Filed 1/19/22 P. v. Romero CA6

Opinion following rehearing

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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

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publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

JULIAN DANIEL ROMERO,

Defendant and Appellant.

 H047034

 (Santa Clara County

 Super. Ct. No. C1777217)

Defendant Julian Daniel Romero was convicted by a jury of three counts of 

aggravated sexual assault on a child under 14 (Pen. Code, § 269, subd. (a)(1), (a)(4), 

(a)(5))1, 10 counts of lewd act on a child under 14 (§ 288, subd. (a)), and six counts of 

lewd act on a child 14 or 15 years of age (§ 288, subd. (c)(1)). The court found true 

one-strike allegations (§ 667.61(d)) as to the lewd act on a child under 14 counts and

two prior strike conviction allegations (§ 1170.12). Defendant was sentenced to 

900 years to life.

On appeal, defendant contends that (1) the aggravated sexual assault counts are 

not supported by substantial evidence of force, duress, or fear, (2) the trial court 

prejudicially erred in failing to instruct on any lesser included offenses as to the 

aggravated sexual assault counts, (3) the trial court prejudicially erred in excluding 

1

All further statutory references are to the Penal Code unless otherwise 

indicated.
2

defense evidence related to the victim’s sexual relationships with other adult men, 

(4) the trial court prejudicially erred in admitting evidence under Evidence Code 

section 1108 of defendant’s prior sex offenses, (5) the trial court prejudicially erred in 

admitting evidence under Evidence Code section 1101, subdivision (b) of defendant’s 

prior sexual conduct, (6) the trial court prejudicially erred in instructing the jury with 

CALCRIM No. 1193 regarding the permissible uses of the prosecution expert’s 

testimony about child sexual abuse accommodation syndrome (CSAAS), (7) the 

prosecutor committed misconduct by vouching for the victim’s credibility, (8) the 

alleged errors were cumulatively prejudicial, and (9) defendant’s sentence of 900 years 

to life is unconstitutionally cruel and unusual punishment. In a petition for rehearing, 

defendant contends that we must remand this case to give the trial court the 

opportunity to exercise the discretion granted to it under newly amended section 654. 

We reject all of his other contentions, but we agree that a remand is required to allow 

the trial court to exercise this newly granted discretion.

I. THE PROSECUTION’S EVIDENCE

In 1999, defendant was convicted of committing a lewd act on a child under 

14 on 13-year-old M.D. and annoying or molesting 14-year-old J.D. B. was born in 

2000.2 Defendant is B.’s mother’s first cousin, and he is about B.’s mother’s age.

B. first met defendant when she was four years old. Defendant lived with his 

mother in an apartment on Harlow Way from July 2008 to October 2015. B. and her 

family lived at the Harlow Way apartment from September 2008 to November 2009 

when B. was around nine years old and in fourth grade. While she was living at the 

Harlow Way apartment, B. and defendant watched movies together and played on his 

Xbox.

2

B. was 18 years old at the time of trial.
3

Not long after B. began living at the Harlow Way apartment, defendant began 

sexually abusing her. The abuse continued after B. and her family moved to a 

residence on Hillsdale Avenue before B. started fifth grade. Defendant came over to 

the Hillsdale Avenue residence regularly. Defendant and B. were “friends, kind of.” 

They played video games and talked. Defendant told B. about his prior convictions 

and said “that he did do stuff with the girl, but it wasn’t as dramatic as people made it 

seem and he didn’t deserve to be locked up for it.” Defendant told B. he had 

“fingered” the girl and that her parents “were okay with it.” He also told B. that he 

had had sex with “underage girls.”

Defendant made comments to B. about her classmates’ breasts and said he 

“would have sex with them.” When B. wanted to use defendant’s computer or Xbox, 

he required her to give him a massage. During some of these massages, he would put 

his feet on her breasts.3 When B. was 11 or 12 years old, defendant lifted up her shirt, 

put his hands on her breasts, and sucked on her breasts. This happened more than 

20 times. Defendant also repeatedly complimented her breasts. Although B. told him 

that she thought this conduct was wrong because they were cousins, he “brushed it off 

like it was nothing . . . .” When B. was 12 years old, defendant “brought up my 

virginity” and told her “I should know how to do it for a guy.” He began touching her 

vagina outside her clothing and then inside her clothing. Eventually, he put his fingers 

inside her vagina.

At some point, defendant asked B. to give him oral sex. He put his penis in her 

mouth and “coach[ed]” her on “how to do it” the way he liked. She subsequently told 

3

B. was unclear in her testimony about when these events began. She testified 

that they started when she was in fifth grade and aged 10 or 11, but she also testified 

that they started soon after she moved into the Harlow Way apartment. She testified 

that some of the acts of sexual abuse took place at the Harlow Way apartment when 

she was 11 or 12 years old. B. also testified that she was “not a hundred percent sure” 

whether she was living at the Harlow Way apartment when the abuse took place there.
4

him that this was “gross” and “weird,” but defendant told her that he had “almost done 

it with other family members and stuff.” The oral sex happened many times.

Defendant also had sexual intercourse with her, beginning when she was 

12 years old. The first time, he had her bend over, and he put his penis in her vagina 

from behind. When he was done, he asked her if she liked it. She told him yes 

because she thought that was what she was supposed to think. He had sexual 

intercourse with her more than 20 times.

When B. was 15 years old, defendant took her to Universal Studios in Los 

Angeles. She knew that they were going to have sex on this trip. Although she did not 

want to have sex with him, she wanted to go to Universal Studios. They had sex at 

least five times in a hotel room on this trip.

Defendant’s sexual abuse of B. took place at numerous locations: at the Harlow 

Way apartment, “[i]n his car, at his girlfriend’s house, in LA, at my house, [and] at the 

old house I used to live in.” Defendant would come to the Hillsdale Avenue residence

to “hang out” when B. was 13 years old, and he would have sex with her when other 

people were sleeping. This happened at least twice.

When B. was 13 years old, defendant bought lingerie for her because “[h]e 

wanted me to look sexy . . . in the bedroom.” He told her not to tell anyone about the 

abuse because he would “go to jail” due to his prior convictions. B. was “scared” to 

disclose the abuse because she “[did]n’t know what would have happened.” She 

“thought everyone wouldn’t believe me, and he would find out that I said something 

and I will be in trouble.” Defendant had told her that he had “a list of people that if 

anything were to happen, he would kill them . . . .” On this list were “[m]ostly 

everyone he knows,” and “[t]here was not really anyone who’s not on the list.” B. felt 

powerless to stop defendant’s conduct because she assumed that others “already 

knew” and “just didn’t care.” She believed this because defendant openly made 
5

comments about wanting to have sex with other family members, and no one would 

say anything about these comments.

The first time B. told anyone about defendant’s sexual abuse of her was in 2015 

when she told her adult boyfriend, Jose. When B. was 16 years old, she “realized” that 

defendant “was a very unstable person,” and she became afraid of him and ceased all 

contact with him. In July 2017, at age 17, B. told her mother about defendant’s sexual 

abuse of her. B. was going through a break-up with her boyfriend at that time and was 

upset about that. She had been afraid to disclose defendant’s abuse because she 

“thought they were going to think I’m lying . . . because he’s a good manipulator.” 

B.’s mother wanted her to report the abuse to the police immediately, but B. was 

reluctant to do so. In September 2017, B. finally spoke to the police about defendant’s 

sexual abuse of her.

B.’s sister, A.D., who is five years older than B., testified that defendant made 

sexual comments to her when she was 12 or 13 years old. She also testified that 

defendant was interested in A.D.’s friend, B.X., who was the same age as A.D.4 A.D. 

saw defendant and B.X. lying on the couch with a blanket over them. Defendant told 

A.D. that he had taken B.X. to Santa Cruz and “ended up fingering her.” He said that 

he “liked that she was young and wasn’t too developed” because he “really liked” her 

“little girl’s body.” Defendant “said many times [to A.D. that] he likes young girls” 

and “likes young pussy.” He made comments like this in front of A.D.’s mother, and 

A.D.’s mother had no reaction. A.D. talked to her mother about these comments, and 

her mother told her to “ignore him.”

A police officer testified that in 1999 defendant, who was then 19 years old, 

admitted that he had had a relationship with 13-year-old M.D. and that he knew she 

4

This prior victim’s last name was “unknown.” Since this prior victim and the 

current victim share the same first initial, we will refer to this prior victim as B.X.
6

was 13 years old at the time. Defendant told the police officer that he had “ ‘sucked 

on’ ” M.D.’s breasts twice and had also put his fingers in her vagina. M.D. had 

masturbated him. He also admitted that he had threatened to kill M.D. or beat her up.

J.D. was a friend of M.D., and M.D. introduced her to defendant. J.D. testified 

that when she was 14 years old, defendant called J.D. on the phone, talked to her about 

sex acts that he had engaged in with others, and said he wanted to engage in sex acts 

with her. She was uncomfortable and said no. Defendant threatened to harm her or 

her family, and he said “he knew people who would kill me, or he knew people that 

would kill my family.” He also said “he himself wouldn’t mind killing me or my 

family.” In 1999, defendant told the police officer that J.D. had told him she was 

13 years old when they met. He admitted to the officer that he had asked J.D. if he 

could see and “ ‘suck on’ ” her breasts.

L.D. testified that defendant was her cousin and that they had grown up 

together. Defendant was at least five years older than L.D. She exchanged letters with 

defendant while he was in prison. When she was 15 years old, he wrote to her in a 

letter from prison that he wanted to touch her breasts and “mess around” with her.

II. THE DEFENSE CASE

Defendant testified at trial that “I’m innocent.” Defendant described his 

relationship with B. as mainly centering on their shared interest in video games. 

He denied any sexual interest in her, and he testified that he had never engaged in any 

sexual activity with her. However, he admitted that he and B. were home alone 

together at times. And he admitted that he required other members of the household to 

give him foot massages if they wanted to use his electronics.

Defendant testified that he treated B. like she was his daughter and looked out 

for her. He admitted taking B. to Universal Studios and staying in a hotel room with 

her, but he insisted that they slept in separate beds and engaged in no sexual conduct. 

Defendant testified that he had told B. about his prior convictions when she was 
7

15 years old. He told her: “[S]omeone can call the cops and say anything they want 

and there doesn’t have to be no evidence no nothing. They will just take their word on 

what they say because I have a history.”

Defendant denied any memory of B.X. He also denied making any sexual 

comments to A.D. Defendant testified that he did make comments about women’s 

bodies, but these were all about adult women in their 30s, 40s, or 50s. He denied any 

interest in underaged girls. Defendant admitted that he had made the statements to the

police officer in 1999 admitting his prior offenses and that he had pleaded guilty to 

those charges because he was guilty. Although he claimed no recollection of the 

conduct that J.D. had testified to, he admitted that he had pleaded guilty to that 

conduct too because he was guilty of it. He admitted writing the letter that L.D. 

described in her testimony. Defendant claimed that he did not intend to do the things 

he described.

Defendant testified that he was released from prison at age 22, and, by the time 

he was 29, he felt like a different person. He had become a father and had “a life” and 

“a job.” Defendant testified that he “took every precaution” not to get into trouble 

again. Yet in 2008 he was convicted of battery on a cohabitant. It was only in 2010, 

when his daughter, R., was born, that he changed. His daughter J. was born in 2011.

On cross-examination, he admitted that the battery he committed had been on 

his former girlfriend while she was pregnant with his first daughter. He admitted that 

he had been sexually attracted to 13-year-old M.D. and that he had threatened to beat 

and kill her. Defendant also admitted that he had been sexually attracted to 13 or 

14-year-old J.D. and that he had called her on the phone daily for a month and talked 

about sexual conduct and what sexual acts he wanted to engage in with her. He 

admitted to a sexual interest in L.D. On redirect, defendant testified that after he got 

older he was no longer attracted to young girls.
8

Defendant’s trial counsel elicited B.’s testimony on cross-examination that she 

knew that defendant had prior convictions and that he had told her that “all someone 

would have to do is make an accusation against him and it would be believed because 

of his past.” B. noted that her mother believed that defendant had been “innocent” of 

those prior convictions. Defendant’s trial counsel also questioned B. about her 2014 

police interview. B. testified that she did not disclose defendant’s sexual abuse of her 

during the 2014 interview even though the abuse was still ongoing at that time.

B. also testified on cross-examination that she had met her adult boyfriend, Jose 

Osegueda, in 2015, when B. was 15 years old. After a three-year relationship, B. and 

Osegueda broke up in 2017. B. was “pretty upset” and “suicidal,” and she wanted to 

get back together with Osegueda. She knew that dating Osegueda was “illegal,” and 

she did not want him to be reported to the police or arrested. However, B. testified 

that she was not afraid that her mother would report Osegueda to the police because 

her mother had not done so previously.5 It was stipulated that B.’s mother reported 

Osegueda to law enforcement in February 2018.

Defendant’s trial counsel argued to the jury that B. had lied about defendant’s 

abuse of her because, in July 2017, “she need to deflect” in order to “turn her mom’s 

attention away from” Osegueda, with whom B. wanted to reconcile. She argued that 

B. had accused defendant because it was “convenient” and she would be believed due 

to his “past.” Even though B.’s mother later did report Osegueda to the police, 

defendant’s trial counsel argued that B. “couldn’t take back” her accusations against 

defendant “because making a false report is a crime,” so she “stuck with her story.” 

She argued that B. was “not credible.” Defendant’s trial counsel emphasized that B. 

5

On redirect, B. testified that her mother had known about her relationship with 

Osegueda for a year before B.’s July 2017 disclosure of defendant’s abuse. B. later 

got back together with Osegueda, but they subsequently broke up again.
9

had not reported defendant’s abuse in 2014 when she had an opportunity to do so 

during her police interview. She argued that B. was “lying to get what she wanted.”

III. DISCUSSION

A. Substantial Evidence of Duress or Fear

Defendant contends that the prosecution failed to present substantial evidence 

of force, duress, or fear in support of the three aggravated sexual assault counts, which 

were the only counts with a force, fear, or duress element.

1. Background

The prosecutor argued to the jury that “defendant accomplished the [aggravated 

sexual assault] act[s] by duress.” “[D]uress is your issue.” She asked the jury to “look 

at all of the circumstances, including the age of B[.] at the time and her relationship to 

the defendant.” She emphasized the “power differential,” defendant’s “intellectual 

advantage,” his “grooming behavior,” which the prosecutor characterized as 

“inherently coercive,” the fact that defendant was “bigger and stronger,” and the 

“inherently problematic family dynamic.” She argued that the sexual acts had been 

accomplished by an “implied threat” because B. believed that she would “destroy 

[defendant’s] life” if she reported the abuse, which the prosecutor argued would have 

been a “hardship” for B. The prosecutor also argued that defendant’s “list of names of 

people he’s going to kill if given the chance” constituted “an implied threat here that 

[B.] could be hurt.” The defense sought acquittal on all counts and made no argument 

about the force, fear, or duress element of the aggravated sexual assault counts.

2. Analysis

Defendant contends that there was not substantial evidence that the aggravated 

sexual assault counts were “accomplished against [the child]’s will by means of force, 

violence, duress, menace, or fear of immediate and unlawful bodily injury on the 

person or another.” (§§ 269, subd. (a)(1) [rape], (a)(4) [oral copulation], (a)(5) [sexual 
10

penetration], 261, subd. (a)(2) [rape], 287, subd. (c)(2) [oral copulation], 289, subd. (a) 

[sexual penetration].)

The prosecution proceeded solely on a duress theory in this case, so we evaluate 

only whether the prosecution presented substantial evidence of duress. “ ‘ “Duress”

has been defined as “a direct or implied threat of force, violence, danger, hardship or 

retribution sufficient to coerce a reasonable person of ordinary susceptibilities to 

(1) perform an act which otherwise would not have been performed or, (2) acquiesce 

in an act to which one otherwise would not have submitted.” . . . [D]uress involves 

psychological coercion. Duress can arise from various circumstances, including the 

relationship between the defendant and the victim and their relative ages and sizes . . . . 

“Where the defendant is a family member and the victim is young, . . . the position of 

dominance and authority of the defendant and his continuous exploitation of the 

victim” [are] relevant to the existence of duress.’ [Citation.]” (People v. Espinoza

(2002) 95 Cal.App.4th 1287, 1319-1320 (Espinoza).)

Defendant’s contention is based on this court’s decisions in People v. Schulz

(1992) 2 Cal.App.4th 999 (Schultz) and Espinoza. In Schultz, the issue was whether 

there was substantial evidence of duress where the defendant “awakened the victim by 

grabbing her arm, cornered her while she cried, held her arm, and touched her breasts 

and vaginal area.” (Id. at p. 1004.) This court found the evidence sufficient to support 

a finding of duress: “The victim, then nine years old, was crying while defendant, her 

adult uncle, restrained and fondled her. On this occasion he took advantage not only 

of his psychological dominance as an adult authority figure, but also of his physical 

dominance to overcome her resistance to molestation. This qualifies as duress.” 

(Id. at p. 1005.)

In Espinoza, on the other hand, this court found insufficient evidence of duress 

to support a count of lewd conduct by force or duress and a count of attempted rape. 

The defendant had repeatedly come into his daughter’s bedroom at night while she 
11

was sleeping, pulled down her pants, and rubbed her breasts and vagina. (Espinoza, 

supra, 95 Cal.App.4th at p. 1293.) His daughter did not “do anything” because she 

was scared and frightened, and she did not report these initial molests because she was 

afraid that the defendant would “do something.” (Ibid.) After molesting her several 

times, defendant came into her bedroom one final time. This final time was the basis 

for the lewd conduct by force or duress and attempted rape counts. Defendant put his 

tongue in her mouth, licked her vagina, and tried to put his penis in her vagina. (Ibid.) 

Her only response was that she “moved” and thereby prevented his penis from 

entering her. The defendant responded by apologizing and asking for her forgiveness. 

(Ibid.)

The trial court found duress based on the victim’s “dependence on defendant, 

the size and age disparities, her limited intellectual level and her fear of defendant.” 

(Espinoza, supra, 95 Cal.App.4th at p. 1319.) On appeal, this court distinguished its 

prior decision in Schultz: “We agree with this court’s conclusion in Schulz that, where 

the defendant grabbed and restrained the nine-year-old distraught victim, cornered her 

and used his physical dominance in conjunction with his psychological dominance to 

overcome her resistance, the lewd act was accomplished by duress. However, the 

evidence before us is substantially different. Defendant did not grab, restrain or corner 

[his daughter] during the final incident out of which the Penal Code section 288, 

subdivision (b) count and the attempted rape count arose. [His daughter] did not cry, 

and she offered no resistance. Instead, defendant simply lewdly touched and 

attempted intercourse with a victim who made no oral or physical response to his 

acts.” (Id. at p. 1320, fn. omitted.) This court noted that “Duress cannot be 

established unless there is evidence that “ ‘the victim[’s] participation was impelled, at 

least partly, by an implied threat . . . .’ ” (Id. at p. 1321.)

Defendant argues that the prosecution’s evidence did not support a finding of 

duress under Schultz and Espinoza because there was no evidence that he “use[d] any 
12

implied threats to prevent [B.] from disclosing.” He claims that there was no evidence 

that he made any express or implied threats. Defendant acknowledges B.’s testimony 

that defendant told her he had “a list of people that if anything were to happen, he 

would kill them” and her testimony that this list contained the names of “[m]ostly 

everyone he knows.” (Italics added.) However, he argues that this testimony was 

insufficient to establish duress because B. “never clarified what ‘anything were to 

happen’ meant.”

“ ‘We “must accept logical inferences that the [factfinder] might have drawn 

from the circumstantial evidence. [Citation.]” . . . Where the circumstances reasonably 

justify the trier of fact’s findings, a reviewing court’s conclusion the circumstances 

might also reasonably be reconciled with a contrary finding does not warrant the 

judgment’s reversal. [Citation.]’ [Citation.]” (People v. Manibusan (2013) 58 Cal.4th 

40, 87.)

It was not necessary for B. to “clarif[y]” the meaning of “anything were to 

happen” since a rational jury could readily infer that defendant made this threat in 

order to instill fear in B. that any resistance to or disclosure of his abuse would trigger 

him to kill her and her family. While B. did not expressly link defendant’s threat to 

her acquiescence to the abuse, she did testify that defendant had warned her not to 

disclose the abuse, and the jury could reasonably infer that his murderous threat was 

both intended to and did induce her lack of resistance and her failure to disclose the 

abuse. We therefore reject defendant’s substantial evidence challenge to the 

aggravated sexual assault counts.

B. Failure to Instruct on Lesser Included Offenses

Defendant contends that the trial court prejudicially erred in failing to instruct 

on any lesser included offenses as to the aggravated sexual assault counts. He argues 

that “[i]n counts 1, 2, and 3 [the aggravated sexual assault counts], the jury was only 

given the option of convicting appellant of forcible sexual offenses, but not any 
13

non-forcible sexual offenses.” The Attorney General contends that there was not 

substantial evidence that defendant committed only non-forcible sexual offenses so no 

lesser included instructions were necessary.6 He also argues that any error in failing to 

instruct on lesser included offenses was harmless.

“California law requires a trial court, sua sponte, to instruct fully on all lesser 

necessarily included offenses supported by the evidence.” (People v. Breverman

(1998) 19 Cal.4th 142, 148-149.) “However, . . . reversal is not warranted . . . unless it 

appears ‘reasonably probable’ the defendant would have achieved a more favorable 

result had the error not occurred.”

7

 (Id. at p. 149.)

In this case, the record reflects that it is not reasonably probable that the jury 

would have found duress lacking if only it had been given the option to convict 

defendant of non-forcible offenses for the three aggravated sexual assault counts. We 

do not accept the Attorney General’s argument that the evidence of duress left no room 

for doubt. Instead, we base our conclusion on the prosecutor’s argument to the jury 

encouraging it to consider the option of convicting defendant of only non-forcible 

offenses for those three counts if it had any doubt about the duress element. The 

prosecutor had elected to base the three aggravated sexual assault counts on the same 

acts as the first three nonforcible lewd act on a child under 14 counts. When she 

argued the case to the jury, she explicitly told the jury: “[I]f you have an issue with 

6

The Attorney General concedes that unlawful sexual intercourse with a minor 

(section 261.5) is a lesser included offense of one of the aggravated sexual assault 

counts (section 269, subdivision (a)(1) [rape]). He also concedes that simple assault 

and simple battery are lesser included offenses of another of the aggravated sexual 

assault counts (section 269, subdivision (a)(5) [sexual penetration]).

7

Defendant’s reliance on People v. Flores (2007) 147 Cal.App.4th 199 is 

misplaced because that case concerned the trial court’s failure to instruct on reasonable 

doubt, which the court found implicated the defendant’s federal constitutional rights. 

(Id. at p. 217.) Here, the trial court’s failure to instruct on lesser included offenses was 

only state law error.
14

the duress element, go to Count 4 [the first nonforcible lewd act count] and consider 

that one.” “It may be that you can’t agree on Count 1 [the first aggravated sexual 

assault count], still go to Count 4, okay? [A]nd do that for 5 and 6 [the second and 

third nonforcible lewd act counts] for the other two acts.” By returning verdicts 

finding defendant guilty of all three aggravated sexual assault counts and the three 

nonforcible lewd act counts based on the same acts as the aggravated sexual assault 

counts, the jury plainly indicated that it did not “have an issue with the duress 

element.” The prosecutor let the jury know of the option that defendant claims lesser 

included instructions would have given it, and the jury rejected that option. Under 

these circumstances, the trial court’s failure to instruct on lesser included offenses as to 

the aggravated sexual assault counts does not merit reversal.

C. Exclusion of Defense Evidence

Defendant asserts that the trial court prejudicially erred by excluding defense 

evidence related to B.’s sexual relationships with Osegueda and with an adult man

named Jones. Although the trial court permitted the defense to adduce some testimony 

concerning Osegueda, it excluded evidence concerning B.’s relationship with Jones. 

The defense wanted to introduce evidence that (1) B.’s mother had reported B.’s 

sexual relationship with Jones to the police in 2014, (2) B.’s 2014 police interview had 

concerned her sexual relationship with Jones, and (3) B.’s mother’s report to the police 

concerning Osegueda in 2018 occurred after B. was charged with domestic violence 

against Osegueda.

8

8

Although defendant claims that evidence that B. had lied about her age to 

Jones and Osegueda was wrongfully excluded, he does not explain how it supported 

the defense theory that B. had lied about defendant to deflect her mother’s attention 

from her relationship with Osegueda.
15

1. Background

The defense sought an in limine ruling on the admissibility of several pieces of 

evidence related to B.’s sexual relationships with Jones and Osegueda that the defense

wanted to use to attack her credibility. The defense filed two exhibits under seal 

containing the evidence that it wished to present because the evidence was potentially 

subject to Evidence Code section 782.9 The portion of this evidence at issue on appeal 

is the following. In 2014, B.’s mother reported to the police that B. was having a 

sexual relationship with Jones. B. was then interviewed by the police at a special 

interview center by an officer specially trained concerning sexual crimes against 

children. During the 2014 interview, B. said nothing about defendant’s ongoing 

sexual abuse of her. In 2015 or 2016, B. met Osegueda through an advertisement she 

had placed on backpage.com, and she began a sexual relationship with him.

10

 In 

July 2017, B. and Osegueda broke up. Shortly thereafter B. told her mother about 

defendant’s sexual abuse of her.

The defense insisted that Evidence Code section 782 did not apply because the 

“scope of questions would not address any specific sexual conduct between” B. and 

Jones or “any sexual conduct between” B. and Osegueda. Defendant’s trial counsel 

initially told the court that she would not be seeking evidence of “any sexual conduct 

9

Evidence Code section 782 concerns the procedure for the defense to use if it 

seeks admission of “evidence of sexual conduct of the complaining witness” that it 

wishes to offer “to attack the credibility of the complaining witness.” (Evid. Code, 

§ 782, subd. (a).)

10 The defense also claimed it should be able to introduce evidence that B. had 

initially failed to disclose to the police that it was defendant who had directed her to 

create a backpage.com account. Backpage.com is a prostitution website. The defense

argued that evidence about the delayed disclosure of the backpage.com allegations 

would help to show that B. was lying to protect Osegueda. The prosecutor asserted 

that she planned to “completely avoid” the highly prejudicial topic of backpage.com. 

Defendant’s appellate arguments concerning the exclusion of defense evidence do not 

address the backpage.com evidence, so we do not address it.
16

that [B.] was involved in with the other person in 2014.” “I don’t have any desire or 

intention to allege that she was even in a sexual relationship with these people . . . .” 

But defense counsel later sought permission to present evidence that B. was “in a 

sexual relationship” with Osegueda.

At the in limine hearing on this issue, the defense explained that its position at 

trial would be that B. was “lying,” so this evidence was needed to address “why is she 

lying.” Its argument would be that B. made allegations against defendant to “deflect 

attention and scrutiny away from herself” and Osegueda and that this evidence would 

be relevant to B.’s credibility. Defense counsel argued that B. had made the 

accusations against defendant to her mother to deflect her mother’s attention so that 

her mother would not report Osegueda to the police. The defense insisted that it was 

necessary for it to present evidence that B.’s mother had reported Jones in 2014 

because “[i]t’s something specific that has happened in her life that she knows her 

mother will do, not something that, oh, maybe someone will call. I think it’s much 

more specific to this case and provides a basis for her motive.”

The prosecutor initially sought exclusion of all of the proffered defense 

evidence under Evidence Code section 352. However, the prosecutor ultimately did 

not oppose the admission of some portions of the proposed defense evidence. “It 

seems to me that this relevance could be brought into evidence by asking B[.] whether 

or not she had a boyfriend, whether or not she had an adult boyfriend, and whether or 

not they had a sexual relationship with no details. Then further questioning could be 

made whether or not she was afraid that her mother would report her boyfriend.” In 

the prosecutor’s view, this would provide what the defense sought without “bringing 

up very, very prejudicial issues.”

The court initially ruled that the defense would be allowed to do “some limited 

questioning concerning the 2014 interview, but in this narrow situation” to show that 

B. had been interviewed by the police in private in 2014 and had not disclosed 
17

defendant’s abuse at that time.11 This evidence was admissible “to show that she had 

an opportunity, in a safe environment, to make a disclosure” and “did not do that.” 

The court noted that as “with all of the in limines, they are subject to change, 

depending on how things go with the trial.” The court later ruled that the defense also 

could present evidence of the following: “whether B[.] was involved in an adult—was 

involved in a relationship with an adult male who was her boyfriend, and during that

relationship, she was afraid her mom would report the boyfriend to the police.” 

Defendant’s trial counsel then sought clarification from the court as to whether she 

was “not permitted to ask B[.] any questions about her mom previously calling the 

police in the 2014 case.” After some discussion, the court ruled that she could ask B.: 

“ ‘Did you believe that your mom was very likely to report this [her relationship with 

Osegueda]?’ ” If B. “says ‘Yes,’ ” then the defense would not be permitted to

introduce evidence about B.’s mother’s 2014 report. But “[i]f she says ‘No,’ and you 

want to go into the prior occasion, I would ask you to please approach before we go 

into that.” Defendant’s trial counsel responded: “Okay.”

At trial, defendant’s trial counsel questioned B. about her 2014 police 

interview, and B. admitted that she did not disclose defendant’s sexual abuse of her 

during the 2014 interview even though the abuse was still ongoing at that time. 

B. admitted that the 2014 police interview occurred in a “similar room” to the one 

where her 2017 police interview occurred and, like her 2017 police interview, was an 

interview with a nonuniformed officer. B. also conceded that the police “could have 

stopped” defendant’s abuse in 2014 if she had disclosed it. Defendant’s trial counsel

11 The court found the proposed defense evidence concerning Osegueda to be 

“marginally relevant” and did not permit it to be introduced to show sexual 

knowledge, and it excluded it under Evidence Code section 352, though it said it might 

reconsider this ruling after B.’s testimony. The court excluded evidence regarding the 

February 2018 arrest of B. (which was what allegedly led to her mother reporting 

Osegueda to the police).
18

was also permitted to elicit B.’s testimony that she knew her relationship with 

Osegueda was “illegal” and that she did not want him to be reported to the police or 

arrested. Even though she and Osegueda had broken up before she told her mother 

about defendant’s sexual abuse of her, she wanted to get back together with Osegueda. 

Although B. testified that it was “possible” that her mother wanted to report Osegueda 

to the police at that time, she insisted that she was not afraid at that point that her 

mother would report Osegueda to the police because her mother had not done so 

previously. There is no indication in the record that, at any time during or after B.’s 

testimony, defendant’s trial counsel renewed her request for admission of evidence 

that B.’s mother had reported Jones to the police in 2014. B.’s mother did not testify 

at trial.

2. Analysis

Defendant’s appellate claims are limited to the court’s alleged exclusion of 

evidence that (1) B.’s mother had reported B.’s sexual relationship with Jones to the 

police in 2014, (2) B.’s 2014 police interview had concerned her sexual relationship 

with Jones, and (3) B.’s mother’s report to the police concerning Osegueda in 2018 

occurred after B. was charged with domestic violence against Osegueda.

Defendant claims the allegedly excluded evidence would have supported his 

contention that, when B. made allegations against defendant in 2017, she had a motive 

to deflect attention away from both herself and Osegueda. His reasoning is that 

evidence that B.’s mother had reported Jones to the police in 2014 would have shown 

that B. had good reason to fear that her mother would report Osegueda in 2017, 

thereby motivating her to deflect her mother’s attention away from Osegueda by 

making allegations against defendant. He argues that evidence that B.’s 2014 police 

interview concerned her sexual relationship with Jones would have provided additional 

support for the defense’s challenge to B.’s credibility based on her failure to disclose 

her allegations against defendant at that time. Finally, defendant argues that evidence 
19

that B.’s mother reported Osegueda only after B. was accused of domestic violence 

against him would have shown that B.’s mother was trying to deflect blame from B.

Evidence Code section 352 provides: “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.”

We find no error. First, the trial court did not preclude the defense from 

introducing evidence of B.’s mother’s 2014 report of Jones to the police if B. testified 

that she did not think it “very likely” that her mother would report Osegueda to the 

police in 2017. The trial court expressly gave the defense the option to renew its 

request if B. so testified. B. then testified that she believed in 2017 that it was possible

that her mother would report Osegueda but that she did not think it likely at that time 

because her mother had not done so previously. After this testimony, the defense did 

not renew its request concerning B.’s mother’s 2014 report of Jones. Since the trial 

court’s ruling did not preclude the defense from seeking admission of that evidence 

under these circumstances, the defense’s failure to renew its request forfeited this 

claim. We therefore find that this alleged error has not been preserved for appellate 

review because the trial court did not exclude this evidence under the circumstances.

Second, we find no abuse of discretion in the trial court’s ruling concerning the 

subject matter of B.’s 2014 police interview. The defense was permitted to introduce 

evidence of the intimate setting in which that interview took place, and it had a full 

opportunity to emphasize that B. not only did not disclose defendant’s sexual abuse of 

her to the police in 2014 but also that she knew that the police could have stopped that 

ongoing abuse if she had reported it then. The additional fact that this police interview 

concerned allegations of a sexual relationship between her and Jones was of little 

probative value and posed a high risk of prejudice.
20

Third, defendant fails to explain how evidence of the reason for B.’s mother’s

February 2018 report of Osegueda to the police would have demonstrated anything 

about B.’s credibility. B.’s mother did not testify at trial, so the reasons for her actions 

after B. disclosed defendant’s sexual abuse to her were not at issue.

Defendant was not precluded from presenting evidence in support of his 

defense. He presented evidence of B.’s illegal relationship with Osegueda and 

questioned her about whether she was afraid that her mother would report Osegueda to 

the police. Defendant’s trial counsel was permitted to forcefully challenge B.’s 

testimony that she was not afraid that her mother would report her illegal relationship 

with Osegueda to the police. The defense also presented evidence that B. had the 

opportunity to tell the police in 2014 of defendant’s sexual abuse of her and that she 

did not do so even though she knew the police could stop the abuse. And it was 

stipulated that B.’s mother did in fact report Osegueda to the police in 2018. In this 

context, the trial court neither abused its discretion nor violated defendant’s 

constitutional rights by making its evidentiary rulings concerning the proffered defense 

evidence.

Defendant also contends that his trial counsel was prejudicially deficient in 

failing to preserve for review his claim that the court erred in excluding evidence of 

B.’s mother’s 2014 report of Jones’s abuse of B. He argues that there could have been

no rational tactical purpose for failing to renew the request for admission of this 

evidence after B.’s testimony.

“To succeed on an appellate claim of ineffective assistance, a defendant must 

establish that his trial counsel’s performance was deficient and that his defense was 

prejudiced by the deficiency. [Citations.] ‘The defendant must show that there is a 

reasonable probability that, but for counsel’s unprofessional errors, the result of the 

proceeding would have been different.’ [Citation.] Whenever counsel’s conduct can 

be reasonably attributed to sound strategy, a reviewing court will presume that the 
21

conduct was the result of a competent tactical decision, and the defendant must 

overcome that presumption to establish ineffective assistance. [Citation.]” (People v. 

Fromuth (2016) 2 Cal.App.5th 91, 113.)

In this case, defendant has failed to overcome the presumption that his trial 

counsel made a reasonable and competent tactical decision not to renew the request. 

His trial counsel had successfully elicited B.’s admission that she did not want her 

mother to report Osegueda and that it was possible that her mother would do so. 

This testimony suppported the defense theory. Defendant’s trial counsel could have 

decided that this testimony was sufficient to support the defense theory and that 

additionally raising the fact that B. had been abused by another man in 2014 might 

cause the jury to blame defendant for her vulnerability to that abuse, while offering 

only a small amount of further support for the defense theory that B. was lying about 

defendant’s abuse. Such a decision is inherently tactical. Accordingly, defendant has 

not established on appeal that his trial counsel was prejudicially deficient in this 

respect.

D. Evidence Code section 1108 Evidence

Defendant contends that the trial court abused its discretion in failing to find 

that the Evidence Code section 1108 evidence was more prejudicial than probative.

1. Background

Defendant moved in limine to bar any evidence the prosecution sought to 

introduce under Evidence Code section 1108. In 1999, defendant had been convicted 

of lewd act on a child under 14 (§ 288, subd. (a)) on M.D. He had also committed an 

annoying or molesting a minor (§ 647.6) offense on J.D. The defense argued that the 

prior conviction should not come in because the age difference in that case had been 

only six years, while the age difference here was much more. It made the same 

argument as to the annoying or molesting offense.
22

The court weighed the probative value against the potential for prejudice under 

Evidence Code section 352 and found that the prior offenses were more probative than 

prejudicial because they involved similarly aged young girls who were not strangers to 

defendant, and similar conduct, which was not more inflammatory than the charged 

offenses, led to convictions, and were not remote. The police officer testified at trial 

about defendant’s statements to her in 1999 concerning his sexual acts with 

13-year-old M.D. and his interactions with J.D. J.D. also testified at trial about 

defendant’s interactions with her when she was 14 years old.

The jury was instructed: “If you decide that the defendant committed the 

uncharged offenses, you may, but are not required to, conclude from that evidence that 

the defendant was disposed or inclined to commit sexual offenses, and based on that 

decision, also conclude that the defendant was likely to commit and did commit the 

crimes, as charged here.”

2. Analysis

Defendant claims that evidence of the 1999 offenses should have been excluded 

under Evidence Code section 352 because they were not similar to the current 

offenses. He argues that the prior offenses involved “violent threats,” while the 

current offenses did not, and the prior offenses were committed on young girls who 

were five or six years younger than him but the current offenses were committed on a 

young girl who was 21 years younger than him.

A trial court should consider five factors in exercising its discretion under 

Evidence Code section 352 to exclude prior sex offenses that are admissible under 

Evidence Code section 1108: “(1) whether the propensity evidence has probative 

value, e.g., whether the uncharged conduct is similar enough to the charged behavior 

to tend to show defendant did in fact commit the charged offense; (2) whether the 

propensity evidence is stronger and more inflammatory than evidence of the 

defendant’s charged acts; (3) whether the uncharged conduct is remote or stale; 
23

(4) whether the propensity evidence is likely to confuse or distract the jurors from their 

main inquiry, e.g., whether the jury might be tempted to punish the defendant for his 

uncharged, unpunished conduct; and (5) whether admission of the propensity evidence 

will require an undue consumption of time. [Citation.] A trial court balances this first 

factor, i.e., the propensity evidence’s probative value, against the evidence’s 

prejudicial and time-consuming effects, as measured by the second through fifth 

factors.” (People v. Nguyen (2010) 184 Cal.App.4th 1096, 1117.)

Defendant addresses only the first two factors, perhaps because he recognizes 

that the other three factors do not provide any support for his contention. He claims 

that the prior acts were not probative because they were not sufficiently similar to the 

charged conduct to support an inference that he committed the current offenses. We 

disagree. The prior offenses were quite similar to the current offenses. B. testified 

that defendant made violent threats very similar to those he made to M.D. and J.D. 

Defendant told B. that he would kill nearly everyone he knew if “anything happened.” 

We therefore reject defendant’s claim that he “had never threatened” B. For the same 

reason, we find no merit in his claim that the prior acts were more inflammatory than 

the current charges because the priors were “violent.” Defendant’s violent threats 

against these young girls were one of the threads that wove the prior offenses and the 

current offenses together.

Defendant’s claim that the priors were not probative due to the variance in the 

age disparity between defendant and his victims lacks substance because the age 

disparity was of far less significance than the very close correlation in the ages of the 

victims. Defendant was just under 20 years old in 1999 when he committed the prior 

offenses on 13-year-old and 14-year-old girls, and he was in his late 20s and 30s when 

he molested B., largely when she was 11 to 14 years old. We conclude that defendant

has failed to demonstrate that the trial court abused its discretion under Evidence Code 

section 352 in admitting the 1999 offenses under Evidence Code section 1108.
24

E. Evidence Code section 1101, subdivision (b) Evidence

Defendant contends that the trial court prejudicially abused its discretion in 

admitting evidence about defendant’s sexual interactions with L.D. and B.X. under 

Evidence Code section 1101, subdivision (b) to show intent, motive, and common 

scheme or plan. He claims that this evidence was inadmissible because it was 

cumulative and more prejudicial than probative.

1. Background

Defendant made an in limine motion to bar any evidence of his prior acts under 

Evidence Code sections 352 and 1101. He argued that this conduct was not probative 

on the issue of his intent and that intent was not at issue in this case. Defendant argued 

that this proposed evidence was “essentially, bad character evidence” and therefore 

inadmissible.

The court held an Evidence Code section 402 hearing at which L.D. testified. 

L.D. was defendant’s cousin. He was about five years older than her. While 

defendant was in prison, he exchanged letters with L.D. In his final letter from prison 

to 15-year-old L.D., he said he “wanted to mess around” and to touch her breasts.

As to B.X., the prosecution proposed to have A.D. testify that she heard 

defendant make inappropriate sexual comments to 13-year-old B.X. in 2008 or 2009. 

Defendant also told A.D. that during a trip to Santa Cruz with B.X. he had “ ‘played 

with’ ” B.X.’s vagina and that her vagina was “ ‘very clean’ ” and “ ‘very tight.’ ” 

A.D. overheard defendant say that he “ ‘likes young girls’ ” and “ ‘likes young 

pussy.’ ”

The court noted that the proffered evidence involved conduct similar to 

defendant’s conduct with B. on girls who were of an age similar to B.’s at the time 

defendant molested her. L.D., like B., was defendant’s cousin, and defendant’s 

activities with B.X. occurred during the same period as his molestations of B. 

The court also observed that the evidence concerning L.D. and B.X. was not more 
25

inflammatory than the current offenses as it involved less serious conduct. Due to the 

fact that B.X. would not be testifying (since her identity was unknown), the court was 

concerned that it was “a close call” as to whether the corpus delicti rule applied to the 

potential admission of evidence concerning her as Evidence Code section 1108 

evidence. As there was a case on point that the corpus delicti rule did not apply to 

Evidence Code section 1101, subdivision (b) evidence, the court ruled that the 

prosecution would not be permitted to present evidence concerning defendant’s 

conduct with B.X. under Evidence Code section 1108 but could present it under 

Evidence Code section 1101, subdivision (b). As to the evidence concerning L.D., the 

court exercised its discretion and permitted the prosecution to introduce that evidence 

only under Evidence Code section 1101, subdivision (b) because it felt “more 

comfortable” with that than with admitting it under Evidence Code section 1108.

The court made Evidence Code section 352 findings similar to those it had 

made with regard to the Evidence Code section 1108 evidence: it found that the prior 

offenses involved similarly aged young girls who were not strangers to defendant, and 

similar conduct, which was not more inflammatory than the charged offenses, and that 

the prior conduct was not remote. The court also permitted the prosecution to 

introduce the statements by defendant regarding his sexual interest in young girls

under Evidence Code section 1101, subdivision (b) over the defense’s objection that 

their only relevance was to defendant’s propensity.

L.D. and A.D. testified at trial as we have recounted earlier, much as the 

prosecution had proposed. At the instruction conference, the defense agreed that the 

jury should be instructed that this evidence could be used to show intent, but the 

parties disagreed as to whether the jury should be instructed that it could be used for 

motive and common scheme or plan. The court instructed the jury that the testimony 

of A.D. and L.D. could be used for all three purposes. “[Y]ou may, but are not 

required to, consider that evidence for the limited purpose of deciding whether: 
26

[¶] A. The defendant acted with the intent, motive, or common plan and scheme to 

commit” the charged lewd act offenses. “Do not consider this evidence for any other 

purpose, unless I specifically instruct you otherwise. [¶] Do not conclude from this 

evidence that the defendant has a bad character or is disposed to commit crime.”

2. Analysis

Defendant argues that the trial court abused its discretion in admitting the prior 

act evidence under Evidence Code section 1101, subdivision (b) because his “intent” 

and “motive” were “never in dispute” as his acts on B. were all “sexual in nature.”

12

 

He claims that the prior act evidence was therefore cumulative and should have been 

excluded under Evidence Code section 352.

“Evidence Code section 1101, subdivision (a) generally prohibits the admission 

of evidence of a prior criminal act against a criminal defendant ‘when offered to prove 

his or her conduct on a specified occasion.’ Subdivision (b) of that section, however, 

provides that such evidence is admissible when relevant to prove some fact in issue, 

such as motive, intent, knowledge, identity, or the existence of a common design or 

plan. [¶] ‘The admissibility of other crimes evidence depends on (1) the materiality of 

the facts sought to be proved, (2) the tendency of the uncharged crimes to prove those 

facts, and (3) the existence of any rule or policy requiring exclusion of the evidence.’ 

[Citation.] Evidence may be excluded under Evidence Code section 352 if its 

12 Evidence Code section 1101 provides: “(a) Except as provided in this section 

and in [s]ections 1102, 1103, 1108, and 1109, evidence of a person’s character or a 

trait of his or her character (whether in the form of an opinion, evidence of reputation, 

or evidence of specific instances of his or her conduct) is inadmissible when offered to 

prove his or her conduct on a specified occasion. [¶] (b) Nothing in this section 

prohibits the admission of evidence that a person committed a crime, civil wrong, or 

other act when relevant to prove some fact (such as motive, opportunity, intent, 

preparation, plan, knowledge, identity, absence of mistake or accident, or whether a 

defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act 

did not reasonably and in good faith believe that the victim consented) other than his 

or her disposition to commit such an act.” (Evid. Code, § 1101.)
27

probative value is ‘substantially outweighed by the probability that its admission 

would create substantial danger of undue prejudice, of confusing the issues, or of 

misleading the jury.’ [Citation.] ‘Because substantial prejudice is inherent in the case 

of uncharged offenses, such evidence is admissible only if it has substantial probative 

value.’ ” (People v. Lindberg (2008) 45 Cal.4th 1, 22-23.) “ ‘On appeal, the trial 

court’s determination of this issue, being essentially a determination of relevance, is 

reviewed for abuse of discretion.’ ” (People v. Whisenhunt (2008) 44 Cal.4th 174, 

203.)

Defendant does not address the admissibility of this prior act evidence to show 

a common design or plan. The Attorney General contends that it was admissible to 

show a common design or plan. We agree.

“[E]vidence of a defendant’s uncharged misconduct is relevant where the 

uncharged misconduct and the charged offense are sufficiently similar to support the 

inference that they are manifestations of a common design or plan.” (People v. Ewoldt

(1994) 7 Cal.4th 380, 401-402.) “In order to be admissible to prove intent, the 

uncharged misconduct must be sufficiently similar to support the inference that the 

defendant ‘ “probably harbor[ed] the same intent in each instance.” [Citations.]’ 

[Citation.] [¶] A greater degree of similarity is required in order to prove the 

existence of a common design or plan[:] . . . evidence of uncharged misconduct must 

demonstrate ‘not merely a similarity in the results, but such a concurrence of common 

features that the various acts are naturally to be explained as caused by a general plan 

of which they are the individual manifestations.’ [Citation.] ‘[T]he difference 

between requiring similarity, for acts negativing innocent intent, and requiring 

common features indicating common design, for acts showing design, is a difference 

of degree rather than of kind; for to be similar involves having common features, and 

to have common features is merely to have a high degree of similarity.’ [Citations.] 

[¶] To establish the existence of a common design or plan, the common features must 
28

indicate the existence of a plan rather than a series of similar spontaneous acts, but the 

plan thus revealed need not be distinctive or unusual.” (Id. at pp. 402-403.)

A.D.’s testimony about defendant’s statements about young girls and about his 

conduct with B.X. coupled with L.D.’s testimony about his interaction with her 

demonstrated that defendant was acting in accordance with a common plan rather than 

engaging in “a series of similar spontaneous acts.” Defendant did not merely act 

spontaneously. He pursued relationships with these young girls (exchanging letters 

with L.D.; talking to B.X., cuddling with her under a blanket, and later taking her on a 

trip; bonding with B. over video gaming and buying her gifts) as part of his plan to use 

these relationships as leverage to gain sexual access to their young bodies. The similar 

ages of the girls, his familial or near-familial relationships with them (B. and L.D. 

were both his cousins, and B.X. was his cousin’s friend), and the similarity in the 

conduct (fondling B.’s breasts and expressing the desire to fondle L.D.’s breasts, 

digitally penetrating B. and B.X.) established that the prior and current acts were 

sufficiently similar to merit admission under Evidence Code section 1101, 

subdivision (b) to show his common scheme or plan. The fact that defendant also 

repeatedly proclaimed his desire for young girls’ bodies and “young pussy” only 

enhanced the evidence that he had a common plan to gain access to those young 

bodies.

Defendant’s reliance on People v. Balcom (1994) 7 Cal.4th 414 is misplaced. 

In Balcom, the California Supreme Court held that the prior conduct was not 

admissible to show intent because it would have been merely cumulative on that point, 

but the court held that the prior conduct was admissible to show common scheme or 

plan.

13

 (Id. at pp. 423-424.) As the court pointed out, “[e]vidence that the defendant 

13 Defendant’s claim also finds no support in this court’s decision in People v. 

Lopez (2011) 198 Cal.App.4th 698. In Lopez, this court found the prior act evidence 

inadmissible to show intent because, as in Balcom, the perpetrator’s intent was 
29

possessed a plan to commit the type of crime with which he or she is charged is 

relevant to prove the defendant employed that plan and committed the charged 

offense.” (Id. at p. 424.) That is precisely the case here. Defendant planned to take 

sexual advantage of his young female relatives and their friends (L.D., B.X., M.D., and 

J.D.) by developing relationships with them and leveraging those relationships, and he 

employed that plan when he sexually abused B.

Since the prior act evidence was admissible to show defendant’s common 

design or plan, we need not address defendant’s claim that it was inadmissible to show 

intent or motive. Defendant does not argue that the instruction permitting the jury to 

consider it for all three purposes was prejudicial if the evidence was admissible only to 

show his common scheme or plan.14 His contention is solely that the evidence should 

not have been admitted at all.

The remaining question is whether the trial court abused its discretion under 

Evidence Code section 352 in admitting this evidence. His sole argument on the 

Evidence Code section 352 issue in his opening brief is that the evidence should have 

been excluded because it was “cumulative,” which is premised on his claim that it was 

admitted only on intent and motive. Since it was admitted to show common design or 

“beyond dispute.” (Id. at p. 715.) Lopez did not concern evidence that was admitted 

to show a common scheme or plan.

14 A trial court’s error in admitting prior act evidence under Evidence Code 

section 1101, subdivision (b) does not require reversal unless it meets the standard set 

forth in People v. Watson (1956) 46 Cal.2d 818 (Watson). (People v. Malone (1988) 

47 Cal.3d 1, 22.) Reversal is required “only when . . . it is reasonably probable that a 

result more favorable to the appealing party would have been reached in the absence of 

the error.” (Watson, at p. 836.) “ ‘ “ ‘[A] “probability” in this context does not mean

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

possibility.’ [Citation.]” ’ [Citation.]” (People v. Wilkins (2013) 56 Cal.4th 333, 

351.) Defendant, who does not even acknowledge that this evidence was admitted to 

show common scheme or plan, does not argue that limiting the use of this evidence to 

common scheme or plan would have made any difference in the outcome.
30

plan, this argument lacks merit. In his reply brief, defendant argues that this prior act 

evidence was unduly prejudicial because he had not been punished for the prior acts,

and therefore there was “a substantial risk that the jury would incorrectly infer his guilt 

of the currently charged offenses to punish him for the prior” acts. We see no abuse of 

discretion in the trial court’s conclusion that this was unlikely in this case. Defendant 

had already been punished for the two convictions that were introduced as Evidence 

Code section 1108 evidence, and, given the fact that the jury was instructed on the 

limited use of the Evidence Code section 1101, subdivision (b) evidence and that these 

prior acts were far less serious than the current offenses, it was unlikely that the jury 

would do as he suggests. The trial court did not abuse its discretion under Evidence 

Code section 352 in admitting this prior act evidence.

F. CALCRIM No. 1193

Defendant claims that the trial court prejudicially erred in giving the standard 

version of CALCRIM No. 1193 because this instruction told the jury that it could use 

the CSAAS evidence “in evaluating the believability of [B.’s] testimony.”

1. Background

The defense sought to preclude the prosecution from presenting expert CSAAS 

testimony. It claimed that the proposed testimony was irrelevant, unduly prejudicial, 

and not a proper subject for expert testimony. The defense also argued that the voir 

dire of the jurors demonstrated that none of them suffered from any misconceptions so 

the evidence was irrelevant. In addition, the defense asked the court to instruct the 

jury with CALJIC No. 10.64 prior to the CSAAS testimony if that testimony was 

admitted. CALJIC No. 10.64 does not instruct the jury that it can use CSAAS 

evidence in “evaluating the believability” of the child-witness’s testimony.

The court found the CSAAS testimony admissible and denied the defense 

motion to exclude it. The court declined to instruct with CALJIC No. 10.64 but agreed 

to instruct the jury with CALCRIM No. 1193. At the close of trial, the defense 
31

reiterated its request for CALJIC No. 10.64, but after the court denied that request it 

submitted as to CALCRIM No. 1193.

Blake Carmichael testified about CSAAS. Before Carmichael’s testimony, the 

court instructed the jury with CALCRIM No. 1193. Carmichael testified that CSAAS 

was intended to “help people understand why kids might do something you might not 

expect or hope they might do after being sexually abused.” He explained that CSAAS 

should not be used “to decide if a kid was abused or not.” “It’s used to help people 

understand why certain things could happen for kids who have been sexually abused.”

At the conclusion of the trial, the trial court again instructed the jury with 

CALCRIM No. 1193: “You have heard testimony from Dr. Blake Carmichael 

regarding [CSAAS]. [¶] [His] testimony about [CSAAS] is not evidence that the 

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

this evidence only in deciding whether or not [B.]’s conduct was not inconsistent with 

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

her testimony.”

The prosecutor did not mention the CSAAS evidence in her opening argument 

to the jury, but defendant’s trial counsel brought it up in her argument. Defendant’s 

trial counsel argued that Carmichael’s testimony “doesn’t really apply” because it 

“doesn’t help us . . . determine whether . . . B[.] is telling the truth.” She observed 

that CSAAS was an “educational tool” that “start[s] with” “the assumption that the 

child was abused.” She pointed out that this was not what the jury should do because 

defendant was “presumed innocent.” She noted that CSAAS is “not a diagnostic tool.” 

“So this evaluation tool isn’t applicable to the circumstances of this case because we 

don’t have a known victim of sexual assault, and Dr. Carmichael told us that it can’t 

and shouldn’t be used to decide if a person was the victim of a sexual assault.” The 

prosecutor briefly mentioned the CSAAS evidence in her closing argument. She 
32

asserted that CSAAS was relevant to help the jury determine “whether or not what 

they are saying is inconsistent with” being a sexual abuse victim.

2. Analysis

Defendant’s challenge to CALCRIM No. 1193 is essentially identical to the 

challenge made by the defendant in People v. Brackins (2019) 37 Cal.App.5th 56

(Brackins) to CALCRIM No. 850. CALCRIM No. 850, much like CALCRIM 

No. 1193, tells the jury that it may use expert testimony about intimate partner 

violence (formerly known as Battered Women’s Syndrome) in evaluating whether the 

victim’s “ ‘conduct was not inconsistent with the conduct of someone who has been 

abused, and in evaluating the believability of her testimony.’ ” (Brackins, supra, at 

pp. 68-69.) The defendant claimed that by instructing the jury that it could use the 

expert testimony in evaluating the victim’s “believability,” the court was erroneously 

permitting the jury to use the “testimony to ‘prove the occurrence’ of the abuse.” 

(Id. at p. 71.) This court rejected the challenge. “We reject this premise because it 

presumes that expert testimony that may be used by the jury to assist it in evaluating 

the credibility of an alleged abuse victim is prohibited evidence of whether the abuse 

occurred. If the expert testimony was not related in some way to whether the abuse 

occurred, it would be irrelevant.[

15] Expert testimony may not be improperly used 

to directly determine whether the abuse occurred. But like much of the other evidence 

that comes in at a trial, it may be used indirectly to assist the jury in evaluating 

whether the alleged victim’s statements are believable.” (Ibid.) The same is true here. 

CALCRIM No. 1193 properly told the jury that it could use Carmichael’s testimony in 

evaluating the believability of B.’s testimony.

15 As noted in Brackins, “All evidence, including expert testimony, must have 

some relation to whether the charged offenses occurred or it would be irrelevant and 

excluded.” (Brackins, supra, 37 Cal.App.5th at p. 72.)
33

Defendant takes issue with the Second District Court of Appeal, Division Six’s 

analysis in People v. Gonzales (2017) 16 Cal.App.5th 494 of a similar challenge to 

CALCRIM No. 1193. The Gonzales court found that CALCRIM No. 1193 properly 

permitted the jury to use the CSAAS evidence to “neutralize[] the victim’s apparently 

self-impeaching behavior.” (Gonzales, at p. 504; accord People v. Munch (2020) 52 

Cal.App.5th 464, 474 [agreeing with the analysis in Gonzales].) We find nothing 

improper in that analysis, and we agree that CALCRIM No. 1193 properly permits the 

jury to use the CSAAS evidence in its evaluation of the believability of the victim’s 

testimony. We therefore reject defendant’s claim that CALCRIM No. 1193 is infirm 

in this respect.

G. Prosecutorial Misconduct

Defendant claims that the prosecutor erred during closing argument by 

vouching for B.’s credibility.

1. Background

The court told the jury repeatedly: “Nothing that the attorneys say is evidence. 

In their opening statements and closing arguments, the attorneys discuss the case, but 

their remarks are not evidence.” “You alone must judge the credibility or believability 

of the witness.”

The prosecutor explained in her argument to the jury that it was the jury’s job to 

evaluate a witness and determine whether the witness was telling the truth. The 

prosecutor went over the factors set forth in CALCRIM No. 226 that are relevant to 

witness credibility. After going through these factors, the prosecutor said: “So I want 

to start with B[.] B[.] gave you sincere and credible testimony. She remembered 

significant facts in detail, while at the same time, not remembering things that you 

wouldn’t expect her to remember. [¶] I want to contrast this for a moment with the 

defendant . . . . B[.] remembered significant details of significant events.” 

Defendant’s trial counsel did not object to this argument. The prosecutor argued that 
34

B.’s “demeanor” when she testified demonstrated that she was credible. She also 

argued that B. “has absolutely no reason to lie” because there was no evidence of any 

animosity between her and defendant. Defendant’s trial counsel objected to the 

prosecutor’s argument that B. had “no reason to lie.” She contended that this was 

improper vouching. The court found no vouching and overruled the objection. The 

prosecutor also argued that “ultimately, you know that the defendant is guilty because 

of B[.]’s sincere and heartfelt testimony.”

2. Analysis

Defendant argues that the prosecutor improperly vouched for B.’s credibility by 

arguing that she had “no reason to lie” and that “ ‘you know that the defendant is 

guilty because of B[.]’s sincere and heartfelt testimony.’ ”

“Impermissible vouching occurs when ‘prosecutors [seek] to bolster their case 

“by invoking their personal prestige, reputation, or depth of experience, or the prestige 

or reputation of their office, in support of it.” [Citation.] Similarly, it is misconduct 

“to suggest that evidence available to the government, but not before the jury, 

corroborates the testimony of a witness.” ’ ” (People v. Linton (2013) 56 Cal.4th 

1146, 1207.) However, “ ‘ “[a] prosecutor is given wide latitude to vigorously argue 

his or her case” ’ [citation] and ‘ “may make ‘assurances regarding the apparent 

honesty or reliability of’ a witness ‘based on the “facts of [the] record and the 

inferences reasonably drawn therefrom.” ’ ” ’ ” (People v. Rodriguez (2020) 9 Cal.5th 

474, 480.)

Defendant claims that the prosecutor’s argument “went beyond the evidence in 

the record and personally vouched for the honesty of [B.]” and “actually assured the 

jurors that h[er] witness was testifying honestly.” He insists that “the prosecutor was 

not commenting on the state of the evidence, but was expressing the prosecutor’s 

personal opinion.”
35

We find nothing in the record to support defendant’s claim that the jury would 

have understood the prosecutor to be relying on her personal opinion or matters 

outside the record when she made the challenged comments. The prosecutor expressly 

urged the jury to find that B.’s testimony was “sincere and credible” based on B.’s 

demeanor and the relevant factors under CALCRIM No. 226. The jury clearly would 

have understood the prosecutor’s later comment on B.’s “sincere and heartfelt” 

testimony to be based on the same proper considerations, not the prosecutor’s personal 

belief or any information outside the record. Similarly, the prosecutor argued that B. 

had “no reason to lie” because there was no evidence of any animosity between B. and 

defendant and even defendant had denied the existence of any. This argument too did 

not suggest that the prosecutor was relying on her personal belief or any information 

outside the record as it was explicitly grounded in the record. Accordingly, we find no 

merit in defendant’s claim that the prosecutor improperly vouched for B.’s testimony.

H. Cumulative Prejudice

Defendant contends that the alleged errors were cumulatively prejudicial, but 

we have found only one nonprejudicial error. Hence, there is nothing to cumulate.

I. Cruel and Unusual Punishment

Defendant argues that his sentence of 900 years to life is unconstitutionally

cruel and unusual because “it is an absurdity that serves no legitimate penal purpose.” 

He contends that “[a] sentence that no human being could conceivably

complete serves no rational legislative purpose, under either a retributive or a 

utilitarian theory of punishment.” He posits that “a prison term that exceeds the 

lifespan of the defendant serves no retributive purpose that would not be

served equally well by a life sentence.”

1. Background

Defendant filed a posttrial motion asking the court to strike the strike findings. 

He argued that failing to strike the strike findings would result in a sentence that 
36

violated the Eighth Amendment’s prohibition against cruel and unusual punishment. 

Defendant noted that striking the strike findings would still result in a sentence that 

exceeded 250 years to life. The probation report recommended a sentence of 

900 years to life.

At the sentencing hearing, defendant’s trial counsel argued that the strikes 

should be stricken due to “the age of the prior convictions” and the “change that he 

made in his life” after he was released from prison. She also argued that the court 

should consider her “cruel and unusual punishment argument” as a basis for striking 

the strikes. She asserted that “imposing the strike priors is unnecessary” and 

“psychologically problematic” for defendant.

The court found that the strike priors were not remote in light of the fact that 

defendant had been discharged from parole in 2005 and had begun his molestation of 

B. in 2008. The court also found that the current offenses were aggravated and 

showed that defendant posed “a greater degree of danger to society.” It found no 

circumstances in mitigation. The court concluded that defendant “falls squarely within 

the spirit of the Three Strikes [l]aw” and refused to strike either of the strikes.

The court “impose[d] the term prescribed by law.” Consecutive terms were 

required because “they are separate acts of violence, occurring on different dates and 

time[s].” The court imposed but stayed under section 654 a term of 45 years to life for 

each of the three aggravated sexual assault counts.16 It imposed a term of 75 years to 

life for each of the 10 section 288, subdivision (a) counts and a term of 25 years to life

for each of the six section 288, subdivision (c)(1) counts. The total term was 900 years 

to life. The court waived the fines and fees and stayed the restitution fund fine.

16 The prosecutor had elected at trial to base the first three lewd act on a child 

under 14 counts on the same acts as the three aggravated sexual assault counts.
37

2. Analysis

Defendant premises his argument on Justice Mosk’s concurring opinion in 

People v. Deloza (1998) 18 Cal.4th 585 and a previous law review article, also written 

by Justice Mosk. In Deloza, the defendant had been sentenced to 111 years to life, and 

the California Supreme Court reversed the judgment because the trial court had been 

unaware of its discretion to impose concurrent rather than consecutive terms. (Id. at 

p. 600.) Justice Mosk did not take issue with the majority’s holding. However, he 

wrote separately to note that was no “legal difference” between a sentence of 

111 years and 30,000 years because both sentences were “impossible for a human 

being to serve.” (Id. at p. 601.) He suggested that a sentence should either be life or 

life without possibility of parole, rather than a sentence that was “impossible” to serve. 

(Id. at pp. 600-602.)

Defendant cites no California case that has ever agreed with Justice Mosk’s 

position. Although he acknowledges that his sentence was compelled by statute, he 

urges us to “consider” whether it “serve[s] any rational purpose.” The two United 

States Supreme Court cases he cites are readily distinguishable. Trop v. Dulles (1958) 

356 U.S. 86 concerned a punishment of loss of citizenship. Coker v. Georgia (1977) 

433 U.S. 584 was a death penalty case. Challenges like defendant’s have been 

repeatedly rejected by California Courts of Appeal on the ground that sentences 

exceeding a defendant’s lifespan do serve a rational purpose. (People v. Byrd (2001) 

89 Cal.App.4th 1373, 1382-1383 [rejecting challenge to sentence of 115 years 

consecutive to 444 years to life]; People v. Retanan (2007) 154 Cal.App.4th 1219, 

1231 [rejecting challenge to sentence of 135 years to life]; People v. Sullivan (2007) 

151 Cal.App.4th 524, 568 [rejecting challenge to sentence of 210 years to life].) 

“[A] sentence such as the one imposed in this case serves valid penological purposes: 

it unmistakably reflects society’s condemnation of defendant’s conduct and it provides 

a strong psychological deterrent to those who would consider engaging in that sort of 
38

conduct in the future.” (Byrd, at p. 1383.) “[T]he likelihood that he may not serve the 

entirety of the sentence does not, in our view, make the punishment inappropriate

under the circumstances. ‘In practical effect, he is in no different position than a 

defendant who has received a sentence of life without possibility of parole: he will be 

in prison all his life.’ ” (Sullivan, at p. 572.)

We agree with the other courts that have considered this issue that a sentence 

beyond the span of a human life still serves the legitimate purpose of demonstrating 

society’s extreme condemnation of highly culpable conduct and therefore does not 

impose cruel and unusual punishment, particularly since a defendant who receives 

such a sentence can spend no more than his or her entire life in prison. Consequently, 

we reject defendant’s claim that his sentence is unconstitutional because it exceeds his 

lifespan.

J. Remand for Application of Amended Version of Section 654

The prosecutor elected to base counts 4, 5, and 6 on the same acts as counts 1, 

2, and 3. Defendant was found guilty of both sets of counts. Counts 1, 2, and 3 were

each punishable by a term of 45 years to life, while counts 4, 5, and 6 were each 

punishable by a term of 75 years to life. At the time of sentencing, former section 654

provided: “An act or omission that is punishable in different ways by different 

provisions of law shall be punished under the provision that provides for the longest 

potential term of imprisonment, but in no case shall the act or omission be punished 

under more than one provision.” (Stats. 1997, ch. 410, § 1, italics added.) 

Consequently, the trial court was required to impose the terms of 75 years to life rather 

than the terms of 45 years to life for these acts.

Effective January 1, 2022, section 654 now provides: “An act or omission that 

is punishable in different ways by different provisions of law may be punished under 

either of such provisions, but in no case shall the act or omission be punished under 

more than one provision.” (§ 654, subd. (a), italics added.) Thus, a trial court now has 
39

discretion to choose either the longer or the shorter term of imprisonment for an act 

that is punishable in two different ways.

Defendant contends, and the Attorney General concedes, that the amendment of 

section 654 is retroactive to all cases, like his, that were not final as of January 1, 

2022. We agree. The “inference of retroactivity” under the “Estrada rule” applies 

“to statutes that merely ma[k]e a reduced punishment possible,” as amended 

section 654 does. (People v. Frahs (2020) 9 Cal.5th 618, 628-629.) Where an 

ameliorative statute like this one is retroactive, a remand is appropriate unless “the 

record ‘clearly indicate[s]’ that the trial court would have reached the same conclusion 

‘even if it had been aware that it had such discretion.’ ” (People v. Gutierrez (2014) 

58 Cal.4th 1354, 1391 (Gutierrez).) The record in this case contains no indication as 

to whether the trial court would have imposed the longer terms if it had understood 

that it had a choice. Accordingly, we remand to give the trial court the opportunity to 

exercise its discretion under the amended version of section 654.

IV. DISPOSITION

The judgment is reversed, and the matter is remanded to the trial court for the 

sole purpose of permitting the court to exercise its discretion under the amended 

version of section 654. If the court decides to impose the same sentence as it did 

originally, it shall reinstate the judgment. If the court decides otherwise, it shall 

resentence defendant.
_________________________________

ELIA, ACTING P.J.

WE CONCUR:

_______________________________

LIE, J.

_______________________________

WILSON, J.

People v. Romero

H047034