The opinion
Filed 4/21/25 P. v. Brasuell CA2/6
Opinion following transfer from Supreme Court
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B308124
(Super. Ct. No. 18F-04077)
Plaintiff and Respondent, (San Luis Obispo County)
v. OPINION ON TRANSFER
FROM SUPREME COURT
JESS DRUE BRASUELL III,
Defendant and Appellant.
Jess Drue Brasuell III appeals a judgment following
conviction of encouraging a minor to use a controlled substance
(four counts); oral copulation of a minor (three counts); contacting a
minor for a sex offense; contacting a minor for a lewd purpose (three
counts); possession of child pornography; rape by use of drugs;
forcible oral copulation (two counts); assault with intent to commit
a sex offense; commission of a lewd act on a child; unlawful sexual
intercourse with a minor (two counts); sexual penetration with a
foreign object; misdemeanor battery; and using a minor for sex acts.
(Health & Saf. Code, § 11380, subd. (a); Pen. Code, §§ 288a, subd.
1
(b)(1), 288.3, subd. (a), 288.4, subd. (b), 311.11, subd. (a), 261, subd.
(a)(3), 288a, subd. (c)(2)(A), 220, subd. (a)(2), 288, subd. (c)(1), 261.5,
subd. (c), 289, subd. (h), 242, 311.14, subd. (c).)1
This appeal concerns 21 charged sex and drug offenses,
among others, that Brasuell committed against four minor teenage
girls who were friends or classmates of his son. Brasuell
represented himself at trial until the trial court terminated his self-
representation for his disruptive behavior and failure to observe
evidentiary rulings. On appeal, Brasuell raised issues of the court’s
refusal to appoint advisory counsel, instructional errors, lack of
sufficient evidence to support conviction of rape by drug intoxication
(count 7), and application of newly amended sentencing statutes to
his sentence. In an unpublished opinion filed on September 26,
2022, we rejected these contentions and affirmed.
Our Supreme Court then granted review of that decision and,
on January 15, 2025, transferred the matter to this court with
directions to vacate our decision and reconsider the matter in light
of People v. Lynch (2024) 16 Cal.5th 730 (Lynch) and People v.
Salazar (2023) 15 Cal.5th 416 (Salazar). We have reconsidered the
matter after receiving supplemental briefs from the parties. We
conclude beyond a reasonable doubt that a jury would have found
beyond a reasonable doubt all the aggravating factors upon which
the trial court relied to impose the upper term sentences in this
case. (Lynch, at pp. 742-743.) We also conclude that the court
would have imposed the same sentence had it been aware of its
discretion to stay different counts pursuant to section 654.
Accordingly, we affirm.
1 All further statutory references are to the Penal Code unless
stated otherwise.
2
FACTUAL AND PROCEDURAL HISTORY
Crimes Against L.D.2
(Counts 1-4)
L.D. attended high school with Brasuell’s son and spent time
with him smoking marijuana at the Brasuell home. Between
August 2014 and January 2015, L.D. was at the Brasuell home
three to five nights a week. When she was 16 or 17 years old,
Brasuell provided L.D. with drugs – Adderall, Ritalin,
methamphetamine, marijuana concentrate, Xanax, and alcohol.
L.D. became addicted to methamphetamine, which Brasuell
furnished her “to teach [her] a lesson.”
Brasuell made sexual advances to L.D. and began to pressure
her for sexual acts. L.D. testified that she allowed Brasuell to
orally copulate her in exchange for money to pay a drug dealer. On
a second occasion, L.D. masturbated Brasuell in exchange for
money to pay a drug dealer.
In February 2015, L.D. left the Brasuell home and eventually
moved back home with her parents. Brasuell sent L.D. messages
through Facebook, but she blocked him from her account.
Crimes Against C.D.
(Counts 5-8)
C.D. dated Brasuell’s son for several years and met Brasuell
when she was 17 years old. Brasuell provided her with Adderall,
Xanax, Valium, and Oxycontin. C.D. admitted that she was
addicted to drugs and consumed them daily.
C.D. and Brasuell had a “sex-for-drugs” arrangement. On
August 3, 2015, Brasuell pinned her down and forcibly copulated
her. C.D. physically resisted and told him “no.” On several
occasions, Brasuell took photographs of C.D. when she was nude.
2 We refer to the victims by initials; the D initial represents
the name “Doe.”
3
On another occasion, when C.D. was drunk, Brasuell engaged in
sexual activity with her and promised her money, cigarettes, and
drugs. C.D. was unable to walk or hold herself up and could not
recall much of the encounter because she lost consciousness.
Brasuell recorded the encounter which included oral copulation and
intercourse.
C.D. believed that submitting to Brasuell’s sexual demands
was her only option to receive drugs. She was also frightened of
Brasuell because she had seen him act violently toward his son and
he weighed twice as much as her.
After C.D. turned 18 years old, she stopped visiting the
Brasuell home. C.D. later had a psychotic break, was diagnosed
with schizophrenia, and stayed 18 months in a psychiatric hospital.
She also spent time in juvenile hall where she informed law
enforcement that Brasuell gave her drugs and engaged in sexual
activity with her. By 2017, C.D. stopped taking drugs. Her mother
credited a conservatorship over C.D. with helping C.D. break away
from Brasuell.
Crimes Against T.D.
(Counts 9-11)
T.D. was a friend of Brasuell’s son. When she was 12 years
old, she suffered a traumatic brain injury and now experiences
anxiety and depression. T.D. visited the Brasuell home daily when
she was 15 years old. There she drank alcohol, smoked cigarettes,
used prescription drugs, and became a drug addict. T.D. testified
that she “would mix [the drugs] together and do all of them at
once.” During one incident, T.D. mixed 10 pills plus alcohol; she
awoke on the sofa wearing lingerie. Brasuell videotaped T.D.
wearing the lingerie and this videotape, plus two others, were
played at trial. T.D. became addicted to Adderall and Valium,
drugs Brasuell referred to as “goodies.”
4
In February 2016, Brasuell pushed T.D. onto his bed, reached
under her shirt, and grabbed her breasts. She pushed him away
and ran from the room. On February 24, 2016, T.D. reported this
incident to law enforcement.
Crimes Against A.D.
(Counts 12-21)
A.D. met Brasuell when she was 14 years old after attending
a party at his home. Brasuell’s son gave her Valium and alcohol
during the party. She lost consciousness and awoke in bed.
Brasuell soon became “the sole provider” of drugs to A.D. and she
became a drug addict.
On two occasions, Brasuell gave A.D. oxycodone in exchange
for oral copulation. A.D. had informed Brasuell of her age. A.D.
soon became intoxicated after consuming oxycodone and alcohol.
Brasuell provided A.D. with other drugs in exchange for sexual acts.
A.D. testified that she “never hung out with [Brasuell] unless [she]
was getting drugs.”
A.D. testified that she had sexual intercourse with Brasuell
10 to 20 times while she was conscious, and one time when she was
unconscious. She also orally copulated him 10 to 25 times.
Brasuell digitally penetrated A.D. on three separate occasions and
also took inappropriate photographs of her on four or five separate
occasions. Brasuell sometimes demanded sexual activity prior to
giving A.D. drugs.
In August 2017, A.D. was living a sober lifestyle. She had one
last sexual encounter involving oral copulation with Brasuell in
exchange for drugs. On November 2, 2017, A.D. participated in a
pretext call to Brasuell. She informed him that she had a sexually
transmitted disease and that he had been her sex partner. Brasuell
responded, “Yeah, okay.” Approximately one month later, Brasuell
sought testing for a sexually transmitted disease.
5
Uncharged Crimes Against K.B.
Evidence Code Sections 1101 & 1108
K.B. met Brasuell when she dated Brasuell’s son. The son
provided K.B. with drugs daily. Brasuell kept the drugs in his
bedroom and soon he directly provided K.B. drugs. K.B., a foster
care child, then began living in the Brasuell house. Brasuell would
offer drugs to K.B. in exchange for information regarding L.D. of
whom he was enamored.
When K.B. was 16 years old, Brasuell bought her lingerie. He
asked her to engage in sexual activity with L.D. but K.B. refused.
Brasuell gave K.B. and L.D. methamphetamine to smoke. The
following day K.B. left the Brasuell house but returned to retrieve
her belongings. She later filed a complaint with the local police
because she was concerned for L.D.’s health and safety.
Uncharged Crimes Against A.B.
Evidence Code Sections 1101 & 1108
A.B. met Brasuell through his son. During her freshman year
in high school, Brasuell gave her Xanax, Percocet, Tramadol,
oxycodone, methamphetamine, and Adderall. A.B. was already
addicted to heroin.
Brasuell began touching A.B. over her clothing when she was
14 years old. When she was 17 or 18 years old, they began to
exchange sex acts for drugs. Brasuell later arranged for A.B. to
become his in-home caregiver through the state in-home support
services agency.
A.B. introduced A.D. to Brasuell and explained that Brasuell
exchanged pills for sex acts. When A.D. was 16 years old, Brasuell
engaged in sexual activity with her while she was unconscious. She
informed A.B. and Brasuell admitted this to A.B. On occasion, A.D.
and A.B. would take turns engaging in sexual activity with
Brasuell.
6
The prosecution gave A.B. immunity from prosecution for her
testimony at trial.
Uncharged Conduct Against Stepdaughter
Brasuell’s former wife, Anna, claimed that Brasuell molested
her daughter many years earlier, when the daughter was five or six
years old. Anna related this information to L.D. and C.D.’s mother.
Anna did not testify at trial and this evidence was elicited by
Brasuell during cross-examination of other witnesses.
Results of Searches
In a search of Brasuell’s residence, police officers recovered
200 prescription pill bottles, many containing controlled substances,
methamphetamine pipes, women’s lingerie, a gun, and digital files
containing photographs of several victims nude or wearing lingerie.
Defense Testimony
Brasuell’s son testified that his father had many prescriptions
for drugs in his own name, his son’s name, and that of a long-
deceased person. Brasuell’s son denied seeing his father engage in
sexual activities with the young women. He saw Brasuell provide
drugs to some of the women, but not others.
Brasuell testified and denied sexual activity with any of the
four Doe victims. He also denied providing controlled substances to
them. Brasuell admitted using methamphetamine, however,
including with A.B. He also admitted to exchanging drugs for sex
with A.B., who then was 18 years old.
Conviction, Sentencing, & Appeal
The trial court sentenced Brasuell to an aggregate prison
term of 47 years 4 months, including imposition of an upper term
for four counts (counts 1, 7, 8, 10). It stayed sentence pursuant to
section 654 for counts 3 and 11. The court imposed a $10,000
restitution fine, a $10,000 parole revocation restitution fine, ordered
7
victim restitution, and awarded Brasuell 1,216 days presentence
custody credit. (§§ 1202.4, subd. (b), 1202.45.)
Brasuell appeals and contends that: 1) the trial court erred
by refusing to appoint advisory counsel; 2) the court prejudicially
erred by instructing regarding uncharged sex acts; 3) the court
prejudicially erred by not instructing on accomplice liability; 4)
cumulative error has denied him a fair trial; 5) insufficient evidence
supports count 7, rape by drug intoxication; 6) Senate Bill No. 567
requires resentencing; and 7) Assembly Bill No. 518 requires
resentencing.
DISCUSSION
I.
Brasuell argues that the trial court abused its discretion by
not appointing advisory counsel during his period of self-
representation. He contends the error violated his Sixth
Amendment right to the assistance of counsel.
On July 31, 2018, Brasuell filed a Faretta motion to represent
himself, noting that he had a college degree and some legal
training. (Faretta v. California (1975) 422 U.S. 806.) The trial
court granted the motion. On December 14, 2018, Brasuell filed a
declaration seeking the appointment of advisory counsel, which the
court denied. On April 15, 2019, Brasuell again sought the
appointment of advisory counsel but insisted that he would
represent himself. The court refused the request. Approximately
one year later, the court provided notice of a hearing to terminate
Brasuell’s self-representation for disruptive behavior. At that
hearing, the court decided to appoint standby counsel, but not
advisory counsel, for Brasuell. Brasuell was unequivocal in his
request to continue to represent himself.
On July 31, 2020, the trial court granted a mistrial based
upon the late discovery of evidence. Brasuell again requested
8
advisory counsel, but the court denied the request and asked the
standby counsel to remain in that capacity.
Although a defendant has the constitutional rights to counsel
and self-representation, there is no constitutional right to
appointment of standby counsel, advisory counsel, or cocounsel.
(McKaskle v. Wiggins (1984) 465 U.S. 168, 183; People v. Blair
(2005) 36 Cal.4th 686, 723, overruled on another point by People v.
Black (2014) 58 Cal.4th 912, 919.) Thus, “hybrid” forms of
representation, whether labeled cocounsel, advisory counsel, or
standby counsel, are not constitutionally guaranteed. (People v.
Bloom (1989) 48 Cal.3d 1194, 1218.)
Advisory counsel is available to assist a defendant
representing himself but does not represent the defendant. (People
v. Morelos (2022) 13 Cal.5th 722, 738.) A defendant seeking
appointment of advisory counsel must make a showing of need and
the decision to appoint advisory counsel rests with the trial court’s
discretion. (Id. at p. 739.) The factors that the trial court may
consider in exercising its discretion include defendant’s reasons for
the request, defendant’s background and education, defendant’s
demonstrated legal abilities, and the complexity of the trial issues.
(Ibid.) We review the denial of a request for advisory counsel on a
case-by-case basis. (Ibid.)
The trial court did not abuse its discretion by refusing to
appoint advisory counsel. Brasuell possessed a college degree and
some legal training and had filed many motions and pleadings over
the course of the proceedings. (People v. Morelos, supra, 13 Cal.5th
722, 739 [defendant had high school degree, one year of college,
used law library daily, and submitted numerous legal filings].)
Brasuell also made a successful mistrial motion regarding late
discovery documents. The prosecution was not especially complex
and involved the credibility of the young women that Brasuell
9
victimized. Although there may have been questions regarding
Brasuell’s mental competence in early proceedings, he was not
found incompetent to stand trial. Brasuell has not established that
the court abused its discretion by appointing standby counsel and
not advisory counsel.
II.
Brasuell contends that the trial court committed instructional
error by instructing with CALCRIM No. 375 [“Evidence of
Uncharged Offense to Prove Identity, Intent, Common Plan, etc.”],
regarding evidence of uncharged sexual misconduct against his
minor stepdaughter. He asserts that he elicited the evidence only
to show a motive to falsely accuse him of the charged offenses.
Brasuell claims the instruction was prejudicial and violated his
federal and state constitutional rights to due process of law.
Brasuell, in propria persona, elicited evidence during cross-
examination of L.D. and C.D.’s mother that they had heard rumors
that he had molested his six-year-old stepdaughter. Brasuell then
requested the trial court to permit his former wife to testify. The
court denied the request pursuant to Evidence Code section 352.
Brasuell then examined his son regarding the rumors. In the
prosecutor’s rebuttal case, the prosecutor asked the investigating
police detective if he thought Brasuell’s former wife had
orchestrated a grand conspiracy against Brasuell. The detective
replied no. This was the prosecutor’s only question of any witness
regarding the stepdaughter incident.
The CALCRIM No. 375 instruction, given as modified, began:
“The People [sic] presented evidence that the defendant committed
another offense of oral copulation with a minor six years of age, that
he provided drugs to other people in exchange for sexual contact,
that he provided drugs and/or alcohol to minors who did not testify,
that was not charged in this case. . . .” The pattern instruction then
10
continued to describe the People’s burden of proof and how the jury
could and could not use the evidence. Further, the jury was
cautioned against concluding that the evidence alone was sufficient
to prove defendant’s guilt in this case.
For several reasons, we reject Brasuell’s argument. First, he
has forfeited the argument because he did not object to the
instruction. (People v. Mitchell (2019) 7 Cal.5th 561, 579.) An
exception to forfeiture exists where the substantial rights of the
defendant are affected. (§ 1259.) However, the instruction was
correct and properly given. It limited the jury’s use of the
“stepdaughter evidence” and cautioned regarding its improper use.
Brasuell’s substantial rights were not affected by the correct
instruction. Moreover, Brasuell elicited the evidence through his
cross-examination and has invited any arguable error. He cannot
complain now. (People v. Reynolds (2010) 181 Cal.App.4th 1402,
1408.)
III.
Brasuell asserts that the trial court erred by not instructing
sua sponte concerning accomplice liability, A.B.’s conduct, and
counts 12 through 14 and 19 through 21, all counts regarding A.D.
Brasuell points out that A.B. received immunity for her testimony,
she introduced A.D. to him, and A.B. participated in sexual activity
with him and A.D.
Section 1111 provides: “A conviction can not be had upon the
testimony of an accomplice unless it be corroborated by such other
evidence as shall tend to connect the defendant with the
commission of the offense; and the corroboration is not sufficient if
it merely shows the commission of the offense or the circumstances
thereof.” CALCRIM Nos. 334 and 335 instruct regarding
accomplice liability and advise that the testimony or statements of
an accomplice that tends to incriminate a defendant should be
11
viewed with caution. (People v. Hoyt (2020) 8 Cal.5th 892, 946.)
The trial court must instruct sua sponte regarding accomplice
testimony if there is sufficient evidence that a witness is an
accomplice. (People v. Johnsen (2021) 10 Cal.5th 1116, 1155.)
We need not decide if sufficient evidence existed to support a
finding that A.B. was an accomplice to Brasuell. A trial court’s
failure to instruct on accomplice liability is harmless if there is
sufficient corroborating evidence in the record. (People v. Gonzales
and Soliz (2011) 52 Cal.4th 254, 303; People v. Mackey (2015) 233
Cal.App.4th 32, 125.) Here overwhelming evidence corroborated
A.B.’s testimony. The four Doe victims testified regarding
Brasuell’s sexual activities with them and his provision of drugs.
Brasuell’s son saw his father furnish drugs to several of the victims.
Text messages, photography equipment, and videotapes also
corroborated Brasuell’s criminal acts. Lingerie and 200 prescription
bottles were found in the Brasuell home during execution of a
search warrant. Any instructional omission was harmless.
IV.
Brasuell argues that the cumulative effect of prejudice arising
from the asserted errors compels reversal. We have either
concluded that there is no error or that any error is harmless.
(People v. O’Malley (2016) 62 Cal.4th 944, 1017 [general rule
regarding cumulative error].)
V.
Brasuell contends that insufficient evidence supports his
conviction in count 7, rape by the use of drugs. (§ 261, subd. (a)(3).)
He asserts that there is insufficient evidence that C.D. was so
intoxicated that she did not have the capacity to consent, pointing
out that she sought and obtained money and drugs from the
encounter.
12
In reviewing the sufficiency of evidence to support a
conviction, we examine the entire record and draw all reasonable
inferences therefrom in favor of the judgment to determine whether
there is reasonable and credible evidence from which a reasonable
trier of fact could find the defendant guilty beyond a reasonable
doubt. (People v. Brooks (2017) 3 Cal.5th 1, 57.) Our review is the
same in a prosecution primarily resting upon circumstantial
evidence. (People v. Rivera (2019) 7 Cal.5th 306, 331.) We do not
redetermine the weight of the evidence or the credibility of
witnesses. (People v. Albillar (2010) 51 Cal.4th 47, 60; People v.
Young (2005) 34 Cal.4th 1149, 1181 [“Resolution of conflicts and
inconsistencies in the testimony is the exclusive province of the
trier of fact”].) We must accept logical inferences that the trier of
fact might have drawn from the evidence although we may have
concluded otherwise. (Rivera, at p. 331.) “If the circumstances
reasonably justify the trier of fact’s findings, reversal of the
judgment is not warranted simply because the circumstances might
also reasonably be reconciled with a contrary finding.” (Albillar, at
p. 60.)
The crime of rape of an intoxicated person proscribes sexual
intercourse with a person who is not capable of giving legal consent
due to intoxication. (§ 261, subd. (a)(3); People v. Sta Ana (2021) 73
Cal.App.5th 44, 60-61; People v. Giardino (2000) 82 Cal.App.4th
454, 462.) Lack of actual consent is not a required element of the
crime: “[T]he issue is not whether the victim actually consented to
sexual intercourse, but whether he or she was capable of exercising
the degree of judgment a person must have in order to give legally
cognizable consent.” (Giardino, at p. 462.) It is not necessary that
the victim be so intoxicated that he or she is physically incapable of
speaking or otherwise “manifesting a refusal to give actual
consent.” (Id. at p. 464.)
13
Sufficient evidence and reasonable inferences therefrom
support the jury’s finding that C.D. was incapable of resisting or
exercising the judgment necessary to consent to intercourse due to
intoxication. C.D. testified that she had been drinking alcohol the
evening of the crime, and she informed Brasuell before the sexual
encounter that she was intoxicated. C.D. testified that she could
not walk, talk, or hold herself upright. Brasuell filmed their
encounter, and when C.D. later viewed it, she realized that she
“wasn’t completely there.” C.D. was uncomfortable viewing the
videotape and asked Brasuell to delete it (he refused). C.D. also
testified that she was “in and out” of consciousness during and after
the intercourse with Brasuell. Brasuell’s assertion of insufficient
evidence to support the conviction of count 7 is without merit.
Sentencing Arguments
VI.
Brasuell argues that the recent enactment of Senate Bill No.
567 (Stats. 2021, ch. 731, § 1.3) requires a remand for resentencing
pursuant to section 1170, subdivision (b), as amended. The
Attorney General concedes that the recent amendment applies
retroactively to Brasuell, but contends that any error is harmless
beyond a reasonable doubt. (In re Estrada (1965) 63 Cal.2d 740,
745 [amendments to statutes that reduce punishment for crime
apply to all defendants whose judgments are not yet final].)
The trial court imposed upper term sentences for count 1
(nine years - encouraging a minor to use a controlled substance
[L.D.]); count 7 (eight years - rape by use of drugs [C.D.]); count 8
(eight years - forcible oral copulation [C.D.]; and count 10 (nine
years - assault with intent to commit a sex offense [T.D.]). The
court found no factors in mitigation of sentence and numerous
factors in aggravation, including the factor of multiple victims who
were particularly vulnerable.
14
In imposing the upper terms on the four counts together, the
trial court relied upon the following aggravating factors: 1) the
crimes involved great violence, bodily harm, and threat of great
bodily harm; 2) the multiple victims were particularly vulnerable; 3)
the manner of commission of the crimes indicated planning,
sophistication, and professionalism; 4) defendant possessed a large
amount of contraband; and 5) defendant took advantage of a
position of trust or confidence. (Cal. Rules of Court, rule 4.421(a).)
Senate Bill No. 567, which became effective January 1, 2022,
amended section 1170 by making the middle sentencing term the
presumptive sentence unless certain circumstances exist. (Adding
§ 1170, subd. (b)(1), (2), (3).) Pursuant to the amendment, the trial
court may impose an upper term sentence only where there are
circumstances in aggravation and the facts underlying those
circumstances have been stipulated by the defendant or found true
beyond a reasonable doubt by the fact-finder. The court may also
rely upon certified records of the defendant’s prior convictions.
In Lynch, our Supreme Court held that where a trial court
relied upon facts not proved in compliance with section 1170,
subdivision (b) to impose the upper term, the sentence must be
vacated and the matter remanded unless we conclude beyond a
reasonable doubt that the jury would necessarily have found the
facts underlying all circumstances in aggravation relied upon by the
court true beyond a reasonable doubt. (Lynch, supra, 16 Cal.5th at
pp. 742-743, 761.) In making this determination, we examine what
the jury necessarily did find and ask whether it would be impossible
on the evidence for the jury to find that without also finding the
missing fact as well. (Id. at p. 775.) Further, because Senate Bill
567 altered the scope of the trial court’s discretion regarding
sentences imposed pursuant to former 1170, subdivision (b), the
record must “clearly indicate” that the court would have found an
15
upper term justified had it been aware of its more limited
discretion. (Lynch, at p. 743.)
Any fact-finding error here is harmless beyond a reasonable
doubt because the jury would have found every aggravating
sentencing factor true beyond a reasonable doubt. Brasuell, a 250-
pound man, pinned C.D. to the bed while forcibly performing oral
sex on her. He informed T.D. that he had a gun, an implied threat
of bodily harm; he showed the gun to K.B. Police investigators
found a loaded .357 revolver in Brasuell’s gun safe.
The minor victims were particularly vulnerable because they
led troubled lives and, in the case of C.D., suffered from psychosis
(schizophrenia), drug-induced psychosis, and suicide ideation. L.D.
was a runaway who often lived at Brasuell’s residence and became
addicted to methamphetamine. Brasuell supplied the victims with
alcohol and controlled substances. T.D. was vulnerable due to a
traumatic brain injury she suffered as a child and the drugs made
her incoherent. She became addicted to Adderall and Valium,
which Brasuell supplied her. Brasuell also engaged in sexual
activity with the minors while they were unconscious.
Brasuell’s crimes involved planning and sophistication. They
were not crimes of opportunity or convenience. Brasuell furnished
drugs to his minor victims, resulting in their unconsciousness and
drug addiction. He then demanded sexual activity in return for
drugs.
Also the jury convicted Brasuell of separate crimes against
four minors. In addition, the court relied upon the great quantity of
contraband (200 prescription pill bottles [many containing drugs],
controlled substances, methamphetamine pipes) recovered at the
Brasuell home. In addition, the court chose to impose consecutive,
not concurrent sentences throughout sentencing, indicating the
reluctance to impose lesser terms.
16
Moreover, the trial court “clearly indicate[d]” that it would
not have imposed a lesser sentence. (Lynch, supra, 16 Cal.5th at p.
743.) At sentencing, the trial judge stated: “The lengthy prison
sentence that you are going to receive today . . . one of the good
things [is] that it does . . . protect us from people like you. . . .”
Remand for resentencing would be an idle act.
VII.
Brasuell asserts that Assembly Bill No. 518 requires that his
case be remanded for resentencing to permit the court to exercise
its discretion to stay his conviction on count 2 rather than count 3,
and count 10 rather than count 11, pursuant to section 654. The
Attorney General concedes that the recent amendments to section
654 apply to Brasuell, but that remand is not required because the
trial court clearly indicated its intent to impose an aggravated
sentence. We agree.
Assembly Bill No. 518 amends section 654 by removing the
requirement that a defendant shall be punished under the provision
providing for the longest term of imprisonment. (Stats. 2021, ch.
441, § 1.) It grants discretion to the trial court to impose
punishment under any of the applicable provisions. (People v.
Mendoza (2022) 74 Cal.App.5th 843, 862 [pursuant to Assembly Bill
No. 518, trial court has discretion to select which offense is
punishable].) Brasuell is entitled to the benefit of Assembly Bill No.
518, permitting the court to exercise its sentencing discretion
pursuant to section 654. (In re Estrada, supra, 63 Cal.2d 740, 745;
People v. Sek (2022) 74 Cal.App.5th 657, 666-667.)
A trial court must exercise its informed discretion when
sentencing a defendant. (People v. Salazar (2023) 15 Cal.5th 416,
425; People v. Gutierrez (2014) 58 Cal.4th 1354, 1391.) When a
sentencing court was not fully aware of the scope of its
discretionary powers, the appropriate remedy is to remand for
17
resentencing unless the record “clearly indicate[s]” that the trial
court would have reached the same conclusion if it had been aware
of its discretion. (Salazar, at p. 425.)
Here there was no possibility that the trial court would have
exercised discretion to stay Brasuell’s sentence on counts 2 and 10
in favor of imposing a lesser sentence on counts 3 and 11. The court
found no factors in mitigation and at least six factors in
aggravation. In sentencing, the trial judge stated: “The lengthy
prison sentence that you are going to receive today . . . one of the
good things [is] that it does . . . protect us from people like you. . . .
You attempted to abuse anyone who would testify against you.
Continuous violation of court orders. Continuous violations of the
law. You submitted documents to this court that were false. You
made accusations against people that were false. You have never
voluntarily acknowledged wrongdoing. . . . Again, throughout this
process you made repeated misrepresentations to the Court and
perjured yourself in certain documents.” This record clearly
indicates that the court would have selected the same counts to stay
pursuant to section 654 if it had been aware it had the discretion to
choose otherwise.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
GILBERT, P. J.
We concur:
YEGAN, J. CODY, J.
18
Matthew G. Guerrero, Judge
Superior Court County of San Luis Obispo
______________________________
Mark R. Feeser, under appointment by the Court of Appeal,
and Richard Lennon, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Kenneth C. Byrne, Idan Ivri and David A.
Wildman, Deputy Attorneys General, for Plaintiff and Respondent.