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Conviction for Dissuading a Victim or Witness Affirmed

In August 2015, Fernanda Doe was assaulted by Brandon Rio Sherman after she entered his car, thinking that he was her Uber driver. 
Doe and her boyfriend, Cuauhtil Padilla Arias, had traveled from Mexico to the Bay Area, where Padilla Arias attended a business conference.  During that day, Doe spend the day shopping while Padilla Arias was at the conference.  At some point, the two planned to meet up and Doe texted Padilla Arias that the battery on her phone was low, so Padilla Arias called for an Uber for Doe.

A car with Uber and Lyft stickers arrived in the parking lot where Doe was waiting.  The driver, Mr. Sherman, rolled down his window and asked Doe if she was “Cuau,” which was Padilla Arias’ nickname. 

Sherman had previously driver and worked for Uber, but his account had been deactivated two months prior to the incident here.  His car, however, still had the Uber sticker.

After Doe got into the backseat, Sherman told her she was “very good-looking.”  He asked Doe where she was going and Doe told her the name of the hotel.  Doe then asked Sherman for permission to charge her phone from his car.

As he drove Doe, he continued to tell Doe she was good-looking.  He began driving toward mountains and a lake, which Doe thought was odd because she did not see these on her way to shopping in the morning.

At some point, Doe asked for her phone back, but Sherman kept driving.  He then pulled over, removed his belt and “lunged” into the back seat with Doe and got on top of Doe.

Sherman covered Doe’s mouth and put his hand on her neck to hold her down.  He then moved her arms and legs so she could not move or open the car door.  Sherman then pulled down his pants, pulled down Doe’s pants and underwear and put his penis in her vagina, as Doe described, “for a few minutes.”

While this was happening, Doe was able to retrieve her phone from the front seat.  Sherman saw this and turned it off, saying, “I’m not going to let you have it.”

Doe then told Sherman she was pregnant and Sherman stopped.

Sherman then returned to the driver’s seat and began driving.  Doe then was able to retrieve her phone and, while Sherman could not see her, she texted her boyfriend, saying she needed help and to call the police. 

Sherman asked Doe where her phone was and Doe said she did not know.  Doe put her clothes back on.

Sherman eventually drove back into the city and Doe jumped out of the car and ran away, eventually got in contact with police.  She was taken to a hospital, where a rape examination was done and confirmed the presence of sperm on her underwear.

Police later arrested Sherman and he was charged with kidnapping to commit rape (Penal Code § 209(b)(1)); forcible rape (Penal Code § 261(a)(2)), assault with intent to commit rape (Penal Code § 220(a)(1)), criminal threats (Penal Code § 422(a)), assault by means of force likely to cause great bodily injury (Penal Code § 245(a)(4)), false imprisonment by violence (Penal Code § 236, see § 237(a)), and dissuading a witness from reporting a crime (Penal Code § 136.1(b)(1)).

A jury found Sherman guilty of some of the charges, including dissuading a witness and at sentencing in March 2021, the judge sentenced Sherman to 11 years in state prison, composed of eight years for kidnapping (the upper term), plus consecutive terms of one year for assault (one-third the mid-term) and two years for dissuading a witness (a full middle term as authorized for some dissuasion convictions).

On appeal to the First Appellate District, Sherman argued there was insufficient evidence to support the conviction for dissuading a victim or witness, among other arguments.

The First Appellate District affirmed the conviction, finding that the jury could have concluded that Sherman attempted to prevent Doe from reporting his criminal conduct by attempting to prevent her from using her cell phone.

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