1

Filed 6/29/22 P. v. Traylor CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or 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 THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

FAREED TRAYLOR,

Defendant and Appellant.

 A159338

 (Alameda County

 Super. Ct. No. 17CR004462)

Defendant Fareed Traylor appeals a judgment entered upon a jury 

verdict finding him guilty of numerous sexual crimes against his daughter, D.

Doe (Doe). He contends the trial court improperly admitted prosecution 

evidence, that it improperly excluded defense evidence, that it instructed the 

jury erroneously regarding the requirement of a unanimous verdict, and that

it erred in imposing fines in the absence of evidence that he was able to pay 

them. We agree with defendant that evidence supporting his defense was 

improperly excluded and that he suffered prejudice, and we accordingly 

reverse the judgment. 

FACTUAL AND PROCEDURAL BACKGROUND

I. Doe’s Testimony

A. Sexual Abuse

Doe was 19 years old at the time of the 2019 trial. When she was a 

young child, she lived with her maternal relatives. She then lived for a time 
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with her paternal grandmother and, when she was about six years old, went 

to live with defendant, who is her father. Defendant’s then girlfriend lived in 

the home, and soon after Doe arrived defendant’s son, M., joined the 

household. Doe and M., who was a few months younger than Doe, shared the 

apartment’s second bedroom. 

When Doe was six or seven years old, defendant began compelling her 

to orally copulate him daily. She never refused defendant’s demands because 

she was “scared” to do so; she did not want him to be upset with her or to use 

force. Defendant told her this was something that two people did when they 

loved each other, and she trusted him and thought there was nothing wrong 

with it. However, he told her not to tell anyone about it because other people 

were not “okay with it.”

Defendant’s acts against Doe expanded to include vaginal intercourse 

by the time she was approximately 10 years old. She specifically recalled

that her brother M. walked into defendant’s bedroom on one occasion while 

defendant was having intercourse with her during a time, between 2008 and 

2010, when the family was living in San Leandro. During this period, 

defendant engaged in oral or vaginal sex with her almost every day unless 

one of his girlfriends or another adult was at the house. Later, the sexual 

acts took place about four times a week. 

Beginning when Doe was around nine years old, defendant began 

giving her alcoholic beverages to drink on occasion before engaging in sexual 

activity with her. On her twelfth birthday, he began giving her “blunts,” or

marijuana wrapped in a tobacco leaf, before engaging in sex with her. 

Doe had a close friend whom she had seen regularly since fifth grade. 

At some point, either in elementary school or middle school, Doe told her 

friend by text message about the sexual abuse. 
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When Doe was 15 years old, it became clear to her that what defendant 

was doing was wrong, and she told defendant that he was molesting her and 

that she did not want to have sex with him anymore. The sex acts stopped 

after this conversation. She also told her brother, M., about the abuse but 

asked him not to tell anyone about it because she did not want to get 

defendant into trouble.

B. Uncharged Sexual Abuse

About a month before the trial, Doe revealed for the first time that 

defendant orally copulated her beginning in the early days of the events at 

issue here. She had not discussed these previously due to embarrassment; 

she felt “[e]mbarrassed, ashamed, disgusted” when she first discussed these 

acts with the prosecutor and an inspector. 

C. Evidence of Earlier Molestation by Older Half-Brother

Doe had a vague memory of being sexually molested as a young child, 

before she went to live with defendant, although she did not remember many

details. Defendant told her the person who abused her was her older halfbrother, her mother’s son. 

D. Doe Reports the Abuse After Conflict with Defendant

Doe began dating older boys and men when she was 11 or 12 years old. 

Because she was having sex with her father, she did not think there was 

anything wrong with dating older people. Defendant was angry each time he 

found out she was dating someone older than 18, which irritated Doe, and 

she ignored his rules. 

In 2017, after Doe sneaked out of the house one night to be with her 

boyfriend, defendant told her she could not stay in the family home any 

longer. Defendant took her house key, and she left. She spoke with school 

staff the following day, and they contacted the police. 
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II. M.’s Testimony

M. testified that he recalled walking into defendant’s bedroom while 

the family was living in San Leandro. Defendant was naked, and Doe was in 

the bedroom with him. When M. entered the room, she went quickly to the 

bathroom with a blanket wrapped around her body. 

On other occasions, M. knew that defendant and Doe were in 

defendant’s bedroom together with the door closed. When the family was 

living in a shelter, defendant and Doe would spend time alone in the room 

the family shared “[a]ll the time,” and afterward M. would often see Doe in 

defendant’s bed, sometimes under the covers. Later, he recalled seeing Doe 

on occasion leaving defendant’s room dressed in an adult-sized sweatshirt 

and going directly to the bathroom, on one occasion hiding her face with her 

hand. M. sometimes knocked on the door when defendant and Doe were in 

the bedroom together, and he recalled defendant telling him not to disturb 

them. He never saw or heard sexual abuse taking place. He sometimes saw 

defendant and Doe smoking marijuana in defendant’s bedroom or drinking 

alcohol together. 

M. also testified that when he was 14 or 15 years old Doe confided in 

him that defendant had been having sex with her but that he had stopped 

doing so. 

III. Testimony of Doe’s Friend

Doe’s friend, L.D., testified that when they were 12 years old, Doe told 

her that defendant had molested her a couple of years previously. 

IV. Defendant’s Testimony

Defendant testified that he learned Doe was his daughter in 2003, 

when she was about three or four years old. Doe began living with 

defendant’s mother in 2005, and in March 2006, when Doe was six years old, 
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she moved to defendant’s home. In approximately August of the same year, 

she told defendant that, years ago, her older brother “was doing things to 

her” and that he made her bleed between her legs. 

Defendant denied that he ever sexually abused Doe or gave her 

marijuana or alcohol. He denied having a practice of spending hours at a 

time alone with Doe. He explained the incident in which M. saw him naked 

by testifying that he had fallen asleep naked after working a long night shift 

at his job and was awakened by the children coming home from school. 

V. Verdict and Sentence

The jury convicted defendant of four counts of oral copulation with a 

child aged 10 or younger (Pen. Code, § 288.7, subd. (b)1; counts 1, 2, 3, & 4); 

one count of sexual intercourse with a child aged 10 or younger (§ 288.7, 

subd. (a); count 5); one count of continuous sexual abuse of a child under the 

age of 14 (§ 288.5, subd. (a); count 6); and one count of a lewd act on a child 

who was 14 years of age (§ 288, subd. (c)(1); count 7). Counts 1, 2, 3, and 4, 

respectively, involved acts committed when Doe was seven, eight, nine, and 

ten years old. Count 5 involved sexual intercourse when Doe was nine or ten 

years old. Count 6 involved three or more acts of substantial sexual conduct 

when Doe was 11 to 13 years old, and count 7 an act when she was 14 years

old.

The trial court sentenced defendant to consecutive prison terms of 15 

years to life for counts 1, 2, 3, and 4; a consecutive term of 25 years to life for 

count 5; the middle term of 12 years for count 6, and a consecutive 

subordinate term of eight months for count 7, for a total sentence of 97 years 

and eight months to life. 

1 All undesignated statutory references are to the Penal Code.
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DISCUSSION

I. Evidentiary Issues

A. Background

Defendant contends the trial court erred in excluding evidence in 

support of his defense that he never sexually abused Doe and in admitting 

evidence of uncharged sexual offenses as propensity evidence. 

i. Exclusion of Defense Evidence

First, defendant sought to introduce evidence of a 2006 Child Protective 

Services (CPS) investigation into possible sexual abuse by Doe’s maternal 

half-brother before Doe began living with Father. According to defense 

counsel, the evidence would show that at the end of August 2006, shortly 

after Doe had moved into his home, defendant reported to CPS that Doe was 

engaging in sexually inappropriate behavior. Doe was interviewed just over 

a week later, two weeks before her seventh birthday, and she told the 

evaluator that no adult had abused her sexually, that the sexual abuse 

stopped because she moved to her father’s house, that her father had told her 

to tell the truth in the interview, and that if someone were sexually abusing 

her, she would “ ‘tell anyone who helps me.’ ” This occurred, defense counsel 

pointed out, at a time defendant himself was alleged to have been sexually 

abusing Doe. The court excluded evidence of the interview under Evidence 

Code section 352, concluding that it was not exculpatory and that the jury 

would be confused about whether Doe’s statements in the interview referred 

to abuse by her father or by her older half-brother. 

The trial court also precluded defendant from introducing a journal 

entry the defense proffered as evidence Doe had a motive to fabricate her 

allegations of abuse, in that she and defendant had long argued about 

whether she should be allowed to see the maternal half-brother. The journal 
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entry was from 2014 and showed that Doe reconnected with her half-brother 

when she was 14 years old and she and defendant argued about it the next 

day. The trial court did not allow the journal entry to be admitted, 

concluding it would result in a “mini trial” as to whether the half-brother had 

sexually abused Doe when she was a young child, and that such a proceeding 

would lead to speculation because the evidence of the earlier abuse was 

inconclusive. Defendant argues this ruling was an abuse of discretion 

because, in addition to providing a motive for Doe to lie, the evidence would 

paint defendant as a father who was trying to protect Doe from someone who 

had abused her in the past. 

Defendant also sought admission of a portion of a college admissions 

essay Doe had written referring to sexual abuse she suffered while in her 

mother’s care as a young child, and to the fact that CPS placed her with her 

grandmother as a result. Although other portions of the essay came in for 

other reasons, the trial court excluded that portion as more prejudicial than 

probative. 

The court also excluded evidence that Doe was abusive and violent 

toward M. when they were children, trying to set him on fire and trying to 

push him down a set of stairs. Defendant contended this evidence impeached 

M.’s testimony that Doe had not hurt him and had not been seriously 

“physical” with him. 

The excluded evidence, defendant argues, was relevant for multiple 

purposes. It showed that Doe knew how to get help if she was being sexually 

abused, that she had a motive to wish to leave defendant’s home when she 

was a teenager, that she knew a report of sexual abuse could lead to such 

removal, and that M. had reason to be afraid of Doe, all factors defendant 

argues would bolster his defense that Doe’s allegations against him were 
8

false. And, he contends, the evidence that defendant himself requested the 

inquiry into Doe’s inappropriate sexual behavior at a time he was alleged to 

be abusing her, that he told her to tell the truth, and that she told the 

investigator no adult had abused her further cast doubt on the evidence 

against defendant.

ii. Admission of Prosecution Evidence

Defendant also argues the trial court wrongly admitted evidence of his 

neglect of his children. The court allowed the prosecution to elicit evidence 

that defendant used physical discipline on his children, “whooping” them 

regularly and shaking them, and that Doe and defendant engaged in physical 

fights, in which sometimes defendant would hit her first. Defendant does not 

contest the propriety of the evidence of violence as relevant to explain Doe’s 

delay in reporting the abuse. But he challenges the admission of testimony

from multiple witnesses of defendant’s neglectful conduct. The jury heard 

evidence that the family’s home was dirty and messy, that there often was 

not enough food, that defendant’s girlfriends and sister gave money to the 

children to buy necessities, that defendant sometimes took the money, that 

the children sometimes had to wait outside the home in an unsafe 

neighborhood until defendant returned because they did not have a key, and 

that M. often smelled of urine as a child because of a bedwetting problem. 

B. Analysis

A trial court has considerable discretion to determine whether 

proffered evidence is relevant, that is, whether it has “ ‘any tendency in 

reason to prove or disprove any disputed fact that is of consequence to the 

determination of the action.’ ” (People v. Williams (2008) 43 Cal.4th 584, 633, 

quoting Evid. Code, § 210.) Section 352 of the Evidence Code allows a court 

to exclude evidence “if its probative value is substantially outweighed by the 
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probability that its admission will (a) necessitate undue consumption of time 

or (b) create substantial danger of undue prejudice, of confusing the issues, or 

of misleading the jury.” For purposes of this statute, “ ‘prejudice’ does not 

mean damage to a party’s case that flows from relevant, probative evidence. 

Rather, it means the tendency of evidence to evoke an emotional bias against 

a party because of extraneous factors unrelated to the issues,” where the 

evidence is “ ‘ “of such nature as to inflame the emotions of the jury, 

motivating them to use the information, not logically to evaluate the point 

upon which it is relevant, but to reward or punish one side because of the 

jurors’ emotional reaction.” ’ ” (People v. Cortez (2016) 63 Cal.4th 101, 128 

(Cortez).)

On appeal, we review the trial court’s rulings on the admissibility of 

evidence, including a ruling under Evidence Code section 352, for abuse of 

discretion, reversing only if the court acted in an “arbitrary, capricious, or 

patently absurd manner that resulted in a manifest miscarriage of justice.” 

(People v. Chavez (2018) 22 Cal.App.5th 663, 702; People v. Hovarter (2008) 

44 Cal.4th 983, 1004.)

i. Evidence of 2006 CPS Investigation

We focus first on the exclusion of evidence that defendant instigated 

the 2006 CPS investigation into Doe’s sexually inappropriate behavior

shortly before her seventh birthday, that he told her to tell the truth to the 

investigator, and that Doe said the abuse stopped when she moved to 

defendant’s home. This evidence, we conclude, is relevant, and indeed, the 

Attorney General does not contend otherwise. Critically, Doe testified the 

abuse began when she was six or seven years old, the approximate time 

defendant sought to show he contacted CPS. A jury could reasonably believe 

a person who was sexually abusing a child would be unlikely to encourage 
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CPS to investigate the child’s sexual behavior, and unlikely to tell the child to 

tell the investigators the truth. From that evidence the jury could infer that,

at least as of the time just before Doe’s seventh birthday, defendant was not 

sexually abusing her, which would bolster his defense that Doe fabricated the 

charges against him. This was potentially powerful evidence in support of 

the defense. 

The relevance of the proffered evidence also appears in light of 

testimony that CPS investigated the family and assessed Doe for neglect and 

for physical, emotional, and sexual abuse in 2008 and 2009, when Doe was 

living with defendant, and that she did not disclose any sexual abuse during 

those interviews. Evidence that Doe did disclose sexual abuse in 2006—even 

without an excursion into what actually happened before she moved to 

defendant’s home—could create an inference that she was willing and able to 

report molestation to CPS investigators, lending greater significance to her 

failure to report any sexual abuse when speaking to CPS during the 2008 and 

2009 investigations. 

On the other side of the balance, as the trial court noted, was the 

possibility of confusion of the issues and a distracting plunge into the details 

of the earlier investigation. But the jury heard evidence that Doe may have 

been molested before coming to live with defendant, in the form of Doe’s 

testimony about her vague memories of the abuse, her testimony that she 

wrote in a college admissions essay that she experienced sexual abuse when 

she lived with her mother, and defendant’s testimony that Doe told him that 

her older brother had “do[ne] things to her” and “made her bleed in between 

her legs,” and it heard about the 2008 and 2009 investigations. There is no 

basis to conclude that the jury would have been confused or that an 

unnecessary amount of court time would have been consumed by the addition 
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of evidence that defendant reported his concerns in 2006, that CPS 

investigated them, and that Doe told CPS no adult was abusing her, the 

earlier abuse had ended when she moved to her father’s home, her father told 

her be truthful with investigators, and she would tell someone who would 

help her if she was being molested. In the circumstances, we conclude it was 

an abuse of the trial court’s discretion to preclude defendant from introducing 

evidence of the 2006 investigation. 

We next consider whether defendant was prejudiced by exclusion of 

this evidence. Defendant argues he was deprived of his federal constitutional 

rights to present a defense, to a fair trial, and to due process. As a result, he 

contends, the prejudicial effect of the erroneous ruling must be measured 

under the constitutional standard of Chapman v. California (1967) 386 U.S. 

18, 24, under which reversal is required unless the error is harmless beyond 

a reasonable doubt. 

The state law standard for evidentiary error is more lenient. Prejudice 

is shown where, after examining the entire case, the reviewing court 

concludes it is “reasonably probable” that the appealing party would have 

reached a more favorable result in the absence of the error. (People v. Watson

(1956) 46 Cal.2d 818, 836 (Watson); Richardson v. Superior Court (2008) 43 

Cal.4th 1040, 1050 (Richardson).) This reasonable probability “ ‘does not 

mean more likely than not, but merely a reasonable chance, more than an 

abstract possibility.’ ” (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 800.)

“ ‘As a general matter, the ordinary rules of evidence do not 

impermissibly infringe on the accused’s [constitutional] right to present a 

defense,’ ” and “the mere erroneous exercise of discretion under such ‘normal’ 

rules does not implicate the federal Constitution.” (People v. Cudjo (1993) 

6 Cal.4th 585, 611.) Thus, the normal standard of prejudice when a court 
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improperly excludes defense evidence under Evidence Code section 352 is the 

state law standard. (Cudjo, at p. 611, citing Watson, supra, at p. 836.) Under 

this principle, the Watson standard applies when the ruling “is not a refusal 

to allow the defendant to present a defense, but only rejects certain evidence 

concerning the defense.” (People v. Garcia (2008) 160 Cal.App.4th 124, 133.) 

We are not persuaded the ruling here prevented defendant from presenting 

his defense in a manner that violated his constitutional rights; rather, it was 

a misapplication of the rules of evidence. 

Even under the Watson standard, the error requires reversal. In fact, 

the Attorney General makes no effort to show that the trial court’s ruling 

excluding evidence of the 2006 investigation, if erroneous, was not 

prejudicial. Rather, he limits his harmless error argument to exclusion of 

other evidence—of defendant’s neglect in the household and of Doe’s behavior 

toward M. 

The trial was largely a credibility contest between defendant and Doe; 

there was no physical evidence of the abuse and no indication any adult who 

visited or shared the home saw anything untoward. We do not discount the

evidence of defendant’s guilt. Not only did Doe testify at length about the 

abuse, but other witnesses, in particular her friend and her brother M., 

offered corroborating evidence. Both the friend and M. confirmed that Doe

had told them of the abuse in the past. M. also confirmed or lent credence to 

aspects of Doe’s account of events; he testified, for instance, that Doe and 

defendant spent time alone together in defendant’s bedroom, that defendant 

told M. not to disturb them when he knocked on the door, that he once saw 

defendant unclothed in the bedroom with Doe, that he sometimes saw Doe 

under the covers of defendant’s bed, that he saw her going from defendant’s 

bedroom to the bathroom wrapped in a blanket or wearing a sweatshirt, and 
13

that he saw them drinking and smoking marijuana together. After nearly 20 

hours of deliberation over four court days, the jury concluded this testimony 

was credible. But the charges here spanned many years, and the excluded 

evidence was that at the beginning of the time period in which Doe testified 

defendant sexually abused her, he instigated a CPS investigation that would 

lead inevitably to Doe being questioned about whether she was being 

molested. This evidence, coupled with the evidence of Doe's failure to report sexual 

abuse in subsequent CPS interviews in 2008 and 2009, could have persuaded one or 

more of the jurors that defendant reported Doe’s allegation of sexual abuse in 2006 

with a clear conscience and that at least a portion of the prosecution’s case was in 

doubt. There was, in our view, a “ ‘ “reasonable chance, more than an 

abstract possibility” ’ ” that the jury would have reached a more favorable 

verdict had it heard this exculpatory evidence. (Richardson, supra, 43 

Cal.4th at p. 1050, italics omitted.) In the circumstances, we conclude 

defendant was prejudiced by the exclusion of evidence, and the matter must 

be remanded for a new trial. 

For the guidance of the trial court on remand, we address certain of 

defendant’s remaining contentions.

ii. Other Excluded Evidence

We next consider exclusion of portions of Doe’s college admissions 

essay. The trial court admitted a portion of the essay in which Doe said that 

she first experienced sexual abuse while staying with her mother. But the 

court excluded a section of the same essay that it referred to as discussing 

“the mother’s drug abuse, sexual abuse while in her care, and Child 

Protective Services placed her with her grandmother.” From these general 

descriptions, we cannot conclude that the trial court abused its discretion in 

excluding this evidence as more prejudicial than probative (see Evid. Code, 

§ 352), or that any error in excluding portions of the essay was prejudicial.
14

However, nothing prevents defendant, on remand, from again seeking 

admission of any portion of the essay, the trial court from exercising its 

discretion in determining whether greater portions of the essay should be 

admitted in support of the defense—particularly in light of the evidence of 

the 2006 CPS investigation—or, if a resulting judgment is appealed, 

defendant from arguing the cited portions of the essay should have been 

admitted.

As to the journal entry showing Doe had reconnected with her older 

half-brother over defendant’s objections in 2014—approximately three years 

before she accused defendant of sexual abuse—on the record now before us 

the trial court could reasonably find this evidence of marginal relevance, and 

we see no abuse of discretion in excluding it. 

Nor does defendant show an abuse of discretion in excluding the 

evidence that Doe was violent toward M. when they were young children. M.

was 19 years of age when he testified and had for years not been living with 

Doe, so the court could reasonably conclude that any probative value as

impeachment of his testimony that Doe had never hurt him, or as evidence 

that he testified falsely out of fear of her, was outweighed by the consumption 

of time an inquiry into these long-ago events would have taken. 

iii. Admission of Evidence

The trial court admitted evidence that the family’s home was dirty and 

smelly, that M. had a bedwetting problem and his clothes frequently smelled 

of urine because there was not enough money to wash clothes, that there was 

not always enough money for food and other necessities and defendant 

sometimes took Doe’s money, and that the children sometimes had to wait 

outside the home after school until defendant returned. The evidence was 

introduced through multiple witnesses—Doe, M., defendant’s sister, the 
15

mother of two of defendant’s children, and another of defendant’s former 

girlfriends. 

The Attorney General argues the family’s living conditions, in 

combination with defendant’s use of physical discipline and an atmosphere of 

fear in the home, helped explain why Doe and M. failed to report defendant’s 

sexual abuse to the authorities. While this connection might not be robust, 

the proper question is whether the trial court abused its discretion in 

concluding its potential for prejudice did not outweigh any probative value it 

might have. We find no abuse of that discretion. The reasons for Doe’s 

failure to report the abuse over the course of many years were relevant, and 

we cannot say that evidence of neglect in the home, in concert with the 

admittedly proper evidence of physical violence, was irrelevant to Doe’s state 

of mind. In any case, defendant’s neglectful conduct was so much less 

shocking than the sexual abuse of which he was accused that it was unlikely

to “evoke an emotional bias against [defendant] because of extraneous factors 

unrelated to the issues.” (Cortez, supra, 63 Cal.4th at p. 128.)

II. Unanimity Instruction

Defendant contends the trial court erred in its response to a question 

the jury posed about the requirement for a unanimous verdict. 

With the exception of count 6—continuous sexual abuse of a minor—

each count charged defendant with a single act during a specified one- or twoyear period beginning with Doe’s seventh birthday, although she testified to 

frequent sexual acts during each of the years defendant abused her. 

With regard to these counts alleging a single act during an extended 

period, the trial court instructed the jury on the requirement of unanimity 

pursuant to CALCRIM No. 3501 as follows: “The People have presented 

evidence of more than one act to prove that the defendant committed these 
16

offenses. You must not find the defendant guilty unless: [¶] 1. You all agree

that the People have proved that the defendant committed at least one of 

these acts and you all agree on which act he committed for each offense; [¶]

OR [¶] 2. You all agree that the People have proved that the defendant 

committed all the acts alleged to have occurred during this time period and 

have proved that the defendant committed at least the number of offenses 

charged.” 

During its deliberations, the jury asked for clarification of the second 

enumerated paragraph of this instruction as follows: “Does ‘all of the acts 

alleged’ refer to the seven separate charges, or does it refer to a specific 

charge? [¶] In other words, if the jury agrees that oral copulation occurred at 

least once in a specified time period, but cannot agree on the exact instance, 

can that qualify as an agreement to a guilty charge?” In response, the court

first directed the jury to the instruction that it consider each count 

separately, then continued, “As it relates to the question on 3501, Part 2, and 

your question here, your example is otherwise if you agree on oral cop. 

occurred at least once in a specific period of time, but cannot agree on the 

exact instance, can that qualify as an agreement to a guilty charge? You can. 

That’s exactly how the law is in this particular area. You take a look at that 

particular count. What is the act that’s required? If that act that is required, 

you happen to agree that it occurred in that period of time, then you all have 

agreed on that count, and you move to the next count to determine what act 

has occurred. Whatever that act sets forth, whether or not that act has 

occurred during that specific period of time, if you all agree it did, then you’ve 

dealt with it.” 

Defendant contends this additional instruction incorrectly stated the 

law because, according to defendant, it informed the jury that if they “agreed 
17

that an improper act had occurred in the specific time period, that was good 

enough for conviction even if they could ‘not agree on the specific act.’ ” 

Whatever the merits of this argument, we need not reach it here. Defendant 

raises no challenge to CALCRIM No. 3501 itself, and we think it unlikely a 

second jury will ask the same question and receive the same answer in a new 

trial. If, on remand, either party is of the view the standard instruction on 

unanimity requires further clarification as it relates to the facts of this case, 

counsel may raise that question in the trial court, for example by proposing a 

pinpoint instruction.

III. Uncharged Sexual Offenses

Defendant contends he was deprived of his constitutional right to due 

process when the trial court allowed the jury to hear and consider evidence of 

the uncharged crimes to show his propensity to commit sexual offenses. He 

makes no other challenge to admission of this evidence, and he acknowledges 

that binding authority requires us to reject the constitutional claim he brings. 

(Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450 (Auto 

Equity).) 

The jury heard evidence that defendant committed two uncharged 

offenses. First, in addition to testifying about orally copulating defendant, 

Doe testified that she had disclosed shortly before trial that defendant had 

orally copulated her. Second, defendant’s sister testified that when she was 

six or seven years old and defendant was 14 or 15, he asked her to come into 

his bedroom, exposed his genitals to her, and asked her to put her mouth on 

them. When she refused, he asked her again, and she again refused and was 

then able to leave the room.

Over defendant’s objection, the trial court instructed the jury it could 

consider evidence of the uncharged crimes if the People had proved by a 
18

preponderance of the evidence that defendant committed them, and that if 

the People met this burden, the jury could use the uncharged acts as evidence 

defendant had a propensity to commit sexual offenses and was likely to 

commit the charged crimes. 

As a general rule, evidence of prior offenses is not admissible to show a 

propensity to commit crimes in general or a particular type of crime. (People 

v. Felix (1993) 14 Cal.App.4th 997, 1004–1005; Evid. Code, § 1101, subd. (a).) 

An exception applies, however, when a defendant is charged with a sexual 

offense; in such a case, evidence is admissible for this purpose if it is not more 

prejudicial than probative under Evidence Code section 352. (Evid. Code, 

§ 1108, subd. (a); People v. Reliford (2003) 29 Cal.4th 1007, 1012–1013.) Our 

high court has upheld this statutory provision against a challenge that it 

violates the constitutional right to due process. (People v. Falsetta (1999) 21 

Cal.4th 903, 907, 912–922.) It has also concluded that the requirement that 

the uncharged offense be proved only by a preponderance of the evidence does 

not dilute the prosecution’s burden of proving the charged offense beyond a 

reasonable doubt. (Reliford, at pp. 1015–1016.)

Despite these authorities, in order to preserve his claims for federal 

review, defendant argues that admission of uncharged sexual offenses to 

show propensity is unconstitutional and—in a footnote—that use of the lower 

standard of proof for the uncharged offense improperly undercut the 

prosecution’s burden of proof. As he recognizes, we are bound by our high 

court’s rulings in Falsetta and Reliford (Auto Equity Sales, supra, 57 Cal.2d 

450), and we must reject his contentions. 
19

IV. Restitution and Stayed Fine

Defendant’s final contentions are that the trial court erred in imposing 

a $10,000 restitution fine without a showing that he had the ability to pay it 

and that the abstract of judgment fails to reflect that a fine was stayed. 

The probation report prepared before sentencing recommended the trial 

court impose a restitution fine of $10,000 (§ 1202.4, subd. (b)(1)), with a 

parole revocation fine of the same amount (§ 1202.45), a sex offender fine of 

$3,500 (§ 290.3), $280 in court operations assessments (§ 1465.8), and $210 in 

criminal conviction assessments (Gov. Code, § 70373). 

At the sentencing hearing, the court indicated it would order the 

recommended $10,000 fines (staying the parole revocation fine). Defense 

counsel asked to have the fines and fees waived because defendant was 

indigent. (People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas).) The court 

said, “I’m going to order those fines and fees, but if you feel that Dueñas

applies, . . . you can add the case on and we will deal with the fines and fees.” 

After a recess, the court stated: “We are back on the record for a couple of 

items that I did not cover. . . . [¶] There’s also a $3500 sex offender fine. I’m 

going to stay that fine. I’m not going to impose it.” The court also ruled it 

would not impose the civil fines, but it did not expressly address Dueñas or 

defendant’s ability to pay the restitution fine. 

Section 1202.4, subdivision (b)(1) directs the trial court, unless it finds 

“compelling and extraordinary reasons for not doing so,” to impose a 

restitution fine for a felony “commensurate with the seriousness of the 

offense,” of between $300 and $10,000. Defendant contends that, under the 

rule announced in Dueñas, the $10,000 fine must be stricken or reduced to 

the statutory minimum of $300 in the absence of evidence showing he had 

the ability to pay it. 
20

In Dueñas, Division Seven of the Second Appellate District held that, 

because the only reason the defendant could not pay the fines and fees the 

trial court imposed as a condition of probation was her poverty, it was 

unconstitutional to use the criminal process to attempt to collect a fine she 

could not pay. (Dueñas, supra, 30 Cal.App.5th at p. 1160.) According to the 

court, due process of law required the trial court to hold a hearing on the 

defendant’s ability to pay before imposing court facilities and court operations 

assessments under section 1465.8 and Government Code section 70373, and 

execution of a restitution fine under section 1202.4 must be stayed until the 

trial court held a hearing and concluded the defendant had the ability to pay 

the fine. (Id. at p. 1164.)

Since Dueñas was decided, a number of cases have concluded the 

excessive fines clause of the Eighth Amendment, rather than due process 

principles, provides the proper analytic framework in this situation. (See, 

e.g., People v. Cowan (2020) 47 Cal.App.5th 32, review granted June 17, 2020, 

S261952; People v. Aviles (2019) 39 Cal.App.5th 1055, 1067–1071; People v. 

Kopp (2019) 38 Cal.App.5th 47, 96–97, review granted Nov. 13, 2019, 

S257844.)2 That inquiry involves four considerations: “(1) the defendant’s 

culpability; (2) the relationship between the harm and the penalty; (3) the 

penalties imposed in similar statutes; and (4) the defendant’s ability to pay.” 

(Kopp, at p. 97.) Still other cases have concluded Dueñas was wrongly 

decided without reaching the question of whether to consider ability to pay 

under the rubric of the excessive fines and fees clause. (See, e.g, People v. 

2 The high court limited the issues to be briefed and argued in Kopp to 

(1) whether a court must consider a defendant’s ability to pay before imposing 

fines, fees, and assessments, and (2) if so, which party bears the burden of 

proof of inability to pay. (People v. Kopp (Nov. 13, 2019) 2019 Cal.Lexis 

8371.)
21

Hicks (2019) 40 Cal.App.5th 320, 324–329, review granted Nov. 26, 2019, 

S258946; People v. Petri (2020) 45 Cal.App.5th 82, 89–92.)

Whatever the correct analysis, the fines and fees assessed necessarily 

fall with reversal of the judgment, and if defendant is again convicted on 

remand he will have the opportunity at that time to make any proper 

showing of indigence and of the other factors relevant to our Eighth 

Amendment jurisprudence. We therefore need not consider his challenge 

now.

Defendant also points out correctly that the abstract of judgment 

indicates inaccurately that the $3,500 sex offender fine was imposed rather 

than stayed. Ordinarily we would direct that the abstract of judgment be 

amended to correct this clerical error, but because we are reversing the 

judgment, amendment is unnecessary. 

DISPOSITION

The judgment is reversed.

TUCHER, P.J.

WE CONCUR:

FUJISAKI, J.

PETROU, J.

People v. Traylor (A159338)