Filed 4/15/14 P. v. Sinohue CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

EUGENE SINOHUE,

Defendant and Appellant.

 B237301

 (Los Angeles County

 Super. Ct. No. LA063843)

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

Joseph A. Brandolino, Judge. Affirmed in part, vacated in part, and remanded. 

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

and Appellant.

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

General, Lance E. Winters, Assistant Attorney General, Paul M. Roadarmel, Jr. and Nima 

Razfar, Deputy Attorneys General, for Plaintiff and Respondent.
2

Defendant and appellant Eugene Sinohue appeals from the judgment entered 

following a jury trial that resulted in his convictions for multiple counts of committing a 

lewd act with a child under the age of 14 and continuous sexual abuse of a child. The 

trial court sentenced Sinohue to a term of 30 years to life in prison. 

Sinohue contends: the trial court erred by denying his Penal Code section 784.7 

motion, refusing to excuse 20 jurors for cause, erroneously admitting evidence, and 

instructing the jury with CALCRIM No. 1193; his counsel performed ineffectively; a 

detective committed “witness tampering” in violation of his due process rights; and his 

sentence on count 5, pursuant to the “One Strike” law, violates ex post facto principles. 

As the People concede, the latter contention has merit. We accordingly vacate the 

sentence imposed on count 5, and remand for resentencing. In all other respects, we 

affirm. 

FACTUAL AND PROCEDURAL BACKGROUND

1. Facts.

a. People’s evidence.

(i) Sexual molestation of J.K. 

Sinohue’s second cousin was J.K., who was approximately 12 years old in June 

1998. J.K. lived in San Mateo County, but he and his mother, Monique, and his younger 

sister would annually vacation in the Los Angeles area to visit family, including Sinohue. 

During a visit to Los Angeles in the summer of 1998, J.K. spent two weeks with Sinohue 

at Sinohue’s condominium. During that visit, Sinohue and J.K. showered together and 

slept in the same bed. Sinohue gave J.K. massages, which began as nonsexual events but 

soon became sexual. He showed J.K. pornography, fondled his penis, coached him on 

how to ejaculate, rubbed his penis against J.K.’s buttocks, and placed his penis in J.K.’s 

anus.

J.K. returned home to San Mateo County. Shortly thereafter, Sinohue moved 

nearby to live with J.K.’s grandmother. Sinohue began taking care of J.K. and his sister 

almost every day, picking them up from school and babysitting them into the evenings

while Monique attended graduate school. Between September 1998 and May 1999, 
3

Sinohue molested J.K. approximately once or twice a week. His actions included 

massaging J.K., masturbating J.K., masturbating in front of J.K., and touching J.K.’s 

buttocks with his penis. Sinohue also gave J.K. a stack of pornographic magazines to 

peruse and showed him pornographic movies. 

J.K. did not tell anyone about the molestation. He knew that Sinohue gave him 

things he would not otherwise have, including clothing and video games. Sinohue also 

took J.K. to lunch and dinners in restaurants. J.K. believed there was an understanding 

between them that Sinohue gave him such things as long as J.K. kept the molestation a 

secret.

Eventually Monique became concerned that Sinohue was a bad influence on J.K. 

In the spring of 1999 she told Sinohue she no longer wished him to babysit, because he 

was undermining her authority. She told Sinohue not to contact her children. Sinohue 

nonetheless kept in contact with J.K. via the internet. On one occasion, Sinohue flew his 

plane to San Mateo County, took J.K. miniature golfing in Lake Tahoe, and flew him 

back to San Mateo. In 2000, Monique caught J.K. on the computer instant messaging 

Sinohue. She threatened to obtain a restraining order against Sinohue and had her brother 

remove any software from the computer that would allow J.K. to contact Sinohue.

While working on the computer, Monique’s brother discovered an email from 

Sinohue to J.K. It stated: “ ‘[J.K.], I wish I could just ignore the situation you and I 

have. It would be the best way out, but I can’t. At the same time, I don’t want things to 

change. I like the relationship you and I have. I want it to continue and grow, but I can 

no longer pretend everything is exactly normal between us.’ ” Sinohue referenced “the 

things we do together,” and stated: “You seem to enjoy them most times, and you even 

start them sometimes, while, at other times, I can definitely tell you are uncomfortable. I

know I enjoy them, and what scares me the most about that is, I don’t know what it says 

about me. I know I am not gay.”

Upon reading the email, Monique asked J.K. if Sinohue had inappropriately 

touched him. J.K. denied it.
4

(ii) Molestation of D.L. between 2008 and 2009.

David L. and Lori L. had two sons, D.L. and Daniel. Lori’s sister, Lisa B., was 

dating Sinohue, and David L. and Lori L. treated him like a close family member. D.L.

and Daniel spent a great deal of time with Sinohue, visiting amusement parks, playing 

video and other games, and going on plane rides in Sinohue’s plane. Sinohue made D.L.

Halloween costumes, purchased him a cellular telephone and a flat screen television, and 

set up a Facebook account for him. When the boys spent the night at Sinohue’s 

residence, D.L. slept in his and Lisa’s bed. D.L. and Daniel also showered with Sinohue.

Sinohue began molesting D.L. in 2003 or 2004, when D.L. was six or seven years 

old. The molestation included sexual fondling, masturbation, oral copulation, and 

attempted anal penetration. Sinohue also showed D.L. pornography. He told D.L. these 

activities were “our secret” and that he would go to jail if D.L. told.

In the summer of 2004, Sinohue, Lisa, Lisa’s longtime friend Heather P., and 

Heather’s husband Michael P., went on a trip together to Cape Cod. Heather observed 

Sinohue’s unusual behavior with D.L., including showering naked with him. Sinohue 

constantly wished to spend time with the boys, rather than with other adults. In 2007, 

Heather reported Sinohue’s unusual behavior with the boys to the Department of Family 

Services. David L. and Lori L. indicated they felt nothing inappropriate had occurred and 

the matter was dropped.

In 2008 David L. and Lori L. began having marital problems. In 2009 they 

separated and began new relationships, David with B.T. and Lisa with Christopher B. 

B.T. and Christopher B. told them that Sinohue’s behavior with the children was unusual. 

Other family members, including Lori and Lisa’s mother, Barbara B., and Jodi B., D.L.’s 

godmother, also observed Sinohue’s behavior with the boys and were concerned by it.

In the summer of 2009, the boys accompanied Lisa and Sinohue on a trip to 

Hawaii, where Sinohue continued sexual abuse of D.L.

D.L. did not report the molestation because, although he felt the touching was 

“weird,” he loved Sinohue.
5

Eventually David L. and Lori L. began limiting Sinohue’s contact with their sons. 

However, Sinohue continued to contact D.L. in defiance of their directives. In October 

2009, David L. and Lori L. obtained a restraining order against Sinohue. Shortly 

thereafter, at a party at his house, he cried and told Jodi he could not live without the 

boys.

Increasingly suspicious, Jodi decided to talk with D.L. He admitted that Sinohue 

had orally copulated him. D.L. told Jodi he did not tell anyone because he was afraid and 

ashamed. D.L. repeated this information to Jodi’s husband, Carl. Jodi sought advice 

from an attorney friend and a psychologist, and then reported the matter to police.

Around the same time, J.K. and his family visited Sinohue in Los Angeles. As a 

result, J.K. became acquainted with D.L. and Daniel and noticed that Sinohue was 

behaving with D.L. as he had with him. J.K. told Michael to keep his kids away from 

Sinohue. A month later he told Michael that Sinohue had molested him, but asked 

Michael to keep the information secret. J.K. told his mother of Sinohue’s abuse after she 

observed Sinohue’s suspicious conduct with D.L. Monique made a report to authorities. 

(iii) Investigation.

Los Angeles Police Department (L.A.P.D.) Detective Angela Stewart investigated 

the case. D.L. initially described some inappropriate activities to her, and disclosed more 

in subsequent interviews. J.K. also told Stewart about Sinohue’s sexual abuse of him.

Pursuant to a warrant, police searched Sinohue’s residence and computers. That 

search disclosed a large quantity of pornographic images and videos on Sinohue’s 

computer. Police additionally found several emails addressed to D.L., in which he stated 

he had suffered by being separated from D.L., and loved him. Police also found a 

slightly different version of the email to J.K. that Monique’s brother had previously 

discovered. It stated that Sinohue wished J.K. was 16 and could make his own decisions. 

In a postscript, Sinohue stated, “You have no idea how badly I want to suck your cock.” 

Police additionally discovered a letter or diary entry entitled “ ‘Where It All Began,’ ”
6

that described Sinohue’s arousal after a two-year-old J.K. touched and put his mouth on 

Sinohue’s penis.1

(iv) Child Sexual Abuse Accommodation Syndrome expert’s testimony.

The People presented the testimony of an expert on Child Sexual Abuse 

Accommodation Syndrome (CSAAS). 

b. Defense evidence.

Sinohue testified on his own behalf. He denied showing J.K. or D.L. pornography

or inappropriately touching them. He never sent the email to J.K., and the “where it all 

began” letter was his attempt to work through his restrictive upbringing. He had refused 

J.K.’s request to recommend him for a job in the movie industry.

Lisa testified that she had dated Sinohue for eight years before becoming engaged 

to him. She and Sinohue acted as D.L. and Daniel’s primary caretakers, and Sinohue was 

like their father. She denied observing any molestation.

The defense, like the People, presented the testimony of an expert on CSAAS. 

2. Procedure.

Trial was by jury. Sinohue was convicted of three counts of committing a lewd 

act upon a child under the age of 14 (Pen. Code, § 288, subd. (a))2and two counts of 

continuous sexual abuse of a child under 14 (§ 288.5, subd. (a)). The jury further found 

that Sinohue had substantial sexual contact with the victims in all counts (§ 1203.066, 

subd. (a)(8)) and found true a multiple victim allegation (§ 667.61). As to the offenses 

against J.K. (counts 3, 4, and 5), the jury found Sinohue used obscene matter or matter 

depicting sexual conduct in commission of the offenses (§ 1203.066, subd. (a)(9)), and 

the offenses were committed when J.K. was under 18 and prosecution commenced prior 

to his 28th birthday (§ 801.1, subd. (a)). The trial court denied Sinohue’s motion for a 

new trial and sentenced him to 30 years to life in prison. It imposed a restitution fine, a 

 

1

The content of this letter is discussed in more detail, post.

2 All further undesignated statutory references are to the Penal Code.
7

suspended parole restitution fine, a court security fee, a criminal conviction assessment, 

and a sex offender fine. Sinohue appeals.

DISCUSSION

1. Trial of count 5 in Los Angeles County did not violate section 784.7 or 

Sinohue’s state or federal vicinage rights. 

Sinohue was charged in counts 3 and 4 with commission of a lewd act upon J.K.

(§ 288, subd. (a)) occurring in Los Angeles County in 1998. He was charged in count 5 

with the continuous sexual abuse of J.K. (§ 288.5, subd. (a)) occurring in San Mateo 

County between September 1, 1998 and June 30, 1999. Sinohue complains that trial of 

count 5 in Los Angeles County, rather than San Mateo County, violated section 784.7 

and his constitutional vicinage rights, as well as his rights to due process and a fair trial. 

These contentions lack merit.

a. Applicable legal principles.

Section 777 provides the general rule for venue in criminal cases: when a crime is 

committed in a particular county, venue lies in that county.3(People v. Aleem (2006) 144 

Cal.App.4th 1155, 1157; People v. Federico (2011) 191 Cal.App.4th 1418, 1425.) 

Section 784.7 provides an exception to this general rule by allowing prosecution of 

specified sex and domestic violence offenses in any county where any of the offenses 

occurred. (People v. Delgado (2010) 181 Cal.App.4th 839, 845-856; People v. Nguyen 

(2010) 184 Cal.App.4th 1096, 1107-1108.) Section 784.7 provides in pertinent part: 

“(a) When more than one violation of [enumerated offenses, including sections 288 and 

288.5] occurs in more than one jurisdictional territory, the jurisdiction of any of those 

offenses, and for any offenses properly joinable with that offense, is in any jurisdiction 

where at least one of the offenses occurred, subject to a hearing, pursuant to Section 954, 

within the jurisdiction of the proposed trial. At the Section 954 hearing, the prosecution 

 

3

Section 777 provides in pertinent part: “except as otherwise provided by law the 

jurisdiction of every public offense is in any competent court within the jurisdictional 

territory of which it is committed.”
8

shall present evidence in writing that all district attorneys in counties with jurisdiction of 

the offenses agree to the venue. Charged offenses from jurisdictions where there is no 

written agreement from the district attorney shall be returned to that jurisdiction.” (Italics 

added.)

Section 954 governs joinder of criminal offenses. It provides that an accusatory 

pleading may charge two or more different offenses that are connected together in their 

commission, or that are of the same class of crime, but the trial court may, in the interests 

of justice, order the charges tried separately.

b. Additional facts. 

Before trial, Sinohue filed a “Demand for a Hearing Pursuant to California Penal 

Code § 784.7,” asking that the People produce “proper documentation permitting 

prosecution here for crimes allegedly committed outside this jurisdiction.” In response 

the People presented a letter, dated January 28, 2011, addressed to Steve Cooley, the 

Los Angeles County District Attorney at the time, from the San Mateo District Attorney’s 

Office. That letter stated: “At your request, we have reviewed investigative materials 

from the Los Angeles Police Department pertaining to Eugene Sinohue and an alleged 

violation of Penal Code Section 288.5 committed by him in the County of San Mateo 

upon minor victim [J.K.] [¶] Pursuant to Penal Code Section 784.7, I hereby agree that 

any such offenses that may have been committed in San Mateo County by defendant 

Eugene Sinohue involving the above referenced victim may be prosecuted in 

Los Angeles County.” The letter was printed on the San Mateo District Attorney’s 

Office letterhead, captioned “Stephen M. Wagstaffe, District Attorney/Public 

Administrator” and “County of San Mateo.” The letterhead also bore the name of “Karen 

Guidotti, Chief Criminal Deputy.” The letter’s subject heading included Sinohue’s date 

of birth, his Los Angeles County Superior Court case number, and the L.A.P.D. incident 

report number. The signature block read: “STEPHEN M. WAGSTAFFE, DISTRICT 

ATTORNEY, By Karen M. Guidotti, Chief Deputy,” and bore Guidotti’s signature.

Defense counsel argued, inter alia, that the letter was insufficient to establish 

agreement between the district attorneys as required by section 784.7 because it was not 
9

personally signed by District Atty. Wagstaffe and did not bear District Atty. Cooley’s 

signature. The trial court concluded the letter was sufficient to satisfy the requirements 

of section 784.7. It appeared authentic, referenced Sinohue’s case number and birthdate, 

and provided sufficient evidence establishing that the district attorneys had agreed to trial 

of the charge in Los Angeles.4

c. The trial court did not err by finding the San Mateo District Attorney’s letter 

satisfied the evidentiary requirement of section 784.7.

Sinohue complains the prosecution “failed to present evidence in writing 

establishing that the District Attorneys of San Mateo and Los Angeles Counties had 

agreed to allow the crime [to] be prosecuted in Los Angeles County,” and therefore 

count 5 “should have been returned to San Mateo County” to be tried there. As he did 

below, Sinohue argues the letter presented by the People was insufficient to meet the 

requirements of section 784.7 because it was not personally signed by District Attys.

Wagstaffe and Cooley. In Sinohue’s view, section 784.7 “plainly states” that the 

prosecution must produce “a venue agreement” personally signed by the district attorneys 

of the affected jurisdictions. He posits that “district attorney,” as used in section 784.7, 

means “the elected District Attorney of each county, not his or her ‘office,’ not his or her 

assistant, or the chief deputy, or a deputy district attorney.” He contends there was no 

evidence Chief Deputy Guidotti “had the specific authority to bind the elected District 

 

4

The information initially alleged, incorrectly, that Sinohue committed the 

continuous sexual abuse of J.K. alleged in count 5 in Los Angeles County. Accordingly, 

at the hearing on Sinohue’s section 784.7 demand, the trial court found, as an alternative 

basis for its ruling, that section 784.7 did not apply because the conduct alleged in count 

5 was a single, continuous offense that occurred in both counties and could have been 

charged in either. The following day, the People moved to amend the information to 

allege that the conduct in count 5 occurred in San Mateo County. The prosecutor 

explained that the dates of the offenses in the Los Angeles counts did not overlap with 

those alleged in count 5. The trial court allowed the amendment, but reasoned that its 

ruling regarding venue remained correct given that the People had provided the letter 

evidencing the district attorneys’ agreement.
10

Attorney to a venue agreement,” and complains that the letter failed to show the 

Los Angeles venue was authorized by District Atty. Cooley.

We uphold a trial court’s determination on factual issues if supported by 

substantial evidence. (People v. Betts (2005) 34 Cal.4th 1039, 1055.) The plain language 

of section 784.7 does not impose the rigid, formalistic requirements Sinohue proposes. 

The statute provides only that “the prosecution shall present evidence in writing that all 

district attorneys in counties with jurisdiction of the offenses agree to the venue.” 

(§ 784.7, subd. (a).) It does not require a “venue agreement” personally signed by each 

district attorney; it simply requires “evidence in writing.” Evidence includes

“writings . . . offered to prove the existence or nonexistence of a fact.” (Evid. Code, 

§ 140.) Thus, any writing tending to prove the agreement, not just a formal venue 

agreement, may be adequate if found sufficient by the trial court. Delgado, cited by 

Sinohue, does not assist him. In Delgado, the district attorney filed a “ ‘Written Venue 

Agreement’ ” pursuant to section 784.7. (People v. Delgado, supra, 181 Cal.App.4th at 

p. 844.) Delgado did not hold such a formalized document was required in order to 

comply with section 784.7. Indeed, Delgado did not have occasion to discuss what type 

of evidence is sufficient to prove an agreement under section 784.7. Cases are not 

authority for propositions not considered. (People v. Brown (2012) 54 Cal.4th 314, 330; 

People v. Moore (2012) 211 Cal.App.4th 1179, 1189.)

Here, the letter produced by the People provided evidence both district attorneys 

agreed to the Los Angeles venue. The letter expressly stated that the San Mateo County 

District Attorney agreed to the Los Angeles venue. Sinohue’s theory that the district 

attorneys of each jurisdiction must personally sign documents evidencing agreement is 

untenable. Section 784.7 does not contain such a requirement. In support of his theory, 

Sinohue points out that a district attorney is an elected official, who is solely responsible 

for the charging function in criminal cases. (Gananian v. Wagstaffe (2011) 199 

Cal.App.4th 1532, 1542-1543 [district attorney of each county independently exercises 

discretionary powers in the initiation and conduct of criminal proceedings]; Gov. Code, 
11

§ 26500 [the district attorney “shall attend the courts, and within his or her discretion 

shall initiate and conduct on behalf of the people all prosecutions for public offenses”].)

These points are accurate, but provide no support for the notion that the district 

attorney must personally sign a document evidencing a venue agreement. A district 

attorney frequently acts through his or her deputies. Here, the letter was signed by 

District Atty. Wagstaffe’s chief deputy, under Wagstaffe’s name. Sinohue does not 

dispute that the letter was authentic or that Guidotti was Wagstaffe’s chief deputy. A 

signature is “presumed to be . . . authorized if it purports to be the signature, affixed in his 

official capacity, of: [¶] . . . [¶] (b) A public employee of any public entity in the United 

States.” (Evid. Code, § 1453.) Moreover, “[i]t is presumed that official duty has been 

regularly performed.” (Evid. Code, § 664.) Under these circumstances, Guidotti’s 

signature, affixed in her official capacity as Chief Deputy of the San Mateo District 

Attorney’s Office, on a letter stating District Atty. Wagstaffe agreed to the Los Angeles 

venue, furnished sufficient evidence of the San Mateo County District Attorney’s 

agreement.

Although the letter was not signed by District Atty. Cooley or his representative, 

his agreement can be reasonably and logically inferred from it. The letter states it was 

sent in response to District Atty. Cooley’s request to review the case. Prosecution on 

count 5 was commenced in Los Angeles County Superior Court. From these facts, the 

trial court could reasonably infer District Atty. Cooley agreed to the Los Angeles venue 

for count 5. Indeed, any other conclusion would be nonsensical. The purpose of section 

784.7 is to permit offenses occurring in different counties to be consolidated so that a 

victim may be spared having to testify in multiple trials in different counties. (People v. 

Nguyen, supra, 184 Cal.App.4th at p. 1113; People v. Betts, supra, 34 Cal.4th at p. 1059; 

Price v. Superior Court (2001) 25 Cal.4th 1046, 1055; People v. Aleem, supra, 144 

Cal.App.4th at p. 1159 & fn. 8.) Section 784.7 is to be construed liberally. (Price, at 

p. 1055.) The legislative purpose would not be furthered by imposing the evidentiary 

requirements suggested by Sinohue. The trial court correctly found the People presented 
12

sufficient written evidence to establish the district attorneys in the affected counties 

agreed to the Los Angeles venue for count 5.

d. Trial of count 5 in Los Angeles County did not violate Sinohue’s vicinage 

rights. 

Sinohue further argues that apart from the question of venue, trial of count 5 in 

Los Angeles County violated his vicinage rights under the federal and California 

Constitutions, that is, his right to have the charges against him decided by a jury drawn 

from San Mateo County, not Los Angeles County.

5 He is incorrect.

The Sixth Amendment guarantees the right to trial by a jury “of the State and 

district wherein the crime shall have been committed, which district shall have been 

previously ascertained by law.” (U.S. Const., 6th Amend.; People v. Delgado, supra, 

181 Cal.App.4th at p. 846.) However, our California Supreme Court has held that the 

Sixth Amendment’s vicinage clause is not applicable in a state criminal trial. “Because 

the history of the Fourteenth Amendment does not indicate an intent to incorporate the 

vicinage clause of the Sixth Amendment and vicinage today is not a fundamental aspect 

of the right to jury trial necessary to ensure a fair trial, . . . the vicinage clause is not 

applicable in a state criminal trial.” (Price v. Superior Court, supra, 25 Cal.4th at 

p. 1069; see also Delgado, at p. 846; People v. Nguyen, supra, 184 Cal.App.4th at 

p. 1109.) We, of course, are bound by Price (Auto Equity Sales, Inc. v. Superior Court 

(1962) 57 Cal.2d 450, 455; Delgado, at p. 846), and Sinohue’s Sixth Amendment claim 

therefore fails. 

Article I, section 16 of the California Constitution provides that trial by jury is an 

inviolate right, and has been construed as encompassing an implicit vicinage right. 

(Price v. Superior Court, supra, 25 Cal.4th at p. 1071.) In Price, our Supreme Court held 

that trial of offenses committed in different counties in a single proceeding pursuant to an 

 

5 Venue refers to the location where the trial is held; vicinage refers to the area from 

which the jury pool is drawn. (Price v. Superior Court, supra, 25 Cal.4th at p. 1054.) 
13

earlier version of section 784.7 did not violate a defendant’s state constitutional rights.6 

(Price, at p. 1050.) The court explained: “the right to a trial by a jury of the vicinage, as 

guaranteed by the California Constitution, is not violated by trial in a county having a 

reasonable relationship to the offense or to other crimes committed by the defendant 

against the same victim. . . . The Legislature’s power to designate the place for trial of a 

criminal offense is limited by the requirement that there be a reasonable relationship or 

nexus between the place designated for trial and the commission of the offense. 

Repeated abuse of the same child or spouse in more than one county creates that nexus.”

(Id. at p. 1075, italics added.) Thus, “Penal Code section 784.7 is constitutionally valid 

and does not violate petitioner’s right to trial by a jury of the vicinage.” (Price, at 

p. 1075.)

Here, the nexus between Los Angeles and San Mateo Counties was the one 

specifically identified as sufficient by Price: Sinohue repeatedly abused J.K. in both 

counties. He first molested J.K. when J.K.’s family was vacationing in Los Angeles; 

then, a few weeks after J.K. returned home, Sinohue followed and moved to a nearby 

community, taking on the role of J.K.’s frequent babysitter, where he continued sexually 

abusing the child. These circumstances clearly demonstrated the requisite reasonable 

relationship and nexus between the two venues. Accordingly, there was no violation of 

Sinohue’s rights under the California Constitution.

2. The trial court’s refusal to dismiss prospective jurors for cause or allow 

Sinohue additional peremptory challenges was not reversible error.

During voir dire, the trial court denied 20 of Sinohue’s requests to strike 

prospective jurors for cause. Sinohue subsequently exercised peremptory challenges 

against 19 of these jurors. After exhausting his remaining peremptory challenges, he 

sought additional peremptory challenges, but the trial court denied his request. Sinohue 

 

6 At the time Price was decided, section 784.7 required that the defendant and the 

victim be the same for all offenses in order for the crimes to be joined. (People v. 

Nguyen, supra, 184 Cal.App.4th at p. 1108.) In 2002 the Legislature amended section 

784.7 to delete the same victim requirement. (Nguyen, at p. 1108.) Here, of course, J.K.

was the victim in counts 3, 4, and 5.
14

contends the trial court’s rulings were an abuse of discretion and a violation of his right to 

trial by jury, entitling him to reversal of his convictions. We disagree. 

a. Applicable legal principles.

To help ensure a criminal defendant’s constitutional right to trial by an unbiased, 

impartial jury (U.S. Const., 6th & 14th Amends.; Cal. Const., art. I, § 16), a juror may be 

challenged for cause for implied bias or for actual bias. (Code Civ. Proc., § 227; People 

v. Black (Mar. 27, 2014, S206928) ___ Cal.4th ___ [2014 Cal. LEXIS 2103].) 

“ ‘ “Actual bias” in this context is defined as “the existence of a state of mind on the part 

of the juror in reference to the case, or to any of the parties, which will prevent the juror 

from acting with entire impartiality, and without prejudice to the substantial rights of any 

party.” [Citations.]’ ” (People v. Ayala (2000) 24 Cal.4th 243, 271-272; Code Civ. 

Proc., § 225, subd. (b)(1)(C); see also People v. Barnwell (2007) 41 Cal.4th 1038, 1051.)

It is well settled that “ ‘ “ [a]ssessing the qualifications of jurors challenged for 

cause is a matter falling within the broad discretion of the trial court. [Citation.] The 

trial court must determine whether the prospective juror will be ‘unable to faithfully and 

impartially apply the law in the case.’ [Citation.] A juror will often give conflicting or 

confusing answers regarding his or her impartiality or capacity to serve, and the trial 

court must weigh the juror’s responses in deciding whether to remove the juror for cause.

The trial court’s resolution of these factual matters is binding on the appellate court if 

supported by substantial evidence. [Citation.]” ’ ” (People v. Gonzales (2012) 54 Cal.4th 

1234, 1285; People v. Boyette (2002) 29 Cal.4th 381, 416; People v. Hillhouse (2002) 

27 Cal.4th 469, 488; People v. Kaurish (1990) 52 Cal.3d 648, 675.)

Deference to the trial court is appropriate “ ‘because it is in a position to assess the 

demeanor of the venire, and of the individuals who compose it, a factor of critical 

importance in assessing the attitude and qualifications of potential jurors.’ [Citations.]” 

(People v. Gonzales, supra, 54 Cal.4th at p. 1285.) “ ‘[A]ppellate courts recognize that a 

trial judge who observes and speaks with a prospective juror and hears that person’s 

responses (noting, among other things, the person’s tone of voice, apparent level of 

confidence, and demeanor), gleans valuable information that simply does not appear on 
15

the record.’ ” (People v. Avila (2006) 38 Cal.4th 491, 529; People v. Stewart (2004) 

33 Cal.4th 425, 451; People v. Fuiava (2012) 53 Cal.4th 622, 656-657.) “ ‘[T]he manner 

of the juror while testifying is oftentimes more indicative of the real character of his [or 

her] opinion than his [or her] words. That is seen below, but cannot always be spread 

upon the record. Care should, therefore, be taken in the reviewing court not to reverse 

the ruling below upon such a question of fact, except in a clear case.’ ” (Wainwright v. 

Witt (1985) 469 U.S. 412, 428, fn. 9.)

Our Supreme Court has recently clarified the proper standard for determining 

whether a trial court’s erroneous denial of a challenge for cause warrants reversal. In 

People v. Black, supra, __ Cal.4th __ [2014 Cal. Lexis. 2103], the court explained: “We 

conclude that [People v. Yeoman (2003) 31 Cal.4th 93] sets forth the correct standard for 

a defendant to demonstrate prejudice after properly preserving a claim that the defense 

used peremptory challenges to cure a trial court’s erroneous denial of one or more forcause challenges. A defendant must show that the error affected his right to a fair trial 

and impartial jury. When a defendant uses peremptory challenges to excuse prospective 

jurors who should have been removed for cause, a defendant’s right to an impartial jury is 

affected only when he exhausts his peremptory challenges and an incompetent juror, 

meaning a juror who should have been removed for cause, sits on the jury that decides 

the case.” Black rejected an alternate test articulated in dicta in People v. Bittaker (1989) 

48 Cal.3d 1046. (People v. Black, supra, at p. __ [2014 Cal. LEXIS 2103].)

b. Application here. 

Under the Yeoman test, Sinohue must identify an incompetent sitting juror who 

was challenged for cause. (People v. Bonilla (2007) 41 Cal.4th 313, 340. ) This he has 

failed to do. Sinohue argues that two sitting jurors, Nos. 3396 and 1160, should have 

been excused for cause and were biased against him, based on their statements during 

voir dire. Further, he argues that although Juror No. 1744’s responses did not give rise to 

a challenge for cause, he would have exercised a peremptory challenge against her had he 

had any peremptory challenges left.
16

Because Juror No. 1744’s responses did not give rise to a challenge for cause, 

Sinohue cannot show she was biased or lacked impartiality. Accordingly, he has not 

shown she was biased or incompetent. 

The responses of the other two sitting jurors Sinohue identifies do not demonstrate

incompetence either. Juror No. 3396’s niece was “married to a child molester” who had 

victimized “the nieces and nephews.” He was convicted and imprisoned. Juror No. 3396 

repeatedly and unequivocally stated that she would be fair, and that nothing about the 

other case would affect her ability to be fair in the instant case. Juror No. 1160 had been 

sexually molested by her mother’s ex-husband. She became teary-eyed and emotional 

when answering questions. She acknowledged that the trial would “probably” bring back 

memories and affect her ability to concentrate. However, she stated she would “be open 

to hear both sides and judge from that”; her verdict would depend on “the witnesses and 

everything, that I have to hear everything in order for me to be convinced”; and if she did 

not believe the witnesses, “it’s not guilty”; and she would be fair and listen to all the 

evidence. She confirmed she would not hold a failure to testify against Sinohue. The 

trial court concluded the jurors would be fair.

The trial court’s rulings in regard to Juror Nos. 3396 and 1160 were not an abuse 

of discretion. The record contains substantial evidence supporting its conclusions, and its 

ruling is therefore binding on this court. Sinohue’s assumption that a prospective juror 

who has been a victim of sexual abuse must always be excused for cause lacks merit. 

(Cf. People v. Lloyd (1992) 4 Cal.App.4th 724, 735-735 [juror could be fair and impartial 

despite fact she had recently been a victim of auto theft, the charged crime].) Whether 

any particular juror could be fair and impartial despite their personal experiences with a 

similar crime was a question for the trial court, to be decided on a case-by-case basis.

Accordingly, Sinohue has not demonstrated prejudice under the Yeoman test.

c. Denial of request for additional peremptory challenges. 

Sinohue further argues that the trial court erred by denying his request for 

additional peremptory challenges, made after he exhausted his allotted 20 challenges, in 

light of the unusually large number of persons in the venire who had been victims of 
17

sexual molestation. This contention lacks merit. Under state law, Sinohue was entitled 

to the 20 peremptory challenges he received. (Code Civ. Proc., § 231, subd. (a); People 

v. Blair (2005) 36 Cal.4th 686, 743-744, disapproved on another point in People v. Black, 

supra, __ Cal.4th at p. __.) “Defendant received and exercised the 20 peremptory 

challenges allotted to him under state law. [Citation.] State law required him to use 

those peremptories to cure any erroneous denials of challenges for cause. [Citation.] 

Defendant received all that was due him under state law.” (Blair, at pp. 743-744.) To the 

extent he intends to raise a federal constitutional claim, his argument likewise fails. As 

explained in People v. Clark (2011) 52 Cal.4th 856: “Defendant . . . asserts that because 

the court’s rulings compelled him to use his peremptory challenges to excuse jurors who

should have been excused for cause, he was deprived of his federal constitutional right to 

a state-created liberty interest in 20 peremptory challenges. [Citation.] We have 

repeatedly rejected the identical argument. [Citations.] Defendant provides no

persuasive basis for revisiting our prior pronouncements here.” (Id. at p. 902.) 

3. Contentions related to the “where it all began” letter.

Sinohue argues the “where it all began” letter found on his computer should have 

been excluded because it was irrelevant and highly prejudicial, and his attorney provided 

ineffective assistance by failing to call an expert witness to refute or ameliorate the 

letter’s impact. We disagree. 

a. The letter was properly admitted.

(i) Additional facts. 

As described ante, when Sinohue’s computers were searched pursuant to a warrant 

investigators discovered a letter, akin to a diary entry, written by Sinohue and entitled 

“Where it All Began.” The letter described Sinohue’s strict religious upbringing, 

including prohibitions on dating or sexual activity outside marriage; the limits on social 

interactions and activities imposed by his religion during his childhood; his accidental 

discovery of a pornographic magazine and his frequent masturbation starting at the age of 

11; and a sexual encounter that J.K. purportedly initiated with Sinohue when J.K. was 

2 years old and Sinohue was 14. As to the latter incident, the letter related that in 1986 
18

Sinohue accompanied Monique and her family on a trip to Yosemite. Monique told 

Sinohue that a neighbor child had touched J.K. in a questionable manner and J.K. was 

“now fixated on” penises. Consequently, during the trip, J.K. repeatedly asked to see 

Sinohue’s penis, but Sinohue declined. While Sinohue was babysitting J.K., J.K. again 

asked to see Sinohue’s penis. When Sinohue complied and pulled down his pants, J.K., 

out of curiosity, grabbed Sinohue’s penis and put it in his mouth. Sinohue did not 

attempt to stop J.K. or pull away. The letter detailed Sinohue’s high level of sexual 

arousal as a result of J.K.’s activity.

Sinohue moved in limine to exclude evidence of the letter on the ground its 

probative value was outweighed by its prejudicial effect. He contended the letter 

addressed conduct that occurred years before, when he was a minor, and was not illegal. 

The trial court denied the motion, holding the document’s “relevance absolutely 

outweighs any potential for undue prejudice.” The court found the letter was directly and 

“incredibly relevant” in that it demonstrated Sinohue’s relationship with the victim and 

his “lust or feelings or . . . unusual attraction to” J.K.7

The letter was subsequently read into evidence at trial. J.K. testified that he had 

no memory of the incident and had never seen the letter. Sinohue testified that he wrote 

the letter in 2006 or 2007, but never sent it or showed it to anyone. 

(ii) Discussion.

Sinohue contends admission of the letter was an abuse of discretion and violated 

his rights to due process and a fair trial. Only relevant evidence is admissible. (Evid. 

Code, § 350.) Evidence is relevant if it has a tendency in reason to prove or disprove any 

disputed fact that is of consequence to the determination of the action. (Evid. Code, 

§ 210; People v. Lopez (2013) 56 Cal.4th 1028, 1058; People v. Mills (2010) 48 Cal.4th 

 

7 Although the trial court and parties at various times discussed whether the letter 

was admissible under Evidence Code section 1108 as evidence of a prior sexual offense, 

ultimately the trial court and prosecutor concluded it was “not really 1108 evidence” but 

was relevant for “many other reasons than 1108.” Defense counsel and the prosecutor 

agreed that an instruction regarding Evidence Code section 1108 should not be given.
19

158, 193.) Under Evidence Code section 352, a trial court may exclude otherwise 

relevant evidence when its probative value is substantially outweighed by concerns of 

undue prejudice, confusion, or consumption of time. (Lopez, at p. 1058; People v. Riggs

(2008) 44 Cal.4th 248, 290.) A trial court has broad discretion in determining whether 

evidence is relevant and whether Evidence Code section 352 precludes its admission. 

(Lopez, at pp. 1058-1059; People v. Cowan (2010) 50 Cal.4th 401, 482; Mills, at p. 195.) 

“ ‘The prejudice which exclusion of evidence under Evidence Code section 352 is 

designed to avoid is not the prejudice or damage to a defense that naturally flows from 

relevant, highly probative evidence. . . . “The ‘prejudice’ referred to in Evidence Code 

section 352 applies to evidence which uniquely tends to evoke an emotional bias against 

the defendant as an individual and which has very little effect on the issues. In applying 

section 352, ‘prejudicial’ is not synonymous with ‘damaging.’ ” [Citation.]’ [Citation.]” 

(Lopez, at p. 1059; People v. Scott (2011) 52 Cal.4th 452, 491.)

We apply the abuse of discretion standard to a trial court’s rulings on the 

admissibility of evidence, including those turning on the relevance or probative value of 

the evidence in question. (People v. Fuiava, supra, 53 Cal.4th at pp. 667-668; People v. 

Scott, supra, 52 Cal.4th at p. 491; People v. Hamilton (2009) 45 Cal.4th 863, 930.) The 

admission of relevant evidence will not offend due process unless the evidence is so 

prejudicial as to render the defendant’s trial fundamentally unfair. (Hamilton, at p. 930; 

People v. Partida (2005) 37 Cal.4th 428, 439.)

The trial court did not abuse its discretion by concluding the “where it all began”

letter was highly probative. To prove a violation of section 288, subdivision (a), as 

alleged in counts 3 and 4, the People were required to prove Sinohue committed a lewd 

act upon J.K. “with the intent of arousing, appealing to, or gratifying” his or J.K.’s “lust, 

passions, or sexual desires.” (§ 288, subd. (a).) Sinohue described in detail in the “where 

it all began” letter how he became highly sexually aroused by two-year-old J.K.’s actions. 

Among other things, Sinohue wrote that the sensation was “incredible,” that his “brain 

was on fire with the stimulation,” and he was the “most turned on in [his] history.” These 

admissions by Sinohue were strong evidence that he was sexually excited by sexual 
20

contact with young boys, and therefore tended to show he committed the charged conduct 

with the intent of arousing his sexual passions. Moreover, the jury could reasonably infer

from the title Sinohue gave his letter––“ ‘Where It All Began’ ”––that Sinohue continued

an abusive sexual relationship with J.K. sometime after the Yosemite incident. 

Sinohue contends any reasonable juror would have been “sickened” and 

“disgusted” by his graphic description of the Yosemite incident and his resultant sexual 

arousal, and the evidence would “certainly cloud the objectivity of even the most 

dispassionate juror.” However, prejudice, as contemplated by Evidence Code section 

352, “ ‘ “is not so sweeping as to include any evidence the opponent finds 

inconvenient.” ’ ” (People v. Scott, supra, 52 Cal.4th at p. 490.) Evidence is not 

prejudicial under Evidence Code section 352 unless it evokes an emotional bias against 

the defendant and has very little effect on the issues. (People v. Lopez, supra, 56 Cal.4th 

at p. 1059.) As we have explained, the letter was highly probative. Moreover, it was not 

substantially more inflammatory than J.K.’s testimony at trial, which included details of 

Sinohue’s continuing molestations including masturbation, oral copulation, and attempted 

anal penetration. (See People v. Waples (2000) 79 Cal.App.4th 1389, 1395.)8

b. Sinohue has failed to establish ineffective assistance of counsel.

Sinohue next contends that once the trial court ruled the “where it all began” letter 

was admissible, defense counsel should have presented the testimony of an expert 

witness on child sexuality to rebut or ameliorate the People’s theory that the letter 

evidenced the intent element of the offenses. Citing a law review article, he avers that 

studies have shown childhood sexual play is common and is not evidence a child is 

predisposed to commit sex crimes or become a pedophile. (See Garfinkle, Coming of 

Age in America: The Misapplication of Sex-Offender Registration and CommunityNotification Laws to Juveniles (2003) 91 Cal. L.Rev. 163, 185-186.) He urges that 

 

8

In light of our conclusion, we need not reach the People’s arguments that Sinohue 

has waived any due process claim, and that any error in admission of the letter was 

harmless.
21

counsel’s failure to present such expert testimony resulted in the abandonment of a viable 

defense.

“To establish ineffective assistance of counsel, a defendant must show that 

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

prevailing professional norms, and (2) counsel’s deficient performance was prejudicial, 

i.e., there is a reasonable probability that, but for counsel’s failings, the result would have 

been more favorable to the defendant. [Citation.] ‘A reasonable probability is a 

probability sufficient to undermine confidence in the outcome.’ [Citation.]” (People v. 

Scott (1997) 15 Cal.4th 1188, 1211-1212; Strickland v. Washington (1984) 466 U.S. 668, 

694; People v. Homick (2012) 55 Cal.4th 816, 893, fn. 44.) If the defendant makes an 

insufficient showing on either component, the claim fails. (People v. Lopez (2008) 42 

Cal.4th 960, 966.) “If the record on appeal sheds no light on why counsel acted or failed 

to act in the manner challenged, an appellate claim of ineffective assistance of counsel 

must be rejected unless counsel was asked for an explanation and failed to provide one, 

or there simply could be no satisfactory explanation. [Citation.] Otherwise, the claim is 

more appropriately raised in a petition for writ of habeas corpus.” (People v. Carter

(2003) 30 Cal.4th 1166, 1211; Lopez, at p. 966; see People v. Mendoza Tello (1997) 15 

Cal.4th 264, 266-267.) We presume counsel’s performance fell within the wide range of 

professional competence and that counsel’s actions and inactions can be explained as a 

matter of sound trial strategy. (Carter, at p. 1211; People v. Jones (2003) 29 Cal.4th 

1229, 1254.) 

Sinohue has not met this burden. He has not shown that defense counsel was 

asked for an explanation but failed to provide one. Whether to call particular witnesses is 

a matter of trial tactics (People v. Mitcham (1992) 1 Cal.4th 1027, 1059) and nothing in 

the record before us suggests counsel’s decision to forgo retaining an expert on childhood 

sexuality was unreasonable. Indeed, the record before us does not establish that 

favorable or exculpatory expert testimony regarding the “where it all began” letter was 

available. For all we know, counsel investigated the availability of expert testimony on 

the point and determined it was unfavorable or equivocal. Counsel may have made a 
22

tactical choice to avoid calling an expert for fear the People would call a rebuttal expert, 

resulting in overemphasis on the letter or additional unfavorable testimony. We are not at 

liberty to “engage in the ‘ “perilous process” ’ of second-guessing counsel’s trial 

strategy.” (People v. Frye (1998) 18 Cal.4th 894, 979, disapproved on another ground in 

People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) Sinohue’s ineffective assistance 

claim lacks merit.

4. Contentions related to the admission of CSAAS evidence.

a. Additional facts. 

Prior to trial Sinohue filed a motion in limine to exclude, inter alia, the testimony 

of “any . . . non-qualified expert witness, relative to any expert opinions that . . . there is 

the presence of a child abuse accommodation syndrome . . . .” At the hearing on the 

motion, defense counsel stated that he had just received from the prosecutor information 

“about an expert witness. I certainly, upon proper qualification for that witness, clearly 

would have no objection.” Defense counsel indicated his objection was to police officer 

or civilian witnesses giving expert opinions.

At trial Jayme Bernfeld, a clinical psychologist specializing in the treatment of 

sexually abused children, testified for the prosecution as an expert on CSAAS. The 

defense did not object.

Her testimony was as follows. CSAAS is a model designed to help explain why 

sexually abused children often do not resist and delay reporting, or do not disclose, the 

abuse. CSAAS is not a diagnostic tool and is not meant to determine whether or not a 

child has been abused. CSAAS described five components: secrecy; helplessness; 

accommodation; delayed disclosure; and retraction. The first three components describe 

the dynamic within which child sexual abuse occurs, and are generally applicable to all 

child abuse victims; the fourth stage applies to a majority of victims. Close to 50 percent 

of molested children never disclose the abuse, and only 10 to 15 percent disclose within 

the first year after it occurs. Those who do disclose tend to do so in a piecemeal fashion, 

“testing the waters” to see if the recipient of the information is positive and supportive. 

The fifth component, retraction, is not common and is most likely to occur where the 
23

child lacks family support and legal action is involved. Children do not often make 

things up, especially something that is embarrassing and might get them in trouble. It is 

common for the accommodation portion of the model to continue even after the abuse 

stops. If a child receives monetary gifts from the abuser, he or she is less likely to 

disclose the abuse. During cross-examination, Dr. Bernfeld acknowledged that a false 

allegation of molestation could “become increased” in the mind of a very young child if 

“everybody in their world was talking about it as if it were true.” It was possible that an 

adult could make a false claim of molestation in hopes of financial gain. The particulars 

of the CSAAS model are as consistent with false testimony as with true testimony. 

Dr. Bernfeld did not “know anything about the facts” of the instant case.

In rebuttal, CSAAS expert Annette Ermshar, a clinical and forensic psychologist, 

testified for the defense. Dr. Ermshar, like Dr. Bernfeld, testified regarding the five 

stages in the CSAAS model. In her view, all five stages are present in all children, in that 

all children have kept secrets, felt powerless, accommodated adults, and so on. 

Children’s memories are “very suggestible,” so if parents or authority figures say or do 

something to show they do not like another person, a child will agree with the parent. 

Children fabricate and make up stories, and sometimes have a distorted memory of how 

events occurred, “not because they’re lying” but because “memory is so malleable and 

it’s so imprecise.” If a child is asked about an event repeatedly, he or she may come to 

believe the event actually happened. Children sometimes accommodate by going along 

with the majority or the group. Children may retract a story because it was untrue, or 

because it was true and they are trying to protect another person. Approximately 

40 percent of children report abuse within 48 hours, and most report within two years. A 

longer delay is unusual. A delay in reporting may be due to the fact there was no abuse, 

but “through various forms of suggestibility, stories get created or exacerbated, and then 

they’re going to report some created or exacerbated story.” If it is uncertain whether 

abuse occurred, CSAAS is not appropriate because it is only intended as a clinical tool to 

explain the behavior of children who have suffered known abuse. CSAAS has not been 
24

generally accepted as a scientific principle in the scientific community. CSAAS is a 

useful tool in explaining the behavior of child sexual abuse victims.

b. Admission of the CSAAS evidence.

Sinohue contends his convictions must be reversed because Dr. Bernfeld’s 

testimony regarding CSAAS was irrelevant and unduly prejudicial, and its admission 

rendered his trial fundamentally unfair, thereby violating his due process rights. We 

disagree.

(i) Forfeiture. 

Preliminarily, we agree with the People that Sinohue has forfeited any challenge to

Bernfeld’s testimony because he did not object to it below. Although he moved to 

exclude expert testimony by police officer or civilian witnesses, he never objected to 

Dr. Bernfeld’s testimony. To the contrary, he told the court he would not object to the 

People’s CSAAS expert if properly qualified, and he never raised an objection to 

Dr. Bernfeld’s qualifications. Indeed, Sinohue presented the testimony of his own 

CSAAS expert. Under these circumstances any challenge to Bernfeld’s testimony has 

been forfeited. (Evid. Code, § 353, subd. (a); People v. Lindberg (2008) 45 Cal.4th 1, 48; 

People v. Combs (2004) 34 Cal.4th 821, 848; People v. Valdez (1997) 58 Cal.App.4th 

494, 505.) 

(ii) Admission of Dr. Bernfeld’s testimony was not an abuse of discretion and did 

not violate Sinohue’s due process rights. 

In any event, Sinohue’s claim fails on the merits. A trial court has broad 

discretion in deciding whether to admit or exclude expert testimony, and its decision will 

not be reversed on appeal unless a manifest abuse of discretion is shown. (People v. 

McDowell (2012) 54 Cal.4th 395, 426; People v. McAlpin (1991) 53 Cal.3d 1289, 1299; 

People v. Sandoval (2008) 164 Cal.App.4th 994, 1001.) Expert testimony is admissible 

on any subject sufficiently beyond common experience such that the opinion of an expert 

would assist the trier of fact. (Evid. Code, § 801, subd. (a); People v. Brown (2004) 33 

Cal.4th 892, 905.)
25

It has long been held that expert testimony regarding CSAAS is admissible for 

limited purposes in child sexual abuse trials. “[E]xpert testimony on the common 

reactions of child molestation victims is not admissible to prove that the complaining 

witness has in fact been sexually abused; it is admissible to rehabilitate such witness’s 

credibility when the defendant suggests that the child’s conduct after the incident––e.g., a 

delay in reporting––is inconsistent with his or her testimony claiming molestation.”

(People v. McAlpin, supra, 53 Cal.3d at pp. 1300-1301; People v. Sandoval, supra, 164 

Cal.App.4th at p. 1001; In re S.C. (2006) 138 Cal.App.4th 396, 418; People v. Patino 

(1994) 26 Cal.App.4th 1737, 1744; People v. Bowker (1988) 203 Cal.App.3d 385, 393-

394; see also People v. Brown, supra, 33 Cal.4th at p. 906.) “ ‘Such expert testimony is 

needed to disabuse jurors of commonly held misconceptions about child sexual abuse, 

and to explain the emotional antecedents of abused children’s seemingly self-impeaching 

behavior. . . . The great majority of courts approve such expert rebuttal testimony.’

[Citation.]” (McAlpin, at p. 1301.) Admission of CSAAS testimony does not, by itself, 

violate a defendant’s due process rights. (Patino, at p. 1747.) 

Sinohue complains that CSAAS is “nothing more than voodoo science” and points 

to several out-of-state cases that have criticized or disallowed testimony about it. His 

argument is contrary to controlling California authority. In McAlpin, our Supreme Court 

relied on earlier California appellate decisions allowing CSAAS testimony, and adopted 

their reasoning in finding expert testimony regarding parental reactions to disclosure of 

abuse admissible. (People v. McAlpin, supra, 53 Cal.3d at pp. 1300-1302.) 

Subsequently, in Brown the court upheld the use of expert testimony on battered 

women’s syndrome, again relying on the rationale supporting the admissibility of 

CSAAS evidence. (People v. Brown, supra, 33 Cal.4th at pp. 905-908.) The court has 

stated that CSAAS testimony may be relevant and useful to the jury in child abuse cases. 

(McAlpin, at pp. 1300-1301; Brown, at p. 906.) We are bound by the court’s reasoning in 

these cases. (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455; see 

also, e.g., People v. Perez (2010) 182 Cal.App.4th 231, 245; In re S.C., supra, 138 

Cal.App.4th at p. 418; People v. Wells (2004) 118 Cal.App.4th 179, 188.)
26

California courts have rejected Sinohue’s arguments that CSAAS testimony 

improperly bolsters a victim’s credibility. (See People v. Housley (1992) 6 Cal.App.4th 

947, 954-956; People v. Patino, supra, 26 Cal.App.4th at p. 1746.) Contrary to his 

assertions, Bernfeld’s testimony did not make it impossible for him to challenge the 

victims’ credibility or exclude the possibility the abuse was fabricated. Bernfeld testified 

she knew nothing about the case. It would have been clear to jurors that she was 

explaining behavior common to sexual abuse victims, rather than offering an opinion on 

the credibility of the witnesses or what actually happened in this case. (See People v. 

Housley, supra, 6 Cal.App.4th at p. 954.) Her testimony was properly limited to 

discussion of the syndrome’s characteristics.9 Moreover, Bernfeld made clear that the 

CSAAS model is not a diagnostic tool, is not meant to determine whether or not a child 

has been abused, and is as consistent with false testimony as with true testimony. “The 

purpose of CSAAS testimony was not to neutralize inconsistencies in the victim’s 

testimony . . . .” (People v. Patino, supra, 26 Cal.App.4th at p. 1746.) Instead, it was 

meant to “explain the state of mind of the complaining witness.” (Ibid.) Moreover, the 

defense offered its own expert, Dr. Ermshar, who testified that children are suggestible 

and may make up stories. Defense counsel rigorously cross-examined the witnesses. 

The jury was not compelled to accept Dr. Bernfeld’s testimony, or conclude that the 

delays in reporting in this case were due to CSAAS, rather than to fabrication. And, as 

we discuss post, the jury was properly instructed that the CSAAS evidence was not 

evidence Sinohue committed any of the charged crimes.

 

9

Sinohue urges that CSAAS evidence is problematic because it is nonspecific. He 

posits that because the expert knows nothing about the specific case, the evidence is “so 

generic” as to lack probative value. However, appellate courts have held that this feature 

of CSAAS evidence benefits the defendant by preventing the jury from inferring the 

expert’s testimony suggested the victims in the case were credible, or the abuse actually 

occurred. (See, e.g., People v. Housley, supra, 6 Cal.App.4th at pp. 955-956.) Where the 

expert discusses “victims as a class,” any danger of misuse of the testimony is 

“alleviated––if not removed.” (People v. Stark (1989) 213 Cal.App.3d 107, 115-116.) 
27

Sinohue raises two additional bases for exclusion of the evidence. First, he posits 

that the CSAAS testimony was irrelevant and inadmissible here, because there was no 

evidence the jurors needed to be disabused of any misconceptions. CSAAS testimony 

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

(People v. Bowker, supra, 203 Cal.App.3d at pp. 393-394.) “Where there is no danger of 

jury confusion, there is simply no need for the expert testimony.” (Id. at p. 394.) 

Sinohue argues that unlike in the 1980’s, when the CSAAS model was developed, the 

general public no longer entertains misconceptions about the behavior of sexual abuse 

victims, due, for example, to the popularity of police procedural television programs and 

media reports. Further, he points to prospective jurors’ responses when questioned 

during voir dire as evidence jurors in his case did not believe delayed reporting was 

inconsistent with molestation. 

Television fiction is not a substitute for expert testimony, and the jurors’ cursory 

responses during voir dire do not demonstrate they necessarily had a full and accurate 

understanding of the issue. As McAlpin observed, “ ‘the admissibility of expert opinion 

is a question of degree. The jury need not be wholly ignorant of the subject matter of the 

opinion in order to justify its admission; if that were the test, little expert opinion 

testimony would ever be heard.’ ” (People v. McAlpin, supra, 53 Cal.3d at p. 1299-

1300.) Instead, expert testimony is admissible whenever it would assist the jury. (Id. at 

p. 1300.) Expert testimony regarding CSAAS is “pertinent and admissible if an issue has 

been raised as to the victim’s credibility.” (People v. Patino, supra, 26 Cal.App.4th at 

p. 1745.) “It is sufficient if the victim’s credibility is placed in issue due to the 

paradoxical behavior, including a delay in reporting a molestation.” (Id. at pp. 1744-

1745.) 

The victims’ credibility was the central issue at trial. Sinohue denied committing 

the offenses. Both victims delayed reporting the abuse for substantial periods of time. 

The defense attacked the testimony of both victims as incredible due in part to the delay 

in reporting, theorizing that the family’s group hysteria caused them to misremember or 

lie. In J.K.’s case, the defense also argued the report of abuse was fabricated for financial 
28

gain. Indeed, as Sinohue points out, “Normally, inconsistent statements and a failure to 

disclose would be viewed as indications that J.K. and D.L. lacked credibility.” The 

People were entitled to rehabilitate their witnesses’ credibility. (See People v. Patino, 

supra, 26 Cal.App.4th at p. 1747; People v. Housley, supra, 6 Cal.App.4th at p. 956.) 

Second, Sinohue contends the CSAAS evidence was inadmissible under the 

Kelly/Frye standard10 applicable to the admission of scientific evidence. However, the 

Kelly/Frye rule does not apply to CSAAS evidence used for the limited purpose of 

disabusing a jury of misconceptions it might hold about how a child reacts to molestation. 

(People v. Harlan (1990) 222 Cal.App.3d 439, 449 [the “Kelly/Frye rule does not apply 

to this type of evidence”]; cf. People v. Stoll (1989) 49 Cal.3d 1136, 1157 [expert

testimony regarding psychiatric diagnoses is admissible without reference to the 

Kelly/Frye rule].) While Kelly/Frye does preclude the admission of CSAAS evidence to 

prove that a child has been abused, it is admissible “to dispel common misconceptions 

the jury may hold as to how such children react to abuse.” (People v. Sanchez (1989) 208 

Cal.App.3d 721, 734-735; People v. Wells, supra, 118 Cal.App.4th at p. 179, 188.) 

Accordingly, the Kelly/Frye rule is inapplicable here. (Wells, at p. 188; People v. 

Housley, supra, 6 Cal.App.4th at p. 955.) 

In sum, on this record we are satisfied the CSAAS testimony was properly 

admitted to dispel misconceptions regarding the behavior of victims. 

c. Instruction with CALCRIM No. 1193.

As noted ante, expert testimony regarding CSAAS only may be used to disabuse 

the jury of commonly held misconceptions regarding the behavior of abuse victims, not 

to corroborate the victims’ claims of abuse. (People v. Housley, supra, 6 Cal.App.4th at 

 

10 People v. Kelly (1976) 17 Cal.3d 24; Frye v. United States (1923) 293 F. 1013. 

Although Frye was superseded by statute (Daubert v. Merrell Dow Pharmaceuticals, Inc. 

(1993) 509 U.S. 579; People v. Leahy (1994) 8 Cal.4th 587, 591-592), the test is still 

commonly denominated as the Kelly/Frye rule. Kelly/Frye requires, among other things, 

that before an expert testifies regarding a new scientific technique, the proponent of the 

evidence must show that the technique is sufficiently established to have gained general 

acceptance in the particular field in which it belongs. (People v. Stoll, supra, 49 Cal.3d at 

p. 1155; People v. Housley, supra, 6 Cal.App.4th at p. 955, fn. 2.) 
29

p. 957; People v. Patino, supra, 26 Cal.App.4th at p. 1744.) Accordingly, to protect 

against possible misuse of the evidence, when a CSAAS expert has testified the jury must 

be instructed that “(1) such evidence is admissible solely for the purpose of showing the 

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

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

determine whether the victim’s molestation claim is true.” (Housley, at p. 959.)

Here, the jury was instructed with the standard version of CALCRIM No. 1193, as 

follows: “You have heard testimony from Jayme Bernfeld and Annette Ermshar 

regarding child sexual abuse accommodation syndrome. [¶] Jayne Bernfeld’s and 

Annette Ermshar’s testimony about child sexual abuse accommodation syndrome 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 [J.K.]’s or D.L.’s conduct 

was not inconsistent with the conduct of someone who has been molested, and in 

evaluating the believability of their testimony.”

Sinohue argues the standard version of CALCRIM No. 1193 is flawed because it 

allows jurors to use CSAAS evidence to determine the victims’ credibility and 

erroneously states CSAAS evidence can be used to corroborate claims of abuse, thereby 

lessening the prosecution’s burden of proof in violation of his due process rights. We 

disagree.11

 

11 The People argue Sinohue has forfeited this contention because he did not 

specifically object to CALCRIM No. 1193; to the contrary, he requested it as an 

alternative to other special instructions he requested. Sinohue argues that because he 

proposed two special instructions on the topic, which the trial court declined to give, and 

requested that the jury be instructed regarding the CSAAS testimony shortly after the 

close of Dr. Bernfeld’s testimony, he effectively objected to the instruction. He 

alternatively contends that his counsel provided ineffective assistance by failing to object. 

Section 1259 permits appellate review of claims of instructional error affecting a 

defendant’s substantial rights. (People v. Wallace (2008) 44 Cal.4th 1032, 1074, fn. 7; 

People v. Felix (2008) 160 Cal.App.4th 849, 857-858.) In light of this section and 

Sinohue’s claim of ineffective assistance of counsel, we consider the merits of his claim. 

(See People v. Andersen (1994) 26 Cal.App.4th 1241, 1249 [to determine whether a 
30

We independently determine whether the instructions given were correct and 

adequate. (People v. Riley (2010) 185 Cal.App.4th 754, 767; People v. Mathson (2012)

210 Cal.App.4th 1297, 1311.) When reviewing a purportedly ambiguous or misleading 

instruction, we inquire whether there is a reasonable likelihood the jury applied the 

challenged instruction in a way that violates the Constitution. (People v. Richardson 

(2008) 43 Cal.4th 959, 1028; People v. Lopez (2011) 198 Cal.App.4th 698, 708.) We 

“look to the instructions as a whole and the entire record of the trial, including the 

arguments of counsel,” and assume that the jurors are intelligent persons, capable of 

understanding and correlating the instructions given. (Lopez, at p. 708; Riley, at p. 767.) 

Instructions should be interpreted, if possible, so as to support the judgment rather than 

defeat it if they are reasonably susceptible to such interpretation. (Riley, at p. 767; Lopez,

at p. 708.)

CALCRIM No. 1193 clearly and appropriately informed jurors of the relevant 

legal principles. Contrary to Sinohue’s argument, the instruction does not state, explicitly 

or implicitly, that the evidence could corroborate the victims’ claims of abuse. To the 

contrary, it expressly stated that the testimony “is not evidence that the defendant 

committed any of the crimes charged against him.” (Italics added.) The instruction was 

not objectionable because it allows the jurors to consider the CSAAS testimony in 

evaluating the witnesses’ credibility; that is precisely the issue the evidence is offered to 

prove. Expert testimony regarding CSAAS “is admissible to rehabilitate the complaining 

witness when the defendant impeaches her credibility.” (People v. McAlpin, supra, 53 

Cal.3d at p. 1300, italics added.) Thus, CALCRIM No. 1193 is a correct statement of 

law. The instruction did not require jurors to accept the evidence, or interpose a 

presumption it was true. The mere availability of additional evidence to prove guilt does 

not lower the prosecution’s burden of proof. (People v. Falsetta (1999) 21 Cal.4th 903, 

920.) 

 

defendant’s substantial rights were affected, appellate court must examine the merits of 

the claim at least to the extent of ascertaining whether error was prejudicial].)
31

Moreover, the omission of additional language that was included in the 

predecessor to CALCRIM No. 1193, CALJIC No. 10.64, was immaterial. The jury was 

fully instructed on the presumption of innocence and the prosecutor’s burden of proof. 

Unlike CALJIC No. 10.64, CALCRIM No. 1193 does not include discussion of the

assumptions underlying CSAAS, but this does not make it inadequate. CALCRIM 

No. 1193 informed the jury of the proper uses of the evidence, the only essential 

information required.

5. Purported governmental misconduct.

a. Additional facts. 

During trial, Detective Stewart testified that she asked D.L.’s family to put 

together a timeline of events to assist her in the investigation. She explained: “I asked

D.L.’s family to do that because they were coming to me––after the report had been 

made, a lot of people, the different parties involved––with saying there was barbecues, 

and ‘We saw this creepy thing happen, or this was a birthday party and something 

happened.’ And it was getting very confusing for me to try and keep track of what 

incidences they were talking about. So I asked them, ‘Please, get together, and every one 

of you that had the creepy feeling or saw something, please write it down in a timeline 

and give it to me.’ ” Detective Stewart received the timeline around January 10 or 11, 

2010, after charges were filed.

Jodi testified that “after the first court date,” the “detective suggested that we get 

together so we can put our thoughts down and some timeframes down.” Accordingly, 

Jodi, Carl, Dave, B.T., Chris, Lori, and a friend named Becky met at Jodi and Carl’s 

home and typed up a timeline of events. Other than that, while the case was pending Jodi 

did not discuss it with anyone except her husband, Carl.

Similarly, B.T. testified during cross-examination that sometime after the 

arraignment, the detective asked them “to create a timeline, basically, amongst all of 

us. . . . So we all got together and started discussing instances that we felt uncomfortable 

and just kind of got a timeline, months, days, each of us, and that was at Jodi’s house.”

She explained: “Well, Carl had a notepad, and each of us . . . spoke, so I would go and 
32

say, ‘On this date, I noticed this. On this date, I noticed that.’ I don’t think it was 

comparing, but we were just putting the timeline. If I noticed something in September 

and then Jodi noticed something in August, then it would be placed on the paper 

accordingly so that we had an appropriate timeline for the detective.”

b. Discussion

Sinohue contends Detective Stewart’s request that D.L.’s family create the 

timeline amounted to witness tampering and “police and governmental misconduct,”

tainted the testimony of all persons who attended the timeline meeting, and thereby 

deprived him of his rights to effective cross examination and a “fair trial based on the true 

individual testimony” of the witnesses. We disagree.

Preliminarily, Sinohue has forfeited his claims. His motion in limine sought 

exclusion of testimony that was not based on personal knowledge, not the grounds now 

stated. At the hearing on the motion, the court observed it was a “general motion” and 

directed counsel to make specific objections at trial. The court explained, “unless you 

have something specific in mind at this point, there’s really not much I can do as far as 

making any orders.” Sinohue did not, in the in limine motion or at trial, object to 

admission of the testimony on grounds of either police misconduct, “witness tampering,”

or prosecutorial misconduct. “Evidence Code section 353, subdivision (a) allows a 

judgment to be reversed because of erroneous admission of evidence only if an objection 

to the evidence or a motion to strike it was ‘timely made and so stated as to make clear 

the specific ground of the objection.’ ” (People v. Demetrulias (2006) 39 Cal.4th 1, 20-

21.) As Justice Werdegar observed in her concurring opinion in People v. Smith (2003) 

31 Cal.4th 1207, the “due process ‘defense’ of outrageous law enforcement conduct is 

actually a bar to prosecution rather than a defense to the charge; as such, it is properly 

raised by motion . . . .” (Id. at p. 1228.) Likewise, claims of prosecutorial misconduct 

are forfeited unless the defendant objects at trial. (People v. Riggs, supra, 44 Cal.4th at 

p. 298; People v. McKinzie (2012) 54 Cal.4th 1302, 1358.) 

Sinohue’s contentions fail on the merits in any event. Although Sinohue 

characterizes Detective Stewart’s request that those close to D.L. meet and prepare a 
33

timeline as “egregious” behavior, “significant” and “undisputed” misconduct, and 

“coercive state action,” he fails to present authority or point to evidence in the record 

establishing this point. “Outrageous government conduct is not a defense, but rather a 

claim that government conduct in securing an indictment was so shocking to due process 

values that the indictment must be dismissed.” (U.S. v. Montoya (9th Cir. 1995) 45 F.3d 

1286, 1300; People v. Smith, supra, 31 Cal.4th at p. 1228 (conc. opn. of Werdegar, J.).) 

Police conduct is outrageous enough to violate a defendant’s due process rights only 

when it is “ ‘ “so grossly shocking and so outrageous as to violate the universal sense of 

justice.” ’ [Citation.]” (People v. Maury (2003) 30 Cal.4th 342, 418, fn. 17; U.S. v. 

Montoya, supra, at p. 1300 [“Under the ‘extremely high standard’ of this doctrine, an 

indictment should be dismissed ‘only when the government’s conduct is so grossly 

shocking and so outrageous as to violate the universal sense of justice’ ”].)

12

Detective Stewart’s timeline request may or may not have been wise police 

procedure, but it was not misconduct as a matter of law, and certainly did not rise to the 

level of outrageous conduct. Her request does not shock the conscience. Contrary to 

Sinohue’s argument, the detective did not “compel” the witnesses to meet; her conduct 

was not coercive. She did not suggest or require the witnesses to come to any particular 

conclusions, nor did she suggest they alter their observations to make them match. 

Sinohue’s alternative contention that the detective’s action constituted “witness 

tampering” is equally unpersuasive. He analogizes to the federal witness tampering 

 

12 People v. Smith declined to decide whether the “defense” of outrageous police 

misconduct is viable in California. (31 Cal.4th at p. 1227.) The court has previously 

observed, however, that “[s]ufficiently gross police misconduct could conceivably 

lead to a finding that conviction of the accused would violate his constitutional right 

to due process of the law.” (People v. McIntire (1979) 23 Cal.3d 742, 748, fn. 1; see 

also Morrow v. Superior Court (1994) 30 Cal.App.4th 1252, 1260 [“ ‘When conduct 

on the part of authorities is so outrageous as to interfere with an accused’s right of 

due process of law, proceedings against the accused are thereby rendered 

improper’ ”].)
34

statute, title 18 of the United States Code section 1512, but examination of the cited 

portions of that law demonstrates that the analogy is inapt. Under no stretch of the

imagination can it be said that Stewart intimidated or threatened witnesses, attempted to 

influence their testimony or dissuade or prevent them from testifying, or obstructed or 

influenced an official proceeding. (18 U.S.C. § 1512(b), (c), (d).)

The contention that the prosecutor committed misconduct by knowingly 

presenting perjured testimony is also far off the mark. It is of course correct that a 

prosecutor’s presentation of knowingly false testimony, or the failure to correct such 

testimony after it has been elicited, constitutes misconduct and violates the defendant’s 

federal due process rights. (People v. Vines (2011) 51 Cal.4th 830, 873; People v. 

Harrison (2005) 35 Cal.4th 208, 242.) However, there is no evidence anything of the 

sort occurred here. There is no evidence, as opposed to rank speculation, that the 

timeline meeting influenced any witness’s testimony, let alone resulted in perjured 

testimony. Sinohue’s arguments are based entirely on his speculation that the meeting 

tainted the witnesses’ “individual memories and observations.” Speculation is an 

insufficient basis upon which to base a contention that a prosecutor knowingly offered 

perjured testimony. Moreover, “[m]ere inconsistencies between a witness’s testimony 

and her prior statements do not prove the falsity of the testimony.” (Vines, at p. 874.) 

Sinohue’s analogies to principles applicable to suggestive identification 

procedures and the exclusion of witnesses at trial pursuant to Evidence Code section 

77713 fail to establish his thesis that “due process demands that witnesses not discuss the 

facts or testimony.” The timeline meeting at issue here is entirely unlike an identification 

procedure. A pretrial identification procedure is unfair if it suggests in advance the 

 

13 Evidence Code section 777 provides: “(a) Subject to subdivisions (b) and (c), the 

court may exclude from the courtroom any witness not at the time under examination so 

that such witness cannot hear the testimony of other witnesses. [¶] (b) A party to the 

action cannot be excluded under this section. [¶] (c) If a person other than a natural 

person is a party to the action, an officer or employee designated by its attorney is 

entitled to be present.”
35

identity of the person the police suspect of the crime. (People v. Brandon (1995) 32 

Cal.App.4th 1033, 1052.) Sinohue’s identity was already well known to the witnesses 

and he had already been charged when the timeline meeting occurred. Contrary to the 

cases cited, Detective Stewart did not tell the witnesses their information was correct or 

present evidence in a fashion suggesting the result. In order to establish a due process 

violation in an identification procedure, unfairness must be proved as a “ ‘demonstrable 

reality,’ not just speculation.” (People v. Contreras (1993) 17 Cal.App.4th 813, 819.) 

This Sinohue has failed to do. 

Evidence Code section 777 does not apply to the investigation or pretrial phases of 

a case. It is applicable to the exclusion of witnesses at trial, not beforehand. That section 

in no way suggests that the admission of the testimony of witnesses who have spoken 

about the case outside of court ipso facto violates due process. Such a rule would, among 

other things, be impracticable to enforce for a variety of reasons. In any event, Evidence 

Code section 777 expressly allows parties to an action and, in the case of non-natural 

parties, a designated officer or employee to remain in court during the testimony of 

witnesses, even if they will later testify. Therefore, by its very terms Evidence Code 

section 777 does not require the result Sinohue seeks. 

Nor has Sinohue established that the timeline meeting violated his confrontation 

rights. His contention that the timeline meeting “in and of itself create[d] false 

testimony” is not supported by persuasive authority or common sense. There is no 

evidence the meeting tainted the testimony of any witness, created a “collective 

consciousness,” “destroyed any possibility of having each witness provide testimony 

excusive to that witness,” or made it impossible for witnesses to testify truthfully. Again, 

these contentions are highly speculative and unsupported by evidence in the record. 

None of the witnesses testified they changed their perceptions or recollections, or altered 

their testimony, due to events at the meeting. Sinohue had ample opportunity to 

rigorously cross examine the meeting attendees to establish that their comments 

“mutual[ly] reinforce[d]” their opinions, as he suggests. Indeed, to some extent the 
36

timeline meeting played into Sinohue’s theory of the case, which was that the family 

members engaged in group hysteria and fabricated the allegations.

In sum, Detective Stewart’s request that D.L.’s family members meet to prepare a 

timeline of events was not police or prosecutorial misconduct, and did not violate 

Sinohue’s due process or confrontation rights.14

6. Purportedly erroneous admission of evidence.

Sinohue complains that the trial court erroneously admitted several pieces of 

evidence. We discern no prejudicial error. 

As noted, we review a trial court’s admission of evidence for abuse of discretion. 

(People v. Brown (2003) 31 Cal.4th 518, 547; People v. Avitia (2005) 127 Cal.App.4th

185, 193.) The erroneous admission of evidence requires reversal only if it is reasonably 

probable that defendant would have obtained a more favorable result had the evidence 

been excluded. (Evid. Code, § 353, subd. (b); People v. Earp (1999) 20 Cal.4th 826, 878; 

People v. Watson (1956) 46 Cal.2d 818, 836.) “ ‘Ordinarily, even erroneous admission 

of evidence does not offend due process unless it is so prejudicial as to render the 

proceeding fundamentally unfair.’ [Citations.]” (People v. Covarrubias (2011) 202 

Cal.App.4th 1, 20.)

a. Hearsay. 

Evidence of a statement made other than by a witness while testifying at trial, 

offered to prove the truth of the matter asserted, is hearsay and is inadmissible, unless 

there is an exception for its admission. (Evid. Code, § 1220.) Sinohue complains about 

five instances in which the trial court purportedly erred by admitting hearsay evidence.

(i) Michael’s testimony about J.K.’s statement.

Over a defense objection, Michael testified that approximately two years before 

trial, J.K. told him Sinohue had sexually molested him when he was between nine and 

twelve years old. Sinohue contends the evidence was inadmissible hearsay, and its 

admission was reversible error. But as the People point out, Michael’s testimony was 

 

14 In light of our conclusion, we find it unnecessary to reach the parties’ arguments 

regarding prejudice. 
37

admissible as a prior consistent statement. (Evid. Code, §§ 791, 1236.) Evidence Code 

section 791 provides an exception to the hearsay rule for evidence of a statement 

previously made by a witness that is consistent with his testimony at the hearing, if the 

statement is offered after “[a]n express or implied charge has been made that his 

testimony at the hearing is recently fabricated or is influenced by bias or other improper 

motive, and the statement was made before the bias, motive for fabrication, or other 

improper motive is alleged to have arisen.” (Evid. Code, § 791; People v. Lopez, supra, 

56 Cal.4th at p. 1066; see also Evid. Code, § 1236.)

Michael’s testimony fell within this hearsay exception. During cross-examination 

of J.K., which occurred before Michael testified, defense counsel attempted to show the 

charges against Sinohue were fabricated. In particular, he attempted to establish that J.K.

had a financial motive to falsely accuse Sinohue of molesting him. Therefore, J.K.’s outof-court statement qualified as a prior consistent statement and was admissible under 

Evidence Code sections 1236 and 791.15

(ii) Evidence admitted pursuant to the state of mind exception.

Sinohue also challenges the following testimony as violative of the hearsay rule:

(1) Testimony by Jodi, Heather, and Barbara regarding Lisa’s complaints about 

Sinohue’s excessive attention to D.L. and Daniel; and (2) Heather’s testimony that 

Michael told her J.K. had confided that Sinohue had molested him.

Evidence Code section 1250 provides a hearsay exception for evidence of a 

statement of the declarant’s then existing state of mind, emotion, or physical sensation, 

including a statement of intent, plan, motive, design, mental feeling, pain, or bodily 

health. “In order for this exception to apply, the statement must not have been made 

under circumstances indicating a ‘lack of trustworthiness’ ([Evid. Code,] § 1252), and 

must be offered either ‘to prove the declarant’s state of mind, emotion, or physical 

sensation,’ or ‘to prove or explain acts or conduct of the declarant.’ (§ 1250, subd. (a).) 

 

15 In light of our conclusion, we do not reach the People’s alternative contention that 

the evidence was admissible under the state of mind exception to the hearsay rule. 
38

A prerequisite to this exception is that the declarant’s mental state or conduct be placed in 

issue.” (People v. Kovacich (2011) 201 Cal.App.4th 863, 884.) 

The People argue that the aforementioned evidence was admissible under the 

state-of-mind exception. Sinohue argues that Lisa’s state of mind was irrelevant, and

therefore the exception was inapplicable. We need not resolve this question because, 

even if admitted in error, the challenged testimony was manifestly harmless under any

standard. (People v. Watson, supra, 46 Cal.2d at p. 836; Chapman v. California (1967) 

386 U.S. 18.) Michael testified that J.K. told him about Sinohue’s abuse; Heather’s 

testimony that Michael related that conversation to her added little, if anything, to the 

People’s case. As to Lisa’s complaints, there was ample evidence apart from the 

challenged testimony demonstrating that Sinohue spent an inordinate amount of time 

with D.L. and Daniel. Omission of the challenged evidence––which was but a small

portion of the People’s case––could not have resulted in prejudice. There is no likelihood

Sinohue would have obtained a more favorable result had the evidence been excluded, 

and the evidence was not of an ilk to render his trial unfair. (Evid. Code, § 353, subd. 

(b); People v. Earp, supra, 20 Cal.4th at p. 878; People v. Covarrubias, supra, 202 

Cal.App.4th at p. 20.)

7. Lay opinion testimony.

Sinohue next complains of five instances in which he asserts lay opinion testimony 

was erroneously admitted. As he acknowledges, defense counsel failed to object to any 

of the evidence he now challenges, and therefore his contentions have been forfeited. 

However, because he alternatively contends counsel was ineffective for failing to object, 

we consider the merits of his claim.

A non-expert witness may offer his or her opinion if it is “[r]ationally based on the 

perception of the witness” and “[h]elpful to a clear understanding of his testimony.”

(Evid. Code, § 800, subds. (a), (b); People v. Bradley (2012) 208 Cal.App.4th 64, 83.) A 

lay witness may not give an opinion about another’s state of mind, but may testify about 

objective behavior and describe behavior as being consistent with a state of mind. 

(People v. Blacksher (2011) 52 Cal.4th 769, 808-809.) “A lay witness is occasionally 
39

permitted to express an ultimate opinion based on his perception, but only where ‘helpful 

to a clear understanding of his testimony’ [citation], i.e., where the concrete observations 

on which the opinion is based cannot otherwise be conveyed.” (People v. Melton (1988) 

44 Cal.3d 713, 744.) The decision whether to permit lay opinion rests in the sound 

discretion of the trial court. (Bradley, at p. 83.) 

a. Barbara’s and Jodi’s testimony that Sinohue and D.L. embraced as though they 

were lovers. 

Jodi testified that after Sinohue gave D.L. a large flat screen television for his 

birthday, she saw D.L. give Sinohue “a big hug and [a] kiss, and they embraced as though 

they were lovers.” She clarified, “I’ve only seen that type of embrace with a husband and 

wife or girlfriend and boyfriend . . . .” Barbara, when asked whether she noticed a 

difference in the way Sinohue interacted with Daniel and D.L., answered: “Daniel was 

more like an afterthought, and D.L., he catered to like a lover.” She then recounted an 

incident in which Sinohue clipped D.L.’s fingernails and toenails. Admission of these 

statements was not improper. They were statements about Sinohue’s behavior and were 

based on the witnesses’ observations of Sinohue’s behavior. (See People v. Blacksher, 

supra, 52 Cal.4th at pp. 808-809.) The description of the interaction between Sinohue 

and D.L. as similar to those of lovers was helpful to a clear understanding of the 

testimony, as the witnesses’ meaning would have been difficult to convey otherwise. 

(See People v. Melton, supra, 44 Cal.3d at p. 744; People v. Williams (1992) 3 

Cal.App.4th 1326, 1332 [lay opinion testimony is admissible where “ ‘as “a matter of 

practical necessity when the matters . . . observed are too complex or too subtle to enable 

[the witness] accurately to convey them to court or jury in any other manner” ’ ”]; 

cf. People v. Farnam (2002) 28 Cal.4th 107, 153 [correctional officer allowed to testify 

defendant was being defiant and stood in a posture as if he was going to begin fighting]; 

People v. Medina (1990) 51 Cal.3d 870, 886-887 [testimony regarding whether a person 

understood a conversation proper].) 
40

b. Heather’s testimony regarding lotion.

Heather testified that during the Cape Cod trip, a group of adults were watching 

television. Sinohue asked D.L. to rub lotion on his back. Two men who were in the 

group “had to get up and leave because it was so bothersome.” Admission of this 

testimony was not improper. It was based on Heather’s observations of Sinohue’s and 

D.L.’s behavior. Sinohue contends her testimony was speculative. However, Heather 

could reasonably have determined the reason for the men’s action based on their 

expressions and demeanor, as well as the timing of their departure. (See People v. Hinton 

(2006) 37 Cal.4th 839, 889 [lay opinion testimony proper where it was possible the 

witness’s impression “rested on subtle or complex interactions” that were “difficult to put 

into words”].) There was no error. 

c. Other testimony.

Sinohue also complains that: (1) Lori testified Sinohue sent D.L. a headset so he 

and D.L. could surreptitiously communicate; and (2) Heather testified that Lisa and 

Sinohue had not married because Sinohue was preoccupied with the children. Assuming 

arguendo these brief statements were admitted in error, there was no prejudice under any 

standard. (People v. Bradley, supra, 208 Cal.App.4th at p. 84; People v. Watson, supra,

46 Cal.2d at p. 836; Chapman v. California, supra, 386 U.S. 18.) The observations 

underlying the opinion were clearly admissible, and the challenged testimony was but a 

small bit of the People’s case. The People’s evidence was overwhelming, and it is clear 

beyond a reasonable doubt that the outcome would not have been more favorable for 

Sinohue had the challenged statements been excluded. 

8. Sentencing under the One Strike law.

Sinohue was sentenced on all counts pursuant to the “One Strike Law,” section 

667.61. That statute requires that if a defendant is convicted of two sexual crimes against 

separate victims in one trial, the court must sentence him to 15 years to life on each 

conviction. (People v. Nguyen, supra, 184 Cal.App.4th 1096, 1107, fn. 5.) Sinohue 

committed the conduct that was the basis for count 5 between 1998 and 1999. However, 

the offense of continuous sexual abuse of a child––the offense charged in count 5––was 
41

not added to the list of offenses subject to the One Strike Law until enactment of an 

amendment that took effect on September 20, 2006. (Stats. 2006, ch. 337, § 33.) Prior to 

that time, the crime was punishable by 6, 12, or 16 years in prison. (See § 288.5, subd. 

(a).)

Sinohue contends sentencing him under the One Strike Law on count 5 therefore 

violated ex post facto principles. The People concede the point, and we accept the 

concession. Both the California and federal Constitutions prohibit ex post facto laws. 

(U.S. Const., art. I, § 10, cl. 1; Cal. Const., art. I, § 9.) “ ‘[T]he ex post facto clauses of 

the state and federal Constitutions are “aimed at laws that ‘retroactively alter the 

definition of crimes or increase the punishment for criminal acts.’ ” ’ ” (People v. Alford 

(2007) 42 Cal.4th 749, 755; Collins v. Youngblood (1990) 497 U.S. 37, 43.) The 

amendment to section 667.61 did just that. (See generally People v. Alvarez (2002) 100 

Cal.App.4th 1170, 1173, 1178.) Accordingly, we vacate sentence on count 5 and order 

the matter remanded for resentencing. 
42

DISPOSITION

Sentence on count 5 is vacated, and the matter is remanded for resentencing. In all 

other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ALDRICH, J.

We concur:

KLEIN, P. J.

CROSKEY, J.