Filed 8 / 19 / 21 P. v. Bana les CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,

Plaintiff and Respondent,

v.

SALVADOR BANALES,

Defendant and Appellant. 2d Crim. No. B302221 (Super. Ct. No. 2018029370) (Ventura County)

Salvador Banales appeals a judg ment following his
conviction for committing a lewd act on a child under 14 years of age (Pen. Code, 1 § 288, subd. (a) ) (counts 1

- 2, 4

- 6); and committing a lewd act on a 14

- or 15

- year

- old child (§ 288, subd. (c) (1) ) (counts 7

- 8)

. The jury found Banales was subject to the enhanced punishme nt provision of section 667.61. The court
sentenced him to an aggregate prison term of 75 years to life, plus three years eight months.

1 All statutory references are to the Penal Code.2 We con clude, among other things, that 1) the trial court did not abuse its discretion by denying a request for a continuance for Banales to attempt to find private couns el; 2) the court did not

err by admitting Child Sexual Abuse Accommod ation Syndrome (CSAAS) evidence; 3) Banales has not shown prosecutorial misconduct; 4) the court did not contravene Banales’ s constitutional rights when it imposed fines and fees ; but 5) the

court erred in imposing a fine and penalty assessments under
section 290.3. We strike the fine and penalty assessments under
section 290.3 . In all other respects

, we affirm.
FACTS Child Victim 1 (CV1) , a 13

- year

- old girl, testified that one night she was sleeping on a couch. S he was awakened by
Banales wh o was kissing her on her mouth. He put his tongue in
her mouth

, put his han d on her thigh near her “crotch, ” and licked her ear with his tongue. A family member called the police.
A surveillance video camera in t he home reco rded this
incident. The police took a “clip of the incident” recorded on the
surveillance video as evidence. The police questioned Ban ales and he admitted kissing the child and placing his tongue in her mouth. He said , “[S] he’s
kinda .

. . attractive to me.” Child Victim 2 (CV2)

, now an adult, testified about events
that occurred when sh e w as a child. She said when she was 9 or
10 years old

, Banales unbuckled he r pants and touched her vagina. When she was either 8 or 10 years old

, he unzipped his
pant s and put her hand on his p enis. Banal es said she “was a
who re like [her ] mom” and “one day [she would] be on [her] knees
for him.”3 CV2 testified Banales would stick out his tongue an d make
“sexualized statements.” He touched her breast. She did not te ll
her mother about these events. Banales told her if she reported
these events

, he would have her mother arrested. CV2 was scared.
In another incident C V2 was sleeping on a couch. Banales

ca me over and touched her breast. One time C V2 was wearing a
L ittle Mermaid dress. Banales said he wanted to see if she was still a virgin. He stuck his fingers inside her vagina. During one
incident when C V2 was riding in a truck with Banales, he pulled
off the side of the road. He put his hand on her thigh and said

, “[C] ome on, just this one time.”
When CV2 was 15 years old doing homework, Banales came in completely naked. He opened the door a nd “ threw himself on [her].” He was drunk. His tongue was on her neck.
He licked her. C V2 testified, “I th ought he was going to rape me.”
He t ried to take her clothes off. When she was 14, Banales subjected her to “household love taps” where he wo uld touch her breast or vagina. Child Victim 3 (C V3), now an adult

, testified about event s that occurred when she was a c hild. She said Banales would ask her if she was a virgin. He said, “Let me check.” Banales
directed more of his attention to CV2. CV2 was the “weakest
one.” CV3 was afraid to disclose Banales’ s sexual abuse “b ecause he was the provider in [her] family household.

. . . He was the one with the job. H e was the one paying the rent.”
On CV3’s 1 5th birthday

, she woke up to Banales “kissing [her] and touching [he r].” He put his tongue in her mouth. He touched her “inner thigh.”4 Testimony o n CSAAS
Doctor Veronica Thomas, a clinical and forensic psychologist, testified about the components of CSAAS

. She said
Doctor Summit

, who authored the CSAAS study

, intended “it to dispel myths and misconceptions that the public may have regarding the way children or s exual abuse survivo rs respond
and react to abuse.”
Thomas said “secrecy” is a CSAAS component that recognizes that children experiencing sexual abuse “may know not to say anything to anybody for a variety of reasons or they may be told don’t say anything to anybody. . . . There are a lot of
reasons that .

. . can be very terrifying for a child to consider saying anything to anyone. ” A number of factors that contribute to the delay by children in reporting sexual abuse include “shame,” “self

- doubt,” “help lessness,” the child’s learned ability to cope with the sexual abuse, and a child’s ignorance about
whether the sexual abuse the child is experiencing is wrong.
Thomas testified children wh o are abused “get accustomed

to [ it ]” and “it becomes part of thei r normal.” “[T]hey put it out of
their mind or they pretend to be asleep.” That w ould be “one coping mechanism.” Most disclosures about child sex ual abuse
“occur in adulthood.” Some children who have reported abuse may recant the claim of abuse.
Thoma s testified that she had not interviewed or met the
vic tims or witnesses in this case. The trial c ourt instructed jurors
that Thomas’ s testimony on CSAAS “is not evidence that the defendant committed any of t he crimes charged against him.”5 DISCUSSION Deny ing t he Request for a Continuance Banales contends the trial court erred by denying a
continuance to allo w him “ the opportun ity to retain private
counsel.” The People respond that the request for a continuance “was untimely and the court was within its d iscretion to deny it.” We

agree. On September 4, 2019, before the start of trial, Banales requested a two

- to three

- month continuance so h e could retain private counsel. Banales’ s appointed counsel was prepared to

proc eed to trial. The court denied the request. “[T]he courts will make all reasonable efforts to i nsure that a defendant financially able to retain an attorney of his own choice can be represented by that attorney.” ( People v. Johnson (1970) 5 Cal.App.3d 851, 858.) The trial court has “bro ad discretion” to decide whether there is good cause for a
continuance

. ( People v. Jenkins (2000) 22 Cal. 4th 900, 1037.) A showing of good cause requires the defendant to act with due diligence. ( Ibid .) Factors a court may consider in denying a
request for continuance to substitute private counse l for appointed counsel include: 1) unjustified delay in asserting a “desire to retain private counsel,” 2) making the request on the day of trial, and 3) “failure of the alleged private counsel to
contact the court.” ( Johnson

, at pp. 858

- 859.) The court may also consider the burden on witnesses scheduled to testify. ( Jenkins

, p. 1037.) Here the prosecutor objected to the continuance , claiming 1) the case had been “assigned to a courtroom” for trial, 2) both sides had “announced ready,” 3) Banales was represented by the6

public defender, and 4) a continuance would cause undue hardship to the victim witnesses

. Banales’ s appointed counsel
told the court that he first learned that Ban ales wanted private
counsel 5 to 10 “minutes ago.”
The trial court asked Banales

, “H ave you spoken t o any private defense attorneys? ” Banales: “My son has. I haven’t.”
The court asked when his son spoke to private counsel. Banales responded, “Over this Labor Day weekend. ” The court: “Does your son know your trial is commencing?” Banales: “No, sir.”
The court: “Have you retained any attorney?” Banales: “No.
Sir.” The People note that although Banales was initially

repr esented by private counsel, appointed counsel ha d

rep resented him since March 2019 and this case had been continued multiple times. They note that on Ma r ch 28 the case was continued to April 12

. On April 12, it was continued to May
9

. On May 20, it was continued to June 4. On May 29, it was
continued to June 19. On June 18, it was c ontinued to August 1. On August 1

, it was continued to August 20. On August 20, it was continued to August 28

. On A ugust 28, it was continued to September 3 . On September 3, all parties announced they were ready for trial.
Banales was “given numerous opportunities to hire an attorney of his own choice” during the numerous continuances granted in this case. ( People v. Blake (1980) 105 Cal.App.3d 619, 624.) As the People note, Banales had not retained private counsel, had not spoken to private counsel, and he was not even able to provide the court with the name of any private attorney. He had only informed his appointed counsel about the private
counsel issue minutes before the hearing started. No private7

attorney had co ntacted the court to confirm any agreement to represent Banales. Banales’ s son was not in court. Nor did his son provide any information to the court. The prosecutor objected to the continuance on multiple grounds, including that a
continuance would cau se “undue hardship to the vi ctims, two of
whom are minors.” These factors supported the court’s decision to deny the continuance. ( People v. Johnson, supra , 5 Cal.A pp.3d at pp. 858

- 859.) In addition, this request was not supported by a declaration (§ 10 50, subd. (b) ) or any evidence. Consequently, there is no evidentiary support for the factual claims Banales asserted in the request for a continuance. The trial court was in the exclusive position to deter mine the credibility of his unsworn statements i n court in support of his request. As Banales concedes

, he had previously filed a Marsden motion ( People v. Marsden (1970) 2 Cal.3d 118) that the trial c ourt found to be without merit

.

Admission of CSAAS Evidence
Banales contends the trial court erred in a dmitting expert testimony on CSAAS

. He claims

, “California courts should join
the well

- reasoned decisions of .

. . sister jurisdictions and hold
that CSAAS evidence is inadmissible for all purposes.” The People contend this evidence was properly admitt ed “to disabuse the jury of common misperceptions about child sexual abuse, in particular regarding why children delay reporting
abuse.” (Boldface omitted.) We agree. Our Supreme Court has held that CSAAS evidence “is
admissible to rehabilitate such wi tness’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 (1991) 538

Cal.3d 1289, 1300.) “ ‘Such expert te stimony is needed to disabuse jurors of commonly held misconceptions about child sexual abuse, and to explain the emotional antecedents of abused
children’s seemin gly self

- impeaching behavior.’ ” ( Id . at p. 1301.) Such evidence “is not admissible to prov e that the complaining witness has in fact been sexually abused.” ( Id

. at p. 1300.) “The expert is not allowed to give an opinion on whether a witness is telling the truth

. . . .” ( People v. Long (2005) 126 Cal.App. 4th 865, 871.)
Banales cites a smal l number of out

- of

- state courts that he

argues reached a different result than McAlpin

. We decline his invitation to reject McAlpin

. Our Supreme Court decision is binding on all lower courts in this state. ( Auto Equity Sales, Inc. v. Superior Court (196 2) 57 Cal.2d 450, 455.) Moreover, California is not alone in admitting this expert testimony. In McAlpin

, the court said, “ ‘The great majority of courts a pprove such expert

. . . testimony.’ ” ( People v. McAlpin

, supra , 53 Cal.3d
at p. 1301.) McAlpin was decided in 1991. Banales claims since then other jurisdictions have declined to follow McA pi n

. He suggests this trend establishes that CSAAS is no longer a viable doctrine. But we rejected this claim in People v. Munch (2020) 52 Cal.App. 5th 464, 47 0

- 472. We held that currently “the vast majority of jurisdictions . . . have rendered decisions that are
consistent with McAlpin .” ( Id . at p. 472.)
Th e defense theory was that the People’s wit nesses were not credible and they did no t immediately report the crime

. Defense counsel told the jury , “So all of a sudden they are in their early to mid 20s and they come f orward with these allegations.”
Counsel stressed one of the witnesses “didn’t report anything to9

law enforcement” at the time of the incident. But delay in reporting is not unusual for child sex abuse victims . This CSAAS
evidence was important for the jury to consider why sexually abused children often delay in reporting the crime

. ( People v. McAlpin

, supra , 53 Cal.3d at pp. 1300

- 1301.)
The trial court instructed jurors that Doctor Thomas’ s testimony on CSAAS “is not evidence that the defendant committed any of the crimes charged against him.” Thomas
testified that she had not interviewed or met the victim s. No

rea sonable juror would conclu de that her testimony constituted an opinion about the credibility of any particular witness in this

case or on the issue of Banales’ s guilt or innocence. She merely explained the common behavior of sexually abused children

. She
testified about the reaso ns why they delay in reporting these crimes, including such factors as shame, self

- doubt , helplessness, the child’s ability to cope with the sexual abuse, and ignorance
about whether the sexual conduct is wrong. Banales has not
shown that the court erred by admitting evidence on CSAAS. Moreover, Banales h as not shown how the exclusion of this testimony would change the result. The People’s case was strong. They note “the defense presented no evidence, and .

. . the defense closing argument failed to ide ntify any factual
inconsistencies in [ the witnesses’ testimony ]

. ” The jury found the People’s witnesses to be credible.

Prosecutorial Misconduct
I n closing argument Banales contends the prosecutor committed misconduct by appealing to the “passio ns and

p rejudices of the jury.” In commenting on the evidence

, the prosecutor told the jury to review a video in evidence showing “that a 68

- year old man10

would French kiss a 12

- year

- old as she slept. ” He said, “There is no innocent explanation for this behavior. This is repulsive .” (Italics added.) Defense counsel objected. The objection was
overruled. Later the prosecutor said, “[ P]redators in the quest for their predation will often single out and isola te the weakest among a family.” Defense counsel objec ted. The trial court overruled the objection. It said the
comments “fell wi thin the factual testimony ” and did not cross
“the line.” A prosecutor may not eng age in “ ‘ “ ‘ a pattern of conduct

“ so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process. ” ’ ” ’ ” ( People v. Hill (1998) 17 Cal. 4th 800, 819.) Nor may a prosecutor use deceptive or reprehensible methods to attempt to persuade the jury. ( Ibid .) Statements by the prosecutor to the jury must be
considered in context. ( People v. Edelbacher (1989) 47 Cal.3d 983, 1030.) “Argument may be vigorous and may include opprobrious epithets reasonably warranted by the evidence.” ( Ibid .) In Edelbacher

, the following strong language by the prosecutor d id not cross the line into p rosecutorial misconduct

– “contract killer,” “snake in the jungle,” “slick,” a “pathological liar,” and “one of the greatest liars in the history of Fresno County.” ( Ibid .) Here the term “repulsive” was not a reference to Bana les per se, but to his conduct

. The use of this term was an inference
drawn to distinguish his lewd conduct shown by the evidence
from claims by the defense that it was benign or non

- sexual

. It
was a comment made in the discussion of the evidence in the
record

. ( People v. Edelbacher

, supra , 47 Cal.3d at p. 1030.) The11

language about predators seeking out “the weakest among the family” was also support ed by evidence in the record. One sister testified that Banales “predatored .

. . on the weakest one out of
all of us.” She said that wea ker one “was more of a victim.” The prosecutor’s comment was related to evidence in the record. Banales has not shown prosecutorial misconduct.
Due ñ as Banales notes the trial court imposed fines and fees, including a $3

, 000 fine under section 1202.4, and a $3

, 000 fine under section 288, subdivision (e). Citing People v. Due ñ as (2019) 30 Cal.App. 5th 1157, h e claims all the fines and fees imposed must be vacated “because the court imposed them absent a
determination of hi s present ability to pay.”
The trial court found that imposing the fines would not violate the Eighth Amendment, the fines were “proportionate,” and Banales “will have the opportunity in custody to work and earn money that coul d be used to pay his fines. ” In assessing the
fines and fees

, the court stated that it was relying on People v.
Aviles (2019) 39 Cal.App. 5th 1055.
In Duenas

, the appellate court held that imposing fines on defendants who lack the ability to pay violates due process. ( People v. D ue ñ as , supra , 30 Cal.App. 5th at p. 1168.) Courts following Due ñ as have held the defendant must have “the opportunity to request a hearing on his ability to pay

. . . .” ( People v. Santos (2019) 38 Cal.App. 5th 923, 934

- 935, italics added.) Here Banales h ad that opportunity. His counsel claimed he did not have the ability to pay. But he did not request an evidentiary hearing on that issue. The defendant is “obligated to create a reco rd showi ng his inability to pay. ” ( People v. Aviles

, supra , 39 Cal.Ap p. 5th at12

p. 1074.) Because Banales is in the best position to know his own financial condition, he has the burden to present evidence at a hearing to show why a fine should not be imposed. ( People v.
Frandsen (2019) 33 Cal.App. 5th 1126, 1154.) He has no t met his
burden. Banales has not shown that the fines and fees are “grossly disproportional” when compared to the gravity of his felony offenses. ( United States v. Bajakajian (199 8) 524 U.S. 321, 334; Aviles

, at p. 1070.)
Nor has Banales shown why the trial court could not reasonably find ability to pay in installments. D ocumentar y evidence in the record shows Banales was receiving income.
Banales filed a financial declaration with the probation department showing current monthly retirement incom e of $2 ,800 , which would amount to a yearly income of $33,600.
Banales has not shown why the court could not reasonably reject his claim that he lacked the ability t o pay any fines or fees given
that amount of income. In addition, “ ‘ “ a bility to pay does not necessarily require existing employm ent or cash on hand. ” ’ ” ( People v. Aviles

, supra , 39 cal.App. 5th at p. 1076.) The court may consider the defendant’s ability to pay in the future. ( Ibid .) This may include the defendant’s “ability to earn prison w ages.” ( People v. Santos

, supra , 38 Cal.App. 5th at p. 934 .) These fines may be paid in
installments.
Banales claims he would not be able to earn prison wages. The probation report reflects, among other things, that he told the probation department tha t he is 70 years of age, he has diabetes, suffers from high blood pressure

, and takes
medications. But Banales made no evidentiary showing at the hearing about inability to pay from prison wages. ( People v.13

Aviles

, supra , 39 Cal.App. 5th at p. 1076; Peopl e v. Frye (1994) 21 Cal.App. 4th 1483, 1487.) The probation report recommended that Banales be sentenced to prison and pay fines. But i t made
no determination about his alleged inability to earn prison wages.
This is a matter Banales should have presente d to the court with
evidence under oath

. The trial court indicated that it was relying on Aviles , not
Duenas

. Bu t the record does not show that it would have refused
a request to present evidence to preserve a record on appeal on
Banales’ s ability to pa y had counsel requested one. Banales has not shown grounds to excuse his failure to request an evidentiary hearing and present evidence to preserve an adequate record

. ( People v. Frandsen

, supra , 33 Cal.App. 5th at p. 1154.)

The Fine Under Section 290.3 Banales and the People agree that the trial court erred by imposing a $2

, 000 fine plus penalty assessments under section

290.3. The trial court said, “Pursuant to Penal Code section 290.3, he’s ordered to pay a fine of $2

, 000, in cluding penalties

assessme nts.” There was no finding or indication as to what those penalty assessments were. In view of this concession, we strike the $2,000 fine and penalty assessments under section 290.3.
DISPOSITION
We strike the $2,000 fine and penalty assessments under

se ction 290.3

. In all other respects

, we affirm the judgment.
NOT TO BE PUBLISHED.

GILBERT, P. J.
We concur: YEGAN, J. TANGEMAN, J.14 Gilbert A. Romero, Judge

Superior Court County of Ventura

______________________________

Jennifer A. Mannix, un der appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey , Assistant Attorney General, Scott A. Taryle and Idan Ivri, Deputy Attorneys G eneral, for Plaintiff and Respondent.