Filed 7/14/15 P. v. Avila CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

FERNANDO ZOSIMO BARRIOS 

AVILA,

Defendant and Appellant.

 H040481

 (Santa Clara County

 Super. Ct. No. C1105986)

I. INTRODUCTION

Defendant Fernando Zosimo Barrios Avila appeals after a jury convicted him of 

aggravated sexual assault of a child and attempted aggravated sexual assault of a child. 

(Pen. Code, §§ 269, 664/269.)1 The trial court imposed a term of 15 years to life for 

aggravated sexual assault of a child and a consecutive five-year term for attempted 

aggravated sexual assault of a child, and it ordered that defendant’s parole term be “for 

life” pursuant to former section 3000.1.

On appeal, defendant contends: (1) child sexual abuse accommodation syndrome 

(CSAAS) evidence should be inadmissible for all purposes; (2) CALCRIM No. 1193 

erroneously informs the jury that it may consider a CSAAS expert’s testimony in 

 

1 All further statutory references are to the Penal Code unless otherwise indicated.
2

determining the child witness’s credibility; (3) the prosecutor committed misconduct and 

trial counsel was ineffective for failing to object; and (4) the trial court erroneously 

imposed a lifetime parole obligation on defendant. We will affirm the judgment.

II. BACKGROUND

Isabella Doe was born in 1998. In 2004, her mother, Heather P., married 

defendant, making him Isabella’s stepfather. Heather and defendant subsequently had 

two children together.

A. Isabella’s Testimony

At the time of trial, Isabella was 14 years old. She testified that defendant “raped” 

her for the first time when she was six or seven years old and that he had raped her “[a] 

lot.” Isabella initially testified that defendant had raped her when she was eight years 

old, but she later testified that she did not remember whether defendant had put his penis 

into her vagina when she was eight. She responded, “I think” when asked if defendant 

had raped her when she was nine and ten years old. She responded, “Yes” when asked if 

defendant had raped her when she was 11 and 12 years old, although she later testified 

that she did not remember if defendant had raped her when she was between the ages of 

eight and 12. Isabella told the police that defendant stopped raping her for two or three 

years after she turned eight.

At first, Isabella did not know what defendant was doing to her, although she later 

learned about sex in school. Defendant called it “ear” and would ask her, “Do you want 

me to do ear?” It hurt and she was scared—too scared to scream or yell. It always 

occurred in her room, at night, when her mother was in the bath. Defendant would 

always lock the door. On one occasion, defendant took Isabella’s cell phone away from 

her because she would not let him rape her.

Isabella testified she did not like thinking about the rapes because she “didn’t like 

it.” Her memories of the rapes were not pleasant and she did not want to remember them.
3

B. Isabella’s Disclosure of Abuse

In April of 2011, Isabella was having some behavior problems. She committed a 

shoplifting, lied to Heather, and took money from Heather. Heather and defendant 

disciplined Isabella by taking away her access to Facebook and her cell phone.

On April 21, 2011, at about 9:30 p.m., Heather got out of the bath and tried to go 

into Isabella’s room, but the door was locked. After Heather banged on the door, 

defendant opened it. Isabella was lying on her bed. Heather asked why the door had 

been locked. Defendant said he had taken Isabella’s cell phone away because it had been 

keeping her up at night. Heather asked Isabella if anything inappropriate had happened. 

Isabella said no. However, Isabella later testified, defendant had been “trying to get [her] 

to do ear.”

On April 24, 2011, Isabella exchanged text messages with her friend. Isabella 

wrote that her stepfather was molesting her. At school the next day, the friend

encouraged Isabella to tell someone. They spoke with a teacher and then with an 

associate principal. The principal called the police.

Heather received a call from Isabella’s school after her disclosure. That evening, 

Heather told defendant what she had learned. Defendant “took off” and did not answer 

her repeated phone calls.

Isabella was interviewed by the police, who then asked her to conduct a pretext 

call with defendant. She called defendant and told him, “I think I might be pregnant.” 

Defendant told her, “No, you’re not.” Isabella asked defendant why he thought she was 

not pregnant. Defendant replied, “[B]ecause I never do nothing.” Isabella said, “But you 

came in me.” Defendant replied, “No, I didn’t.”

The next day, defendant met Heather at their house and agreed to turn himself in.

C. Defendant’s Interview

Following his arrest on April 26, 2011, defendant was interviewed by Officer 

Patricia Jaime. Defendant knew that Isabella had accused him of inappropriate sexual 
4

conduct. He claimed that “[a]ll this started” when he and Heather took Isabella’s cell 

phone away from her.

Defendant initially claimed he did not know about Isabella’s accusations until that 

day, asserting that he had spent the night away from home and had his cell phone shut 

off. He later acknowledged that he had received the pretext call from Isabella before 

spending the night away from home.

Officer Jaime told defendant that Isabella had undergone a medical exam and that 

defendant’s DNA had been found in her vagina. At first, defendant said he could not 

explain how that had happened. Defendant then suggested that it might have occurred 

because he had loaned Isabella some shorts.

Defendant subsequently told Officer Jaime that Isabella had said she would “allow 

herself to be touched” if defendant returned her cell phone. He then lowered her clothing 

or removed a blanket that was covering her, and they had sex. Defendant did not use a 

condom or “finish,” but the sex was not forced “in any way.” Defendant then asserted 

that there actually had not been any penetration, although he admitted that his penis did 

touch Isabella’s vagina. Defendant also admitted that he stopped because Heather 

knocked on the door.

Defendant denied that there had been any prior incidents of sexual intercourse.

D. Medical Evidence

On May 4, 2011, Isabella was examined by physician’s assistant Mary Ritter, who 

was the clinic coordinator and primary examiner at the Center for Child Protection at 

Santa Clara Valley Medical Center. Ritter conducted a Sexual Assault Response Team 

(SART) exam.

Ritter observed a narrowing of Isabella’s hymen, on the bottom, where it is typical 

to see evidence of a penetrating injury. That area of the hymen was “quite a bit 

narrower” than the rest of Isabella’s hymen. There was no sign of a recent injury or 

“fresh trauma.” Penetrating injuries typically heal within a few days. Ritter’s findings 
5

were “highly suggestive of prior penetrating trauma,” consistent with a penis inside 

Isabella’s vagina.

Pediatrician David Kerns did a review of Isabella’s SART exam and Ritter’s 

findings. He observed a “very narrow area of hymen” that was “highly suggestive of a 

penetrating injury.” The narrowing was “not fresh,” meaning it had not occurred within 

the prior few days. The injury could have occurred months or years earlier, but it could 

also have been from a penetrating event on April 21, 2011. The narrowing could have 

been caused by one penetrating event or many such events. The fact that the healed 

tissue was rounded suggests the penetration occurred “in the past” because fresher 

injuries are more angular.

E. Child Sexual Abuse Accommodation Syndrome

Carl Lewis, a consultant and forensic trainer in child abuse matters, testified about 

Child Sexual Abuse Accommodation Syndrome (CSAAS). He described CSAAS as “a 

phenomenon that was observed by mental health professionals who worked with children 

who were disclosing having been sexually abused” and as “a descriptive term for the 

obstacles that many children encounter when trying to disclose sexual abuse.”

CSAAS consists of five “basic discussion categories”: secrecy; helplessness; 

entrapment and accommodation; delayed, conflicted, and unconvincing disclosure; and 

retraction. These are not symptoms that are looked for, as CSAAS is not an “actual 

syndrome,” diagnosis, or disorder.2 It is not appropriate to use these categories to 

determine whether a child has been sexually abused.

Secrecy refers to the fact that children experience a “sense of the secrecy of the 

sexually abusive act.” This may be created by the offender taking advantage of a time 

when no one else is around, which can “send a message to the child that there must be 

 

2

In fact, Dr. Roland Summit, who first published a paper describing CSAAS, has 

since published a follow-up paper expressing he regrets not using the terms “list” or 

“pattern” instead of the term “syndrome.”
6

something bad or wrong with the behavior.” An offender may also explicitly admonish a 

child to keep the abuse secret.

Helplessness refers to the fact that children are usually unable to stop sexual abuse 

because of barriers such as the inability to physically resist or the sense that resisting will 

lead to punishment or other negative consequences.

Entrapment and accommodation refers to the fact that a child who is being 

sexually abused will often “find a way to adapt” or “put up with” the abuse. Children 

will often try to “project an image that nothing is wrong.”

Delayed, conflicted, and unconvincing disclosure refers to the fact that a child’s 

disclosure of sexual abuse is often “a process and not a one-time event.” A child may 

“let out a little bit of information,” then decide whether to disclose additional facts based 

on the adult reaction. A child may also not disclose abuse “for a long time”—sometimes, 

not until adulthood. A child’s disclosure of sexual abuse may also result in “a great deal 

of attention” being focused on the child and his or her family, and it may result in the 

child being taken out of the home. The child may wish for a “way to go back to how 

things were,” and the child may therefore retract his or her claim or minimize his or her 

description of the abuse.

F. Defendant’s Trial Testimony

Defendant testified that he considered Isabella to be “a daughter.” He denied that 

Isabella’s allegations were true.

As to the April 21, 2011 incident, defendant claimed that he was only in Isabella’s 

room to talk to her about her cell phone. He denied that the door had been locked. 

Defendant claimed that three days before that, Isabella had threatened to accuse 

him of molesting her if he did not return her cell phone to her.

Defendant claimed that he did not come home after receiving Isabella’s pretext 

call because he was spending the night with a woman who was not his wife. He claimed 

he did not hear a voicemail message from Heather until about 2:00 a.m.
7

When he was interviewed by the police, defendant repeatedly denied having sex 

with Isabella, but the officer kept accusing him, so he became frustrated and desperate. 

Wanting the interrogation to stop, defendant began to “tell a story,” thinking that “it 

would end.” He thought that if he “invented that lie,” Officer Jaime would let him go.

G. Charges, Verdicts, and Sentence

By first amended information filed after the prosecution presented its case, 

defendant was charged with four counts of aggravated sexual assault of a child 

(counts 1, 3-5; § 269) and one count of sexual intercourse with a child age 10 or 

younger (count 2; § 288.7, subd. (a)). The amended information alleged that forcible 

rape (§ 261, subd. (a)(2)) was the underlying crime for the aggravated sexual assault 

counts. The amended information alleged that count 1 occurred during a date range when

Isabella was six to eight years old, that count 2 occurred during a date range when 

Isabella was between eight and 10 years old, that count 3 occurred during a date range 

when Isabella was 11 years old, that count 4 occurred during a date range when Isabella 

was 12 years old, and that count 5 occurred “[o]n or about April 21, 2011.”

The jury found defendant guilty of aggravated sexual assault of a child as charged 

in count 4 and guilty of attempted aggravated sexual assault of a child, a lesser-included 

offense of count 5. The jury deadlocked on counts 1 through 3.

At the sentencing hearing held on November 8, 2013, the trial court imposed a 

term of 15 years to life for aggravated sexual assault of a child and a consecutive fiveyear term for attempted aggravated sexual assault of a child. The trial court specified that 

defendant’s parole term would be “for life” pursuant to former section 3000.1.

III. DISCUSSION

A. CSAAS Evidence

Defendant contends that CSAAS evidence should be inadmissible for all purposes 

in California, because “the evidence cannot possibly be limited to the description of 
8

myths surrounding abuse” and because “the jury invariably will use the evidence against 

the defendant and in favor of conviction.”

During motions in limine, the prosecution sought the admission of the CSAAS 

evidence, and the defense sought its exclusion. Following a hearing, the trial court ruled 

that the CSAAS evidence was admissible.

The California Supreme Court has recognized that in cases of alleged child sexual 

abuse, “expert 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. [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 self-impeaching 

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

[Citation.]” (People v. McAlpin (1991) 53 Cal.3d 1289, 1300-1301, fn. omitted 

(McAlpin); see also People v. Brown (2004) 33 Cal.4th 892, 906.)

As defendant acknowledges, California courts have held that CSAAS evidence is 

admissible to disabuse jurors of commonly held misconceptions about child sexual abuse. 

(See McAlpin, supra, 53 Cal.3d at pp. 1300-1301; People v. Patino (1994) 26 

Cal.App.4th 1737, 1744-1745; People v. Housley (1992) 6 Cal.App.4th 947, 955-956; 

People v. Gilbert (1992) 5 Cal.App.4th 1372, 1383-1384, superseded on other grounds by 

CALJIC No. 10.41, as recognized in People v. Levesque (1995) 35 Cal.App.4th 530, 536-

537; People v. Harlan (1990) 222 Cal.App.3d 439, 449-450; People v. Stark (1989) 213 

Cal.App.3d 107, 116-117; People v. Bowker (1988) 203 Cal.App.3d 385, 393-394.)

Relying on several out-of-state cases, defendant argues that the California cases 

need to be reexamined. (See e.g., State v. Stribley (Iowa Ct. App. 1995) 532 N.W.2d 

170, 174 [CSAAS not accepted in scientific community as means to detect abuse]; 
9

Commonwealth v. Dunkle (Pa. 1992) 602 A.2d 830, 834 [testimony about uniformity of 

behaviors of abused children not sufficiently established to have gained general 

acceptance in its particular field]; Bussey v. Commonwealth (Ky. 1985) 697 S.W.2d 139, 

141 [CSAAS evidence not proven to be a generally accepted medical concept or a 

syndrome that has attained scientific acceptance]; State v. Ballard (Tenn. 1993) 855 

S.W.2d 557, 561-562 [CSAAS evidence not shown to be reliable and invades jury’s 

province to determine credibility].) We decline to do so. To the extent our Supreme 

Court has recognized that such evidence may be relevant, useful, and admissible in a 

given case, as an intermediate appellate court, we are required to follow that precedent. 

(Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

B. CALCRIM NO. 1193

Defendant next contends that CALCRIM No. 1193 erroneously informed the jury 

that it could consider the CSAAS expert’s testimony in determining Isabella’s 

credibility.3 Defendant contends that the instruction “permits the jurors to consider this 

expert testimony as supportive of the truth of the allegations made against the defendant.”

The trial court instructed the jury pursuant to CALCRIM No. 1193 as follows: 

“You have heard testimony from Carl Lewis regarding [CSAAS]. Carl Lewis’ testimony 

about [CSAAS] 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 Isabella 

Doe’s conduct was not inconsistent with the conduct of someone who has been molested 

and in evaluating the believability of her testimony.”

 

3

The Attorney General argues that defendant forfeited this contention because he 

did not object to CALCRIM No. 1193. Section 1259 allows appellate review of claims 

of instructional error which affect the defendant’s substantial rights. (People v. Wallace

(2008) 44 Cal.4th 1032, 1074, fn. 7.) Accordingly, we will consider the merits of 

defendant’s contention.
10

When we review a purportedly erroneous instruction, we consider “ ‘ “ ‘whether 

there is a reasonable likelihood that the jury has applied the challenged instruction in a 

way’ that violates the Constitution.” ’ ” (People v. Richardson (2008) 43 Cal.4th 959, 

1028 (Richardson).) We consider the instructions as a whole and “ ‘assume that jurors 

are intelligent persons and capable of understanding and correlating all jury instructions 

which are given.’ [Citation.]” (Ibid.)

CALCRIM No. 1193 is a cautionary instruction that warns the jurors that they 

must not consider CSAAS testimony as evidence that the defendant committed the 

offense. It then informs the jurors that they may use CSAAS evidence to evaluate 

whether the alleged victim’s behavior which appeared inconsistent with being molested 

was actually not inconsistent. To the extent that CALCRIM No. 1193 allows the jury to 

consider CSAAS evidence when it evaluates the alleged victim’s credibility, such 

evidence is relevant and admissible when an alleged victim’s credibility has been 

attacked. (McAlpin, supra, 53 Cal.3d at pp. 1300-1301.) Thus, in considering the 

instruction as a whole (Richardson, supra 43 Cal.4th at p. 1028), it is not reasonably 

likely that the jury understood CALCRIM No. 1193 as allowing it to use the CSAAS 

testimony for the improper purpose of proving that Isabella was in fact abused by 

defendant.

C. Prosecutorial Misconduct

Defendant contends the prosecutor committed misconduct by referring to facts not 

in evidence during closing argument—specifically, the fact that Isabella had difficulty 

remembering details because she was “a survivor” whose brain had “evolved” to suppress 

some of the memories. Defendant asserts that evidence about suppressed memory could 

only have come from an expert. Defendant also contends his trial counsel was ineffective 

for failing to object.
11

1. Proceedings Below

During argument to the jury, defendant’s trial counsel referred to the fact that 

Isabella had given “no details, no description” of the rapes and had repeatedly responded 

to questions with answers such as “I don’t remember,” “I don’t know,” or “I think.”

During closing argument, the prosecutor responded to the defense argument about 

Isabella’s “poor memory.” The prosecutor asked, “Why, why, why does Isabella have 

difficulty remembering all these things? Why does she have difficulty describing with 

precision each and every act that has been inflicted upon her? And the answer is very 

simple: she doesn’t want to remember. The mind is powerful. It has evolved for 

survival. Isabella is a survivor, and part of that mechanism, part of her, part of it is a 

blessing.”

2. Legal Principles

The general rules applying to claims of prosecutorial misconduct are as follows: 

“Under the federal Constitution, to be reversible, a prosecutor’s improper comments must 

‘ “so infect[ ] the trial with unfairness as to make the resulting conviction a denial of due 

process.” ’ [Citations.] ‘ “But conduct by a prosecutor that does not render a criminal 

trial fundamentally unfair is prosecutorial misconduct under state law only if it involves 

‘ “the use of deceptive or reprehensible methods to attempt to persuade either the court or 

the jury.” ’ ” [Citations.]’ [Citation.]” (People v. Cunningham (2001) 25 Cal.4th 926, 

1000.) When the claim of prosecutorial misconduct “is based upon ‘comments made by 

the prosecutor before the jury, the question is whether there is a reasonable likelihood 

that the jury construed or applied any of the complained-of remarks in an objectionable 

fashion. [Citation.]’ [Citations.]” (Id. at p. 1001.)

As the California Supreme Court explained in People v. Hill (1998) 17 Cal.4th 

800, it is misconduct for a prosecutor to argue facts not in evidence “because such 

statements ‘tend[ ] to make the prosecutor his [or her] own witness—offering unsworn 

testimony not subject to cross-examination. It has been recognized that such testimony, 
12

“although worthless as a matter of law, can be ‘dynamite’ to the jury because of the 

special regard the jury has for the prosecutor, thereby effectively circumventing the rules 

of evidence.” [Citations.]’ [Citations.]” (Id. at p. 828.)

“ ‘[A] claim of prosecutorial misconduct is not preserved for appeal if defendant 

fails to object and seek an admonition if an objection and jury admonition would have 

cured the injury. [Citation.]’ [Citation.]” (People v. Tully (2012) 54 Cal.4th 952, 1010, 

fn. omitted.)

“To prevail on a claim of ineffective assistance of counsel, the defendant must 

show counsel’s performance fell below a standard of reasonable competence, and that 

prejudice resulted. [Citations.] When a claim of ineffective assistance is made on direct 

appeal, and the record does not show the reason for counsel’s challenged actions or 

omissions, the conviction must be affirmed unless there could be no satisfactory 

explanation. [Citation.] Even where deficient performance appears, the conviction must 

be upheld unless the defendant demonstrates prejudice, i.e., [a reasonable probability] 

that, ‘ “ ‘but for counsel’s unprofessional errors, the result of the proceeding would have 

been different. A reasonable probability is a probability sufficient to undermine 

confidence in the outcome.’ ” ’ [Citations.]” (People v. Anderson (2001) 25 Cal.4th 543, 

569; see also Strickland v. Washington (1984) 466 U.S. 668, 687-688, 694.)

3. Analysis

In arguing that the prosecutor’s argument constituted misconduct, defendant relies 

on People v. Bolton (1979) 23 Cal.3d 208 (Bolton), in which the prosecutor “twice hinted 

that, but for certain rules of evidence that shielded [the defendant], he could show that 

[the defendant] was a man with a record of prior convictions or with a propensity for 

wrongful acts.” (Id. at p. 212, fn. omitted.) The court found that the prosecutor’s 

statement “constituted improper argument, for he was attempting to smuggle in by 

inference claims that could not be argued openly and legally.” (Ibid.)
13

The instant case is not similar to Bolton. Here, the prosecutor was responding to 

the defense argument about Isabella’s poor memory, and his remarks were based in the 

evidence. Isabella had testified that she did not like thinking about the rapes because she 

“didn’t like it,” and she specifically stated that she did not want to remember them. In 

addition, Carl Lewis, the CSAAS expert, had testified that a child who has disclosed 

sexual abuse will often minimize his or her later descriptions of the abuse because of the 

negative attention and impact of the initial disclosure. Thus, the prosecutor’s argument 

was based in the evidence adduced during the trial.

Additionally, the jury was instructed that the attorney’s statements were not 

evidence and that it should decide the case based only on the evidence presented at trial.4 

“In the absence of evidence to the contrary, we presume the jury understood and followed 

the court’s instructions” and did not base its verdicts on any statement by the prosecutor. 

(See People v. Williams (2009) 170 Cal.App.4th 587, 635.)

D. Parole Obligation

Defendant contends the trial court erroneously imposed a lifetime parole 

obligation on him pursuant to former section 3000.1, subdivision (a)(2). He contends 

that the lifetime parole obligation would only have applied if he had been convicted of 

violating both section 269 (aggravated sexual assault of a child) and section 288.7 

(sexual intercourse with a child aged 10 or younger).

At the time of defendant’s offenses, section 3000.1, subdivision (a)(2) provided: 

“Notwithstanding any other provision of law, in the case of any inmate sentenced to a 

life term under subdivision (b) of Section 209, if that offense was committed with the 

intent to commit a specified sexual offense, Sections 269 and 288.7, subdivision (c) of 

Section 667.51, Section 667.71 in which one or more of the victims of the offense was a 

 

4

The jury was instructed: “You must decide what the facts are. It is up to all of 

you and you alone to decide what happened, based only on the evidence that has been 

presented to you in this trial.”
14

child under 14 years of age, or subdivision (j), (l), or (m) of Section 667.61, the period of 

parole, if parole is granted, shall be the remainder of the inmate’s life.” (Stats. 2010, 

ch. 219, § 20, eff. Sept. 9, 2010, emphasis added.)

Effective January 1, 2015, section 3000.1, subdivision (a)(2) now provides: 

“Notwithstanding any other law, in the case of any inmate sentenced to a life term under 

subdivision (b) of Section 209, if that offense was committed with the intent to commit a 

specified sexual offense, Section 269 or 288.7, subdivision (c) of Section 667.51, 

Section 667.71 in which one or more of the victims of the offense was a child under 14 

years of age, or subdivision (j), (l), or (m) of Section 667.61, the period of parole, if 

parole is granted, shall be the remainder of the inmate’s life.” (Stats. 2014, ch. 280, § 2, 

emphasis added.)

The parties dispute the meaning of the word “and” which appeared between the 

references to sections 269 and 288.7 in former section 3000.1, subdivision (a)(2). 

Defendant contends the word “and” was used in the conjunctive sense, with the result 

that only persons convicted of violating both sections 269 and 288.7 were subject to 

mandatory lifetime parole. The Attorney General contends the word “and” was used in 

the disjunctive sense, equivalent to the word “or,” with the result that any persons 

convicted of violating either sections 269 or 288.7 were subject to mandatory lifetime 

parole.

1. Principles of Statutory Interpretation

“[O]ur fundamental task is to ascertain the Legislature’s intent so as to effectuate 

the purpose of the statute. [Citation.] We begin with the language of the statute, giving 

the words their usual and ordinary meaning. [Citation.] The language must be construed 

‘in the context of the statute as a whole and the overall statutory scheme, and we give 

“significance to every word, phrase, sentence, and part of an act in pursuance of the 

legislative purpose.” ’ [Citation.] In other words, ‘ “we do not construe statutes in 

isolation, but rather read every statute ‘with reference to the entire scheme of law of 
15

which it is part so that the whole may be harmonized and retain effectiveness.’ 

[Citation.]” ’ [Citation.] If the statutory terms are ambiguous, we may examine extrinsic 

sources, including the ostensible objects to be achieved and the legislative history. 

[Citation.] In such circumstances, we choose the construction that comports most closely 

with the Legislature’s apparent intent, endeavoring to promote rather than defeat the 

statute’s general purpose, and avoiding a construction that would lead to absurd 

consequences. [Citation.]” (Smith v. Superior Court (2006) 39 Cal.4th 77, 83 (Smith).)

It is a “basic principle of statutory and constitutional construction . . . that courts, 

in construing a measure, not undertake to rewrite its unambiguous language. [Citation.] 

That rule is not applied, however, when it appears clear that a word has been erroneously 

used, and a judicial correction will best carry out the intent of the adopting body. 

[Citation.] The inadvertent use of ‘and’ where the purpose or intent of a statute seems 

clearly to require ‘or’ is a familiar example of a drafting error which may properly be 

rectified by judicial construction. [Citations.]” (People v. Skinner (1985) 39 Cal.3d 765, 

775-776.) Whether the use of the word “and” is, in fact, a drafting error “can only be 

determined by reference to the purpose of the section and the intent of the electorate [or 

legislature] in adopting it.” (Id. at p. 776.)

2. Legislative History Materials5

Prior to 2010, former section 3000.1 provided for a lifetime parole period only 

“[i]n the case of any inmate sentenced under Section 1168 for any offense of first or 

second degree murder . . . .” (Stats. 2001, ch. 854, § 50.)

In 2010, the Legislature amended former section 3000.1 as part of “Chelsea’s 

Law.” (See People v. Soto (2011) 51 Cal.4th 229, 237, fn. 4.) The 2010 legislation 

 

5

Pursuant to the Attorney General’s request, we have taken judicial notice of 

several documents in the legislative history of former section 3000.1.
16

added former section 3000.1, subdivision (a)(2), which made a number of sex offenses 

subject to lifetime parole. (Stats. 2010, ch. 219, § 20, eff. Sept. 9, 2010.)

The legislative history of the 2010 amendments shows that the Legislature 

intended that the lifetime parole requirements would apply to persons, like defendant, 

who are convicted of aggravated sexual assault of a child (§ 269), with no requirement 

that such persons also be convicted of sexual intercourse with a child aged 10 or under 

(§ 288.7).

An early analysis of the proposed legislation stated, “This bill increases parole to 

lifetime parole for the following offenses: . . . sexual intercourse; oral copulation; or 

sodomy with a child 10 years of age or younger [§ 288.7 violators]; . . . aggravated sexual 

assault of a child [§ 269 violators] . . . .” (Assem. Com. on Public Safety, Analysis of 

Assem. Bill No. 1844 (2009-2010 Reg. Sess.) as amended Apr. 13, 2010, p. 23.)

As amended on July 15, 2010, the proposed legislation specified, “This bill would 

require lifetime parole for habitual sex offenders and persons convicted of specified sex 

crimes, including, among others, aggravated sexual assault of a child.” (Assem. Bill 

No. 1844 (2009-2010 Reg. Sess.), as amended July 15, 2010.) As of July 15, 2010, the 

proposed legislation would have enacted a lifetime parole requirement on “any inmate 

sentenced to a life term under Section 269, subdivision (c) of Section 667.51, Section 

667.71 in which one or more of the victims of the offense was a child under 14 years of 

age, or subdivision (j), (l), or (m) of Section 667.61.” (Id., § 19.)

When the proposed legislation was amended to add the reference to section 288.7, 

the Legislative Counsel’s digest still specified that the bill would require lifetime parole 

for persons convicted of “specified sex crimes, including, among others, aggravated 

sexual assault of a child.” (Assem. Bill No. 1844 (2009-2010 Reg. Sess.), as amended 

August 2, 2010, emphasis added.) The digest did not state that lifetime parole would be 

required for persons convicted of aggravated sexual assault of a child only if the person 

was also convicted of sexual intercourse with a child aged 10 or younger.
17

An analysis of Assembly Bill No. 1844 prepared after the above amendment noted 

that the bill would “[r]equire lifetime parole for habitual sex offenders; persons convicted 

of kidnapping a child under the age of 14 with the intent to commit a specified sex act; 

and persons convicted of specified sex crimes, including the sexual assault of a child.” 

(Analysis by Gabriel Caswell of Assem. Bill No. 1844 (2009-2010 Reg. Sess.), as 

amended Aug. 20, 2010, pp. 1-2.) The analysis separately listed the crimes that would be 

subject to lifetime parole, specifying that they would include “[s]exual intercourse, oral 

copulation, or sodomy with a child 10 years of age or younger” and “[a]ggravated sexual 

assault of a child.” (Id., p. 14.)

3. Recent Legislative Action

As noted above, effective January 1, 2015, section 3000.1 was amended to replace 

“and” with “or,” so that the lifetime parole requirement now clearly applies to persons 

convicted of either section 269 or section 288.7. (Stats. 2014, ch. 280, § 2.) The 

legislative history of this amendment reveals that the Legislature considered the prior 

wording of the statute to have been unintentional: according to one committee report, 

“the conjunctive ‘and’ between 269 and 288.7 appears to have been an error or 

oversight.” (Senate Comm. on Public Safety, Analysis of Assem. Bill No. 1438 (2013-

2014 Reg. Sess.), as amended June 3, 2014, p. 9.)

4. Analysis

Based on our application of the settled principles of statutory construction and our 

review of the pertinent legislative history of former section 3000.1, we conclude that the 

word “and” as used in the phrase “Sections 269 and 288.7” in former section 3000.1, 

subdivision (a)(2) was a drafting error.

First, the meaning of “and” in former section 3000.1, subdivision (a)(2) is not 

clear and unambiguous in context. (See Smith, supra, 39 Cal.4th at p. 83.) Former 

section 3000.1, subdivision (a)(2) listed a number of sex offenses that are subject to life 

terms, for which lifetime parole was required. Section 269 and section 288.7 are both 
18

offenses that are punishable by life terms. Thus, in context, the word “and” could mean 

that someone convicted of section 269 and someone convicted of section 288.7 each

would be subject to lifetime parole, or it could mean that someone convicted of violating 

both section 269 and section 288.7 would be subject to lifetime parole. Therefore, we 

turn to the legislative history.

As explained above, the legislative history of the 2010 amendment to section 

3000.1 indicates the Legislature intended the lifetime parole requirement to apply to 

persons convicted of violating section 269 or section 288.7. Nothing in the legislative 

history of former section 3000.1 indicates that the Legislature intended lifetime parole to 

apply to those offenses only if the person was convicted of both section 269 and 

section 288.7.

Further, the subsequent amendment to section 3000.1 indicates that the Legislature 

intended to require lifetime parole of persons convicted of violating section 269 or

section 288.7. (See Western Security Bank v. Superior Court (1997) 15 Cal.4th 232, 243

[circumstances of subsequent amendments “can indicate that the Legislature made 

material changes in statutory language in an effort only to clarify a statute’s true 

meaning”].) As noted in the report quoted above, in amending the statute effective 

January 1, 2015, the Legislature acknowledged that “the conjunctive ‘and’ between 269 

and 288.7 appears to have been an error or oversight.” (Senate Comm. on Public Safety, 

Analysis of Assem. Bill No. 1438 (2013-2014 Reg. Sess.), as amended June 3, 2014, 

p. 9.)

In sum, we conclude that the word “and” as used in the phrase “Sections 269 and 

288.7” in former section 3000.1, subdivision (a)(2) should be read as the word “or,” such 

that defendant, who was convicted of section 269, is—as ordered by the trial court—

subject to lifetime parole.
19

IV. DISPOSITION

The judgment is affirmed.
___________________________________________

BAMATTRE-MANOUKIAN, ACTING P. J.

WE CONCUR:

__________________________

MIHARA, J.

__________________________

GROVER, J.

People v. Avila

H040481