. in the stairway and she refused to go home he told her, “Get your ass upstairs.” He told her that he booked a hotel for her and she could leave in the afternoon.
Gamero testified that, back inside the apartment, J.C. kept saying that she was not going to leave and he was not breaking up with her, and she
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pushed him. So he attacked J.C. by punching her “[a]ll over her face” with a closed fist 10 or more times.9 Gamero testified that J.C. kept screaming, “Let me go,” and he said, “So now you want to leave.” She said, “Just let me go. You’re hurting me. Why are you hurting me?” And he said, “Why do you want to leave now? Now you want to leave.” J.C. opened the window and started screaming, and he slammed the window shut “to keep the noise in, rather than out”; he didn’t want anyone to hear her screaming. Gamero grabbed J.C., threw her into the corner where there was a marble table, and then saw the laceration on her forehead and blood all over her face, and said to her: “[W]hy are you doing this?”
Gamero testified that he grabbed J.C. and pinned her to the couch by her wrist and kept saying: “Why do you keep lying to me? This hurts.”
Gamero testified that, when he saw the police lights, he took off his shirt, put on a zip-up, grabbed the garbage bags, and told J.C. to hide in the stairwell so that she wouldn’t be around in case the police came.
Gamero testified that he had been drinking whisky and wine on the night of the attack, but he had a “high alcohol tolerance.” He testified: “[I]t got into a point where I was probably drinking every night but not to a point of complete intoxication. But it would be, like, three drinks after work . . . .” “And then on a weekend, you can say I let my hair down . . . .” There were other times where he had been “way more intoxicated,” and, on a scale of one to 10, he was “[a]bout seven, eight” that night.
9 Gamero denied kneeing J.C. in the face, dragging her, putting his
fingers in her mouth, and strangling her.
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2. Analysis Gamero contends that insufficient evidence supported the conviction for torture because there was no evidence of intent to cause cruel or extreme pain and suffering for the purpose of revenge, extortion, persuasion, or for any sadistic purpose. He argues that the evidence established “only that [he] committed a serious assault while intoxicated” and that an “unfortunate combination of alcohol and anger caused [him] to assault [J.C.] on the night of February 5, 2022.” We disagree.
“When a defendant challenges the sufficiency of the evidence, ‘ “[t]he court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” [Citation.]’ [Citations.]” (People v. Clark (2011) 52 Cal.4th 856, 942– 943.) “The standard of appellate review is the same in cases in which the People rely primarily on circumstantial evidence.” (People v. Bean (1988) 46 Cal.3d 919, 932 (Bean).) “Although a jury must acquit if it finds the evidence susceptible of a reasonable interpretation favoring innocence, it is the jury rather than the reviewing court that weighs the evidence, resolves conflicting inferences and determines whether the People have established guilt beyond a reasonable doubt.” (People v. Yeoman (2003) 31 Cal.4th 93, 128.) “ ‘ “If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment.” ’ [Citations.]” (Bean, supra, 46 Cal.3d at p. 933.)
As the statute states, torture has two elements: the infliction of great bodily injury upon the person of another and the “intent to cause cruel or
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extreme pain and suffering for the purpose of revenge, extortion, persuasion, or for any sadistic purpose.” (§ 206.)10 Gamero challenges only the second element—intent.11 A defendant’s statements can be sufficient evidence of an intent to cause cruel pain for the purpose of revenge. (See People v. Hale (1999) 75 Cal.App.4th 94, 106–107 [concluding that there was sufficient evidence that the defendant harbored an intent to torture the victim because his statements “That’s what you get” and “You’re going to get it” suggested that he intended to cause the victim to suffer cruel pain for the purpose of revenge].)
A reasonable jury could have inferred from Gamero’s repeated angry statements about J.C.’s lies that he intended to cause her cruel or extreme pain in revenge. As we have described, Gamero made multiple statements about J.C.’s lies before, during, and after the attack. By Gamero’s own admission, before he started attacking her he confronted J.C. about his conversation with her father and repeatedly asked her why she kept lying. During the attack, he threw her into the corner where the marble table was, saw the laceration on her forehead and blood all over her face, and said “[W]hy are you doing this?” And after he finally stopped attacking J.C., he grabbed her, pinned her to the couch by her wrist, asked, “Why do you keep doing this,” and said: “Why do you keep lying to me? This hurts.” J.C.’s
10 Section 206 provides: “Every person who, with the intent to cause
cruel or extreme pain and suffering for the purpose of revenge, extortion, persuasion, or for any sadistic purpose, inflicts great bodily injury as defined in Section 12022.7 upon the person of another, is guilty of torture.”
11 Gamero conceded that the first element was met during his closing
argument at trial, and, on appeal, he does not contend otherwise.
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testimony was also evidence of Gamero’s desire for revenge: when Gamero stopped punching her in the face, he asked why she couldn’t just be honest with him and, right before they heard the police sirens, he told her that she “deserve[d] this.”
A reasonable jury could also have inferred from Gamero’s statements that he intended to cause J.C. cruel or extreme pain for the purpose of revenge for her refusal to leave their apartment the night of the attack or to agree to leave by noon the next day. Gamero testified that he kept telling J.C. to leave but she just wouldn’t. So he threw J.C.’s belongings out the window. Still she refused to leave, even when he went downstairs and told her to go home. Even after he told her that he had booked a hotel for her and she could leave the next afternoon, J.C. kept saying she would not leave. By Gamero’s account, it was at this point, after he repeatedly told her to leave and she repeatedly refused, that he started attacking J.C. As we have described, when J.C. screamed that he was hurting her and repeatedly begged him to let her go, he taunted her by repeatedly saying, “Now you want to leave.” Together Gamero’s statements are substantial evidence of his intent to cause J.C. cruel or extreme pain for the purpose of revenge for her refusal to leave.
In his reply brief, Gamero argues for the first time that torture requires evidence of “calculated, premeditated conduct.” But he cites no authority for this contention. In the absence of cogent legal argument supported by citations to authority, we may deem a contention forfeited, and we do so here. (See Clary v. City of Crescent City (2017) 11 Cal.App.5th 274, 294 [“ ‘ “This court is not required to discuss or consider points . . . which are not supported by citation to authorities . . . .” ’ [Citation] . . . [Appellant] has forfeited the issue”].) Even if we considered the merits, section 206 does not require
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evidence of calculated, premeditated conduct. “ ‘We must presume that had premeditation been intended to be an element of the crime of torture under section 206, the section would have said so.’ [Citation.]” (People v. Aguilar (1997) 58 Cal.App.4th 1196, 1206.) In fact, “an intent to inflict cruel or extreme pain and suffering . . . may be the result of ‘mere unconsidered or rash impulse hastily executed.’ [Citation.]” (People v. Massie (2006) 142 Cal.App.4th 365, 372 (Massie).) Gamero argues that we should reject this principle because it renders the specific intent element meaningless and makes torture indistinguishable from aggravated assault. We do not find this point at all persuasive. As another court concluded when faced with a similar argument, it “disregards the fact that for a torture conviction the jury must not only find the defendant inflicted great bodily injury but also that the defendant intended to do so for the purpose of revenge, extortion, persuasion, or some other sadistic purpose.” (See People v. Pre (2004) 117 Cal.App.4th 413, 423 (Pre).) “This additional intent requirement distinguishes the offense of torture from an aggravated assault and is clearly a matter for a jury to determine.” (Ibid.) Along the same lines, Gamero argues that, if torture can be proven through an unconsidered or rash impulse, then virtually any drunken assault causing significant pain could constitute torture. But not all drunken assaults are intended “for the purpose of revenge, extortion, persuasion, or for [a] sadistic purpose,” as required by section 206. Because an assailant can intend to cause cruel or extreme pain and suffering for other purposes, such as subduing a victim or defending himself, torture and aggravated assault are not coextensive. (See Pre at p. 422.)
Gamero contends that he was not operating with any specific intent because he was simply being led by a “blind anger” that got the best of him.
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This is also unconvincing. As the court in Massie made clear, “[a]n inference that defendant acted in anger would not dispel the intent required for torture.” (Massie, supra, 142 Cal.App.4th at p. 375.) “[I]f the jury believes the accused acted in such a mindless rage that thought processes were impossible,” it may conclude that a defendant did not harbor the requisite intent. (See id. at pp. 372, 375 [“record does not suggest that [Massie] acted in the kind of mindless rage that would preclude the thought process of forming an intent to inflict cruel or extreme pain and suffering”].) But there was substantial evidence that Gamero’s anger was not mindless. Gamero had the presence of mind to attempt to conceal his guilt from the police officers who responded to the scene. When Gamero saw the police lights, he took off his shirt, put on a zip-up, grabbed the garbage bags, and told J.C. to hide in the stairwell so the police officers would not see her. And he lied to an officer by saying that he lived on the second floor and attributing the scratch marks on his face to his cat. Additionally, he admitted at trial that, when J.C. screamed out the window, he slammed the window shut “to keep the noise in, rather than out” because he did not want anyone to hear her screaming. A reasonable jury could conclude that Gamero’s anger did not preclude him from “the thought process of forming an intent” to conceal his attack from the outside world and conceal his guilt from the police, and his anger did not amount to “mindless rage that would preclude the thought process of forming an intent to inflict cruel or extreme pain and suffering” for the purpose of revenge. (See id. at p. 375.)
Gamero briefly contends (in a three-sentence argument) that his “heavy consumption of alcohol” to the point that he was slurring his words when police arrived demonstrates that he did not possess the requisite mens rea. Gamero fails to set forth all of the evidence material to his intoxication,
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which alone dooms his argument. (See People v. Sanghera (2006) 139 Cal.App.4th 1567, 1574 [to prevail on a sufficiency of the evidence argument, “the defendant must set forth in his opening brief all of the material evidence on the disputed elements of the crime in the light most favorable to the People”].) For example, Gamero fails to acknowledge his admissions at trial that his level of intoxication was “[a]bout seven, eight” out of 10 and there were other times when he had been “way more intoxicated.” Even on the merits, a reasonable jury could have, as instructed, considered evidence of Gamero’s voluntary intoxication and decided that he nonetheless acted with the specific intent required for torture.12 As the Attorney General points out, Gamero “was able to pursue his goals from his actions, including removing J.C. from their apartment.” Neither Gamero’s anger nor his intoxication precluded him from deciding to book a hotel for J.C. after she refused to go to her parents’ home. And his intoxication did not prevent him from attempting to conceal his attack from the outside world and conceal his guilt from the responding police officers. A reasonable jury could conclude Gamero did have the requisite mens rea, notwithstanding his drinking.
Finally, Gamero contends that reported appellate cases that demonstrate the specific intent required for torture tend to involve fact patterns beyond “ordinary violence.” We are not convinced by this observation. Indeed, as the court noted in Pre, “a comparison to the facts in
12 The trial court instructed the jury: “[Y]ou may consider evidence, if
any, of the defendant[’s] voluntary intoxication . . . only in deciding whether the defendant acted with the specific intent or mental state required for Counts 5 and 10, torture. [¶] A person is voluntarily intoxicated if he or she becomes intoxicated by willingly using any intoxicating drug, drink, or other substance knowing that it could produce an intoxicating effect or willingly assuming the risk of that effect.”
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other cases is of little value in assessing the sufficiency of the evidence in a particular [torture] case.” (Pre, supra, 117 Cal.App.4th at p. 423.) “That other victims of torture may have suffered more . . . sheds no light on the sufficiency of the evidence of defendants’ intent to cause . . . severe pain and suffering.” (People v. Jung (1999) 71 Cal.App.4th 1036, 1043 .) In any event, this was not ordinary violence. J.C. testified that Gamero kneed her in the face, dragged her to their bedroom, repeatedly slammed her face in the doorway, pulled her mouth apart, said, “I’m going to rip your fucking mouth open,” dragged her by the hair to the living room, and strangled her on the couch. As a result of Gamero’s attack, J.C. had a deep head laceration and required surgery under general anesthesia, all as we have described. While “the severity of the wounds inflicted is . . . not necessarily determinative,” it is “relevant.” (Massie, supra, 142 Cal.App.4th at p. 371.) “ ‘The condition of the victim’s body may establish circumstantial evidence of the requisite intent.’ [Citation.]” (Pre, supra, 117 Cal.App.4th at p. 421.) Here, a reasonable jury could have inferred, based on the condition of J.C.’s body and the statements by Gamero that we have discussed above, that Gamero intended to cause cruel or extreme pain for the purpose of revenge. D. The Proposed Pinpoint Jury Instruction 1. Additional Background Gamero was charged and convicted of domestic violence, in violation of section 273.5 (count 13), for an earlier incident in which he struck J.C. with a belt on April 29, 2021.
At trial, J.C. testified that, on April 29, she and Gamero went to a bar with coworkers and, after leaving the bar, they argued about how affectionate she had been in front of their coworkers. J.C. grabbed Gamero’s shirt to talk to him, and he pushed her. Police officers who saw this talked to them about
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what happened. Their colleagues saw them speaking with the police officers. Afterwards, Gamero was very angry and upset. Gamero and J.C. went to their office to get some belongings. At the office, Gamero told J.C. that he was going to use his belt on her. J.C. said please don’t. “[B]elting” was Gamero’s way of punishing J.C. Gamero took off his belt and told J.C. to get on all fours on the ground. Gamero hit J.C. on her hamstrings a few times. J.C. told him to please stop. The pain was so extreme that she tried to get away from him, and the belt hit her in the face and arm. The pain was excruciating. J.C. ran to another area of the office, and Gamero chased after her. In total, Gamero hit J.C. with the belt six to eight times that evening. J.C. took photographs of the mark that the belt left on her face.
At trial, Gamero testified: “I had ask[ed] [J.C.] to pull down her pants.
And then I had . . . taken off my belt. . . .” “I had asked her to go on all fours and she did. And then . . . I spanked her.” Asked how J.C. appeared when he started spanking her, Gamero testified: “She was fine. It was just . . . our normal chain of what we do.” Asked if she appeared to be aroused, Gamero testified: “Oh, yeah.” Gamero testified that he spanked her three or four times and, “[a]t the last strike, when [he] pulled the belt over [his] shoulder, the buckle fell, it slipped through [his] hand” and hit her in the neck area. Gamero also testified that he had spanked J.C. four or five times during sex on prior occasions.
Gamero proposed a pinpoint instruction13 in connection with count 13 stating: “If you find that [J.C.] consented to acts including . . . spanking or belting on April 29, 2021, you may consider that evidence in the following
13 Gamero also sought this pinpoint instruction for count 14, a count
that was subsequently dismissed and is not at issue on appeal.
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ways. [¶] Consent, or Mr. Gamero’s reasonable belief in consent, is a defense to simple assault and battery. Ordinary human physical contact, such as would occur during contact sports, including wrestling, or sex acts including BDSM, is not a crime. . . . But if in the course of a consensual or apparently consensual BDSM contact where the amount of force was less, and an accident occurs, then you may find Mr. Gamero not guilty.”14 The trial court did not give the proposed instruction. Instead, the trial court instructed the jury: “The defendant is not guilty . . . if he acted without the intent required . . . but instead acts accidentally. You may not find the defendant guilty . . . unless you are convinced beyond a reasonable doubt that he acted with the required intent. [¶] If you find that the defendant believed that [J.C.] consented to being struck with a belt using force that was not likely to cause great bodily injury as foreplay and if the belt buckle accidentally struck her in the neck or face area causing a welt, then the defendant acted accidentally and you must find the defendant not guilty of . . . Count 13.”15 (Italics added.)
2. Analysis Gamero contends that the trial court erred in denying his request to instruct the jury that consent is a defense to domestic violence,16 that the
14 At trial, an expert testified that BDSM is an acronym that stands for
“bondage and discipline,” “dominance and submission,” and sadism and masochism.
15 The first two sentences of this instruction appear to be modeled after
CALCRIM No. 3404.
16 Section 273.5, subdivision (a), provides: “A person who willfully
inflicts corporal injury resulting in a traumatic condition upon a victim described in subdivision (b) is guilty of a felony . . . .” As pertinent here, the “offender’s cohabitant or former cohabitant” or “someone with whom the offender has a dating relationship” are victims under section 273.5,
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error violated his federal and state constitutional right to present a defense, and his constitutional claim was preserved. Even assuming the trial court erred by not giving the instruction, the error was harmless under any standard of appellate review.17 Gamero contends that the denial of the requested instruction deprived him of the right to present his version of the facts in defense. In fact, the jury instruction given tracked the defense evidence. The trial court instructed the jury to find Gamero not guilty of count 13 if it found that: (1) Gamero “believed that [J.C.] consented to being struck with a belt using force that was not likely to cause great bodily injury as foreplay”; and (2) “the belt buckle accidentally struck [J.C.] in the neck or face area causing a welt . . . .” Gamero presented a version of the facts that was consistent with this jury instruction, although the jury apparently did not find his testimony credible. With regard to his reasonable belief that J.C. consented, Gamero testified that, on prior occasions, he had spanked J.C. four or five times during sex, spanking J.C. was “just . . . our normal chain of what we do,” J.C. appeared
subdivision (b). Section 273.5, subdivision (d), defines traumatic condition as “a condition of the body, such as a wound, or external or internal injury, including, but not limited to, injury as a result of strangulation or suffocation, whether of a minor or serious nature, caused by a physical force.”
17 Gamero argues that we should assess whether the instructional error
was harmless beyond a reasonable doubt under Chapman v. California (1967) 386 U.S. 18, 24, because the instructional error violated his federal constitutional right to present a defense. The Attorney General argues that Courts of Appeal have concluded that the standard in People v. Watson (1956) 46 Cal.2d 818, 836 applies to this kind of error. Under Watson, the test of prejudice is whether “it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.” (See ibid.) We need not decide which standard applies in this case because, even under the more stringent Chapman standard, we find no prejudice.
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“fine” when he started spanking her, and J.C. appeared to be aroused while he “spanked” her with the belt on April 29, 2021. With regard to accident, Gamero testified that the belt buckle slipped and hit J.C. in the neck area. On appeal, Gamero does not contend that his testimony would have been any different had the trial court given his proposed jury instruction. We conclude that any instructional error was harmless beyond a reasonable doubt.
In his reply brief, Gamero belatedly raises numerous arguments about constitutional privacy rights, the state’s legitimate interests, the legislative intent behind section 273.5, the “perverse incentives and unjust results” of refusing to allow a consent defense, and the fact that the jury deadlocked on other counts. Gamero forfeited these arguments by raising them for the first time in reply. (See Malmquist, supra, 101 Cal.App.5th at p. 1205, fn. 6 [arguments raised for the first time in a reply brief are forfeited].)18 DISPOSITION
The judgment is affirmed.
18 We need not address Gamero’s argument that the minute order dated
January 19, 2024 should be corrected because, in his reply brief, Gamero conceded that it does not need correction and withdrew the argument.
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_________________________
Miller, J.
WE CONCUR:
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Richman, Acting P. J.
_________________________
Desautels, J.
A169713, People v. Gamero