Filed 7/12/22 P. v. Oliva CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

DANIEL JAMES OLIVA,

Defendant and Appellant.

 D078611

 (Super. Ct. No. SCN388238)

APPEAL from a judgment of the Superior Court of San Diego County, 

Amalia L. Meza, Judge. Affirmed as modified and remanded with 

instructions.

Athena Shudde, under appointment by the Court of Appeal, for 

Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant 

Attorney General, A. Natasha Cortina, Assistant Attorney General, Arlene A. 

Sevidal, Andrew S. Mestman and Collette C. Cavalier, Deputy Attorneys 

General, for Plaintiff and Respondent.
2

INTRODUCTION

A jury convicted Daniel James Oliva of 18 counts of sexual abuse 

against three children (Jane Doe 1, Jane Doe 2, and Jane Doe 3), and one 

count of physical abuse against another child (John Doe).1 On appeal, Oliva 

contends the trial court prejudicially erred when it admitted expert testimony 

on the behavior of child victims of sexual abuse. He further contends the 

court gave a jury instruction that likely caused the jury to convict him based 

on acts of sexual abuse he committed outside the territorial jurisdiction of the 

superior court. 

We reject Oliva’s challenges to the verdict. However, we shall vacate

any portion of the $154 criminal justice administration fee imposed pursuant 

to now-repealed Government Code section 29550.1 that remains unpaid as of 

July 1, 2021. We remand the matter to the trial court with directions to 

correct the entry of an erroneous fee amount on the abstract of judgment and

to reflect the vacatur. We affirm the judgment in all other respects.

FACTUAL AND PROCEDURAL BACKGROUND

I.

The Offenses

In an amended information, Oliva was charged with 21 felony counts 

for his repeated sexual abuse of Jane 1, Jane 2, and Jane 3, and physical 

abuse of John:

1 We subsequently refer to Jane Doe 1, Jane Doe 2, Jane Doe 3 and John 

Doe as Jane 1, Jane 2, Jane 3, and John, respectively.
3

Counts 1 and 2: oral copulation with a child 10 years old or younger, 

committed against Jane 1 between July 4, 2007 and July 4, 2009 (Pen. Code,2

§ 288.7, subd. (b));

Counts 3 and 4: forcible lewd act on a child under 14, committed 

against Jane 1 between September 9, 2010 and July 4, 2013 by placing her 

mouth onto his “crotch area” (§ 288, subd. (b)(1));

Counts 5 and 6: forcible lewd act on a child under 14, committed 

against Jane 1 between July 4, 2012 and July 4, 2013 by placing her “crotch 

onto [his] crotch area” (§ 288, subd. (b)(1));

Counts 7 and 8: forcible oral copulation, committed against Jane 1

between July 4, 2013 and July 4, 2017 (former § 288a, subd. (c)(2)(A), now 

§ 287, subd. (c)(2)(A));

Counts 9 and 10: forcible rape, committed against Jane 1 between July 

4, 2013 and July 4, 2017 (§ 261, subd. (a)(2));

Counts 11 and 12: forcible lewd act on a child under 14, committed 

against Jane 2 between October 31, 2012 and October 31, 2015 by placing her 

mouth onto his “crotch area” (§ 288, subd. (b)(1));

Counts 13 and 14: forcible rape, committed against Jane 2 between 

October 31, 2012 and October 31, 2017 (§ 261, subd. (a)(2));

Counts 15 and 16: forcible oral copulation, committed against Jane 2

between October 31, 2015 and October 31, 2017 (former § 288a, subd. 

(c)(2)(A), now § 287, subd. (c)(2)(A));

Counts 17 and 18: oral copulation with a child 10 years old or younger, 

committed against Jane 3 between December 10, 2012 and December 10, 

2015 (§ 288.7, subd. (b));

2 Further unspecified statutory references are to the Penal Code.
4

Counts 19 and 20: forcible lewd act on a child under 14, committed 

against Jane 3 between December 10, 2012 and December 10, 2015 by 

placing her mouth onto his “crotch area” (§ 288, subd. (b)(1)); and

Count 21: felony child abuse against John (§ 273a, subd. (a)).

Counts 1 through 6, 11, 12, and 17 through 20 were further alleged to 

involve substantial sexual conduct. (§ 1203.066, subd. (a)(8).) Counts 3 

through 16, 19 and 20 were alleged to involve multiple victims. (§ 667.61, 

subds. (b), (c), & (e).) In the commission of count 21, Oliva was alleged to 

have personally inflicted great bodily injury. (§§ 12022.7, subd. (a), 1192.7, 

subd. (c)(8).) Before trial, counts 1 and 2 were dismissed on the prosecutor’s 

motion. 

Oliva was tried by a jury, jointly with his codefendant, Lorie Lovella 

Welch, the mother of the four victims. After deliberating for three days,3 the 

jury found Oliva guilty on counts 3 through 21 and found true all of the 

corresponding enhancement allegations.4 The trial court sentenced Oliva to 

a total prison term of 240 years to life, consecutive to five years.5

3 After the original jury deliberated for two days, a juror was excused for 

misconduct and was replaced with an alternate juror. The newly-configured 

jury was instructed to start deliberations over from the beginning. The 

verdict was reached approximately three days later. 

4 Welch was charged in the amended information with four counts of 

felony child abuse (§ 273a, subd. (a); counts 22 through 25), one for each 

child, based on allegations she permitted each of the children to be placed in 

a situation where his or her person and health was endangered. The jury 

convicted Welch as charged. She was sentenced to a total term of six years in 

prison. She is not a party to this appeal.

5 The sentence consisted of consecutive 15-year-to-life terms on counts 3 

through 18, plus five years on count 21 (lower term of two years for child 
5

II.

The Trial

The People presented testimony from Jane 1, Jane 2, Jane 3, and John, 

and family friends to whom the victims made their disclosures, among 

others.6 Oliva testified in his defense. Welch did not testify.

A. Prosecution Case

Welch met Oliva, an active-duty Marine, in 2005 when she was 

pregnant with Jane 3. Welch and Oliva were married in 2006 and moved 

into base housing at Camp Pendleton along with baby Jane 3. 

At the time, Jane 1, Jane 2, and John were living at their paternal 

grandmother’s house along with a number of relatives, including their father. 

The three children were removed from father’s care and Mother was awarded 

custody. So in 2007 or 2008, Jane 1, Jane 2, and John went to live with their 

mother, Oliva, and Jane 3, at Camp Pendleton. Jane 1 was eight years old 

(born in 1999), Jane 2 was six years old (born in 2001), and John was three

years old (born in 2004), approximately. 

In 2010, the family moved to Jacksonville, North Carolina. In March 

2012, Oliva left the military for medical reasons and the family moved back 

to California. They lived in a house in Oceanside. Jane 1, Jane 2, Jane 3, 

and John lived in the Oceanside house with Welch and Oliva until late 2017, 

abuse, increased by three years for the great bodily injury enhancement). 

The court stayed punishment on counts 19 and 20 under section 654.

6 The People also called an expert to testify about common myths or 

misperceptions regarding child sexual abuse and child sexual abuse victims. 

We summarize his testimony in our discussion of Oliva’s claim of error 

related to the expert’s testimony at Discussion, Section I.A., post.
6

shortly before the sexual and physical abuse were reported to law 

enforcement.

1. Jane 1 (counts 3 through 10)

At the time of trial, Jane 1 was 20 years old. She testified she had been 

sexually abused by Oliva for approximately 10 years, from the time she was 

eight years old until shortly after she turned 18. 

The first time Oliva sexually abused Jane 1, she was around eight 

years old and the family was living in base housing at Camp Pendleton. 

Oliva grabbed her wrist and pulled her into a bathroom. There, he 

blindfolded her and shoved something in her mouth. She did not know what 

it was, but she “knew it didn’t belong there.” She could not breathe, and she 

felt a gagging sensation in the back of her throat. She was very afraid. 

The next sexual assault happened in Texas, as the family was driving 

across the country to North Carolina. Oliva was driving a U-Haul truck, with 

Jane 1 as his passenger, and the rest of the family was in a vehicle driven by 

Welch. Oliva pulled Jane 1’s head down towards his groin. His zipper was 

down, and his pants were unbuttoned. She was able to see because “[l]ights 

were flashing from the other cars that passed by.” It was the first time she 

had seen “a private part on a boy.” His penis entered her mouth, and she felt 

the same gagging sensation she felt when he blindfolded her in the bathroom. 

She was very afraid. The assault ended when he ejaculated in her mouth. 

The sexual abuse continued in North Carolina. On multiple occasions, 

Oliva forced Jane 1 to orally copulate him. He pulled Jane 1 into a bedroom, 

placed her on her knees by the bed, and put his penis in her mouth. She did 

not say anything, because she was afraid of Oliva and she did not want to be 

hurt. 
7

When Jane 1 was around 11 years old, Oliva had full sexual intercourse 

with her. He pulled her into a room, removed her clothes, and penetrated her 

vagina with his penis. It was painful for her, and she wanted it to stop. She 

did not tell her siblings or her mother about it because she did not want the 

family to be torn apart. Part of her was hoping it was a bad dream.

After the family moved back to Oceanside in March 2012, Oliva 

continued to abuse Jane 1. When she was 13 years old and in the seventh 

grade, he made her orally copulate him more than once. He did this in her 

mother’s bedroom when her mother and siblings were not home. 

After the family returned to Oceanside, the sexual intercourse “became 

more constant.” Oliva had sexual intercourse with her more than one time 

when she was in the seventh grade. Oliva would wear a condom; he told her 

the purpose of a condom was “to keep people from getting pregnant.” 

The sexual abuse continued when Jane 1 was 14 years old and in the 

eighth grade, and throughout her time in high school. She remembered one 

instance of oral copulation when she was in eighth grade, and another when 

she was in high school. However, “most of the time it was just penetration.” 

Oliva had sexual intercourse with her approximately once every two months 

while she was in high school. The intercourse happened in her mother’s 

bedroom. It also happened in the bathroom, while Jane 1 was showering. As 

a result, she “would rush in the shower” and “never felt safe in the shower 

unless the door was locked.” Jane 1 was frequently afraid she was pregnant 

and “always had the fear of having to become a young teen mom.” 

Oliva also sexually abused Jane 1 outside the home. On several 

occasions, he took her to a hotel room or to a secluded parking lot to have 

sexual intercourse with her. 
8

One time when Jane 1 was in high school, she was in the kitchen with 

Jane 2. Oliva came in and “he told [Jane 1] what he was doing to [Jane 2], 

and he told [Jane 2] what he was doing to [Jane 1].” Jane 1 denied that Oliva 

ever had sexual intercourse with her and Jane 2 at the same time.

Jane 1 did not tell anyone about the sexual abuse. She was afraid of 

what people would think of her and did not want to be abandoned. She had 

learned from reality shows that “when someone comes out as being a victim 

. . . they’re not forgiven” but instead were “a target of major bullying.” She 

thought her mother would look down on her. And she was afraid of Oliva

because she believed he “was a man that could kill.” 

In 2009 and 2010, when interviewed by Child Protective Services 

workers, she said she was not being sexually abused. At the time, she was 

living at Camp Pendleton, and Oliva was using the blindfold on her; she did 

not know that what he was doing to her was abuse. Also, her mother had 

told the children since their father lost custody, “after her, there would be no 

one else to take [them] in” and they should “all stick together.” In May 2013, 

when talking to a school counselor, she did not say she was being abused. 

She was not comfortable with the school counselor, and she did not want her 

family and siblings to be separated.

The last time Oliva had sexual contact with Jane 1 was in September 

2017, when she was 18 years old and a senior in high school. Welch walked 

into the bedroom while Oliva was having sexual intercourse with Jane 1. 

Although Jane 1 did not know it at the time, Jane 2 had seen Oliva “take 

[Jane 1] to the back room” and had sent a text message to Welch telling her 

to come home. Upon seeing Oliva on the bed with Jane 1, Welch crossed her 

arms and said “Really,” and Jane 1 rushed out of the room. Welch blamed 

Jane 1 for Oliva’s behavior and called her a “whore.” Afterward, Jane 2
9

asked Jane 1 what had happened with their mother. Jane 2 cried, and Jane 

1 consoled her. 

Jane 1 hoped her mom “would make the right decision.” But Welch 

decided to “give [Oliva] another chance.” Jane 1 felt her mother was choosing 

him over her children. 

2. Jane 2 (counts 11 through 16)

Jane 2 was 18 years old at the time of trial. Oliva sexually abused

Jane 2 starting when she was six or seven years old and the family was living 

in base housing at Camp Pendleton, and continuing through the time they 

were living in Oceanside. 

Jane 2 did not have clear memories of the time the family was living at 

Camp Pendleton. She recalled there was at least one occasion when she had 

to touch Oliva’s private areas. On another occasion, when her mother was 

not around, Oliva grabbed her buttocks over her clothes. 

When Jane 2 was eight years old and the family was living in North 

Carolina, Oliva forced her to orally copulate him. He took her to one of the 

bathrooms. He “dropped his shorts” and told her to get on her knees. He was 

“fairly aggressive.” And she was afraid of him because he was “a scary guy” 

and she was a small child. He grabbed the back of her head or her neck and 

pushed her head back and forth on his penis. Other similar incidents 

happened in his bedroom or her bedroom. One time when Jane 2 was 

wearing a bathing suit, Oliva called her into the living room. He removed her 

swimsuit bottoms and made her “squat over him.” He tried to have 

intercourse with her and kept going even though she was crying and 

screaming for him to stop. Eventually he gave up. He took her outside to the 

pool and acted is if nothing had happened. Jane 2 remembered that assault 

“vividly.”
10

Oliva continued to sexually abuse Jane 2 after the family moved back 

to Oceanside in March 2012, when Jane 2 was 10 years old and was 

completing the fourth grade. He forced her to orally copulate him on more 

than one occasion when she was between fourth and fifth grade, and on more 

than one occasion when she was in sixth and seventh grade. These acts 

generally occurred in Oliva’s bedroom. Oliva would grab her arm or tell her 

to go, and she would obey out of fear. He would close the bedroom door, lock 

it, and force her to orally copulate him. 

When Jane 2 was in middle school, Oliva began having sexual 

intercourse with her. She estimated there were more than five times when 

he had sexual intercourse with her when she was alone with him in his 

bedroom. She testified there were also five or six times when she and Jane 1

were in the same room and Oliva locked the door, closed the blinds and had 

intercourse with both girls, holding them down so they could not get away. 

She testified she had not discussed these incidents with Jane 1, explaining 

they were “very uncomfortable to talk about” and “very uncomfortable and 

difficult to . . . deal with.” 

Sometimes Oliva would sexually abuse Jane 2 in his vehicle. Once

when she was in middle school, he drove her to a transit station and forced 

her to orally copulate him. On another occasion when she was a freshman in 

high school, he picked her up after band practice, took her to a Walmart 

parking lot and made her perform oral sex on him. She described another 

instance when Oliva was driving his vehicle, she was in the front seat, and 

Jane 1 was in the back seat. Oliva put his arm up so that Jane 1 would not 

see. He put lotion in Jane 2’s hand, grabbed her wrist and made her move 

her hand up and down on his penis.
11

Jane 2 did not remember when the last touching occurred. More than 

once, Oliva threatened to hurt or kill Jane 2 if she told anybody about the 

abuse. Jane 2 believed him. He was “very aggressive,” and she believed his 

threats. In her words, “anything he said he would do to me he would do to 

me.” 

Jane 2 told her mother about the sexual abuse when they were living in 

North Carolina. Welch pointed a gun at Oliva and told him she would kill 

him if he touched her children again. But Oliva denied he was abusing the 

children, and Welch believed him. 

After they moved back to California, Jane 2 would tell Welch the sexual 

abuse was continuing. Welch accused Jane 2 of “just making stuff up” about 

Oliva because she did not like him. Jane 2 did not tell anyone other than her 

mother about the sexual abuse because she was embarrassed and “he had 

said not to tell anybody and [she] was scared.”

When Jane 2 would see Oliva “take [Jane 1] to the back room,” she 

would text and call their mother. Welch would get mad or ignore her texts 

and calls. The time when Welch walked in on Oliva having sex with Jane 1, 

Jane 2 had texted Welch to come home. Normally, when Welch came home, 

Oliva “would quickly start opening up blinds and he would make [them] get 

dressed . . . before she would come in.” This time, Welch turned her 

motorcycle off up the street and rolled it down to the house without making 

noise. Jane 2 walked with Welch to the bedroom. When Welch opened the 

door and saw Oliva having sex with Jane 1, Jane 2 was relieved because she 

thought the sexual abuse “was over.” Instead, Welch “saw it and she forgave 

him.” 
12

3. Jane 3 (counts 17 through 20)

Jane 3 was 14 years old when she testified at trial. Oliva sexually 

abused her on more than one occasion. The first time happened in Oceanside 

when she was seven to nine years old and in the second or third grade. Oliva 

led her to his bedroom, had her sit on a chair, and put a blindfold over her 

eyes. He told her to open her mouth. He stuck something inside her mouth 

and told her not to bite. She could not see what it was and did not recall how 

long it was in her mouth. He removed the thing from her mouth, took the 

blindfold off, and told her to go to her room. 

The same thing happened two weeks later, only this time the blindfold 

was loose, and Jane 3 could see Oliva’s penis going into her mouth. Oliva did 

this to her a third time when she was in the second or third grade. On this 

occasion the blindfold was not loose and she could not see anything, but by 

now she knew what he was sticking in her mouth and she was scared because 

he was bigger than she was. At first while Jane 3 was testifying, she 

remembered three times when Oliva put his penis in her mouth. After her 

recollection was refreshed, she testified he had done this to her five times. 

Initially, Jane 3 did not tell anyone about the sexual abuse. After the 

third or fourth time, she told her mother, because she felt scared. Her 

mother was “gone a lot” and was often at work or “at a bar singing.” When 

Jane 3 disclosed the abuse, they had just watched a movie together and Jane 

3 felt it was the right time to tell her. Jane 3 told Welch that Oliva had put 

his penis in her mouth. Welch then got a gun, pointed it at Oliva, and told 

him, “Don’t touch my little girl.” Jane 3 believed the sexual abuse happened 

at least one more time after that.

There were times when social workers from Child Protective Services 

would ask Jane 3 if anyone in her household was “touching [her] in wrong 
13

areas.” She would say no because she was afraid of losing her mom and her 

siblings. 

4. John (count 21)

John was 15 years old at the time of trial. Oliva physically abused him 

from the time he was in elementary school in Oceanside and continuing 

throughout middle school. John was terrified of Oliva but felt there was no 

way of stopping the abuse because Oliva was “an ex-Marine” and was bigger, 

stronger, and fitter than he was. 

Oliva would punch John and “choke [John] out,” while claiming he was 

trying to teach John to “be a man.” This happened in the presence of John’s 

sisters, and occasionally his mother. Jane 2 testified that John “would try to 

scream ‘help,’ but he couldn’t because he was being choked.” More than once, 

Oliva choked John to unconsciousness. Jane 2 described that John “would 

start turning red and trying to tuck his chin under [their] stepfather’s elbow, 

but he would fail because he’s not strong enough. He would start turning 

blue, and then his eyes would just roll back and close.” 

Oliva once punched John in the chest, hurting him. On one occasion 

when Oliva was trying to “roughhouse” with John, Oliva broke John’s right 

arm. John recalled breaking his right arm another time while riding a 

skateboard. 

Another instance of physical abuse happened when John was sitting in 

the kitchen with Welch. Oliva kicked him in the thigh, knocking him to the 

floor. Oliva kept kicking him, hard, while he was on the floor. John

sustained bruises on his thigh from the kicking.

Once, as Oliva was trying to walk past John, Oliva threw him onto the 

couch, which was full of sharp, L-shaped metal braces. John landed on the 

metal braces and cut his back. Jane 3 testified the cut “look[ed] like someone 
14

tried to cut open his back with a scalpel.” Susan and Aaron, friends of the 

family whom the children called “Aunt” and “Uncle,” testified they saw the 

scar on John’s back when the children were swimming. Susan was “shocked” 

because it was a “huge gash” and did not look like it was healing properly.

5. Disclosure of Abuse

In December 2017, all four siblings spent most of their winter break 

with Susan and Aaron at their home in Escondido. On December 30 or 31, 

Jane 2 told Susan and Aaron that Oliva was sexually abusing her and her 

sisters. One of the reasons Jane 2 decided to disclose the abuse to Susan and 

Aaron was that she was upset at Oliva because she had learned Oliva was 

cheating on Welch. 

Susan talked to Jane 1 about what Jane 2 had revealed. Although it 

upset Jane 1 to talk about the abuse, Susan hugged her and made her feel 

safe, so she told Susan “everything.” Jane 1 was angry that her mom “didn’t 

do anything.” She was also mad at herself that she “didn’t do anything” and 

“didn’t stop it.” She testified, “right then and there I knew it had to stop.” 

She wanted to protect her siblings. She felt that Susan “was listening” and 

“was actually willing to help.” Aaron, who was present for the conversation, 

testified Jane 1 “[v]ery solemnly confirmed” the sexual assaults and was 

“misty-eyed” and “was looking [at them] straight in the eyes.” 

Aaron and Susan thought law enforcement should be called and gave 

the siblings the opportunity to decide whether to notify law enforcement 

themselves. They decided to do so. As Jane 1 was then 18 years old and an 

adult, she was the one who called 911. Before the police were summoned, 

Susan called Welch and put Welch on speakerphone in the presence of the 

two older sisters. Susan wanted to let Welch know what had been disclosed, 

and planned to tell Welch she could stay with her if she needed help. But
15

Welch defended Oliva, yelled at her children, and said they were accusing 

him of wrongdoing because they were “evil.” 

The police arrived at Susan and Aaron’s home a short time later. The 

police took the four siblings to the Oceanside police station. The three 

youngest siblings were taken to a foster care facility. Jane 1 asked Aaron 

and Susan if she could live with them, and they agreed. At the time of trial, 

all four siblings were living with their grandmother and other family 

members (but not their father or mother) at their grandmother’s home. 

B. Defense Case

Oliva testified he joined the Marines in August 2004 shortly after he 

turned 18. He met Welch the following year when she was pregnant with 

Jane 3. They were married in 2006 and moved into base housing at Camp 

Pendleton. They moved to North Carolina in 2010 after he was transferred 

there, and returned to Oceanside in March 2012 after he was honorably 

discharged. 

Oliva testified he was innocent. He admitted he would wrestle with 

Jane 1, Jane 2, and John, but only because they were getting bullied at school 

and he was “trying to teach them skills.” He taught the children how to get 

out of a chokehold, or how to block punches, while they wore headgear and 

boxing gloves. They enjoyed the wrestling and boxing sessions most of the 

time. When they were tired or did not want to participate, he would “try and 

get them motivated because . . . you don’t always get to choose when a fight 

happens.” 

Oliva testified he never choked John. He tried to teach John to get out 

of a chokehold. Sometimes John would hold his own breath and struggle 

because “he didn’t want to do it.” Oliva denied throwing John onto the couch. 
16

John received a puncture wound from being stabbed by a pencil in school. 

John only broke his arm once, while riding a skateboard. 

When the family drove across the country to North Carolina, it was 

Welch who drove the U-Haul truck; Oliva did not drive it. Oliva explained 

Welch had experience driving moving trucks, but he was not very comfortable 

driving a moving truck. 

In 2017, Welch discovered that Oliva had been unfaithful. The children 

“kind of shunned [him]” when they found out. Oliva said the children’s 

allegations were coming from “out of nowhere.” He thought the children were 

“making this up” because they were upset at him for cheating on their 

mother, they wanted him out of their lives, and they wanted to live at their 

grandmother’s house. At one point, Jane 2 told him she did not like him, and 

she was the leader of the siblings. And Jane 3 was “incredibly believable or 

persuasive.” One time, after he heard her cursing at her sister, she denied 

that she had done it. 

Welch received a call from Susan, and Oliva overheard Welch say,

“ What are you talking about? That didn’t happen. ” After the call ended, 

Welch left to go to Susan’s house. Welch called him later crying hysterically 

and told him the children were in the back of police cars and they would not 

let her speak to them. Oliva moved out of their home that day because he 

“figured it was best for her and the family if [he] wasn’t there.” He had told 

the detective he moved out because of the “stress of living with [Welch’s] 

family” and because he and Welch “just kind of grew apart.” 

In his closing argument, defense counsel told the jury that all four 

victims had lied about being abused. They had “sprinkle[d] in some truth 

with the lies” but their “[l]ate disclosure does not equal the truth.” Counsel 

argued the siblings had a motive to lie because they were angry, wanted 
17

sympathy, and wanted to live with Susan and Aaron, or somewhere other 

than the home they shared with their mother and Oliva. They got together 

and decided to lie about Oliva and came up with “provocative allegations to 

be able to get where they wanted to go.” They would do anything to escape 

poverty. (Oliva had testified the house where the family was living was very 

small and in an unsafe neighborhood.) And the younger children had lied to 

please Jane 2. Counsel argued there were inconsistencies in the siblings’ 

testimony about the way John had broken his arm, whether Jane 1 and Jane 

2 had engaged in “threesomes” with Oliva, and the date they originally 

disclosed Oliva’s abuse. Counsel argued the inconsistent statements 

indicated they were lying about being abused. Oliva, in contrast, was a 

credible witness. He had stayed in San Diego despite knowing he was being 

investigated for sex abuse, which was the behavior of an innocent person. 

DISCUSSION

I.

The Trial Court Did Not Prejudicially Err in Admitting

Expert Testimony About Child Sexual Abuse

A. Additional Background

Albert Killen-Harvey is a licensed clinical social worker whose 

professional work is focused on child trauma. At the time of trial, he had 

been employed by the Chadwick Center at Rady Children’s Hospital for over 

20 years as a clinician, clinical supervisor, and coordinator of services. His 

current position at the Chadwick Center involved training law enforcement 

and medical professionals about child sexual abuse. 

Killen-Harvey testified in general terms about common myths and 

misconceptions about child sexual abuse and the victims of child sexual 
18

abuse.7 He explained to the jury he had received no information about 

Oliva’s case and did not meet with the alleged victims. His testimony was 

based on research in the field and on his experience as a clinician. He told 

the jury he was not “trying to make a case on one side or another.”

Killen-Harvey explained that common myths about sex abuse include 

the misconception that it only happens between a child and a stranger, or 

that if somebody was harming a child, the “child would just invariably tell 

somebody.” Another misconception is that children who are victimized are 

alone and have no family connection. In reality, most children know their 

offender. Children often are not able to walk away from their abuser, and so 

abuse can occur over a long period of time. Children can also be groomed by 

someone they love and trust to accept and become accustomed to abuse. If 

they have a relationship with the abuser, they may value that relationship 

over disclosing the abuse. Based on Killen-Harvey’s experience and 

knowledge of the literature, it is “highly unusual” that abuse is a one-time 

event. He could not remember a case in which the sexual assault or violation 

happened only once.

Contrary to common assumptions, the majority of children do not 

disclose abuse right away, and some never disclose they were abused. People 

tend to disclose trauma incrementally rather than all at once. Children 

sometimes falsely deny they were abused. Family support is a major factor 

7 Killen-Harvey’s testimony was not explicitly about child sexual abuse 

accommodation syndrome (CSAAS), but his opinions were consistent with 

CSAAS research. (See People v. Bowker (1988) 203 Cal.App.3d 385, 389 & 

fn. 3 (Bowker) [first articulated in 1983, CSAAS has five stages⎯secrecy, 

helplessness, entrapment and accommodation, delayed disclosure, and 

retraction].)
19

that plays into a child’s decision to disclose. If a parent is dismissive when a 

child reports abuse, the child becomes less likely to disclose again for fear of 

being discounted. Children are less likely to disclose abuse to a stranger, 

even if the stranger is a “helping professional.” There is no one way for a 

child to react to abuse. 

There is a misconception that an abused child will be able to recall 

every detail of the abuse. In reality, children tend to recall core details of a 

traumatic event and may not retain peripheral, or less significant, details, 

especially when abuse is consistent over a long period of time. Law 

enforcement personnel are trained not to ask questions repeatedly so as to 

avoid confusing the child. Children who do disclose abuse may hold back 

details out of shame, or to protect themselves from retribution or from their 

own emotions about the trauma. 

B. Oliva’s Claim of Error

Oliva challenges the admission of the following statements made by 

Killen-Harvey in the course of his direct examination: (1) “the vast majority 

of children actually know their offender, it is somebody they are in a 

relationship with, whether that’s family or within their community”; (2) that 

it is the “minority of cases in which a disclosure is made immediately”; (3) 

that inconsistent statements are common; (4) that false denials of child abuse 

are not “common,” but “not unusual,” and happen “on a frequent enough 

basis”; and (5) “it is highly unusual that the situation or report that we’re 

dealing with or circumstances we’re dealing with is a onetime event.” 

Oliva argues this testimony amounted to “ ‘predictive conclusions’ ” and 

was inadmissible under People v. Julian (2019) 34 Cal.App.5th 878 (Julian), 

People v. Wilson (2019) 33 Cal.App.5th 559 (Wilson), and People v. Lapenias

(2021) 67 Cal.App.5th 162 (Lapenias), and that the evidentiary error was 
20

prejudicial. Julian and Wilson held it is an abuse of discretion for a court to 

permit an expert on child sexual abuse to testify about the statistical 

percentages of false allegations by child sexual abuse victims. (Julian, at 

pp. 883–884 [expert testified there were “a ‘dozen studies’ that supported a 

‘one to six percent’ false allegation rate”]; Wilson, at p. 568 [same expert and 

same testimony].) Lapenias, relying on Julian and Wilson, held it was error 

to admit expert testimony that it was “ ‘rare’ for children to make false 

allegations of sexual abuse.” (Lapenias, at p. 179.) 

We first reject the People’s contention that Oliva forfeited his challenge 

by failing to interpose contemporaneous objections to Killen-Harvey’s 

testimony, or by failing to present argument on each of Killen-Harvey’s 

assertions in his motion in limine. Oliva moved to exclude statistical 

probability testimony from Killen-Harvey under Julian and Wilson, and at 

trial was granted a continuing objection to his “entire testimony” based on 

the arguments and authorities in his motion in limine. Oliva “adequately 

alerted the court to the basis of [his] objection” to Killen-Harvey’s testimony, 

which was “sufficient to preserve the issue for review.” (People v. Stamps

(2016) 3 Cal.App.5th 988, 993, disapproved on another ground in People v. 

Veamatahau (2020) 9 Cal.5th 16, 31, fn.4.) 

We review Oliva’s claim of error for abuse of discretion: “the decision of 

a trial court to admit expert testimony ‘will not be disturbed on appeal unless 

a manifest abuse of discretion is shown.’ ” (People v. McAlpin (1991) 53 

Cal.3d 1289, 1299 (McAlpin).) We conclude the testimony challenged by 

Oliva is unlike the testimony held inadmissible in Julian, Wilson, and 

Lapenias, and that the trial court did not abuse its discretion in admitting it. 

We further conclude the admission of the testimony, even if erroneous, was 

not prejudicial. 
21

C. Analysis

Expert testimony to explain the behavior of child abuse victims, often 

known as CSAAS evidence, has long been held admissible in California for 

limited purposes: “[E]xpert testimony on the common reactions of child 

molestation victims is not admissible to prove that the complaining witness 

has in fact been sexually abused; it is admissible to rehabilitate such 

witness’s credibility when the defendant suggests that the child’s conduct 

after the incident—e.g., a delay in reporting—is inconsistent with his or her 

testimony claiming molestation.” (McAlpin, supra, 53 Cal.3d at p. 1300; see 

People v. Munch (2020) 52 Cal.App.5th 464, 468 [“CSAAS evidence has been 

admitted by the courts of this state since the 1991 McAlpin decision.”].) 

“ ‘Such expert testimony is needed to disabuse jurors of commonly held 

misconceptions about child sexual abuse, and to explain the emotional 

antecedents of abused children’s seemingly self-impeaching behavior.’ ”

(McAlpin, at p. 1301.)

Even so, the admissibility of such evidence is subject to certain 

recognized limits. Such evidence “is not admissible to prove that the 

complaining witness has in fact been sexually abused.” (McAlpin, supra, 53 

Cal.3d at p. 1300.) “ ‘The expert is not allowed to give an opinion on whether 

a witness is telling the truth[.]’ ” (Julian, supra, 34 Cal.App.5th at p. 885.)

Nor may an expert present “ ‘predictive conclusions.’ ” (Julian, supra, 

34 Cal.App.5th at p. 886, quoting Bowker, supra, 203 Cal.App.3d at p. 393.) 

The expert may not give “ ‘general’ testimony describing the components of 

the syndrome in such a way as to allow the jury to apply the syndrome to the 

facts of the case and conclude the child was sexually abused.” (Bowker, at p. 

393.) “It is one thing to say that child abuse victims often exhibit a certain 

characteristic or that a particular behavior is not inconsistent with a child 
22

having been molested. It is quite another to conclude that where a child 

meets certain criteria, we can predict with a reasonable degree of certainty 

that he or she has been abused. The former may be appropriate in some 

circumstances; the latter⎯given the current state of scientific 

knowledge⎯clearly is not.” (Ibid.) To ensure the jury does not misuse expert 

testimony about CSAAS, “at a minimum the [CSAAS] evidence must be 

targeted to a specific ‘myth’ or ‘misconception’ suggested by the evidence.” 

(Id. at pp. 393–394.) The jury must also be instructed “that the expert’s 

testimony is not intended and should not be used to determine whether the 

victim’s molestation claim is true.” (Id. at p. 394.)

Here, Oliva argues portions of Killen-Harvey’s testimony were 

inadmissible under Julian, Wilson, and Lapenias. In Julian, the 

prosecution’s expert witness was permitted to testify the “ ‘range of false 

allegations that are known to law enforcement or [Child Protective 

Services] . . . is about as low as one percent of cases to a high of maybe 6, 7, 8 

percent of cases that appear to be false allegations.’ ” (Julian, supra, 34 

Cal.App.5th at p. 883, italics omitted.) He was extensively examined about 

the percentages of false allegations reported in various studies. (Id. at 

pp. 883–884.) The Court of Appeal held it was error to admit this testimony. 

(Id. at p. 885.) It observed that under People v. Collins (1968) 68 Cal.2d 319, 

expert opinions on the statistical probability of guilt tend to “distract[ ]” the 

jury from its “ ‘requisite function of weighing the evidence on the issue of 

guilt.” (Julian, at p. 886, quoting Collins, at p. 327; see Collins, at pp. 325–

327 [prejudicially erroneous to permit a mathematics expert to testify, based 

on assumed characteristics of the perpetrators, there was “but one chance in 

12 million that defendants were innocent”].) It canvassed decisions from 

other jurisdictions prohibiting the use of statistics to quantify the percentage 
23

of children reporting sex abuse who are telling the truth. (Julian, at pp. 886–

887.) The court held the prosecution expert’s “92 to 99 percent [statistical]

probability evidence invited jurors to presume [the defendant] was guilty 

based on statistical probabilities” and deprived the defendant of his right to a 

fair trial. (Id. at p. 886.) 

Wilson involved the admission of virtually identical testimony from the 

same CSAAS expert in another child sex abuse case. At trial, the prosecutor 

asked the expert about false allegations of sex abuse, and he testified about a 

“ ‘classic’ ” study that found “ ‘about 4% of cases in which there was an 

allegation that was determined to be false.’ ” (Wilson, supra, 33 Cal.App.5th 

at p. 568.) The expert also testified “there were 12 to 15 other studies on the 

subject, which found false allegations in between 1 and 6 percent of cases.” 

(Ibid.) The Wilson court, relying on decisions of other states, federal courts, 

and military courts, held the numerical evidence provided by the expert was 

inadmissible. (Id. at pp. 568–570.) The expert’s testimony “had the effect of 

telling the jury there was at least a 94 percent chance that any given child 

who claimed to have been sexually abused was telling the truth” and 

suggested to the jury there was an “overwhelming likelihood [the victims’] 

testimony was truthful.” (Id. at p. 570.) “[T]his invaded the province of the 

jury in assessing a complaining witness’s credibility.” (Id. at p. 568.) 

In Lapenias, Division Three of the Fourth Appellate District, applying 

Julian and Wilson, held testimony from a CSAAS expert “that it is ‘rare’ for 

children to make false allegations of sexual abuse” was inadmissible. 

(Lapenias, supra, 67 Cal.App.5th at p. 179.) This “testimony—by implication 

and by inference—violated the general rule that an expert may not give an 

opinion as to whether another witness is telling the truth or the defendant is 

guilty.” (Ibid.) It went beyond the limited purpose of CSAAS testimony “to 
24

explain the typical behaviors of sexually abused children, such as delayed 

reporting” and “ ‘ “addressed whether children who claimed to be sexually 

assaulted lie.” ’ ” (Ibid.) The court rejected the People’s claim that Julian

and Wilson were distinguishable, reasoning there was “ ‘no meaningful 

distinction between giving a statistic that indicates that false allegations are 

rare and stating that children rarely make false allegations without explicitly 

quantifying the word “rare.” ’ ” (Lapenias, at pp. 179–180.) 

We disagree that the challenged portions of Killen-Harvey’s testimony 

fall within the principles articulated in Julian, Wilson, or Lapenias. In 

Julian and Wilson, the expert provided quantitative data about the low 

percentages of false allegations of sexual abuse, effectively conveying to the 

jury that extremely high percentages of children—between 92 and 99 percent 

(Julian) or 94 and 99 percent (Wilson)—who report sexual abuse are telling 

the truth. Here, Killen-Harvey did not present data from which the jury 

could infer an overwhelming percentage of child accusers tell the truth. And 

although in Lapenias, the court found Julian and Wilson applied even though 

the challenged testimony was qualitative, not quantitative (the expert said “it 

is ‘rare’ for children to make false allegations of sexual abuse” (Lapenias, 

supra, 67 Cal.App.5th at p. 179)), here, the testimony Oliva challenges did 

not address the frequency of false allegations of sexual abuse. KillenHarvey’s testimony is distinguishable from the testimony found inadmissible 

in Julian, Wilson, and Lapenias.

To the extent Oliva is effectively asking us to extend Julian, Wilson, 

and Lapenias and find they render Killen-Harvey’s testimony inadmissible 

even though he did not testify about the low prevalence of false allegations of 

sex abuse, we decline to do so. Oliva contends Killen-Harvey’s descriptions of 

patterns of behavior in sexually abused children improperly bolstered the 
25

victim witnesses’ credibility and thereby invaded the province of the jury. 

But the very purpose of expert testimony about the behavior of child sex 

abuse victims is to assist the jury in evaluating the credibility of the 

complaining witnesses. (McAlpin, supra, 53 Cal.3d at pp. 1302–1304.) 

Most of the testimony Oliva challenges fell within the scope of expert 

testimony that has been deemed admissible in McAlpin and other cases. 

Killen-Harvey’s testimony that “the vast majority of children actually know 

their offender” and the offender “is somebody they are in a relationship with” 

was offered in response to the prosecutor’s question whether there exists a 

typical profile that society has a tendency to picture when thinking of a child 

molester. Killen-Harvey explained, based on his experience training 

professionals about sex abuse, that “we still have in our culture” the idea that 

a child molester is a “stranger,” and then, in the testimony Oliva challenges, 

sought to counter this misconception. Testimony on this topic was held 

admissible in McAlpin. (See McAlpin, supra, 53 Cal.3d at pp. 1302–1303 [one 

of the popular notions that requires correction is that “ ‘[t]he layperson 

imagines the child offender’ ” to fit particular stereotypes, including that the 

offender is “ ‘a stranger’ ”].) 

The same is true of Killen-Harvey’s testimony about immediate 

disclosure of sex abuse, and inconsistent statements and false denials from 

abuse victims. These topics have been held by other courts to be within the 

scope of permissible expert testimony about CSAAS. (See, e.g., People v. 

Sanchez (1989) 208 Cal.App.3d 721, 734 [“delayed conflicted disclosure” is a 

symptom and characteristic of CSAAS], cited with approval in McAlpin, 

supra, 53 Cal.3d at p. 1301, fn. 4; People v. Stark (1989) 213 Cal.App.3d 107, 

117 [CSAAS expert testimony admissible to explain “concealment” by the 

alleged victim and “any conflict” in the alleged victim’s testimony], cited with 
26

approval in McAlpin, at p. 1301, fn. 4; People v. Housley, 6 Cal.App.4th 947, 

954–956 [expert testimony that “victims commonly and falsely recant their 

stories of abuse” admissible to explain victim’s recantation].) Although 

Killen-Harvey did not expressly identify a syndrome, his testimony was about 

the behavior, in general, of children who have been sexually abused, such 

that the case law regarding the admissibility of CSAAS evidence applies. 

(See footnote 7, ante.)

And while Killen-Harvey used qualitative phrases to describe these 

patterns of behavior (e.g., that “the vast majority of children” know their 

abuser; it is “the minority of cases” in which disclosure is immediate; false 

denials are not “common . . . but not unusual”; and that victims have a 

“limited capacity” to tell the same story “every single time”), his use of these 

phrases merely served to inform the jury of the extent to which the behavior 

he was describing was typical of sexually abused children. (See Lapenias, 

supra, 67 Cal.App.5th at p. 179 [acknowledging the purpose of CSAAS 

testimony is “to explain the typical behaviors of sexually abused children”].) 

This testimony did not suggest there was an “overwhelming likelihood” Jane 

1, Jane 2, or Jane 3 were truthful (Wilson, supra, 33 Cal.App.5th at p. 570), 

did not appear to vouch for their credibility (Lapenias, at p. 180), and did not 

effectively tell the jury that a child who meets the described criteria has been 

abused (Bowker, supra, 203 Cal.App.3d at p. 393). 

Killen-Harvey’s testimony that it “is highly unusual that the situation 

or report that we’re dealing with . . . is a onetime event” is not a topic of 

testimony specifically authorized by the case law of which we are aware. 

Even so, it did not violate the principles cited by Oliva. This testimony did 

not describe the infrequency of false allegations of abuse or suggest it was 

overwhelmingly likely Jane 1, Jane 2, and Jane 3 were truthful witnesses. 
27

(Cf. Julian, supra, 34 Cal.App.5th at p. 886; Wilson, supra, 33 Cal.App.5th at 

p. 570; Lapenias, supra, 67 Cal.App.5th at p. 179.) Nor did it amount to a 

predictive conclusion. A predictive conclusion has been described as 

“ ‘general’ testimony describing the components of the syndrome in such a 

way as to allow the jury to apply the syndrome to the facts of the case and 

conclude the child was sexually abused”—or, stated slightly differently, is 

testimony “that where a child meets certain criteria, we can predict with a 

reasonable degree of certainty that he or she has been abused.” (Bowker, 

supra, 203 Cal.App.3d at p. 393.) Here, no party claimed any of the children 

were abused just once. Jane 1, Jane 2, and Jane 3 testified to a pattern of

multiple sexual assaults over varying periods of time. Oliva denied there had 

been any abuse at all. The jury could not apply Killen-Harvey’s testimony 

about a “onetime event” to the facts of this case and conclude the sisters were 

sexually abused.

For all of these reasons, Oliva’s contention that Killen-Harvey’s 

testimony was inadmissible under principles articulated in Julian, Wilson, 

and Lapenias lacks merit. He fails to establish that the trial court’s 

evidentiary ruling constituted an abuse of discretion. But even if we were to 

conclude the court erred in admitting the challenged testimony, we would not 

find the error prejudicial. 

Oliva argues the admission of Killen-Harvey’s testimony violated his 

federal constitutional rights to due process, a fair trial, and to a conviction 

based on properly admitted evidence, such that we must assess the harm 

resulting from the error under the test set forth in Chapman v. California

(1967) 386 U.S. 18 (Chapman). That contention has already been rejected. 

In Wilson, the defendant also argued the erroneous admission of statistical 

evidence violated his federal constitutional rights and advocated that the 
28

prejudicial effect of the error had to be evaluated under Chapman. (Wilson, 

supra, 33 Cal.App.5th at p. 571.) The Court of Appeal disagreed: “In similar 

situations, . . . our high court has applied instead the standard of People v. 

Watson (1956) 46 Cal.2d 818, 836 [(Watson)], under which we reverse only if 

it is reasonably probable the defendant would have reached a more favorable 

result in the absence of the error.” (Ibid., citing People v. Bledsoe (1984) 36 

Cal.3d 236, 251–252.) We, like the Wilson court, will evaluate the prejudice 

flowing from the allegedly evidentiary error under the Watson standard.

Applying the Watson standard, we conclude any error flowing from 

admission of the challenged testimony was not prejudicial. Killen-Harvey 

made clear he had no information about the case and had not met the alleged 

victims. He told the jury his purpose in appearing as a witness was “not . . . 

to be the juror or to be siding on either side of the case.” The testimony Oliva 

challenges amounted to brief assertions within a direct examination that 

encompassed 33 pages of the trial transcript, unlike Julian, in which the jury 

was “bombarded” with expert testimony about statistical studies. (Julian, 

supra, 34 Cal.App.5th at p. 888.) All of the victims testified, as did Oliva, and 

the jury had the opportunity to evaluate their credibility as witnesses. 

Most of the testimony Oliva challenges on appeal was not relied on by 

the prosecutor in closing argument. The prosecutor did refer to KillenHarvey’s statement that false denials are not uncommon, but she did so just 

once, and only briefly. The court instructed the jury with a modified version 

of CALCRIM No. 1193 that told the jury: “Albert Killen-Harvey’s testimony 

about child sexual abuse is not evidence that the defendant committed any of 

the crimes charged against him.” And, “You may consider this evidence only 

in deciding whether or not the conduct of [Jane 1, Jane 2, and Jane 3] was 

not inconsistent with the conduct of someone who has been molested, and in 
29

evaluating the believability of their testimony.” The jury was also instructed 

they were the sole judges of “the credibility or believability of the witnesses” 

(CALCRIM No. 226) and they were not required to accept expert opinions 

(CALCRIM No. 332). “We presume the jurors understood and followed the 

instructions.” (Lapenias, supra, 67 Cal.App.5th at p. 180.) 

Oliva points out that the jury sought a readback of Jane 1 and Jane 2’s 

testimony about “ ‘threesomes.’ ” He asserts their testimony on this topic was 

conflicting and argues this supports a finding Killen-Harvey’s opinions were 

prejudicial. Not so. In response to the readback request, the trial court 

ordered the entire testimony of Jane 1 and Jane 2 to be read to the jury. The 

jury did not seek a readback of Killen-Harvey’s testimony. Though there 

were inconsistencies in the testimony of Jane 1 and Jane 2, in the main, their 

accounts of Oliva’s pattern of sexual abuse were mutually corroborative, and 

they were also corroborated by other witnesses. Jane 1 and Jane 2 described 

similar patterns of abuse escalating from forced oral copulation to regular 

sexual penetration at the family home and in vehicles that Oliva drove to 

remote parking lots. Jane 2 testified she saw Oliva take Jane 1 into his 

bedroom. Jane 1 and Jane 3 described similar experiences of being 

blindfolded by Oliva for forcible oral copulation. Aaron described the 

appearance and emotionality of Jane 1 and Jane 2 when they disclosed the 

abuse, allowing the jury to assess whether they were truthful in relating 

their experiences. Welch’s behavior following the disclosure, as reported by 

Aaron and Susan, was consistent with Jane 1 and Jane 2’s testimony that 

Welch did not protect them from Oliva or take their complaints seriously. 

On this record, we have no difficulty concluding it is not reasonably 

probable Oliva would have reached a more favorable result absent the alleged 
30

error in admitting the challenged portions of Killen-Harvey’s testimony. 

(Watson, supra, 46 Cal.2d at p. 836.) 

II.

Oliva’s Jurisdictional Challenge to His Conviction on Counts 3 and 4 Fails

A. Oliva’s Contentions 

Oliva contends his conviction on counts 3 and 4 must be vacated 

because the verdicts on these counts “likely” included acts over which the 

trial court had no territorial jurisdiction.8 Counts 3 and 4 charged Oliva 

with forcible lewd acts against Jane 1 when she was under the age of 14

years, between September 9, 2010 and July 4, 2013. (§ 288, subd. (b)(1).) 

These acts were described as sexual contact involving Oliva forcing Jane 1’s 

mouth onto his penis. Count 3 specified the offense conduct involved placing 

Jane 1’s “mouth onto D’s crotch area [first time].” Count 4 alleged the offense 

was committed by placing Jane 1’s “mouth onto D’s crotch area [last time].” 

The amended information alleged the charged offenses were committed in 

San Diego County. The jury was instructed pursuant to CALCRIM No. 3501 

on unanimity based on generic testimony of abuse.9 The jury returned 

8 Oliva only challenges his convictions on counts 3 and 4. He does not 

contend the jury’s verdicts on the other counts likely relied on acts outside 

the territorial jurisdiction of the court.

9 “Defendant Daniel Oliva is charged with forcible lewd act upon child; 

forcible oral copulation; forcible rape; and oral copulation with child 10 years 

old or younger sometime during the period of July 4, 2007 to October 31, 

2017. . . . 

“The People have presented evidence of more than one act to prove that 

the defendant[ ] committed these offenses. You must not find the defendant 

guilty unless:
31

verdicts of guilty on counts 3 and 4, finding the underlying acts occurred “on 

or about and between September 9, 2010 and July 4, 2013.” 

On appeal, Oliva argues the convictions on counts 3 and 4 must be 

vacated because the jury’s verdicts “likely included acts over which the trial 

court had no jurisdiction.” (Capitalization omitted.) Oliva’s arguments in 

support of his position are somewhat difficult to characterize. He asserts the 

time span alleged in counts 3 and 4 of the amended information covers a 

period of time (September 2010 through March 2012) when it is undisputed 

Jane 1 did not reside in California. He further asserts the trial court did not 

have territorial jurisdiction over the acts of oral copulation committed during 

that period, and the jury “necessarily had no authority to find [him] guilty of 

acts which occurred outside the State’s territorial jurisdiction.” He spends a 

considerable portion of his brief arguing that the three statutes that extend 

California’s territorial jurisdiction to extraterritorial acts (sections 27, 778 

and 778a) do not apply to the incidents of oral copulation that occurred in 

Texas and North Carolina. He contends it is “highly likely” the jury’s 

verdicts “included those acts.”

He then argues that the prosecutor’s closing argument and CALCRIM 

No. 3501 on unanimity “did not cure the error.” (Italics omitted.) He claims 

the prosecutor’s statement that counts 3 and 4 related to “ ‘the [oral 

“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.”
32

copulations] that [Jane 1] described when she was under the age of 14’ ” 

implied the oral copulations committed in Texas and North Carolina were 

included in the charges. He argues the unanimity instruction, which covered 

the period July 4, 2007 to October 31, 2017, “effectively told the jury it could 

consider [oral copulations] which occurred outside California,” and that “[t]he 

verdicts specifically state the jury found appellant guilty based on acts 

occurring ‘on or about and between September 9, 2010 and July 4, 2013.’ ” 

He contends the jury “easily could have relied on the Texas act as the basis 

for one verdict” because Jane 1 described it in detail, and the jury “likely” 

found the specificity persuasive. He concludes “it cannot be said there is 

substantial evidence from which to conclude the verdicts on counts 3 and 4 do 

not include acts . . . over which the trial court had no jurisdiction.” 

As we explain, Oliva’s contentions lack merit.

B. Analysis

“Territorial jurisdiction establishes the court’s authority to try the 

defendant[.]” (People v. Betts (2005) 34 Cal.4th 1039, 1050 (Betts).) In 

California, territorial jurisdiction over criminal acts is defined by statute. 

(Fortner v. Superior Court (2013) 217 Cal.App.4th 1360, 1364 (Fortner).) 

“The general rule of territorial jurisdiction over felonies is . . . stated in 

section 777: ‘except as otherwise provided by law the jurisdiction of every 

public offense is in any competent court within the jurisdictional territory of 

which it is committed.’ ” (Price v. Superior Court (2001) 25 Cal.4th 1046, 

1055.) Section 27 “generally permits the punishment of a defendant under 

California law for any crime committed ‘in whole or in part’ in the state.” 
33

(Betts, at p. 1047; § 27, subd. (a)(1).10) Under section 778, California has 

jurisdiction over crimes commenced outside the state but consummated 

within it.11 Under section 778a, subdivision (a),12 “California has territorial 

jurisdiction over an offense if the defendant, with the requisite intent, does a 

preparatory act in California that is more than a de minimis act toward the 

eventual completion of the offense.” (Betts, at p. 1047.) 

If a superior court lacks territorial jurisdiction over an offense, it “has 

no authority to act in the matter and cannot enter judgment either in favor of 

or against the defendant.” (Betts, supra, 34 Cal.4th at p. 1050.) However, 

“the absence of territorial jurisdiction does not signify the defendant is not 

culpable.” (Ibid.) “Thus, if it appears, after a jury has been empaneled, that 

a court is without jurisdiction to try the defendant, the court is directed by 

statute to discharge the jury and the defendant [citations], not to enter 

judgment in the defendant’s favor.” (Ibid.) 

10 “All persons who commit, in whole or in part, any crime within this 

state” are “liable to punishment under the laws of this state.” (§ 27, subd. 

(a)(1).)

11 “When the commission of a public offense, commenced without the 

State, is consummated within its boundaries by a defendant, himself outside 

the State, through the intervention of an innocent or guilty agent or any 

other means proceeding directly from said defendant, he is liable to 

punishment therefor in this State in any competent court within the 

jurisdictional territory of which the offense is consummated.” (§ 778.)

12 “Whenever a person, with intent to commit a crime, does any act within 

this state in execution or part execution of that intent, which culminates in 

the commission of a crime, either within or without this state, the person is 

punishable for that crime in this state in the same manner as if the crime 

had been committed entirely within this state.” (§ 778a, subd. (a).) 
34

Several matters relevant to our consideration of Oliva’s claim are not in 

dispute. The parties agree the date range in counts 3 and 4 of the amended 

information (“[o]n or about and between September 9, 2010 and July 4, 

2013”) charging Oliva with forcible lewd act on a child under 14 encompassed 

a period when Jane 1 and Oliva were living outside California (2010 until 

March 2012) and a period when they were living in California (March 2012 to 

July 4, 2013). At all times alleged in counts 3 and 4, Jane 1 was under 14 

years old. The parties also agree Jane 1 testified to multiple acts of forcible 

oral copulation in Texas, including the sexual assault in the U-Haul truck,

and North Carolina between 2010 and March 2012.13 She also testified after 

the family returned to Oceanside in March 2012, Oliva continued to put his 

penis in her mouth, and that this occurred more than once when she was in 

seventh grade and 13 years old, between March 2012 and July 4, 2013. The 

parties also agree that sections 27, subdivision (a)(1), 778, and 778a, 

subdivision (a), did not confer the superior court with jurisdiction over any 

acts of forcible oral copulation committed in Texas and North Carolina. 

Where the parties diverge is in describing the procedural point at 

which the alleged jurisdictional error occurred. Questions of territorial 

jurisdiction are decided by the trial court, not the jury. (Betts, supra, 34 

Cal.4th at p. 1054 [no right to jury trial on factual questions that establish 

jurisdiction].) “ ‘[A] challenge to a court’s fundamental subject matter 

13 Evidence of these uncharged crimes was admitted pursuant to 

Evidence Code section 1108, over the defense objection they were subject to 

exclusion under Evidence Code section 352 and would violate his federal and

state constitutional rights of due process, fair trial, confrontation, crossexamination, and presentation of evidence. The jury was instructed under 

CALCRIM No. 1191A on the use of evidence of uncharged sex offenses. Oliva 

does not challenge the admission of this evidence.
35

jurisdiction strikes at the very foundation of the court’s authority and 

therefore should be determined pretrial by the court as a matter of law.” (Id.

at p. 1051, italics added.) “The existence of territorial jurisdiction may [also] 

be ‘decided by the trial court on a motion for entry of a judgment of acquittal 

pursuant to section 1118.1.’ ” (People v. Joseph (2021) 63 Cal.App.5th 1058, 

1068, quoting Betts, at p. 1048.) 

Oliva does not clearly specify when he contends the alleged error was 

committed. He contends the trial court “could not pronounce judgment” on 

acts occurring in Texas or North Carolina, and “the jury’s verdict” could not 

be based on such acts. As the People point out, however, jurisdiction is a 

question to be addressed by the trial court. Oliva concedes the trial court was 

not presented with a motion or objection that counts 3 and 4 of the amended 

information encompassed conduct outside its territorial jurisdiction.14 At 

the same time, he cites Fortner, supra, 217 Cal.App.4th at page 1364, for the 

proposition that our review is for substantial evidence. In Fortner, the 

defendant sought writ relief after the superior court overruled his demurrer 

and denied his motion to dismiss offenses committed in Hawaii on 

jurisdictional grounds. (Id. at pp. 1362–1363.) The appellate court 

“defer[red] to the superior court’s factual findings” but ultimately concluded 

14 The amended information originally included counts 1 and 2 charging 

Oliva with oral copulation with a child 10 years old or younger, committed 

against Jane 1 at Camp Pendleton between July 4, 2007 and July 4, 2009. 

Before the jury was empaneled, the court granted the prosecutor’s unopposed 

motion to dismiss these counts for lack of territorial jurisdiction on the 

ground Camp Pendleton is a federal enclave subject to exclusive federal 

criminal jurisdiction. Neither the prosecution nor the defense moved to 

amend the date range alleged in counts 3 and 4 and no objection was raised 

that counts 3 and 4 encompassed acts occurring outside San Diego County.
36

there was no evidence to support them. (Id. at pp. 1363–1367; cf. Betts, 

supra, 34 Cal.4th at p. 1055 [“We will uphold a trial court’s determination on 

factual issues if supported by substantial evidence and review its legal 

determinations independently.”].) 

Here, unlike Fortner, no pretrial or posttrial jurisdictional challenge 

was filed, and consequently there are no factual findings, express or implied, 

to review for substantial evidence. Moreover, although Oliva advocates for 

substantial evidence review, his asserted lack of substantial evidence 

arguments focus in large part on the CALCRIM No. 3501 unanimity 

instruction, which is not evidence. His arguments are less like substantial 

evidence arguments and more like the arguments parties generally advance 

to establish the prejudice of an alleged error. 

The People contend Oliva’s appellate challenge more nearly resembles 

a claim that the CALCRIM No. 3501 unanimity instruction, which told the 

jury Oliva was charged with offenses committed between July 4, 2007 to 

October 31, 2017, likely misled the jurors to convict him based on acts of 

forced oral copulation that occurred outside California. We agree with this 

interpretation of Oliva’s appellate challenge. It fits the procedural posture of 

this case: no party alerted the trial court to the overbreadth in the date 

range alleged in counts 3 and 4 of the amended information; the case 

proceeded to trial; and the jury rendered a verdict of guilty on counts 3 and 4. 

It also fits the thrust of Oliva’s arguments: he contends neither the verdict 

nor the resulting judgment could rest on extraterritorial acts; he relies on the 

date range in the unanimity instruction and, correspondingly, in the verdict 

form, to support his position the jury based its verdict on forcible oral 

copulations that occurred outside California. Moreover, although Oliva filed 
37

a reply brief on appeal, he did not dispute the People’s characterization of his 

position. 

We agree with the People that Oliva’s appellate challenge is properly 

construed as a challenge to the unanimity instruction. However, we disagree 

with the People’s contention this challenge has been forfeited. “A claim of 

fundamental jurisdictional defect is not subject to forfeiture or waiver.” 

(People v. Hoyt (2020) 8 Cal.5th 892, 911.) “We are therefore obligated to 

address the claim.” (Ibid.) Pursuant to Betts, an appellate court reviews the 

factual issues pertinent to territorial jurisdiction for substantial evidence and 

reviews the relevant legal issues independently. (Betts, supra, 34 Cal.4th at 

p. 1055; see People v. Posey (2004) 32 Cal.4th 193, 218 [independent standard 

of review applies when assessing alleged error in a jury instruction].) 

Here, the unanimity instruction stated, in relevant part: “Defendant 

Daniel Oliva is charged with forcible lewd act upon child; forcible oral 

copulation; forcible rape; and oral copulation with child 10 years old or 

younger sometime during the period of July 4, 2007 to October 31, 2017.” 

(Italics added.) The question is whether this date range was susceptible to 

the interpretation that Oliva was criminally liable for acts of forcible oral 

copulation outside the territorial jurisdiction of the superior court. As we 

have noted, the parties do not dispute the acts of forcible oral copulation 

described by Jane 1 as having occurred in Texas and North Carolina were 

committed between 2010 and March 2012. And the People concede the 

relevant jurisdictional statutes did not give the superior court jurisdiction

over these offenses. We agree. No evidence was presented that any part of 

the Texas or North Carolina incidents, including consummation of the 

offenses or formation of the intent to commit the offenses, was committed in 

California. (Cf. §§ 27, subd. (a)(1), 778, 778a, subd. (a).) Thus, the date range 
38

in the instruction was overbroad, because it encompassed dates when Oliva 

committed acts of forcible oral copulation that were not within the territorial 

jurisdiction of the superior court. 

The next question is whether this error in the instruction was 

prejudicial. Oliva does not identify a standard for assessing harmlessness. 

The People argue any error in the instruction was harmless under Watson or 

Chapman. We will apply the Chapman standard, under which “[t]he 

reviewing court must reverse the conviction unless, after examining the 

entire cause, including the evidence, and considering all relevant 

circumstances, it determines the error was harmless beyond a reasonable 

doubt.” (People v. Aledamat (2019) 8 Cal.5th 1, 13 (Aledamat).) 

Chapman is the test that applies when appellate courts consider the 

harmlessness of alternative-theory instructional error⎯that is, instructing 

the jury on two theories of guilt, one valid and one invalid⎯where one of the 

alternate theories violates the federal constitution. (See Aledamat, supra, 8 

Cal.5th at pp. 9–13; Betts, supra, 34 Cal.4th at p. 1046 [discussing 

constitutional limits of state court exercise of jurisdiction in criminal 

matters].) The overbreadth in the unanimity instruction here is an 

analogous form of instructional error because it permitted the jury to reach a 

verdict on grounds that were legally permissible (i.e., based on offenses 

within the territorial jurisdiction of the superior court) and legally 

impermissible (i.e., based on offenses outside the court’s territorial 

jurisdiction). The Chapman standard for determining harmless error is 

“more stringent” than the Watson standard. (See People v. Nicolas (2017) 8 

Cal.App.5th 1165, 1179.) If the overbreadth in the instruction was harmless 

beyond a reasonable doubt, it was necessarily harmless under Watson.
39

Applying the Chapman standard here, we conclude the instructional 

error was harmless beyond a reasonable doubt. We agree with Oliva that to 

the extent the date range in the unanimity instruction was overly broad such 

that it encompassed acts of forcible oral copulation committed in Texas and 

North Carolina as well as acts of forcible oral copulation committed after the 

family returned to California, the language of the general verdicts on counts 

3 and 4 did not cure the error. The verdicts on counts 3 and 4 stated the jury 

found Oliva guilty of violating section 288, subdivision (b)(1), “on or about 

and between September 9, 2010 and July 4, 2013, as charged in [Count 

Three/Count Four] of the Amended Information.” As Oliva has urged, this 

date range, like the date range in the unanimity instruction, included the 

period when Jane 1 and Oliva were in Texas and North Carolina, as well as 

the period after they returned to California when Jane 1 was still under 14. 

But other circumstances support the conclusion the instructional error 

was harmless. The prosecutor told the jury all charges against Oliva were

based on conduct committed in Oceanside. (See Aledamat, supra, 8 Cal.5th 

at p. 14 [considering arguments of counsel in assessing harmlessness of 

instructional error].) In walking the jury through the evidence supporting 

counts 3 and 4, the prosecutor repeatedly emphasized the acts of forcible oral 

copulation that were committed in Oceanside. The prosecutor told the jury 

the evidence supporting Oliva’s conviction on these counts was Jane 1’s 

testimony about “[o]ral sex, [oral copulation], more than once in the seventh 

grade” and told the jury “she said it was more than one time, at least in the 

seventh grade.” The prosecutor repeatedly told the jury that Jane 1 was 13 

years old at the time of the first charged act (i.e., count 3). Referring to the 

section 288, subdivision (b)(1), requirement that the victim must be under 14, 

the prosecutor stated, “in the seventh grade, [Jane 1] would have been 13 
40

years old. . . . And when she says more than once in the seventh grade, she 

was under 14. [¶] Because of that, members of the jury, . . . we know that 

counts 3 and 4 have been met.” The jury was repeatedly made aware of the 

prosecutor’s factual basis for counts 3 and 4. 

The evidence in the record, coupled with the jury’s verdicts, further 

support a finding of harmless error. At trial, Jane 1 testified she was 

sexually abused by Oliva for 10 years, and that the abuse consisted of forcible 

oral copulation and sexual intercourse. She testified she was forced to orally 

copulate Oliva in Texas and North Carolina, and that Oliva continued to 

force her to orally copulate him after March 2012 when the family settled in 

Oceanside, on multiple occasions when she was under 14 years old and when 

she was over 14 years old. She also testified that Oliva started vaginally 

penetrating her in North Carolina, and continued these acts after March 

2012 in California. Oliva denied having any sexual contact at all with 

Jane 1. The jury’s verdicts finding Oliva guilty on all charged counts 

involving Jane 1 reveal it believed Jane 1’s testimony about the sexual

contacts and disbelieved Oliva. 

Further still, the jury returned guilty verdicts on counts 7 and 8 (oral 

copulation by force, fear or threats; former § 288a, subd. (c)(2)(A), now § 287, 

subd. (c)(2)(A)). In doing so, the jury found Oliva committed acts of forcible 

oral copulation against Jane 1 between July 4, 2013 and July 4, 2017, a time 

frame when Jane 1 was 14 years old or older, and the family was living in 

Oceanside. It is not possible, on this record, for a reasonable jury to find

Oliva committed acts of forcible oral copulation against Jane 1 in Texas and 

North Carolina, but not in Oceanside before she turned 14. Stated 

differently, “ ‘[n]o reasonable jury that made all of these findings could have 

failed to find’ ” Oliva committed more than one act of forcible oral copulation 
41

against Jane 1 in Oceanside when she was under 14. (See Aledamat, supra, 8 

Cal.5th at p. 15.) 

The error was harmless beyond a reasonable doubt.

III.

The Portion of the Criminal Justice Administration Fee That Remained 

Unpaid as of July 1, 2021 Shall Be Vacated

At the sentencing hearing, the trial court ordered Oliva to pay a 

criminal justice administration fee of $154 pursuant to now-repealed 

Government Code section 29550.1. The abstract of judgment incorrectly

reflects a $300 criminal justice administration fee. 

Pursuant to Assembly Bill No. 1869, as of July 1, 2021, the statutory 

provision pursuant to which Oliva was ordered to pay the $154 criminal 

justice administration fee was repealed and newly-enacted Government Code 

section 6111 became effective. (Assem. Bill No. 1869 (2019–2020 Reg. Sess.) 

§ 11; see People v. Lopez-Vinck (2021) 68 Cal.App.5th 945, 950 (Lopez-Vinck).) 

Under Government Code section 6111, subdivision (a), “On and after July 1, 

2021, the unpaid balance of any court-imposed costs pursuant to Section 

27712, subdivision (c) or (f) of Section 29550, and Sections 29550.1, 29550.2, 

and 29550.3, as those sections read on June 30, 2021, is unenforceable and 

uncollectible and any portion of a judgment imposing those costs shall be 

vacated.” 

Although Oliva is not entitled to vacatur of the entire $154 criminal 

justice administration fee, as he contends, he is entitled to the vacatur of that 

portion of the criminal justice administration fee imposed pursuant to former

Government Code section 29550.1 that remains unpaid as of July 1, 2021, 

and to the modification of his judgment consistent with such vacatur. (LopezVinck, supra, 68 Cal.App.5th at p. 953.) However, because we must remand 
42

with instructions to the trial court to correct the abstract of judgment because 

it does not reflect the judgment as it was pronounced (it reflects a $300 

criminal justice administration fee, whereas the judgment as orally 

pronounced reflected a $154 criminal justice administration fee), we shall 

also instruct the court to correct the abstract of judgment to reflect vacatur of 

any balance of the $154 fee that remained unpaid as of July 1, 2021.15 

DISPOSITION

The portion of the $154 criminal justice administration fee imposed by 

the court pursuant to Government Code former section 29550.1 that 

remained unpaid as of July 1, 2021, is vacated. As modified, the judgment is 

affirmed.

The matter is remanded to the trial court with directions to correct the 

abstract of judgment to reflect that the amount of the criminal justice fee 

originally imposed was $154, and to reflect the vacatur of any balance of the 

$154 fee that remained unpaid as of July 1, 2021. The court shall forward a 

15 In reviewing the abstract of judgment, we noted additional apparent 

errors. On the one hand, section 1 of the abstract of judgment (starting at 

page 1, and continuing on the attachment) reflects imposition of consecutive 

sentences on counts 3 through 18. On the other hand, section 6(a) of the 

abstract of judgment reflects consecutive sentences on counts 3 through 17 

(not 18). And section 16 of the abstract reflects that the terms on counts 3 

through 17 (not 18) are consecutive to the term on count 21. At the 

sentencing hearing, the court ruled that “separate consecutive terms are 

required” on counts 3 through 18 and 21. The trial court’s oral 

pronouncement of judgment controls over the abstract of judgment. (People 

v. Mitchell (2001) 26 Cal.4th 181, 185–188.) “Courts may correct clerical 

errors at any time[.]” (Id. at p. 185.) Upon remand, if necessary, the court 

may, and indeed should, correct the noted discrepancies in the abstract of 

judgment to ensure it accurately reflects the sentence imposed. (See ibid. [“It 

is, of course, important that courts correct errors and omissions in abstracts 

of judgment.”].)
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copy of the corrected abstract of judgment to the Department of Corrections 

and Rehabilitation.

DO, J.

WE CONCUR:

HUFFMAN, Acting P. J.

O'ROURKE, J.