Filed 4/28/23 P. v. Farias CA2/8

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE,

Plaintiff and Respondent,

v.

MARTIN FARIAS,

Defendant and Appellant.

B314347

(Los Angeles County

Super. Ct. No. BA486911)

APPEAL from a judgment of the Superior Court of 

Los Angeles County. Eleanor J. Hunter, Judge. Affirmed as 

modified.

Derek K. Kowata, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan S. Pithey, Assistant Attorney 

General, Noah P. Hill and Thomas C. Hsieh, Deputy Attorneys

General, for Plaintiff and Respondent.

_________________________________
2

INTRODUCTION

Martin Farias appeals from his judgment of conviction of

three counts of lewd act upon a child under the age of 14 (Pen. 

Code,1 § 288, subd. (a)), and one count of oral copulation or sexual 

penetration of a child 10 years old or younger (§ 288.7, subd (b)). 

On appeal, Farias contends the trial court prejudicially erred in

admitting expert testimony and instructing the jury on Child

Sexual Abuse Accommodation Syndrome (CSAAS). Farias also 

claims sentencing error on the grounds that he did not receive 

adequate notice that he was subject to three 25-year-to-life terms

under the “One Strike” law (§ 667.61), his total sentence of 

90 years to life constitutes cruel and unusual punishment, and 

the abstract of judgment does not accurately reflect his 

presentence custody credit. We modify the abstract of judgment 

to correct Farias’s custody credit, but otherwise affirm. 

FACTUAL AND PROCEDURAL BACKGROUND

I. Evidence at Trial

Farias and his wife, Silvia M., have three children together, 

including a daughter, V.F. Silvia also has an older daughter from 

her previous relationship, A.R., who was raised in the same 

household as her half-siblings. The offenses in this case concern 

Farias’s sexual abuse of A.R. between 2002 and 2009, and his

sexual abuse of V.F. between 2011 and 2013.

A. Sexual Abuse of A.R. 

A.R., born in 1995, is Farias’s stepdaughter. Farias 

sexually molested A.R. for the first time when she was seven 

years old. On that occasion, Farias called A.R. into his bedroom 

1 Unless otherwise stated, all further statutory references 

are to the Penal Code.
3

and had her lie down beside him. He placed A.R.’s hand on his 

penis, first over and then under his clothing. He then made A.R. 

rub his penis with her hand. 

Farias sexually molested A.R. again when she was about 14 

or 15 years old. Around that time, there were three to four 

occasions when Farias kissed A.R. with his tongue and touched 

her breasts over her clothing. When A.R. was 16 or 17 years old, 

Farias called A.R. into his bedroom. He told her to lock the door 

and to lie down on the bed. Farias then pulled down A.R.’s pants 

and underwear, and orally copulated her. This incident was the 

last time that Farias sexually abused his stepdaughter. A.R.

moved out of the family’s home when she was 17 years old. 

B. Sexual Abuse of V.F.

V.F., born in 2006, is Farias’s biological daughter. Farias’s 

sexual abuse of V.F. began when the child was five years old. 

On that occasion, V.F. was sitting near her father on a couch in 

the living room and told him that she was cold. Farias motioned 

to V.F. to give him her hand. He then unbuttoned his pants, slid 

V.F.’s hand under his clothing, and placed her hand on his penis. 

V.F. began to feel that this contact was not appropriate and 

removed her hand after a few minutes. She did not tell anyone

about the incident at that time because she was very young and 

felt confused about her father’s behavior.

About a month later, Farias brought V.F. into his bedroom. 

As they watched television together on the bed, Farias began to 

caress V.F.’s arm, and asked her to lie down between his legs. 

Once V.F. had done so, Farias told the child that she had hurt

him and asked her if she wanted to make him feel better. Farias 

then instructed V.F. to rub his penis. V.F. briefly complied, but 

stopped because she again felt uncomfortable and confused.
4

On another occasion when V.F. was five years old, Farias 

invited the child to his bedroom. While lying on the bed, Farias 

caressed V.F.’s body, including her arm, thighs, and chest. 

He told the child to lie on her back, pulled off her pants and 

underwear, and orally copulated her. Farias then pulled down 

his shorts and tried to push V.F.’s mouth onto his penis. When 

Farias forced V.F.’s lips to touch his penis, she backed away and 

said she needed to use the restroom. V.F. hid inside the restroom 

until other family members arrived home. 

Following that incident, V.F. tried to avoid Farias and to 

never be alone with him. On two other occasions, Farias asked 

V.F. to go to his bedroom with him and then began to caress her 

body. V.F. immediately moved away from Farias, and he 

stopped. V.F. never spoke with her father about the sexual 

abuse. 

C. Disclosure of Sexual Abuse

A.R. first tried to disclose Farias’s sexual abuse to her 

mother, Silvia, when she was 15 years old. After A.R. got drunk 

at a party, Farias told A.R. to go to Silvia so that her mother 

could smell her breath. As Silvia and A.R. fought about her

underage drinking, A.R. told Silvia that Farias had kissed her. 

Because A.R. was intoxicated at the time, Silvia sent her to bed. 

When Silvia talked to A.R. the following morning, A.R. disclosed

that Farias had kissed her on the mouth. Silvia then took A.R. to 

Farias and confronted him about what A.R. had said. Farias 

responded that A.R. was confused, and that he only would kiss

her on her cheek. He also gave A.R. a manipulative look, which

she understood to mean that Silvia would not believe her and she 

would break the family apart by making this accusation. At that 
5

point, A.R. told Silvia that what she had said was untrue, and 

that she had made the statement solely because she was drunk. 

In April 2020, when V.F. was 13 years old, she was on a

website, video chatting with a stranger. When Silvia saw V.F., 

she told her to get off the website and warned her about the 

dangers of talking to strangers on the internet because there 

were “so many predators out there.” In response, V.F. stated that 

“bad people were not always on the outside, sometimes they were

inside the house.” When Silvia asked her what she meant by 

that statement, V.F. disclosed that Farias had sexually abused

her starting when she was about five years old. Silvia hugged 

V.F. and assured her daughter that she believed her. 

Silvia immediately reported the sexual abuse to her sister, 

who in turn reached out to A.R. After A.R. arrived at the family’s 

home, she spoke with Silvia and learned of V.F.’s disclosure about 

Farias. At that time, A.R. told her mother that the same thing 

had happened to her. A.R. then met privately with V.F. in her 

bedroom. V.F. repeated the disclosure to A.R., and A.R. revealed 

to V.F. that she also had been sexually abused by Farias. The 

family then contacted the police. 

D. CSAAS Evidence

Dr. Jayme Jones, a clinical psychologist, testified for the 

prosecution as an expert witness on CSAAS. As described by 

Dr. Jones, CSAAS is a model to help explain the behavior of 

sexually abused children whose disclosure patterns tend not to 

follow the common expectation that children will disclose abuse

immediately. There are five components of the CSAAS model: 

(1) secrecy; (2) helplessness; (3) accommodation; (4) delayed 

disclosure; and (5) recantation. 
6

Dr. Jones testified that secrecy and helplessness describe 

the context in which child sexual abuse occurs. Because the 

abuse typically takes place outside the presence of witnesses, it 

signals to children they are not supposed to disclose what has 

happened. Moreover, because children are physically smaller 

than their abusers and taught to obey adults, they feel helpless to

fight back against the abuse. Accommodation describes how 

children develop coping mechanisms, such as not thinking about 

the abuse, that allow them to continue with their daily lives. 

Dr. Jones further testified that most victims of child sexual 

abuse never disclose the abuse, and when they make a disclosure, 

it is often years after the abuse occurred. About 10 to 15 percent 

of victims disclose the abuse within the first year of its 

occurrence, and another 20 to 25 percent of victims disclose the

abuse within the next five years. The younger the child is when 

first abused tends to correlate with a longer delay in disclosure. 

Additionally, the longer the abuse lasts, the less likely it is to be 

disclosed. When victims disclose abuse, they often do so in small 

parts, and depending upon how their disclosure is received, they 

may report more information or stop altogether. Children who 

disclose abuse also may recant for a variety of reasons. Children

are more likely to recant if they do not feel supported, or if the 

court or child welfare agency becomes involved in the matter. 

Dr. Jones acknowledged that CSAAS is not a diagnosis, but

rather a model developed to assist therapists and families in

understanding why children may delay in disclosing sexual 

abuse. The model only applies to children who have actually 

been abused, and it is not used to determine whether abuse has 

occurred. Dr. Jones had never met A.R. or V.F., and did not know

any of the facts of this case. She was not asked to offer an 
7

opinion about these alleged victims, but rather to testify about 

the disclosure patterns of sexually abused children in general.

II. Jury Verdict and Sentencing

The jury found Farias guilty of three counts of lewd act 

upon a child under the age of 14 (§ 288, subd. (a)), and one count 

of oral copulation or sexual penetration of a child 10 years old or 

younger (§ 288.7, subd (b)). The jury also found true the three

enhancement allegations that Farias committed the offense of 

lewd act upon a child against more than one victim who was

under the age of 14 (§ 667.61). 

The trial court sentenced Farias to a total term of 90 years 

to life in state prison, consisting of 25 years to life on each count 

for lewd act upon a child under the age of 14, and 15 years to life 

on the count for oral copulation or sexual penetration of a child 

10 years old or younger. Farias was awarded 532 days of 

presentence custody credit.

Farias timely appealed. 

DISCUSSION

I. Admission of CSAAS Evidence

Farias first argues that his judgment of conviction must be 

reversed because the trial court erroneously admitted CSAAS 

evidence in violation of his constitutional right to due process and

a fair trial. Farias further asserts that, to the extent he forfeited 

this claim by failing to timely object to the evidence at trial, he 

received ineffective assistance of counsel. We conclude the 

CSAAS evidence was properly admitted, and thus, Farias’s 

ineffective assistance of counsel claim fails. 

A. Governing Law

An expert may give opinion testimony “[r]elated to a 

subject that is sufficiently beyond common experience that the 
8

opinion of an expert would assist the trier of fact.” (Evid. Code, 

§ 801, subd. (a).) “The trial court has broad discretion in deciding 

whether to admit or exclude expert testimony [citation], and its 

decision as to whether expert testimony meets the standard for 

admissibility is subject to review for abuse of discretion.” (People 

v. McDowell (2012) 54 Cal.4th 395, 426.)

It has long been held that expert testimony on CSAAS is 

admissible for the limited purpose of disabusing the jury of 

common misconceptions about how child victims may react to 

sexual abuse. (See People v. McAlpin (1991) 53 Cal.3d 1289, 

1300–1301; People v. Lapenias (2021) 67 Cal.App.5th 162, 171; 

People v. Munch (2020) 52 Cal.App.5th 464, 468; People v. Perez

(2010) 182 Cal.App.4th 231, 245; People v. Patino (1994) 

26 Cal.App.4th 1737, 1744–1746; People v. Bowker (1988) 

203 Cal.App.3d 385, 394–395.) As the California Supreme Court 

explained over 30 years ago, CSAAS evidence is “not admissible 

to prove that the complaining witness has in fact been sexually 

abused; [however,] 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. [Citations.] ‘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 selfimpeaching behavior.’ ” (McAlpin, at pp. 1300–1301, fn. omitted.)

To be admissible, 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.) 

However, identifying the relevant myth or misconception does not

require “the prosecution to expressly state on the record the 
9

evidence which is inconsistent with the finding of molestation. 

It is sufficient if the victim’s credibility is placed in issue due to

the paradoxical behavior, including a delay in reporting a 

molestation.” (People v. Patino, supra, 26 Cal.App.4th at 

pp. 1744–1745.) The prosecution may offer CSAAS testimony in 

its case-in-chief whenever the testimony of the victim may raise 

an “obvious question . . . in the minds of the jurors” as to the 

victim’s credibility, such as “why the molestation was not 

immediately reported if it had really occurred.” (Id. at p. 1745.)

B. The Trial Court Did Not Abuse Its Discretion in 

Admitting the CSAAS Evidence

Farias challenges the admission of Dr. Jones’s CSAAS 

testimony on several grounds. He contends that the evidence 

was irrelevant because CSAAS did not apply to the facts of this 

case and there are no longer misconceptions about child sexual 

abuse to correct. He further argues that Dr. Jones’s specific 

testimony regarding the statistical data on delayed disclosure 

was improper and invaded the role of the jury. In addition, he

asserts that the CSAAS evidence should have been excluded in 

its entirety because it does not satisfy the requirements for the

admissibility of new scientific evidence. Finally, he claims that

admission of the testimony violated his due process rights. We 

conclude that none of these arguments has merit.

In this case, the CSAAS evidence was relevant because 

both complaining witnesses, V.F. and A.R., delayed in disclosing 

the sexual abuse for a number of years, and A.R. also recanted 

shortly after her first attempted disclosure. The evidence at trial 

showed that Farias began abusing V.F. when she was about five 

years old, and A.R. when she was about seven years old. V.F. did 

not disclose the abuse to her mother until she was 13 years old. 
10

A.R. first tried to disclose the abuse to her mother when she was 

15 years old, but she only reported that Farias had kissed her 

and then recanted the following day. It was not until 10 years 

later when she was informed of V.F.’s disclosure that A.R. shared 

with the family that Farias had also sexually abused her. The 

CSAAS evidence was thus admissible to help explain why a 

sexually abused child might not disclose the abuse for many 

years. It also was admissible to help explain why a child who 

eventually discloses sexual abuse might only reveal small

portions of information at a time, or recant if the child does not

feel supported in making the disclosure. 

The CSAAS testimony in this case was also properly 

limited in scope. Prior to the introduction of the evidence, the

trial court instructed the jury that Dr. Jones’s testimony was not

evidence that Farias committed any of the crimes charged 

against him. During the testimony, Dr. Jones explained that she 

had never met or evaluated either V.F. or A.R., and did not know 

any of the facts of this case. Dr. Jones never offered an opinion, 

nor was she asked to offer an opinion, as to whether the evidence 

in this case was consistent with CSAAS. Rather, her testimony 

was confined to dispelling commonly held misconceptions about 

how a child may react to sexual abuse. 

In support of his argument that the public no longer holds 

the misconceptions that CSAAS testimony is intended to address, 

Farias cites to cases from some out-of-state courts concerning the 

admissibility of such evidence. He also claims that “[h]undreds of 

episodes of Law and Order SVU, which deals with victims of sex 

offenses[,] have made these crimes and the reactions of children 

to those crimes well known.” Suffice it to say, we are not 

persuaded. As one appellate court recently explained in rejecting 
11

a similar argument, “CSAAS evidence has been admitted by the 

courts of this state since the 1991 McAlpin decision. . . . [¶] That 

Supreme Court decision is binding on all lower courts in this 

state. [Citation.] That other jurisdictions may disagree with it 

does not change its impact on California cases.” (People v. 

Munch, supra, 52 Cal.App.5th at p. 468; see People v. Lapenias, 

supra, 67 Cal.App.5th at p. 172 [rejecting claim that CSAAS 

testimony is no longer necessary because the public no longer 

harbors misconceptions about child sexual abuse].) We 

accordingly adhere to Supreme Court precedent on the

admissibility of CSAAS evidence in cases such as this one. 

Farias also argues that, even if CSAAS evidence may be

admissible for a limited purpose, Dr. Jones’s testimony on the 

statistics of delayed disclosure was improper because it invaded 

the jury’s role as the sole arbiter of credibility. In support of this 

argument, Farias cites to two California cases in which the Court

of Appeal concluded that a CSAAS expert’s testimony about the 

statistical data on false allegations was inadmissible. (See People 

v. Julian (2019) 34 Cal.App.5th 878, 885 [expert testified that 

rate of false allegations ranged from one to eight percent]; People 

v. Wilson (2019) 33 Cal.App.5th 559, 568 [expert testified that 

false allegations were found in one to six percent of cases].) In 

both cases, however, the expert’s testimony about the infrequent 

rate of false allegations invaded the province of the jury because 

it had the effect of vouching for the veracity of the alleged 

victims. As one court explained, the expert effectively told jury

that “there was at least a 94 percent chance that any given child 

who claimed to have been sexually abused was telling the truth. 

And, although [the] testimony on this point was not expressly 

directed to either [victim], the practical result was to suggest to 
12

the jury that there was an overwhelming likelihood their 

testimony was truthful.” (Wilson, at p. 570.) 

In contrast, the CSAAS expert in this case did not provide

any testimony about the percentage of children who falsely allege

sexual abuse, or whether such occurrences were rare. Rather, 

Dr. Jones testified that, among the population of children who 

have been victims of sexual abuse, about 10 to 15 percent disclose 

the abuse within the first year of its occurrence, and another 20 

to 25 percent disclose the abuse within the next five years. 

Dr. Jones also made clear that the CSAAS model “only applies to 

children who have been abused,” and thus, if there is “a false 

accusation, the model doesn’t fit.” In fact, when defense counsel

specifically inquired about the incidence of false allegations on 

cross-examination, Dr. Jones explained that there was not 

reliable data on the subject, and declined to opine on the 

likelihood that an allegation of sexual abuse would be false. 

Dr. Jones’s testimony on the statistical data concerning delayed 

disclosure was well within the scope of admissible CSAAS 

evidence.

Farias further contends that the CSAAS evidence should 

have been excluded because it does not satisfy the requirements 

of People v. Kelly (1976) 17 Cal.3d 24 and Frye v. United States

(D.C. Cir. 1923) 293 F. 1013. The Kelly rule, formerly known as 

the Kelly/Frye rule, governs the admissibility of evidence based 

on a new scientific method, which requires a showing that the 

method is generally accepted as reliable within the relevant 

scientific community. (People v. Lapenias, supra, 67 Cal.App.5th

at p. 173.) California courts repeatedly have concluded, however,

that the Kelly rule does not apply to CSAAS evidence. (See ibid.; 

People v. Munch, supra, 52 Cal.App.5th at pp. 472–473; People v. 
13

Harlan (1990) 222 Cal.App.3d 439, 449; People v. Gray (1986) 

187 Cal.App.3d 213, 218–219.) This is because “CSAAS 

testimony does not purport to provide a definitive truth; rather, 

the expert testimony attempts to disabuse jurors of 

misconceptions they might hold about the conduct of children 

who have been sexually abused. In short, expert CSAAS 

testimony is not ‘ “ ‘scientific’ ” evidence’ subject to the Kelly rule.” 

(Lapenias, at p. 173.)

We also reject Farias’s claim that the admission of the 

CSAAS testimony deprived him of due process and a fair trial. 

“[R]eviewing courts have routinely held the admission of CSAAS 

evidence does not violate due process.” (People v. Lapenias, 

supra, 67 Cal.App.5th at p. 174; see People v. Patino, supra, 

26 Cal.App.4th at p. 1747 [“introduction of CSAAS testimony 

does not by itself deny [a defendant] due process”].) Here, 

Dr. Jones’s testimony was relevant to the issues presented at 

trial and was limited in scope. Because the trial court properly 

admitted the CSAAS evidence, Farias’s counsel was not 

ineffective in failing to object to it.2 

2 “ ‘ “ ‘In assessing claims of ineffective assistance of trial 

counsel, we consider whether counsel’s representation fell below 

an objective standard of reasonableness under prevailing 

professional norms and whether the defendant suffered prejudice 

to a reasonable probability, that is, a probability sufficient to 

undermine confidence in the outcome.’ ” ’ ” (People v. Johnson

(2016) 62 Cal.4th 600, 653.) Where, as here, an objection to the 

evidence would have been properly overruled, defense counsel’s 

failure to make such objection does not fall below an objective 
14

II. Jury Instruction on CSAAS Evidence

Farias next contends that his judgment of conviction must 

be reversed because the trial court erred in instructing the jury 

with CALCRIM No. 1193, the pattern jury instruction on CSAAS 

evidence. He specifically claims that the instruction lessens the 

prosecution’s burden of proof because it permits the jury to use 

CSAAS evidence as corroboration for the victim’s allegation of

abuse. We conclude this claim likewise lacks merit. 

A. Standard of Review

A claim of instructional error is subject to de novo review. 

(People v. Scully (2021) 11 Cal.5th 542, 592.) An appellate court 

independently reviews the wording of a challenged instruction 

and assesses whether the instruction accurately states the law. 

(People v. Mitchell (2019) 7 Cal.5th 561, 579.) “When a defendant 

claims an instruction was subject to erroneous interpretation by 

the jury, he must demonstrate a reasonable likelihood that the 

jury misconstrued or misapplied the instruction in the manner

asserted.” (People v. Covarrubias (2016) 1 Cal.5th 838, 926.) 

A single instruction may not be judged in isolation, but must be 

considered in the context of the instructions as a whole and the 

trial record. (People v. Lemcke (2021) 11 Cal.5th 644, 655.)

standard of reasonableness. (See People v. Peterson (2020) 

10 Cal.5th 409, 465 [counsel’s performance was not deficient for 

failing to object where “any such objection would have been 

meritless and properly overruled”]; People v. Bell (2019) 7 Cal.5th 

70, 127 [counsel was not ineffective for “failing to raise a futile 

objection”].) Farias’s ineffective assistance of counsel claim 

therefore also fails.
15

B. The Trial Court Did Not Err in Instructing the 

Jury with CALCRIM No. 1193

CALCRIM No. 1193, as given in this case, instructed the

jury: “You have heard testimony from Dr. Jayme Jones 

regarding child sexual abuse accommodation syndrome. [¶] 

Dr. Jones’s testimony about child sexual abuse accommodation 

syndrome is not evidence that the defendant committed any of 

the crimes charged against him or any conduct or crimes with 

which he was not charged. [¶] You may consider this evidence 

only in deciding whether or not [V.F.] and [A.R.’s] conduct was 

not inconsistent with the conduct of someone who has been 

molested, and in evaluating the believability of their testimony.” 

Contrary to Farias’s contention on appeal, CALCRIM 

No. 1193 does not misstate the law or lessen the prosecution’s 

burden of proof. The instruction explicitly states that CSAAS 

testimony is not evidence that the defendant committed the 

charged crimes. It further sets forth the only permissible uses for 

such evidence, which are to evaluate the credibility of the alleged

victim and to determine whether his or her conduct was 

consistent with that of a sexually abused child. Appellate courts 

thus have rejected similar challenges to CALCRIM No. 1193, and 

concluded that the language of the instruction accurately 

describes the proper use, and limitations on the use, of CSAAS 

testimony. (See People v. Lapenias, supra, 67 Cal.App.5th at 

pp. 175–176; People v. Munch, supra, 52 Cal.App.5th at pp. 473–

474; People v. Gonzales (2017) 16 Cal.App.5th 494, 503–504.) 

We agree with the reasoning in those cases. Because there is no 

reasonable likelihood that the jury misconstrued or misapplied 

the instruction in the manner asserted by Farias, the trial court 
16

did not err in instructing the jury on the use of CSAAS evidence 

with CALCRIM No. 1193. 

III. Adequate Notice of One Strike Sentence

Farias argues that his sentence of 25 years to life on each 

count for lewd act upon a child under the age of 14 violated his 

due process rights because he did not receive sufficient notice 

that he would be sentenced under the One Strike Law pursuant 

to section 667.61, subdivision (j)(2). In particular, he asserts that 

the information failed to expressly plead that he was subject to a 

25-year-to-life enhancement under section 667.61, subdivision 

(j)(2), for committing the offense against more than one victim 

who was under the age of 14. We conclude Farias received 

constitutionally adequate notice of his One Strike sentence

under the circumstances of this case.

A. Governing Law

Section 667.61, known as the One Strike Law, creates an 

alternate, harsher sentencing scheme for certain enumerated sex

offenses committed under specified circumstances. (People 

v. Mancebo (2002) 27 Cal.4th 735, 738.) Subdivision (c) of the 

statute identifies the qualifying offenses, which include lewd or

lascivious conduct in violation of section 288, subdivision (a). 

(§ 667.61, subd. (c)(8).) Subdivision (e) specifies the qualifying 

aggravating circumstances, including where a defendant has

been convicted of committing the offense against more than 

one victim. (Id., subd. (e)(4).)

As relevant here, subdivision (a) of the statute provides 

that, subject to the exception set forth in subdivision (j), a person 

convicted of a qualifying offense “under two or more of the 

circumstances specified in subdivision (e) shall be punished by 

imprisonment in the state prison for 25 years to life.” (§ 667.61, 
17

subd. (a).) Subdivision (b) mandates that, except as provided in 

subdivision (a) or (j), a person convicted of a qualifying offense 

“under one of the circumstances specified in subdivision (e) shall 

be punished by imprisonment in the state prison for 15 years to 

life.” (Id., subd. (b).) Subdivision (j) sets forth an exception to the 

requirement that there must be two or more aggravating 

circumstances under subdivision (e) for a defendant to be subject

to the longer 25-year-to-life term mandated by subdivision (a). 

(Id., subd. (j)(2).) Specifically, section 667.61, subdivision (j)(2) 

provides that “[a] person who is convicted of an offense specified 

in subdivision (c) under one of the circumstances specified in 

subdivision (e), upon a victim who is a child under 14 years of 

age, shall be punished by imprisonment in the state prison for 

25 years to life.” (Ibid.)

B. Farias Received Adequate Notice That He Was 

Subject to the 25-Year-to-Life Enhancement

In this case, Farias was convicted of three counts of lewd 

act upon a child under the age of 14 in violation of section 288, 

subdivision (a). Two of the counts were for the offenses against 

V.F., and one count was for the offense against A.R. As to each 

count, the jury also found true the section 667.61 enhancement 

allegation that the offense was committed against more than one 

victim and against a child who was under the age of 14. 

Therefore, as to each of these three counts, Farias was subject to

a term of 25 years to life pursuant to section 667.61, 

subdivision (j)(2). 

The question of whether an accusatory pleading must 

expressly allege section 667.61, subdivision (j)(2), to provide a 

defendant with adequate notice of a qualifying 25-year-to-life

enhancement is currently pending before our Supreme Court. 
18

(See People v. Zaldana (2019) 43 Cal.App.5th 527, review granted 

Mar. 18, 2020, S259731 (Zaldana); In re Vaquera (2019) 

39 Cal.App.5th 233, review granted Nov. 26, 2019, S258376

(Vaquera).) In Zaldana, this court held the defendant had 

adequate notice that he was subject to a 25-year-to-life term 

under section 667.61, subdivision (j)(2), even though that 

subdivision was not expressly pleaded. (Zaldana, at p. 535.) 

Instead, the information alleged that, “ ‘within the meaning of 

Penal Code section 667.61(b),’ ” the defendant “ ‘committed an 

offense specified in Section 667.61(c) against more than one 

victim.’ ” (Ibid.) We concluded that this was sufficient to put the 

defendant on notice that he could be sentenced to section 667.61’s 

longer term because the information specifically referenced

subdivision (b), which “itself refers to subdivision (j), identifying 

it as an exception to the shorter 15-year-to-life term.” (Zaldana, 

at p. 535.) Further, “[b]ecause the information alleged both 

[victims] were under the age of 14 when [defendant] molested 

them, there was no doubt he was on notice that he could be 

subject to subdivision (j)(2).” (Ibid.; accord, Vaquera, at p. 235 

[“facts alleged in the information, as well as the 25-year-to-life 

exception under section 667.61, subdivision (j)—which is 

specifically mentioned within section 667.61, subdivision (b)—

gave [defendant] fair notice that he was subject to a sentence of 

25 years to life”]; but see People v. Jimenez (2019) 35 Cal.App.5th 

373, 397 [where information only informed defendant he could be 

sentenced to enhancement under section 667.61, subdivisions (b) 

and (e), he did not have adequate notice of 25-year-to-life 

sentence under subdivision (j)(2)].)

Pending further guidance from the Supreme Court, we

continue to follow Zaldana, supra, 43 Cal.App.5th 527. Here, the 
19

information charged Farias in counts 1, 2, and 4 with committing 

a lewd act upon a child under the age of 14 in violation of section 

288, subdivision (a). The information further alleged that, as to 

these counts, “within the meaning of Penal Code section 

667.61(a) and (d),” Farias “committed one of the specified offenses 

pursuant to [section] 667.61(c) with a child under 14 and with 

more than one victim.” The face page of the information also 

stated that each count included an allegation under “PC 

667.61(a)/(d),” and that the effect of such allegation was a “25 to 

Life State Prison” term.

Accordingly, while the information did not expressly 

reference section 667.61, subdivision (j)(2), it did allege that 

Farias committed a violation of section 288, subdivision (a) 

against two victims, both of whom were under the age of 14 at the

time of the offense. In alleging the sentence enhancement that

Farias committed these offenses against more than one victim

and against a child under age 14, the information also specifically 

referenced section 667.61, subdivision (a), which itself provides 

for a 25-year-to-life term where there are two or more 

aggravating circumstances proven, except as provided in 

subdivision (j). The information further made clear that each 

count included a section 667.61 enhancement allegation that 

could subject Farias to a term of 25 years to life in state prison. 

Additionally, in proceedings held shortly before trial, the trial

court repeatedly informed Farias that he was facing a maximum 

sentence of 115 years to life if convicted on all counts, including 

the enhancement allegations. Farias stated that he understood 

and wanted to go forward with the trial. On this record, Farias 

received adequate notice that he was subject to three 25-yearto-life terms pursuant to section 667.61, subdivision (j)(2). 
20

IV. Claim of Cruel and Unusual Punishment

Farias contends that his aggregate sentence of 90 years to

life violates the federal and state constitutional bans on cruel and 

unusual punishment because it is tantamount to a sentence of

life without the possibility of parole. Because Farias did not

assert this objection in the trial court, he has forfeited the claim 

on appeal. (See People v. Burgener (2003) 29 Cal.4th 833, 886 

[defendant forfeited Eighth Amendment claim “by failing to 

articulate an objection on federal constitutional grounds” below]; 

People v. Speight (2014) 227 Cal.App.4th 1229, 1247 [“defendant’s 

failure to contemporaneously object that his sentence constitutes 

cruel and unusual punishment forfeits the claim on appellate 

review”].) Even if not forfeited, however, the claim fails.

A. Governing Law

A sentence violates the federal Constitution only if it is 

grossly disproportionate to the severity of the crime. (Graham v. 

Florida (2010) 560 U.S. 48, 60; Ewing v. California (2003) 

538 U.S. 11, 23.) The Eighth Amendment “ ‘does not require 

strict proportionality between crime and sentence.’ ” (Graham, at 

p. 60.) Hence, “ ‘outside the context of capital punishment, 

successful challenges to the proportionality of particular 

sentences have been exceedingly rare.’ ” (Ewing, at p. 21.)

A sentence violates the California Constitution if “it is so

disproportionate to the crime for which it is inflicted that it 

shocks the conscience and offends fundamental notions of human 

dignity.” (In re Lynch (1972) 8 Cal.3d 410, 424.) To determine 

whether a sentence is cruel or unusual as applied to a particular 

defendant, a reviewing court generally “ ‘must examine the 

circumstances of the offense, including motive, the extent of the 

defendant’s involvement in the crime, the manner in which the 
21

crime was committed, and the consequences of the defendant’s 

acts. The court must also consider the personal characteristics of

the defendant, including his or her age, prior criminality, and 

mental capabilities.’ ” (People v. Gonzales (2012) 54 Cal.4th 1234, 

1300.) Successful challenges to a sentence as cruel or unusual 

punishment under California law also “are extremely rare.” 

(People v. Perez (2013) 214 Cal.App.4th 49, 60.) “ ‘Whether a

punishment is cruel or unusual is a question of law for the 

appellate court, but the underlying disputed facts must be viewed 

in the light most favorable to the judgment.’ ” (People v. Gomez

(2018) 30 Cal.App.5th 493, 499.)

B. Farias’s Sentence Is Not Constitutionally Cruel 

or Unusual

Farias challenges the constitutionality of his sentence on 

the grounds that it serves no rational legislative purpose because 

a sentence of 90 years to life cannot possibly be served within his 

lifetime, and thus amounts to life in prison without the 

possibility of parole. Numerous courts have concluded, however, 

that the fact that a sentence exceeds a defendant’s life expectancy 

does not necessarily render it constitutionally cruel or unusual. 

(See, e.g., People v. Byrd (2001) 89 Cal.App.4th 1373, 1382–1383

[upholding sentence of 115 years plus 444 years to life despite 

defendant’s inability to serve sentence during his lifetime]; People 

v. Cartwright (1995) 39 Cal.App.4th 1123, 1135–1136 [upholding 

sentence of 375 years to life plus 53 years for series of violent 

sexual assaults]; People v. Wallace (1993) 14 Cal.App.4th 651, 

666–667 [upholding sentence of 283 years and 8 months for 46 

sex offenses against seven victims]; People v. Bestelmeyer (1985) 

166 Cal.App.3d 520, 531–532 [upholding sentence of 129 years 

for 25 sex crimes against one victim].) As the court in Byrd
22

explained: “[I]t is immaterial that defendant cannot serve his 

sentence during his lifetime. In practical effect, he is in no 

different position than a defendant who has received a sentence 

of life without possibility of parole: he will be in prison all his 

life. However, imposition of a sentence of life without possibility 

of parole in an appropriate case does not constitute cruel or 

unusual punishment under either our state Constitution 

[citation] or the federal Constitution.” (Byrd, at p. 1383.)

Although Farias’s sentence may be severe, comparing it 

with the gravity of his offenses does not give rise to an inference 

of gross disproportionality. Farias committed multiple sexual 

offenses against his daughter and his stepdaughter. He began 

sexually abusing V.F. when she was five years old and A.R. when

she was seven years old. The abuse continued over a 

considerable length of time. At Farias’s sentencing, the trial 

court heard statements from both victims about the trauma that

they suffered as a result of their father’s sexual abuse. 

Moreover, Farias’s sentence on three of the four counts was

imposed under the One Strike Law, which as discussed,

mandates an indeterminate life sentence where the defendant 

committed a sexual offense against more than one victim and

against a child under the age of 14. (§ 667.61, subd. (j)(2).) 

The mandatory nature of the One Strike Law “reflects the

Legislature’s zero tolerance toward the commission of sexual 

offenses against particularly vulnerable victims.” (People v. 

Alvarado (2001) 87 Cal.App.4th 178, 200–201.) “It is well within 

the prerogative of the Legislature to determine that sex offenses

against young children are deserving of longer sentences than sex

offenses against adults or nonsex offenses.” (People v. Gomez, 

supra, 30 Cal.App.5th at p. 502; see People v. Baker (2018) 
23

20 Cal.App.5th 711, 729 [“ ‘great deference is ordinarily paid to 

legislation designed to protect children, who all too frequently are

helpless victims of sexual offenses’ ”].) Given the severity of his 

offenses, Farias has not shown that his sentence is so harsh as to 

shock the conscience or to offend fundamental notions of human 

dignity. He has therefore failed to demonstrate that his

punishment is constitutionally cruel or unusual.

V. Presentence Custody Credit

Lastly, Farias contends, and the People concede, that the

judgment must be modified to accurately reflect Farias’s

presentence custody credit. At sentencing, Farias was awarded 

532 days of presentence custody credit, consisting of 463 days of 

actual custody credit and 69 days of conduct credit. However, 

because Farias spent 464 days in custody prior to sentencing, he 

is entitled to one additional day of actual custody credit for a total 

presentence custody credit of 533 days. The abstract of judgment 

must be modified accordingly. 

DISPOSITION

The judgment is modified to award Farias a total of 

533 days of presentence custody credit, consisting of 464 days of 

actual custody credit and 69 days of conduct credit. As modified, 

the judgment is affirmed. The superior court is directed to 

prepare an amended abstract of judgment, and to forward a 

certified copy to the Department of Corrections.

VIRAMONTES, J.
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We concur:

STRATTON, P. J.

GRIMES, J.