Filed 5/21/21 P. v. Flores CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

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or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

ROBERT ANTHONY FLORES,

Defendant and Appellant.

F078233

(Super. Ct. No. F15907539)

OPINION

APPEAL from a judgment of the Superior Court of Fresno County. Mark W. 

Snauffer, Judge.

Joshua L. Siegel, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, 

Carlos A. Martinez and Jeffrey D. Firestone, Deputy Attorneys General, for Plaintiff and 

Respondent.

-ooOooAppellant Robert Anthony Flores was convicted by jury of committing a lewd act 

upon a child (Pen. Code,1 § 288, subd. (a); count 1) and sexual battery by restraint 

1 All further undesignated statutory references are to the Penal Code.
2.

(§ 243.4, subd. (a); count 2) against his stepdaughter, D., and continuous sexual abuse 

(§ 288.5; count 3) against his stepdaughter, J. As to counts 1 and 3, the jury found 

appellant had engaged in substantial sexual conduct with a person under the age of 14 

(§ 1203.066, subd. (a)(8)). In addition, as to counts 1 and 3, the jury found appellant had 

committed the offenses against multiple victims.

Appellant was sentenced to a prison term of 15 years to life on count 1 (§ 667.61, 

subd. (b)), a consecutive term of 15 years to life on count 3 (§ 667.61, subd. (b)), and the 

middle term of three years on count 2, to be served concurrently. 

On appeal, appellant contends the judgment in its entirety must be reversed 

because expert testimony was admitted which exceeded the permissible scope of Child 

Sexual Abuse Accommodation Syndrome (CSAAS) evidence and rendered his trial 

fundamentally unfair. Appellant also contends his conviction in count 3 must be reversed 

because section 288.5 violates his state constitutional right to a unanimous verdict and his 

federal constitutional right to due process. 

In addition, appellant raises several sentencing errors. He contends his life 

sentences on counts 1 and 3 the court imposed pursuant to section 667.61 are 

unauthorized because they violate ex post facto laws. He also contends the trial court 

sentenced him to consecutive terms on counts 1 and 3 based on the mistaken belief doing 

so was mandatory. Finally, he contends fines and fees must be stricken because the trial 

court made a finding that he had the inability to pay them but imposed them anyway 

under the law prior to People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). We 

agree the matter must be remanded for resentencing because the life sentences violate ex 

post facto laws and so the sentencing court may reconsider the imposition of consecutive 

terms. On remand, appellant may raise his inability to pay argument. In all other 

respects, the judgment is affirmed. 
3.

FACTS

In 2006, appellant married Tina, who had children from a previous relationship, 

including J. and D. When appellant and Tina were married, J. was approximately five 

years old and D. was approximately 10 years old. Appellant, Tina, J., and D. all lived 

together in various homes. 

J. was a junior in high school when she testified at trial. J. testified appellant first 

sexually abused her when she was about five years old. On this first occasion, appellant 

had called her into a detached room in the backyard across from the garage when no one 

else was home. Appellant, who was drinking and listening to music, stopped what he 

was doing, picked J. up, and laid her on the floor on her stomach. Appellant then pulled 

J.’s pants and underwear down to her ankles. When J. tried to get up, appellant held her 

shoulders down. Appellant started to rub J.’s butt with his hands on the outside of and in 

between her butt cheeks. Appellant put his penis in between J’s butt cheeks but not 

inside her. Appellant was lying on top of J. and moving “up and down.” A similar 

incident happened a week or two later in appellant and Tina’s bedroom in the main 

house.

J. testified incidents like this happened “a lot,” more than 20 times, when the 

family was living at that house. A year or two later, when J. was in first grade, the family 

moved to another house. They were at that house for about a year, and multiple similar 

incidents occurred, about 10 times by J.’s approximation. The family moved again when 

J. was in the fourth grade. At that home, additional incidents occurred. The incidents 

started out the same way as the very first, but appellant began penetrating her anus with 

his penis. About 20 more incidents of similar sexual abuse occurred at this house; 

sometimes appellant would just put his penis in between J.’s butt cheeks, and other times, 

he would penetrate her anus. On one occasion, while J. was in seventh grade, appellant 

penetrated her vagina with his penis.
4.

The incidents always occurred when Tina was out doing something and J. was 

home alone with appellant. J. tried to avoid being alone with appellant by going to her 

grandmother’s house, asking to go with Tina when she left the house, or hiding in her 

bedroom and the bathroom. At one point, the incidents stopped. Appellant then stopped 

drinking and began attending church regularly.

On cross-examination, J. testified she thought appellant was her biological father 

until she was 13 years old. She had since started spending time with her father’s side of 

the family. Defense counsel introduced family photographs of J. with appellant. Tina 

and appellant had strict rules regarding J. seeing boys. 

D. was 21 years old when she testified at trial. When D. was approximately 11 or 

12 years old, appellant began making sexual comments to her that made her feel 

uncomfortable, such as telling her that he liked her butt. On one occasion, around that 

time, she walked past him and he grabbed her butt and squeezed it. Appellant often 

exposed himself to D. around the house by pulling down the front of his pants. 

D. testified appellant would often pull D.’s pants down and put her face down on 

his and Tina’s bed, pull her underwear down to her knees, hold her down with his body 

weight, and rub his penis on her butt. Appellant grunted a lot and moved up and down

while doing this. D. was not sure if appellant penetrated her anus. D. had a hot and 

sticky substance on her afterward. This happened more than 20 times. D. testified 

appellant did this whenever he got the chance when Tina was not home. D. did not tell 

Tina or J. about what happened. At one point, D. did tell her brother’s girlfriend, who 

told Tina. D. left home after she graduated high school because of the sexual abuse.

The final incident that caused D. to move out of the home occurred in appellant’s

office. Appellant had been drinking and he pulled his pants down and rubbed his penis 

on D. D. tried to get away but he was too heavy and he placed his penis on her butt. 

On cross-examination, D. testified the household was strict and she and J. were 

never allowed to go anywhere; they just went to school and did their chores and 
5.

homework at home. D. testified she had a boyfriend in high school that she did not tell 

Tina or appellant about. They found out about him because she was caught with him in a

bathroom across the street from the school. To punish D. for this incident, Tina hit D. 

and grounded her for “a long time.” The defense introduced father’s day and birthday 

cards that D. made for appellant. D. wrote messages of appreciation and love to appellant 

in the cards. D. testified she once loved appellant because he was a good person and nice 

when he was sober, but she no longer loved him. 

In December 2015, J.’s choir teacher observed J. presenting as “very shut down” 

and exhibiting troubling behavior. The teacher called J. into her office to speak with her 

because it appeared her anxiety was growing and the physical signs of her shutting down 

seemed to increase. The teacher asked J. if she was being physically, mentally, sexually, 

or emotionally abused at home. J. responded by saying, “Well, not now.” The teacher 

asked J. if she meant she had been sexually abused, and J. then told the teacher she had 

been sexually abused from the age of five to the age of 12 but that she had never told 

anyone. The teacher asked if it was someone she lived with, and J. responded that it was 

her stepfather. 

J. testified the teacher was the first person to whom she disclosed the abuse. She 

never told Tina because she assumed Tina would take appellant’s side. She never 

planned on talking about it but felt comfortable with the teacher, and the teacher’s 

questioning just brought it out of her. J. said she appeared upset the day the teacher 

called her into the office because D. had just moved out a couple of weeks prior and she 

really missed her. 

After school that day, J. went to the home of her maternal grandparents, Curtis and 

Patricia. Later that afternoon, officers from the Fresno Police Department and a child 

protective services (CPS) worker came to the house to discuss the allegations. 
6.

J. told one of the officers who initially arrived that appellant had had sexual 

intercourse with her about once a week from the time she was five years old until she was 

12 years old.

Detective Jennifer Federico responded to the residence and had Patricia call Tina 

and have her come to the house. When Tina arrived, Federico told her J. had accused 

appellant of sexually abusing her. Tina did not believe it and said that J. and appellant 

were never alone together and that J. was lying. 

While Federico was speaking with Tina, D., J., and Curtis were in a room in the 

back of the house together. Curtis asked D. what she thought about the allegations, and 

D. responded that she believed J. because appellant had done the same thing to her.

Curtis then went to get Federico’s partner’s attention and told him D. was also making an 

allegation against appellant. Federico’s partner, Detective Michael Martin, went back to 

speak with D., who was crying and told him appellant did the same thing to her. When 

Martin asked for clarification, D. responded that appellant had put his penis in her butt. 

Based on there being two victims, Federico and Martin decided to take the girls and 

appellant to the station for interviews. Federico transported the girls to the station and 

asked them not to talk to each other about the case. Someone was always with them to 

make sure they did not communicate about the case. 

Audio recordings of J.’s and D.’s police interviews were introduced at trial by the 

defense. In J.’s interview, she said the first incident where appellant rubbed his penis on 

J.’s butt happened in the bedroom and that appellant had asked J. if she wanted to play a 

game on his phone before touching her. This happened about 10 times, and when J. was 

nine or 10 years old, appellant began inserting his penis into J.’s anus. This happened 

approximately two to three times per week, and maybe 20 times total. Once or twice, 

appellant placed his penis inside J’s vagina.
7.

D. told the police that the first incident occurred when she was 13 or 14 years old 

and she had never told anyone about it. She also stated her family thought that Tina’s 

previous boyfriend before appellant had molested D.

A video recording of appellant’s interview was played for the jury. Appellant

initially denied the allegations that he sexually abused J. Eventually, after Federico told 

appellant that D. had made similar allegations, appellant responded, “So I don’t know 

then. Maybe I did when I was drunk. I don’t know. I – I don’t know. Why didn’t they 

say something then instead of today? Or yesterday or next week, like....” Appellant 

went on to say, “if I did do something like that, God forgive me.” Appellant explained he 

was a “bad alcoholic” and would forget how he spent his money after drinking the day 

before. He admitted he would drink upon waking up in the morning and would also 

drink at work at times. Martin asked appellant, “But deep down inside of you, what do 

you ... think? It’s not like this possibly could happen?” Appellant responded, “It 

probably could have, I don’t know. That’s why I’m trying to be real, brother.” He stated 

he did not remember doing anything. Following the interview, Federico arrested 

appellant.

Defense Evidence

Tina testified on behalf of appellant and stated the girls were not telling the truth. 

She stated J. was upset with her and appellant for not telling her that appellant was not 

her biological father, and that D. is a “conniver,” liar,” and “exaggerator.” CPS had 

prevented Tina from seeing J. because Tina does not believe J. Tina believed D.’s

motivation to lie was to support J. D.’s brother’s girlfriend never told Tina that D. was 

being abused by appellant. Tina testified she knows appellant did not do it and has no 

doubts. 

A church friend of D.’s testified that she and D. were very close. D. confided in 

her and they spoke almost every day. D.’s friend was very surprised to hear about the 
8.

allegations against appellant. D. never told the friend, and it was surprising she would 

not tell her something. D.’s friend testified D. does not tell the truth all the time.

Appellant’s employer testified he had known appellant since 2005 and appellant 

was gentle, reliable, honest, an impeccable employee, and a good person. At the time of 

trial, appellant still worked for the employer. On cross-examination, the employer 

testified he would be surprised to know that appellant admitted to being under the 

influence of alcohol at work. 

Appellant’s daughter testified that appellant was always nice, even when he was 

drunk and he never abused her. 

J. and D.’s grandfather Curtis testified the afternoon the police arrived at his 

house, J. never said anything about them coming, and when they arrived, J. buried her 

head into Curtis’s arm. When D. arrived at his house, she went up to J. and asked, “What 

teacher did you tell this to? Did you tell it to one of my teachers?” When Curtis was in 

the back room with them, they were mumbling back and forth. When Tina was talking 

with the detectives, the girls were outside together. Curtis was surprised “[r]ight down to 

the ground” to hear of the allegations. Curtis stated the girls never had anything bad to 

say about appellant and called him “Dad.” According to Curtis, appellant was a good 

father who never raised his voice. Curtis said he did not believe the girls, and that it 

seemed like “every word that comes out of [D.’s] mouth is a lie.”

J. and D.’s grandmother Patricia testified that she was “excited” to be in court 

because she knew appellant was innocent. Patricia was certain the girls were not telling 

the truth because she “know[s]” them. According to Patricia, appellant was a good parent 

and a “god-loving” man who had “never, ever ... done anything wrong.” When appellant

was drunk, his demeanor was “loving.” Patricia said that the day the police came to her 

house, J. was laughing when speaking to the officers. 

In closing argument, defense counsel argued that J.’s “overly-vigilant” choir 

teacher prompted J. to make the allegations against appellant, and D. lied to back up J.’s 
9.

allegations after speaking with her at the grandparents’ house in order to help her get out 

of the strict household. He pointed out the inconsistencies between D.’s testimony and 

her statements to the police. Defense counsel argued that J. made up the allegations 

because she was spending more time with her biological dad and his family who had 

fewer rules. Counsel argued that J. could not have experienced what she said she 

experienced because she made unbelievable statements such as not knowing whether 

appellant’s penis was erect, stating his ejaculate was cold, and she did not say it hurt 

when asked how penetration of her anus felt. Counsel went on to say J. may have been 

truthful but substituted appellant for another perpetrator. Finally, he pointed out 

inconsistencies between J.’s testimony and her statements to the police. 

DISCUSSION

I. CSAAS Expert David’s Love Testimony

A. Relevant Procedural Background

The prosecution moved in limine to introduce CSAAS testimony to explain why J. 

and D. might have failed to report the abuse earlier than they did. Appellant moved in 

limine to preclude CSAAS testimony unless the prosecution identified the myth or 

misconception the evidence was proffered to rebut. The court reserved ruling on the 

CSAAS motions until J. and D. testified to more accurately determine whether the 

evidence could be properly introduced and what the scope would entail. 

Following J.’s and D.’s testimony, an Evidence Code section 402 hearing was held 

during which defense counsel conducted a voir dire examination of Love. Prior to 

Love’s testimony at the hearing, the prosecutor gave an offer of proof that Love would 

testify as to CSAAS and misconceptions that common people may have about child 

victims reporting sexual abuse. The prosecutor explained the majority of Love’s 

testimony would be discussing the delayed reporting and the reasons why through 

discussion of the elements of CSAAS. Following Love’s testimony, the court stated 

Love would be permitted to testify but limited Love’s testimony to CSAAS and delayed 
10.

reporting. The court noted Love was not permitted to testify about statements he made 

during the hearing about “grooming” or his statement that only one percent of alleged 

child sexual abuse victims lie.

B. Love’s Testimony

Before Love testified before the jury, the trial court instructed the jury that Love’s 

testimony on CSAAS was not evidence that appellant committed any of the crimes 

charged and that the jury was only to consider the evidence in deciding whether or not 

J.’s or D.’s conduct was not inconsistent with the conduct of someone who has been 

molested and in evaluating the believability of their testimony. (CALCRIM No. 1193.)

Love is a licensed marriage and family therapist with over 40 years of experience 

working with child sexual abuse victims. He has also taught and conducted research in 

the field of child sexual abuse. Love testified he knew no facts or details related to the 

case and had not spoken with any witnesses or appellant. 

Love testified that CSAAS was “a description of a clinical study” conducted to 

look at the “typical reactions of children who had been sexually molested.” The study 

looked at child sexual molestation victims who were in treatment. The study was 

undertaken because those children “acted” and “responded” “in certain ways” that led 

others, such as their parents and investigators, not to believe them because the behaviors 

were “somewhat different or unique or sometimes, unless you really understood sexual 

molest, didn’t make sense.” Examples of this behavior were delaying disclosure of 

sexual abuse, secrecy surrounding the issues because the children were embarrassed, 

intimidated, or threatened, and inconsistent disclosures due to trauma.

A group of clinicians met, Love being one of them, in 1979 to discuss the need for 

consolidation of the information to help them explain sexual molestation to those outside 

the field. Dr. Roland Summit, who at the time was head physician at UCLA Harbor 

View Medical Center, compiled data provided by the clinicians and wrote an article 

entitled, “The Child Sexual Abuse Accommodation Syndrome,” wherein he summarized 
11.

the information and data to “better explain it to others who were working with children so 

that the children got assistance or got believed in times in which they were truly 

molested.” The article was intended to educate those who were not therapists to 

understand the children and “if indeed children had been molested, they wouldn’t 

disregard what they were saying because it didn’t kind of make, quote, common sense, 

but, in fact, it was pretty consistent with most other sexually molested kids.” There are 

five basic categories to the CSAAS: secrecy; helplessness; entrapment and 

accommodation; delayed, unconvincing disclosure; and retraction. 

Love testified that secrecy “is what makes child sexual abuse function and work.” 

A perpetrator generally selects a child who is vulnerable or interacts with the child in 

such a way that intimidates them so that they do not tell anyone about the abuse. Some 

sort of “coercion or manipulation need[s] to take place” so the child does not disclose. 

When asked by the prosecutor to expound upon whether a power imbalance affects the 

child’s ability or inclination to disclose, Love further testified that “[m]ost people” have a 

preexisting relationship with their abuser, such as an uncle, aunt, mother’s boyfriend, or 

priest. The child’s idea that adults are more likely to believe adults puts the child into a 

helpless position. 

As to “helplessness,” Love testified the majority of abuse happens in a setting such 

as home, boy scout camp, or at school “which should be safe.” Love explained “[o]ne of 

the most common reactions” is that sexually abused children are “functioning in a 

manner where they are not confident” and thus feel helpless. The children do not feel 

comfortable coming forward right away, and “Summit said very clearly please do not 

disregard what a child says when they finally come forward because they were placed in 

a very helpless, vulnerable position by this older, more domineering, more powerful, 

more important person in their life, creating a situation that makes sense when you 

understand the dynamics of the child sexual abuse; why they were not able to come 

forward, why they were helpless, why they didn’t tell right away, why they didn’t explain 
12.

this to others.” An abused child, “particularly a highly traumatized” one, would not see 

running away as an option. 

As to “entrapment” and “accommodation,” Love testified that “Summit was trying 

to explain why kids stay in the situation.” Love explained children who have been 

molested do not feel they have been taken advantage of but that they have done 

something wrong, so they are “basically trapped” and need to “learn to live with it 

somehow or another,” which are characterizations of the accommodation category. Love 

stated many of the children studied in the CSAAS article had posttraumatic stress 

disorder. Summit “looked at what are some of the typical coping mechanisms, and those 

mechanisms sadly led to the point that people started using them to discount what 

children were saying.” Adolescents may increase drug and alcohol use or engage in selfharm. Younger children refuse to go places where they are being molested. Or the child 

may freeze rather than fight and are nice to the offender, say “okay things about” them,

and go places with them because the child’s “fear level is so high.” 

As to delayed or inconsistent disclosures, Love testified of the children observed 

for the CSAAS article, “very few came forward within the first few months or often in 

the first year or so.” Love stated though that can be construed to mean the abuse did not 

happen, the research showed the children were delaying disclosure because they had 

accommodated to the abuse. Love explained, “[W]e [the clinicians involved in providing 

data for Summit’s article] wanted to say delaying is not at all something that people 

should use to disregard what a child has said; and, in fact, most sexually molested kids 

delay for some period of time. Over half never tell.” Love testified for a child to come 

forward “[s]omething has to happen” in his or her life such as reaching a point of safety 

or not having the offender around anymore. 

Love testified victims of sexual assault can sometimes give conflicting accounts at 

different times of what happened. Love explained there are two types of memory: core 

memory and peripheral memory. Core memory covers the sexual acts and peripheral 
13.

memory covers details like what the offender said and what his clothing looked like.

Love testified that core memory “encodes really well” and on recall “has a tendency to be 

more consistent and accurate.” Peripheral memory, on the other hand, “has a tendency to 

be vague, out of [sequence].” Love went on to say children get interviewed again and 

again after a report is made and “we find over those multiple interviews, by the nature of 

memory, there will be some changes.” They sometimes remember something they had 

not disclosed previously. Love then stated: “So the [CSAAS] article was trying to say 

because they don’t remember all the pieces, some of the information isn’t consistent 

across all interviews, they can’t always remember everything, take a look at the core 

[memory] and do you feel like that part is logical within the rest of the information and is 

supportive of the accusation [the] child is saying.”

Love testified that retraction takes place in a limited number of cases. That is, 

after a child victim has already disclosed abuse occurred, they later say it did not happen. 

Love said, “the question that the Summit article wanted to say was be careful and look to 

make sure that someone hasn’t gotten to them, someone hasn’t intimidated them, that you 

... aren’t asking questions in a highly stressful environment, like in court, where the child 

is so stressed that they are really flustered and therefore the best out is to say ‘I don’t 

know. I don’t remember. I’m not sure it happened.’ ” Love explained sometimes it is 

painful or uncomfortable or the stress level is high and stress can cause problems with 

recall. 

The court instructed the jury with CALCRIM No. 1193 on the proper use of 

Love’s testimony a second time before closing argument. 

C. Analysis 

Appellant makes several claims of error with regard to the admission of various 

aspects of Love’s testimony. Though appellant’s counsel moved in limine to exclude 

Love’s testimony and requested a section 402 hearing to determine what the scope of 

Love’s testimony would entail, there were some portions of Love’s testimony which 
14.

appellant challenges and to which trial counsel did not specifically object. Respondent 

contends the failure to specifically object to the challenged portions of Love’s testimony 

forfeited appellant’s claims. To the extent we find any of appellant’s claims have been 

forfeited, appellant contends his counsel rendered ineffective assistance by failing to 

object below. Without deciding whether appellant forfeited any of his claims, we review 

them on their merits because such is relevant to his ineffective assistance of counsel 

claim. 

We will not disturb a trial court’s decision to admit expert testimony on appeal 

unless a manifest abuse of discretion is shown. (People v. McAlpin (1991) 53 Cal.3d 

1289, 1299 (McAlpin).) 

Expert testimony on CSAAS, or “the common reactions of child molestation 

victims” is admissible “ ‘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, supra, 53 Cal.3d at pp. 1300‒1301.) It is 

inadmissible, however, to prove the abuse occurred. (Id. at p. 1300.) 

Courts have recognized that CSAAS evidence is at risk of being “misapplied as a 

predictive index by the jury.” (People v. Bowker (1988) 203 Cal.App.3d 385, 393

(Bowker).) Thus, the evidence must be tailored to the purpose for which it is being 

received; it must be “targeted to a specific ‘myth’ or ‘misconception’ suggested by the 

evidence” though the prosecution does not have to identify the specific misconception to 

be addressed. It is sufficient if the victim’s credibility is placed in issue due to 

paradoxical behavior, such as delay in reporting a molestation or in inconsistent 

statements. (Bowker, at pp. 393‒394; see, e.g., People v. Patino (1994) 26 Cal.App.4th 

1737, 1744‒1745.) Further, a limiting instruction that CSAAS evidence is not intended 

and should not be used to determine whether the victim’s molestation claim is true can 

help reduce the risk that a jury misuses CSAAS evidence. (Bowker, at p. 394.) There is a 

split among the Courts of Appeal as to whether a trial court is required to give a limiting 
15.

instruction sua sponte. (People v. Housely (1992) 6 Cal.App.4th 947, 958‒959 [court is 

required to give limiting instruction]; People v. Mateo (2016) 243 Cal.App.4th 1063, 

1073‒1074 [the court need only give the instruction if requested]; but see People v.

Humphrey (1996) 13 Cal.4th 1073 [where the Supreme Court repeatedly referred to the 

trial court’s duty to give a limiting instruction on the use of battered women’s syndrome 

evidence on request].) 

1. Alleged Violation of Guidelines Set Forth in Bowker

Appellant first contends Love exceeded the permissible scope of CSAAS evidence 

as described in Bowker, supra, 203 Cal.App.3d 385 by improperly (1) eliciting sympathy 

for child victims and advocating that they should be believed and (2) tracking the facts of 

appellant’s case.

In Bowker, the appellate court found the prosecutor had led the CSAAS expert “on 

a testimonial excursion which far exceeded the permissible limits” of the evidence. 

(Bowker, supra, 203 Cal.App.3d at p. 394.) Of the expert’s transgressions were making 

comments “designed to elicit sympathy for child abuse victims and solicitations that 

children should be believed.” The expert in that case “in effect said regardless how 

inconsistent a child’s accounts of abuse are, abused children give inconsistent accounts 

and are credible nonetheless.” (Ibid.) Further, the Bowker expert testified to facts which 

“directly coincided” with facts in the case. (Ibid.) Finally, the expert “constructed a 

‘scientific’ framework into which the jury could pigeonhole the facts of the case,” 

allowing the jury to “superimpose these children on the same theory and conclude abuse 

had occurred.” (Id. at p. 395.) 

Citing Bowker, appellant first argues that Love improperly elicited sympathy for 

child abuse victims and that they should be believed regardless of how inconsistent a 

child’s account is.
16.

We set forth the portions of Love’s testimony that appellant contends runs afoul of 

this limit in italics placed within the context in which it arose as it is relevant to our 

analysis: 

• While testifying on the category of helplessness, Love testified: 

“The article was explaining the common reactions of sexually 

molested children. One of the most common reactions is that 

they’re functioning in a manner where they are not confident. They 

feel helpless. They don’t feel comfortable coming forward. They 

don’t explain to others. And so therefore, because they don’t come 

forward right away, because they can’t tell or don’t tell, Summit 

said very clearly please do not disregard what a child says when 

they finally come forward because they were placed in a very 

helpless, vulnerable position by this older, more domineering, more 

powerful, more important person in their life, creating a situation 

that makes sense when you understand the dynamics of the child 

sexual abuse; why they were not able to come forward, why they 

were helpless, why they didn’t tell right away, why they didn’t 

explain this to others.” 

• While testifying on the category of delayed disclosure, Love 

testified: “[Of the children studied for the CSAAS article], very 

few came forward within the first few months or often in the first 

year or so and told anybody, which could be construed as, well, 

maybe it didn’t happen because they didn’t tell anybody. In the 

body of information collected from this, large number of children 

said, no, they’re delaying because they’ve accommodated. They’re 

in fear. They’re afraid. So we [the clinicians who provided the data 

for the CSAAS article] wanted to say delaying is not at all 

something that people should use to disregard what a child has 

said; and, in fact, most sexually molested kids delay for some 

period of time.” 

• While continuing to discuss the delayed disclosure category, Love 

testified: “So the [CSAAS] article was trying to say because [child 

victims] don’t remember all the pieces, some of the information 

isn’t consistent across all interviews, they can’t always remember 

everything, take a look at the core [memory] and do you feel like 

that part is logical within the rest of the information and is 

supportive of the accusation [the] child is saying.”
17.

• On the retraction category, Love testified: “So [the CSAAS article] 

was a word of caution that if they retract some things, don’t throw 

out everything because a piece of it may not be there any longer.” 

Appellant acknowledges that a CSAAS expert is permitted to explain that “generally 

speaking, delays, inconsistencies, and retractions are not uncommon,” but argues by 

making the above comments, Love, “t[ook] the additional step of telling a jury that 

‘children should be believed’ and ‘regardless how inconsistent a child’s accounts of 

abuse are, abused children give inconsistent accounts and are credible nonetheless,’ ” 

citing Bowker, supra, 203 Cal.App.3d at page 394. We disagree that Love’s testimony 

improperly elicited sympathy for child victims or in effect said the witnesses should be 

believed. 

We start by noting the comments Love made in this case are distinguishable from 

the expert’s comments the appellate court condemned in Bowker. In Bowker, the expert 

volunteered, for example, “ ‘It is very important that a young child, say, any age from 

four to ten, 12 years old, that they be believed.’ ” (Bowker, supra, 203 Cal.App.3d at 

p. 389.) The Bowker expert’s testimony accounted for nearly 70 pages of reporter’s 

transcript and was “replete with comments designed to elicit sympathy for child abuse 

victims and solicitations that children should be believed.” (Id. at p. 394.) 

Here, Love never so directly states that, as a rule, children who make accusations 

of molestation should be believed no matter what, and we do not believe the comments 

appellant challenges had the improper effect of saying children “should be believed.” 

Rather, each of Love’s comments pointed out by appellant was made in the context of 

explaining a particular behavior and was meant to reiterate what Love explained was the 

original intent of the CSAAS article at the beginning of his testimony—to look at typical 

reactions of children who have been sexually molested to ensure those who hear 

accusations do not disregard what the children say “because it didn’t kind of make, quote, 

common sense.” When Love stated a behavior should not be used to disregard a child’s 

statement in the present case, it was because that behavior had historically been used to 
18.

disregard children’s allegations prior to the CSAAS article being published. In context, 

Love’s comments were not advocations that the children be believed but rather an 

explanation that they should not not be believed on the basis they displayed a certain 

behavior. The function of the comments in context was to neutralize the seemingly selfimpeaching behavior rather than advocate for blind belief in children’s statements. These 

comments had substantively the same effect as saying the behavior is not inconsistent 

with children who have been molested—a permissible use for CSAAS evidence. On the 

facts of this case, we find the trial court did not abuse its discretion by allowing the above 

statements. 

We agree with appellant to some extent that, on this record, Love approaches, but 

does not cross, the line of improper CSAAS testimony. In our view, it is best practice for 

CSAAS experts to simply explain the reasons behind children’s seemingly selfimpeaching behaviors and state the behaviors are not uncommon. Love’s additional 

commentary relating that the purpose of CSAAS is to encourage fact finders to not 

“disregard” children’s accusations is unnecessary and if these types of comments had 

been accompanied by more direct statements that children should be believed more akin

to the statements in Bowker, our conclusion may have been different. Here, however, 

these types of comments were not pervasive and did not have the cumulative effect of 

telling the jury the witnesses should be believed simply because they came forward for 

the reasons we have already stated. To the extent any of Love’s comments could be 

construed as improper advocacy for believing the witnesses, the limiting instruction 

would have prevented the jury from using the testimony for an improper purpose.2 

2 To the extent appellant argues the limiting instruction allowed the jury to use the 

CSAAS evidence to determine appellant is guilty because it stated the jury could consider 

the evidence “in evaluating the believability of [the complaining witnesses’] testimony,” 

we reject this argument. A similar argument has been rejected by the appellate court in 

People v. Gonzales (2017) 16 Cal.App.5th 494, which we find persuasive. The Gonzales

court held that a “reasonable juror would understand CALCRIM No. 1193 to mean that 

the jury can use [the CSAAS] testimony to conclude that [the victim’s] behavior does not 
19.

Appellant also cites Bowker to argue Love presented his testimony in a way which 

“directly coincided” with the facts of appellant’s case and improperly “constructed a 

‘scientific’ framework into which the jury could pigeonhole the facts of the case” as the 

expert in Bowker did, by testifying that (1) victims wait years to disclose abuse and give 

various inconsistent versions of what happened; (2) abuse is commonly caused by a 

person the victim knows; (3) some victims say nice things about their abuser; and 

(4) children do not generally report until they reach a point of safety or until something 

significant happens in their lives. Appellant says this testimony improperly coincided 

with the evidence that (1) the girls waited years to disclose the abuse and gave 

inconsistent accounts between their testimony and statements to the police; (2) appellant 

was their stepfather; (3) D. wrote nice things in birthday and father’s day cards to 

appellant; and (4) J. told her choir teacher of the abuse after something “significant” 

happened—D. moving out. 

We do not agree with appellant that the facts to which he refers improperly 

implicated appellant’s guilt or improperly created a framework into which the jury could 

pigeonhole facts. The fact that J. and D. exhibited some of the behaviors discussed by 

Love does not render the testimony inadmissible. To be admissible, CSAAS evidence 

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

(Bowker, supra, 203 Cal.App.3d at pp. 393–394.) Consequently, in every case in which 

CSAAS evidence is properly admitted, the prosecutor’s questions and expert’s testimony 

will necessarily mirror the facts of the case to some extent. 

mean she lied when she said she was abused. The jury also would understand it cannot 

use [the expert’s] testimony to conclude [the victim] was, in fact, molested. The CSAAS

evidence simply neutralizes the victim’s apparently self-impeaching behavior.” 

(Gonzales, at p. 504.) As Gonzales explained, “under CALCRIM No. 1193, a juror who 

believes [the expert’s] testimony will find both that [the victim’s] apparently selfimpeaching behavior does not affect her believability one way or the other, and that the

CSAAS evidence does not show she had been molested. There is no conflict in the 

instruction.” (Gonzales, at p. 504.)
20.

Here, Love never suggested to the jury they should use CSAAS to determine 

whether abuse occurred. We conclude this portion of Love’s testimony remained within 

the limitations of “observations concerning the behavior of abused children as a class and 

[] avoid[ed] testimony which recites either the facts of the case at trial or obviously 

similar facts” (People v. Gilbert (1992) 5 Cal.App.4th 1372, 1384) and there was no 

abuse of discretion. Love explicitly acknowledged he had neither met the witnesses nor 

reviewed any of the reports in this case. Again, the jurors were instructed they could only 

use Love’s testimony to understand seemingly counterintuitive behavior when evaluating 

the witnesses’ believability. 

We conclude Love’s testimony did not impermissibly exceed any scope outlined 

by Bowker. 

2. Alleged Improper Profile Evidence

Appellant further contends Love testified to improper criminal profiling evidence 

by testifying that the majority of abuse is committed by someone with a significant or 

familial relationship with the victim and the victim can be nice to the abuser. We 

disagree.

“A profile is a collection of conduct and characteristics commonly displayed by 

those who commit a certain crime,” and is “ ‘a listing of characteristics that in the opinion 

of law enforcement officers are typical of a person engaged in a specific illegal 

activity.’ ” (People v. Robbie (2001) 92 Cal.App.4th 1075, 1084.) “Profile evidence is 

generally inadmissible to prove guilt.” (Ibid.) The appellate court in Robbie explained 

there is a significant difference between profile evidence, which is improper, and 

evidence “admitted in recognition that a misleading notion existed in the public 

consciousness and to disabuse jurors of the misconception,” which is admissible. (Id. at 

p. 1087.) 

Here, the facts to which appellant refers were not presented to the jury as “profile 

evidence.” Rather, the testimony that many victims have a preexisting relationship with 
21.

their abusers was presented as an explanation for why a child victim may keep the abuse 

a secret or feel helpless. The function of this testimony was to counteract the 

misconception that children would report abuse right away. Love’s comment that victims 

can be nice to the abuser was presented as an example of how a victim might 

“accommodate” the abuse. The function of this testimony was to counteract the 

misconception that a victim would never be nice to someone who had abused them. We 

conclude Love did not construct a profile of offenders that the jury could use to 

determine guilt.

3. Alleged Improper Statistical Evidence

Appellant next argues that Love testified as to improper statistical evidence. We 

disagree. 

Juries “must evaluate” the evidence “without statistical evidence placing a thumb 

on the scale for guilt.” (People v. Wilson (2019) 33 Cal.App.5th 559, 571 (Wilson).)

“Where expert opinions on the statistical probability of guilt are admitted, the jury may 

be ‘distracted’ from its ‘requisite function of weighing the evidence on the issue of guilt,’ 

and may rely instead on this ‘irrelevant’ evidence.” (People v. Julian (2019)

34 Cal.App.5th 878, 886 (Julian), quoting People v. Collins (1968) 68 Cal.2d 319, 327.)

Appellant argues the cumulative effect of Love’s testimony that (1) “one out of 

four women and one out of six men will be molested or raped by the time they’re 18 in 

the ... State of California”; (2) “[m]ost” victims have a preexisting relationship with the 

abuser, such as an uncle, aunt, mom’s boyfriend, or priest; (3) the “majority” of abuse 

happens in a setting such as home, boy scout camp, or at school; and (4) “[o]ver half” 

never report abuse “suggested that there was a high statistical probability that appellant 

was guilty” and was thus improper. To support his contention, appellant cites Wilson, 

supra, 33 Cal.App.5th 559 and Julian, supra, 34 Cal.App.5th 878. Both cases are 

distinguishable. 
22.

In Wilson, after the CSAAS expert testified about CSAAS, the prosecutor said 

they wanted to “ ‘step outside of the accommodation syndrome’ ” and talk about “ ‘false 

allegations.’ ” (Wilson, supra, 33 Cal.App.5th at p. 568.) The expert testified that false 

allegations occur “ ‘very infrequently or rarely,’ ” most often during a child custody 

dispute and that a study found “ ‘about 4% of cases in which there was an allegation that 

was determined to be false.’ ” (Ibid.) The Wilson court found the practical result of this 

evidence “was to suggest to the jury that there was an overwhelming likelihood [the 

victims’] testimony was truthful.” (Id. at p. 570.) The appellate court concluded the 

evidence was not relevant and more prejudicial than probative and therefore inadmissible, 

but that the admission was harmless because the victims testified extensively, other 

percipient witnesses were called, and the defense offered effective rebuttal expert 

testimony. (Id. at pp. 571‒572.) 

In Julian, the same CSAAS expert who testified in Wilson testified that false 

allegations were infrequent and there were studies purporting to show that only one to 

eight percent of these types of allegations were false. (Julian, supra, 34 Cal.App.5th at 

p. 884.) The appellate court held the statistical evidence was not admissible as CSAAS 

evidence and deprived the defendant of his right to a fair trial. (Id. at p. 886.) 

Unlike in Wilson and Julian, Love made no such statements regarding the 

probability that a report is false or true. We agree with appellant in part that Love’s 

comment that one out of four women will be molested by the time they are 18 was 

inappropriate. The comment was volunteered by Love while discussing the element of 

secrecy. One of the next sentences Love said was, “So we’ve got a large number of 

people this happens to in our culture, much higher than we’d like to believe. But we 

certainly understand now very few of those people tell.” In context, Love was not 

implicating that J. and D. had been molested but that child molestation is widespread and 

many do not disclose the abuse, which underlined Love’s point that the unique 

circumstances of child sexual abuse can cause secrecy and delayed disclosure. We 
23.

conclude that while this comment did not rise to the level of improper statistical evidence 

akin to that in Wilson and Julian, it was irrelevant and should not have been admitted. 

We also conclude however the comment’s admission was harmless. We presume the jury 

would follow the CALCRIM No. 1193 instruction that it must not use Love’s testimony 

for the improper purpose of concluding the victims were molested. Further, the comment 

was brief and offhanded, and was not highlighted again by Love or the prosecutor during 

Love’s testimony or argument.

The remainder of the “statistical” testimony identified by appellant was relevant in 

that each comment was an identification of a common reason why child abuse victims 

would not immediately report sexual abuse. We do not find, as appellant suggests, that 

the cumulative effect of these comments were that J. and D. were molested. Rather, they 

were used to explain why children who have been abused display certain behaviors and 

that those behaviors were not uncommon among child sexual abuse victims. 

4. Section 352 

Appellant argues any probative value of Love’s testimony was outweighed by 

undue prejudice, and therefore the trial court abused its discretion under Evidence Code 

section 352 by admitting it.

3

 We disagree.

Appellant first suggests there was no probative value of the evidence: that it was 

“totally unnecessary” to the prosecution’s case because jurors “were likely already 

aware” “that sometimes abused children delay in reporting or make inconsistent 

statements” and thus the prosecution could have “easily” addressed the points in closing 

argument and by the jury instruction on witness credibility, which instructs the jury not to 

automatically reject testimony just because of inconsistencies or conflicts. The Court of 

Appeal in People v. Munch (2020) 52 Cal.App.5th 464 has recently rejected the argument 

3 “The court in its discretion may exclude evidence if its probative value is 

substantially outweighed by the probability that its admission will (a) necessitate undue 

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

issues, or of misleading the jury.” (Evid. Code, § 352.)
24.

that CSAAS evidence is no longer relevant because “ ‘the public no longer holds the 

presumed misconceptions this testimony purports to address.’ ” (Id. at p. 468.) There, 

the court held that it was bound by the high court’s holding in McAlpin, supra, 53 Cal.3d 

1289 that CSAAS evidence is admissible to rehabilitate a child sexual abuse victim’s 

credibility and “ ‘ “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. Munch, at p. 468; see Auto Equity

Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) We agree with the appellate 

court in Munch and conclude the evidence was probative under McAlpin based on the 

state of the evidence. 

Appellant argues, on the other hand, the undue prejudice was high for the same 

reasons he argues the evidence exceeded the permissible scope of CSAAS evidence. We 

disagree the trial court abused its discretion by allowing the evidence. Evidence is not 

“prejudicial” merely because it may be harmful to a criminal defendant’s case. (People v.

Megown (2018) 28 Cal.App.5th 157, 164.) Evidence only creates “undue prejudice” if 

the evidence tends to evoke an emotional bias by the jurors against the defendant, and the 

evidence has little effect on the issues relevant in the particular case. (Ibid.) For the 

same reasons we have already discussed to conclude the testimony was within the limits 

of permissible CSAAS evidence, we conclude there was no undue prejudice resulting 

from the admission of Love’s testimony. We find no abuse of discretion.

5. Alleged Due Process Violation

Finally, appellant contends the admission of Love’s testimony rendered 

appellant’s trial fundamentally unfair so as to violate federal due process rights for the 

same reasons why he contends they exceeded the permissible scope of CSAAS 

testimony. We disagree.

A court’s compliance with the rules of evidence ordinarily do not infringe on a 

defendant’s right to a fair trial. (People v. Hall (1986) 41 Cal.3d 826, 834‒835.) Here, 
25.

appellant’s due process claim is based on the premise that the admission of the CSAAS 

evidence violated state evidentiary law. Because we have found no evidentiary errors 

regarding the admission of the CSAAS expert testimony (with the exception of one of 

Love’s comments, which we have discussed ante), we are not persuaded by appellant’s 

argument. This court has rejected a claim that properly admitted CSAAS evidence 

violates due process: “The United States Supreme Court has held the admission of 

relevant evidence of the battered child syndrome does not violate the due process clause 

of the Fourteenth Amendment. (Estelle v. McGuire (1991) 502 U.S. 62, 69‒70.) 

Battered child syndrome evidence is analogous to CSAAS evidence. (People v. Bowker,

supra, 203 Cal.App.3d at pp. 393‒394.) For this reason, there can be little doubt the due 

process dimensions of both types of evidence is similar if not identical. Therefore, 

introduction of CSAAS testimony does not by itself deny appellant due process.” 

(People v. Patino, supra, 26 Cal.App.4th at p. 1747.) We agree with this court’s decision 

in Patino and find no due process violation. 

6. Alleged Ineffective Assistance of Counsel Claim

Because Love’s testimony was properly admitted, we reject appellant’s argument 

that his counsel was ineffective in failing to object to it. (See People v. Anderson (2001) 

25 Cal.4th 543, 587 [“Counsel is not required to proffer futile objections.”]; People v.

Price (1991) 1 Cal.4th 324, 387 [“Counsel does not render ineffective assistance by 

failing to make motions or objections that counsel reasonably determines would be 

futile.”].)

II. Constitutionality of Section 288.5 

Appellant contends section 288.5 violates his state constitutional right to a 

unanimous verdict and his federal constitutional rights to due process and a jury trial. We 

disagree. 

Section 288.5, subdivision (a) defines the offense of “continuous sexual abuse of a 

child” as when “[a]ny person who either resides in the same home with the minor child or 
26.

has recurring access to the child, who over a period of time, not less than three months in 

duration, engages in three or more acts of substantial sexual conduct[4] with a child under 

the age of 14 years at the time of the commission of the offense, ... or three or more acts 

of lewd or lascivious conduct,[5] ... with a child under the age of 14 years at the time of 

the commission of the offense.” The statute specifies that a jury “need unanimously 

agree only that the requisite number of acts occurred not on which acts constitute the 

requisite number.” (§ 288.5, subd. (b).) The prosecution is expressly prohibited by the 

statute from charging any other act of substantial sexual conduct or lewd and lascivious 

acts involving the same victim unless the acts occurred outside the time period specified 

in the section 288.5 charge or unless it is charged in the alternative. (§ 288.5, subd. (c).) 

The prosecution is also limited to charging a defendant with only one section 288.5 

charge per victim. (§ 288.5, subd. (c).) 

“The starting point of our analysis is ‘the strong presumption that legislative 

enactments “must be upheld unless their unconstitutionality clearly, positively, and 

unmistakably appears.” ’ ” (Williams v. Garcetti (1993) 5 Cal.4th 561, 568.) We review 

the constitutionality of statutes de novo. (People v. Abbate (2020) 58 Cal.App.5th 100, 

109.) 

Appellant first argues that section 288.5 violates the state constitution’s guarantee 

of a right to a unanimous verdict by allowing for conviction without the juror’s 

unanimous agreement on which specific acts constitute the offense. Appellant 

acknowledges several appellate courts have rejected the same argument. (People v. 

4 “Substantial sexual conduct” is defined in section 1203.066, subdivision (b), as 

penetration of the vagina or rectum of either the victim or the offender by the penis of the 

other or by any foreign object, oral copulation, or masturbation of either the victim or the 

offender. 

5 Section 288 describes lewd and lascivious acts as when one willfully and lewdly 

commits any lewd or lascivious act, upon or with the body, or any part or member 

thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing 

to, or gratifying the lust, passions, or sexual desires of that person or the child.
27.

Higgins (1992) 9 Cal.App.4th 294, 299, 305‒308; People v. Avina (1993) 14 Cal.App.4th 

1303, 1308‒1314 (Avina); People v. Gear (1993) 19 Cal.App.4th 86, 89‒94; People v. 

Whitham (1995) 38 Cal.App.4th 1282, 1295‒1298 (Whitham); People v. Adames (1997) 

54 Cal.App.4th 198, 206‒208; People v. Cissna (2010) 182 Cal.App.4th 1105, 1123‒

1126.) These courts have held that because section 288.5 is a “course-of-conduct” 

offense, it falls into an unanimity requirement exception because the actus reus of the 

offense is a series of acts rather than a specific act. 

Appellant argues that these cases were wrongly decided and should not be 

followed because they are incorrect in categorizing section 288.5 as a course-of-conduct 

offense. Appellant distinguishes section 288.5 from the course-of-conduct offenses of 

child abuse (§ 273a), spousal battery (§ 273.5), animal cruelty (§ 597), accessory after the 

fact (§ 32), and dissuading a witness (§ 136.1). He argues those course-of-conduct

crimes may be comprised of individual acts that are not themselves criminal, and none of 

those offenses requires a specific number of defined qualifying acts be committed over a 

specific time period, unlike section 288.5. On the other hand, according to appellant,

section 288.5 is a composite crime consisting of three or more individual crimes 

committed over a minimum period of time, which is completed the instant the time 

period has run and the third qualifying crime has been committed. We disagree with 

appellant’s assessment. 

The question of whether an offense is a course-of-conduct offense focuses on 

whether the Legislature intended to make it one. (Avina, supra, 14 Cal.App.4th at 

p. 1310.) In the case of section 288.5, the Legislature “[o]bviously ... intended to create 

a course-of-conduct offense” because subdivision (b) expressly states that it is to be 

treated as a continuous course-of-conduct crime for purposes of the unanimity rule. 

(Avina, at p. 1310; accord, Whitham, supra, 38 Cal.App.4th at p. 1296 [“The text of

section 288.5 leaves no doubt the Legislature intended to create a course-of-conduct

offense [citations]; it is undeniably ‘ “the continuing course of abuse which leads to 
28.

prosecution and conviction.” ’ ”]; People v. Higgins, supra, 9 Cal.App.4th at p. 304 

[“The Legislature has the prerogative to proscribe a course of conduct, rather than 

specific acts, a prerogative exercised by adoption of [] section 288.5.”].) 

We agree with the courts who have rejected arguments similar to appellant’s and 

find Avina particularly persuasive. In rejecting the defendant’s argument that 

section 288.5 is a “composite” crime, the Avina court held that section 288.5’s 

requirement the defendant commit three or more acts of sexual abuse against the child, 

any one of which would be criminal in itself, was not dispositive because “[s]everal

statutes held to define course-of-conduct crimes may also be violated by a single act; 

these include child abuse (§ 273a), spousal battery (§ 273.5), and dissuasion of a witness 

(§ 136.1). That section 288.5 can, in theory, be violated by committing only three 

individual acts does not remove it from the course-of-conduct category.” (Avina, supra, 

14 Cal.App.4th at p. 1310.) 

The Avina court thoroughly explained the course-of-conduct characteristics of the 

offense. First, the Avina court explained that “section 288.5 defines the offense more 

narrowly than as a series of three molestations.” (Avina, supra, 14 Cal.App.4th at 

p. 1310.) The statute also requires “residence with or recurring access to the child victim, 

as well as sexual abuse over a period of three months or more.” (Id. at p. 1310‒1311.) 

The Avina court reasoned that “[t]he three-act requirement merely sets a ‘baseline’ for 

measuring the course of conduct, while ‘the continuous-access requirement makes clear 

that the statute was targeted at the resident child abuse situation, where problems with 

generic testimony are most likely to arise, and was not to be used against individuals who 

have only transient contact with the alleged victim.’ ” (Id. at p. 1311.) 

The Avina court went on to liken residential sexual abuse with other course-ofconduct crimes. Even though each act contemplated in section 288.5 may be criminal,

the Avina court explained, “the harm done to the victim is cumulative and may be 

exacerbated not only by frequent repetition, but by the very circumstances of residential 
29.

intimacy that make the course of conduct possible.” (Avina, supra, 14 Cal.App.4th at 

p. 1311.) 

Finally, the Avina court pointed out that section 288.5 has another characteristic of 

a course-of-conduct crime that is of “substantial benefit to a defendant”—that the 

prosecution may only charge one count per victim. (Avina, supra, 14 Cal.App.4th at 

p. 1311.) We find Avina well-reasoned and persuasive on the point that contrary to 

appellant’s argument, section 288.5 is a course-of-conduct offense and unanimity as to 

the specific acts that make up the offense is not required.

Appellant also contends section 288.5 violates his federal constitutional rights to 

due process and a jury trial because these rights require the prosecution to prove every 

element of the offense to the jury beyond a reasonable doubt. We disagree. “ ‘Courts

presume a statute is constitutional. [Citation.] ... To show a violation of due process, a 

defendant must show that the statute, as applied, offended a principle of justice so rooted 

in the traditions and consciousness of the country that it is considered fundamental.’ ” 

(People v. Robertson (2012) 208 Cal.App.4th 965, 995.) 

Here, “it is the number of acts of molestation which is the essential element of the 

crime,” not the acts themselves. (Whitham, supra, 38 Cal.App.4th at p. 1297.) Appellant 

has cited no authority which stands for the proposition that, when more than one act can 

make up the element of an offense, a jury must unanimously agree on the act that 

constitutes that element. (See People v. Leffel (1988) 203 Cal.App.3d 575, 586 

[suggesting there is no such requirement].) Under section 288.5, the jury is required to 

find beyond a reasonable doubt that a defendant committed three or more qualifying acts, 

which is all that is constitutionally required because the number of acts over a prolonged 

period of time is the actus reus, not the acts themselves. Appellant has not shown his due 

process right to a verdict beyond a reasonable doubt has been violated. 
30.

III. Sentencing Errors

A. Unauthorized Indeterminate Sentences Pursuant to Section 667.61

Appellant contends the indeterminate sentences imposed based on multiple victim 

allegations under section 667.61 were unauthorized. Respondent concedes the sentences 

violated ex post facto laws. We accept respondent’s concession.

Section 667.61 provides that when certain enumerated offenses are perpetrated 

against multiple victims, those offenses shall be punishable by prison terms of 15 years to 

life. (§ 667.61, subds. (b), (c) & (e)(4).) Both section 288, subdivision (a) and 

section 288.5 are listed. (§ 661.61, subd. (c)(8) & (9).) Section 288.5, however, was not 

added to the list until September 20, 2006. (Stats. 2006, ch. 337, § 33, eff. Sept. 20, 

2006.) In the present case, count 3 was alleged to have occurred between March 27, 

2006, and March 26, 2013. 

Both the federal and state constitutions prohibit ex post facto laws. (U.S. Const., 

art. I, § 10; Cal. Const., art. I, § 9; Collins v. Youngblood (1990) 497 U.S. 37, 41; Tapia v. 

Superior Court (1991) 53 Cal.3d 282, 288.) We interpret the state ex post facto clause no 

differently than its federal counterpart. (People v. Snook (1997) 16 Cal.4th 1210, 1220.) 

“The standard for determining whether a law violates the ex post facto clause has 

two components, ‘a law must be retrospective—that is, “it must apply to events occurring 

before its enactment”—and it “must disadvantage the offender affected by it” ... by 

altering the definition of criminal conduct or increasing the punishment for the 

crime....’ ” (People v. Delgado (2006) 140 Cal.App.4th 1157, 1164.) 

The maximum penalty that may be imposed on appellant depends upon whether he 

committed the offense before or after the effective date of section 667.61. Therefore, to 

invoke the sentencing provisions of section 667.61, the prosecutor had to prove to the 

jury that appellant committed those offenses on or after the statute’s effective date. (See 

People v. Hiscox (2006) 136 Cal.App.4th 253, 260.)
31.

Because the jury was not required to make a unanimous finding that appellant 

committed the offense after September 20, 2006, and because the jury could have found 

he committed the section 288.5 offense prior to the September 20, 2006, effective date of 

section 667.61, the law may have applied to events occurring before its enactment. 

Appellant’s 15-year-to-life terms imposed on counts 1 and 3 must be vacated and 

the matter remanded for resentencing under the law in effect prior to September 20, 2006. 

B. Error Imposing Consecutive Sentences

Appellant contends the trial court imposed consecutive sentences under the 

mistaken impression it was required to under section 667.6, subdivision (d), which did 

not apply in appellant’s case. Respondent concedes the trial court erroneously thought 

consecutive terms were mandated for counts 1 and 3 and that remand is appropriate. We 

accept respondent’s concession. 

Section 667.6 provides that a full, separate, and consecutive term shall be imposed 

for each violation of enumerated offenses if the crimes involve separate victims or 

involve the same victim on separate occasions. The statute “ ‘applies only when a 

defendant stands convicted of more than one offense specified.’ ” (People v. Maharaj

(2012) 204 Cal.App.4th 641, 649, italics omitted.) 

Here, the only offense appellant was convicted, which is enumerated in the list, is 

section 288.5. (§ 667.6, subd. (e).) However, the trial court indicated it was required to 

impose consecutive sentences under section 667.6, subdivision (d), expressed it did not 

“like the idea of a life sentence in this case,” and expressly stated that the mandatory 

consecutive sentences was what the court believed was “the problem [with sentencing] in 

this case.” 

Because section 667.6, subdivision (d) did not apply, and the trial court imposed 

full, consecutive sentences because it believed the subdivision did apply, the matter must 

be remanded for resentencing for the trial court to properly exercise its discretion as to 

whether to impose consecutive or concurrent sentences on counts 1 and 3. 
32.

C. Dueñas Claim

At appellant’s sentencing, the court imposed the minimum restitution fine of $300 

(§ 1202.4). The court found appellant did not have the ability to pay the probation report 

fee of $296, but stated it was required to impose a courtroom security fee of $40 for each 

conviction for a total of $120 (§ 1465.8) and a $30 criminal conviction assessment for 

each conviction for a total of $90 (Gov. Code, § 70373). 

Since appellant’s sentencing, the Second Appellate District decided Dueñas, 

supra, 30 Cal.App.5th 1157. In Dueñas, the appellate court held the imposition of the 

nonpunitive court security fee (§ 1465.8, subd. (a)(1)) and criminal conviction assessment 

(Gov. Code, § 70373, subd. (a)(1)) without a determination of the defendant’s ability to 

pay them violated due process. (Dueñas, at p. 1164.) The Dueñas court also held that if 

the defendant has demonstrated an inability to pay the restitution fine, which is intended 

to be punitive (§ 1202.4, subd. (b)(1)), the trial court must stay execution of the fine until 

the People prove the defendant has gained the ability to pay. (Dueñas, at p. 1164.)6

Relying on Dueñas, appellant asserts his rights to due process and to be free from 

excessive fines were violated by the court imposing the $120 court security fee, the $90 

criminal conviction assessment, and the $300 restitution fine despite its finding appellant 

had the inability to pay them. Respondent takes the position that since the matter is being 

remanded, appellant should raise his ability-to-pay claim below. We agree with 

respondent. 

Upon remand, appellant “will bear the burden of both demonstrating a harm of 

constitutional magnitude and making a record regarding his alleged inability to pay the 

restitution fine and court assessments.” (People v. Montes (2021) 59 Cal.App.5th 1107, 

1121; see People v. Castellano (2019) 33 Cal.App.5th 485, 490 [“[A] defendant must in 

6 The California Supreme Court is now considering (1) whether trial courts must 

consider a defendant’s ability to pay before imposing or executing fines, fees, and 

assessments; and (2) if so, which party bears the applicable burden of proof. (See People 

v. Kopp (2019) 38 Cal.App.5th 47, 94‒98, rev. granted Nov. 13, 2019, S257844.)
33.

the first instance contest in the trial court his or her ability to pay the fines, fees and 

assessments to be imposed and at a hearing present evidence of his or her inability to pay 

the amounts contemplated by the trial court.”].) “[W]e express no view as to whether 

defendant may be able to state a viable claim that ultimately withstands constitutional 

scrutiny on review.” (People v. Montes, at p. 1121.)

DISPOSITION

Appellant’s sentences imposed on counts 1 and 3 are vacated and the matter is 

remanded for resentencing. Upon remand, the court shall apply the law in effect prior to 

the amendment of section 667.61 on September 20, 2006, and properly exercise its 

discretion as to whether to impose consecutive or concurrent sentences. If appellant 

chooses, he may request an ability-to-pay hearing where he will bear the burden of 

showing a harm of constitutional magnitude and to make a record regarding his alleged 

inability to pay. 

In all other respects, the judgment is affirmed.

 DE SANTOS, J.

WE CONCUR:

DETJEN, Acting P.J.

PEÑA, J.