Filed 2/16/16 P. v. Schlensker CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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

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 This opinion has not been certified for publication 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

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

EMBER DAWN SCHLENSKER,

Defendant and Appellant.

F068799

(Super. Ct. No. CRF39351)

OPINION

APPEAL from a judgment of the Superior Court of Tuolumne County. James A. 

Boscoe, Judge.

Athena Shudde, under appointment by the Court of Appeal, for Defendant and

Appellant.

Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney 

General, Catherine Chatman and Jeffrey Grant, Deputy Attorneys General, for Plaintiff 

and Respondent.

-ooOooINTRODUCTION

In January 2013, the Tuolumne County District Attorney filed a 45-count 

information charging Ember Dawn Schlensker (appellant) with committing various
2.

sexual offenses against John Doe (John), between August 1, 2009, and March 1, 2012, 

beginning when appellant was around 25 years old and John was around 15 years old. 

In July 2013, a jury convicted appellant of 27 of the 45 counts charged in the 

information, acquitted her of five counts, and was unable to reach a verdict as to 13 

counts. The majority of appellant’s convictions represented offenses alleged to have 

occurred during specific months between August 1, 2009, and August 21, 2010. The 

counts on which she was acquitted, or on which the jury was unable to reach a verdict, 

represented offenses alleged to have occurred during specific months between August 22, 

2010, and March 31, 2012. The trial court sentenced appellant to a total prison term of 

six years.

Appellant raises three contentions on appeal. First, she contends the trial court 

abused its discretion in refusing to hold an evidentiary hearing on proffered evidence of 

John’s sexual history. Second, appellant contends the trial court erred prejudicially in 

unduly restricting the testimony of the defense expert regarding her opinion that appellant 

suffered from posttraumatic stress disorder and rape trauma syndrome at the time of the 

offenses. Finally, appellant contends the cumulative effect of these errors requires 

reversal. For reasons discussed below, we agree with appellant’s second contention and 

will reverse the judgment on that ground. In light of our conclusion that reversal is 

required, we need not and do not address appellant’s other contentions on appeal.

FACTUAL AND PROCEDURAL BACKGROUND

I. The Information

Counts 1 through 26 of the information charged appellant with committing two 

offenses per month—i.e., lewd act on a minor (Pen. Code,1§ 288, subd. (c)(1)) and 

unlawful sexual intercourse with a minor under the age of 16 (§ 261.5, subd. (d))—

 

1 All statutory references are to the Penal Code unless otherwise specified.
3.

between August 1, 2009, and August 21, 2010.2 Appellant was thus charged with 13 

counts of lewd acts (counts 1, 3, 5, 7, 9, 11, 13, 15, 17, 19, 21, 23, 25) and 13 counts of 

unlawful sexual intercourse (counts 2, 4, 6, 8, 10, 12, 14, 16, 18, 20, 22, 24, 26). 

Counts 27 through 43 charged appellant with committing one count per month of

unlawful sexual intercourse with a minor more than three years her junior (§ 261.5, subd. 

(c)). These offenses allegedly occurred between August 22, 2010, and March 31, 2012, 

excluding the time period between September 1, 2011, and November 30, 2011, when 

John was attending school in a different state. 

Finally, counts 44 and 45 charged appellant with oral copulation and sodomy with 

a person under the age of 18 (§§ 288a, subd. (b)(1), 286, subd. (b)(1)), offenses allegedly 

occurring sometime between August 1, 2009, and March 1, 2012. 

II. The Jury’s Verdict

Appellant was tried by a jury and found guilty of all but two of the first 26 counts, 

which covered the time period between August 1, 2009, and August 21, 2010. The jury 

found appellant not guilty on counts 19 and 20, the lewd act and unlawful sexual 

intercourse, which allegedly occurred in May 2010. 

With respect to counts 27 through 43, which covered the time period between 

August 22, 2010, and March 31, 2012, the jury found appellant guilty on count 28, the 

unlawful sexual intercourse which allegedly occurred in the month of September 2010. 

The jury found appellant not guilty of the same offense in count 27, which allegedly 

occurred between August 22, 2010, and August 31, 2010, and not guilty of the offenses 

in counts 40 and 43, which allegedly occurred in the months of December 2011 and 

March 2012, respectively. The jury was unable to reach a verdict on counts 29 through 

 

2 For example, count 1 charged appellant with committing a lewd act, and count 2 charged 

her with committing unlawful sexual intercourse, on or between August 1, 2009, and August 31, 

2009. Likewise, count 3 charged her with committing a lewd act, and count 4 charged her with 

committing unlawful sexual intercourse, on or about September 1, 2009, through September 30, 

2009. Counts 5 through 26 followed suit.
4.

39, 41, and 42, which represented offenses allegedly occurring in the months of October 

through December 2010, January through August 2011, January and February 2012. The 

trial court declared a mistrial as to these counts and later dismissed them on the 

prosecution’s motion. 

Finally, the jury found appellant guilty on counts 44 and 45, the oral copulation 

and sodomy offenses allegedly occurring sometime between August 1, 2009, and March 

1, 2012. 

III. Sentencing

The trial court sentenced appellant to a total prison term of six years as follows: 

three years for count 2 (§ 261.5, subd. (d)), plus one year for count 18 (ibid.), eight 

months for count 28 (§ 261.5, subd. (c)), eight months for count 44 (§ 288a, subd. (b)(1)), 

and eight months for count 45 (§ 286, subd. (b)(1)). The terms appellant received for her 

other convictions were ordered to run concurrently or stayed under section 654. 

IV. Evidence Presented at Trial

The prosecution

John, who was 18 years old at the time of trial, testified he first met appellant 

when he was around 13 years old, at a church camp in Santa Cruz. According to John’s 

testimony, appellant came up and introduced herself and her husband, Phillip Schlensker 

(Phil), to John and a friend sitting with him. Appellant told them she was going to be the 

new youth pastor at the Lutheran church that John and his mother attended in Sonora,

where they lived. Appellant asked John if he wanted to be invited to youth group events 

and he said yes. 

When John returned to Sonora after the church camp, he began to attend youth 

group functions on a regular basis. At first, he mainly just hung out with the other kids 

and his perception of appellant did not change. His perception of her changed later, 

however, after they started “flirting” with each other. John recalled the first time 

appellant flirted with him was at her apartment, when he was not quite 14 years old. 
5.

John’s mother and Phil were in the kitchen and John was sitting on the couch. As 

appellant was walking to the kitchen, she winked at him. After this incident, John started 

“flirting back” with appellant and their flirting became more frequent. 

John returned to the same church camp the following summer when he was 14 

years old. He recalled an incident at the camp in which appellant hurt her knee at the 

beach and he gave her a piggyback ride. When they reached the stairs, appellant 

whispered in his ear, “I like having my legs wrapped around you.” 

After John’s parents split up, his mother started working more hours and would 

bring him to appellant’s apartment for appellant to watch him while his mother was at 

work. During this time, John’s feelings towards appellant continued to change as their 

flirting became more intense. John would stay at appellant’s apartment the whole time 

his mother was gone, which was from around 7:30 a.m. to 5:30 p.m. Phil was usually at 

work during this time. 

John recalled his first kiss with appellant took place when they were sitting on the 

couch in her apartment, watching the movie “Resident Evil Distinction.” It was during 

the summer, less than a week after they returned from church camp. John had his arm 

around appellant and leaned over and tried to kiss her. She told him “no,” and he said 

“okay.” About five minutes later, John tried to kiss appellant again and she kissed him 

back this time. 

A few weeks after their first kiss, John and appellant started engaging in what 

John referred to in his testimony as “dry sex” with their clothes on. They engaged in “dry 

sex” more than 10 times. 

The first time John and appellant had sexual intercourse was at John’s house on 

Buena Oaks. John recalled that appellant and Phil started staying at their house when 

both John and appellant had the Swine Flu and, after that, appellant and Phil decided to 

move in with John and his mother. 
6.

John testified that the first time he had sex with appellant, she came into his 

bedroom wearing “lingerie” consisting of a “white bra with lace” and “white pants with 

lace.” After she lay down on the bed next to him, they began to have “dry sex” like they 

“normally” did. John then asked appellant whether “she fully wanted to go all the way 

this time.” Appellant said she wanted to, but she did not want to betray her husband. 

John testified that they “ended up ... partially having sex.” John explained he did 

not “penetrate her all the way.” He denied that he forced himself on appellant. After 

they stopped, appellant left the room, sat on the stairs, and cried. John went to sit with 

her and started crying too because she was crying. 

John could not recall specifically how long it was after their first time that he and 

appellant had sex again but recalled they “did it quite a bit.” At first they had sex around 

three times a week but “eventually it was almost every day.” 

At some point, John, his mother, appellant, and Phil moved into a house on 

Arbona. They were only at the Arbona house for a month while they were looking for 

another house that they could all move into together.

John recalled one incident at the Arbona house when his mother returned home 

after forgetting something for work. His mother saw him lying in bed with appellant and 

got upset with him. John and appellant were not having sex when his mother saw them, 

and he responded to his mother by becoming angry and defensive. John’s mother spoke 

with him later about the incident and told him it was inappropriate and she did not want 

to see it again. 

During the month they were living in the Arbona house, John’s feelings for 

appellant had developed to the point where he thought that he loved her and he told her 

so. At some point, appellant told John she loved him too. He could not remember when 

but thought it was during the same month. 

After they moved out of the Arbona house, John, his mother, appellant, and Phil 

moved into a two-story house on Lakeside. At the Lakeside house, there was one
7.

upstairs bedroom, which was where appellant and Phil stayed, and John’s bedroom was 

at the bottom of the stairs. 

John and appellant continued to have sex almost every night after moving to the 

Lakeside house. They would have sex in John’s bedroom while Phil was upstairs. When 

asked how this was possible, John testified, “Well, she would lay in bed with me at night 

... and tell my mom and Phil that we were doing Bible study or we were reading or we 

were talking, and she would lie in bed with me, and that’s when we would do that.” The 

door to his bedroom was usually “cracked open, but sometimes it was closed.” 

John recalled two occasions at the Lakeside house where he and appellant almost 

got caught by his mother. On the first occasion, it was late at night and appellant was 

under the covers with him. They were about to have sex when his mother came in his 

room. His mother “wasn’t happy” and directed him to come out and talk to her. John 

again reacted by getting upset with his mother because he did not want anyone to know 

or find out what was going on between him and appellant. 

On the second occasion, John’s mother came home early from work. John and 

appellant were upstairs in her room having sex when they heard his mother pull into the 

garage. Appellant went into the bathroom and John locked the door because he knew his 

mother was coming up and he needed time to put on his clothes. When John opened the 

door, his mother was upset about him being behind a closed door with appellant. John 

again responded by getting angry with his mother. 

During the time they were living at the Lakeside house, appellant and John also 

had sex two or three times in his mother’s car. This was when he was close to 17 years 

old and had just gotten his driver’s license. During the same timeframe, they also had sex 

at the church two or three times. John recalled having sex in the youth group room in the 

afternoon and also in the “attic room” at night during a “lock in” which was when youth 

group kids would spend the night at the church. 
8.

John further testified that he and appellant engaged in anal sex three times when 

they lived at the Lakeside house. It had been his idea to have anal sex, but he did not 

force her. They also engaged in oral sex more than 10 times during the course of their 

relationship, and they touched each other’s private parts just about every time they 

engaged in sexual activity. 

John recalled that appellant once gave him a note before she left on a trip for Hong 

Kong. In the note, she wrote “You’re always in my thoughts” and that she would see him 

again soon. Appellant and Phil also gave John a card for his 16th birthday, and appellant 

gave him a separate birthday card that she signed as being from the dog and to be funny. 

Sometime during the winter after John turned 16 years old, John and appellant 

bought rings as a token of their love for each other at an event called “Spirit West Coast” 

near Santa Cruz. John had planned to buy appellant’s ring for her, but, because he did 

not have any money, she bought both of their rings. John thought the rings represented a 

promise that someday they would get married and be together, which was something they 

had previously talked about. 

John acknowledged he and appellant would occasionally fight. He explained that 

she would sometimes get upset with him when he had a girlfriend, and he would get 

upset because she was married, which was difficult for him to see every day. John 

wanted appellant for himself and told her so. 

John described an incident at the Lakeside house, in which he fired his ninemillimeter handgun in anger at appellant during a fight. According to John, he bought 

the gun with money he earned from his job but it was registered in his mother’s name. 

For a long time, he kept the gun in his room in a safe and occasionally took the gun out 

when he went shooting with appellant. 

John could not remember what he and appellant had been fighting about during 

the incident but recalled the fight had become “pretty heated” and appellant slapped him 

and ran upstairs. John pulled out his gun and fired it up the stairs and the bullet went 
9.

through the bedroom wall. Realizing what he had done, John dropped the gun and went 

into the bedroom to apologize and ask for appellant’s forgiveness for losing his cool and 

firing a gun because he was angry. 

John also testified regarding a time when his father came to the Lakeside house 

looking for him. He recalled being upstairs with appellant and Phil. They were still in 

their pajamas and just playing around like they often did. Appellant was giving John a 

“wet Willie” when Phil walked by the doorway and said, “Your dad’s here.” John 

walked downstairs and saw his father. His father was upset with him and asking things 

like, “What was going on up there? What’s a wet Willie?” 

In September 2011, after John turned 17 years old, his mother sent him to attend a 

school in Missouri, where he stayed until around Christmas. Days before John left for 

Missouri, he had sex with appellant in the church room. When John returned from 

Missouri, appellant and Phil had moved to Twain Harte and were no longer living at the 

Lakeside house where John’s mother still lived. 

At some point before John went to Missouri, his mother set up counseling 

appointments for him to talk to a pastor to find out what was going on between him and 

appellant. John lied and did not tell the pastor anything. On another occasion, to deflect 

his mother’s suspicion from appellant, John told his mother, in front of appellant and 

Phil, that he had sex with appellant’s sister, who was two years younger than appellant.3 

In January 2012, about one or two weeks after his return from Missouri, John had 

sex with appellant at her house in Twain Harte. He could not remember how many times 

they had sex when she as living in Twain Harte but recalled that it would happen during 

his lunchbreak from school and that he would drive his mother’s car up to Twain Hart to 

see appellant whenever he could. 

 

3

John claimed he actually did have sex with appellant’s sister at the Lakeside house. 

However, appellant’s sister denied having sex with John in her testimony for the defense. 
10.

John stopped having sex with appellant after she and Phil moved to Oregon. John 

felt hurt when appellant moved, but they had talked about it and it was John’s 

understanding that eventually he would get his own car to go visit appellant and Phil and 

eventually move there. 

Sometime after appellant and Phil moved to Oregon, John received a text message 

from Phil essentially stating that appellant had told him what was going on and if John 

respected them to stay out of their lives and never talk to them again. Phil also said 

something to the effect he was disappointed but still cared about John. He was also upset 

that John had shot a gun in anger towards his wife. 

Eventually, John told his mother about his relationship with appellant but made 

her promise not to press charges. After John told his mother, his mother told his father 

and, months later, someone told the police. 

John’s mother, Kathy S. (Kathy), was the first witness called by the prosecution. 

Her testimony provided background information about how she met appellant in 2008, 

after appellant came to work at the Lutheran church of which Kathy had been a member 

for a number of years. Kathy also testified about how, after separating from her husband, 

she came to ask appellant to help her look after John when she was working, and 

eventually to invite appellant and Phil to move in with her and John. The primary focus 

of Kathy’s testimony, however, was on describing specific incidents that seemed 

suspicious to her and suggested the existence of an unusual or inappropriate relationship 

between appellant and John.

Kathy first testified to an incident that occurred in 2009, while she and John were 

living at the Buena Oaks house. The incident took place a few months into John’s 

freshman year, when he was 15 years old, and at a time when Kathy was beginning to 

rely more and more on appellant to drive John to and from school. It was a school night, 

and John was in bed with the lights out. After Kathy saw his phone light up, she went 

into his room to investigate and found John texting with someone. 
11.

After confiscating John’s phone, Kathy saw a message on it which read, “Don’t 

worry, it’s only a little blood.” When she asked him who wrote the message, he replied it 

was “just a friend.” Kathy did not know the context of the message, but it appeared that 

someone was hurting or had gotten hurt. Kathy then noticed the phone number 

associated with the message had appellant’s name on it. When she asked John about that, 

he maintained it was just a friend and did not explain how his friend had the same name 

as appellant. 

One or two days later, Kathy confronted appellant with the text message and 

appellant denied recognizing the phone number. Kathy then punched the number into her 

own phone and showed appellant that it brought up her name. Appellant looked down, 

started crying, and revealed to Kathy some cut marks on her wrists. 

When Kathy spoke with Phil about this incident, he expressed concern about 

appellant being alone in the evenings when he worked. After that, appellant and Phil 

started spending nights over at the Buena Oaks house. 

During their past Bible studies together, appellant revealed to Kathy she had a 

“troubled past.” Based on their conversations, Kathy believed she and appellant shared 

the same values and she trusted appellant and felt comfortable with her picking up John 

from school. 

In addition to the texting incident, Kathy described two other unusual incidents 

she recalled occurring when appellant was staying with them at the Buena Oaks house. 

On one of the occasions, Kathy heard John get up out of bed and got up to check on him. 

As she was walking by appellant’s room on the way to John’s room, Kathy saw John in 

appellant’s room, lying on top of her bed covers. He was wearing pajama shorts and an 

undershirt. Kathy told John to get up and go back to bed. John’s reaction was “[a] little 

defensive, but compliant.” Kathy recalled telling appellant that John did not belong in 

there and thought appellant said okay. 
12.

After the incident, Kathy followed up with appellant and Phil and told them that 

John did not belong in their room. Phil assured Kathy that John was like a brother to 

appellant and this was how appellant treated her own brothers. Kathy thought this was 

odd but concluded it was okay because John had been on top of the covers. 

During the other incident she recalled occurring at the Buena Oaks house, Kathy 

heard muffled noises coming from appellant’s room at night when Phil was at work. 

Kathy got up and walked to appellant’s room. When she opened the door, she saw 

appellant and John in bed together under the covers. Kathy told John to get up and go to 

bed. John reacted by saying, “Mom, we were only talking.” Kathy noticed John was 

wearing pajamas when he got out of the bed. Appellant did not get out of bed and Kathy 

could not recall whether appellant said anything. 

A day or two later, Kathy spoke about the incident with John, appellant, and Phil. 

John repeated that he and appellant had only been talking and said she had been 

comforting him. Phil also reiterated that appellant viewed John as a brother and this was 

how she treated her brothers. 

On February 1, 2010, Kathy and John moved from the Buena Oaks house into the 

Arbona house. It was both Kathy’s and the Schlenskers’s idea to move in together. 

Kathy explained that they “shared a common vision ultimately to have a place of refuge 

for the teenagers of the church” and the one-story house on Arbona was large enough for 

that purpose. 

During the month they lived at the Arbona house, Kathy had the master bedroom 

while appellant and Phil had the guest bedroom across from John’s bedroom. The 

arrangement was for John to be with appellant after school when Kathy was not around. 

Kathy worked three days a week on Monday, Tuesday, and Thursday, and would 

typically leave the house at 7:30 a.m. and return between 5:15 p.m. and 5:30 p.m. 

Kathy recalled one unusual incident when they were living at the Arbona house. 

One morning, shortly after leaving the house for work, she realized she had forgotten 
13.

something and drove home. When she walked inside the house, she saw, in her 

peripheral vision, John jumping under the covers in appellant’s bed. 

Kathy walked into appellant’s room and asked John what he was doing in her bed. 

John replied, “Oh, nothing mom.” His demeanor was “nonchalant.” When Kathy 

directed John to get out of the bed, she saw he was wearing his pajama bottoms and a 

shirt. Appellant did not say anything but “turned her head ... as if she had been 

sleeping.” 

When Kathy spoke to appellant and Phil about this incident, they again reassured 

her that appellant had brotherly feelings towards John and this was how appellant 

behaved with her brothers. During the conversation, John’s demeanor was defensive. He 

said nothing was happening and asked how she could think such a thing. 

In March 2010, Kathy, John, appellant, and Phil moved from the Arbona house to 

the Lakeside house. During that time, appellant would engage in one-on-one Bible 

studies with youth group members upstairs in her room. Kathy estimated that John 

participated in private Bible study sessions with appellant in her room once a week but 

could not recall for how long this continued. 

Starting from March 2010, the first suspicious incident Kathy could recall 

occurred late at night. When she went to John’s room to check on him, she found 

appellant in bed with him under the covers.4 Kathy turned on the lights and told appellant 

to get out of John’s bed. When she got out of the bed, Kathy saw that appellant was 

wearing pajamas. Appellant told Kathy that John had been “frightened and needed to be 

comforted” and had asked her to read to him. 

The next suspicious incident Kathy could recall occurred during the daytime. 

Looking for John, Kathy went upstairs and knocked on appellant’s door. John unlocked 

 

4 Kathy testified that, as “a parent thing,” she would frequently check on John in the 

middle of the night but did so less frequently as he got older. 
14.

and opened the door. Kathy did not see appellant right away. Appellant then walked out 

from the vanity area of the bathroom connected to the bedroom. 

Another time, Kathy walked upstairs to appellant’s room during the daytime and 

found appellant and John both lying on the floor. Appellant was wearing very short 

shorts and had one knee “propped up.” John’s head was within three or four inches of 

appellant’s crotch area. Kathy “chit chatted with them for a moment” and then finally 

said, “This looks totally inappropriate. [John], you should not be that close to 

[appellant’s] crotch area.” Appellant took hold of a blanket that was on the floor, pulled 

it over her head, and turned away from Kathy. Meanwhile, John was saying, “There’s 

nothing going on here” and “We’re just sitting here having a conversation.” John’s 

demeanor seemed “a little put off that [Kathy] would even think that they would be 

inappropriate toward each other.” Kathy remarked to appellant, “you’re the adult” and “I 

don’t understand why [John] is doing all the talking.” 

Kathy recalled after each of these three incidents occurring at the Lakeside house, 

she had follow-up meetings with appellant and Phil. Phil continued to respond the way 

he had done in the past, telling Kathy that appellant treated John as a brother and that he 

trusted his wife. 

Regarding other occasions she found appellant and John in inappropriate positions 

or situations at the Lakeside house, Kathy testified that, sometimes when they were all 

watching television, appellant would have her hand on John’s leg or they would have the 

covers over them while they were sitting next to each other. During these occasions, Phil 

was often sitting on the other side of appellant. 

On another occasion, Kathy walked into the fireplace room at night before going 

to bed and found appellant with her arms around John’s neck. Kathy testified it was “a 

close embrace, and [appellant] had one foot up and she’s looking into his face.” Kathy 

walked up to them and asked, “What’s going on here?” John responded, “Nothing is 

going on. We were just talking.” 
15.

Another time, Kathy and John were planning to go somewhere and he wanted to 

say goodbye to appellant. When Kathy went upstairs to look for him, she saw appellant, 

apparently asleep, in bed under the covers. John was kneeling down next to the bed with 

one arm across appellant. His face was very close to her face as he was saying goodbye. 

When John appeared to kiss appellant, Kathy said, “What are you doing? It’s time to go. 

We’re leaving.” 

Kathy also testified regarding suspicious incidents or situations that occurred 

outside the home. In this regard, Kathy recalled that, in the summer of 2010, when they 

were on a camping trip, Kathy found Phil sitting alone at the campground and asked him 

where appellant and John were. Phil replied that they were in the tent. Kathy went to the 

tent and saw that the windows were closed and the door was zipped shut. When she 

opened up the door, she saw John lying on the air mattress with his shirt off and appellant 

giving him a massage. John complied when Kathy told him to get his shirt on and come 

out of the tent. 

Another time during the summer of 2010, Kathy went with John, appellant, and at 

least four other girls from the church youth group to a Christian music event in Monterey 

called “Spirit West Coast.” During the event, they camped together in a tent. Kathy 

recalled that appellant and John slept side by side, perpendicular to the other girls, who 

were at the other end of the tent. This had not been the intended sleeping arrangement 

and, while finding it unusual, Kathy did not insist that appellant and John move because 

they were both in their own separate sleeping bags. 

Later the same summer or early in the fall of 2010, Kathy went with John, 

appellant, Phil, and three other youth group members to an event in San Jose called 

“Hands on Bay Area.” During the event, they stayed in two hotel rooms. Kathy slept in 

the room with the youth group members, while appellant, Phil, and John slept in the other 

room. When Kathy asked John why he was sleeping with appellant and Phil, John 

replied he just wanted to. 
16.

Kathy confirmed that there was a nine-millimeter handgun in the home between 

2008 and 2012. Kathy testified that it belonged to her and she kept it in her room locked 

in a safe. She never gave it to John to use except when they went out target practicing. 

Around the middle of September 2011, Kathy sent John to a “Christian-run school 

and teaching place for young men” called “Future Men” in Missouri. She was prompted 

to send him there by information she received from her stepdaughter, namely that John 

had confided in his stepsister and her husband that he and appellant were sexually 

involved. 

Kathy called a pastor and arranged for him to be present when she confronted John 

with the information she had received from her stepdaughter. During the meeting with 

the pastor, John told Kathy that he had lied to his sister. 

After meeting with the pastor, Kathy and John went to Wal-Mart. John told her he 

wanted to go inside to talk to Phil. Kathy responded that she did not want him to talk to 

Phil before she had a chance to confront Phil and appellant. John reacted by storming off 

into the Wal-Mart. 

The next time Kathy saw John that night was at home around 10:15 p.m. Kathy 

had appellant and Phil come into her room and confronted them. During the 

confrontation, appellant said Kathy was just jealous and denied that she and John were 

having sex. Appellant also said that John had sex with her sister, who consequently was 

no longer allowed to be at the house. After the meeting, appellant and Phil went to their 

room and started packing up their things. 

Dessi S. (Dessi), John’s father and Kathy’s ex-husband, testified regarding an 

incident involving John and appellant that struck him as unusual. Sometime around 

2010, when John was 15 years old, Dessi went to the Lakeside house in the late morning 

or early afternoon, to look for John after he was unable to reach his son. No one 

responded when Dessi knocked on the front and back doors. 
17.

Dessi heard voices coming from the upstairs and recognized those of appellant and 

John. Dessi entered the house through the garage and stood at the bottom of the stairs 

leading to the upstairs bedroom. He could hear John giggling and saying something like, 

“You know how that tickles me.” 

Dessi then saw Phil cross in front of the open bedroom door. Phil was wearing a 

robe which struck Dessi as strange given the time of day. Phil spotted Dessi and said, 

“Your father has broken in. [John], your father is standing at the bottom of the stairs.” 

John, who was wearing pajamas, came down the stairs and seemed upset with 

Dessi and the idea that his father had broken into the house. Not wanting to engage in a 

confrontation at that time, Dessi told John that he did not like what he was seeing, it was 

inappropriate, and that he was leaving. John followed Dessi as he walked out to the car. 

Shortly thereafter, Dessi communicated what he had seen to Kathy and his feelings that it 

was strange for John to be upstairs in the adults’ private bedroom. 

Besides John, Kathy, and Dessi, the only other witness called by the prosecution 

was Spencer Garrett. Garrett testified that he worked as a deputy with the Tuolumne 

County Sheriff’s Office, when he interviewed John in Sonora on July 16, 2012, and 

interviewed appellant in Crescent City on August 1, 2012. 

During the August 1, 2012, interview, appellant told Garrett that she viewed John 

like a brother and that she had been entrusted with his care. When Garrett told appellant 

that John was saying they had sex, she said no and that it was not something she would 

do. When asked how often she did Bible study with John, appellant responded that it was 

almost every night. 

During her interview, appellant told Garrett that John had tried to have sex with 

her “very many times.” When Garrett asked her if she thought about having sex with 

John, she said no and indicated she found the idea “disgusting” and “gross.” She also 

responded in the negative when asked if she was capable of having sex with John. 
18.

After Garrett asked appellant to “level” with him about what happened, appellant 

said, “He pinned me down.” When asked why she never made a report, appellant 

responded that no one would believe her “because of all the stories you hear in the news 

of teachers and the gross things that they do with their students.” 

When Garrett told appellant that he did not believe all the sex they had was forced, 

she responded, “Not every time.” When Garrett asked if she was just going along with 

sex, appellant replied “[y]eah” and said “she wished to God she had the strength not to.” 

When Garrett asked about the time period during which appellant and John had 

sex, appellant said it lasted a year and a half. Garrett also asked if she planned to end the 

relationship. Appellant told Garrett she kept telling John that it needed to end and, if 

what they believed was true, she would be going to hell and she would rather just stop 

and for John to be saved. 

Towards the end of the interview, Garrett asked appellant what she thought should 

happen and she responded, “I feel like I should be punished.” Appellant admitted she 

and John had a relationship and described it as “a sick twisted one.”5

On cross-examination, Garrett acknowledged that appellant told him she had sex 

with John because she was afraid of him. She also reported that John shot at her two 

times and also hit her. 

On redirect, Garrett testified that appellant told him John held her down the first 

several times they had sex. However, she did not say John forced her to have sex 

throughout the whole one-and-a-half year time period during which they were sexually 

involved. 

 

5 During cross-examination, defense counsel elicited contextual details regarding 

appellant’s statement to Garrett describing her relationship with John as “sick” and “twisted.” 

Garrett acknowledged that he asked appellant, “You feel that the first several times, he forced 

you to have sex with him?” to which she responded, “That’s more than a feeling.” Garrett 

continued, “But then it sounds like you guys develop somewhat of a relationship” to which 

appellant replied, “A sick, twisted one.” Garrett acknowledged that he next asked appellant 

whether she “had good times and bad times,” and that she replied “it was all bad.” 
19.

The defense

Appellant testified that she and Phil moved to Sonora in June 2007, and that she 

started working at the Lutheran church in July 2007, which was also when she first met 

John. She later met Kathy in the fall of 2007. Between July 2007 and August 2009, 

appellant and Phil lived in an apartment on Flora Lane. 

According to appellant’s testimony, she and Kathy grew closer in the latter part of 

2008, through their joint participation in Bible study and their relationship continued to 

evolve in 2009. Appellant also got to know John better in the confirmation class he was 

required to take before his confirmation in 2009. 

At Kathy’s request, appellant began babysitting John in June 2009. Appellant 

would watch him on Mondays, Tuesdays, and Thursdays, while Kathy had him on 

Wednesdays and Fridays. Appellant did not flirt with John at all. 

Appellant’s work required her to attend a Christian summer camp, which John 

attended during the last week of July 2009. On one occasion at the camp, appellant 

busted her knee during surfing lessons and was unable to climb up the hill. Because John 

was the biggest person there, he volunteered to carry her up the hill. When he carried her 

up the hill piggyback style, appellant did not flirt with him or make any remarks of a 

physical or sexual nature. 

In August 2009, appellant and Phil started spending more time at the Buena Oaks 

house where Kathy and John lived. Appellant recalled an incident when John forcibly 

tried to kiss her when they were sitting on the couch watching television. He pushed her 

head up against the couch with his face on hers while she tried to push him off. 

On another occasion, John came in the room where appellant was folding laundry 

and pushed her against the dresser and “proceeded to hump [her] body until ... he came.” 

John did not have appellant’s consent to do this and she did not say or do anything to 

encourage it. Appellant estimated that John assaulted her in this manner three times at 

the Flora Lane apartment and once at the Buena Oaks house. 
20.

During the incident at the Buena Oaks house, appellant told John she was going to 

tell his mother that he was doing something inappropriate. John responded by 

threatening that if appellant told his mother, he would kill his mother, paint his mother’s 

room with her blood, and tell “the cops” that appellant did it against him. Appellant 

believed John’s threats because he had begun bullying her that summer and she had seen 

him laugh when people died and got shot in movies he was watching. Appellant had also 

heard from Kathy that John had tried to beat her up and was getting out of control, which 

was why Kathy said she needed appellant’s and Phil’s help with John. 

Not long after the Buena Oaks incident, John raped appellant for the first time. 

Appellant went on to testify in detail about this and other specific incidents of 

nonconsensual sexual intercourse appellant claimed John subjected her to between 

August 2009 and February 2012.6In this regard, appellant testified that they had 

nonconsensual sex two times in August 2009, one time in September 2009, two or three 

times in October 2009, one time in December 2009, three or four times in February 2010, 

one time in August 2010, one or two times in September 2010, three times in October 

2010, a few times (she could not recall how many) in November 2010, three times in 

January 2011, two times in April 2011, one time in May 2011, one time in July 2011, 

three times in January 2012, and two times in February 2012.7 Appellant also claimed 

John forced her to orally copulate him one time in March 2011, and one time in June 

2012. 

 

6

In contrast to John’s testimony that they had consensual sex almost every day, appellant’s 

testimony indicated the specific incidents of nonconsensual sex she described represented the 

only sexual encounters between them during the relevant timeframe that she could recall.

7

In her testimony, appellant indicated there might have been incidents of nonconsensual 

sex between her and John in April 2010 and May 2010, but she could not specifically recall any 

and explained she had been ill during this period and ultimately had to have surgery to remove 

her gallbladder in May. 
21.

In her testimony, appellant described various circumstances, such as visits from 

relatives, out-of-town trips, and illnesses she suffered, which occupied her during the 

months she claimed no sexual encounters with John occurred. Appellant also called 

various relatives as defense witnesses to corroborate the visits and trips she described in 

her testimony. 

Appellant further testified regarding circumstances that caused her to be fearful of 

John. According to her testimony, during their sexual encounters, John would threaten to 

kill people, including himself, Phil, and Kathy, if appellant would not have sex with him. 

Appellant personally witnessed John hit Kathy twice while they were arguing. During 

the first incident, which occurred at the Buena Oaks house, around September 2009, 

appellant saw John punch Kathy in the arm. During the second incident, which occurred 

at the Lakeside house sometime in the summer of 2010, appellant saw Kathy fall down 

crying after John hit her in the back with a walking stick. John also hit appellant at least 

once a month when he was in a rage. On another occasion, appellant learned that John 

had hit Kathy after appellant woke up one night and observed two police officers had 

come to the house and were speaking separately to John and Kathy. Afterwards, John 

and Kathy both talked to her about what happened. 

Appellant also described two incidents where John fired his nine-millimeter 

handgun at her. During one of the incidents, which occurred in the fall of 2010, John 

called appellant names and she slapped him. Not knowing John had a gun, appellant ran 

up the stairs. As she reached the top of the stairs and opened the bedroom door, she 

heard a shot and felt the bullet go by her hip. She then ran into the bedroom and locked 

the door behind her. 

The second incident occurred around October or November 2010. John was 

target-shooting in the backyard. Although appellant was trying to fix holes in the fence 

to prevent the dog from getting out, John would not stop shooting. Finally, John shot the 
22.

tree that was right next to appellant’s head. Appellant explained that she heard the bullet 

whiz by her head and then saw it in the tree, after which she ran crying into the house. 

Appellant further testified that she attempted to commit suicide once in 2010 and 

once in 2011. The first attempt was at the end of September 2010. Appellant explained 

she became manic and told Phil she could not live anymore. He took her to a medical 

clinic where she was assessed and held for three days. The second attempt occurred in 

September 2011, and Phil took her to the hospital. Appellant did not know how long she 

was in the hospital because the overdose she took caused her to blackout for part of the 

time. 

In her testimony, appellant also described her impoverished upbringing and long 

history of being subject to sexual abuse beginning at a young age. The sexual abuse was 

perpetrated by various different individuals in her lives, including, among others, an older 

cousin and her verbally abusive grandmother. When appellant was a teenager, her 

mother started letting young men, who had been kicked out or run away from troubled 

homes, stay indefinitely in the trailer where appellant’s family lived. When appellant 

was between the ages of 18 and 19, one of these men began to rape her on a nightly basis. 

As a result, appellant became pregnant and gave up the child for adoption. 

Sabrina C., who was a member of appellant’s church youth group when she was 

15 years old, testified that between 2010 and 2011, she noticed a change in appellant’s 

relationship with John in that appellant began to seem much more nervous around John. 

Sabrina estimated that she saw appellant try to avoid being around John a “[c]ouple 

dozen” times. 

Therapist Linda Barnard testified as an expert on posttraumatic stress disorder 

(PTSD) and rape trauma syndrome (RTS). Barnard assessed appellant and concluded 

that appellant suffered from PTSD and RTS. Barnard opined that appellant had been 

suffering from these conditions from the time she was a teenager. 
23.

In generally describing PTSD and RTS, Barnard testified that women raped by an 

acquaintance rarely report the rape and that it is not unusual for a victim of acquaintance 

rape to have an ongoing relationship with the perpetrator. A person who suffers from 

PTSD and RTS is vulnerable to being sexually assaulted as an adult. A person who has 

experienced trauma in the past can also easily get trapped into accommodating a new 

trauma, a phenomenon known as “accommodation trap.” 

The rebuttal

Kathy disputed some of the incidents or aspects of incidents described by 

appellant in her testimony. For example, Kathy denied that John ever hit her with a 

walking stick and testified she would have called the police if he did. Kathy 

acknowledged that there was a time that two police officers came to the Arbona house in 

uniform. However, she was sure appellant and Phil were not there at the time because 

she would never humiliate John by calling the police when other people were at the 

house. Kathy also claimed she called the police, not because she feared for her safety but 

because she was upset and distraught and feared for the safety of John, who had 

contracted the Swine Flu. 

John denied ever telling appellant he would kill his mother and paint her room 

with her blood. He admitted making threats on Phil’s life early in his relationship with 

appellant but explained the threats would come up during his arguments with appellant 

when he was angry about her being married. He never forced appellant to have sex with 

him, nor did he ever make threats to hurt himself or anyone else in order to force her to 

have sex with him.8 

 

8 On cross-examination, appellant admitted he threatened to hurt himself to appellant. He 

also threatened to kill his mother once while when they were living at the Lakeside house before

he went to Missouri. 
24.

DISCUSSION

On appeal, appellant contends that the trial court prejudicially erred by restricting 

Barnard’s testimony regarding her opinion that appellant suffered from PTSD and RTS at 

the time of the charged offenses. We agree the court’s restriction on Barnard’s testimony 

requires reversal of the judgment. 

We review the trial court’s decision to admit or exclude evidence—including 

expert opinion testimony—for abuse of discretion. (See People v. Cortes (2011) 192 

Cal.App.4th 873, 908 (Cortes).)

The relevant statutes concerning expert testimony about a defendant’s mental state 

are sections 25, 28, and 29. In section 25, the Legislature abolished the defense of 

diminished capacity. In section 28, subdivision (a), the Legislature specified that 

“[e]vidence of mental disease, mental defect, or mental disorder is admissible solely on 

the issue of whether or not the accused actually formed a required specific intent, 

premeditated, deliberated, or harbored malice aforethought, when a specific intent crime 

is charged.” In section 29, the Legislature restricted expert testimony as follows: “[A]ny 

expert testifying about a defendant’s mental illness, mental disorder, or mental defect 

shall not testify as to whether the defendant had or did not have the required mental 

states, which include, but are not limited to, purpose, intent, knowledge, or malice 

aforethought, for the crimes charged.” 

In Cortes, supra, 192 Cal.App.4th 873, the Court of Appeal reviewed the scope of 

expert testimony concerning a criminal defendant’s mental state. The court explained 

that a defendant “cannot put on an expert to testify that, because of his mental disorder or 

condition ..., he or she did not have the ability, or capacity, to form or harbor whatever 

mental state is a required element of the charged offense, such as intent to kill, or malice 

aforethought, or premeditation, or deliberation.” (Id. at p. 908.) However, an expert can 

testify that the defendant had a mental disorder or condition “as long as that testimony 

tends to show that the defendant did not in actuality” have the required mental state, and 
25.

as long as the expert does not “offer the opinion that the defendant actually did, or did 

not, harbor the specific intent at issue.” (Ibid.)

The defendant in Cortes was convicted of first degree murder after he stabbed the 

victim 13 times during a fight. The trial court barred the defendant from presenting 

expert opinion testimony that the defendant had likely “entered a dissociated state” prior 

to the stabbing. (Cortes, supra, 192 Cal.App.4th at p. 893.) The Court of Appeal held 

that the expert should have been able to give that opinion. (Id. at p. 911.) The court 

noted that the expert also could have testified that dissociation “can cause the person to 

act without conscious volition.” (Ibid.) Such testimony would only “have given the jury 

a basis to infer” that the defendant did not actually have the mental state required for first 

degree murder, and thus it would have fallen short of expressing an opinion that the 

defendant actually lacked the required mental state. (Id. at p. 912.) 

Similar issues were addressed in People v. Nunn (1996) 50 Cal.App.4th 1357, 

where the defendant was convicted of attempted murder after shooting at a group of men. 

There, the defendant was precluded from presenting a clinical psychologist’s opinion that 

due to inebriation and past traumatic experiences, the defendant had “fired his rifle 

impulsively.” (Id. at p. 1362.) On appeal, the Nunn court upheld the trial court’s ruling, 

explaining that “[a]n expert may not evade the restrictions of section 29 by couching an 

opinion in words which are or would be taken as synonyms for the mental states 

involved.” (Id. at p. 1364.)

The court in People v. Borderlon (2008) 162 Cal.App.4th 1311 (Borderlon) 

followed Nunn in holding that an expert could not be asked hypothetical questions that 

would be the “functional equivalent” of asking whether the defendant had a particular 

intent. (Borderlon, at p. 1327.) In Borderlon, the defendant was charged with 

committing a robbery shortly after being released from prison. He presented “expert 

testimony on ‘institutionalization,’ a dependence on life in an institutional setting that 

made living outside the institution akin to adjusting to a new culture” (id. at p. 1315), and 
26.

he proposed to ask the expert whether an individual in the defendant’s circumstances 

would have the intent to commit robbery. The court held that the defendant was properly 

precluded from asking such a hypothetical question, noting that the defendant “was 

simply planning by means of the hypothetical to do indirectly what he could not do 

directly under the statute, namely elicit an opinion from [the expert] regarding 

defendant’s specific intent ....” (Id. at p. 1327.)

Under the above authorities, Barnard could properly testify that appellant suffered 

PTSD and RTS at the time of the offenses. Such testimony was not tantamount to an 

opinion that appellant actually lacked the requisite mental state for any of the charged 

offenses. The court therefore abused its discretion in concluding otherwise and 

consequently restricting Barnard’s testimony to preclude her from testifying that 

appellant suffered from PTSD and RTS at the time of the offenses. 

The trial court’s restriction of Barnard’s testimony prejudiced appellant’s case. 

Appellant’s primary defense theory was that any sexual activity that occurred between 

her and John was nonconsensual and her participation was either physically coerced by 

him or she submitted to him out of fear based on his violent acts and threats aimed both at 

herself and others. The restriction prevented appellant from fully developing this defense 

by depriving the jury of a means to connect her PTSD and RTS diagnoses with her 

mental state and conduct at the time of the offenses.

In his opening statement, defense counsel indicated that Barnard’s testimony 

would be significant because the conditions of PTSD and RTS can explain why a victim 

might fail to report a rape or fail to “react to it like you would expect a person would in 

like or normal circumstances because of the background and because of the diagnosis.” 

The court’s restriction on Barnard’s testimony prevented defense counsel from inquiring, 

either specifically or hypothetically, into whether certain behaviors appellant exhibited at 

the time of the offenses could be viewed as consistent with her PTSD or RTS diagnoses, 
27.

which was a valid area of inquiry, as defense counsel pointed out in opposing the 

restriction.9 

Respondent urges that, because defense counsel managed to elicit testimony from 

Barnard that appellant had suffered PTSD and RTS since she was a teenager, which 

implicitly included the timeframe of the charged offenses, the court’s restriction on 

Barnard’s testimony did not prejudice appellant’s defense. However, as illustrated by the 

forgoing discussion, the court’s restriction did not simply preclude defense counsel from 

asking Barnard whether appellant suffered PTSD and RTS at the time of the offenses, it 

precluded relevant and valid inquiry into how these conditions could have affected 

appellant’s behavior and perceptions at that time and whether her behavior was consistent 

with these conditions. This restriction on Barnard’s testimony was significant because it 

limited appellant’s ability to counter the prosecution’s theory that appellant’s behavior 

during the time of the offenses, particularly as reported by John’s mother, was 

inconsistent with appellant’s claims that she feared John and was acting under duress 

when she engaged in sexual activity with him. 

During Kathy’s testimony describing occasions where she found appellant and 

John together in unusual or suspicious circumstances, the prosecutor frequently elicited 

testimony to the effect that appellant never appeared to be afraid or upset on those 

occasions. The court’s restriction on Barnard’s testimony prevented defense counsel 

from specifically asking the expert whether appellant’s reported lack of fear or negative 

emotions around John could be consistent with her PTSD and RTS diagnoses, and 

thereby limited the defense’s ability to provide the jury with a basis for inferring an 

alternative explanation for appellant’s behavior than the one offered by the prosecution. 

(See e.g., Cortes, supra, 192 Cal.App.24th at p. 913.)

 

9 The trial court, however, properly refused to allow defense counsel to ask the expert 

directly whether, due to her mental conditions, appellant was able to form “the specific intent to 

sexually arouse” required for the lewd act offenses. 
28.

The case essentially boiled down to a credibility contest between appellant and 

John. As mentioned above, the overwhelming majority of the offenses on which 

appellant was convicted allegedly occurred between August 1, 2009, and August 21, 

2010. This timeframe coincides closely with the timeframe covered by Kathy’s 

testimony regarding specific incidents she observed finding appellant and John in unusual 

or suspicious situations. The last few incidents she recalled in her testimony were 

specifically described as occurring in the late summer and early fall of 2010. Thus, 

Kathy’s testimony tended to corroborate John’s account of the existence of an 

affectionate relationship between himself and appellant during this time period. 

However, Kathy’s testimony did not provide similar corroboration for the offenses 

allegedly occurring between August 22, 2010, and March 31, 2012, and the jury was 

unable to reach a verdict on most of these offenses and found appellant not guilty of three 

of them.10

The verdicts suggest a strong possibility that Kathy’s testimony affected the jury’s 

assessment of the credibility of the respective accounts provided by John and appellant of 

their sexual encounters during the earlier timeframe. The trial court’s restriction of 

Barnard’s testimony prejudiced the defense’s ability to counter the unfavorable 

inferences raised by Kathy’s testimony and to provide an alternative explanation for 

reported behavior that, on its surface, appeared inconsistent with appellant’s claim that 

she feared John. Under the unique circumstances of this case, we conclude it is 

reasonably probable that the undue restriction on Barnard’s testimony precluded the jury 

from properly considering appellant’s PTSD and RTS diagnoses in relation to the mental 

state necessary to convict her of committing lewd acts against John, as well as the mental 

 

10 The only offenses on which appellant was convicted that were not specifically tied to one 

of the two timeframes discussed above were the sodomy and oral copulation charged in counts 

44 and 45, which allegedly occurred sometime between August 1, 2009, and March 1, 2012.
29.

state required for her defense of duress to all the charged offenses. (People v. Watson 

(1956) 46 Cal.2d 818, 836; see Cortes, supra, 192 Cal.App.4th at pp. 912–913.) 

DISPOSITION

The judgment is reversed.

_____________________

HILL, P.J.

WE CONCUR:

_____________________

GOMES, J.

_____________________

SMITH, J.