Filed 2/21/23

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

DANIEL WILLIAM SEDANO,

Defendant and Appellant.

F082933

(Super. Ct. No. F19902007)

OPINION

APPEAL from a judgment of the Superior Court of Fresno County. F. Brian 

Alvarez, Judge.

Robert L.S. Angres for Defendant and Appellant.

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

General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Craig 

S. Meyers, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is 

certified for publication with the exception of parts I. and III. of the Discussion.
2.

Following a jury trial, defendant Daniel William Sedano was convicted of several 

sex offenses against Jane Doe, his adoptive niece: oral copulation or sexual penetration 

of a child 10 years old or younger (count 2), sexual intercourse or sodomy with a child 

10 years old or younger (count 3), and forcible rape (count 4). He argues that (1) the 

conviction on count 2 must be reversed as violating the prohibition on ex post facto laws,

an argument which the People concede; (2) the trial court erred in admitting expert 

testimony on child sexual abuse accommodation syndrome (CSAAS) statistics, or, in the 

alternative, that he received ineffective assistance due to his trial counsel’s failure to 

object to the statistics testimony; and (3) his aggregate indeterminate sentences on 

counts 2 and 3 are unconstitutionally excessive. In the published portion of this opinion, 

we hold the admission of the expert’s testimony regarding CSAAS statistics was not 

error. In the unpublished portion, we reverse the conviction on count 2, remand for 

possible retrial on that count, but do not otherwise reach the constitutional challenge.

PROCEDURAL SUMMARY

By information filed on June 19, 2019, the District Attorney of the County of

Fresno charged defendant with continuous sexual abuse of a child under age 14 (Pen. 

Code, § 288.5, subd. (a)1; count 1), oral copulation or sexual penetration with a child 

10 years old or younger (§ 288.7, subd. (b); count 2), sexual intercourse or sodomy with a 

child 10 years old or younger (§ 288.7, subd. (a); count 3), and forcible rape (§ 261, 

subd. (a)(2); count 4). 

Following a trial, on October 27, 2020, the jury acquitted defendant on count 1 

(continuous sexual abuse) and convicted him on the three remaining charges.2 On 

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

2 The jury was instructed that count 1 was charged as an alternative offense to 

counts 2 and 3 and therefore defendant could not be found guilty of count 1 if he was 

found guilty on counts 2 and 3. The prosecutor urged the jury to acquit on count 1 and 

convict on counts 2, 3, and 4, which it ultimately did. 
3.

June 11, 2021, the trial court sentenced defendant to an aggregate term of 46 years to life

in prison, comprising consecutive terms of six years on count 4, 15 years to life on 

count 2, and 25 years to life on count 3. On June 15, 2021, defendant filed a notice of 

appeal. 

FACTUAL SUMMARY

Jane Doe was born in May 1999 and was adopted when she was four years old.3 

Defendant is Doe’s uncle, the brother of her adoptive father, and has known her since her 

adoption. Doe, who was 21 years old at the time of trial, testified that defendant (37 

years her senior) had engaged in numerous sexual activities with her from age five to 

age 18. The conduct ranged from taking pictures of Doe blindfolded in bed at age five to 

repeatedly having sex with her when she was between the ages of 10 and 17. When Doe 

was 18, defendant also raped her at a hotel while they were on an overnight trip together. 

The full details of the abuse are not germane to the issues on appeal. What is 

significant for purposes of this appeal is that Doe continued to spend time with defendant, 

even time she knew would be spent alone with him, throughout this period of abuse; and 

she never told anyone of the sexual misconduct until she was 18 or 19 years old, after the 

hotel rape. For instance, even when defendant’s son Matthew (two years Doe’s senior) 

walked in on Doe and defendant in bed at one point when Doe was either age six or 12, 

Doe did not disclose the sexual misconduct to him. Instead, at defendant’s instruction, 

she later told Matthew that she and defendant were just “wrestling.” In October 2018, 

when she was 19 years old, Doe reported the abuse to the police, and their subsequent 

investigation led to this prosecution. 

At trial, David Love testified for the prosecution as an expert in the field of 

CSAAS. As he told the jury, he did not know any facts about the case and had never met 

3 At trial, to protect her identity, Doe was identified by her first name only. In this 

opinion, we take the more protective measure of referring to her by the pseudonym “Jane 

Doe.” (See § 293.5, subd. (a).)
4.

any of the participants; he was only there to explain the body of research on CSAAS. 

Love explained that CSAAS derives from a clinical study of 2,000 children who were 

sexually molested and describes the most typical symptoms that these children exhibited. 

According to Love, CSAAS has five groups of symptoms or behaviors: secrecy; 

helplessness; entrapment and accommodation; delayed, conflicted, and/or unconvincing 

disclosure; and retraction. He testified that CSAAS “is not a clinical diagnostic tool,” nor 

is it a diagnosis of child abuse; it is “a description of a group of behaviors.” 

Love then went into detail about each of the five categories of behavior. His 

testimony regarding two of the categories included certain statistics that form the basis of 

defendant’s evidentiary challenge in this appeal. In describing the second category of 

behavior—helplessness—Love informed the jury that another expert’s study of over 250 

children who had been molested “found that 94 percent of these kids in his study had a 

pre-existing relationship with the molester.” Love testified that, contrary to the “stranger 

danger” myth, abusers are “[n]inety-four percent brothers, uncles, moms, dads, sisters, 

priests, rabbi, Boy Scout leader, teachers, people who have a relationship with this child.” 

Then, in describing the fourth category—delayed, conflicted, and/or unconvincing 

disclosures—Love acknowledged the societal assumption that “if it was true,” meaning if 

someone had been sexually abused as a child, “they would have come forward a long 

time ago”; and the perception that, because they did not, there must be some ulterior 

motive for the allegations of abuse. Love then testified that the research showed, in 

actuality, “[d]elay in and of itself isn’t an exclusionary or damning kind of thing” when it 

comes to disclosure of childhood sexual abuse. Rather, as shown by another expert’s 

study, 74 percent of sexually abused children had not disclosed one year after the 

molestation, and 50 percent had not disclosed five years later; and Love’s own research 

showed a “whole group” that averaged 10 to 15 years before disclosing. From this data, 

Love opined that “actually it was more common to delay than not,” and that “delay seems 

to be more part of the ingredient than the exception to the rule.” 
5.

Defense counsel did not object to any portion of Love’s testimony, though she had 

previously moved to exclude all CSAAS testimony. The trial court deferred ruling on 

that motion in limine and ultimately denied it after Doe’s testimony, finding the CSAAS 

evidence probative in part because of the cross-examination regarding her lack of 

disclosure after the Matthew walk-in incident. 

DISCUSSION

I. EX POST FACTO VIOLATION*

Defendant first argues that his conviction on count 2 for oral copulation or sexual 

penetration with a child 10 years old or younger, imposed pursuant to section 288.7, 

subdivision (a), violates the ex post facto clauses of the United States and California 

Constitutions because the evidence and instructions permitted the jury to convict 

defendant based on conduct preceding the effective date of section 288.7. We accept the 

People’s concession that reversal is required for this count. 

“Any law that applies to events occurring before its enactment and which 

disadvantages the offender either by altering the definition of criminal conduct or 

increasing the punishment for the crime is prohibited as ex post facto.” (People v. Rojas

(2015) 237 Cal.App.4th 1298, 1306 (Rojas); see U.S. Const., art. I, § 10; Cal. Const., 

art. I, § 9.) Section 288.7 became effective on September 20, 2006, and “created a new 

offense which imposes an indeterminate life sentence for sexual intercourse, sodomy, 

oral copulation, or sexual penetration of a child who is 10 years of age or younger.” 

(Rojas, at p. 1306; Stats. 2006, ch. 337, § 9.)

For count 2, the prosecution presented evidence of two separate incidents that 

could constitute the charged offense: (1) an act of oral copulation that occurred in May 

2006, at the latest, based on evidence that Doe was six years old during the incident; and 

* See footnote, ante, page 1. 
6.

(2) an act of digital penetration that took place when Doe was 10 years old, that is, 

sometime between May 2009 and May 2010. 

The jury was instructed that a guilty verdict on count 2 would require unanimity as 

to which act defendant committed, but there was no instruction that the act must be found 

to have occurred on or after September 20, 2006, section 288.7’s effective date.4 The 

prosecutor, in closing argument, identified the age-six oral copulation and the age-10

digital penetration as the two acts that could support conviction on count 2 and reminded 

the jury that it could rely on either one, or both, so long as all jurors agreed on which

act(s) occurred. 

While the jury returned a guilty verdict on count 2, the verdict form did not 

contain any field to indicate which act or acts the jury used as the basis for this verdict, or 

when the act(s) occurred. “Since the jury was not asked to make a finding that [c]ount 2 

occurred after the effective date of section 288.7, its verdict ‘cannot be deemed sufficient 

to establish the date of the offense[] unless the evidence leaves no reasonable doubt’ that 

the conviction was based on an incident that occurred on or after September 20, 2006.” 

(Rojas, supra, 237 Cal.App.4th at p. 1306.) Here, we cannot be sure the jury did not rest 

its verdict exclusively on the age-six incident that could not have occurred any later than 

May 2006—several months before section 288.7 became effective.

Because we cannot conclude beyond a reasonable doubt that defendant was found 

guilty based only on conduct that occurred on or after September 20, 2006, we agree with 

the parties that we must reverse the conviction on count 2. (See Rojas, supra, 237

Cal.App.4th at p. 1306 [“any application of section 288.7 to conduct that occurred prior 

to September 20, 2006, is a violation of the state and federal ex post facto clauses”].) We 

4 Neither party requested such an instruction, and defendant did not raise an ex 

post facto challenge below. However, an ex post facto violation resulting in an 

unauthorized sentence can be raised on appeal even where the defendant failed to object 

below. (See People v. Dotson (1997) 16 Cal.4th 547, 554, fn. 6.)
7.

remand for possible retrial on this count because the prosecution presented evidence from 

which a jury could conclude that the offense was committed on or after September 20, 

2006—namely, the evidence pertaining to the age-10 digital penetration somewhere 

between May 2009 and May 2010.

II. CSAAS STATISTICAL EVIDENCE

Defendant challenges Love’s expert testimony regarding the two sets of CSAAS 

statistics outlined above. Although it is not entirely clear from the headings in the 

opening brief, we understand defendant to be arguing primarily that the trial court erred 

in admitting this portion of the expert testimony, despite defense counsel’s failure to 

object to it; and secondarily that, if we find that claim forfeited, we should nevertheless 

reverse based on ineffective assistance of counsel for failure to object. The People do not 

request forfeiture as a penalty, and we opt to address the claim of error on the merits, as 

doing so effectively allows us to dispose of both arguments at once—given that we 

discern nothing objectionable about the statistics testimony at issue.

A. Relevant Law

We review for abuse of discretion decisions regarding the admissibility of expert 

testimony. (People v. Brooks (2017) 3 Cal.5th 1, 43.) Expert testimony on CSAAS has 

long been held admissible in California for the limited purposes of dispelling commonly 

held myths or misconceptions about child sexual abuse and aiding the jury in “evaluating 

the credibility of an alleged child victim of sexual abuse.” (People v. Lapenias (2021) 

67 Cal.App.5th 162, 171 (Lapenias); see People v. McAlpin (1991) 53 Cal.3d 1289, 

1300–1301 (McAlpin); People v. Bowker (1988) 203 Cal.App.3d 385, 393–394

(Bowker).) CSAAS testimony is permitted “ ‘to explain the emotional antecedents of 

abused children’s seemingly self-impeaching behavior,’ ” such as delayed disclosure of 

the abuse. (McAlpin, at p. 1301; see Lapenias, at p. 172.) An expert’s explanation of 

CSAAS “is admissible to rehabilitate [a complaining] witness’s credibility when the 
8.

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.” (McAlpin, at p. 1300.)5

However, pursuit of that laudable rehabilitative purpose must not lead the expert 

to cross over into affirmatively vouching for the truthfulness of a complainant’s 

allegations against the defendant. (See Lapenias, supra, 67 Cal.App.5th at p. 180 

[identifying the problem of the expert “ ‘vouching for the veracity’ ” of the alleged 

victims]; People v. Munch, supra, 52 Cal.App.5th at p. 468 [“ ‘The expert is not allowed 

to give an opinion on whether a witness is telling the truth . . . .’ ”].) CSAAS evidence 

“is not admissible to prove that the complaining witness has in fact been sexually 

abused.” (McAlpin, supra, 53 Cal.3d at p. 1300.) Accordingly, a CSAAS expert also 

“may not give ‘ “general” testimony describing the components of the syndrome in such 

a way as to allow the jury to apply the syndrome to the facts of the case and conclude the 

child was sexually abused.’ ” (People v. Julian (2019) 34 Cal.App.5th 878, 885 

(Julian).) Overall, the testimony must respect the “ ‘ “fine but essential” ’ ” line between 

an “ ‘ “opinion which would be truly helpful to the jury and that which merely conveys a 

conclusion concerning [the] defendant’s legal guilt.” ’ ” (Id. at p. 887.)

Thus, the Courts of Appeal have repeatedly held it to be an abuse of discretion to 

permit a CSAAS expert to testify—either qualitatively, or with specific statistics or 

percentages—to the infrequency with which children make false allegations of sexual 

abuse. (See Lapenias, supra, 67 Cal.App.5th at p. 179 [error to admit expert testimony 

that it was “ ‘rare’ for children to make false allegations of sexual abuse”]; People v. 

Wilson (2019) 33 Cal.App.5th 559, 568, 570–571 (Wilson) [expert testimony about 

studies finding false allegations in 1-to-6 percent of cases had the impermissible “effect 

5 Despite continuing advancement in the understanding of how children 

commonly react to sexual abuse, CSAAS evidence remains “a valid and necessary 

component of the prosecution case in matters involving child abuse.” (People v. Munch

(2020) 52 Cal.App.5th 464, 466; see ibid. [holding that the Supreme Court’s reasoning in 

McAlpin “is as valid today as it was in 1991”].)
9.

of telling the jury there was at least a 94 percent chance that any given child who claimed 

to have been sexually abused was telling the truth”]; see also Julian, supra, 

34 Cal.App.5th at pp. 883–884, 886 [same false allegation statistics were not admissible 

because they “invited jurors to presume [the defendant] was guilty based on statistical 

probabilities, and not decide the evidence properly introduced in the case”].) As the 

Wilson court put it, the jury must be left to evaluate a complaining witness’s testimony, 

together with all the other evidence, “without statistical evidence placing a thumb on the 

scale for guilt.” (Wilson, at p. 571.)

B. Analysis

1. No Abuse of Discretion

Against this backdrop, defendant argues that “[t]he CSAAS expert’s testimony 

included statistical evidence that served only to bolster [Doe]’s credibility.” He takes 

issue with the two sets of statistics briefly discussed by Love. First, defendant contends 

that “Love engaged in impermissible witness vouching through his testimony that 94% of 

abusers were uncles or others who had a pre-existing relationship with an abused child.” 

Second, he objects to Love’s testimony that delayed disclosure was more the rule than the 

exception based on studies showing that 74 percent of sexually abused children had not 

disclosed 12 months after the molestation, 50 percent had not disclosed five years later, 

and another group averaged 10 to 15 years before disclosing. According to defendant, 

this “statistical evidence regarding delayed disclosure amounted to impermissible witness 

vouching because it permitted the jury to attribute [Doe]’s delay in reporting to a 

numerical likelihood without assessing the particular circumstances of the case and her

credibility.” 

We reject defendant’s arguments because these are not the sort of statistics that 

“ ‘ “convey[] a conclusion concerning defendant’s legal guilt.” ’ ” (Julian, supra, 

34 Cal.App.5th at p. 887.) Unlike in Lapenias, Wilson, and Julian, the CSAAS expert 

here gave no testimony about how frequently or infrequently people make false 
10.

allegations of childhood sexual abuse. Rather, the challenged statistics were regarding 

(1) how often abused children have a preexisting relationship with their abuser, and 

(2) how often abused children delay reporting sexual abuse. These statistics could help 

the jury assess Doe’s credibility in the sense that, if a juror believed Love, they would be 

less inclined to disbelieve Doe simply because she had a familial relationship with 

defendant and did not tell anyone of the alleged abuse for many years. These are not 

statistics that improperly bear on the specific complainant’s veracity, as false allegation 

statistics necessarily do. They are not statistics that “plac[e] a thumb on the scale for 

guilt.” (Wilson, supra, 33 Cal.App.5th at p. 571, italics added.) Rather, by attempting to 

dispel two common myths and misconceptions—that abusers are usually strangers to the 

victim and that victims usually come forward right away—they help the jury objectively 

“evaluat[e] the credibility of an alleged child victim of sexual abuse.” (Lapenias, supra, 

67 Cal.App.5th at p. 171; see McAlpin, supra, 53 Cal.3d at pp. 1300–1301.) This is 

precisely what CSAAS testimony is meant to do.

The problem in Wilson and Julian was not that the CSAAS expert used statistics in 

his testimony but that he used statistics conveying that complainants almost always tell 

the truth—and therefore that the defendant was most likely guilty. (See Wilson, supra, 

33 Cal.App.5th at p. 570 [“the practical result” of the false allegation statistics “was to 

suggest to the jury that there was an overwhelming likelihood [the complainants’]

testimony was truthful”]; see also Julian, supra, 34 Cal.App.5th at p. 886 [“Where expert 

opinions on the statistical probability of guilt are admitted, the jury may be ‘distracted’

from its ‘requisite function of weighing the evidence on the issue of guilt,’ and may rely 

instead on this ‘irrelevant’ evidence.” (italics added)].)

Statistical probabilities are not inherently suspect when it comes to explaining 

CSAAS.6 Though appropriately broached with caution given the above case law, 

6 As defendant points out, in deferring its ruling on a motion in limine to exclude 

Love’s CSAAS testimony altogether, the trial court indicated Love would not be allowed 
11.

CSAAS statistics remain admissible if they merely educate the jury to counter “a specific 

‘myth’ or ‘misconception’ suggested by the evidence.” (Bowker, supra, 203 Cal.App.3d 

at pp. 393–394 [discussing admissibility of CSAAS evidence in general].) Notably, 

statistics about false allegations do not relate to a common myth or misconception about 

children who are sexually abused. Indeed, Julian and Wilson’s discussion of these 

statistics specifically distinguish the topic of false allegations as separate from CSAAS. 

(See Julian, supra, 34 Cal.App.5th at p. 883 [“After presenting CSAAS evidence, the 

People introduced a new issue—the statistical percentage of false allegations by child 

sexual abuse victims.”]; Wilson, supra, 33 Cal.App.5th at p. 568 [quoting the 

prosecutor’s statement to the CSAAS expert: “ ‘I want to step outside of the 

accommodation syndrome briefly and talk to you about . . . false allegations.’ ”].)

By contrast, the statistics challenged here were targeted to address certain myths 

or misconceptions about childhood sexual abuse. Love shared the 94-percent-knownabuser statistic in the course of explaining why “it’s not the truth” that the danger comes 

from strangers or “the dirty old man with jelly beans.” McAlpin itself held permissible 

CSAAS testimony that was proposed to cover, among other things, studies reporting “that 

in most cases the child molester is not in fact a stranger to his victim.” (McAlpin, supra, 

53 Cal.3d at p. 1303, italics added; see id. at pp. 1303-1304 [because the jury already 

knew that the defendant was not a stranger to the victim, “[s]uch testimony would . . .

‘assist the trier of fact’ (Evid. Code, § 801, subd. (a)) by giving the jurors information 

they needed to objectively evaluate the People’s evidence”].)

And, contrary to defendant’s view, Love’s inclusion of “uncles” among the 

various sorts of non-strangers who make up the 94-percent statistic also did not invite the 

to “get[] into any numerical evaluation or percentages of children who report or don’t 

report or do so lately.” For the reasons discussed herein, this expressed an overly 

conservative view of the permissible scope of CSAAS testimony to the extent it 

disapproved the use of statistics reflecting rates of delayed reporting.
12.

jury to infer guilt based on probability alone. As the People point out, Love gave a 

veritable “laundry list” of types of people who might be among the 94 percent of abusers 

who have an extant relationship with the child they abuse, listing uncles alongside 

“brothers, . . . moms, dads, sisters, priests, rabbi, Boy Scout leader, teachers,” and 

counselors. It would be illogical for a juror to apply this testimony to conclude that 

simply because defendant is Doe’s uncle and was not a stranger to her when the alleged 

abuse began, he most likely sexually abused her. Further, defendant’s argument that this 

testimony constituted “affirmative profile evidence” borders on the frivolous. Love 

testified that 94 percent of abusers have some prior relationship with the victim—not that 

94 percent of abusers are their victim’s uncle. The category of people “who have an 

existing relationship with the victim” is a category so broad and nebulous that it cannot 

be construed as a “profile” that would lead a jury to convict just because defendant falls 

within it.

In sum, there was no error in admitting Love’s CSAAS statistical testimony about 

the prevalence of preexisting relationships between abuser and abused because the 

testimony targeted a common misconception regarding child sexual abuse. That CSAAS 

statistic thus served the permissible purpose of helping the jury evaluate Doe’s 

credibility, free of preconceived misconceptions, while not relieving jurors of their 

ultimate duty to independently determine the truthfulness of her testimony.

Love’s second set of contested statistics targeted another common misconception 

regarding child sexual abuse: that victims will not delay in disclosing their experiences 

of abuse. In discussing the fourth category of CSAAS behavior, Love testified that, 

contrary to societal misconceptions about delayed disclosure indicating fabrication, the 

research showed that 74 percent of sexually abused children had not disclosed one year 

after the molestation, 50 percent had not disclosed five years later, and another group 

averaged 10 to 15 years before disclosing. Thus, Love opined that “actually it was more 
13.

common to delay than not,” and that “delay seems to be more part of the ingredient than 

the exception to the rule.” 

Defendant argues that this “statistical evidence supporting the notion that delayed 

disclosure was the norm could only have led the jurors to conclude that [Doe]’s 

allegations were true.” This overstates the testimony’s potential. In fact, the testimony 

was offered to ensure that the jury did not conclude that Doe’s allegations must be false

based on adverse assumptions from her multi-year delay in disclosure. A classic 

permissible use of CSAAS evidence is to “explain the typical behaviors of sexually 

abused children, such as delayed reporting.” (Lapenias, supra, 67 Cal.App.5th at p. 179; 

see McAlpin, supra, 53 Cal.3d at p. 1301.) Love simply used numerical statistics to 

explain how “typical” the behavior of delaying disclosure is. The use of numbers to 

demonstrate the prevalence of a certain behavior does not change the fact that the 

testimony was offered to rebut a specific misconception regarding the import of delayed 

disclosure—a purpose firmly permitted by the CSAAS case law, dating back to its origin. 

(See McAlpin, supra, 53 Cal.3d at p. 1300 [“expert testimony on the common reactions of 

child molestation victims . . . is admissible to rehabilitate [the complaining] witness’s 

credibility . . . .” (italics added)].)

A reasonable juror would not draw from this testimony that a delayed disclosure is 

necessarily a truthful one. And, making doubly sure the jury did not do so, Love 

emphasized both before and after describing these statistics that CSAAS “is not a clinical 

diagnostic tool” and cannot be used to diagnose child abuse or “determine the validity” of 

an allegation. This is because, as he informed the jury, CSAAS “is a collection of 

behaviors drawn from studying children who were truly molested.” The studies, he 

explained, did not bear on the ultimate judgment of “true or false,” as that would be 

diagnosis. Love summed up the CSAAS studies as simply saying: “if a child delays, 

don’t disregard everything else because there’s a delay.” The nature of the cited 

statistics, combined with these repeated surrounding disclaimers, belie any reading of 
14.

Love’s testimony as impermissibly vouching for the truthfulness of the abuse allegations 

at hand.7

2. No Prejudice

Even if defendant could show an abuse of discretion in admitting these statistics, 

reversal would be unwarranted for their very brief mention amidst myriad instructional 

safeguards. Applying the standard of People v. Watson (1956) 46 Cal.2d 818, 836, it is 

not reasonably probable the case would have come out more favorably for defendant

absent the alleged error in admitting the challenged statistics testimony.

8

 (See People v. 

Prieto (2003) 30 Cal.4th 226, 247 [“The erroneous admission of expert testimony only 

warrants reversal if ‘it is reasonably probable that a result more favorable to the appealing 

party would have been reached in the absence of the error.’ ”].)

First, Love’s discussion of the challenged statistics comprises, in total, only about 

one page of the 37-page transcript of his testimony. The jury was by no means 

“bombarded” with the statistics regarding rates of existing relationships and delayed 

disclosure. (See Julian, supra, 34 Cal.App.5th at p. 888 [“Such evidence may not be 

prejudicial where it occurs in a slight passing reference by the expert. But here the jury 

was bombarded with it.”].) Further, the prosecutor did not return to these statistics in her 

closing argument. She simply reminded the jurors, in general terms, of Love’s testimony 

7

It is undisputed that Love’s testimony could not be seen as literally vouching for 

Doe’s truthfulness, as the jury was repeatedly informed that Love had never met her and 

had no knowledge of the facts of this case. (See People v. Munch, supra, 52 Cal.App.5th 

at p. 475 [“The potential prejudicial impact of [the expert]’s testimony was also reduced 

because [the expert] testified that he knew no facts about this case.”].)

8 Courts routinely apply Watson to determine whether improper CSAAS testimony 

was prejudicial. (See Lapenias, supra, 67 Cal.App.5th at p. 180 [refusing to apply the 

standard of Chapman v. California (1967) 386 U.S. 18, 23-24]; Wilson, supra, 

33 Cal.App.5th at pp. 571–572 [same]; Bowker, supra, 203 Cal.App.3d at p. 395.) In 

Julian, which found prejudice by either standard, the court was addressing multiple types 

of error resulting in an unfair trial. (Julian, supra, 34 Cal.App.5th at pp. 889–890.)
15.

on the CSAAS patterns of behavior and asked them “not to discredit [Doe’s] testimony 

because she didn’t come forward right away.” 

Finally, the jury twice received a version of the pattern CSAAS limiting 

instruction that Love’s testimony “is not evidence that the Defendant committed any of 

the crimes charged against him” or any uncharged conduct, and that “[y]ou may consider 

this evidence only in deciding whether or not [Doe]’s conduct was not inconsistent with 

conduct of someone who has been molested or in evaluating the believability of her 

testimony.” (See CALCRIM No. 1193.) The court so instructed the jury both 

immediately before Love testified and again in giving the full instructions after the close

of evidence. The jurors also received the standard evidentiary instructions that they were 

not bound by an expert’s opinion (CALCRIM No. 332) and that they were the sole judge 

of witness credibility (CALCRIM No. 226). “We presume the jurors understood and 

followed the instructions.” (Lapenias, supra, 67 Cal.App.5th at p. 180 [citing these same 

instructions in support of harmlessness].)

3. No Ineffective Assistance

For the foregoing reasons, defendant’s secondary claim of ineffective assistance of 

counsel also lacks merit. (See Strickland v. Washington (1984) 466 U.S. 668, 687 

[reversal for ineffective assistance requires both deficient performance and prejudice].) 

Because the statistics did not go toward a likelihood of complainant truthfulness but 

rather neutralized specific misconceptions of child sexual abuse, there was nothing 

improper about them; and counsel was not deficient in failing to object to those portions 

of Love’s testimony. Moreover, given that any error was harmless, defendant cannot 

show he was prejudiced by counsel’s purported deficiency. (See People v. Ocegueda

(2016) 247 Cal.App.4th 1393, 1407, fn. 4 [Watson’s harmless error standard is 

substantially the same as Strickland’s prejudice prong].)
16.

III. EXCESSIVE PUNISHMENT*

Finally, defendant argues that the imposition of indeterminate terms on counts 2

and 3 resulted in unconstitutionally excessive punishment under both the state and federal 

Constitutions. Defendant characterizes his 46-year aggregate sentence as a “de facto 

sentence of life in prison with no possibility of parole,” given that he was 58 years old at 

the time of sentencing. Our conclusion that the conviction and sentence on count 2 must 

be reversed for the ex post facto violation and remanded for possible retrial makes it 

premature to address defendant’s sentencing arguments. (See People v. Jensen (2003) 

114 Cal.App.4th 224, 241 [“Because we reverse the judgment and remand for a possible 

retrial, it would be premature for us to address defendant’s claim that the sentence 

imposed by the trial court was cruel and unusual.”].) Because our partial reversal 

materially alters defendant’s aggregate sentence, we remand the matter to the trial court 

for full resentencing even if the People elect not to retry count 2. (See People v. Buycks

(2018) 5 Cal.5th 857, 893 [“when part of a sentence is stricken on review, . . . ‘a full 

resentencing as to all counts is appropriate, so the trial court can exercise its sentencing 

discretion in light of the changed circumstances’ ”].)9 We therefore decline to offer an 

advisory opinion on the constitutionality of discrete portions of the sentence as it 

currently stands. At resentencing (with or without retrial), the trial court should again 

address the contention in the first instance if defendant reasserts this constitutional 

challenge to the sentence ultimately imposed.

DISPOSITION

We reverse defendant’s conviction on count 2 and remand this matter to the trial 

court to afford the People an opportunity to retry count 2. Regardless of whether the 

* See footnote, ante, page 1.

9 On remand the trial court may not impose an aggregate sentence that exceeds 

defendant’s original aggregate sentence of 46 years to life. (See People v. Brown (1987) 

193 Cal.App.3d 957, 961.)
17.

People elect to retry defendant on count 2, the trial court shall conduct a full resentencing 

in a manner consistent with this opinion. The judgment of conviction is otherwise 

affirmed.

DETJEN, J.

WE CONCUR:

POOCHIGIAN, Acting P. J.

SNAUFFER, J.