Filed 10/14/14 P. v. Gudiel CA2/7 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

SECOND APPELLATE DISTRICT 

DIVISION SEVEN 

THE PEOPLE, 

 Plaintiff and Respondent, 

 v. 

ARNOLDO GUDIEL, 

 Defendant and Appellant. 

 B246976 

 (Los Angeles County 

 Super. Ct. No. PA068885) 

 APPEAL from a judgment of the Superior Court of Los Angeles County, 

Katherine Anne Stoltz, Judge. Affirmed. 

 Richard D. Miggins, under appointment by the Court of Appeal, for Defendant 

and Appellant. 

 Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney 

General, Lance E. Winters, Assistant Attorney General, Steven D. Matthews and 

Roberta L. Davis, Deputy Attorneys General, for Plaintiff and Respondent. 

____________ 
2

 Arnoldo Gudiel was convicted by a jury of continuous sexual abuse of a child 

under 14 years old and committing a lewd act on a child under 14 years old. On appeal 

Gudiel contends the court deprived him of a fair trial by making a disparaging comment 

about him during voir dire; admitting irrelevant and prejudicial evidence, including 

expert testimony on child sexual abuse accommodation syndrome; and failing to instruct 

the jury on the limited use of certain evidence. He also contends, to the extent he has 

failed to preserve any of these arguments on appeal, his trial counsel was constitutionally 

ineffective in failing to object to the errors at trial. We affirm. 

FACTUAL AND PROCEDURAL BACKGROUND 

 1. The Operative Third Amended Information 

Gudiel was charged in the operative third amended information filed on July 10, 

2012 with one count of continuous sexual abuse of his live-in girlfriend’s daughter, 

Shandy G., a child under 14 years old, during the period March 20, 2005 through 

October 17, 2010 (Pen. Code, § 288.5, subd. (a))1

 (count 1) and one count of committing 

lewd conduct on a child under 14 years old on or about October 18, 2010 (§ 288, 

subd. (a)) (count 3).2

 Gudiel pleaded not guilty. 

 2. The Evidence at Trial 

Gudiel became romantically involved with Sandra Jimenez, Shandy’s mother, 

when Shandy (born in 1997) was three years old. He later moved in with them, and they 

lived together as a family. He and Jimenez had two children together, a son born in 

March 2005 and a daughter born in October 2006. Shandy considered Gudiel her 

stepfather. 

 1

 Statutory references are to the Penal Code unless otherwise indicated. 

2 Guidel had previously been charged with two counts of committing lewd conduct 

on a child under 14 years old, as well as one count of continuous sexual abuse of a child 

under 14 years old. A jury found him not guilty on one count of committing lewd 

conduct but was unable to reach a verdict on the other two charges. After a mistrial was 

declared as to those two counts, they were recharged in a slightly revised form in the 

operative third amended complaint. 
3

 Shandy testified Gudiel sexually abused her on a frequent basis during the period 

January 2005 through October 17, 2010. Prior to October 2008, Gudiel on numerous 

occasions touched Shandy’s breast area under her clothes with his hands and his mouth 

and “touched” her vagina with his hands, mouth and penis. In October 2008, after the 

family moved and Gudiel acquired a minivan, the abuse became both more consistent and 

more pervasive: Gudiel would take Shandy with him on an errand in the minivan, stop 

the minivan in a parking structure adjacent to their apartment building and instruct 

Shandy to lie down in the back area of the vehicle. Once Shandy complied, Gudiel 

would move to the back of the minivan, remove her clothes, pull down his own pants 

and, using a condom, rub his penis against her vagina while he moaned. He also used his 

hands and mouth to touch Shandy’s breasts. After he ejaculated, he would remove the 

used condom and throw it into a nearby dumpster. This pattern of abuse occurred 

frequently between October 2008 and October 17, 2010. 

 On October 18, 2010 Gudiel took Shandy and her little sister on an errand in the 

minivan. When they returned, they saw Jimenez outside their apartment building talking 

with a relative. After greeting Jimenez and the relative, Gudiel pulled into the adjacent 

structure and parked. With Shandy’s younger sister asleep in her car seat, Gudiel 

sexually assaulted Shandy in the back of the minivan in the same manner as on previous 

occasions, albeit with one exception: This time he stopped before ejaculating and told 

Shandy to get dressed. He put his own clothes back on and returned to the driver’s seat. 

Jimenez walked into the parking structure and saw shadows of people moving from the 

back of the minivan to the front of the vehicle. Curious and confused by the apparent 

movement in the minivan, she opened the sliding side door and found Shandy lying 

down, fully clothed, in the back of the vehicle. Jimenez asked Shandy why she was lying 

down since she had been in the front passenger seat when Jimenez had seen them pull 

into the garage five minutes earlier. Shandy did not respond. Gudiel, whose face 

appeared very red, told Jimenez Shandy was resting because she had a headache. When 

Jimenez questioned Shandy later without Gudiel present, Shandy told her about the 

continuing abuse. Shandy had not told her mother earlier because Gudiel had sworn her 
4

to secrecy and warned she could be taken away from Jimenez if the abuse were 

discovered. She also thought it would make her mother sad. Jimenez told Shandy she 

believed her and, after taking a day to think about how to proceed, called the police. 

 While in custody in a Los Angeles County jail, Gudiel called Shandy and Jimenez 

on the telephone. During the conversation, which was conducted entirely in Spanish 

(Gudiel’s and Jimenez’s native language) and recorded by the Los Angeles Police 

Department, Gudiel told Jimenez, “yes I did touch [Shandy]” but only once. He urged 

Jimenez to ask Shandy whether she had “come on” to him and tearfully expressed his 

hope that one day Jimenez could forgive him. He said he would ask God to forgive and 

help him. Gudiel also spoke to Shandy during the conversation and asked her to forgive 

him. Gudiel asked Jimenez to withdraw the accusation against him and said, if she did, 

he would move far away from the family and never see the children again. The recorded 

conversation was played for the jury. In addition, the jury was given a written transcript 

of the conversation, translated into English. Gudiel’s counsel stipulated the transcript 

was an accurate English translation of the conversation. 

 During her trial testimony Shandy often appeared reluctant to answer questions, 

stating she did not want to talk about the abuse and wanted to forget it had happened. 

Joyce Medley, a licensed marriage and family therapist, testified as an expert witness on 

child sexual assault accommodation syndrome (CSAAS), which she explained consisted 

of a cluster of behaviors often observed in child sexual abuse victims. She explained the 

pattern had five identifiable behaviors—secrecy, helplessness, entrapment, 

accommodation and delayed, and often unconvincing, disclosure of the abuse. Medley’s 

testimony consisted of identifying the patterns of behavior and explaining the reasons 

such behaviors, including a reluctance to report the abuse, were exhibited by child 

victims of sexual abuse. She also acknowledged she did not know the facts of this case 

and did not offer an opinion as to whether Shandy met the criteria for CSAAS. 

 Gudiel testified in his own defense and denied sexually abusing Shandy. When 

Jimenez opened the door to the minivan on October 18, 2010 and saw Shandy, Gudiel 

had just hit Shandy hard on the bottom of her foot as punishment for taking her seatbelt 
5

off prematurely. He asked Jimenez and Shandy for forgiveness because he had never 

before physically disciplined Shandy and he felt guilty for it. He told Jimenez during the 

recorded telephone call that he had “touched” Shandy because he did not want to admit 

he had hit her. When he asked Jimenez to inquire whether Shandy had ever come on to 

him, he simply meant for Jimenez to inquire whether Shandy was seeking attention with 

these accusations. 

 William O’Donohue, a clinical psychologist, testified as an expert witness for the 

defense. He discussed in detail the problems of suggestibility and false memory that can 

arise when adults interview children about sexual abuse. He also explained the behaviors 

identified with CSAAS generally do not occur in cases in which the child’s accusation is 

believed from the beginning. 

 Deborah Dotson, Shandy’s fifth grade teacher in the 2007-2008 academic year, 

testified Shandy did not disclose to her she had been abused. Dotson acknowledged she 

was not trained in detecting sexual abuse and did not have a particularly close 

relationship with Shandy. 

3. The Verdict and Sentence 

 The jury found Gudiel guilty on both counts. The trial court sentenced Gudiel to 

an aggregate state prison term of 15 years, 12 years (the high term) for count 1 and a full 

and consecutive three years (the low term) for count 3. 

DISCUSSION 

1. The Court’s Comments During Voir Dire Were Not Improper 

After administering the oath to potential jurors, the court stated as part of its 

introductory remarks to the jury venire, “The next thing I am going to do is tell you the 

nature of the charges in the case and just a little bit about the case. And let me just stress 

to you that these are only charges and are not in any sense evidence against Mr. Gudiel. 

So this is just was the prosecutor claims happened. I am not telling you that this is what 

happened. That’s what we are here to find out, okay? So these are just charges.” The 

court identified the charges in the information and told the jury it would then entertain 

any excuses for not being able to serve as a juror. The court explained jury service was 
6

an important civic duty and it would not be easy to be excused from service. It stated, “I 

don’t want you to raise your hand and say, ‘oh, judge, I can’t be fair because I don’t like 

child molesting.’ Of course you don’t like child molesting. Most people don’t. You 

can’t expect me to try this case with a full jury of people who like child molesting, okay? 

That wouldn’t be realistic. . . . The issue is whether or not you can be fair and impartial, 

and that’s whether or not you can set aside your feelings and decide this case with your 

mind, okay? That’s what the attorneys are looking for. They’re looking for jurors who 

can decide this case just looking at the evidence and in their mind decide on a fair result, 

okay, without letting their feelings or their emotions affect their judgment.” 

 Before dismissing potential jurors for the day, the court ordered them “not to 

discuss the case with anyone, and that includes with your friends, your relatives, your 

coworkers, your husband, your wife, your best friend in the whole world. . . . Don’t even 

tell them the charges. Because if you go running home and say ‘Oh, I am on a child 

molesting case,’ you know they’re going to go, ‘Oh, you know, this is what I think about 

child molesters’ and they are going to start to try to influence you, and we don’t want that 

to happen.” 

 Gudiel, whose counsel did not object to the comments, contends the court’s 

remarks “effectively told the jury panel that [he] was a child molester,” prejudicing the 

jury venire and depriving him of the ability to obtain a fair trial. To overcome the bar of 

forfeiture (see People v. Houston (2012) 54 Cal.4th 1186, 1220 [claim of judicial 

misconduct forfeited when an objection could have cured the prejudice and there was no 

reason to conclude objection would be futile]), he asserts his counsel was constitutionally 

ineffective in failing to object to the comments when they were made. Assuming 

arguendo Gudiel has presented a cognizable claim,3

 it fails on its merits. Far from 

 3

 The Attorney General contends Gudiel has not presented a cognizable claim of 

judicial misconduct because he cannot show any of the potential jurors who heard the 

remarks actually served on the jury. The court’s comments occurred during the voir dire 

of an initial panel. According to the Attorney General, other potential jurors were 

brought after the initial venire was depleted; and the subsequent voir dire proceedings, 

although transcribed, are not included in the record on appeal. (See In re Kathy P. (1979) 
7

labeling Gudiel a child molester, the court’s comments provided an appropriate 

explanation of the difference between charges and evidence and properly described the 

jurors’ obligation to set aside their personal views relating to the nature of the charges 

and to decide the case based solely on the evidence presented. Because none of the 

identified comments was objectionable, much less prejudicial, Gudiel cannot show his 

counsel was constitutionally ineffective in failing to object to them. (See People v. 

Boyette (2002) 29 Cal.4th 381, 430-431 [to establish a violation of the criminal 

defendant’s constitutional right to effective assistance of counsel, a defendant must show 

both that his counsel’s performance was constitutionally deficient and the deficient 

performance resulted in prejudice]; People v. Kipp (1998) 18 Cal.4th 349, 366 [same]; 

Strickland v. Washington (1984) 466 U.S. 668, 687 [104 S.Ct. 2052, 80 L.Ed.2d 674].) 

2. Gudiel Has Forfeited His Objection to the Admission of the Spanish Audio 

Recording; His Counsel Was Not Constitutionally Ineffective in Failing To 

Object to It 

During trial the court, the prosecutor and defense counsel engaged in a lengthy 

colloquy outside the presence of the jury concerning the recorded jailhouse telephone 

conversation. The People argued the audio recording should be played for the jury even 

though it was in Spanish because the emotion and vocal inflections of Gudiel, Jimenez 

and Shandy during the conversation were probative of the credibility of their statements. 

The defense did not object to the recording being played, but requested that a certified 

court interpreter translate the recording into English contemporaneously with it being 

played. The court responded that it would impose too great a burden on the interpreter to 

translate the recording in this manner, a view echoed by the certified court interpreter in 

the courtroom. The court stated it would admit into evidence the English-language 

transcript of the conversation and would allow the jury to refer to it while listening to the 

audio tape recording.4

 Defense counsel did not object to this approach but expressed 

 

25 Cal.3d 91, 102 [appellant bears burden of demonstrating error from record]; People v. 

Sullivan (2007) 151 Cal.App.4th 524, 549-550 [same].) 

4

 Although it found the simultaneous use of the Spanish recording and English 

transcript somewhat “unusual,” the court agreed with the People it would aid the jury to 
8

concern the transcript had been prepared by the Los Angeles Police Department and 

requested the opportunity to have it reviewed for accuracy before giving it to the jury. 

The court agreed. At the court’s suggestion, a certified court interpreter reviewed the 

transcript and the audio recording during the lunch recess to determine whether the 

transcript provided an accurate translation. The interpreter confirmed the transcript was 

accurate except for a few minor (“nonsubstantive”) changes, which she made. After this 

occurred, the court inquired whether defense counsel intended to call the interpreter as a 

witness to testify as to the accuracy of the English transcript. Defense counsel replied he 

had spoken to the interpreter and would “stipulate the [modified] transcript is correct 

without testimony.” The court then instructed the jury, “Ladies and Gentlemen, a 

stipulation is an agreement by the attorneys as to the facts and should be seen as true. So 

we are stipulating that the transcript is an accurate transcript of what—accurate 

translation of what’s on the tape.”5

 The court also instructed the jury at the close of 

evidence: “During the trial, you were told that the People and the defense agreed, or 

stipulated, to certain facts. This means they both accept those facts as true. Because 

there is no dispute about those facts you must also accept them as true.” 

 Gudiel contends it was error to admit the recording of the telephone conversation 

into evidence because it resulted in “some of the jurors [those who understood Spanish] 

receiving different evidence than the others.” Gudiel did not object to the admission of 

 

listen to the recording and to simultaneously refer to the English transcript. The court 

ruled the interpreter would assist the jury by advising them when it was time to turn the 

page of the English transcript. 

5

 The court also advised the jury the portions of the transcript that identified the 

speaker and stated whether a speaker was crying or “weeping” were not included in the 

stipulation: “The voices are labeled here with names. There is no agreement that those 

are the voices on the transcript. For that, you have to rely upon the evidence and make 

your own determination as to whose voices are on the tape. . . . There are places here 

where it says ‘crying’ and ‘weeping.’ That is just a person’s opinion, a layperson’s 

opinion, as to what is happening on the transcript. It’s just to help you follow along so 

you can see where we are in the transcript. But that’s just one person’s opinion. You 

should disregard that in terms of being opinion. You can make up your own mind as to 

what’s happening . . . .” 
9

the recording and thus has failed to preserve this argument for appeal. (Evid. Code, 

§ 353, subd. (a) [judgment will not be reversed due to the erroneous admission of 

evidence unless “an objection to or a motion to exclude or to strike the evidence . . . was 

timely made and so stated as to make clear the specific ground of the objection or 

motion”]; People v. Houston, supra, 54 Cal.4th at p. 1213.) 

 Gudiel’s related claim his counsel was constitutionally ineffective for failing to 

object to the introduction of this evidence also fails. This assertion is entirely 

speculative. Nothing in the record on appeal suggests, let alone establishes, there were 

Spanish speakers on the jury.6

 Beyond this speculative argument, Gudiel does not 

challenge the propriety of admitting the transcript into evidence or his counsel’s 

stipulation the transcript provided an accurate translation of the conversation. In fact, in 

his trial testimony Gudiel admitted he had made the recorded statements as translated, but 

offered his own explanation as to their intended meaning. Accordingly, there was no 

basis for counsel to object to the admission of the audio recording and certainly no 

prejudice as a result of its admission into evidence. (See People v. Kipp, supra, 

18 Cal.4th at p. 366 [if alleged error not prejudicial—that is, not reasonably probable that 

the defendant would have received a more favorable verdict in the absence of the error—

reviewing court may dispose of ineffective assistance of counsel claim without evaluating 

whether counsel’s conduct was deficient]; People v. Slaughter (2002) 27 Cal.4th 1187, 

1219.) 

 6 The record, in fact, belies Gudiel’s assertion that some jurors understood Spanish. 

The court stated it had listened to the tape “to make sure the jury would be able to follow 

the words on the tape with the transcript even though they don’t understand Spanish” and 

concluded “I think they can follow the transcript even though they don’t speak Spanish.” 

Apart from the court’s comments, which were not objected to, the record is silent on this 

point. (Cf. People v. Gonzales (2008) 165 Cal.App.4th 620, 625 [record of voir dire 

proceedings reflected at least five prospective jurors expressly indicated they understood 

Spanish].) 
10

3. The Trial Court Adequately Instructed the Jury Concerning Its Duty To Accept 

the Transcript of the Recorded Conversation as a True and Accurate 

Translation over Any Other Understanding 

 Gudiel acknowledges the jury was instructed with CALCRIM No. 121, 

alternative A, requiring it to accept the interpreter’s translation of testimony over its 

own,7

 but contends the court had a duty to instruct sua sponte with alternative B of 

CALCRIM No. 121, specifically pertaining to foreign language recordings.8 Although 

his counsel did not request either instruction, he argues the court was required to instruct 

jurors to rely on the English transcript rather than their own understanding of the 

recording. (Cf. People v. Cabrera (1991) 230 Cal.App.3d 300, 303 [it is misconduct for 

juror to rely on his translation rather than interpreter’s translation].) 

 Citing the bench notes to CALCRIM No. 121, the Attorney General insists there is 

no duty to give either version of the instruction sua sponte. (See Bench Notes, 

CALCRIM No. 121 [“The committee recommends giving Alternative A of this 

instruction whenever testimony will be received with the assistance of an interpreter, 

though no case has held that the court has a sua sponte duty to give the instruction. The 

instruction may be given at the beginning of the case, when the person requiring 

translation testifies, or both, at the court’s discretion. If the jury may hear a recording 

 7 CALCRIM No. 121, alternative A, provides, “Some testimony may be given in 

<insert name or description of language other than English>. An interpreter will provide 

a translation for you at the time that the testimony is given. You must rely on the 

translation provided by the interpreter, even if you understand the language spoken by the 

witness. Do not retranslate any testimony for other jurors. If you believe the court 

interpreter translated testimony incorrectly, let me know immediately by writing a note 

and giving it to the (clerk/bailiff).” The court gave this before witnesses testified in 

Spanish through the assistance of a Spanish language interpreter but did not include it in 

the written instructions provided to the jury prior to its deliberations. 

8

 CALCRIM No. 121, alternative B, provides, “You (may/are about to) hear a 

recording in a foreign language. You will receive a transcript with an English language 

translation of that recording. You must rely on the transcript, even if you understand the 

language in the recording. Do not share your own translation with other jurors. Please 

write a note to the clerk or bailiff if you believe the translation is wrong.” 
11

that is at least partially in a foreign language, the court may give Alternative B with the 

appropriate bracketed language, as needed.”].) 

 Although it would have been better practice to have instructed the jury with 

CALCRIM No. 121, alternative B, the court’s other instructions fully satisfied whatever 

obligation it had to instruct that the English translation of the recording controlled over 

any contrary understanding that might have been derived from a juror’s comprehension 

of Spanish. At the time the recording was played, the court expressly advised the jury 

that the prosecutor and defense counsel had stipulated the transcript was an accurate 

English translation of the recorded conversation and made clear the jury was obligated to 

accept that fact as true. The court reiterated that instruction twice more during the trial 

and included it among the written instructions provided to the jury before deliberations 

began. Those instructions adequately informed the jury of its obligation to accept the 

transcript and nothing else. (See People v. Hughes (2002) 27 Cal.4th 287, 360 

[“‘“‘“[w]hether a jury has been correctly instructed is not to be determined from a 

consideration of parts of an instruction or from particular instructions, but from the entire 

charge of the court”’”’”]; People v. Tapia (1994) 25 Cal.App.4th 984, 1027 [same].) We 

presume the jury understood and followed these directions. (People v. McKinnon (2011) 

52 Cal.4th 610, 670.) Moreover, as explained, there is no apparent discrepancy between 

the transcript and the contents of the audio recording. On this record, any error in 

omitting the instruction was necessarily harmless under any standard. (Chapman v. 

California (1967) 386 U.S. 18, 24 [87 S.Ct. 824, 17 L.Ed.2d 705] [applying beyond-areasonable-doubt standard of review to errors of constitutional magnitude]; People v. 

Breverman (1998) 19 Cal.4th 142, 165 [recognizing that instructional errors are reviewed 

under the standard articulated in People v. Watson (1956) 46 Cal.2d 818, 836].)

4. Gudiel Has Forfeited His Objection to the Admission of Expert Testimony on 

CSAAS; and His Counsel Was Not Ineffective in Failing To Object To It 

 Gudiel contends the trial court erred in admitting Medley’s expert testimony on 

CSAAS. Gudiel acknowledges such evidence has been held admissible to disabuse 

commonly held misconceptions about a child’s post-abuse actions, including a delay in 
12

reporting. (See People v. McAlpin (1991) 53 Cal.3d 1289, 1300 [discussing with 

approval use of CSAAS expert testimony “to rehabilitate [a] witnesses’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”]; People v. 

Brown (2004) 33 Cal.4th 892, 906 [same]; People v. Bowker (1988) 203 Cal.App.3d 385, 

394 [expert testimony about CSAAS is properly admitted to describe or explain common 

reactions of children to molestation]; People v. Patino (1994) 26 Cal.App.4th 1737, 1744 

[CSAAS evidence is admissible for “the limited purpose of disabusing a jury of 

misconceptions it might hold about how a child reacts to a molestation”].) Nonetheless, 

he argues such expert testimony is no longer necessary in today’s world where crime 

dramas such as “Law and Order Special Victims Unit” have served in the past decade “to 

enlighten the general public” on common patterns of behavior found in victims of child 

sexual abuse. (See Evid. Code, § 801, subd. (a) [expert testimony admissible only when 

related to subject that is “sufficiently beyond common experience that the opinion of an 

expert would assist the trier of fact”].) 

 Gudiel failed to object to the CSAAS evidence at trial and thus has forfeited the 

argument on appeal. (People v. Houston, supra, 54 Cal.4th at p. 1213; Evid. Code, 

§ 353.) We also reject Gudiel’s argument that expert testimony would not have assisted 

the jury and adhere to the wealth of authority recognizing the admissibility of CSAAS 

testimony in cases such as this one in which the victim’s credibility and, in particular, her 

delayed disclosure of the abuse were directly at issue. (See People v. Brown, supra, 

33 Cal.4th at p. 906; People v. McAlpin, supra, 53 Cal.3d at p. 1300; People v. Patino, 

supra, 26 Cal.App.4th, at p. 1744.) Because the evidence was properly admitted, 

Gudiel’s counsel was not deficient in failing to object to it. (People v. Weaver (2001) 

26 Cal.4th 876, 931 [counsel has no duty to make frivolous or futile objections]; People 

v. Memro (1995) 11 Cal.4th 786, 834 [same].) 
13

5. The Trial Court’s Failure To Instruct Sua Sponte with CALCRIM No. 1193, 

Even if Error, Was Not Prejudicial 

 Even if the CSAAS evidence was properly admitted, Gudiel argues the trial 

court’s failure to give CALCRIM No. 1193, the Judicial-Council-approved jury 

instruction concerning the limited use of CSAAS evidence,9

 was prejudicial error.10 

Generally, absent a request by a party, there is no duty to give an instruction limiting the 

purpose for which evidence may be considered. (People v. Smith (2007) 40 Cal.4th 483, 

516; cf. Evid. Code, § 355 [“[w]hen evidence is admissible as to one party for one 

purpose and is inadmissible as to another party for another purpose, the court upon 

request shall restrict the evidence to its proper scope and instruct the jury accordingly”].) 

However, because of the potential for misuse of CSAAS evidence, the court in People v. 

Housley (1992) 6 Cal.App.4th 947 (Housley) held a trial court has a duty to instruct sua 

sponte with limiting language similar to that now found in CALCRIM No. 1193 

whenever CSAAS evidence is presented: “Such testimony, especially from one 

recognized as an expert in the field of child abuse, easily could be misconstrued by the 

jury as corroboration for the victim’s claims; where the case boils down to the victim’s 

word against the word of the accused, such evidence could unfairly tip the balance in 

 9

 CALCRIM No. 1193 provides, “You have heard testimony from ___ <insert name 

of expert> regarding child sexual abuse accommodation syndrome. [¶]___’s <insert 

name of expert> testimony about child sexual abuse accommodation syndrome is not 

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

You may consider this evidence only in deciding whether or not ____’s <insert name of 

alleged victim of abuse> conduct was not inconsistent with the conduct of someone who 

has been molested, and in evaluating the believability of (his/her) testimony. 

10 Defense counsel proffered his own lengthy instruction to advise the jury on how to 

use CSAAS evidence. The court rejected the proffered instruction, and defense counsel 

conceded it was unnecessary as long as the standard instruction on expert testimony, 

CALCRIM No. 332, was given. Gudiel’s arguments on appeal are limited to the court’s 

duty to instruct sua sponte with CALCRIM No. 1193 and do not address the court’s 

ruling rejecting his counsel’s proposed instruction. 
14

favor of the prosecution. A simple instruction similar to that described in Bowker[11]

would clearly define the proper use of such evidence and would prevent the jury from 

accepting the expert testimony as proof of the molestation. Furthermore, requiring such 

an instruction would avoid potentially erroneous convictions occasioned by counsel’s 

inadvertent or incompetent failure to request a limiting admonition. . . . Accordingly, in 

all cases in which an expert is called to testify regarding CSAAS we hold the jury must 

sua sponte be instructed that (1) such evidence is admissible solely for the purpose of 

showing the victim’s reactions as demonstrated by the evidence are not inconsistent with 

having been molested; and (2) the expert’s testimony is not intended and should not be 

used to determine whether the victim’s molestation claim is true.” (Housley, at pp. 958-

959; cf. People v. Bowker, supra, 203 Cal.App.3d at p. 394 [recognizing need for limiting 

instruction when CSAAS evidence is admitted]; but see People v. Stark (1989) 

213 Cal.App.3d 107, 116 [limiting instruction on CSAAS evidence to be given “if 

requested”].) 

 While finding it error not to give a limiting instruction on CSAAS evidence even 

if not requested, the Housley court held the failure to do so in the case before it was 

harmless because there was no reasonable likelihood the jury misunderstood or 

misapplied the expert testimony as proof the molestation occurred. In reaching its 

conclusion the court found significant that the expert witness “twice told the jury she had 

not met the victim and had no knowledge of the case. Her testimony was couched in 

general terms, and described behavior common to abused victims as a class, rather than 

any individual victim.” (Housley, supra, 6 Cal.App.4th at p. 959.) Similarly, in the 

instant case Medley made clear she had not discussed the case with the prosecutor, had 

no knowledge of the facts of the case and no opinion whether Shandy met the criteria for 

CSAAS or whether she was, in fact, abused. Like the court in Housley, we have little 

difficulty in this case concluding any error in failing to instruct sua sponte with 

 11 See People v. Bowker, supra, 203 Cal.App.3d at p. 394 [“the jury must be 

instructed simply and directly that the expert’s testimony is not intended and should not 

be used to determine whether the victim’s molestation claim is true”].) 
15

CALCRIM No. 1193 was harmless; it was not reasonably probable Gudiel would have 

received a more favorable verdict had an appropriate limiting instruction been given. 

(People v. Watson, supra, 46 Cal.2d at p. 836; Housley, at p. 959.)12 

DISPOSITION 

The judgment is affirmed. 

 PERLUSS, P. J. 

 We concur: 

 WOODS, J. 

 ZELON, J. 

 12 Because we hold any error in failing to instruct with CALCRIM No. 1193 to be 

harmless, we need not address Gudiel’s contention his counsel provided ineffective 

assistance by failing to request CALCRIM No. 1193. (People v. Ledesma (1987) 

43 Cal.3d 171, 217 [failure to establish prejudice is fatal to ineffective assistance of 

counsel claim].)