Filed 8/19/21 P. v. Banales 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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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 judgment 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 punishment 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 conclude, 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 counsel; 2) the court did not 

err by admitting Child Sexual Abuse Accommodation 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. She was awakened by 

Banales who was kissing her on her mouth. He put his tongue in 

her mouth, put his hand on her thigh near her “crotch,” and 

licked her ear with his tongue. A family member called the 

police.

A surveillance video camera in the home recorded this 

incident. The police took a “clip of the incident” recorded on the 

surveillance video as evidence.

The police questioned Banales 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 she was a child. She said when she was 9 or 

10 years old, Banales unbuckled her pants and touched her 

vagina. When she was either 8 or 10 years old, he unzipped his 

pants and put her hand on his penis. Banales said she “was a 

whore like [her] mom” and “one day [she would] be on [her] knees 

for him.”
3

CV2 testified Banales would stick out his tongue and make 

“sexualized statements.” He touched her breast. She did not tell

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 CV2 was sleeping on a couch. Banales 

came over and touched her breast. One time CV2 was wearing a 

Little 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 CV2 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 and “threw 

himself on [her].” He was drunk. His tongue was on her neck. 

He licked her. CV2 testified, “I thought he was going to rape me.” 

He tried to take her clothes off. When she was 14, Banales 

subjected her to “household love taps” where he would touch her 

breast or vagina.

Child Victim 3 (CV3), now an adult, testified about events

that occurred when she was a child. 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 “because 

he was the provider in [her] family household. . . . He was the 

one with the job. He was the one paying the rent.”

On CV3’s 15th birthday, she woke up to Banales “kissing 

[her] and touching [her].” He put his tongue in her mouth. He 

touched her “inner thigh.”
4

Testimony on 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 sexual abuse survivors 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,” “helplessness,” 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 who are abused “get accustomed 

to [it]” and “it becomes part of their normal.” “[T]hey put it out of 

their mind or they pretend to be asleep.” That would be “one 

coping mechanism.” Most disclosures about child sexual abuse 

“occur in adulthood.” Some children who have reported abuse

may recant the claim of abuse.

Thomas testified that she had not interviewed or met the 

victims or witnesses in this case. The trial court instructed jurors 

that Thomas’s testimony on CSAAS “is not evidence that the 

defendant committed any of the crimes charged against him.”
5

DISCUSSION

Denying the Request for a Continuance

Banales contends the trial court erred by denying a 

continuance to allow him “the opportunity to retain private 

counsel.”

The People respond that the request for a continuance “was 

untimely and the court was within its discretion to deny it.” We 

agree.

On September 4, 2019, before the start of trial, Banales 

requested a two- to three-month continuance so he could retain 

private counsel. Banales’s appointed counsel was prepared to 

proceed to trial. The court denied the request.

“[T]he courts will make all reasonable efforts to insure 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 “broad 

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 counsel 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 the 
6

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 Banales wanted private 

counsel 5 to 10 “minutes ago.”

The trial court asked Banales, “Have you spoken to 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 

represented by private counsel, appointed counsel had 

represented him since March 2019 and this case had been 

continued multiple times. They note that on March 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 continued to August 1.

On August 1, it was continued to August 20. On August 20, it 

was continued to August 28. On August 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 private 
7

attorney had contacted 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 cause “undue hardship to the victims, two of 

whom are minors.” These factors supported the court’s decision 

to deny the continuance. (People v. Johnson, supra, 5 Cal.App.3d 

at pp. 858-859.)

In addition, this request was not supported by a declaration

(§ 1050, 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 determine the credibility of his unsworn statements in

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 court found to be without merit.

Admission of CSAAS Evidence

Banales contends the trial court erred in admitting 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 admitted “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 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 (1991) 53 
8

Cal.3d 1289, 1300.) “ ‘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.’ ” (Id. at p. 1301.) 

Such evidence “is not admissible to prove 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 small 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 (1962) 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 approve 

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 McApin. 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, 470-472. We held that currently “the vast 

majority of jurisdictions . . . have rendered decisions that are 

consistent with McAlpin.” (Id. at p. 472.)

The defense theory was that the People’s witnesses were 

not credible and they did not 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 forward with these allegations.” 

Counsel stressed one of the witnesses “didn’t report anything to 
9

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 victims. No

reasonable juror would conclude 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 reasons 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 has 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 identify any factual 

inconsistencies in [the witnesses’ testimony].” The jury found the 

People’s witnesses to be credible. 

Prosecutorial Misconduct

In closing argument Banales contends the prosecutor 

committed misconduct by appealing to the “passions and 

prejudices 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 man 
10

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 isolate the weakest among a 

family.” Defense counsel objected.

The trial court overruled the objection. It said the 

comments “fell within the factual testimony” and did not cross 

“the line.”

A prosecutor may not engage 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 did not cross the line into prosecutorial 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 Banales

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.) The 
11

language about predators seeking out “the weakest among the 

family” was also supported by evidence in the record. One sister 

testified that Banales “predatored . . . on the weakest one out of 

all of us.” She said that weaker one “was more of a victim.” The 

prosecutor’s comment was related to evidence in the record.

Banales has not shown prosecutorial misconduct.

Dueñas

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. Dueñas (2019) 

30 Cal.App.5th 1157, he claims all the fines and fees imposed 

must be vacated “because the court imposed them absent a 

determination of his 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 could 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. Dueñas, supra, 30 Cal.App.5th at p. 1168.) Courts 

following Dueñas 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 had 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 record showing his 

inability to pay.” (People v. Aviles, supra, 39 Cal.App.5th at 
12

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 not 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 (1998) 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. Documentary 

evidence in the record shows Banales was receiving income.

Banales filed a financial declaration with the probation 

department showing current monthly retirement income 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 to pay any fines or fees given

that amount of income.

In addition, “ ‘ “ability to pay does not necessarily require 

existing employment 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 wages.” (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 that 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; People v. Frye (1994) 21 

Cal.App.4th 1483, 1487.) The probation report recommended 

that Banales be sentenced to prison and pay fines. But it made 

no determination about his alleged inability to earn prison wages.

This is a matter Banales should have presented to the court with 

evidence under oath.

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

Duenas. But 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 pay 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, including penalties 

assessments.” 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 

section 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, under 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 General, for Plaintiff and Respondent.