1

Filed 10/13/21 P. v. Kelly CA3

NOT TO BE PUBLISHED

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

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

ANDY KARL KELLY,

Defendant and Appellant.

C087530

(Super. Ct. No. 17FE019449)

A jury found defendant guilty of committing a lewd or lascivious act on a child 

under the age of 14 (10 counts), attempting to commit a lewd or lascivious act on a child 

under the age of 14, engaging in sexual intercourse or sodomy with a child 10 years old 

or younger (two counts), and engaging in oral copulation or sexual penetration with a 

child 10 years old or younger (four counts). The victim, defendant’s goddaughter, was 

six years old and younger at the time of the charged offenses. Defendant was sentenced 

to 110 years to life and an additional determinate term of 19 years.
2

On appeal, defendant contends that (1) the trial court abused its discretion in 

admitting expert testimony concerning Child Sexual Abuse Accommodation Syndrome 

(CSAAS), (2) CALCRIM No. 1193 allowed the jury to consider the CSAAS evidence in 

an improper manner, and (3) substantial evidence did not support his conviction of 

attempting to commit a lewd or lascivious act on a child under the age of 14. 

We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Defendant was charged with committing a lewd or lascivious act on a child under 

the age of 14 (Pen. Code, § 288, subd. (a); counts one, two, four, five, seven, eight, nine, 

eleven, thirteen, seventeen)

1

; attempting to commit a lewd or lascivious act on a child 

under the age of 14 (§§ 664, 288, subd. (a); count three); engaging in sexual intercourse 

or sodomy with a child 10 years old or younger (§ 288.7, subd. (a); counts six, sixteen); 

and engaging in oral copulation or sexual penetration with a child 10 years old or 

younger (§ 288.7, subd. (b); counts ten, twelve, fourteen, fifteen). It was further alleged 

that defendant engaged in substantial sexual contact with a victim under the age of 14 

years old within the meaning of section 1203.066, subdivision (a)(8). The incidents were 

alleged to have occurred between February 11, 2015, and July 18, 2017. 

Prosecution Evidence 

Trial Testimony About the Underlying Events

The victim was seven years old at trial. She had a sister, S.D., who was 11, and 

three brothers. Defendant was the victim’s godfather. The victim spent a great deal of 

time with her godparents, defendant and his wife, who helped the victim’s father and 

stepmother and were essentially an extended family. The victim stayed with defendant 

and his wife off and on her whole life until she was six. K.S. and, more recently, A.H., 

1

 Further undesignated statutory references are to the Penal Code in effect at the time of 

the charged offenses.
3

defendant’s daughters, also lived with them at defendant’s house.

2

 The victim had a 

small bed in defendant’s bedroom next to the bed defendant shared with his wife. 

The victim testified that she was five and six when bad things happened to her. 

On one occasion, when she was six, she was in bed and defendant was tickling her. 

Defendant licked her armpit and then asked her what she wanted to lick. The victim

licked defendant’s stomach, and then defendant pulled out his “wiener” or “thingy.” 

On another occasion, when the victim was five years old, she was playing outside 

with her friends and then went inside. Defendant came in the bedroom. Defendant 

pulled his penis out of his pants and “started grabbing on it for a minute . . . .” Defendant 

told the victim to touch his penis, and so she touched it with her finger. Eventually, “the 

white stuff came out.” Defendant told the victim to eat it. The victim had to suck 

defendant’s penis with her mouth. Defendant also put his penis in her vagina. 

On another occasion, she was in the bathtub when defendant came into the 

bathroom. Defendant put his penis in her vagina. Defendant also put his fingers in her 

anus and put his mouth on her breasts. 

Defendant also kissed the victim “like a grown-up kiss” by putting his lips on hers 

and putting his tongue in her mouth. 

The victim testified that defendant told her not to tell anyone about the things he 

did with her. She did not tell her parents about the incidents because she was too 

frightened. 

Eventually, the victim told S.D. S.D. wanted to tell her mother and encouraged the 

victim to tell someone, but the victim refused, saying that defendant told her she would 

get hurt if she told anyone. On the last occasion, the victim reported abuse to S.D., and 

2

 K.S. was defendant’s stepdaughter and A.H. was her sister. 
4

then they told the victim’s “cousin.”

3

 S.D. and the cousin told the victim’s parents. The 

victim’s father and stepmother took the victim to a hospital. 

On cross-examination, the victim testified that she got in trouble before for 

watching videos she was not supposed to watch. She denied ever watching videos of 

adults having sex. However, she further testified on recross-examination that she got in 

trouble for watching “nasty” videos. 

The Victim’s Hospital Visit, Law Enforcement Interview, and BEAR Clinic

Examination

An emergency room nurse testified that the victim “was very matter of fact.” The 

nurse acknowledged on cross-examination that the victim did not seem upset, was not 

crying, and did not provide many details of the alleged sexual abuse. 

Sacramento Sheriff’s Detectives Christopher Robertson and his partner 

interviewed the victim at the hospital. An audio recording of the interview was played 

for the jury. In the interview, the victim told the deputies that, the day before the 

interview, defendant made her “lick the . . . white stuff off him.” The victim was naked 

in the bathtub. Defendant said to the victim that it was “take out time.” The victim put 

on a towel and went into the room she shared with defendant and his wife. Defendant 

was rubbing his penis over his pants, and then he pulled it out. Defendant made the 

victim touch his penis with her hand and suck his penis. Defendant rubbed his penis to 

“make the white stuff come out,” and he forced the victim “to lick the white stuff off 

him.” Defendant made white stuff come out again and he made the victim eat it again. 

He used his own hand to make the white stuff come out, and he put his “wiener” in her 

“hole.” However, “the whole wiener wouldn’t fit.” Defendant placed his finger in her 

anus, and then put his finger in the hole in “front.” The victim said that defendant placed

his penis in her hole on three separate occasions. 

3

 She was not actually a cousin by blood relation. 
5

Defendant taught the victim how to “grown-up kiss” using the tongue. That 

occurred on the victim’s birthday when she turned six. 

The victim told the deputies that she never told anyone about the incidents because 

she was scared. Defendant threatened her that, if she told anyone, he would spank her 

until she could not feel anything. 

On cross-examination, Robertson confirmed that, during the interview, the victim

was calm and was not crying.

Julie Langston was a registered nurse who worked for the Sutter Medical Group at 

the BEAR Clinic, where they perform sexual assault and child abuse forensic assault 

exams.4 Langston performed an exam on the victim on July 20, 2017. Langston testified 

that symptoms the victim had disclosed included abdominal and pelvic pain, “pain when 

she went to the bathroom with some genital itching,” and bleeding when she had a bowel 

movement. Langston noted that the victim “had a yeast infection a couple months earlier 

and there had been some genital itching with that.” Langston testified that abdominal or 

pelvic pain, pain on urination, and yeast infections can be side effects of vaginal sexual 

assault, but there is no way to directly link such symptoms to a vaginal sexual assault. 

Langston also testified that yeast infections can have nonsexual causes. 

Langston testified that, in examinations in cases of sexual assault, in more than 50 

percent of adults and 90 percent of children, the physical exam results are “normal.” In 

other words, it is not surprising in a case of recent sexual abuse to find no injuries. In her 

examination of the victim, Langston did not find anything abnormal. The victim did have 

a slightly dilated anus, but that could have resulted from a recent bowel movement.

4

 Langston testified that BEAR is an acronym for “Bridging Assessment Evidence and 

Resources,” presumably reversing the order of “Evidence Assessment.” 
6

Langston testified that the lack of findings in the victim’s exam was consistent with the 

history of sexual abuse described to Langston.5 

Later, Detective Shane Spence went to the victim’s father’s and stepmother’s 

house to discuss with them the procedure of a SAFE interview.6 Spence showed the 

victim a photograph of defendant to see if she could identify him. The victim identified 

defendant, said that she missed him, and spontaneously kissed the photograph. 

The Victim’s SAFE Interview

At the SAFE interview, the victim seemed very nervous and threw up in the car on 

the way. The prosecution played a recording of the SAFE interview for the jury.

7

The victim told the interviewer that defendant was very nice, “but he started doing 

S-A-X,” by which she meant sex. The victim stated that defendant “started putting his 

thingy in” her, started having sex with her, and forced her to lick white stuff off of him. 

According to the victim, this happened on three occasions. 

On the first occasion, defendant tried to have sex with her. The victim and 

defendant were snuggling and he licked her armpit. He asked her what she wanted to 

lick, and she said his tummy. She licked his bellybutton. Defendant then pulled out his 

“wiener” under the blanket and “was squishing it,” with his hands. Defendant asked the 

victim to have sex and she said no. The victim and defendant were “talking backwards,” 

“no means yes and yes me [sic] no,” and the victim said no. Defendant said, “[h]ow 

about I, I have it with your doll.” Defendant started pushing on the vagina area of the 

5

 Langston took a number of swabs from the victim, including genital swabs, anal swabs, 

a buccal swab, a perioral swab from the area around the lips, and swabs around her 

breasts. Langston also collected the victim’s shorts, top, and underwear. 

6

 SAFE is an acronym standing for “special assault forensic evaluation.” (People v. 

Sanchez (2016) 246 Cal.App.4th 167, 174.)

7

 Page two of the transcript of this interview is absent from the clerk’s transcript.
7

victim’s doll like he was having sex. Defendant told the victim not to tell anyone that he 

showed her how to have sex. 

The second occasion occurred on the victim’s birthday. Defendant told the victim 

to give him a kiss, and “then he went to the tongue.” He made her put her tongue inside 

of his mouth and he put his tongue inside her mouth. Defendant’s hands were on the 

victim’s neck. He then received a work-related phone call and had to leave. 

On the most recent occasion, when the victim was six, she was outside playing 

with friends. The victim had to go inside because her toe was bleeding. Defendant 

prepared a bath for the victim. When she went to the bath, the victim had a bathing suit 

on, and she asked defendant to leave so she could take it off. Defendant watched her 

through a crack in the door. The victim got into the bathtub and defendant came back 

into the bathroom. He was wearing black shorts and he took them off. Defendant sucked 

on the victim’s “boob.” Defendant laid down and pushed down on the victim’s vagina

with his “thingy” or his “wiener.” Defendant’s penis went inside of the victim’s vagina. 

Defendant was moving and shaking. At one point, defendant’s face started turning 

purple and had to get up and get his shot from the refrigerator. Defendant was diabetic. 

The victim followed defendant and saw him get his shot from the refrigerator and give 

himself the shot. On this occasion, according to the victim, defendant injected the shot 

on his “thingy.” Defendant put his finger inside the victim’s vagina and “rolled it around

in there . . . .” He also put his finger in her anus. Defendant and the victim went to the 

bedroom. Defendant told the victim to “[s]queeze [his] wiener. Squeeze it really fast.” 

Defendant made the victim “suck the top” of his penis. The white stuff came out of 

defendant’s penis. The victim had to lick the white stuff off of defendant’s “wiener” and 

“the balls.” Then, as defendant’s wife came in, defendant told the victim to get back into 

the bath. The victim was scared because defendant told her that, if she told anyone, he 

would spank her until she could not feel anything. After defendant’s wife went back to 
8

work later, the victim was in bed and she woke up. Defendant took off the black shorts 

and put his penis in her vagina again.

DNA and Urological Evidence

Ryan Nickel testified as an expert in DNA analysis and statistical significance. 

Nickel analyzed a number of samples including defendant’s reference sample and items 

in the victim’s BEAR collection kit. On one of three vestibule swabs, he detected “one 

sperm head in a screening cutting.”8 Nickel found two sperm heads on the underwear in 

the BEAR kit and took a cutting for DNA analysis. 

Nickel developed DNA profiles from the items he found. No foreign DNA was 

found on the vestibule swab.9 On cross-examination, Nickel agreed that it was it was a 

misnomer to discuss the sperm fraction on the vestibule swab because, after DNA 

analysis, no sperm was found. 

On the sperm fraction Nickel located on the underwear, he found a mixed profile, 

with one female contributor and one male contributor. Defendant was a potential 

contributor to the male profile in the sperm fraction. According to Nickel, it was 16.1 

quadrillion times more likely that the victim and defendant were the contributors to the 

sample than the victim and a random male. As to the nonsperm fraction, Nickel also 

discovered a mixed profile, one male and one female. According to Nickel, it was 33,800 

times more likely that the victim and defendant were the contributors to the sample than 

the victim and a random male. Nickel testified that, if he did not have to dilute the 

8

 Langston testified that the vestibule is the area “right after the labia minora, right 

before the hymen.” 

9

 Nickel explained that it is possible to find no foreign DNA in a swab taken from a 

female despite the presence of a sperm fraction because “either there just isn’t enough --

there aren’t sperm cells on that remaining three-quarters sample that I took to DNA or 

that the epithelial cell fraction is overwhelming the number of the sperm cells and ending 

up in the sperm fraction.” 
9

sample before amplifying it in order to properly perform his analysis, the “profile would 

be a lot higher.” 

Nickel testified that articles furnished by the defense supported the premise that 

transfer of DNA in the washing machine can occur. However, Nickel testified that the 

DNA quantities found in this case were significantly higher than those found in the 

studies, suggesting that such transfer did not explain the presence of defendant’s DNA in 

the underwear. On redirect, Nickel reiterated his belief that the underwear had been 

recently worn and had not been washed based on a stain in the underwear and epithelial 

cells he found in one of the cuttings. Nickel also testified that the amount of DNA 

detected in the nonsperm fraction from the underwear was approximately 60 nanograms, 

and that one of the articles provided by the defense on transfer occurring in washing 

machines “says if you get higher than 6.7 nanograms, then you can likely exclude 

secondary transfer.” 

Dr. Robert Lurvey testified as an expert in urology. He testified that there are 

three types of medication that may be injected into the penis. These medications treat

erectile dysfunction. They are administered by the patient by injection in the penis using 

an insulin-type needle. The injection would be administered prior to sexual intercourse 

and would cause an erection in approximately five to ten minutes. This type of 

medication is stored refrigerated. Lurvey testified that a patient suffering from erectile 

dysfunction could have an erection, lose it prior to ejaculation, and then administer a shot 

to regain an erection. Lurvey also testified that erectile dysfunction is common among 

men who have diabetes. 

Defense Evidence 

K.S. testified that she witnessed defendant interacting with the victim over several 

years, and she never observed anything in their interactions that seemed weird to her.

She also never witnessed anything sexual in their interactions. K.S. never felt 

uncomfortable based on anything defendant did with her. None of K.S.’s sisters ever 
10

reported anything to her about feeling uncomfortable around defendant. K.S. testified 

that the victim “would lie about whatever she could and try and get away with it. That 

was a frequent thing with her.” 

A.H. testified that she did not notice anything unusual in how defendant acted 

towards the victim when they all went on a trip to a ranch in Nevada for three days. The 

victim never said anything to A.H. about any adult acting inappropriately towards her, 

and she never said anything about defendant touching her in a sexual way. A.H. never 

witnessed anything in defendant’s interaction with the victim that caused A.H. concern.

J.H., who was 25, had considered defendant to be her father for about 20 years. 

J.H. had never seen defendant act inappropriately towards a child or express a sexual 

interest in a child. In the time surrounding the family vacation to a ranch in Nevada, she 

did not see anything unusual between the victim and defendant. She testified that, at one 

point, she had to speak to the victim about the victim watching adult videos. According 

to J.H., the victim was curious about the human body and sexual things. 

L.K., defendant’s sister, testified that defendant was her “protector and . . . hero.” 

L.K. testified that defendant was honest and trustworthy. She never observed any 

unusual behavior between defendant and his two daughters from a previous marriage. 

Neither of the daughters ever spoke to L.K. about defendant acting inappropriately. L.K. 

also testified that she did not witness any inappropriate actions by defendant towards any 

of the girls on a trip to Disneyland which included “the stepdaughters, biological 

daughters” and the victim. L.K. also did not notice anything unusual about the victim’s 

demeanor during the three-day stay at a ranch in Nevada. 

Defendant testified on his own behalf. He testified that he was diabetic. He gave 

himself injections twice a day in the stomach or the arm to manage his diabetes. He 

testified that he did not inject insulin or anything else into his penis, and that he never 

took any medication for erectile dysfunction. 
11

Defendant did the laundry in the house. There was a clothes hamper in his room 

at the foot of the bed. Defendant testified that his clothes went in that hamper, and, if the 

victim was at the house, she would put her clothes in that hamper too. 

Defendant denied engaging in any of the sexual acts the victim described. 

Verdicts and Sentencing

The jury found defendant guilty of all counts and found true the allegation 

pursuant to section 1203.066. The trial court sentenced defendant to 110 years to life and 

an additional 19-years determinate.

DISCUSSION

I. CSAAS Testimony and Statistical Evidence Related to False Accusations

A. Additional Background

1. In Limine Motion

The prosecution stated in its trial brief and motions in limine that it planned to call 

Dr. Blake Carmichael as an expert in the area of child sexual abuse and specifically how 

children react to such abuse. The prosecution stated that this topic was encompassed 

within the broader subject of CSAAS, and that courts have typically admitted testimony 

on that subject. The prosecution asserted that three of the misconceptions covered in 

CSAAS were present in this case: delayed reporting, helplessness, and secrecy and 

accommodation. 

In defendant’s in limine motion, he sought to exclude CSAAS testimony. He 

asserted that CSAAS evidence has been shown to be neither reliable nor relevant in 

assessing allegations that a child has been the victim of sexual abuse. Defendant 

acknowledged that, since the publication of Dr. Roland Summit’s article in 1983, on 

which CSAAS testimony is based, CSAAS had been admitted to dispel the 

misconception that children who had been sexually abused will report the abuse 

immediately. However, he further asserted that, based on publicity about child 

molestation, jurors were now aware many child molestation victims “may not report the 
12

incident right away or may never report them at all” and CSAAS evidence was no longer

needed to dispel any misconception. Thus, according to defendant, “any such testimony 

is unnecessary, misleading, time consuming and will serve no purpose other than to 

confuse the jury and attempt to bolster the credibility of the complaining witness’ 

testimony.” Defendant also asserted that CSAAS testimony should be excluded because 

it was inadmissible under the Kelly/Frye test;10 irrelevant; more prejudicial than 

probative under Evidence Code section 352; speculative; and misleading and confusing. 

Defendant also asserted that the introduction of this evidence would violate his rights 

under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and 

under applicable sections of the California Constitution. 

2. Hearing and Trial Court’s Ruling

The court deferred ruling on the in limine motions concerning CSAAS until after 

the victim testified. Following that testimony, the trial court inquired as to the 

prosecution’s proposed focus of Carmichael’s testimony. The prosecutor identified seven 

areas about which she would seek testimony from Carmichael: (1) incremental 

disclosure, (2) failure of memory, (3) why children sometimes disclose to other children 

rather than adults, (4) children acting as if there is not a problem and wanting to continue 

seeing the abuser, (5) allegations that the victim learned about sexual acts elsewhere and 

displaced blame on defendant, (6) helplessness and accommodation, and “[t]hat children 

lying and making up these types of allegations are very rare, especially when they love 

the person” and (7) confusion over timing and details. 

10 People v. Kelly (1976) 17 Cal.3d 24; Frye v. United States (D.C. Cir. 1923) 293 Fed. 

1013. Defendant appropriately does not make a Kelly/Frye claim here. Any such claim 

would be meritless. (See People v. Lapenias (2021) 67 Cal.App.5th 162, 173 (Lapenias) 

[CSAAS evidence is not subject to a Kelly/Frye analysis]; People v. Munch (2020) 52 

Cal.App.5th 464, 472-473 (Munch) [same].) 
13

Defense counsel acknowledged that CSAAS evidence was routinely admitted in 

California courts, although other jurisdictions rejected it as “junk science.” Counsel also 

argued that misconceptions related to nondisclosure may have been prevalent years ago, 

but because of certain events such as the Catholic priest and Penn State scandals, jurors 

now recognize children might not initially disclose for a variety of reasons. 

Recognizing the law allows for the admissibility of CSAAS evidence, the court 

asked, “So you’re wanting me to enact new law, essentially pave a new way. Is that what 

you are saying?” Defense counsel responded: “Absolutely. I think this Court, in its 

wisdom, can consider enacting new law . . . I think this Court can make that ruling and 

become a trend setter.” 

The trial court ruled that it would allow Dr. Carmichael to testify. The court 

acknowledged the defense’s point that some aspects of the testimony addressed matters 

of common knowledge which therefore do not require expert testimony and would be 

cumulative of what jurors already know. However, the court further stated that, “if there 

are some jurors that really aren’t aware of some of these things, which . . . are in some 

points counterintuitive, then I think that is important for them to actually be able to 

consider and weigh.” 

3. Dr. Carmichael’s Trial Testimony

Dr. Carmichael worked as a clinical psychologist in the Child Adolescent Abuse 

Resource Education Diagnostic and Treatment Center at the U.C. Davis Children’s 

Hospital. Carmichael did not know the victim, had never talked to her or met her, and he 

knew nothing about this case. 

Carmichael testified about delayed disclosure of child sexual abuse. He testified 

that it is uncommon for children to report sexual abuse soon after it occurs. According to 

Carmichael, research indicated that only 15 to 20 percent of children report abuse 

“quickly.” Asked about the reasons children do not report quickly, Carmichael testified, 

“[w]e’re looking at kids who are sexually abused primarily by folks they know, people 
14

they trust, people they have an ongoing and a loving relationship. And so we can’t look 

at abuse as a thing but more so in the context of that relationship.” He testified that often 

the abuser is a person the child perceives as an authority figure, and children are taught to 

obey authority figures. Thus, a perpetrator may tell the child victim not to tell anyone, 

and, if the child does tell, the child would be disobeying the authority figure. 

Additionally, the child may have a good relationship with the perpetrator. “They enjoy 

going to movies. They might enjoy playing video games. They get special attention. So 

a lot of things that make a child feel good also comes from the person that is abusing 

them.” This can make it confusing for the child and make it difficult to disclose the 

abuse because the child does not “want the person that they care about to get in trouble.” 

The child may not want to disclose the abuse because the person to whom the child might 

report may have his or her own relationship with the abuser or might rely on the abuser to 

provide for the family. For example, if a child discloses to the mother, the mother could 

be upset and family discord could result, for which the child would feel responsible. A 

child may perceive the threat of this outcome and choose against disclosure. Carmichael

testified that some researchers had found that the closer a child victim feels to their 

abuser, the longer the delay in reporting may be. Child victims also sometimes say they 

did not report abuse because they thought they would be in trouble. Such children feared 

both disobeying the abuser and making the person whom they told angry or facing the 

possibility that the person they tell would not believe them. 

Carmichael testified that children may have a flat or numb affect when discussing 

abuse. “People sometimes expect a child to look sad, to say that they are angry, to have a 

different look about them talking about something so upsetting. And so we can’t think of 

kids as miniadults. [sic] By the mere fact of them trying to distance themselves from 

those intense emotions and trying to keep those things at bay and then trying to maybe 

even appear stoic and not having the thoughts running through their brain, as they are 

telling about it, can cause them to look unaffected.” 
15

When asked if children try to forget the details of abuse, Carmichael responded, 

“[a]bsolutely.” He testified that “one of the classic things to do [is] to try to avoid 

thinking about it.” 

Carmichael testified that abused children may not necessarily demonstrate signs of 

being fearful or afraid or sad about having to be in the presence of the abuser. They can 

still love their abuser and miss the abuser. “[I]t is not just the abuse that defines that 

relationship. There are other things they can enjoy with that person.” 

Turning to the process of disclosure, Carmichael testified that it was not common 

for children “to say everything that first time they talk about it.” Typically, disclosure is 

not a “one-time event. It is more of a process, sometimes called incremental disclosure: 

Giving a little bit of information; seeing what the response is and then telling more details 

as they get more comfortable.” 

After discussing suggestibility with Carmichael, the prosecutor turned to the 

subject of false allegations of sexual abuse. Carmichael testified that “the statistics are 

that . . . children making false allegations of sexual abuse are rare. Anywhere between 

zero and 5 or 6 percent . . . of allegations are found to be false made by children.” Higher 

rates of false allegations were found in circumstances involving custody disputes or child 

visitation, such as when a married couple is divorcing. However, in those cases, it was 

not the children, but rather one parent, making the false allegations. 

On cross-examination, defense counsel referred to CSAAS, which Carmichael and 

the prosecutor had not done during Carmichael’s direct testimony, asking if the subjects 

about which Carmichael testified were part of that broader subject. Carmichael 

acknowledged that delayed disclosure was, indeed, a subject of CSAAS. Carmichael 

acknowledged that CSAAS dated to Dr. Summit’s 1983 article in which Summit 

discussed observations of hundreds of children who had been sexually abused and his 

“observations of some of the things the kids did that weren’t expected but also the variety 

of ways kids can deal with being sexually abused.” Carmichael testified that CSAAS did 
16

not create a diagnostic tool. He testified that there “is no tool, symptom, check list. 

There is nothing that is in place today that can tell you if a kid was abused.” Rather, 

CSAAS “is an educational tool to help people understand this population of kids who we 

know were sexually abused.” 

Defense counsel asked Carmichael about his direct testimony concerning false 

allegations: “I think the number you used was between zero to six percent. In some 

instances the numbers you gave were 30 to 35 percent. You find more false allegations; 

fair to say?” Carmichael testified that there “are some articles that I referred to that do 

report a higher rate of false allegations, again, within the context of custody and parents 

making the allegations.” After discussing studies that found few or no instances of false 

allegations made by children themselves, Carmichael testified that “a vast majority of 

research since that time has shown low rates of false allegations by kids.” However, 

Carmichael acknowledged that, while the incidence may be low, the occurrence of false 

allegations made by children does exist. 

B. Admissibility of CSAAS Evidence

Defendant asserts that the trial court abused its discretion in allowing Carmichael 

to testify about CSAAS. Defendant asserts that Carmichael’s testimony was unreliable 

and misleading because the underlying premise of CSAAS is the assumption that the 

child is indeed a victim of sexual abuse. Defendant contends that there was a substantial 

danger that the jury would consider that testimony as supporting the victim’s claims of 

abuse. According to defendant, “Carmichael’s testimony about CSAAS, a nondiagnostic tool . . . based on the assumption the child is a victim of sexual abuse, was not 

the proper subject of expert evidence because his testimony amounted to acknowledging 

that children react differently. In other words, one cannot assume abuse based on the 

presence or absence of delay in reporting.” Defendant asserts that, while CSAAS 

evidence is intended to disabuse jurors of misconceptions about child victims, the value 

of this testimony is outweighed by the prejudicial effect. Defendant asserts that, because 
17

the issue of guilt was largely dependent on the victim’s credibility, “the CSAAS evidence 

compromised [defendant’s] due process right to a reliable jury determination of his guilt 

beyond a reasonable doubt.” According to defendant, the error cannot be deemed 

harmless under Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710-711]

(Chapman) or People v. Watson (1956) 46 Cal.2d 818, 836 (Watson). 

In People v. McAlpin (1991) 53 Cal.3d 1289 (McAlpin), our high court approved 

of the decisions of Courts of Appeal that had held that CSAAS testimony is admissible 

for some purposes. (Id. at p. 1300.) McAlpin was followed by People v. Brown (2004) 

33 Cal.4th 892 (Brown), which upheld the use of expert testimony concerning battered 

women’s syndrome and which expressly did so based on similar reasoning to that in 

McAlpin. (Brown, at pp. 905-907.) It is now well settled that CSAAS evidence is 

admissible for the limited purposes it was admitted for in this case. (McAlpin, at 

pp. 1300-1301; see also Lapenias, supra, 67 Cal.App.5th at p. 171; Munch, supra, 52 

Cal.App.5th at p. 468; People v. Perez (2010) 182 Cal.App.4th 231, 243-245 (Perez); 

People v. Sandoval (2008) 164 Cal.App.4th 994, 1001-1102 (Sandoval); People v. Patino

(1994) 26 Cal.App.4th 1737, 1744-1745 (Patino); People v. Bowker (1988) 203 

Cal.App.3d 385, 390-394 (Bowker).) And courts are bound by our high court’s reasoning 

in McAlpin and Brown. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 

455; Munch, at p. 468; Perez, at p. 245.) Thus, the trial court properly declined 

defendant’s invitation to “enact new law” and become a “trend setter.” The decision of a 

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

manifest abuse of discretion is shown. (McAlpin, at p. 1299.)

While CSAAS testimony is inadmissible to prove that a molestation occurred, it is 

nevertheless admissible as to the molestation victim’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.’ ” (Sandoval, supra, 164 

Cal.App.4th at p. 1001, quoting McAlpin, supra, 53 Cal.3d at pp. 1300-1301.) CSAAS 
18

evidence has been held admissible “ ‘ “to disabuse jurors of commonly held 

misconceptions about child sexual abuse, and to explain the emotional antecedents of 

abused children’s seemingly self-impeaching behavior . . . .” ’ ” (Sandoval, at p. 1002, 

quoting McAlpin, at p. 1301.) “ ‘For instance, where a child delays a significant period of 

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

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

abuser who occupies a position of trust. Where an alleged victim recants his [or her]

story in whole or in part, a psychologist could testify on the basis of past research that 

such behavior is not an uncommon response for an abused child who is seeking to 

remove himself or herself from the pressure created by police investigations and 

subsequent court proceedings. In the typical criminal case . . . , it is the People’s burden 

to identify the myth or misconception the evidence is designed to rebut.’ ” (Sandoval, at 

p. 1002, quoting Bowker, supra, 203 Cal.App.3d at p. 394, fn. omitted.)

“Identifying a ‘myth’ or ‘misconception’ has not been interpreted as requiring the 

prosecution to expressly state on the record the evidence which is inconsistent with the 

finding of molestation. It is sufficient if the victim’s credibility is placed in issue due to 

the paradoxical behavior, including a delay in reporting a molestation.” (Patino, supra,

26 Cal.App.4th at pp. 1744-1745.) Inconsistencies in the victim’s statements may also 

support the use of CSAAS evidence. (Perez, supra, 182 Cal.App.4th at p. 245.) 

Additionally, “[a]dmission of evidence such as CSAAS is not error merely because it was 

introduced as part of the prosecution’s case-in-chief rather than in rebuttal. The 

testimony is pertinent and admissible if an issue has been raised as to the victim’s 

credibility.” (Patino, at p. 1745.)

The typical purposes for which CSAAS evidence may be admitted were at issue in 

this case. Defense counsel on cross-examination elicited testimony from the victim about 

the fact that she still enjoyed spending time with defendant, “aside from these things,”

raising issues concerning the paradoxical fact that an abused child can still love their 
19

abuser and not be sad about being in the abuser’s presence. Addressing matters related to 

the victim’s credibility in general and, inferentially, whether she had age-inappropriate 

sexual knowledge from sources other than defendant, defense counsel asked the victim 

many questions about whether she had watched adult videos. He also asked the victim 

about whether she had witnessed adults having sex. Also as to the victim’s credibility, he 

asked the victim if she “ever [told S.D.] anything just to get her attention.” 

Defense counsel elicited testimony from S.D. that defendant and the victim got 

along “[p]erfectly fine,” that the victim did not seem to be afraid of defendant, and that 

the victim and defendant had a good relationship, which implicated the counterintuitive 

way child victims may relate to their abusers. In response to defense counsel’s crossexamination, S.D. agreed that, on the first occasion when the victim disclosed the abuse 

to her, the victim only said defendant “did nasty things to me with his private.” This 

raised the issue of incremental disclosure. He asked S.D. about the fact that the victim 

told S.D. not to tell anyone because the victim did not want her to do so and she said 

defendant would hurt her. This touched on delayed disclosure. Defense counsel asked 

S.D. if one of the reasons she did not tell her mother about the victim’s disclosure was 

because S.D. was not sure whether the victim was being truthful, calling into question the 

victim’s credibility. Defense counsel further attacked the victim’s credibility, asking 

S.D.: “[the victim] doesn’t always tell the truth, does she,” to which S.D. responded that 

she did not. Indeed, counsel pursued this tack when discussing the victim’s second 

disclosure as well, asking S.D. if she was not sure whether the victim was telling the 

truth. 

Also on the subject of incremental disclosure, in response to questioning by 

defense counsel, the emergency room nurse testified that the victim did not provide many 

details of the alleged sexual abuse. 

Defense counsel also elicited from the emergency room nurse testimony that the 

victim did not seem upset and was not crying when the two spoke, and testimony from 
20

Detective Robertson that, during his interview with the victim, she was calm and not 

crying. This testimony was relevant to child sexual abuse victims’ counterintuitive flat or 

numb affect when discussing abuse.

All of the foregoing witnesses testified before Carmichael testified.

Thus, the victim’s credibility, delay in reporting the abuse, incremental disclosure, 

and her demeanor when discussing the abuse, all matters to which Carmichael’s 

testimony was relevant, were raised throughout trial and prior to Carmichael’s testimony. 

It is beyond reasonable dispute that “the victim’s credibility [was] placed in issue due to

. . . paradoxical behavior.” (Patino, supra, 26 Cal.App.4th at pp. 1744-1745.)

As discussed in more detail in part II. of the Discussion post, the trial court 

instructed the jury with CALCRIM No. 1193 on the limited purposes for which it could 

consider Dr. Carmichael’s testimony. Regarding Carmichael’s testimony, the court 

instructed the jury that “testimony about these matters is not evidence that the defendant 

committed any of the crimes charged against him.” “We of course presume ‘that jurors 

understand and follow the court’s instructions.’ ” (People v. Wilson (2008) 44 Cal.4th 

758, 803 (Wilson).)

We conclude the trial court did not abuse its discretion in admitting the CSAAS 

testimony. (McAlpin, supra, 53 Cal.3d at pp. 1300-1301; accord, Munch, supra, 52 

Cal.App.5th at p. 468; Perez, supra, 182 Cal.App.4th at p. 245.)

C. Statistical Evidence Regarding False Accusations

In his reply brief, defendant cited two cases decided after the filing of his opening 

brief, People v. Julian (2019) 34 Cal.App.5th 878 (Julian), and People v. Wilson (2019) 

33 Cal.App. 5th 55 (Wilson). He asserts that, under these cases, CSAAS experts should 

not be permitted to testify, as did Carmichael here, as to the statistical rarity of false 

accusations of child abuse. We requested supplemental briefing from the Attorney 

General, who had not had the opportunity to address Julian or Wilson, or this argument 
21

generally, because it was not raised by defendant with specificity in his opening brief. 

We also afforded defendant the opportunity to submit a supplemental brief in reply.

1. Forfeiture

The Attorney General asserts that defendant forfeited this claim because he did not 

object to the statistical evidence related to false allegations in the trial court. We agree.

“Evidence Code section 353 provides, as relevant, ‘A verdict or finding shall not 

be set aside, nor shall the judgment or decision based thereon be reversed, by reason of 

the erroneous admission of evidence unless: [¶] (a) There appears of record an objection 

to or a motion to exclude or to strike the evidence that was timely made and so stated as 

to make clear the specific ground of the objection or motion . . . .’ ” (People v. Partida

(2005) 37 Cal.4th 428, 433 (Partida), quoting Evid. Code, § 353.) In accordance with 

Evidence Code section 353, our high court has “ ‘consistently held that the “defendant’s 

failure to make a timely and specific objection” on the ground asserted on appeal makes 

that ground not cognizable.’ ” (Partida, at pp. 433-434, italics added.) “A party cannot 

argue the court erred in failing to conduct an analysis it was not asked to conduct.” (Id. at 

p. 435.)

While defendant did move in limine to exclude Carmichael’s CSAAS testimony, 

he did not object to evidence concerning the statistical rarity of false allegations in his

written motion. Defendant asserts on appeal that he did object to this evidence during the 

in limine hearing. Defendant’s vague comments cannot be read as an objection 

compliant with Evidence Code section 353.11 Defendant did not specifically object to 

11 At the part of the record defendant cites, defense counsel stated: the court should 

“keep in mind that . . . [CSAAS] does not address false allegations. Dr. [Summit] did not 

discuss false allegations because that wasn’t the purpose of the study. The purpose of 

this empirical study was to try to explain in those that have been molested and been

documented, why did they observe certain behaviors. [¶] So in a case of false 

allegations, which I don’t think the district attorney mentioned, she mentioned only about 

the point, and I want to thank her for making my arguments for me. I suppose that saved 
22

testimony concerning the statistical rarity of false allegations and state specific grounds 

supporting its preclusion, such as arguing that Carmichael’s testimony “about the rarity 

of false claims of child sexual abuse exceeded the permissible limits of expert testimony”

because such statistical evidence is irrelevant and invites the jury to determine a 

defendant’s guilt based on statistical probabilities rather than on the evidence presented. 

(Capitalization omitted.) And the defense was on notice the prosecution would seek to 

introduce such evidence because when the trial court asked the prosecutor to outline her 

focus as to Carmichael’s testimony, among the seven points listed, she stated: 

helplessness and accommodation, and “[t]hat children lying and making up these types of 

allegations are very rare, especially when they love this person.” (Italics added.) 

Moreover, even assuming this evidence was covered by his general in limine 

objection to the CSAAS evidence, defendant still failed to preserve the issue. “The 

general rule is that ‘when an in limine ruling that evidence is admissible has been made, 

the party seeking exclusion must object at such time as the evidence is actually offered to 

preserve the issue for appeal’ [citation], although a sufficiently definite and express 

ruling on a motion in limine may also serve to preserve a claim.” (People v. Brown

(2003) 31 Cal.4th 518, 547.) Defendant did not object to the testimony at issue here

when Carmichael testified at trial. In the absence of any objection to this specific 

evidence, defendant has forfeited the contention. (Partida, supra, 37 Cal.4th at pp. 433-

434.)

In his supplemental reply brief, defendant, citing People v. Johnson (2004) 121 

Cal.App.4th 1409, 1411, footnote 2 (Johnson), asserts that it is improper to apply 

forfeiture where the governing law at the time of trial would not have supported a 

me time from doing it. But, hopefully, false allegations are not part of the study. And so 

the [CSAAS] does not apply in that particular instance.” We discern no specific 

objection relevant to defendant’s present contention, or specific grounds for such, in 

counsel’s remarks in the trial court.
23

decision by the trial court sustaining the objection. There, the court concluded there had 

been no forfeiture of a confrontation clause objection because the “governing law at the 

time of the hearing afforded scant grounds for objection.” (Ibid.) 

However, although there was a long line of authority concerning CSAAS 

evidence, there was no authority approving the admissibility of statistical evidence

related to false allegations. Indeed, as trial counsel aptly observed during the in limine 

hearing, testimony about statistics on false accusations is not part of CSAAS. (See fn. 

12, ante.) It strikes us as somewhat obvious—and more than the “scant grounds” that 

Johnson spoke of—that whether false accusations had been made in other instances is 

irrelevant and also subject to a valid Evidence Code section 352 objection based on the 

danger of misleading the jury. Certainly, given the lack of authority approving such 

evidence, it cannot be said that an objection on these grounds would have been futile. 

(See People v. Perez (2020) 9 Cal.5th 1, 7-8.) Yet, a specific objection to this testimony 

and those grounds were not asserted.

In his supplemental reply brief, relying on Julian, supra, 34 Cal.App.5th at pages 

887-889, defendant suggests that, if the issue is not preserved, it is because he received 

the constitutionally ineffective assistance of counsel, a contention we address next. In 

Julian, the court concluded that the objection should have been made in the trial court 

and that trial counsel’s deficient performance was prejudicial given the circumstances of 

that case. (Ibid.)

2. Ineffective Assistance of Counsel

a. Ineffective Assistance of Counsel General Principles

To prevail on a claim of ineffective assistance of counsel, a defendant must show 

(1) counsel’s performance fell below an objective standard of reasonableness under 

prevailing professional norms, and (2) the deficient performance prejudiced defendant. 

(Strickland v. Washington (1984) 466 U.S. 668, 691-692 [80 L.Ed.2d 674, 696]

(Strickland); People v. Ledesma (1987) 43 Cal.3d 171, 216-217 (Ledesma); People v. 
24

Rogers (2016) 245 Cal.App.4th 1353, 1367 (Rogers).) “ ‘Surmounting Strickland’s high 

bar is never an easy task.’ ” (Harrington v. Richter (2011) 562 U.S. 86, 105 [178 L.Ed.2d 

624, 642] (Richter), quoting Padilla v. Kentucky (2010) 559 U.S. 356, 371 [176 L.Ed.2d 

284, 297].) 

To establish prejudice, “[i]t is not enough ‘to show that the errors had some 

conceivable effect on the outcome of the proceeding.’ ” (Richter, supra, 562 U.S. at 

p. 104.) To show prejudice, defendant must show a reasonable probability that he would 

have received a more favorable result had counsel’s performance not been deficient. 

(Strickland, supra, 466 U.S. at pp. 693-694; Ledesma, supra, 43 Cal.3d at pp. 217-218.) 

“A reasonable probability is a probability sufficient to undermine confidence in the 

outcome.” (Strickland, at p. 694; accord, Ledesma, at p. 218.) “The likelihood of a 

different result must be substantial, not just conceivable.” (Richter, at p. 112, italics 

added; Rogers, supra, 245 Cal.App.4th at p. 1367; People v. Jacobs (2013) 220 

Cal.App.4th 67, 75; In re M.P. (2013) 217 Cal.App.4th 441, 457, fn. 10.)

b. Decisional Authority Published During the Pendency of this Appeal

In Julian, an expert offered CSAAS testimony. (Julian, supra, 34 Cal.App.5th at 

pp. 882-883.) However, after presenting CSAAS evidence of the type commonly seen in 

appropriate cases, the prosecution “introduced a new issue—the statistical percentage of 

false allegations by child sexual abuse victims.” (Id. at p. 883.) The expert testified that 

“false allegations of sexual abuse by children ‘don’t happen very often.’ ‘The range of 

false allegations that are known to law enforcement or [Child Protective Services] ... is 

about as low as one percent of cases to a high of maybe 6, 7, 8 percent of cases that 

appear to be false allegations.’ ” (Id. at p. 885.)

In addressing the admissibility of this testimony, the Julian court reviewed the 

purposes for which CSAAS evidence is admissible and those for which it is not. (Julian, 

supra, 34 Cal.App.5th at pp. 885-886.) Discussing the latter, the court stated: “Nor is it 

proper for an expert to present ‘predictive conclusions’ [citation], such as alleged child 
25

abuse victims ‘should be believed’ or ‘abused children give inconsistent accounts and are 

credible nonetheless’ [citation]. Such predictive conclusions go beyond the scope of 

CSAAS evidence and may confuse the jury. ‘[T]he jurors’ education and training may 

not have sensitized them to the dangers of drawing predictive conclusions.’ [Citation.]

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

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

and may rely instead on this ‘irrelevant’ evidence.” (Id. at p. 886.) The Julian court 

concluded: “Here the jury had to decide between the credibility of child 2’s testimony 

and Julian’s. But [the expert’s] 92 to 99 percent probability evidence invited jurors to 

presume Julian was guilty based on statistical probabilities, and not decide the evidence 

properly introduced in the case. [Citation.] [The expert’s] statistics were not admissible 

as CSAAS evidence.” (Ibid.) The court further concluded that the “statistical probability 

evidence deprived Julian of his right to a fair trial.” (Ibid.)

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

child sexual abuse “occur ‘very infrequently or rarely,’ most often during a child custody 

dispute.” (Wilson, supra, 33 Cal.App.5th at p. 568.) “He continued, ‘There are a number 

of studies that talk about the pressures put on children to make a false allegation.’ He 

referred to a ‘classic’ Canadian study that found ‘about 4% of cases in which there was 

an allegation that was determined to be false,’ remarking that ‘[w]hat was notable [about 

the study] was that in none of those cases was it a child who made the allegation that was 

false, it was somebody else,’ such as a parent disputing custody.” (Ibid.) On crossexamination, the expert testified that “there were 12 to 15 other studies on the subject, 

which found false allegations in between 1 and 6 percent of cases. Although the ‘classic’

study found no children making false allegations of sexual abuse, he concluded that ‘it’s 

better to say that false allegations do happen, because they do happen, but they happen 

very infrequently and rarely ... .’ He agreed it was possible for children to have false 

memories, but there was no data indicating false memories happened frequently. And, in 
26

his own career, [the expert] had come across two cases in which a child alleged sexual 

abuse that he believed did not occur.” (Ibid.) The defendant asserted that this evidence 

“improperly amounted to testimony that 96 percent (or between 94 and 99 percent) of 

children accusing a person of child molestation were telling the truth, and that this 

invaded the province of the jury in assessing a complaining witness’s credibility.” (Ibid.) 

The Wilson court ultimately concluded: “it appears that the clear weight of 

authority in our sister states, the federal courts, and the military courts finds such 

evidence inadmissible. We find the reasoning of these cases compelling. [The expert’s]

testimony had the effect of telling the jury there was at least a 94 percent chance that any 

given child who claimed to have been sexually abused was telling the truth. And, 

although [the expert’s] testimony on this point was not expressly directed to either [a 

prior victim or the current victim], the practical result was to suggest to the jury that there 

was an overwhelming likelihood their testimony was truthful. In so doing, this testimony 

invaded the province of the jury, whose responsibility it is to ‘draw the ultimate 

inferences from the evidence.’ ” (Wilson, supra, 33 Cal.App.5th at p. 570.) The court 

stated: “Even assuming one could determine that only 1 to 6 percent of sexual abuse 

allegations are false, that fact would not be helpful to the jury because it tells the jury 

nothing about whether this particular allegation is false. Are [the past and current 

victims here] in the 4 percent or in the 96 percent? The jury must evaluate their 

testimony, together with all the other evidence, to decide this question, and it should do 

so without statistical evidence placing a thumb on the scale for guilt.” (Id. at p. 571.) 

Accordingly, the court determined that the admission of this evidence constituted an 

abuse of discretion. (Ibid.)

After the parties filed the supplemental briefing we requested, Division 3 of the 

Fourth District concluded that Carmichael’s testimony in another case concerning the 

rarity of false allegations was inadmissible. (Lapenias, supra, 67 Cal.App.5th at p. 179

[concluding that Carmichael’s testimony “violated the general rule that an expert may not 
27

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

guilty”].) On appeal in Lapenias, the People attempted to distinguish Julian and Wilson

on the ground that those cases held a CSAAS expert should not testify about the 

statistical frequency of false accusations, whereas Carmichael testified only as to the 

rarity of false allegations. (Id. at pp. 179-180.) The Lapenias court rejected the 

argument, concluding there is no meaningful distinction between giving a statistic that 

indicates that false allegations are rare and stating that children rarely make false 

allegations. (Ibid.) 

c. Analysis

Here, Carmichael testified that “the statistics are that . . . children making false 

allegations of sexual abuse are rare. Anywhere between zero and 5 or 6 percent . . . of 

allegations are found to be false made by children.” Higher rates of false allegations 

were found in circumstances involving custody disputes or child visitation, such as when 

a married couple is divorcing. However, in those cases, it was not the children, but rather 

a parent, making the false allegations. Carmichael testified that false allegations of 

sexual abuse do occur, but it is rare for children to make those allegations. 

Based on the analyses in Julian, supra, 34 Cal.App.5th 878, Wilson, supra, 33 

Cal.App.5th 559, and Lapenias, supra, 67 Cal.App.5th 169, we conclude that 

Carmichael’s testimony here was inadmissible.

12

 We will proceed directly to a 

discussion of prejudice. (See generally Strickland, supra, 466 U.S. at p. 697.)

12 The Attorney General concedes that “the admission of such testimony was error,” but 

further asserts that if we conclude there was no forfeiture and reach the merits, the error 

was harmless. The erroneous admission of expert testimony only warrants reversal if it 

meets the Watson test. (See Lapenias, supra, 67 Cal.App.5th at p. 180 [finding the error 

harmless applying Watson and rejecting application of the standard in Chapman, supra,

386 U.S. at p. 24].) The standard for prejudice applied in reviewing state evidentiary 

error under Watson, supra, 46 Cal.2d 818, is essentially the same as that required for the 

prejudice prong of the ineffective assistance of counsel test. (People v. Yor Xiong (2020) 
28

In addressing the prejudice prong of the defendant’s ineffective assistance of 

counsel claim in Julian, the appellate court stated, in part: “The evidence . . . was highly 

prejudicial because this case was a credibility dispute between child 2’s testimony and 

Julian’s. It was a heavily contested case with strong defense evidence. Julian denied 

child 2’s claims. He said he cooperated with police because he had nothing to hide. [A 

detective] confirmed that he had cooperated.” (Julian, supra, 34 Cal.App.5th at p. 888, 

italics added.) The court further stated: “Child 2 had difficulty remembering certain 

facts, gave some tentative responses, and some of her testimony was introduced with 

leading questions. The conflicts between child 2’s trial testimony and a CAIT[13]

interview raised credibility issues. During closing argument, the People conceded that 

child 2’s CAIT interviews ‘were very different from her testimony’ and there were ‘some 

serious inconsistencies.’ ” (Ibid.) The Julian court then considered the effect of the 

expert’s statistical testimony, stating: “[the expert’s] statistical evidence tipped the scales 

in favor of the People based on statistical studies that were irrelevant to the issue of 

Julian’s guilt or innocence. It distracted the jury from its duty to decide the properly 

admitted evidence. [Citation.] Such evidence may not be prejudicial where it occurs in a 

slight passing reference by the expert. But here the jury was bombarded with it. [¶] 

Julian’s counsel cross-examined [the expert]. But [the expert] used that opportunity to 

repeatedly reassert his claim that statistics show children do not lie about being abused. 

His counsel’s questions about multiple studies only opened the door to a mountain of 

prejudicial statistical data that fortified the prosecutor’s claim about a statistical certainty 

that defendants are guilty. [Citation.] [¶] Moreover, in closing argument, the prosecutor 

54 Cal.App.5th 1046, 1068, fn. 11; People v. Ocegueda (2016) 247 Cal.App.4th 1393, 

1407, fn. 4.)] Thus, our conclusion would be the same whether we were to analyze 

prejudice under Watson or Strickland.

13

 CAIT is an acronym for “child abuse interdisciplinary team.” (Julian, supra, 34 

Cal.App.5th at p. 881.)
29

asked the jury to rely on [the expert’s] statistical evidence that ‘children rarely falsify 

allegations of sexual abuse.’ He reminded jurors that [the expert] ‘quoted a Canadian 

study for over 700 cases, not a single one where there was a false allegation.’ . . . The 

claim that there is a zero percent chance children will fabricate abuse claims replaced the 

presumption of innocence with a presumption of guilt. [¶] In his closing argument, 

Julian’s counsel discussed his position regarding [the expert’s] testimony about the ‘12 

studies,’ the Canadian study, the Trocme & Bala study, a social worker study showing 

‘four percent or five percent’ as false allegations, and the prosecutor’s claim that ‘false 

allegations are very rare.’ When he discussed the statistical percentage of false 

allegations in a study called ‘false allegations of sexual abuse of children and 

adolescents,’ the prosecutor objected. The court stopped the argument for a 15-minute 

recess. When the jury returned, the court instructed jurors that there was ‘a 

disagreement’ by counsel about ‘a certain study.’ The jury should decide the issue based 

on the evidence introduced about the study, not what the lawyers remember about it. 

Consequently, the jurors’ attention was directed, once again, to the statistical study 

evidence right before they began their deliberations. [¶] But the jury’s duty to decide the 

facts does not include considering inadmissible statistical information [citation] or using 

studies of statistical odds to determine guilt. [Citations.] Julian did not receive a fair 

trial.” (Julian, supra, 34 Cal.App.5th at pp. 888-889, some italics added.)

Julian is in stark contrast to the instant case. Here, the victim’s interviews were 

not “ ‘very different from her testimony’ ” and there were no “ ‘serious inconsistencies’ ” 

among the two. (Julian, supra, 34 Cal.App.5th at p. 888.) The victim’s accounts of 

abuse included descriptions of actions and circumstances not typically within the 

experience of a child her age. The victim had recently had abdominal pain and pelvic 

pain and a yeast infection, which, although there could be natural causes, is consistent 

with a past vaginal sexual assault. 
30

Critically, here, the allegations were corroborated by DNA evidence. Nickel 

testified that, on the sperm fraction he discovered in the victim’s underwear, he found a 

mixed profile, with one female contributor and one male contributor. Defendant was a 

potential contributor to the male profile in the sperm fraction. According to Nickel, it 

was 16.1 quadrillion times more likely that the victim and defendant were the 

contributors to the sample than the victim and a random male. As to the nonsperm 

fraction, Nickel also discovered a mixed profile, one male and one female. According to 

Nickel, it was 33,800 times more likely that the victim and defendant were the 

contributors to the sample than the victim and a random male. Also, Nickel testified that, 

if he did not have to dilute the sample before amplifying it in order to properly perform 

his analysis, the “profile would be a lot higher.” While the defense relied on a theory of 

DNA transfer in the washing machine, this theory was seriously undermined by (1) 

Nickel’s opinion, based on a stain in the underwear and epithelial cells found in a cutting, 

that the underwear had not been recently washed, and (2) the fact that the amount of 

DNA detected was much greater than the volume of DNA that had been detected in the 

studies involving the transfer of DNA in washing machines, so much so that secondary 

transfer could be excluded as an explanation of the presence of defendant’s DNA. 

Moreover, the jury here was not “bombarded” with evidence concerning the low 

statistical incidence of false allegations of child sexual abuse, nor was the jury presented 

with “a mountain of prejudicial statistical data.” (Julian, supra, 34 Cal.App.5th at pp. 

888, 889.) Instead, Carmichael testified about the low statistical incidence of false 

allegations briefly on direct examination, his testimony on the subject, including the 

prosecutor’s questions, occupying little more than a single page of the reporter’s 

transcript. On cross-examination, defense counsel asked Carmichael about his direct 

testimony concerning false allegations: “I think the number you used was between zero 

to six percent. In some instances the numbers you gave were 30 to 35 percent. You find 

more false allegations; fair to say?” Carmichael testified that there “are some articles that 
31

I referred to that do report a higher rate of false allegations, again, within the context of 

custody and parents making the allegations.” After discussing two studies that found few 

or no instances of false allegations made by children themselves, Carmichael testified 

that “a vast majority of research since that time has shown low rates of false allegations 

by kids.” However, Carmichael acknowledged that, while the incidence may be low, the 

occurrence of false allegations made by children does exist. Defense counsel’s crossexamination on the subject encompassed roughly two pages in the reporter’s transcript. 

We acknowledge that the prosecution did discuss Carmichael’s testimony in 

closing argument. The prosecution argued to the jury: “And how do we know he 

molested [the victim]? No one influenced her to make this up. No one has been 

benefited by the horrendous year of [the victim] losing her sisters, the defendant, 

caregivers, vacation planner. She has no motive to make this up. [¶] Dr. Carmichael 

told you false allegations are like zero to 5 percent, and that small number is in child 

custody cases. This is not a child custody case.” 

But, as we have noted, as to Carmichael’s testimony, the court instructed the jury: 

“testimony about these matters is not evidence that the defendant committed any of the 

crimes charged against him.” And we presume the jury understood and followed this 

instruction. (Wilson, supra, 44 Cal.4th at p. 803.)

Given the strength of the evidence, particularly the DNA evidence, we conclude 

that had Carmichael been precluded from testifying about the statistical data concerning 

false accusations and the prosecution did not make the above argument during closing 

argument, it is not reasonably probable defendant would have obtained a different result.

D. Conclusion

The trial court did not abuse its discretion in admitting the CSAAS testimony as a 

general matter. (McAlpin, supra, 53 Cal.3d at pp. 1300-1304.) The admission of CSAAS 

evidence generally did not render defendant’s trial fundamentally unfair in violation of 

due process. (Patino, supra, 26 Cal.App.4th at p. 1747.) Furthermore, defendant was not 
32

prejudiced from evidence indicating the statistical rarity of false accusations. (See 

Strickland, supra, 466 U.S. at pp. 693-694; Ledesma, supra, 43 Cal.3d at pp. 217-218.)

II. CALCRIM No. 1193 

A. Additional Background

At a conference on the jury instructions, the court stated that it made a slight 

modification to CALCRIM No. 1193 “because the witness never really used the term 

‘syndrome,’ the accommodation syndrome language. So I just rephrased it a little . . . .” 

The defense objected to the language as phrased, expressing the preference that the 

instruction actually refer to CSAAS, noting that Carmichael was cross-examined 

extensively about it. The defense raised no additional objection to CALCRIM No. 1193 

as proposed by the court, and subsequently agreed that the defense was “okay with all the 

instructions as the Court proposes to give them.” On a subsequent day, referencing the 

final instructions, the court asked the defense “are you okay with the instructions” and 

counsel for defendant replied, “yes.” 

The trial court instructed the jury with a modified version of CALCRIM No. 1193 

as follows: “You’ve heard testimony from Dr. Blake Carmichael regarding certain 

characteristics of children who suffer from sexual abuse and child sexual abuse 

accommodation syndrome. Dr. Carmichael’s testimony about these matters 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 [the victim’s] conduct was not 

inconsistent with the conduct of someone who has been molested and in evaluating the 

believability of her testimony.” The italicized language was added by the trial court to 

the pattern instruction’s language.14

14 The standard CALCRIM No. 1193 language reads as follows: “You have heard 

testimony from ___________ <insert name of expert> regarding child sexual abuse 

accommodation syndrome. [¶] __________’s <insert name of expert> testimony about 
33

B. Defendant’s Contentions

On appeal, defendant does not complain about the language modified by the trial 

court. He focuses on the last sentence of the standard pattern instruction. He complains

that CALCRIM No. 1193 “is flawed because the last sentence essentially told the jurors 

they could base their verdict on assumptions inherent in CSAAS testimony. In other 

words, jurors could make infer [sic] the molestation occurred if [the victim’s] conduct 

was not inconsistent with the conduct of someone exhibiting symptoms of CSAAS.” In 

short, defendant asserts that the instruction is problematic because the pattern

instruction’s “last paragraph leaves open an interpretation the jury could consider the 

evidence as proof of molestation because it relates to [the victim’s] believability.” 

Defendant asserts that the erroneous instruction could have caused the jury to 

misinterpret the law and compromised his due process right to a reliable jury 

determination of guilt beyond a reasonable doubt by lessening the prosecution’s burden 

of proof. Defendant further asserts that the error was prejudicial under any standard. 

C. Forfeiture and Section 1259

Tacitly acknowledging that the issue is not preserved for appellate review, 

defendant asserts that his contention may be reviewed because the instruction affected his 

substantial rights (§ 1259), and, alternatively, asserts that, if we determine that his 

contention was forfeited, then he was deprived of the constitutionally effective assistance 

of counsel. 

Defense counsel participated with the trial court in refining the CALCRIM No. 

1193 instruction to be given to the jury based on the circumstances of this case. The 

child sexual abuse accommodation syndrome is not evidence that the defendant 

committed any of the crimes charged against (him/her) [or any conduct or crime[s] with 

which (he/she) was not charged]. [¶] You may consider this evidence only in deciding 

whether or not ____________’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.”
34

defense raised no objection to CALCRIM No. 1193 as proposed by the court, and 

subsequently agreed on two occasions that the defense was “okay with all the instructions 

as the Court proposes to give them.” However, as defendant asserts, we may review his 

contention concerning an instruction given “if the substantial rights of the defendant were 

affected thereby.”

15 (§ 1259.) “ ‘Ascertaining whether claimed instructional error 

affected the substantial rights of the defendant necessarily requires an examination of the 

merits of the claim—at least to the extent of ascertaining whether the asserted error 

would result in prejudice if error it was.’ ” (People v. Ramos (2008) 163 Cal.App.4th 

1082, 1087.) Accordingly, we shall proceed to consider the merits of defendant’s 

contention.

D. Analysis

“In assessing a claim of instructional error or ambiguity, we consider the 

instructions as a whole to determine whether there is a reasonable likelihood the jury was 

misled.” (People v. Tate (2010) 49 Cal.4th 635, 696.)

15 The People assert that defendant invited any error by urging the trial court to adopt the 

model instruction. “ ‘The doctrine of invited error is designed to prevent an accused from 

gaining a reversal on appeal because of an error made by the trial court at his behest. If 

defense counsel intentionally caused the trial court to err, the appellant cannot be heard to 

complain on appeal. . . . [I]t also must be clear that counsel acted for tactical reasons and 

not out of ignorance or mistake.’ In cases involving an action affirmatively taken by 

defense counsel, [our high court has] found a clearly implied tactical purpose to be 

sufficient to invoke the invited error rule.” (People v. Coffman and Marlow (2004) 34 

Cal.4th 1, 49, quoting People v. Wickersham (1982) 32 Cal.3d 307, 330, disapproved on 

other grounds in People v. Barton (1995) 12 Cal.4th 186, 200-201.) “Error is invited 

only if defense counsel affirmatively causes the error and makes ‘clear that [he] acted for 

tactical reasons and not out of ignorance or mistake’ or forgetfulness.” (People v. Lara

(2001) 86 Cal.App.4th 139, 165, quoting Wickersham, at p. 330.) Trial counsel’s failure 

to detect the flaw in CALCRIM No. 1193 that appellate counsel perceives does not 

demonstrate a tactical intent to induce the purported error now claimed. (People v. 

Moore (2011) 51 Cal.4th 386, 410.) We cannot apply the invited error doctrine here. 
35

Arguments similar to defendant’s have been rejected by other courts. (Munch, 

supra, 52 Cal.App.5th at p. 474, citing People v. Gonzales (2017) 16 Cal.App.5th 494, 

504; see also Lapenias, supra, 67 Cal.App.5th at p. 175 [noting that courts have held 

CALCRIM No. 1193 “accurately informs the jury on the limited use of CSAAS 

evidence, but the instruction does not: (a) improperly allow an alleged minor victim of 

sexual abuse to corroborate her own testimony; (b) violate due process; or (c) misapply 

the burden of proof”].) “ ‘A reasonable juror would understand CALCRIM No. 1193 to 

mean that the jury can use [the expert’s] testimony to conclude that [the child’s] behavior 

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

cannot use [the expert’s] testimony to conclude [the child] was, in fact, molested. The 

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

Thus, under CALCRIM No. 1193, a juror who believes [the expert’s] testimony will find 

both that [the child’s] apparently self-impeaching behavior does not affect her 

believability one way or the other, and that the CSAAS evidence does not show she had 

been molested.” (Munch, at p. 474, quoting Gonzales, at p. 504.) We join the Lapenias, 

Munch, and Gonzales courts in holding the portion of the instruction about which 

defendant complains on appeal accurately instructs the jury on the proper use, and proper 

limitations on the use, of CSAAS evidence. 

III. Substantial Evidence — Count Three, Attempted Lewd Acts

A. Defendant’s Contentions

Defendant asserts that his conviction of attempted lewd and lascivious act charged 

in count three is not supported by substantial evidence. According to defendant, the 

prosecution’s theory—that defendant asked the victim to have sex and she said no—is 

insufficient to establish an attempt. Defendant asserts that his conduct did not go beyond 

mere preparation, and soliciting a minor to commit a sex act is insufficient to support a 

conviction of attempt. 
36

B. Standard of Review and Elements of Count Three

“ ‘A substantial evidence inquiry examines the record in the light most favorable 

to the judgment and upholds it if the record contains reasonable, credible evidence of 

solid value upon which a reasonable trier of fact could have relied in reaching the 

conclusion in question. Once such evidence is found, the substantial evidence test is 

satisfied.’ [Citation.] ‘Even when there is a significant amount of countervailing 

evidence, the testimony of a single witness that satisfies the standard is sufficient to 

uphold the finding.’ ” (People v. Lucero (2019) 41 Cal.App.5th 370, 411 (Lucero), 

quoting People v. Barnwell (2007) 41 Cal.4th 1038, 1052.)

“We must accept all logical inferences that the jury may have drawn from 

circumstantial evidence.” (Lucero, supra, 41 Cal.App.5th at p. 411, citing People v. 

Maury (2003) 30 Cal.4th 342, 396.) “ ‘ “If the circumstances reasonably justify the 

findings made by the trier of fact, reversal of the judgment is not warranted simply 

because the circumstances might also reasonably be reconciled with a contrary 

finding.” ’ ” (Lucero, at p. 411, quoting People v. Kaufman (2017) 17 Cal.App.5th 370, 

381.) “It is well settled that ‘ “[a] reversal for insufficient evidence ‘is unwarranted 

unless it appears “that upon no hypothesis whatever is there sufficient substantial 

evidence to support” ’ the jury’s verdict.” ’ ” (Lucero, at p. 411, quoting People v. 

Penunuri (2018) 5 Cal.5th 126, 142; see also People v. Zamudio (2008) 43 Cal.4th 327, 

357; People v. Bolin (1998) 18 Cal.4th 297, 331; People v. Spencer (1969) 71 Cal.2d 

933, 937.)

On count three, the jury found defendant guilty of attempting to commit a lewd or 

lascivious act on a child under the age of 14. (§§ 664, 288, subd. (a).) Section 288, 

subdivision (a), provides: “Except as provided in subdivision (i), a[16] person who 

16 The version of section 288, subdivision (a), in effect at the time of the charged offenses 

actually applied to “any person” rather than “a person.” (§ 288, former subd. (a).)
37

willfully and lewdly commits any lewd or lascivious act, including any of the acts 

constituting other crimes provided for in Part 1, upon or with the body, or any part or 

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

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

is guilty of a felony and shall be punished by imprisonment in the state prison for three, 

six, or eight years.” Thus, the elements to prove a violation of section 288, subdivision 

(a), are that (1) the defendant “willfully touched any part of a child’s body either on the 

bare skin or through the clothing” or the defendant “willfully caused a child to touch 

(his/her) own body, the defendant’s body, or the body of someone else, either on the bare 

skin or through the clothing”; (2) the defendant “committed the act with the intent of 

arousing, appealing to, or gratifying the lust, passions, or sexual desires of 

(himself/herself) or the child”; and (3) the “child was under the age of 14 years at the 

time of the act.” (CALCRIM No. 1110.)

“An attempt to commit a crime consists of two elements: a specific intent to 

commit the crime, and a direct but ineffectual act done toward its commission.” (§ 21a.) 

Thus, “ ‘[t]o sustain a conviction of attempted violation of section 288(a), the prosecution 

has the burden of demonstrating (1) the defendant intended to commit a lewd and 

lascivious act with a child under 14 years of age, and (2) the defendant took a direct but 

ineffectual step toward committing a lewd and lascivious act with a child under 14 years 

of age.’ ” (People v. Villagran (2016) 5 Cal.App.5th 880, 890, quoting People v. Singh

(2011) 198 Cal.App.4th 364, 368.) Defendant’s contentions relate only to the “direct but 

ineffectual step” element.

C. Analysis

The prosecution presented evidence from the victim’s SAFE interview that the 

victim and defendant were snuggling and he licked her armpit. He asked her what she 

wanted to lick, and she said his tummy. She licked his bellybutton. Defendant then 

pulled out his “wiener” under the blanket and “was squishing it, ‘cause it . . . felt good.” 
38

Defendant asked the victim to have sex and she said no. The victim and defendant were 

“talking backwards,” “no means yes and yes me [sic] no,” and the victim said no. 

Defendant said, “[h]ow about I, I have it with your doll.” Defendant started pushing on 

the vagina area of the victim’s doll like he was having sex. 

Based on the evidence before them, the jurors could reasonably have concluded 

that defendant asked the victim to have sex with him and, when she refused, tried to 

manipulate or trick her into having sex with him through the “talking backwards” game

to obtain her consent. The jurors also could reasonably have concluded defendant 

attempted to overcome her resistance through simulating sex with her doll, showing her 

that what he wanted to do was “okay,” or hoping she might decide to protect her doll by 

substituting herself in its place. Defendant’s acts constitute multiple direct but ineffectual 

steps towards achieving his goal of having sex with the victim. And the jury could have 

reasonably inferred that, had the victim relaxed her resistance to defendant’s words and 

actions or sought to save her doll by consenting, he would have had sex with her. The 

acts in furtherance need only be “slight.” (People v. Superior Court (Decker) (2007) 41 

Cal.4th 1, 8, quoting People v. Anderson (1934) 1 Cal.2d 687, 690 [“ ‘whenever the 

design of a person to commit crime is clearly shown, slight acts in furtherance of the 

design will constitute an attempt’ ” (italics added)]; see also People v. Ansaldo (1998) 60 

Cal.App.4th 1190, 1196 (Ansaldo), citing People v. Memro (1985) 38 Cal.3d 658, 698, 

overruled on another ground in People v. Gaines (2009) 46 Cal.4th 172, 181, fn. 2.) 

Defendant’s acts here constitute far more than “slight” acts in furtherance of his clear 

intent to commit a lewd and lascivious act with the victim and to have sex with her. 

Substantial evidence supported the guilty verdict on count three.

Relying on People v. La Fontaine (1978) 79 Cal.App.3d 176, disapproved on 

another ground in People v. Lopez (1998) 19 Cal.4th 282, 292, defendant asserts that 

conduct consisting only of verbal communication is preparation only and does not 

constitute attempt. In La Fontaine, the defendant picked up a hitchhiker, and asked the 
39

hitchhiker if he wanted to make five or ten dollars by allowing the defendant to give him 

a blow job. (La Fontaine, at p. 179.) “At no time did [the] defendant touch any portion 

of [the hitchhiker’s] body or make any movement or motion toward [the hitchhiker’s]

body.” (Id. at p. 180.) The court held that this solicitation to commit a lewd act, without 

more, was insufficient to constitute an attempt to commit a lewd act in violation of 

section 288. (La Fontaine, at pp. 182-183.) As defendant acknowledges, several 

appellate decisions have declined to follow La Fontaine on this point. (See, e.g., People 

v. Herman (2002) 97 Cal.App.4th 1369, 1386 [“That an invitation to participate in the 

defendant’s commission of a crime consists only of words does not mean it cannot 

constitute an ‘act’ toward the completion of the crime, particularly where the offense by 

its nature consists of or requires the requested type of participation”]; Hatch v. Superior 

Court (2000) 80 Cal.App.4th 170, 188; Ansaldo, supra, 60 Cal.App.4th at p. 1196.) We 

are not persuaded by the analysis in La Fontaine. Moreover, the question here is 

academic. As detailed ante, defendant did far more than tender one verbal solicitation for 

sex. He undertook a number of direct acts in addition to the solicitation in an effort to 

commit a lewd or lascivious act with the victim. (See Hatch, at p. 188 [“Even assuming 

La Fontaine’s analysis remains good law, there is some evidence [the defendant] did try 

to touch [the victim]: after [the victim] refused to enter his truck, [the defendant]

exposed himself, masturbated and extended his semen-covered hand toward her”].)

Defendant also asserts that the prosecutor’s argument to the jury—that defendant 

asking the victim to have sex constituted the direct but ineffective step toward completion 

of the crime—effectively limited the jury on the theory upon which it could find 

defendant guilty under count three. He claims that, while the prosecutor pointed out what 

defendant did with the victim’s doll, “it was not what [defendant] did with the doll, but 

rather his asking [the victim] that the prosecutor claimed was the ‘ineffective step’ 

making the crime attempt.” 
40

“Ordinarily, for purposes of substantial evidence review, ‘the prosecutor’s 

argument is not evidence and the theories suggested are not the exclusive theories that 

may be considered by the jury.’ ” (People v. Brown (2017) 11 Cal.App.5th 332, 341, 

quoting People v. Perez (1992) 2 Cal.4th 1117, 1126.) That rule applies here. The jury 

was not bound to focus only on the prosecutor’s theory and neither are we. Moreover, 

count three, as alleged, specified that the factual allegations supporting the charge were 

that defendant “asked [the victim] to have S.A.X. and when she said no and then he had 

SAX with her doll . . . .”17 (Italics added.) 

Substantial evidence supported the conclusion that defendant was guilty of 

attempting to commit a lewd or lascivious act on a child under the age of 14 and 

defendant’s contentions to the contrary are without merit.

IV. Fines, Fees, and Penalty Assessments

Although not raised by the parties, we have noticed issues concerning fines and

fees that require correction.

At sentencing, the trial court imposed a fine of “$500 habitual offender program,” 

referring to the sex offender habitual offender fine pursuant to section 290.3. The 

abstract of judgment does not reflect the imposition of this fine. Accordingly, we shall 

order the abstract corrected to reflect the imposition of this fine.

The trial court also ordered defendant to pay $702 as a presentence report fee 

pursuant to section 1203.1b. This fee, too, does not appear on the abstract of judgment. 

We shall therefore order the abstract corrected to reflect the imposition of this fee.

The trial court ordered defendant to pay a fine of “$600 pursuant to [section] 

243.4.” Section 243.4 authorizes a fine up to $10,000 for a felon who commits sexual 

17 The verdict forms recited of the charged offense: “attempt to commit a lewd and 

lascivious act upon a child, to wit, asked [the victim] to have ‘SAX’ and when she said 

no he then had ‘SAX’ with her doll.” 
41

battery against a minor. (§ 243.4, subd. (j).) However, defendant was not convicted of 

sexual battery under section 243.4 and therefore that fine could not be imposed. “An 

unauthorized sentence may be corrected by an appellate court ‘regardless of whether an 

objection or argument was raised in the trial and/or reviewing court.’ ” (People v. Turner

(2002) 96 Cal.App.4th 1409, 1415, quoting People v. Welch (1993) 5 Cal.4th 228, 235; 

accord, People v. Smith (2001) 24 Cal.4th 849, 852.) We shall modify the judgment to 

strike the $600 fine imposed pursuant to section 243.4. However, because this fine does 

not appear on the abstract of judgment, we need not order the abstract corrected in this 

regard.

DISPOSITION

The judgment is modified to strike the $600 fine imposed pursuant to section 

243.4. The trial court is directed to prepare an amended abstract of judgment reflecting 

the judgment as modified and reflecting the trial court’s oral imposition of a $500 sex 

offender habitual offender fine pursuant to section 290.3 and a $702 presentence report 

fee pursuant to section 1203.1b. The trial court is directed to forward a certified copy of 

the amended abstract of judgment to the Department of Corrections and Rehabilitation. 

The judgment is affirmed as modified.

 /s/

MURRAY, Acting P. J.

We concur:

 /s/

HOCH, J.

 /s/

KRAUSE, J.