Filed 3/29/24 P. v. Nukida CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

TIM MAKOTO NUKIDA,

Defendant and Appellant.

 H050513

 (Santa Cruz County

 Super. Ct. No. 20CR03181) 

In 2022, a jury found defendant Tim Makoto Nukida guilty of 19 counts stemming 

from his sexual abuse of a child on various occasions over a period of seven years. The 

victim in all counts, Jane Doe, was Nukida’s stepdaughter. The trial court sentenced 

Nukida to a total aggregate term of 112 years and eight months in prison. 

On appeal, Nukida raises the following arguments related to his trial: (1) the trial 

court erred in admitting expert testimony about Child Sexual Abuse Accommodation 

Syndrome (CSAAS); and (2) the trial court erred in instructing the jury on CSAAS with 

an incorrect version of CALCRIM No. 1193. With respect to his sentence, Nukida 

argues: (1) his aggregate sentence of 112 years and eight months is cruel and unusual 

under the United States and California Constitutions; and (2) the trial court erred in 

ordering him to pay a $20,000 restitution fine, which exceeded the maximum fine 

permitted under Penal Code1section 1202.4, subdivision (b). The Attorney General 

1 Undesignated statutory references are to the Penal Code.
2

concedes that the court may have erred in its imposition of the restitution fine but argues 

that the matter should be remanded for the trial court to clarify the record regarding the 

applicable statute for the fine and correct the amount ordered only if necessary. 

For the reasons explained below, we reverse the $20,000 restitution fine and 

remand for the trial court to clarify the statutory basis for the fines ordered and exercise 

its discretion within the limits of that statute. In all other respects, we affirm. 

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Charges, Trial, and Sentencing 

On September 12, 2022, the Santa Cruz County District Attorney’s Office filed a 

first amended information charging Nukida with 19 criminal counts as follows: six counts 

of committing a lewd act upon a child under the age of 14 (§ 288, subd. (a); counts 1-2, 

6-7, 17-18); 12 counts of committing a forcible lewd act upon a child under the age of 14 

(§ 288, subd. (b)(1); counts 3-5, 8-16); and one count of committing a lewd act upon a 

child between the ages of 14 and 15 years old and 10 or more years younger than Nukida 

(§ 288, subd. (c)(1); count 19). 

On September 14, 2022, after a 12-day trial, the jury found Nukida guilty on all 19 

counts as charged. 

On October 19, 2022, the trial court sentenced Nukida to an aggregate term of 112 

years and eight months in prison. Nukida’s sentence consisted of the following: 12 

consecutive terms of the middle term of eight years for committing a forcible lewd act 

upon a child under the age of 14 (counts 3-5, 8-16); the middle term of six years on one 

count of committing a lewd act against a child under the age of 14 (count 1); six 

consecutive terms of two years (one-third the middle term of six years) for committing a 

lewd act upon a child under the age of 14 (counts 2, 6-7, 17-18); and one consecutive 

term of eight months (one-third the middle term of 24 months) for committing a lewd act 

upon a child between the ages of 14 and 15 years old and 10 or more years younger than 

Nukida (count 19). 
3

In addition, the trial court imposed a restitution fine of $20,000,2an additional 

parole revocation fund fine of $20,000, suspended pending successful completion of 

parole (§§ 1202.4, subd. (b), 1202.45), and victim restitution. 

Nukida timely appealed. 

B. Factual Background

1. Prosecution’s Case 

a. Nukida’s Relationship with Jane Doe 

Nukida began dating Jane Doe’s mother, E.V.3in 2007 after E.V. separated from 

Jane Doe’s father. That same year, E.V., Jane Doe, and Jane Doe’s brother, I.V. moved 

in with Nukida. E.V. and Nukida married in approximately 2008 or 2009, at which time 

Nukida began financially supporting E.V. and her children. In August 2008, Nukida, 

E.V., I.V., and Jane Doe moved to the Almaden Lake Apartments in San Jose (Almaden 

Lake) where they resided for approximately three years. 

b. Jane Doe’s Testimony 

Jane Doe was approximately six years old when the family moved to Almaden 

Lake and slept in her own room at the end of the hall. After moving to Almaden Lake, 

Nukida began entering Jane Doe’s bedroom early on some mornings, undressing her, and 

touching her back and buttocks. Jane Doe woke up when Nukida came into her bedroom 

on the first occasion, but kept her eyes closed as he undressed her. Nukida continued to 

engage in this behavior once or twice a month, and on occasion, he also took off his 

2 On the record, the trial court stated that it was imposing $20,000 in “fines” 

without specifying the type of fines or an applicable statute. However, the minute order 

states that this was a restitution fund fine pursuant to “1202.4 PC,” which presumably 

was a reference to section 1202.4, subdivision (b)(1). 

3 We refer to the witnesses in the proceedings by their initials only to protect their 

personal privacy interests pursuant to California Rules of Court, rule 8.90(b)(10), (11). 
4

pants, touched Jane Doe’s vaginal area, and pressed his penis against her vagina. 

Afterwards, Nukida got dressed, helped Jane Doe get dressed, and left the room. 

On one occasion, Jane Doe was by herself folding laundry in the Almaden Lake 

laundry room when Nukida came in and began talking with her. Nukida then closed the 

door, pulled his pants down to his ankles, and tried to push Jane Doe’s head down 

towards his penis while holding it up in one hand. Jane Doe pulled away and left the 

room. Nukida also approached Jane Doe approximately three to five times in the kitchen 

at Almaden Lake, “groped” her, and touched her buttocks and vaginal area over her 

clothes. On some of these occasions, other people, including E.V., were in the apartment 

but in another room. 

Jane Doe stated that Nukida’s contact was “unwanted,” and she was confused and 

did not fully understand what was going on. At the time, she did not tell anyone what 

had happened. 

In 2011, the family moved from Almaden Lake to a house on Tabor Drive in 

Scotts Valley (Tabor house). Jane Doe’s bedroom was upstairs, while the master 

bedroom, which was shared by E.V. and Nukida, was downstairs. While living at the 

Tabor house, Nukida often led Jane Doe downstairs into the closet of the master bedroom 

and closed the door. Once they were inside the closet, Nukida took off Jane Doe’s 

clothes and occasionally took off his own clothes, then touched Jane Doe’s vagina and 

his penis. He frequently placed Jane Doe’s hand on his penis and directed her to rub it. 

Jane Doe also testified that at least once a month while in the closet, Nukida would hug 

Jane Doe from behind and “grind” into her by rubbing his groin on her hip or buttocks. 

A few times each month, after Nukida brought Jane Doe down into the master 

bedroom, he undressed her and himself, leaned Jane Doe on her back over the bed, and 

pressed his penis into her inner thigh and near her vaginal area to simulate having sex 

with her, although he did not actually place his penis inside her vagina. While he did 
5

this, Nukida occasionally made grunting noises or kissed Jane Doe on her cheek or lips, 

but never said anything to her. The interactions lasted approximately five to ten minutes. 

On several occasions, while Jane Doe was watching television with Nukida in the 

living room, Nukida moved closer to her and either put her hand on his penis over his 

pants or unzipped his pants and put her hand directly on it. Nukida also came into the 

bathroom three times while Jane Doe was taking a bath, opened the shower curtain, and 

looked at Jane Doe while she was naked; on one such occasion, he kneeled over the bath 

and touched Jane Doe’s thigh. After these incidents, Jane Doe began locking the door 

while taking a bath. 

Jane Doe estimated that overall, she experienced unwanted touching by Nukida on 

a weekly basis while the family lived at the Tabor house. However, she did not tell E.V. 

about what was happening because she was afraid Nukida would stop supporting them 

financially. Nukida also expressed to her at one point that the extra attention and 

physical touching were his way of making up for the lack of attention Jane Doe got from 

her parents, who were more focused on her brother I.V. 

In approximately 2014 when Jane Doe was 12, Nukida lost his job and could no 

longer pay the mortgage on the Tabor home, resulting in the family moving to a smaller 

mobile home park in Scotts Valley. During this time, Jane Doe and I.V. initially stayed 

alone with Nukida in the mobile home, while E.V. stayed in San Jose. While living in 

the mobile home, Nukida touched Jane Doe over her clothes in her buttocks, chest, and 

vaginal area while in the kitchen; Jane Doe occasionally “froze” when this happened, but 

on some occasions, she exited the kitchen immediately. Nukida also attempted to lead 

Jane Doe into the master bedroom and touch her, but she stopped him right away and left. 

On one occasion while Jane Doe was already in the master bedroom, Nukida came in, 

closed the door, and tried to take Jane Doe’s clothes off, but did not succeed because she 

left the room. At this point, Jane Doe knew what was happening was wrong, and she felt 
6

“dirty.” However, she still felt unable to speak up and tell E.V. because of the potential 

consequences, including the possible loss of Nukida’s financial support. 

In 2015, E.V. and Nukida divorced, and Jane Doe and I.V. moved with E.V. to an 

apartment on Gilda Way in San Jose. Nukida continued residing in Scotts Valley, but 

still kept in contact with E.V. and interacted with the family on occasion. However, Jane 

Doe did not regularly socialize with Nukida at this time as she was often busy or chose 

not to go with the rest of the family when they met him. However, on one occasion, 

Nukida came to the Gilda Way apartment to meet E.V. while Jane Doe was there alone. 

After letting him in, Jane Doe went to change for volleyball practice when Nukida came 

into her room, pulled down her shorts, and began touching her buttocks. Nukida also 

touched Jane Doe’s chest through her clothes. Jane Doe indicated that she initially just 

stood still, then “snapped out of it,” pulled up her shorts, and left shortly after. This was 

the final occasion that Nukida touched Jane Doe in a sexual manner. 

c. Discovery of Sexual Conduct 

On March 16, 2019, Jane Doe attended I.V.’s birthday party, which was held at 

Nukida’s mobile home in Scotts Valley. At the time, I.V. was residing in the mobile 

home with Nukida. After drinking some alcohol and becoming inebriated, Jane Doe 

began crying and revealed to I.V. that Nukida had touched her and engaged in 

inappropriate behavior. According to I.V., Jane Doe was “in distress” and crying in a 

manner he had never seen before. I.V. was very angry and tried to find out more 

information from Jane Doe, but she did not provide further details. I.V. did not confront 

Nukida with Jane Doe’s allegations, but began avoiding him while continuing to live with 

him. 

In March 2020, E.V. lost her job due to the COVID-19 pandemic. As a result, 

E.V. could no longer keep her apartment in Aptos, where she and Jane Doe were living, 

and Jane Doe had to move in with her father. After Nukida offered that E.V. move in 

with him, E.V. decided to accept his offer and informed Jane Doe that she (E.V.) would 
7

be moving in with Nukida. Jane Doe was very frustrated to hear this and told E.V. 

“ ‘don’t do this,’ ” that Nukida did not deserve E.V., and that she was making a mistake. 

When E.V. questioned her further, Jane Doe finally revealed that Nukida had touched her 

inappropriately in a sexual manner in the past “behind closed doors.” E.V. indicated that 

Jane Doe was very upset and asked E.V. to forgive her because she “ ‘didn’t know [she 

was] doing [or] what was going on.’ ” According to Jane Doe, E.V. was very shocked by 

the news and that she had not noticed anything for so many years; as a result, she did not 

move in with Nukida. 

In April 2020, Jane Doe spoke with I.V. again about Nukida’s past behavior with 

her and asked him to move out of Nukida’s home. I.V. subsequently moved out a few 

months later in July 2020. Before moving out, I.V. confronted Nukida about Jane Doe’s 

allegations. 

After speaking with E.V., Jane Doe told her father about the sexual abuse and 

reported it to the Scotts Valley Police Department on April 16, 2020. 

d. Pretext Phone Call and Meetings 

After Jane Doe reported the sexual abuse to the police, the investigating officer, 

Officer Justin Milroy, arranged for her to make a pretext phone call to Nukida.4 During 

the call, Nukida began talking immediately and indicated that he wanted to contribute 

$10,000 per year towards her college expenses as a gift to her. Nukida also offered to 

give Jane Doe his car after he purchased a new one. Jane Doe then said, “I’ve had a lot 

of time to think recently...and I just need some closure, um, about some things that 

happened between you and me when, um, when we lived together.” Nukida responded, 

“[d]o you want to come over? Um, right now? I’d rather not talk about anything, you 

know, over the phone.” Jane Doe indicated that she “didn’t want to make a big deal 

4 As described by Milroy, a pretext call is frequently used in sexual assault cases, 

where the victim calls the suspect and attempts to engage him or her in a conversation to 

see if the suspect makes any incriminating statements or acknowledges the assault. 
8

about it” and repeated that she was seeking “closure.” Nukida again responded that he 

wanted to “discuss face to face,” and not over the phone. The call ended shortly 

thereafter. 

After the call, Jane Doe agreed to meet Nukida at a park in Scotts Valley. During 

the meeting, Milroy parked nearby in an unmarked vehicle, where he could still see Jane 

Doe, and equipped Jane Doe with a recording device to record the conversation. During 

their conversation, Jane Doe asked Nukida why he “did the things [he] did” to her 

because she was “so little” and didn’t understand what was happening. Nukida replied 

that he “[didn’t] understand it either.” When Jane Doe attempted to discuss specific 

details about the location and number of times the assaults occurred, Nukida repeatedly 

stated “no, no, no.” Jane Doe then asked Nukida to “not pretend” that nothing happened, 

to which Nukida responded that he was “not saying [he was] pretending.” Nukida then 

claimed it was due to “his psyche,” that he “didn’t know what to say,” and repeatedly 

apologized to Jane Doe. When Jane Doe asked him if he deserved punishment and 

should go to jail, Nukida responded, “Yes, if that’s what it takes.” 

At Milroy’s request, Jane Doe agreed to another meeting with Nukida in May 

2020. Nukida met Jane Doe in her parked vehicle, while Milroy parked approximately 

four to five car lengths in front and equipped Jane Doe with two recording devices. 

During this conversation, Nukida began apologizing to Jane Doe for various events that 

had happened over the years, and repeated his offer to contribute $10,000 a year towards 

Jane Doe’s college expenses. Nukida also offered for Jane Doe and E.V. to move into his 

home. When Jane Doe asked Nukida about what happened when she previously lived 

with him, Nukida responded that he was “sorry” and did not know what he could do. 

Nukida then spoke at length about a cycle of abuse that began with him observing his 
9

mother abuse his sister. He also talked about an incident during his childhood where he 

was lost in a graveyard. He then stated: 

“Some things I just don’t understand. Why some things happened. I wonder if some of it 

is psychological, you know, psychological, that’s deep-rooted trauma that happened way 

back...Something just something just clicked inside or something. I don’t know. It’s just 

too much, too much of a pattern there. So, I’m not using any of this as an excuse. I 

apologize for my behavior and I want I want to know what I can help with, what I can do, 

because I really care about you. And I want to make sure you’re well the rest of your 

life. Whatever way I can do to help you uh get closure to that, to overcome that. I want 

to help. If you want me to uh go to jail that’s fine too. I can do that.” 

 When Jane Doe indicated she was suffering from flashbacks, Nukida offered to 

“kill himself” and told Jane Doe to “just tell [him] what to do” to help her. Jane Doe 

attempted to discuss the various incidents of sexual abuse with Nukida, but Nukida 

responded that he “[didn’t] understand it,” and “[didn’t] recall” the first time he went into 

Jane Doe’s room when she was six or seven years old. He repeated that he “didn’t 

understand” when Jane Doe asked him what his intentions were during the incidents of 

unwanted touching, why he had molested her, and whether she had done anything to “call 

this attention.” Jane Doe told him that she felt his offer to pay for her college tuition was 

an attempt to buy her silence, which Nukida denied. Nukida then suggested he see a 

hypnotist to find out what really happened, and again stated that he would kill himself if 

Jane Doe asked him to. As Jane Doe again attempted to talk to Nukida about the various 

incidents, Nukida continued to state that he “didn’t understand it.” Finally, Nukida stated 

that he hoped there was “no government mind control going on,” and spoke about “hightech mind control.” 
10

Nukida ultimately stated that he would go to jail if Jane Doe wanted him to, 

because his life “was pretty much over.” He then stated that he planned to leave 

everything to Jane Doe and her family, and offered to sign a will if she wrote up for him. 

e. CSAAS evidence 

Dr. Anthony Urquiza testified as an expert on child sexual abuse and child sexual 

abuse accommodation syndrome (CSAAS). Dr. Urquiza defined CSAAS as an 

educational tool to inform and educate therapists about common characteristics exhibited 

by children who have been sexually abused, including dispelling common myths or 

misconceptions therapists may have about sexual abuse. He noted that CSAAS was not 

used to diagnose or give an opinion on whether someone was the victim of sexual abuse. 

Dr. Urquiza indicated that some of the common myths about child sexual abuse 

were that: (1) the victims disclose the incident right away; (2) the perpetrators are usually 

strangers, not someone the child knows or has regular contact with; and (3) the victims 

can be discerned easily because they exhibit visible signs of distress. He also explained 

how child victims of sexual abuse often respond or react to the abuse in ways that 

differed from an “adult” way of handling similar trauma. For example, Dr. Urquiza 

indicated that in most cases, the perpetrator is someone whom the child knows and has an 

ongoing relationship with. As a result, the perpetrator is often able to convince the child 

that disclosing would be negative or harmful, or cultivates a close relationship with them 

prior to the abuse such that the child does not feel comfortable disclosing. 

2. Defense’s Case

a. Testimony of Nukida’s Relatives 

Four of Nukida’s relatives testified on his behalf during the trial. Nukida’s older 

sister, G.N., testified that because of their Japanese culture, her family was very reserved 

and not the “touchy-touchy” type of people. She indicated that she had a close 

relationship with Nukida and visited him on several occasions after he married E.V. and 

began living with E.V., Jane Doe, and I.V. G.N. indicated that Nukida had a reputation 
11

in their family for being honest and truthful, and he would not touch anyone in the family 

inappropriately. G.N. also testified on cross-examination that she had never witnessed 

Nukida “act sexually” in front of her towards anyone, including adult women. 

Nukida’s sister, F.N., testified that she saw Nukida at least four times a year and 

had regularly interacted with E.V., Jane Doe, and I.V. during Nukida and E.V.’s 

marriage. F.N. also described Nukida as very honest and had never observed him behave 

inappropriately with her own daughter during their interactions over the past 26 years. 

Nukida’s youngest sister, E.B., testified that she interacted with Nukida, E.V., 

Jane Doe, and I.V. frequently during family trips and vacations, and also had a son who 

was the same age as Jane Doe. Like her sisters, E.B. described Nukida as very honest, 

and she did not believe he was capable of touching any child inappropriately based on her 

interactions with Nukida and observations of him around children. E.B. further testified 

on cross-examination that she and Nukida had never discussed his sexual preferences, 

and she had never observed him engaging in sexual activity. 

Finally, Nukida’s niece, J.F., testified that she had seen Nukida regularly 

throughout her life and had interacted with I.V. and Jane Doe during family social 

gatherings. J.F. testified that Nukida had always been very honest, respectful, and calm, 

and had respected boundaries with “all of us.” Based on her observations and 

interactions with Nukida, J.F. believed he would never touch a child inappropriately. On 

cross-examination, J.F. clarified that she had seen Nukida approximately three to four 

times per year while he was married to E.V. 

b. Expert Witness Testimony 

Clinical psychologist Dr. Mary Alumbaugh testified as an expert on Nukida’s 

disposition to commit sexual offenses. Dr. Alumbaugh evaluated Nukida’s 

developmental history by interviewing Nukida about his background, reviewing police 

reports, and reviewing the recording of the May 2020 conversation between Nukida and 

Jane Doe. Dr. Alumbaugh also administered various personality tests on Nukida. She 
12

described Nukida’s responses to the questions as representative of “underreporting,” 

where he was very careful, deliberate, and defensive in how he responded to each 

question. Dr. Alumbaugh also evaluated Nukida’s ability to function in interpersonal 

relationships, and determined that he had difficulty asserting himself in a relationship and 

taking control. The tests further revealed that Nukida had a low tendency to act out and 

be impulsive. Based on Nukida’s overall performance on the tests, Dr. Alumbaugh did 

not find any indication that Nukida was experiencing a paraphilia5towards children, 

including prepubescent children. 

On cross-examination, Dr. Alumbaugh acknowledged that she had only performed 

this type of evaluation, known as a Stoll evaluation, five times. She also did not compile 

an extensive sexual history on Nukida, including the number of sexual partners he had, 

his sexual preferences, or how frequently he had sex. Dr. Alumbaugh confirmed that 

based on Nukida’s test results, she felt Nukida portrayed himself as someone 

“exceptionally free of common shortcomings” that most people would admit to, and that 

he was reluctant to admit any dysfunction or faults across many areas. She further 

concluded that he may be “insensitive to negative consequences associated with his 

behavior tending to minimize the negative impact that his behavior has on others and 

himself.” Lastly, Dr. Alumbaugh noted that someone with Nukida’s test results could 

still molest children as the tests were not designed to answer that specific question. 

c. Nukida’s Testimony 

Nukida testified in his own defense. He stated that he was born in Sapporo, Japan, 

and moved to the United States when he was six years old. Nukida met E.V. at a health 

spa and began dating her, but initially felt bad about pursuing a relationship with her 

because she was still married at the time. After Nukida. E.V., Jane Doe, and I.V. moved 

to Almaden Lake, Nukida would typically go straight to work in the morning while E.V. 

5 Dr. Alumbaugh defined paraphilia as a “sexually deviant disorder.” 
13

would take care of the children. From the time they moved to Almaden Lake, E.V. was 

100 percent dependent on Nukida to pay all expenses and did not have much money of 

her own. 

Nukida denied any of the incidents of inappropriate touching that Jane Doe alleged 

to have taken place at Almaden Lake. He also denied that any incidents took place at the 

Tabor house. Lastly, while he confirmed that Jane Doe and I.V. lived with him in his 

mobile home for a period of time after he and E.V. separated, he denied ever grabbing 

Jane Doe in the kitchen or bedroom of the mobile home. Nukida could not think of or 

identify anything in hindsight that Jane Doe could have misconstrued as inappropriate or 

harmful touching. 

In 2015, Nukida and E.V. divorced, and E.V. moved with both children to her 

sister’s home. While Nukida and E.V. were not in touch for approximately one year, 

E.V. subsequently reestablished contact, and Nukida suggested that she move into the 

Gilda Way apartment. Nukida subsequently began paying the rent for the Gilda Way 

apartment. 

Nukida admitted that on one occasion, he had arrived at the Gilda Way apartment

to take Jane Doe to a volleyball tournament. E.V. was not home, but he began chatting 

with Jane Doe, who was already dressed in her volleyball uniform. During the 

conversation, he followed Jane Doe into her room, where he patted her on the buttocks as 

a “form of affection;” he further described this as a “congratulatory pat” for Jane Doe 

doing so well on the team despite being one of the shorter players. Nukida indicated that 

Jane Doe was about 15 years old at the time and did not invite him to pat her this way. 

However, he denied squeezing or rubbing Jane Doe’s buttocks or pulling down her 

shorts. However, Nukida stated he later felt bad about what he had done because it was 

the “wrong thing to do” as Jane Doe’s stepfather. 

Nukida continued to remain involved in E.V.’s life after the divorce and assisted 

her financially. He also visited frequently and spent time with Jane Doe and I.V. 
14

socially. However, in 2019, Jane Doe asked to come meet him at his mobile home in 

Scotts Valley, which she did not do regularly. When Jane Doe arrived, Nukida was 

sleeping and did not answer the door, which he believed made her very angry. After this 

incident, Jane Doe began acting “cold” towards Nukida, which he attributed to her being 

jealous that he was spending more time with I.V. However, despite this incident, Nukida 

still wanted to contribute to Jane Doe’s college tuition because he was “proud” of her and 

knew E.V. would not be able to pay on her own. 

Nukida later testified that when he first met Jane Doe in the park in 2020, he did 

not understand why she was bringing up “all these things” and “denied everything.” 

However, he ended up having to walk away because Jane Doe became “emotionally 

upset” and he was worried she would explode into a tantrum. Nukida testified that even 

though he did not understand what Jane Doe was saying, he still wanted to “mend” his 

relationship with her and agreed to meet her again. 

When he met Jane Doe the second time, Nukida claimed that he was only 

apologizing about the incident at the Gilda Way apartment as well as the 2019 incident 

when she came to visit him while he was asleep. In an effort to “manage” the situation, 

he offered to go to jail and kill himself. He also admitted that he was “fixated” on the 

Gilda Way incident to such an extent that he wasn’t paying as much attention to the other 

incidents Jane Doe was describing. 

On cross-examination, Nukida reiterated that his responses to Jane Doe’s 

accusations were his attempts to “manage the situation,” and he offered to go to jail and 

kill himself because he was “desperate” to mend the relationship. Nukida characterized 

the sexual abuse allegations against him as “all lies” and believed Jane Doe was making 

the allegations up because she was jealous of the attention he gave I.V. However, Nukida 

admitted he never confronted Jane Doe with this belief. 
15

II. DISCUSSION

A. Admission of CSAAS Expert Testimony 

Nukida argues that the trial court erred in allowing Dr. Urquiza to testify over his 

objection. First, he claims that the CSAAS testimony was irrelevant and inadmissible 

under Evidence Code section 801 because the misconceptions it seeks to correct are no 

longer prevalent in society and were not present among the jurors in the instant case. 

Second, he argues that the prosecution failed to establish Dr. Urquiza’s opinions were 

reliable amongst the scientific community. Lastly, Nukida contends that Dr. Urquiza’s 

testimony exceeded the bounds of permissible CSAAS evidence because he testified 

about the characteristics of persons who sexually abuse children and the typical nature of 

the abuse, not just the characteristics of sexual abuse victims. Nukida therefore 

concludes that his constitutional rights to due process were violated because the CSAAS 

evidence was “used to unfairly corroborate and bolster [Jane Doe’s] allegations against 

appellant.” 

As we explain below, we conclude the trial court did not err in admitting the 

CSAAS testimony and reject Nukida’s arguments in their entirety. 

1. Procedural Background 

Before trial, the prosecution filed a motion in limine to admit Dr. Urquiza’s expert 

testimony regarding CSAAS to disprove common myths and misconceptions about 

children's reactions to sexual abuse and to assist the jury in evaluating the victim’s 

testimony. Specifically, the prosecution asked to offer expert testimony “as to 

molestation victims in general so as to dispel common misconceptions which may exist 

among the jurors about how victims react to such abuse and how they go about disclosing 

the abuse, as well as the fact that there is no ‘typical’ child molester.” The prosecution 

further argued that a limiting instruction could be given admonishing the jury that the 

evidence was admissible solely for the purpose of showing that the victim’s reactions 
16

were not inconsistent with having been molested, and not to assess the truth of the 

victim’s claim. 

Nukida’s trial counsel moved to exclude the CSAAS evidence in its entirety. 

Counsel claimed that such evidence was not generally accepted in the scientific 

community and requested that the court hold a Kelly/Frye6 hearing before admitting the 

evidence. Counsel also argued that if Dr. Urquiza was permitted to testify, his testimony 

should be limited to “only the myths or misconceptions that are present in this case that 

are beyond the common knowledge of the jurors.” Counsel additionally contended in 

court that there “really [was] no misconceptions about [late reporting] in society 

anymore” such that the testimony would be irrelevant. 

The trial court ruled that the CSAAS evidence was admissible so long as Dr. 

Urquiza did not render an opinion as to what happened, who did what, or who was telling 

the truth. The court noted that “not all jurors are going to be familiar with the subject 

appropriate for expert testimony.” The court informed Nukida’s counsel that he could 

object if the testimony exceeded the permissible scope.7 

At trial, Dr. Urquiza testified as an expert in CSAAS. He testified that CSAAS 

was developed in the early 1980s as an educational tool for therapists to address myths 

and misconceptions they may have about the behavior of child sexual abuse victims. 

There are five general categories of CSAAS: secrecy, helplessness, entrapment or 

accommodation, delayed and unconvincing disclosure, and retraction. 

According to Dr. Urquiza, most child victims of sexual abuse have some type of 

ongoing relationship with their abuser. The perpetrators are usually bigger, older, 

6 This rule, now known as only the Kelly rule (see People v. Bolden (2002) 29 

Cal.4th 515, 545 (Bolden)) refers to the test for reliability of expert witness testimony as 

set out in People v. Kelly (1976) 17 Cal.3d 24. 

7 The record does not reflect that counsel made any objections during Dr. 

Urquiza’s testimony. 
17

stronger, and often in a position of control or authority in the child's life. The 

perpetrators also use various methods of coercion to ensure the child stays quiet. This 

can range from overt threats that something bad might happen, to intimidating the child 

into staying quiet, to befriending the child and making the child care about them enough 

that he or she feels “stuck” about reporting unwanted contact or touching. 

Many children feel unable to fight back or resist the abuser and submit to the 

abuse, particularly if the abuser is someone in a position of significant authority in their 

life. Child sexual abuse victims generally feel trapped and will often take steps to 

accommodate or attempt to cope with the abuse by compartmentalizing their emotions 

and “disassociating” while being abused, or finding ways to make it harder for the 

perpetrator to have access to them. 

Dr. Urquiza testified that most children can sometimes take months, years, or even 

“decades” before they initially disclose the abuse. In addition, the amount of information 

the child initially discloses is often not fully articulate or detailed, and the child often will 

“test the waters” by sharing only a little information to gauge how supportive of a 

reaction they receive. Similarly, children often have difficulty remembering the details of 

the abuse the more frequently it occurred, thereby resulting in inconsistent or 

unconvincing disclosures. 

Dr. Urquiza clarified that a child did not have to go through all five stages of 

CSAAS to be classified as a victim and that CSAAS is not a mechanism to diagnose 

whether a particular child has been sexually abused. In addition, he testified that he was 

not familiar with the facts of this case or any of the parties related to the case, and was 

not offering an opinion as to whether Jane Doe had been sexually abused. 

2. Applicable Law and Standard of Review

Expert opinion testimony is admissible when the subject matter is “beyond

common experience” and the opinion would assist the trier of fact. (Evid. Code, § 801,

subd. (a).) “‘When expert opinion is offered, much must be left to the trial court's
18

discretion.’ [Citation.] The trial court has broad discretion in deciding whether to admit

or exclude expert testimony [citation], and its decision as to whether expert testimony

meets the standard for admissibility is subject to review for abuse of discretion.

[Citations.]” (People v. McDowell (2012) 54 Cal.4th 395, 426.) 

“Trial courts may admit CSAAS evidence to disabuse jurors of five commonly

held ‘myths’ or misconceptions about child sexual abuse. [Citation.] While CSAAS

evidence is not relevant to prove the alleged sexual abuse occurred, it is well established

in California law CSAAS evidence is relevant for the limited purpose of evaluating the

credibility of an alleged child victim of sexual abuse. [Citations.]” (People v. Lapenias

(2021) 67 Cal.App.5th 162, 171 (Lapenias); see also In re S.C. (2006) 138 Cal.App.4th

396, 418; People v. Wells (2004) 118 Cal.App.4th 179, 188; People v. Patino (1994) 26

Cal.App.4th 1737, 1744-1745 (Patino); People v. Housley (1992) 6 Cal.App.4th 947,

955-956; People v. Harlan (1990) 222 Cal.App.3d 439, 449-450 (Harlan); People v.

Stark (1989) 213 Cal.App.3d 107, 116-117.) CSAAS evidence “is admissible solely for

the purpose of showing that the victim's reactions as demonstrated by the evidence are

not inconsistent with having been molested.” (People v. Bowker (1988) 203 Cal.App.3d

385, 394 (Bowker).) “For instance, where a child delays a significant period of time

before reporting an incident or pattern of abuse, an expert could testify that such delayed

reporting is not inconsistent with the secretive environment often created by an abuser

who occupies a position of trust.” (Ibid.) CSAAS evidence “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. [Citations.] ‘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.’ ” (People v.

McAlpin (1991) 53 Cal.3d 1289, 1300–1301, fn. omitted (McAlpin).) 
19

3. Analysis

a. The Trial Court Did Not Abuse Its Discretion in Admitting the 

CSAAS Evidence 

Nukida argues that the trial court abused its discretion because “[t]he 

misconceptions that CSAAS testimony has been upheld to refute no longer exist. 

Moreover, in this case, there was no evidence that any of the prospective jurors held the 

misconceptions that previously prevailed in our society.” In support of this argument, 

Nukida largely cites scholarly articles and cases from other jurisdictions. We find this 

argument without merit. 

The California Supreme Court ruled in McAlpin that CSAAS testimony is 

admissible to disabuse jurors of commonly held misconceptions about child sexual abuse 

victims' behavior and to explain seemingly contradictory behavior of a child sexual abuse 

victim. (McAlpin, supra, 53 Cal.3d at pp. 1300–1302.) As this court is bound by 

decisions of the California Supreme Court, Nukida’s references to decisions from other 

jurisdictions that reached different decisions on the admissibility of CSAAs testimony 

have no effect on the binding nature of McAlpin. (See People v. Ramirez (2023) 98 

Cal.App.5th 175, 216. ) Based on this binding precedent, as well as the substantial 

precedent set forth above regarding admissibility of CSAAS evidence, we conclude the 

trial court did not abuse its discretion when it ruled that the prosecution’s proposed expert 

testimony on CSAAS was relevant and admissible for the limited purpose for which it 

was admitted in the instant case. (See Lapenias, supra, 67 Cal.App.5th at p. 172; Patino, 

supra, 26 Cal.App.4th at pp. 1744-1745; People v. Perez (2010) 182 Cal.App.4th 231, 

245.)

b. CSAAS Evidence is Not Subject to the Kelly Rule 

Nukida next argues that because CSAAS evidence has never been evaluated by the 

Kelly rule and its model has not been generally accepted in the scientific community, the 

trial court abused its discretion in admitting Dr. Urquiza’s testimony. We disagree. 
20

Under the Kelly rule, “evidence obtained through a new scientific technique may 

be admitted only after its reliability has been established under a three-pronged test. The 

first prong requires proof that the technique is generally accepted as reliable in the 

relevant scientific community.” 8 (Bolden, supra, 29 Cal.4th at p. 544.)

The California Supreme Court has explained that the “additional scrutiny” under 

Kelly, which “imposes certain preconditions on the admission of evidence derived from a 

novel scientific technique or procedure....‘is justified because “[l]ay jurors tend to give 

considerable weight to ‘scientific’ evidence when presented by ‘experts’ with impressive 

credentials. We have acknowledged the existence of a ‘. . . misleading aura of certainty 

which often envelops a new scientific process, obscuring its currently experimental 

nature.’ ” ’ ” (People v. Peterson (2020) 10 Cal.5th 409, 457 (Peterson).)

However, unlike evidence that is based on a new scientific technique or procedure, 

expert opinion testimony is not necessarily subject to the Kelly test. The California 

Supreme Court has explained as follows: “[I]n most cases no similar caution is required 

before a jury considers expert opinion testimony. Unlike results ‘produced by a 

machine,’ to which jurors may ‘ascribe an inordinately high degree of certainty,’ jurors 

presented with the personal opinion of a witness, even an expert witness, ‘may temper 

their acceptance of his [or her] testimony with a healthy skepticism born of their 

knowledge that all human beings are fallible.’ [Citations.] For this reason, ‘ “[a]bsent 

some special feature which effectively blindsides the jury, expert opinion testimony is not 

subject to Kelly[].” ’ [Citations.] Of course, some expert testimony may be ‘based, in 

whole or part, on a technique, process, or theory which is new to science and, even more 

so, the law’ [citation]; where the novel technique ‘appears in both name and description 

8 Although the Kelly rule involves two more prongs regarding the qualifications of 

the testifying witness and the procedure used to perform the technique at issue (see 

Bolden, supra, 29 Cal.4th at pp. 244-245), Nukida does not contend that Dr. Urquiza’s 

testimony failed to satisfy these other two elements. Therefore, we do not discuss them 

further. 
21

to provide some definitive truth which the expert need only accurately recognize and 

relay to the jury,’ additional scrutiny under Kelly is warranted.” (Peterson, supra, 10 

Cal.5th at pp. 457-458, some italics added.) 

In the instant matter, Nukida contends that the California Supreme Court applied 

Kelly to evidence regarding rape trauma syndrome in People v. Bledsoe (1984) 36 Cal.3d 

236 (Bledsoe), and therefore, Kelly must be applied to CSAAS evidence as well. In 

Bledsoe, “expert testimony describing the [rape trauma] syndrome and applying it to [the] 

victim was used to prove that ‘a rape in the legal sense had, in fact, occurred.’ ” (People 

v. Stoll (1989) 49 Cal.3d 1136, 1160 (Stoll), italics omitted.) However, “rape trauma 

syndrome was not devised to determine . . . whether, in fact, a rape in the legal sense 

occurred - but rather was developed by professional rape counselors as a therapeutic tool, 

to help identify, predict and treat emotional problems experienced by the counselors' 

clients or patients.” (Bledsoe, supra, at pp. 249-250.) In other words, the scientific 

literature regarding rape trauma syndrome did “not . . . purport to claim that the syndrome 

is a scientifically reliable means of proving that a rape occurred.” (Id. at p. 251.) The 

court therefore found that the evidence was inadmissible as it did not meet the Kelly test. 

(Id. at p. 1161.)

The Third District Court of Appeal subsequently indicated in Bowker that Bledsoe 

created an exception allowing for the admissibility of evidence related to rape trauma 

syndrome only for the limited purpose of “ ‘[disabusing] the jury of some widely held 

misconceptions about rape and rape victims, so that it may evaluate the evidence free of 

the constraints of popular myths.’ [Citation.]” (Bowker, supra, 203 Cal.App.3d at p. 

391.) The court similarly found that notwithstanding Kelly, CSAAS evidence may 

similarly be admissible for the limited purpose of “disabusing the jury of misconceptions 

as to how child victims react to abuse.” (Bowker, supra, 203 Cal.App.3d at p. 392.) 

Although Nukida claims that the holding in Bowker reflected a misinterpretation 

of Bledsoe , the California Supreme Court subsequently made clear that its opinion in 
22

“Bledsoe did not hold that the [Kelly] test applied to the expert opinion in that case” and 

that Bledsoe did not “discuss the test’s relationship to ‘syndrome’ or other expert 

psychological evidence in general.” (Stoll, supra, 49 Cal.3d at p. 1161.) Significantly, 

subsequent to Bledsoe, the California Supreme Court in Stoll concluded that where 

psychological testimony is based on methods that “are not new to psychology or the law” 

and “carry no misleading aura of scientific infallibility,’ ” the testimony is not subject to 

the Kelly rule. (Stoll, supra, 49 Cal.3d at p. 1157.) Notably, Nukida does not address 

Stoll in his argument. 

In the present case, Nukida fails to demonstrate that CSAAS evidence is based on 

methods that are “new to psychology or the law” and that testimony about CSAAS 

carries a “misleading aura of scientific infallibility.” (Stoll, supra, 49 Cal.3d at p. 1157; 

accord, Peterson, supra, 10 Cal.5th at p. 458.) Indeed, the case of People v. Munch 

(2020) 52 Cal.App.5th 464 (Munch), specifically found that with respect to CSAAS 

evidence, “we are not dealing with new experimental scientific evidence ‘ “not 

previously accepted in court.” ’ ” (Munch, supra, 52 Cal.App.5th at p. 472.) 

In the instant case, Dr. Urquiza had been a licensed psychologist for over 30 years 

and was the director at the U.C. Davis Care Center, a child abuse treatment program. 

Over the course of his work at the Center, he had treated over 1,000 children, including 

supervising and training others in their treatment of children. His expert testimony was 

therefore “ ‘based on [his] clinical experience with child sexual abuse victims and on [his 

. . .] . . . familiarity with professional literature in the area.’ [Citation.] . . . Such expert 

testimony meets ‘traditional standards for competent expert opinion, without need for 

additional screening procedures [under Kelly/Frye.]’ ” (Munch, supra, 52 Cal.App.5th at 

p. 473.) In addition, CSAAS evidence “has been ruled to be properly admitted by the 

courts of this state for decades.” (Id. at pp. 468, 472.) 

Furthermore, testimony about CSAAS does not purport to make any definitive 

statements about whether a child has been abused and instead simply attempts to dispel 
23

misconceptions about the conduct of child sexual abuse victims. (See Munch, supra, 52 

Cal.App.5th at pp. 468, 473; Lapenias, supra, 67 Cal.App.5th at p. 173.) Dr. Urquiza 

specifically testified that he knew nothing about the case or the facts, and did not know 

anyone related to the case. The California Supreme Court has also rejected the notion 

that the “use of ‘syndrome’ . . . terminology by a mental health professional makes the 

[testimony] seem ‘scientific’ to a jury, and thus invokes [Kelly].” (Stoll, supra, 49 Cal.3d 

at p. 1161, fn. 22 [court was “not persuaded that juries are incapable of evaluating 

properly presented references to psychological ... ‘syndromes’ ”].) 

Finally, due to Nukida’s failure to demonstrate the applicability of the Kelly rule to 

the CSAAS evidence in this case, we find unpersuasive his reliance on out-of-state 

authority regarding whether CSAAS evidence meets a Kelly (or Frye) requirement 

regarding general acceptance within the scientific community. (See, e.g., State v. J.L.G.

(N.J. 2018) 234 N.J. 265, 301 [“we apply the Frye test and consider whether CSAAS has 

achieved general acceptance in the scientific community”].)

In conclusion, because Nukida does not establish that CSAAS evidence is based 

on methods that are “new to psychology or the law” and that the evidence carried a 

“misleading aura of scientific infallibility” (see Stoll, supra, 49 Cal.3d at p. 1157; accord, 

Peterson, supra, 10 Cal.5th at pp. 457-458), we find that the trial court did not abuse its 

discretion in admitting expert testimony about CSAAS without first conducting a Kelly

test. (See, e.g., Lapenias, supra, 67 Cal.App.5th at p. 173 [“expert CSAAS testimony is 

not ‘ “ ‘scientific’ ” evidence’ subject to the Kelly rule”]; Munch, supra, 52 Cal.App.5th 

at pp. 472-473 [CSAAS evidence not subject to Kelly analysis]; Harlan, supra, 222 

Cal.App.3d at p. 449 [Kelly rule does not apply to expert testimony about the reactions of 

child molestation victims, where expert’s “opinion was based on her clinical experience 

with child sexual abuse victims and on her familiarity with professional literature in the 

area”].) 
24

c. The CSAAS Testimony Did Not Exceed the Bounds of 

Permissible CSAAS Evidence 

Nukida next argues that Dr. Urquiza’s testimony went beyond the permissible 

scope of CSAAS evidence because it included his opinions about the abuser, locations 

where abuse typically occurred, the frequency of abuse, and a non-offending parent’s 

knowledge of the abuse. Nukida claims that because such testimony did not focus on the 

typical reactions of child victims to abuse and, in fact, mirrored the “exact scenario” that 

Jane Doe testified to, those portions of Urquiza’s testimony should have been excluded. 

We find no merit to this contention.

As set forth above, Dr. Urquiza testified to the five general stages of CSAAS and 

expressly stated that he had no knowledge of the facts of this case. Further, in reviewing 

Dr. Urquiza’s testimony, it is apparent that the portions cited by Nukida were not 

attempts to draw parallels to the case, but instead provided further insight into the various 

stages of CSAAS. For example, in noting that an abuser is often someone already known 

or related to the child, Dr. Urquiza indicated that this allowed for the abuser to coerce the 

child into secrecy or contribute to the child’s feeling of helplessness. Similarly, Dr. 

Urquiza discussed a non-offending caregiver or parent’s lack of knowledge as it related 

to a child’s helplessness or vulnerability. Lastly, Dr. Urquiza noted that the location of 

the abuse was important to dispel one of the common myths surrounding secrecy, 

namely, that the abuse typically happened in a “dark alley” or unknown place and with an 

unknown person. Accordingly, based on our review of the record, we find that Dr. 

Urquiza’s testimony fell within the scope of permissible testimony, and the trial court did 

not abuse its discretion in admitting it. 

d. Admission of CSAAS Evidence Did Not Violate Due Process 

Finally, Nukida contends that the admission of the CSAAS evidence violated his 

due process rights to a fair trial because it was irrelevant, unreliable, and inflammatory, 

as set forth in his above-described arguments. 
25

Generally, a court's compliance with the rules of evidence does not violate a 

defendant's right to due process. (Lapenias, supra, 67 Cal.App.5th at p. 174, citing 

People v. Hall (1986) 41 Cal.3d 826, 834-835.) Reviewing courts have also routinely 

held the admission of CSAAS evidence does not violate due process. (See, e.g., Patino, 

supra, 26 Cal.App.4th at pp. 1744-1745 [trial court's admission of CSAAS evidence did 

not violate due process].) For the same reasons, we conclude that Dr. Urquiza’s 

testimony about CSAAS did not violate Nukida’s constitutional right to due process. 

Further, we have already rejected Nukida’s contentions that (1) the evidence 

should have been excluded as irrelevant; and (2) CSAAS evidence is unreliable and that 

the Kelly test must be applied. The “rejection of a claim on the merits necessarily leads to 

rejection of any constitutional theory or ‘gloss’ raised” on appeal. (People v. Scott (2011) 

52 Cal.4th 452, 487, fn. 29.) Having rejected each of the underlying claims of error in 

admitting the CSAAS evidence, we accordingly reject Nukida’s due process claim.

B. Instructional Error

Nukida next argues that the court erred in giving the jury a “version” of 

CALCRIM No. 1193, the instruction generally provided when a case involves CSAAS 

expert testimony. Nukida specifically argues that the court improperly failed to include 

language from CALCRIM No. 1193 that the expert testimony was also not evidence that 

Nukida committed the conduct with which he was not charged. Nukida further argues 

that the court erroneously used the wrong pronoun of “his” instead of “her”, which 

“undoubtedly misled the jury” on how it should use the CSAAS evidence and resulted in 

them evaluating his credibility, as opposed to Jane Doe’s as contemplated by the 

instruction. Nukida claims that due to these omissions and errors in the instruction, the 

prosecution’s burden was lowered from guilt beyond a reasonable doubt in violation of 

Nukida’s due process rights. 
26

1. Trial Court Proceedings 

Prior to instructing the jury and outside the jury’s presence, the trial court 

indicated it had reviewed the instructions with counsel off-the-record. Defense counsel 

indicated he “was not adding anything” and only asked for one instruction (not 

CALCRIM No. 1193) to be pulled. 

At the conclusion of evidence, the court instructed the jury pursuant to CALCRIM 

No. 1193 as follows: “You have heard testimony from Dr. Anthony Urquiza regarding 

[CSAAS]. [¶] Dr. Urquiza’s testimony about [CSAAS] is not evidence that the 

defendant committed any of the crimes charged against him. [¶] You may consider this 

evidence only in deciding whether or not [Jane Doe]'s conduct was not inconsistent with 

the conduct of someone who has been molested and in evaluating the believability of his 

testimony.” 

2. Applicable Law and Standard of Review 

As a threshold matter, the Attorney General argues that Nukida has forfeited his 

claim of instructional error by failing to object to CALCRIM No. 1193 at trial. However, 

because Nukida contends the challenged instruction was an incorrect statement of law 

and affected his substantial rights under section 1259, we decide that we can consider the 

merits of his claim in spite of his failure to object below. (See People v. Grandberry

(2019) 35 Cal.App.5th 599, 604; People v. Gomez (2018) 6 Cal.5th 243, 312.)

“We determine whether a jury instruction correctly states the law under the 

independent or de novo standard of review.” (People v. Ramos (2008) 163 Cal.App.4th 

1082, 1088.) When we review a purportedly erroneous instruction, we consider 

“ ‘ “ ‘whether there is a reasonable likelihood that the jury has applied the challenged 

instruction in a way’ that violates the Constitution.” ’ ” (People v. Richardson (2008) 43 

Cal.4th 959, 1028 (Richardson).) We consider the instructions as a whole and “ ‘assume 
27

that jurors are intelligent persons and capable of understanding and correlating all jury 

instructions which are given.’ ” (Ibid.)

3. No Error in Instructing with CALCRIM No. 1193

a. Use of Incorrect Pronoun 

Nukida argues that the court’s erroneous use of “his testimony” at the end of the 

instruction instead of “her testimony” would have led the jury to erroneously believe the 

instruction referenced the credibility of someone else’s testimony apart from Jane Doe. 

Nukida notes that since he was a male and referred to in the previous sentence, the jury 

would have erroneously assumed that “his testimony” referred to Nukida and improperly 

used the CSAAS evidence in evaluating his (Nukida’s) credibility. 

In reviewing the instruction, it is apparent that the trial court should have used 

“her” instead of “his” in the last sentence of this instruction as the jury was to use Dr. 

Urquiza’s testimony on child sexual abuse accommodation syndrome to evaluate Jane 

Doe’s credibility. However, we do not agree that the mistaken pronoun led the jury to 

evaluate Nukida’s credibility using Dr. Urquiza’s testimony for two reasons: (1) it is 

more likely that “his” would refer back to Dr. Urquiza, not Nukida; and (2) evaluating 

Nukida’s credibility using Dr. Urquiza’s testimony would be illogical. 

To explain, as the only testimony referred to in the instruction is Dr. Urquiza’s, it 

is more likely that if the jury had been misled by the instruction, they would attribute the 

pronoun to Dr. Urquiza, not Nukida. Moreover, as explained clearly by Dr. Urquiza, the 

purpose of his testimony was to demonstrate potential reasons why child victims of 

sexual abuse may exhibit certain behaviors, such as delayed reporting, that dispelled 

prevailing myths about such victims. Accordingly, such testimony would only logically 

apply to the credibility of the victim’s testimony, not the abuser. 

Furthermore, we agree with the Attorney General that in considering the mistaken 

pronoun in light of the full instruction, it is not reasonably likely that the jury would have 

erroneously interpreted the instruction in the manner claimed by Nukida. Specifically, 
28

the language immediately preceding the incorrect pronoun refers to “the conduct of 

someone who has been molested.” Therefore, relying on the assumption that jurors are 

intelligent persons capable of understanding jury instructions as given, we believe the 

jury would not have misinterpreted this instruction as referring to Nukida’s credibility, 

but reasonably understood that this referred to the credibility of the person who had 

allegedly been molested, Jane Doe. (See Richardson, supra, 43 Cal.4th at p. 1028.) 

b. Omission of Language Regarding Uncharged Conduct 

Nukida next argues that the court erred in omitting language from CALCRIM No. 

1193 regarding uncharged conduct. He indicates that CALCRIM No. 1193, in its original 

form, reads as follows:

“You have heard testimony from [expert’s name] regarding child sexual abuse 

accommodation syndrome. [¶]

“Child sexual abuse accommodation syndrome relates to a pattern of behavior that may 

be present in child sexual abuse cases. Testimony as to the accommodation syndrome is 

offered only to explain certain behavior of an alleged victim of child sexual abuse. [¶]

“[expert’s name]’s testimony about child sexual abuse accommodation syndrome is not 

evidence that the defendant committed any of the crimes charged against (him/her) [or 

any conduct or crime[s] with which (he/she) was not charged]. [¶]

“You may consider this evidence only in deciding whether or not [alleged victim’s 

name]’s conduct was consistent with the conduct of someone who has been molested, and 

in evaluating the believability of the alleged victim.” (Italics added.)

Nukida argues that because the trial court did not include the bracketed language 

“or any conduct or crimes with which he was not charged,” the jury could have used the 

CSAAS testimony as evidence that Nukida committed other acts of abuse against Jane 

Doe that were not charged but introduced at trial by the prosecution. Nukida therefore 
29

contends that the jury may have impermissibly relied on such evidence as a basis for their 

guilty verdicts. We find no merit to this contention. 

In addition to CALCRIM No. 1193, the court provided the jurors with 

CALCRIM No. 1191A9, which addresses the appropriate use of evidence regarding 

uncharged sex offenses. The instruction specifically provides that such evidence can 

only be used to prove that the defendant committed the charged offenses of sexual abuse. 

Accordingly, if the jury used the CSAAS testimony as evidence Nukida committed the 

uncharged offenses, this would, in turn, violate the explicit language in CALCRIM No. 

1193 that CSAAS testimony is not evidence he committed the charged offenses. 

Moreover, by testifying that CSAAS was not used to diagnose or give an opinion on 

whether someone was the victim of sexual abuse, Dr. Urquiza’s testimony made it 

apparent that CSAAS evidence was not any indication of whether someone had 

committed any acts of sexual abuse – charged or uncharged. (See People v. Gonzalez 

(2017) 16 Cal.App.5th 494, 504 [noting that the omission of language regarding 

uncharged offenses did not violate due process when viewed in context with other 

9 This instruction, as provided to the jury in Nukida’s case, reads as follows: “The 

People presented evidence that the defendant committed the crime of Lewd Act Upon a 

Child that was not charged in this case. This crime is defined for you in these 

instructions. [¶] You may consider this evidence only if the People have proved by a 

preponderance of the evidence that the defendant in fact committed the uncharged 

offense. Proof by a preponderance of the evidence is a different burden of proof from 

proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if 

you conclude that it is more likely than not that the fact is true. [¶] If the People have not 

met this burden of proof, you must disregard this evidence entirely. [¶] If you decide 

that the defendant committed the uncharged offense, you may, but are not required to, 

conclude from that evidence that the defendant was disposed or inclined to commit 

sexual offenses, and based on that decision, also conclude that the defendant was likely to 

commit Forcible Lewd Act Upon a Child and Lewd Act Upon a Child, as charged here. 

If you conclude that the defendant committed the uncharged offense, that conclusion is 

only one factor to consider along with all the other evidence. It is not sufficient by itself 

to prove that the defendant is guilty of Forcible Lewd Act Upon a Child and Lewd Act 

Upon a Child. The People must still prove each charge beyond a reasonable doubt.” 
30

limiting instructions and content of expert testimony].) Accordingly, we conclude that 

there was no error in the trial court not including the bracketed language regarding 

uncharged offenses. As we find no instructional error in this regard, we reject Nukida’s 

alternative argument that his trial counsel was ineffective for failing to object to the 

instruction. (See People v. Poslof (2005) 126 Cal.App.4th 92, 99 [“[w]here there is ‘no 

sound legal basis for objection, counsel's failure to object to the admission of the 

evidence cannot establish ineffective assistance’ ”].)

c. Harmless Error

Nukida claims that the mistaken pronoun and omission of the bracketed language 

violated his due process rights by reducing the prosecution's burden of proving Nukida’s

guilt beyond a reasonable doubt. He therefore argues we must apply the federal standard 

test under Chapman v. California (1967) 386 U.S. 18, 24, which provides that 

constitutional error can be held harmless only if the court is able to declare a belief that 

the error was harmless beyond a reasonable doubt. However, even assuming that (1) 

there was instructional error, and (2) Nukida is correct concerning the standard to be 

applied, we conclude the error was harmless.

The record reflects that the evidence in support of Nukida’s guilty verdicts was 

particularly strong and credible. Jane Doe provided substantial details regarding multiple 

incidents of sexual abuse and remained consistent in her explanations throughout crossexamination. Jane Doe also testified more than once that she chose not to disclose any of 

the abuse when it was happening because she was afraid of the family losing Nukida’s 

full financial assistance, and E.V. and Nukida both confirmed that E.V. was fully 

dependent on Nukida for paying all the family’s expenses. In addition, Nukida made 

numerous statements to Jane Doe during the first in-person meeting that reflected 

admissions or acknowledgments of guilt, including that: (1) he “didn’t understand” why 

he had abused her; (2) apologizing for his behavior; (3) stating that his conduct was due 

to his “psyche”: and (4) offering to go to jail for his behavior. Nukida made additional 
31

statements reflecting his guilt during the second in-person meeting, where he apologized 

for his behavior once again, talked about going to see a hypnotist to find out what 

happened, and offered to do whatever he could to bring Jane Doe closure, including 

going to jail or killing himself. 

In conclusion, even if we assume that the trial court erred in giving the challenged 

instruction, such an error was harmless because it is evident beyond a reasonable doubt 

that the jury would have still reached the same verdicts. 

C. Cruel and Unusual Punishment Sentence 

Nukida argues for the first time on appeal that his sentence of 112 years eight 

months constitutes cruel and unusual punishment in violation under the Eighth 

Amendment of the federal Constitution and article I, section 17, of the California 

Constitution. He contends the aggregate sentence shocks the conscience, offends 

fundamental notions of human dignity, and is grossly disproportionate to his crimes. 

1. Forfeiture

The Attorney General argues that Nukida has forfeited his claim by failing to 

object to the condition on cruel and unusual punishment grounds in the trial court. 

Although Nukida concedes this point, he nevertheless contends that we should reach the 

merits of his claim “ ‘in order to forestall a possible claim of ineffectiveness of counsel 

based on failure to object.’ ” Because we can easily resolve Nukida’s claim on the 

merits, we will not address the issue of forfeiture and need not address the issue of 

ineffective assistance. 

2. Applicable Law and Standard of Review 

“Cruel and unusual punishment is prohibited by the Eighth Amendment to the 

United States Constitution and article I, section 17 of the California Constitution. 

Punishment is cruel and unusual if it is so disproportionate to the crime committed that it 

shocks the conscience and offends fundamental notions of human dignity.” (People v. 
32

Mantanez (2002) 98 Cal.App.4th 354, 358, fns. omitted; see also Ewing v. California

(2003) 538 U.S. 11, 20-23 (Ewing).) 

“The Eighth Amendment, which forbids cruel and unusual punishments, contains 

a ‘narrow proportionality principle’ that ‘applies to noncapital sentences.’ ” (Ewing, 

supra, 538 U.S. at p. 20, quoting Harmelin v. Michigan (1991) 501 U.S. 957, 996-997.) 

“ ‘The Eighth Amendment does not require strict proportionality between crime and 

sentence. Rather, it forbids only extreme sentences that are “grossly disproportionate” to 

the crime.’ ” (Ewing, supra, 538 U.S. at p. 23.)

California's Constitution imposes a similar standard. “[I]n California, a 

punishment may violate . . . the Constitution if, although not cruel or unusual in its 

method, it is so disproportionate to the crime for which it is inflicted that it shocks the 

conscience and offends fundamental notions of human dignity.” (In re Lynch (1972) 8 

Cal.3d 410, 424, superseded by statute on another ground.) “The main technique of 

analysis under California law is to consider the nature both of the offense and of the 

offender. [Citation.] The nature of the offense is viewed both in the abstract and in the 

totality of circumstances surrounding its actual commission; the nature of the offender 

focuses on the particular person before the court, the inquiry being whether the 

punishment is grossly disproportionate to the defendant's individual culpability, as shown 

by such factors as age, prior criminality, personal characteristics, and state of mind.” 

(People v. Martinez (1999) 76 Cal.App.4th 489, 494.)

The California Supreme Court has “distilled three analytical techniques to aid [a 

court's] deferential review of excessiveness claims: (1) an examination of the nature of 

the offense and the offender, with particular attention to the degree of danger both pose to 

society; (2) a comparison of the punishment with the punishment California imposes for 

more serious offenses; and (3) a comparison of the punishment with that prescribed in 

other jurisdictions for the same offense.” (In re Palmer (2021) 10 Cal.5th 959, 973.) 
33

“Disproportionality need not be established in all three areas.” (People v. Norman (2003)

109 Cal.App.4th 221, 230.)

Whether a sentence constitutes cruel and unusual punishment is a question of law. 

(People v. Hamlin (2009) 170 Cal.App.4th 1412, 1474.) A reviewing court therefore 

applies the de novo standard of review when determining whether a defendant's sentence 

is cruel and unusual. (Ibid.)

3. Nukida’s Sentence Does Not Constitute Cruel and Unusual 

Punishment 

In arguing that his sentence constituted cruel and unusual punishment, Nukida 

specifically points to the lack of physical force or weapons used in the commission of his 

crimes and his lack of any prior record. Nukida also notes that in comparison, other more 

serious crimes involving sexual conduct would not have triggered “full, separate, 

consecutive terms of imprisonment” under section 667.6.10

In analyzing the first prong of the test, we recognize that Nukida’s lack of criminal 

history is a factor to be taken into consideration. With that said, Nukida’s conduct 

involved 19 distinct charges, beginning from the time Jane Doe was only six years old 

until she was a teenager. The evidence reflects that he took advantage of his relationship 

with Jane Doe as a person of authority and trust by engaging in unwanted sexual conduct 

with her over numerous years. In addition, as noted by the Attorney General, section 

288, subdivision (b) only requires that the force used be “substantially different from or 

substantially in excess of that required for the lewd act.’ ” (See People v. Schulz (1992) 2 

Cal.App.4th 999, 1004.) Therefore, we assign little weight to his argument that there was 

“minimal physical force” used during the commission of the abuse. In summary, we 

10 Section 667.6 provides, in relevant part, that “a full, separate, and consecutive 

term may be imposed for each violation of an offense specified in subdivision (e) if the 

crimes involve the same victim on the same occasion.” (§ 667.6, subd. (c).) Section 288, 

subdivision (b) is one such offense specified in subdivision (e). (§ 667.6, subd. (e).) 
34

cannot conclude that the factors cited by Nukida, when weighed against the severity of 

the offenses committed, render his sentence so disproportionate to his crimes as to shock 

the conscience. (See People v. Bestelmeyer (1985) 166 Cal.App.3d 520, 530-531 

(Bestelmeyer).) 

With respect to the second prong, Nukida’s argument primarily rests on the fact 

that the offenses for which he was convicted carry mandatory consecutive sentences 

under section 667.6, while other more serious crimes may be sentenced concurrently. We 

find no merit to this argument. As explained in Bestelmeyer, “[p]unishment is not cruel 

or unusual merely because the Legislature may have chosen to permit a lesser 

punishment for another crime. Leniency as to one charge does not transform a reasonable 

punishment into one that is cruel or unusual. [Citation.] When they enacted Penal Code 

section 667.6, subdivision (d) the Legislature chose to treat violent sex offense and 

violent sex offenders differently than other types of offenses and offenders.” 

(Bestelmeyer, supra, 166 Cal.App.3d at pp. 530-531.) Therefore, given the nature of the 

charges against Nukida and the number of offenses committed, we cannot say that his 

sentence was grossly disproportionate or cruel and unusual solely because the crimes in 

question mandate consecutive, as opposed to concurrent, sentences.11

Finally, Nukida does not provide us with any information regarding the third 

prong. Therefore, we have no information from which to “conclude that other 

jurisdictions would have treated defendant more leniently than California for these 

multiple crimes of sexual abuse.” (See Bestelmeyer, supra, 166 Cal.App.3d at p. 531.) 

Yet even if Nukida had demonstrated that other states would have imposed a more lenient 

sentence on him for the same crimes, this would not mandate reversal. “This state 

11 On reply, Nukida attempts to distinguish Bestelmeyer by noting that the sex 

offenses in that case involved “more egregious conduct” that were inherently violent. 

However, nothing in section 667.6 indicates that the offense in question must involve a 

certain degree of violence to justify the imposition of consecutive sentences. We 

therefore find this contention without merit. 
35

constitutional consideration does not require California to march in lockstep with other 

states in fashioning a penal code. It does not require ‘conforming our Penal Code to the 

“majority rule” or the least common denominator of penalties nationwide.’ [Citation.]” 

(People v. Martinez (1999) 71 Cal.App.4th 1502, 1516.) 

In conclusion, we find that Nukida’s sentence did not constitute cruel and unusual 

punishment. As we find no merit in his Eighth Amendment claims, his counsel was not 

ineffective for failing to raise a meritless objection in the trial court. (See People v. 

Lucero (2000) 23 Cal.4th 692, 732.)

D. Imposition of Restitution Fine 

Nukida contends that the trial court erred in fining him $20,000 in restitution fund 

fines, which exceeded the maximum amount of $10,000 as provided under section 

1202.4, subdivision (b). While the Attorney General concedes that this may have been 

error, he argues that because the trial court did not specify a statutory authority for the 

fines on the record, the matter should be remanded for the trial court to clarify its 

sentence and reduce the fine amount if appropriate. 

As Nukida correctly states, the maximum amount for a restitution fund fine 

imposed under section 1202.4 is $10,000. (§ 1202.4, subd. (b)(1).) However, we find 

merit to the Attorney General’s argument that the court may have intended to impose a 

fine under section 667.6, subdivision (f), which provides for a maximum fine of $20,000, 

to be paid to the Victim-Witness Assistance Fund, for anyone sentenced to specified sex 

crimes, including lewd or lascivious acts under section 288, subdivision (b). 

Further, in reviewing the record, the transcript from Nukida’s sentencing hearing 

reflects that the trial court imposed “$20,000 in fines,” without reference to any particular 

statute. However, the minute order from the hearing indicates that this was a restitution 

fund fine imposed pursuant to “1202.4 PC.” “Where there is a discrepancy between the 

oral pronouncement of judgment and the minute order or the abstract of judgment, the 

oral pronouncement controls.” (People v. Zackery (2007) 147 Cal.App.4th 380, 385.) 
36

Although we may ordinarily correct a court’s minute order or abstract of judgment if it 

does not accurately reflect the oral pronouncement (see People v. Mitchell (2001) 26 

Cal.4th 181, 185), we cannot do so in this case because the court did not specify the 

statutory authority for its order. 

Accordingly, because the court could have permissibly imposed a maximum of 

$20,000 in fines under section 667.6, subdivision (f), we conclude that the appropriate 

remedy is to remand for the court to clarify its decision. However, if the trial court did in 

fact intend to impose the fine as a restitution fund fine pursuant to section 1202.4, 

subdivision (b)(1), we direct the court to reduce the amount to $10,000. 

III. DISPOSITION

The judgment is reversed as to the restitution fine only and remanded for the court 

to clarify its ruling. The trial court is directed to specify the statutory authority for the 

fine and to exercise its discretion within the limits of that statute. The trial court is also 

directed to prepare an amended abstract of judgment and forward a certified copy of the 

amended abstract of judgment to the California Department of Corrections and 

Rehabilitation. In all other respects, the judgment is affirmed. 
___________________________________

Wilson, J.

WE CONCUR:

__________________________________________

Greenwood, P.J.

__________________________________________

Bamattre-Manoukian, J.

People v. Nukida

H050513