Unreported / Non-Citable
Background
A Placer County jury convicted Stephen Mark Stubbs and Brandon Michael Frank of dozens of sexual offenses against Frank's nephew, identified in the opinion as John Doe, including forcible sodomy, forcible lewd acts, and aggravated sexual assault. The abuse began when Doe was six years old and continued for years. The jury also found true special circumstances alleging that the defendants tied or bound Doe and administered a controlled substance to him. Frank received an aggregate sentence of 18 years eight months, four consecutive terms of life without parole, and 135 years to life; Stubbs received 11 years four months, four consecutive life-without-parole terms, and 450 years to life.
Both defendants challenged the sufficiency of the evidence of force or duress and of penetration for the sodomy-related convictions. Frank additionally challenged the special-circumstance findings, several jury instructions, the denial of lesser-included-offense and Mayberry instructions, his trial counsel's effectiveness, and aggravating circumstances supporting an upper-term sentence. Stubbs separately sought correction of enhancement findings and sentencing records. The prosecution's evidence included videos and photographs recovered after a 2020 cyber tip led officers to search a Loomis residence, testimony from Doe, and Frank's own testimony admitting abuse while attributing much of his conduct to pressure from Stubbs.
The Court’s Holding
The Court of Appeal rejected the evidentiary challenges. It held that the totality of the circumstances supplied overwhelming evidence of duress: Doe's youth and small size, the defendants' age and physical advantages, Frank's familial position of trust, physical restraint and manipulation, isolation, secrecy warnings, gifts, and continued abuse despite Doe's objections. Because the relevant statutes required force or duress, the court did not need to resolve the separate force arguments. It also found sufficient evidence of penetration from the videos, detective testimony, reasonable inferences, and Frank's cross-examination answers, notwithstanding Doe's general inability to recall anal penetration.
The court's principal statutory holding was that section 667.61, subdivision (e)(5), which applies when a defendant "engaged in the tying or binding" of a victim, includes aiding and abetting another person's tying or binding. The court relied on the broad ordinary meaning of "engaged," the absence of the limiting word "personally" used elsewhere in the statute, and the distinction between an enhancement and section 667.61's alternative sentencing scheme. It further held that tying or binding and methamphetamine administration could occur "in the commission of" offenses in a continuous episode even when Doe was no longer restrained during particular acts, without requiring proof that either circumstance made him unusually vulnerable.
The remaining claims failed as well. Read with the verdict forms and other instructions, the special-circumstance instructions required separate findings and did not create reversible error. No substantial evidence supported instructions on nonforcible lesser offenses or a reasonable mistaken belief in consent. Frank also failed to establish deficient performance or prejudice from counsel's decisions. Substantial evidence supported the upper-term findings of particular vulnerability and callousness. The court affirmed Frank's judgment, struck Stubbs's section 667.6(a) enhancement findings because his prior section 288(a) conviction did not qualify, and directed correction of records listing stricken section 667.51(a) enhancements.
Key Takeaways
- Duress may be established through psychological coercion, physical domination, isolation, secrecy, and exploitation of trust without an explicit threat or proof of the victim's subjective intimidation.
- Section 667.61(e)(5)'s phrase "engaged in the tying or binding" encompasses an accomplice who intentionally aids the direct perpetrator, unlike provisions expressly requiring personal conduct.
- The statutory phrase "in the commission of" permits a facilitative connection across a continuous criminal episode and does not require the victim to remain bound during every underlying offense.
- The court found no substantial evidence supporting nonforcible lesser-offense instructions or a Mayberry instruction on the record of prolonged abuse of a child.
- Stubbs obtained only specified judgment and record corrections; the modifications did not change his sentence because the trial court had already struck the relevant punishment.
Why It Matters
The opinion provides a detailed construction of California's One Strike sentencing scheme, distinguishing tying-or-binding liability from firearm enhancements that require personal use. Its analysis of "engaged," the Legislature's selective use of "personally," and the different scope of subdivision (e)(7) supplies a framework for accomplice liability under section 667.61(e)(5).
The decision also illustrates how appellate courts evaluate duress and penetration through the entire record rather than isolated statements or incomplete recollections. Although the opinion is not certified for publication and is subject to California's citation restrictions, its disposition leaves both defendants' convictions and sentences intact except for the expressly identified corrections to Stubbs's judgment and sentencing documents.